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I. Vicarious Liability
A. Basics
1. Occurs when the tort liability incurred by one party (tortfeasor) is imputed to another
party
-D is held responsible for the tort committed by someone else even if he did nothing
to
aid or encourage it, wasnt negligent, or even tried to prevent it
-D is liable for a tort he didnt commit
2. Also called imputed negligence or indirect liability
3. Liability rests on a special relationship between D and the tortfeasor
-Ex. Employee commits a tortious act and P sues the employer
-Goal is for P to be compensated in monetary damages
4. Not a cause of action itself. P must first prove that the active tortfeasor committed a
tortious act and then find a special relationship to hold the responsible tortfeasor
vicariously liable
B. Respondeat Superior
1. Employer is held vicariously liable for torts committed by an employee while the
employee
was acting within the course and scope of employment
a. Imposes liability whether or not the employer was itself negligent and whether or
not
the employer had control of the employee
b. Provides incentive for employer to take safety precautions
c. Employer- responsible tortfeasor; employee- active tortfeasor
2. Scope of Employment (soe)- Must determine whether the conduct of the employee
was within the scope of employment at the time of the injury
a. Acts necessary to the comfort, convenience, health, and
welfare of the
employee
while at work, though strictly personal and not acts of service, do not
take the
employee outside the scope of employment
b. Question of fact for the jury to decide
c. OShea v. Welch- someone using his personal car for business does not take him
out
of the soe
3. Going and Coming Rule- an employee commuting to and from work is outside the
scope of
employment and the employer will not be held vicariously liable
a. Exceptions:
i. Special Hazards- when the travel to and from work subjects the employee
to
some special hazard not common to other members of the traveling
public
-Bussard v. Minimed- employee wrecked after sick from pesticides
ii. Special Errand- liability if employee is rendering a service, either express
or
implied, to employer with his consent
-Incidental benefit to employer not common to the ordinary commute
4. Frolic & Detour
a. Frolic- occurs when the employee departs from the course and scope of
employment to a significant degree in pursuit of his own interests
i. Completely abandoned the business purpose and outside soe
ii. Unrelated to employment and purely personal
iii. Employee is doing something naughty
b. Detour- a deviation that is sufficiently related to the employment to fall under
soe
a. Focuses on Ds legal right to control the actual means and methods by which the
work is performed, rather than merely the final result of that work
b. Where the employer seeks to control the actual details of the workfurnishing
tools,
setting work schedules and activities, and directly supervising the worka
court is more
likely to classify the worker as an employee and hold principal
VL
3. Generally, no RS for torts committed by the IC
a. Newspaper not VL for money collector who punched woman (Murrell v. Goertz)
b. Principal is not in a position to control the manner in which IC performs the work
c. Factors to consider: extent of control, distinct occupation or business, type of
occupation, skill required, who supplies the
instrumentalities/tools/place of work, length
of time of employment, payment
method, work part of regular business of employer,
parties belief as to type of
relationship, is principal in business?
4. Exceptions where employer will be held VL for ICs conduct:
a. Contract requires intrinsically dangerous work
b. Employer is charged by law with the duty breached
c. Work will create a nuisance
d. Act is illegal
e. Work will involve peculiar risks of harm unless proper precautions are taken (risks
that
are extremely high and special to the work performed)
5. Non-Delegable Duty- owed by the employer to the community at large which imputes
VL even though injury to P was caused by actions of an independent contractor
a. Duty- legal obligation, must look at the source of the duty
b. When is something a non-delegable duty?
i. Anything that causes a grave risk of harm to another
ii. Statute, code, or administrative regulation
6. Apparent Authority- one who expressly or impliedly represents that another party is
his
servant or agent may be held vicariously liable for the latters negligent acts to the extent
of
that representation
a. There must be a representation made to a third party and the third party relies on
it
to his detriment
b. Vicarious liability will apply when someone makes a representation whether there
is a
relationship between them or not (relationship is not necessary)
7. Shareholders are not VL for the torts of employees of the corporation
D. Joint Enterprise
1. Four elements of a joint enterprise:
a. Agreement, express or implied, among the members of the group
b. Common purpose to be carried out by the group
c. Community of pecuniary interest in that purpose among the members
d. Equal right to a voice in the direction of the enterprise; an equal right of control
2. Arises when D has agreed, in advance of any tortious activity, to participate in a specific
activity that subsequently produces an injury to P
3. Each individual participant in the joint enterprise can be held VL for the others actions
E. Bailments
1. A bailment does not make a bailor vicariously liable for the acts of the bailee in the use
of
the chattel
-The possessor or person in control (bailee) will usually be held liable, not the bailor
2. Exception: Family Car Doctrine- the owner of an automobile is held vicariously liable
when the car is negligently driven by a member of the immediate household
-Usually applies to cars but can apply to other motor vehicles, boats, etc.
