Torts Ii (Defamation, Privacy Torts, Economic Torts)

Front 1

Defamation Rule

Back 1

Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice.

Front 2

Defamation Elements

Back 2

1. Publication by ∆ to one other than the π defamed
2. False statement of fact
3. Understood as being "of and concerning" the π
4. Tending to harm the reputation of π

5. For slander, must prove special damages, unless one of the "per se" categories
6. In compliance with 1A: Some level of intention or fault is required

Front 3

"Per se" Defamation

Back 3

1. Commission of serious criminal offense
2. Loathsome, communicable disease
3. Want of integrity in discharge of duties of office or employment
4. Lack of ability in person's trade, profession, or business
5. False accusations of fornication and/or adultery

Front 4

Defenses to Defamation
(Non-Constitutional)

Back 4

1. Truth
2. Consent
3. Privilege
a) Absolute
b) Qualified

Front 5

Absolute Privilege
(Defamation Defense)

Back 5

1. Legislative
2. High Government Officials
3. Judges, witnesses, lawyers in judicial proceedings
4. Officials who make reports (e.g. arresting officers)
5. Spouse

Front 6

Qualified Privilege
(Defamation Defense)

Back 6

1. "Common Interest" privilege
(e.g. Citizens can discuss the mayor)
2. Report of Official Proceeding or Meeting
(Medico v. Time, Inc.)
3. Fair Comment --Restaurant Reviews
4. Others: including employer references

Front 7

Defeating Qualified Privilege
(Defamation)

Back 7

(Abuse)
- Common Law Malice
- Constitutional "Actual Malice"

Front 8

Defenses to Defamation
(Constitutional Privileges)

Back 8

1. Status of π
a) Public officials
b) Public figures
c) Private figures
2. Fact vs. Opinion
3. Parody

Front 9

Public Officials
(Defamation)

Back 9

1. Who? They have, or appear to have, policy making powers.
2. Must show actual malice (knowing the statement is false, or reckless disregard of falsity)

3. Breathing Space
4. Chilling Effect: rule can't impose liability too quickly

Front 10

Public Figures
(Defamation)

Back 10

1. General: pretty much everyone knows
2. Limited: someone who has inserted themselves into a debate/dispute in order to influence the decision
3. Involuntary public figures

Must prove actual malice
Must prove false statement of fact

Front 11

Private Figures
(Defamation)

Back 11

Standard for Defamation: States may define for themselves the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private person

Damages: states may not permit presumed or punitive damages without proof of actual malice

Front 12

Opinion in Defamation

Back 12

- Opinion is often a defense but not always
- "In my opinion, Mayor Jones is a liar" is actionable
- "In my opinion, Mayor Jones shows his abysmal ignorance by not following the teachings of Marx" is not actionable

- Statements on matters of public concern must be provable as false

Front 13

Publicity Placing a Person in a False Light Rule

Back 13

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed

Front 14

False Light Elements

Back 14

1. Publicity
2. False Light
3. Highly offensive to RP
4. Actual Malice (knowledge or reckless disregard of falsity and in false light placed)

Front 15

False Light vs. Defamation

Back 15

- Defamation π must prove specific false statements that harm reputation
-False Light π proves falsity in overal portrayal

-Defamation π must prove only publication
-False Light π must prove publicity

Front 16

Publicity Given to Private Life Rule
(Public Disclosure of Private Facts)

Back 16

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public

Front 17

PDPF Elements

Back 17

1. Publicity
2. Private life of another
3. Highly Offensive to RP
4. Not of legitimate concern to public (newsworthy)

Front 18

Intrusion Upon Seclusion Rule

Back 18

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 reasonable person

Front 19

Intrusion Upon Seclusion Elements

Back 19

1. Intentional
2. Intrusion
3. Solitude/Seclusion/Private Affairs of Another
4. Highly Offensive to RP

Front 20

Appropriation of Name or Likeness Rule

Back 20

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 his privacy

Front 21

Appropriation Elements

Back 21

1. Appropriates
2. To his own use/benefit
3. Name or likeness of another

Front 22

Breach of Confidence

Back 22

1. The ∆ owed π a duty of confidentiality,
2. The ∆ learned of information of a confidential nature,
3. Which was communicated to ∆ in confidence, and
4. ∆ disclosed the information to the detriment of the π

