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138 Cards in this Set
- Front
- Back
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a LEGAL obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.
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DUTY OF CARE
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What is Harm without Impact?
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Damages arising from mere terror un-occasioned by a physical impact.
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Pure Economic Loss is generally not recoverable except for two exceptions, what are they?
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1. Where the Defendant is a professional and the Plaintiff is their client (lawyer, accountants, etc.)
2. Misrepresentation: circumstances where economic loss is sustained due to reliance on false statements |
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What is a Harm to Intangible Interests?
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Tort actions where there is no damage other than economic loss.
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There are three factors qualifying an action recoverable for Harm without Impact:
1. Plaintiff's proximity to the accident. 2. Plaintiff suffered shock of the senses or direct emotional impact from observance of the accident. 3. _______________________? |
PLAINTIFF WAS CLOSELY (I.E. LEGALLY) RELATED TO THE NEAR VICTIM.
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In cases where there is physical harm, Plaintiff's can claim damages for Defendant's conduct that is extreme or outrageous.
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
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When defendant's conduct is calculated to cause distress.
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
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Can a telegram agency be held liable for negligent/intentional infliction of emotional distress by informing the next of kin?
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NO, COMMON LAW CARVED OUT SPECIFIC EXCEPTION FOR THE "DEATH MESSAGE RULE" TO ABSOLVE THE INFORMANT OF LIABILITY.
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What type of damages represent the closest possible financial equivalent of the harm suffered, to make the Plaintiff whole again? It is the basis for damage assessment.
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COMPENSATORY DAMAGES
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What is the rationale of why/how we value non-economic losses?
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The American rule commonly requires monetary compensation to provide resources to make the Plain.'s life better, closer to what it would have been without the injury.
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Why is the assessment of future losses always incorrect?
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Because it is impossible to reliably predict future costs of medical or inflation of the damages.
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What are the 5 elements of accounting physical damages (per Anderson v. Sears, Roebuck)?
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1. Past Physical and Mental Pain
2. Future Physical and Mental Pain 3. Future Medical Expenses 4. Loss of Earning Capacity 5. Permanent Disability and Disfigurement |
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What is the rule requiring the trial judge to determine whether the verdict of the jury exceeds the maximum amount which they could reasonably find and if it does what is the term for reduction of the jury award?
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1. MAXIMUM RECOVERY RULE
2. REMITTITUR |
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Additional sums awarded to punish the Defendant as a deterrence for future, similar tortious conduct.
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PUNITIVE DAMAGES
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Defendant is liable but Plaintiff has not suffered significant harm to be compensated. Only appropriate for torts that do not require actual damages (i.e. trespass, minor battery)
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NOMINAL DAMAGES
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What is the rule for calculating damages for physical pain and suffering and mental anguish?
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THERE ISN'T ONE, PAIN AND SUFFERING ISN'T CAPABLE OF BEING REDUCED TO PRECISE VALUE, TYPICALLY ITS LEFT TO THE JURY WITH THE DISCRETION OF THE COURT.
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What does the Collateral Source Rule do and what does it typically concern?
Rule states that when the plaintiff receives compensation from a collateral source for plaintiff's injury/loss, the provisions of that benefit is ignored and plaintiff may recover the entirety of their claim. |
COLLATERAL-SOURCE RULE-
Rule states that when the plaintiff receives compensation from a collateral source for plaintiff's injury/loss, the provisions of that benefit is ignored and plaintiff may recover the entirety of their claim. CSR typically concerns payments such as insurance and services such as nursing. |
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What is LOSS OF CONSORTIUM?
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claim by the spouse of an injured person for loss of conjugal relations, society, companionship, household services, etc. during the time period that the injured person is recovering or for a permanent loss.
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An agreement whereby a person with no interest in a lawsuit agrees to aid in or carry on its litigation in consideration of a share of the proceeds.
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CHAMPERTY
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Meddling in a lawsuit by assisting either party with means to carry it on.