3. Graves Amendment- no vicariously liability for injury or damage arising out of the use
of a vehicle rented or leased by someone in the business of renting or leasing motor vehicles
-Applies to rental car companies
4. Omnibus Clause- liability insurance for the designated automobile applies to the
named
insured, any member of the insureds household, and to any person using the
automobile with
the insureds permission, provided that it was in the scope of permission
-Lessens the need for automobile consent statutes- make the owner of a car
vicariously
liable for injury caused by the negligent operation of the vehicle as
long as it is being
used with the owners consent
F. Imputed Contributory Negligence
1. Both Ways Test- Contributory negligence will not be imputed unless negligence could
be
imputed and vise versa
2. Negligence of the driver will not be imputed to the passenger unless they are in a
masterservant relationship or joint venture
3. Derivative Claims- when a claim is derivative in nature (loss of consortium or wrongful
death)
the contributory negligence of an injured party will usually be imputed to P because
Ps claim
derived from that of the injured party
II. Strict Liability
A. Basics
1. When a court imposes strict liability, D must pay damages although D neither
intentionally
acted nor failed to live up to the objective standard of reasonable care
-Someone suffers harm even though D exercised the utmost care
2. Do not need to show intent, negligence, or causation
-Applies no matter what precautions were taken
B. Animals
1. Liability can be imposed on those who keep, possess, or harbor animals, not just the
owner
2. Trespassing Animals
a. Possessors of animals likely to roam and do damage are strictly liable for their
trespass
b. Owners are usually liable for property damage done by barnyard animals
-Cattle, horses, sheep, hogs, goats, fowl, turkey, chickens, etc.
c. No strict liability on owners whose domesticated animals have caused harm to
anothers property (must prove negligence)
-Ex. dogs and cats
d. Highway Exception- strict liability does not apply if cattle being driven to the
market
escape onto an adjacent highway
-Cattle MUST be in transition and being driven to a market
e. Fencing In Statute- require owner of the animals to fence them in and if they
dont,
they are held strictly liable for any damage caused by the animal
f. Fencing Out Statute- if P fenced his land properly, there is strict liability only if
the
animal breaks into another persons fenced in property
3. Wild Animals
a. Landowners are not responsible for harm done by wild animals on their property
unless they reduce the wild animal to possession or control or introduce a
nonindigenous animal into the area
for all
time
to SL
a. The owner of a domestic animal is subject to strict liability only if he knew or had
reason to know that the animal had dangerous propensities and the
dangerous
propensity was the cause of the harm
-Ex. dog that has bitten someone before
b. 506- domesticated animals are by custom devoted to the service of mankind at
the time and in the place in which they are kept
5. Zoos
a. Courts apply a negligence standard rather than strict liability to people who
display
wild animals to the public
b. No difference in liability for public and private zoos
6. One Bite Rule
a. There is no one free bite rule before the owner can be held liable
b. If P was engaged in trespass at the time of the bite, there is no strict liability
-Defense to the dog bite statute
-Statute might say trespass to chattel or trespass to land
c. If P cannot prove the owner knew or should have know of the animals dangerous
propensities, strict liability doesnt apply and P must prove negligence
7, If a person isnt held SL, we can still prove he was negligent
C. Abnormally Dangerous Activities
1. Apply strict liability and not negligence because it is reasonable and just to hold
someone
responsible who engages in these activities
-Defenses: act of God, assumption of risk
2. Non-Natural Use- person will be held strictly liable for non-natural use of his land that
causes
harm to another. They are uses that are for the purpose of introducing
something that was not
naturally on the land
a. Factors for non-natural use of land:
i. Character of the thing or activity in question
ii. Place and manner in which it is maintained
iii. Relation to its surroundings
b. Natural Use- landowner may use his land for anything in the course of ordinary
enjoyment
c. The person who brings onto his land anything likely to do harm if it escapes, must
keep it safe, or is otherwise responsible for all damage which is the natural
consequence of its escape (Rylands v. Fletcher)
3. 520: Factors to determine whether an activity is abnormally dangerous:
a. High degree of risk- existence of a high degree of some harm to the person, land
or
chattels of another
b. Likelihood that the harm that results will be great
c. Inability to eliminate the risk by exercising reasonable care
d. Activity is not a manner of common usage
c. Strict Liability
B. Negligence
1. Negligence analysis: duty, breach, causation, damages
2. Most common types of breach are negligence in:
a. Manufacturing the product
b. Inspecting or testing the product (by any party with a duty to do so)
c. Advertising or sale of the product, typically a problem of failure to warn about
dangerous attributes of the product
3. Negligence liability is imposed on all sellers of chattelswhether damage is to person or
property, whether the manufacturer produced the whole product or a component part,
whether the injured person was the immediate purchaser or not
4. Privity of contract does not bar a negligence claim against a manufacturer
a. Old rule- manufacturer only owed a duty to its direct buyer
b. A manufacturer owes a duty of care to all those who may foreseeably be injured
by
its products (MacPherson v. Buick)
5. Flaws in negligence liability claims
a. Difficult to prove mans negligence led to the defect that injured P
b. There is frequently no remedy against the available D (PJ issues)
C. Breach of Warranty
1. Warranty is an express or implied representation about the quality or attributes of a
product.
