Torts

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PRIVACY

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- limited by statute to commercial uses of the p’s name or likeness in somestates.

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MISAPPROPRIATION

Joe Dickerson

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Target of investigation by detective agency brought suit against agency for invasion of privacy by appropriation of her name or likeness in newsletter report touting its role in her investigation and prosecution. The District Court, City and County of Denver, R. Michael Mullins, J., entered summary judgment in favor of agency, and target appealed. The Court of Appeals, Marquez, J., 9 P.3d 1145, reversed and remanded. Certiorari was granted. The Supreme Court, Bender, J., held that: (1) as a matter of first impression, publication of name and picture in truthful newsletter article regarding felony conviction was privileged under the First Amendment and, therefore, was not actionable as invasion of privacy, and (2) a plaintiff who seeks only personal damages need not prove the value of her identity in order to recover for invasion of privacy.
Reversed and remanded with directions.

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Joe Dickerson

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- why not a defamation action? What he was saying was accurate.
- What does she want for this invasion? What type of damages would embarrassing, compensative, non-economic, personal. General, maybe loss of enjoyment. Pain and SUFFERING, loss of future employment, maybe she lost her job, prospects of a job.
- Assuming no pecuniary loss- harm was more emotional in nature. How has she been invaded. In what way specifically.
- Her name has been misappropriated. Her name and her likeness.
- How does the D respond he says it is privileged.
- Her name does not have anyvalue so she does not have a ligit misappropriation claim.
- 1. Your name must have somekind of value where it was taking advantage of
- 2. Recognize a privileged where all the other elements have been meet for miss appropriation.
- ct. argues that it is not necessary for the P to move evidence of the value of her name and likeness when she seeks only personal damages
- debate over the abililty of the P to recovery pecuniary loss resulting form an unauthorized commercial exploitation of her name and likeness
- for pecuniary damges, some courts and commentators have recognized the “right of publicity” which permits P’s to recover for injury to the commercial value of their identities

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Common Law Elements for Misappropriation

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- Elements- Common Law (Three) for MISAPPROPRIATION
b. the D used the P’s name or likeness
c. the use of the p’s name or likeness was for the D’s own purposes or benefit, commercially or otherwise
d. The P suffered damages from the misappropriation that The D caused the damages to occur
- there can be harm to you personally and emotionally there can be recovery for both. Personal impact not withstanding any impact on the community to her likeness.
- Are we going to recognize a privilidge? What is it? “The fact that it was a matter of public concern” our job are to see if this protect third parties or public interest. It does not matter why he published it or how he published it. Assuming that this is going to recognize the interest of third parties and there is no malice involved then this is qualified.
- If there is a benefit to the public then we don’t care why the D published it. Eventhough the P did not meet all the requirements of the misappropriation.
- The 1st privacy action is misappropriation of ones likeness.

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Misappropriation

Joe

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- you are allowed to use a person’s name and likeness if it “reasonably relates to, a publication concerning a matter that is newsworthy or of a legit public concern
- Is the publication commercial or non commercial?
- Commercial speech is “speech that proposes a commercial tranaction. It is the content of the speech, no the motivation of the speaker, which determines whether particular speech is commercial.
- The fact that the D’s reason for publishedin the news paper may be been his own commercial benefit does not necessarioy render the speech commercial
- Held that the publication of the P’s name and likeness in connection with a truthful article regaridn the P’s felony conviction is privileged. Her claim can not prevail
- WE don’t have to worry about the difference of commercial or non-commercial damages
- What if it is not pecuniary.

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INVASION

Sanders

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- The constitution is largly influenced by the prisim we see things.
- Note 4
o There must have been some sort of crossing over to where you have an expectation of privacy
o Highly offensive intrusion to a reasonable person.
- The invasion test has two interlinking elements. The intrusion must be into a private place, conversation, or matter, and must be highly offensive to a reasonable person. The essence of thei first requirement is an objective expectation and will vary with respect to the identity of the intruder or the nature of the intrusion.
- this is the first element is this a private place?
o Where you work?
o The Court concludes that just because some aspect of privacy you have given up by virture of the circumstance that you placed yourself in.
- the jury concluded that it would have been highly offensive to a reasonable person
- The courts are going to be limited on their inquires
- There is very little to support the jury’s conclusion.
- Your objection has to be reasonable.
- You don’t have to have actual harm you can have nominal damages. There is harm when ever anyone intrudes into your seclusion. We can say on its face that there has been some type of harm to you.
- Note 5- there is no expectation of privacy
o There is ordinarily no liability for taking the p’s photograph in a public place.

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Hall (PUBLIC DIssemintion (disclosure) OF PRIVATE FACTS)

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- courts not so keen on this idea. Self sensorship of giving life to private facts.
- We are going to do it for our class
o Elements
 Public disseminiation ( must be introduced to the public more than a couple people)
 Disclosure of facts of a private nature that a reasonable person would be offended by their public release. ( Up until the release were strickly private) Facts are not private if they are in public record.
- we don’t impose liability on something that was already in the public but a media decided to focus on it.
- restatement of torts
o publicity
o private facts
o offensiveness
o absence of legitimate public concern

- legitimate public concern
o must take into considerations of customs and conventions of the community; and in the last analysis what is proper become a matter of community mores.
- depends on the truthfulness of published materials
- rejected the notion of privacy claim.