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MAINTENANCE
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Harm to Property Interests- If a chattel is completely destroyed or is converted by the Defendant for his own use, what is the measure of damages?
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THE ENTIRE VALUE OF THE CHATTEL AT THE TIME AND PLACE OF THE TORT
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If a chattel is damaged but not destroyed or converted, how are the damages measured?
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BY THE DIFFERENCE IN VALUE BEFORE AND AFTER THE INJURY
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If there is merely a deprivation of use, what are the damages?
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THE VALUE OF THE USE OF WHICH THE PLAINTIFF HAS BEEN DEPRIVED.
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What is the rule for AVOIDABLE CONSEQUENCES?
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THAT THE PLAINTIFF HAS AN OBLIGATION TO MITIGATE DAMAGES.
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What was the principle holding in Darbishire v. Warran concerning damages for the replacement of a vehicle?
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PLAINTIFF WAS ONLY ALLOWED TO RECOVER THE AMOUNT OF THE MARKET VALUE OF THE VEHICLE ADJUSTED TO REFLECT THE CONDITION AND AMOUNT REQUIRED TO RESTORE THE VEHICLE.
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Does sentimental value qualify as a necessary consideration for assessment of damages?
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GENERALLY NO, ALTHOUGH SENTIMENTAL VALUE DOES SERVE SOME FUNCTION FOR DETERMINING REASONABLE DAMAGES IT IS NOT SUPPOSED TO BE FACTORED INTO THE COMPENSATION.
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Is it unreasonable or unfair to require an injured plaintiff to go to a cheaper public hospital instead of a private hospital?
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YES! PLAINTIFF MAY SEEK ANY ADEQUATE CARE THAT IS AVAILABLE AND APPROPRIATE TO TEND TO THE INJURIES SUSTAINED.
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Does the Avoidable Consequences Rule require the Plaintiff to submit to medical procedures if the damages would be less than if the Plaintiff elected to live with the future consequences of his/her injury?
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NO, HOWEVER, THE PLAINTIFF IS ONLY ENTITLED TO RECOVER THE MINIMUM AMOUNT TO RECOUP THEM FOR THEIR INJURIES.
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If a Plaintiff's injuries are exacerbated by their neglect or failure to seek adequate care, does this qualify as a failure to mitigate?
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YES!
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Punitive damages are monetary sums awarded beyond the minimum required to recoup the Plaintiff, what are the two main considerations applied to determine if PD is appropriate?
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1. WHETHER THE TORT WAS INTENTIONAL; AND,
2. WHETHER THE TORTFEASOR DEMONSTRATED CONSCIOUS INDIFFERENCE OR EGREGIOUS NEGLIGENCE |
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In State Farm Mutual Automobile Ins. Co. v. Campbell, what was the Supreme Court's principal holding regarding the award of Punitive Damages?
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SCOTUS HELD THAT PUNITIVE DAMAGES MAY NOT EXCEED A RATIO OF 9:1 IN COMPARISON TO COMPENSATORY DAMAGES
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What was the New Jersey Supreme Court's principal holding in Goddard v. Grand Trunk Railway Co. concerning punitive damages in cases of vicarious liability (i.e. respondeat superior)?
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THAT THE EMPLOYER OF A TORTFEASOR IS LIABLE FOR PUNITIVE DAMAGES BASED ON THE ACTIONS OF AN EMPLOYEE WHO COMMITS A TORT IN THEIR CAPACITY AS AN EMPLOYEE FOR SAID EMPLOYER.
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What are the three primary defenses based upon the conduct of the plaintiff?
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1. CONTRIBUTORY NEGLIGENCE
2. AVOIDABLE CONSEQUENCES 3. ASSUMPTION OF RISK |
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The standard for the determination of whether a plaintiff was contributorily negligent is?
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THE REASONABLY PRUDENT PERSON UNDER THE CIRCUMSTANCES
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DEFENSES
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DEFENSES
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What is the burden allocation for the defense of contributory negligence?
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1. THE PLAINTIFF MUST PROVE DEFENDANT'S CAUSATION OF THE INJURY.