If the product does not live up to these representations, and loss results, a breach of
warranty
claim may provide one avenue of recovery
2. Types of warranties:
a. Express Warranty
b. Implied Warranty of Merchantability
c. Implied Warranty of Fitness for a Particular Purpose
3. Express Warranty
a. Factors in deciding whether the manufacturer should be held liable:
i. There was an express warranty
ii. The goods were not fit for their ordinary purpose
iii. Plaintiff justifiably relied on the representation
b. Restatement 402b: One engaged in the business of selling chattels who, by
advertising, labels, or otherwise, makes to the public a
misrepresentation of a
material fact concerning the character or quality of
a chattel sold by him is
subject to liability for physical harm to a consumer
of the chattel caused by
justifiable reliance upon the misrepresentation,
even though: a) it is not made
fraudulently or negligently, and b) the
consumer has not bought the chattel
from or entered into any contract
relation with the seller (Innocent Representation)
c. Seller makes specific representations about the qualities of a product and the
buyer
is injured due to the failure of the goods to fulfill those representations
4. Implied Warranty of Merchantability
a. A seller warrants that its goods are fit for the ordinary purpose for which the goods
are
used. This is not based on any representations of the seller and arises by
operation of law
b. Limitations:
i. It can be disclaimed, if it is done clearly
ii. States may adopt alternative provisions concerning who may recover for
breach
iii. Warranty claim requires timely notice of breach to the seller
c. The thing sold is reasonably fit for the general purpose for which it is manufactured
sold
5. Implied Warranty of Fitness for a Particular Purpose
-If a buyer, expressly or by implication, makes known to the seller the particular
purpose
for which the good is required and it appears that he has relied on the
sellers skill or
judgment, an implied warranty arises of reasonable fitness for that
purpose
6. UCC Limitations
a. Claimant must give prompt notice of the breach to the manufacturer within a
reasonable time of discovering the breach
b. Buyer must have relied on the warranty in making the purchase
c. Sellers might be able to limit or disclaim warranties
d. Feature that was the subject of the warranty had to cause the injury
D. Strict Liability
and
1. Restatement 402A:
1. One who sells any product in a defective condition unreasonably dangerous to the
user
or consumer or to his property is subject to liability for physical harm thereby
caused to the
ultimate user or consumer, or to his property, if:
a. The seller is engaged in the business of selling such product, and
b. It is expected to and does reach the user or consumer without
substantial
change
in the condition in which it is sold
2. The rule stated in Subsection (1) applies although
a. The seller has exercised all possible care in the preparation and sale of his
product,
and
b. The user or consumer has not bought the product from or entered into any
contractual relation with the seller
2. D is held strictly liable when:
a. D is in the business of selling the product
b. D in fact sells the product
c. At the time D sells the product, the product is in a defective condition
d. The defective condition renders the product unreasonably dangerous
e. The defect is the actual and proximate cause of harm to P
3. Policy reasons for strict liability (Greenman v. Yuba Products)
a. Increasing sophistication of products makes it difficult for consumers to assess the
risks
b. Lack of personal relationship between the manufacturer and consumer
c. Manufacturers encourage purchase of their product through extensive advertising
d. Risk of liability will encourage man to make the product safer and discover and
disclose
risks that the consumer might not recognize
4. Three types of recovery under strict products liability:
a. Manufacturing Defect- a flaw in construction that causes the product to depart
from its
intended design
b. Design Defect- the products very design rendered it dangerously unsafe
c. Warning Defect- failure to inform the user of potential dangers makes the product
dangerously unsafe
5. Manufacturing Defects
a. P alleges that the product was defective because it did not meet the manufacturers
own specifications for the product
-The product did not come off the assembly line as the manufacturer intended
b. Elements:
market
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instructions
between drug
E. Proof
1. A defect can be proven by circumstantial evidence, where a preponderance of the
evidence establishes that the accident was caused by a defect and no other possibilities
a. All other possibilities do not have to be eliminated (Friedman v. GMC)
b. Similar to reasoning in res ipsa loquitor (only allowed in negligence case, not SL)
c. Circumstantial evidence leads to a reasonable inference that there was a defect
d. The fact that the product went wrong can give rise to the inference that it was
defective and the defect existed when it left Ds hands
2. P must show:
a. The product that injured P was manufactured by D
b. The product was defective and P was injured as a result
c. The defect was present in the product at the time of sale and was not introduced by
a
distributor, installer, or repairer
3. General Defect Theory- P is not required to prove a specific defect in some
circumstances
4. The most convincing evidence is a direct showing of what went wrong
5. Violation of Safety Statute or Regulation- most jurisdictions provide that a violation
of a product safety statute or regulation makes the product defective as a mater of law
a. Product is defective per se for violating the safety statute
b. Very similar to concept of negligence per se
F. Defenses
1. Plaintiffs Conduct
a. Traditional Strict Liability Rule:
i. Contributory negligence is not a defense
ii. Assumption of the risk is a complete bar to Ps claim
-When P voluntarily confronts a known hazard, his claim is barred
b. Rest. 402:
i. Contributory negligence that consists of a mere failure to discover the defect or
to
guard against the possibility of its existence is not a defense
ii. Assumption of the risk is a defense
c. Comparative Negligence- Ps recovery will be reduced to the extent that his own lack
of reasonable care contributed to his injury
2. Product Misuse
a. Manufacturer is not liable for injuries resulting from abnormal or unintended use of