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Cantrell (False LIGHT)

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- liability = false statements with knowledge of there falsity
- found that there was no evidence that forest city publishing company had knowledge of any of the inaccuracies in the article
- a lot like defamation
- pecuniary damages are not required. You have to prove that it was published knownig that it was false and with reckless disregard to its accuracy
- With the court of appeals- was that there was a false like claim and that the D had published with malice.
- It could only be awarded with a showing of common law malice punitive claim as evidence that there should have been no finding of actual malice. (as we know these are two different standards)
- Common law does not require you to say anything that was false or that you say anything at all.
- Once you educate the courts on what the proper standards were.
- Actual malice and no liability for punitive damages because there was no showing of common law damages

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Cantrell (False LIGHT)

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- False light claims- asks if the D has cast the P in a light that is objectively offensive. The statements were false and that the casting was done maliciously.
- Defamation and false light you can recover the damages that were emotional in nature without any showing of pecuniary loss.
- Poverty when not the case –sufficient for finding liability for false light. There does not have to be harm to your reputation in order to recover. The harm just has to be your response to a way that was cast that was false.
- If they prove common law malice we are going to allow for punitive damages.
- was evidenct that the article was within the scope of his employment and was liable under respondea superior
- there from the jury could reasonably conclude that the publishing company should be hld vicariously liable for the damages caused by the knowing falsehoods contained in the story

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MISREPRESENTATION

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Economic loss doctirine- products liability
- also tort law does not allow for pure economic loss
- what we have don’t over the years is for someone who has suffered real harm to the person or their property
- limit liability for the person who has been damages by the negligence of someone else.
- Is your claim harm or property ? yes tort.
- Loss pecuniary only the enomomis loss doctrine would preclude you from recovery

Someone who suffered a pecuniary loss alone.
- lead to the harm to the person, personally
- that they have lost value.
- Discussion is that this person has only lost money.
- We see that this is on the burden of the P when it comes to
- ONLY LOST MONEY
- Often in these cases fraud will allow you to get out of the K if you wanted to

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Three types of misrep require what?

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1. All require material misrep (deal breaker)
2. Depending on the nature of the cause of action whether it be fraud (scienter has to be established that the D lied- knowing at the time that you say it that the information you are sharing is false) Negligently misrepresenting someone (Duty) Strict Liability ( for innocent relationship there has to be a fiduciary relationship) Only a minority recognize SL
3. Intent for the P to rely on them
4. Reasonable reliance
5. Pecuniary Loss

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Swinton Case (FRAUD)

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- the D lied about the house was infested with termites
- concealed the state of the terminte infestation was the fraudulent act.
- Doesn’t that mean that you had the responsibility to say something in the first place. What did the d fail to do? Tell him about the fact that the house was infested with termites.
- The real issues that the ct has is was this act and act of concealment. In theses type of arm’s length agreements where there is equal bargaining party ther failure to apprise is not an act of concealment. Had he been asked then there would have been a claim that he had acted fraudulent. The D knew the house was infested does not constuted an act of concealment because there was no duty on you to reveal what you knew in the first place.
- Caveap Emptor- now in a number of cases you do
- There is an affirmative responsibility to answer those questions that are on the forms.
o Note 3 motifying the no duty to disclose rule.
o Allows you to resind the K
o When someone is acting as a fiduciary there is a duty to disclose
o Note 4

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Griffith v. Byers

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- this case dealt with the amount of saline in the soil
- weather or not this was concealment the jury should decide and not the court
- How is this different from Swinton? In Griffith there was an actual act of concealment.

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Derry

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- it is in the 1800
- What type of misrepresentation are we talking about
- Fraud.
- Electrical power was not granted the whole endever goes under and you lost money in a pecuniary sense.
- Is it fraud or did they misrepresent.
- Lying means that you knew that the misrepresentation was false.
- What you convey was wrong. If you had a good faith belief in what you were saying was truth when you conveyed it in the first.
- Note 3- The unreasonableness of the D’s belifef may be strong evidecent tha tit does not in fact exist, and that conclusion may be reached as an inference of fact
- Note 4- we don’t require proof that the D intended to doup you to somehow harm you. Just that the D lied.

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International Products Co. v. Erie R.R. Co.

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- was there a duty in the first place if you do negligently misrepresent someone
- pg 1035- only if there is a duty will there be a liability for breaching that duty. The court is reluctant to allow recovery for that alone.
- There is only a duty
o Serious business relationship
o There is only a duty if the D knows how the information is going to be used
o There is only a duty assuming one and two when the D is in the superior position to assertain the accuracy of the information that was provided.
o If you negligently misrepresent something you can be liable under a theory of misrepresentation

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Credit alliance

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- have to figure out if the courts are going to allow a third party
- can a third party recover under a theory of misrepresentation
- if we apply international her eit wouldn’t be liable because it was absent a serious relationship
- in special relationships involveing accountants—in accountingn based reports started to expand liability to come up with a different duty or a different analysis special to accounting cases

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Pg. 1049
Elements for special cases for accountants

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Elements for special cases for accountants
1. the accountant must know how the information was going to be used
2. you must know who is going to be relying on that informaction (difference)
3. To confirm that indeed this person is going to rely there has to be something tangible that invinces your acknowldement that someone is going to be effected. This is by the D that there is a knowledge of the prospect of liability (broadened from internatio- but limit liability )

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RELIANCE

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William v. Rank and Sons
- he bought a car and took it for a ride and found out that there was no air conditioning in the car
- he thought he had air and was told that he had air but it didn’t
- he reasonably relied on what the car salesperson’s representiation
o Note 10-
 Most state do not requires that you put the lie to the statement
 You don’t have to investigate if someone is lying on you
 We are not ready to say that you acted unreasonably when you relied on a sales person’s pitch