2. THE DEFENDANT MUST PROVE THAT THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT. |
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Is Contributory Negligence applicable to acts that increase the severity of injury?
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No, contributory negligence only operates as a defense to the circumstances that cause the accident but not the severity of the injury. (Spier v. Barker- Plaintiff's failure to wear a seatbelt was not sufficient CN to absolve liability).
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Is Contributory Negligence a complete defense?
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Yes, at common law.
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Is Avoidable Consequences a complete defense at common law?
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NO, PRINCIPALLY AVOIDABLE CONSEQUENCES RULE IS ONLY APPLIED TO PLAINTIFF'S ACTIONS AFTER THE THE ACCIDENT/INJURY OCCURRED.
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What does the Last Clear Chance Rule do?
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Establishes that if the Defendant had an opportunity to avoid the accident after the opportunity was no longer available to the Plaintiff, the Defendant is the one who should bear the loss.
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How is the Last Clear Chance Rule applied?
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A NEGLIGENT PLAINTIFF CAN NONETHELESS RECOVER IF HE IS ABLE TO SHOW THAT THE PLAINTIFF HAD THE LAST OPPORTUNITY TO AVOID THE ACCIDENT.
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What are the three commonly cited situations in which the last clear chance rule applies?
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1. THE DEFENDANT DISCOVERED THE DANGER AND COULD HAVE PREVENTED INJURY
2. DEFENDANT SHOULD HAVE DISCOVERED THE DANGER 3. DEFENDANT'S NEGLIGENCE PRECEDING THE POINT WHICH HE DISCOVERED OR SHOULD HAVE DISCOVERED THE DANGER |
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Ex Turpi Causa non Oritur Actio
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"from a dishonorable cause an action does not arise"
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Similar to contributory negligence defense, however, this defense allows the partial recovery or reduction of damages in light of the Plaintiff's demonstrated negligence in the act causing injury.
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WHAT IS COMPARATIVE NEGLIGENCE.
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Allows the Plaintiff to recover, even when the Plaintiff was primarily at fault, though, damages may be reduced according to the Plaintiff's measure of liability.
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PURE COMPARATIVE NEGLIGENCE
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Prevents Plaintiff from recovering for damages when plaintiff was MORE negligent than the defendant.
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MODIFIED COMPARATIVE NEGLIGENCE
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Is contributory negligence a defense to strict liability cases?
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NO (Lemos v. Eichel)
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What does the Unit Rule say concerning comparative negligence as it applies to multiple defendants?
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IN CALCULATING THE MEASURES OF LIABILITY, WHEN THERE ARE MORE THAN ONE DEFENDANT THEIR LIABILITY WILL BE COMBINED.
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This is the term referring to the situation in which two or more defendants are liable to the plaintiff and each individual defendant is liable for the full amount of the injury.
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JOINT AND SEVERAL LIABILITY.
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Each tortfeasor is liable for only their percentage of the harm caused.
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SEVERAL LIABILITY.
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Volenti non fit injuria
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TO THE WILLING PERSON, THERE IS NO LEGAL INJURY
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The Defense by which the Plaintiff in some way accepted the responsibility or the likely outcome of the action which resulted in his/her injury.
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ASSUMPTION OF RISK
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When the plaintiff, in words, makes an agreement to waive liability for the results of an action.
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EXPRESS ASSUMPTION OF RISK
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What are the two principal questions examined in a defense of express assumption of risk.
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1. WHETHER THE INJURY IS WITHIN THE EXPRESS ASSUMPTION OF RISK OR IS THERE ANOTHER RISK FACTOR THAT WAS NOT WAIVED; AND,
2. WHETHER THE CONTRACT PROVISION IS ENFORCEABLE ACCORDING TO PUBLIC POLICY. |
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Regarding Assumption of Risk, what is the principal determinative factor as to whether the defense will be effective?
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THAT THE PLAINTIFF WAS AWARE OF THE RISK.