his
product that was not reasonably foreseeable
b. Misuse is not a defense if it was reasonably foreseeable by the manufacturer
-Misuse does not necessarily make a product defective
c. Jury will decide whether the misuse was foreseeable or not
3. Express Preemption
a. State law can be expressly preempted by federal law
b. Riegel v. Medtronic- cardiac patient had surgery and balloon ruptured in his body
i. Court looked at the express language of the statute and plain meaning
ii. Congress intended to invade an area where states had jurisdiction
-Expressly stated in the statute
iii. Federal government created a ceiling on the product so NY could not pass laws
that required more than this ceiling
4. Implied Preemption
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a. Occurs when a tort claim would create a situation where it would be impossible for D
comply both with what P is arguing in the tort claim should have been done and
federal law requires
b. Wyeth v. Levine- woman got a shot and her arm had to be amputated
i. FDAs approval of the manufacturer was not a complete defense
ii. FDA created a floor for the drug label and D could have strengthened it
iii. Inadequacy of the warning was a proximate cause of Ps injury
iv. In failure to warn cases, the manufacturers, not the FDA, bear primary
responsibility
for their drug labeling at all times
5. Government Standards- D can introduce evidence of compliance with government
standards on the issue of whether the manufacturer was liable or if a product was defective
-A regulatory standard issued by the federal government may preempt state claims
only if
the Court determines Congress intended such a preemption
G. Defendants Other than Principal Manufacturers
1. Strict liability does not apply to the seller of a defective product
-Limited to defendants in the business of selling products
2. Used Products- sellers of used products cannot be strictly liable for selling used
products because they are outside the original chain of distribution
-Exception: seller of used product will be held strictly liable when:
a. There was a defect that could be reasonably discovered upon inspection, or
b. Defect was created by the used product seller
3. Chain of Distribution- retailers, wholesalers, and distributors can be held strictly liable
4. Occasional Seller- one who does not hold himself out as having any knowledge or skill
in the
commercial sense will not be subject to strict liability
5. Owners- owner of a product might be liable for negligence, but not strict liability
6. Manufacturer of Component Parts or Raw Materials- the maker of a component
part not subject to further processing or substantial change in the manufacturing process can
be held strictly liable if there is a defect in the part or material
7. Sales & Service Transaction
a. A business involved in providing products and services will not be strictly liable if the
transaction is predominantly a service, only with an incidental transfer of goods
-Hecter v. Cesars Medical- P sued hospital for defective pacemaker
-Hospital is primarily engaged in providing services, not products
b. Strict liability does not apply to services
c. One who renders a service to another is under a duty to exercise reasonable care in
doing so and is liable for negligence to foreseeable plaintiff
8. Animals- strict liability depends on whether the animal is a product or not, then whether
the product was commercially sold
H. Harm Other than Economic Injury
1. Economic loss resulting from personal injury
-Lost wages, loss of consortium, medical expenses, pain and suffering
2. Economic loss without personal injury to property damage
3. Damage to property
to
what
IV. Nuisance
A. Basics
1. Two types: private and public nuisance
-The harm suffered by P must be substantial
2. Interference with Use and Enjoyment
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1. Temporary Damages- compensate for the harm suffered up to the time of trial
-If nuisance is continuing, an award of temporary damages will require P to sue
repeatedly
to collect for additional harm
2. Permanent Damages- based on the loss of land value, and are suppose to compensate
for all
harm caused by the nuisance, past, present and future
-P can sue for compensatory damages- past injury, harm, reduction to the land, etc.
3. Punitive Damages- P can recover punitive damages if he can prove Ds conduct was
intentional, gross, willful, or wanton
4. Injunction- P can request an injunction to prevent D from continuing the conduct that
created the nuisance
i. P must show a nuisance exists then satisfy requirements for equitable relief:
a. Damages are not an adequate remedy, and
b. Irreparable injury will occur if no injunction is granted
c. Ds conduct must be intentional and continuing
d. Damage resulting from the nuisance must be substantial
ii. Court will balance the equities- harm to P vs. utility to D
iii. If P does not get an injunction, he can still recover compensatory damages for past
and
future harm
G. Defenses
1. Intent
a. Consent- P has consented to the existence of the nuisance (express or implied)
V. Defamation
A. Basics
1. A defamatory communication is one that would tend to harm a persons reputation in the
community; a defamatory communication:
a. Exposes P to hatred, contempt, and ridicule
b. Impairs Ps reputation for morality and integrity, or
c. Causes P to be avoided by others
2. Two types
a. Slander- defamation published by spoken words or gestures
b. Libel- defamation published by printed word, photos, sound recordings, video, etc.
3. Role of judge and jury
a. Judge- determine whether the communication is capable of a defamatory meaning
b. Jury- determine whether the defamatory meaning was the one in fact conveyed
-If a statement is capable of two meanings, jury will decide
4. 558: To create liability for defamation there must be:
a. A false and defamatory statement concerning another
b. An unprivileged publication to a third party
c. Fault amounting at least to negligence on the part of the publisher; and
d. Actionability of the statement irrespective of special harm or the existence of special
harm caused by the publication
5. The defamatory statement must refer to P
-Occurs when P is identified by name or as the subject of a statement
6. Two step process to determine if defamation is actionable:
a. Are the words capable of a defamatory meaning?
b. Would the jury understand the statement as defamatory?