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Regarding the defense of statute of limitations, when does the time period begin?
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WHEN THE DAMAGE OCCURS OR WHEN THE INJURY IS DISCOVERED. ESSENTIALLY BEGINS WHEN ALL OF THE ELEMENTS OF A CAUSE OF ACTION ARE PRESENT.
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Does the Statute of Limitations run when the plaintiff had no reason to know or didn't know of the injury?
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NO.
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IMMUNITIES
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IMMUNITIES
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How does a PRIVILEGE operate as a defense to liability?
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PRIVILEGE AVOIDS LIABILITY FOR TORTIOUS CONDUCT ONLY UNDER PARTICULAR CIRCUMSTANCES WHICH MAKE IT JUST AND REASONABLE THAT THE LIABILITY SHOULD NOT BE IMPOSED.
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How does an immunity operate as a defense?
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IMMUNITY AVOIDS LIABILITY UNDER ALL CIRCUMSTANCES WITHIN THE LIMITS OF THE IMMUNITY ITSELF.
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What was the rationale behind SPOUSAL IMMUNITY? Is it still operative?
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A.
1. A woman's marriage rendered her chattel of her husband 2. Spousal liability would destroy peace of the home 3. Injured spouse has an adequate remedy in criminal or divorce law. B. SPOUSAL IMMUNITY IS ABANDONED. |
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In terms of State and Local Government, most courts continue immunity for _______________ but have eliminated it for ____________.
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1. DISCRETIONARY FUNCTIONS (where the government is acting to establish policy);
2. MINISTERIAL ACTS (where the government is acting to implement or effectuate the policies). |
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In terms of Public Officer immunity, when the state has not consented to be sued on a matter, may a public official be held personally liable when his/her conduct does not come within the immunity?
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YES.
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Public Official immunity is available only when....?
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WHEN THE ACTS ARE DISCRETIONARY AS OPPOSED TO MINISTERIAL IN NATURE.
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WRONGFUL DEATH AND SURVIVAL
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WRONGFUL DEATH AND SURVIVAL
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At Common Law, is death a legal injury to survivors?
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NO.
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What did Lord Campbell's Act do?
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LCA CREATED A NEW CAUSE OF ACTION PROVIDING A REMEDY FOR CLOSE RELATIVES OF DECEASED. DEATH BECAME A LEGAL WRONG AND REMEDY WAS PROVIDED FOR THE FAMILY (spouse, children, parent)
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What are the losses that result from the death of a person? (i.e. what are the damages a relative might seek?)
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PRIMARILY INCOME AND COMPANIONSHIP.
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What are the gains that result from the death of a person?
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UNPRODUCTIVE EMPLOYEES, LIFE INSURANCE/PENSION BENEFITS, LESS INCOME REQUIRED TO FEED A CHILD, ETC.
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To sustain a claim under Lord Campbell's Act, dependents, who may not be legally related to the deceased, must prove what?
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THEY MUST PROVE RELIANCE/DEPENDENCE ON THE INCOME/SERVICE/CARE OF THE DECEDENT.
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Actio Personalis Moritur Cum Persona
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A PERSONAL ACTION DIES WITH THE PERSON.
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How did Lord Campbell's Act effect claims against a defendant who died before the issue was resolved?
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LCA ALLOWED THE CAUSE OF ACTION TO CONTINUE BEYOND DEATH, MAINTAINABLE BY/AGAINST THE ESTATE OF THE DECEDENT.
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What was the exception to the survivability of claims under Lord Campbell's Act?
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CLAIMS FOR LIBEL AND SLANDER DO NOT SURVIVE.
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Can damages resulting from a breach of contract be compensable under the wrongful death/lord campbell's act?
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YES, IF THE DEFENDANT COULD HAVE BEEN HELD LIABLE FOR A BREACH OF CONTRACT CLAIM SHOULD THE PLAINTIFF HAVE SURVIVED THEN THE CLAIM MAY BE BROUGHT UNDER LCA
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If a claim is to survive the death of the Plaintiff, at what point in time must the claim have been actionable?
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AT THE TIME OF DEATH.
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For purposes of Wrongful Death/Survival, is a fetus considered a legal person?
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NO.
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How do courts rationalize a claim for personal injury when the injury is inflicted pre-natal?
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THE INJURY/DAMAGE SUFFERED (THAT WHICH IS COMPENSABLE) IS SAID TO OCCUR AFTER THE BIRTH OF THE CHILD. (ENDRESZ V. FRIEDBERG)
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Despite the courts' general agreement that a fetus is not a legal person, how do courts rationalize actions for the wrongful death of stillborns?
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COURTS HAVE TRENDED TOWARD APPLYING THE VIABILITY TEST TO SUSTAIN SUCH CAUSES OF ACTION.
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In terms of Wrongful Death, are damages for grief resulting from the death allowable?
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NO, NOT ALLOWED BECAUSE IT IS NOT A LOSS THAT THE DECEASED WOULD HAVE HAD AT THE TIME OF DEATH.
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What is Pecuniary Loss?
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A TERM USED TO DESCRIBE THE FINANCIAL LOSS THAT THE FAMILY HAS SUFFERED FROM THE DEATH OF A FAMILY MEMBER. IF A PERSON EARNED $30K/YR AND THEY WERE 35 YEARS OLD, AN ECONOMIST WOULD PROJECT HOW MUCH THEY WOULD EARN OVER THE NEXT 30 YEARS.
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What are the two primary forms of Nuisance?
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PUBLIC AND PRIVATE.
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What is the difference between Public and Private Nuisance?
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PUBLIC NUISANCE IS AN UNREASONABLE INTERFERENCE WITH A RIGHT COMMON TO THE GENERAL PUBLIC, WHEREAS, PRIVATE NUISANCE IS AN INTERFERENCE WITH THE RIGHT OF AN INDIVIDUAL; PRIVATE NUISANCE THE PLAINTIFF MUST SUFFER LOSS TO LAND.
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What are the three circumstances that may sustain a Public Nuisance claim?
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1. conduct that involves a substantial interference with public health, safey, peace, etc.
2. conduct proscribed by a statute, ordinance or regulation 3. conduct of continuing nature, or with long lasting effect. |
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Who should pursue claims of public nuisance?
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Public Officials and the Government relevant to the nuisance.
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Who is the defendant liable to for public nuisance?
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Only those individuals who suffer particular damages. Particular damages is a requirement for public nuisance.
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What is the standard of review for Private Nuisance pertaining to conduct and compensation? (i.e. Where does the line for a reasonable nuisance versus an unreasonable one lie?)
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PRIVATE NUISANCE CONDUCT IS DETERMINED BASED ON ITS SUBSTANTIAL EFFECT ON THE ORDINARY PERSON.
LIKEWISE, DAMAGES ARE LIMITED WHAT THE ORDINARY PERSON WOULD SUFFER. |
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What factor may the defendant in a Private Nuisance claim raise for consideration?
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1. the character of the area; whether the area has an established character that bears on whether the ordinary person would consider the act a nuisance. (Stevens v. Rockport Granite)
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May the defendant show due care as a defense to a private nuisance claim?
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NO, DUE CARE IS NOT A DEFENSE TO PRIVATE NUISANCE UNLESS THE PLAINTIFF IS SEEKING ABATEMENT.
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If Plaintiff discovers the danger/private nuisance but continues to endure it may it affect his recovery?
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YES, DEFENDANT MAY BE ENTITLED TO A PRESCRIPTIVE RIGHT TO CONTINUE CONDUCT IF THE PLAINTIFF FAILS TO BRING HIS CLAIM PROMPTLY.
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Is a potential plaintiff to private nuisance justified to exercise self-help in abatement of the nuisance?
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YES, WITHIN REASON. THE PLAINTIFF IS ENTITLED TO EXERCISE SELF-HELP ANALOGOUS TO PROTECTION OF LAND POSSESSION BUT DOES NOT JUSTIFY INFLICTION OF PERSONAL INJURY OR BREACH OF THE PEACE.