7. Pleading Defamation- P must plead:
a. The defamatory words
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2. Damages
a. Libel- damages are presumed
b. Slander- must prove special damages
-Must show nexus- connection between defamatory statement and harm to Ps
rep
3. Broadcasting- most states have statutes that any broadcast defamation is treated as
slander, whether there is a script or not
4. Repetition
a. Original publisher is liable for damages due to a repetition that might reasonably
have
been anticipated
b. A party who repeats defamation is himself liable for its publication, even if he states
the
source
5. Slander Per Se- actionable without proof of special damages
a. Imputations of a Major Crime
i. Crime involving moral turpitude- treason, espionage, rape, murder, burglary,
etc.
ii. 571- crime punishable by state or federal institution and involving moral
turpitude
b. Loathsome Disease
i. Mostly consists of diseases contracted during sexual intercourse and STIs
ii. Person must be presently suffering from the disease- must be an existing
disease
iii. Does not include insanity, tuberculosis, and other communicable diseases
c. Business, Trade, Profession or Office
i. If the words are likely to affect P in his business, trade, profession or office, the
probability of some temporal damage is sufficiently obvious
ii. Person must be employed in the profession when statement was made
d. Serious Sexual Misconduct
i. Traditionally a charge imputing unchastity to a woman and didnt apply to men
ii. Courts are split on imputation of homosexuality
6. Libel Per Se and Libel Per Quod
a. Libel Per Quod- statement that is not defamatory on its face and its necessary to
be
aware of certain extrinsic (or unstated) facts in order to appreciate its defamatory
implications
-P must allege and prove those extrinsic facts to have a cause of action
b. Special damages are not required in any libel action
D. Publication
1. Publication- communication of the defamatory words to someone other than the person
defamed
-No cause of action if it is just communicated to P and no one else hears it
2. 577- D must have intended the publication or been at least negligent with regard to its
communication to a third party
-No liability if the publication occurred by mistake and not by Ds fault
3. No publication when:
a. Words are spoken by D to P, with no reason to suppose anyone can overhear, but
they
are heard by a concealed listener
b. D sends defamatory matter in a letter to P but is unexpectedly read by third person
4. Publication by Plaintiff- D is not liable for any publication made by P alone
5. D can be liable for failure to remove defamation posted on his premises
6. Single Publication Rule- the publication of a book, periodical, or newspaper containing
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defamatory matter gives rise to only one cause of action for libel, that accrues at the
original publication and the statute of limitations runs from that date
-Morning and evening editions of a newspaper give rise to two separate claims
-New or different editions = different causes of action
E. Basis of Liability
1. In order for a public official to recover for defamation, he must prove the statement was
made with actual malice (New York Times v. Sullivan)
a. Actual Malice- means D knew the statement was false or made it with a reckless
disregard of whether it was false or not
b. Applies to public officials, public figures, and any matter of public or general interest
2. Public Officials and Figures
a. Public Official- test is whether the position in government has such an apparent
importance that the public has an independent interest in the qualifications
and
performance of the person who holds it, beyond the general public interest
in the
qualifications and performance of all government employees
b. Public Figure- person of such pervasive fame or notoriety that he is a public figure
in all
contexts
c. Limited Public Figure
i. Person can be a public figure with respect to a particular public controversy
ii. Person can become a public figure voluntarily or being involuntarily drawn in
3. Test of Serious Doubt- (subjective standard) there must be sufficient evidence that D
entertained serious doubts as to the truth of his publication; publishing with such doubts
shows a reckless disregard for the truth (St. Amant v. Thompson)
a. Recklessness may be found where there are obvious reasons to doubt the veracity of
the informant or the accuracy of his reports
b. Jury must determine whether the publication was made in good faith
4. D must have made the false publication with a high degree of awareness of probable
falsity
or must have entertained serious doubts as to the truth of the publication (HarteHanks
Communications v. Connaughton)
a. Failure to investigate before publishing, even when a reasonably prudent person
would
have done so, is not enough to show reckless disregard
b. If D published the defamatory material in order to increase his profits, this is not
enough
to show actual malice
c. Can look at Ds knowledge and actions or omissions in respect of that knowledge