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Can spouse or children of the landholder maintain action for private nuisance?
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YES, HOWEVER, THE LIABILITY DOES NOT EXTEND TO PRE-EXISTING CONDITIONS OF THE NON-LANDOWNERS (I.E. SUCH AS EGG SHELL SKULL RULE)
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Does contributory negligence operate as a defense to claims of private nuisance?
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SOMETIMES, ONLY IF THE CLAIM IS BASED ON NEGLIGENCE RATHER THAN INTENTIONAL NUISANCE.
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STRICT LIABILITY
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STRICT LIABILITY
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What was the principal rule established in Rylands v. Fletcher that opened the gate for the application of strict liability?
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A PERSON WHO, FOR HIS OWN PURPOSES, BRINGS ON HIS LAND AND COLLECTS AND KEEPS THERE ANYTHING LIKELY TO DO MISCHIEF IF IT ESCAPES, MUST KEEP IT AT HIS PERIL. IF HE DOES NOT DO SO, IT IS A PRIMA FACIE CASE FOR LIABILITY FOR THE CONSEQUENCES OF ITS ESCAPE.
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What are the three categories of strict liability applicable to animals?
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1. Trespass by Livestock
2. Scienter or Domestic Animals 3. Non-Scienter or Wild Animals |
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What is the exception to strict liability for wild animals? domestic animals?
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1. Wild Animals not owned by anyone
2. Domestic animals without scienter |
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What does scienter refer to in animals and the application of strict liability.
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Scienter refers to the owners knowledge and/or awareness that the animal poses a threat. Wild animals do not require scienter if they are owned, they are dangerous in and of themselves. Domestic require knowledge that they are a hazard.
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What general activities qualify for the application of strict liability?
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"ultra-hazardous" activities that necessarily involve a risk of serious harm of which the exercise of utmost care cannot eliminate the risk.
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What are the six factors courts consider in determining "abnormally dangerous" activities?
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1. High degree of risk of some harm
2. Likelihood that the harm that results will be great 3. inability to eliminate the risk by reasonable care 4. Inappropriateness of the activity 5. Value to the community 6. Not a matter of common usage. |
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What is the principal limitation on strict liability on ultra-hazardous activity?
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THAT THE HARM MUST RESULT FROM THE RISK THAT MAKES THE ACTIVITY ULTRA-HAZARDOUS (i.e. not for tripping over a stack of dynamite and breaking your arm).
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PRODUCTS LIABILITY
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PRODUCTS LIABILITY
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At common law, who could sue the manufacturer/seller of a defective product? UCC?
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ONLY THE PURCHASER OF THE PRODUCT. THE UCC SUBSEQUENTLY STATED THAT THE SELLER'S WARRANTY EXTENDS TO ANY NATURAL PERSON IN THE FAMILY HOUSEHOLD OR WHO IS A GUEST OF THE HOUSEHOLD IF IT IS REASONABLE THAT THEY WOULD USE.
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Who does liability apply to in Products Liability claims?
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THE MANUFACTURER AND ANYONE WHO SOLD THE PRODUCT IN THE ORDINARY COURSE OF BUSINESS.
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What are the three categories of product defect (RT3)?
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1. MANUFACTURING DEFECT (departure from intended design)
2. DESIGN DEFECT (faulty design) 3. INADEQUATE WARNINGS |
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What are the three elements that the plaintiff must prove for products liability claims?
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1. the existence of a manufacturing defect;
2. the defective product was not substantially changed before reaching the consumer 3. the defect proximately caused the Plaintiff's injury. |
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Why might a defendant in an inadequate warning claim succeed even though there was no warning?
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OBVIOUS AND GENERALLY KNOWN HAZARDS; OR,
LEARNED INTERMEDIARIES (DR. W/ MEDICINE) |
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Concerning design defect, what is the Consumer Expectation Test?