5. Repetition- person is not relieved from liability for repeating a defamatory charge, even
if he indicates the source and accurately repeats it
6. A private individual of public concern does not have to prove actual malice (Gertz v.
Robert)
a. NY Times Standard does not apply to private individuals
-Less opportunity for self-help correction and more deserving of protection
-P only has to show D was at least negligent
b. States may define the proper standard for defamation
c. No presumed or punitive damages unless P shows actual malice
d. P can only recover for actual injury
i. Impairment of reputation and standing in the community
ii. Personal humiliation
iii. Mental anguish and suffering
7. State can impose any standard of liability as the measure of proof required (Dun &
Bradstreet
v. Greenmoss Builders)
a. State can impose strict liability when its a public figure of private concern
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b. Private figure P bears the burden of showing the statement is false before he can
recover damages from a media defendant
8. A private figure of public concern against a media D has the burden of proving the
statement was false while D has the burden of proving the statement was true
(Philadelphia
Newspapers v. Hepps)
9. Opinions
a. Factors to determine whether a statement is a fact or opinion:
i. Specific language used
ii. Whether the statement is verifiable
iii. General context of the statement
iv. Broader context in which the statement appeared
b. Fair Comment- affords legal immunity for the honest expression of opinion on
matters of
legitimate public interest when based upon a true or privileged
statement of fact
c. 566- Comment was generally privileged when it concerned a matter of public
concern, was upon true or privileged facts, represented the actual opinion of
the speaker,
and was not made solely for the purpose of causing harm
F. Privilege
1. Judicial Privilege
a. Judge has absolute immunity for defamatory words published in the course of
judicial
proceedings
b. Privilege attaches to judge, attorney, radio station, witnesses, pleadings, affidavits,
etc.
c. Privilege does not extend to what is said outside the court
d. If privilege exists, limitation is that what was said must have some reasonable
bearing to
the subject of the inquiry (required relevance or pertinence)
2. Legislative Proceedings
-Absolute privilege for members of Congress and state legislatures in the performance
of
their legislative functions
3. Federal Public Officials
-If publication took place within the scope of the federal officials office or employment,
no cause of action available against the officer or US
4. Conditional or Qualified Privilege
a. Privilege allowed between former employer and new employer
-Employer can lose the privilege if he improperly uses it
b. D cannot claim a qualified privilege if he knows the defamatory statement is false or
doesnt think it is true
c. Court can look to whether the information was requested by the recipient or was
volunteered
VI. Privacy
A. Basics
1. Invasion of Privacy- 652A
a. One who invades the right of privacy of another is subject to liability for the resulting
harm to the interests of the other
b. The right of privacy is invaded by:
i. Intrusion- unreasonable intrusion upon the seclusion of another
ii. Appropriation- appropriation of the others name or likeness
iii. Public Disclosure- unreasonable publicity given to the others private life
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iv. False Light- publicity that unreasonably places P in a false light before the
public
B. Intrusion
1. Intrusion involves the invasion of a persons private space or affairs
-There must be some sort of invasion into a private area of Ps life
2. Usually invoked against spying, eavesdropping, snooping, breaking and entering, and
similar
invasions of a persons home or office
3. Elements
a. Intrusion must be into a private place, conversation or matter, and
b. It must be highly offensive to a reasonable person
4. Intrusion Upon Seclusion- 652B
-One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of
another or his private affairs or concerns, is subject to liability to the other for
invasion of his
privacy, if the intrusion would be highly offensive to a reasonably
person
5. Intrusion can be accomplished:
a. Physically, as by entering a persons house or office
b. Electronically, as by wiretapping
c. Mechanically, as by using a telephone to observe P at home
6. Intrusion must be highly offensive to a reasonable person
a. Intrusion must be significant in scope, not trivial
b. It must invade an area that the reasonable person would feel is truly private
-Ex. Observation of a person in a public place is normally not an invasion of
privacy,
no matter how much the person being observed wants to be alone
7. Third Parties
a. Information obtained from the intrusion does not have to be published to a third
person
to be actionable
b. Tort of intrusion is complete as soon as the offensive intrusion itself takes place
c. The person who receives the information is not liable for intrusion
8. P does not have to have complete privacy to have some expectation of privacy
-Sanders v. ABC- P had a privacy claim for Ds intrusion upon him at work
C. Appropriation
1. Appropriation involves the use of Ps name, likeness, or identity for the users benefit
-Based on the idea that a persons identity may have a distinct value that should be
protected from exploitation without permission
2. Elements
a. D appropriates (makes use of) Ps name or likeness
b. Use was for Ds own purposes or benefit, commercially or otherwise
c. P suffered damages
d. D caused the damages incurred
3. Appropriation of Name or Likeness- 652C
-One who appropriates to his own use or benefit the name or likeness of another is
subject
to liability to the other for invasion of privacy
4. First Amendment Privilege- permits the use of Ps name or likeness when it is made in
a
publication concerning a matter that is newsworthy of a legitimate public concern
5. Right of Publicity- protects the ability of famous people to enjoy and control the
benefits of
their fame
-Famous people have the exclusive right to license the use of their names and faces
D. Public Disclosure
1. Imposes liability for the publication of private facts when the matter publicized is of a
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kind that a) would be highly offensive to a reasonable person, and b) is not of legitimate concern
to
the public
-Complaint is that the matters are private and that the disclosure of them is so highly
offensive that P should be able to recover for the mental anguish suffered as a
result of the
public discourse
2. Elements
a. D must publicize
b. Some private information about P
c. The disclosure of the private information must be highly offensive to a reasonable
person
d. The information disclosed must not be a matter of legitimate public concern
3. Publicity
a. Publicity must be widespread disclosure, not just to one other person
b. Communicating the private fact to a single person or a small group of people is not
enough for an invasion of privacy
4. Publics Right to Know
a. If the facts disclosed involve a matter of legitimate concern to the public, the
Constitution protects the right to disclose them
b. Public figures and public officials have a narrower scope of privacy
c. Public has a legitimate interest in even some private facts about public figures and
officials, to the extent that the facts relate to the persons office or place in the
public eye
5. Breach of Confidence- a person entrusted by another with confidential information may
owe the other an obligation not to disclose the information to third parties
a. Based on the relationship between the person entrusting the information and person
receiving it; often implied from a contractual duty between the parties
b. Information must be confidential
c. Exception- confidential information may be disclosed to appropriate parties on
occasion
E. False Light
1. False light occurs when D places P in an objectionable false light in the public eye
-Protects a persons privacy interest in not being portrayed to the public in an
objectionable false position; that is, as something the person is not
2. Elements
a. D must publicize some matter that places P in a false light
b. The false light must be highly offensive to a reasonable person
c. D must have knowledge of the falsity of the position in which P is placed or must act
in
reckless disregard of the falsity
3. False Light- 252E
-False light actions protect Ps interest in not being made to appear before the public,
otherwise than he is
4. If the matter is of public concern, P must show actual malice- that D knew of the
statements
falsity or acted with reckless disregard of the statements truth
-Public figures must show actual malice; private individuals can just show negligence
F. Defenses and Damages
1. Defenses
a. First Amendment- free speech
b. Consent- if a person consents, he will have no claim
c. Newsworthiness
d. Absolute Privilege
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e. Conditional Privilege
2. Damages
-Three types of damages are available
VII. Misrepresentation
A. Basics
1. Three forms of misrepresentation:
a. Negligence
b. Fraudulence
c. Innocence
2. Basic elements of misrepresentation
a. False representation of a material fact
b. Scienter
c. Intent to induce reliance
d. Justifiable reliance
e. Damages
3. 531- A person who makes a misrepresentation is liable to the person or class of persons
the maker intends, or had reason to expect, will act in reliance upon the misrepresentation
-Foreseeability alone is not sufficient
-The tortfeasor must have information that would at least lead a reasonable person to
conclude that there is an especial likelihood that it would influence someone in Ps
position
B. Concealment & Non-Disclosure
1. Generally, there is no duty to disclose a material fact or opinion to someone
-Exceptions
a. Fiduciary Relationship- fiduciary or confidential relations carry with them the
duty
to make a disclosure of all material facts
b. Active Concealment- where a person actively conceals a material fact, he is
under a duty to disclose a fact, and failure to do so creates liability
c. Incomplete Statements- if D does speak, he must disclose enough
information to
prevent his words from being misleading
d. Material to the transaction- if the fact is material and goes to the very heart of
the
transaction, there might be a duty to disclose
2. Fraudulent Misrepresentation
a. Inducement- D must induce P into reliance, intent to deceive
b. Materiality
c. Reliance
d. Damages
3. 526- a misrepresentation is fraudulent if D:
a. Knows or believes that the matter is not as he represents it to be
b. Does not have confidence in the accuracy of his representation that he states or
implies
c. Knows that he does not have the basis for his representation that he states or
implies
4. No fraudulent misrepresentation when D remains silence
5. The false representation must concern a material fact
C. Basis of Liability
1. Three forms of misrepresentation: negligent, fraudulent, and innocent
2. Negligent Misrepresentation
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a. Occurs when the party making the statement is mistaken and has a duty to use due
care
b. Elements
i. Misrepresentation of fact by D
ii. The misrepresentation is made in the course of Ds business, profession, or
employment, or in the course of a transaction in which D has an
economic interest
iii. The misrepresentation results from Ds negligence (failure to use reasonable
care)
in obtaining information and communicating it to P
iv. Justifiable reliance (by P who D owes the duty of care)
v. Resulting economic damage
c. Liability arises only where there is a duty to give correct information
d. If P fails to use due care, he can be liable for contributory negligence
e. 311- one who negligently gives false information to another is subject to liability for
physical harm caused by action by the other in reasonable reliance upon
information,
where such harm results to:
i. The other, or
ii. Such third persons as the actor should expect to be put in peril by the action
taken
-Such negligence may consist of failure to exercise reasonable care in:
i. Ascertaining the information, or
ii. The manner in which it is communicated
f. Relying on an instruction manual or how-to guide does not give rise to liability
-Winter v. GP Putnams Sons- author not liable for incorrect info about
mushrooms
g. Hanberry v. Hearst- D liable for endorsing shoes that injured P
i. D can be liable for an opinion that comes with additional facts
-Additional facts show D had additional knowledge about the shoes
ii. Must be reasonable to infer person representing the information has additional
knowledge
h. Negligent misrepresentation can be fraudulent, negligent, or innocent
-P does not need to show D had actual knowledge of the statements falsity
i. 552C- one who, in a sale, rental or exchange transaction with another, makes a
misrepresentation of a material fact for the purpose of inducing the other to
act or refrain
from acting in reliance upon, is subject to liability to the other
-P can receive expectation damages
j. Ds actions can be so grossly negligent that they amount to fraud
D. Third Persons
1. New York Rule
i. Accountants are liable for negligence when:
a. They are aware their statements will be used for a particular purpose
b. By a particular known party
b. Some conduct by the accountant links them to a third party who will rely on
the statements (nexus requirement)
ii. Need to have the bounded, triangular relationship
iii. This is not limited to accountants
iv. More restrictive than restatement
2. Restatement Approach
a. Accountant is liable to the limited group of persons that he knows will rely on the
info
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b. With regard to a transaction that the accountant intends the info to influence
3. Foreseeability Rule
a. Accountants are liable for all foreseeable consequences of their actions
b. Most broad
4. Typically, accountants are not liable to a third party who relies on the info to their
detriment
E. Reliance
1. The misrepresentation must cause P to take some action, and P must be justified in
taking this
action based on the representation
2. To determine whether the reliance was justified, court must ask:
a. Was the representation one that a reasonable person would rely on?