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THE PRODUCT IS DEFECTIVELY DESIGNED IF IT IS MORE DANGEROUS THAN THE ORDINARY CONSUMER WOULD EXPECT.
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What is the Risk v. Utility Test?
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TEST WEIGHS THE RISKS AND BENEFITS OF THE DESIGN
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How does Products Liability law examine the innocent bystander in assessing liability upon manufacturers?
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IF AN INNOCENT, NON-USER, BYSTANDER IS INJURED BY A PRODUCT THE BYSTANDER MUST BE ONE WHICH THE MANUFACTURER WOULD HAVE FORESEEN AND THE INJURY MUST BE ONE THAT WAS ALSO FORESEEABLE.
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May Contributory Negligence operate as a defense to products liability claims?
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Generally, No. However, under limited circumstances it may operate when the plaintiff is aware of the danger and continues to use the product nonetheless.
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May Assumption of risk operate as a defense to products liability claims?
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YES, HOWEVER, IT IS VERY DIFFICULT TO PROVE UNLESS THE PLAINTIFF WAS A. AWARE OF THE RISK INVOLVED IN USING THE PRODUCT BUT CONTINUED TO USE IT ANYWAY, OR B. USED THE PRODUCT IN A MANNER INCONSISTENT FROM THE MANUFACTURER'S INTENT.
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LIBEL & SLANDER
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LIBEL & SLANDER
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What are the 3 divisions of the tort of defamation?
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1. Prima Facie case-
2. Common Law Defenses 3. Constitutional Law |
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What is defamatory publication?
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PUBLICISED INFORMATION THAT TENDS TO HOLD THE PLAINTIFF UP TO HATRED, RIDICULE, SHUNNED OR AVOIDANCE.
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Can an action for defamatory publication be held on behalf of the deceased?
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NO.
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What are the 6 elements of Defamation?
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1. Defendant made a statement
2. Defendant communicated statement to a 3rd party 3. Defendant's statement conveyed defamatory meaning to 3rd party 4. statement referred to the plaintiff 5. statement caused damage to plaintiff's reputation 6. statement was false. |
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What are the four common law Defamation Per Se categories?
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1. imputation of a major crime.
2. imputation of a loathsome disease 3. Negative impacts on professional reputation 4. imputation of unchastity |
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What is the difference between libel and slander?
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Slander is defamatory material published in some fleeting form, as by spoken words or sounds, sign language, gestures, etc. Libel is defamation by written or printed words, pictures or in any other form other than by spoke word.
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concerning libel and slander, what is the difference between per se and per quod categories of each tort?
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PER SE CATEGORIES INCLUDE THE FOUR IMPUTATIONS (MAJOR CRIME, LOATHSOME DISEASE, PROFESSIONAL REPUTATION, UNCHASTITY) AND DO NOT REQUIRE PLEADING OR PROVING OF SPECIAL DAMAGES. PER QUOD IS OUTSIDE OF THE 4 IMPUTATIONS AND DOES REQUIRE PROOF OF DAMAGES.
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What is the standard by which the courts examine whether fictional characters (as in a novel) resemble a real person for the purpose of determining libel?
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WHETHER A REASONABLE PERSON READING THE BOOK WOULD UNDERSTAND THAT THE CHARACTER THEREIN WAS IN FACT THE PLAINTIFF AS DESCRIBED.
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Under R2T, may a defendant be held liable for failure to remove defamation (as in magazine)?
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YES, IF THE DEFENDANT HAS NOTICE AND SUFFICIENT OPPORTUNITY TO REMOVE THE DEFAMATION.
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Concerning defamation liability, does Truth operate as a defense?
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YES IT DOES, HOWEVER, EVEN IF THE STATEMENT IS TRUE, IF IT CARRIES A DEFAMATORY MEANING THAT THE RECIPIENT WOULD TAKE, THE DEF. STILL LOSES IF THE DEFAMATORY MEANING TAKEN WAS NOT TRUE.
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Is the defense of truth available to hearsayers?
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NO.