i. Must be material- about a fact that makes a difference
ii. P is not entitled to rely if P knows facts that the representation is untrue
b. Did P in fact rely upon the statement to his or her detriment?
-Causation element
3. Factors to consider whether the reliance was reasonable under the circumstances:
a. Ps intelligence and experience (subjective)
b. Relationship between the parties
-Is it an arms length transaction or are the parties in a confidential relationship?
c. Could the falsity of the statement been discovered through ordinary care?
4. Reliance is not justified if the statements were obviously false
-The obviousness of a statements falsity vitiates reliance so no one can rely on falsity
5. No duty to investigate- P does not have a duty to make an inquiry or investigation as to
the truth of an apparently reliable statement
F. Opinion
1. A misrepresentation must be of an existing fact, not the mere expression of an opinion
-BUT, an opinion can be a representation of an existing fact
2. Generally, courts do not regard opinions as reliable, but:
a. Statements of quantity are usually considered statements of fact
b. Opinions might imply a factual basis that is false
c. D may not really have an opinion
3. Statistics in an opinion are usually treated as puffery
4. Predictions of the future are usually considered statements of opinion, unless known to
be untrue/impossible
5. An opinion that consists of trade talk or puffing is not actionable as misrepresentation
6. When parties are so situated that the buyer may reasonably rely upon the expression of
the sellers opinion, seller can be held liable
-Ex. Vulcan Metals v. Simmons- false statements about vacuum were facts, not
opinions
G. Law
1. 545: Misrepresentation of Law
a. If a representation to a matter of law in a business transaction is a representation of
fact the recipient is justified in relying upon it to the same extent as though it
were a
representation of any other fact
b. If the representation as to a matter of law in a business transaction is a
representation of
opinion as to the legal consequences of facts known to the maker
and the recipient or
assumed by both to exist, the recipient is justified in relying
upon it to the same extent as
though it were a representation of any other opinion
stated in 542 or 543
2. A misrepresentation based on the effect of a law is actionable but a misrepresentation
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based
on a law is not
-People are presumed to know the law so P cannot say he relied on Ds
misrepresentations
of the law
3. Misrepresentation of a fact is actionable; misrepresentation of the law is not
-Sorenson v. Gardner- P did not rely on his ignorance of the law, but of the facts
4. Representations as to the law of another state are treated as statements of fact, upon
which
P may justifiably rely
H. Prediction & Intention
1. No cause of action based on intentions or future predictions
a. False representations must be of existing facts and cannot consist of mere promises
or
conjectures as to future acts or events
b. Promises or assurances as to future events cannot be made the basis of an action
for
fraud
c. Exception- can be actionable if there is a present intent and present existing facts
2. Whether P has a cause of action for a statement based on future intentions depends on
whether it was material to the transaction
3. Ds state of mind can be established as a basis of fraudulent misrepresentation
-Can look at Ds state of mind to determine whether he intended to go through with his
promise
-Need to show state of mind is an existing fact
VIII. Interference with Advantageous Relationships
A. Business Relations
1. Injurious Falsehood- creates liability for any false and malicious statement resulting in
the pecuniary loss to another
-Elements:
i. A false statement of a kind calculated to damage a pecuniary interest of P
ii. Publication to a third person
iii. Malice in the publication
iv. Resulting special damage to P, in the form of pecuniary loss
2. Title
a. Horning v. Hardy- P tried to sell his house but D sued, thinking he owned the
property,
and P was not able to sell the house
i. Ps interference with Ds title was privilege because he had honestly and
reasonably believed he had an economic interest in the property
ii. D could not prove actual malice
b. Qualified Privilege- if D has a present, existing economic interest to protect, such
as the
ownership or condition of property, he is privileged to prevent performance
of the K of
another which threatens it; D is also privileged to assert an honest
claim, or bring or
threaten a lawsuit in good faith, to exercise the right of
petition to public authorities or to
settle his own case out of court
c. Conditional Privilege- the privilege may be lost either by proof of constitutional
malice in
the form of reckless disregard for truth or falsity or knowing falsehood or by proof
of
common law malice in the form of spite or ill-will
3. Unfavorable statements made by a competitor are not actionable
a. A competitor making a statement comparing his product to another is not
actionable
b. A statement which takes the form of an unfavorable comparison of products, or
which
puffs or exaggerates the quality of ones own product is not actionable
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