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ABSOLUTE AND QUALIFIED PRIVILEGES
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ABSOLUTE AND QUALIFIED PRIVILEGES
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What categories/types of speech does absolute privilege apply to?
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1. anything said by a legislator on the floor or in committee
2. Official Reports of Legislative Proceedings 3. Press Releases 4. Judges, Attorneys, Parties, Witnessess during the course of judicial proceeding 5. Documents prepared for use in judicial proceeding 6. Official reports of court and judicial opinions 7. Proceedings before administrative tribunals |
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What categories/types of speech does qualified privilege apply to?
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1. Statements in furtherance of public interest
2. reports of public proceedings 3. "fair comment" on matter of public concern 4. Officials of government who do not possess absolute privilege 5. Communications to law enforcement officials 6. Statement made to protect oneself 7. Communications to agencies responsible for licensing 8. Character of Employees |
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What are the four ways in which qualified privilege may be forfeited?
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1. Def. lacked belief or had no good faith for belief in the truth of the statements.
2. Statement was published for some purpose other than that for which the particular privilege is given. 3. Statement is made to some person not reasonably believed to be necessary 4. Statement included defamatory matter not reasonably believed to be necessary to accomplish the purpose. |
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What must the plaintiff prove to win a case if the Plaintiff is a public official or public figure?
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ACTUAL MALICE- KNOWLEDGE THAT THE MATERIAL WAS FALSE OR RECKLESS DISREGARD OF WHETHER IT WAS FALSE OR NOT.
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For defamation purposes, who are public officials?
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ALL THOSE WHO HAVE OR APPEAR TO THE PUBLIC TO HAVE RESPONSIBILITY FOR PUBLIC/GOVERNMENTAL AFFAIRS
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For defamation purposes, who are public figures?
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THOSE INTIMATELY INVOLVED IN THE RESOLUTION OF IMPORTANT PUBLIC QUESTIONS, OR, BY REASON OF THEIR FAME, SHAPE EVENTS IN AREAS OF CONCERN TO SOCIETY AT LARGE.
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In terms of defamation and constitutional law, what are the two principal rules for determining liability?
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1. NO LIABILITY WITHOUT FAULT
2. NO PUNITIVE OR PRESUMED DAMAGES WITHOUT ACTUAL MALICE; CAN ONLY RECOVER ACTUAL DAMAGES |
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Can the status of being a public figure be lost?
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NOT AS LONG AS THE ALLEGED DEFAMATORY MATERIAL IS PERTAINING TO THE SAME ISSUE THEY BECAME A PUBLIC FIGURE FOR.
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When the defamatory statements do not involve matters of public concern, are presumed and punitive damages allowed?
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YES, SCOTUS HELD THAT PERMITTING RECOVERY OF PRESUMED AND PUNITIVE DAMAGES IS NOT A VIOLATION OF THE FIRST AMENDMENT WHEN MATERIAL CONCERNS PRIVATE CITIZENS.
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Can a private individual recover damages when a newspaper publishes speech of public concern but defames the individual in doing so?
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ONLY IF THE PRIVATE INDIVIDUAL CAN SHOW THAT THE STATEMENTS AT ISSUE ARE FALSE.
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Why is the burden on the private individual to prove that defamatory statements made by the press are false?
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BECAUSE THE COURT FEARED A SUPPRESSION OF FREE PRESS IF THE BURDEN WAS UPON THE NEWSPAPER TO PROVE THE TRUTH OF THEIR STORIES.
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What is the primary remedy for defamation?
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DAMAGES
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What is an alternative or maybe supplementary form of relief a plaintiff may seek in defamation claim?
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DECLARATORY RELIEF, THE PURPOSE BEING TO OBTAIN A JUDICIAL DETERMINATION THAT THE STATEMENT ABOUT THE PLAINTIFF IS FALSE AND THUS VINDICATE HIS REPUTATION.
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Do courts allow injunctions to stop the selling of defamatory material?
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GENERALLY NO, THE PRIMARY REMEDY IS DAMAGES.
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