Front 23

Inducing Breach of Contract

Back 23

1. A valid contract existed between π and a third party;
2. The ∆ knew of the existence of this contract;
3. Without justification, the ∆ intentionally engaged in acts or conduct which induced the third party to breach of contract with π;
4. The ∆ intended to induce a breach of such contract;
5. The contract was in fact breached;
6. The acts and conduct of the ∆ which induced the breach caused damage to the π

Front 24

Justification Types for Inducing Breach of Contract

Back 24

- Protect own contract
- Where enforcement of the contact is against morals or health or safety (e.g. persuading boxer to an unregulated match not to fight)
- Labor strikes to induce customers not to deal; or other workers not to labor
- Advertising lower prices without deliberate effort to cause person A to abandon a contract with person B

Front 25

Interference with Prospective Economic Advantage
Elements

Back 25

1. An economic relationship between π and another, "containing a probable future economic benefit or advantage to π,"
2. ∆'s knowledge of the existence of the relationship,
3. ∆ "intentionally engaged in (wrongful?) acts or conduct designed to interfere with or disrupt" the relationship,
4. Actual disruption, and
5. Damage to the π as a result of ∆'s acts

Note: negligent interference is not sufficient

Front 26

Wrongful Acts
(Interference with Prospective Economic Advantage)

Back 26

- The "wrongful acts" required to support liability as conduct
-"outside the realm of legitimate business transactions...
-wrongfulness may lie in the method used or by virtue of an improper motive"

Front 27

Unfair Competition
(Practices)

Back 27

- False advertising
- "Bait and switch" selling tactics
- Mislabeling of goods
- Breach of restrictive covenant
- False representation of products or services
- "Passing off" or creating brand confusion

Front 28

Misappropriation of Trade Secrets

Back 28

1. That a trade secret existed in which π had ownership rights when ∆ committed the acts complained of by π;
2. That ∆ acquired the trade secret
(a) through improper means,
(b) through π's disclosure of the trade secret to ∆ in a confidential relationship, or
(c) under other circumstances in which ∆ owed a duty not to use or disclose the trade secret;
3. That ∆ used or disclosed the trade secret without π's permission; and
4. That (a) π suffered harm as a direct and proximate result of ∆'s use or disclose of π's trade secret, or (b) ∆ gained from such use or disclosure

Front 29

Injurious Falsehood Rule

Back 29

Disparagement of the π's property, products, business, or services which affects their marketability

Front 30

Injurious Falsehood Elements

Back 30

1. ∆ made false statements
2. Publication
3. Of and concerning --e.g. derogatory to the π's business in general
4. Injury
5. Special damages (injury to pecuniary interests)
6. Malice:
a) Actual Malice;
b) Spite or ill will; or
c) Intent to cause harm

Front 31

A Competitor May
(Injurious Falsehood)

Back 31

- Puffery --e.g. "ours is better than anything ever"
- General words of comparison --e.g. "better than X"
- Speak harshly in a general way about competitor --e.g. "he's unfair in dealings"

Front 32

A Competitor May Not
(Injurious Falsehood)

Back 32

- Publish materially false statement about competitor's products or services
- Raise questions about competitor's financial viability unless true

Front 33

Fraud/Misrepresentation Elements

Back 33

1. False (Mis)representation
2. Made with scienter
3. With the intent to induce π to act or refrain from acting
4. Which caused π to act (actual and proximate)
5 In justifiable reliance upon the false misrepresentation
6. Resulting in Pecuniary Damages

Front 34

False Representation
(Fraud/Misrepresentation)

Back 34

- Fact (not puffing)
- Opinion --not actionable except
-knowledge that not true or reckless
-"special knowledge"
- Statements about Future Events --not actionable except
-speaker had no intention of performing when the promise was made, or
-if speaker knows the statement is false
- Law --not actionable expect for lawyer's special knowledge
- Nondisclosure exceptions

Front 35

Nondisclosure
(Fraud/Misrepresentation)

Back 35

- General Rule: No affirmative duty to disclose
- Fiduciary Relationship: Duty to disclose all material facts
- Active Concealment of Material Fact
- Incomplete Statement, or Intentional Ambiguity
- New Information contradicting prior statements
(- and where court creates a "duty to disclose"

Front 36

Scienter
(Fraud/Misrepresentation)

Back 36

-Knowledge or Reckless disregard for the falsity of the representation

Front 37

Negligent Misrepresentation

Back 37

1. False representation
2. Made without reasonable grounds for believing it to be true
3. Made with intent to induce π to act (to rely on the statement)
4. Caused π to act or refrain
5. π must have been justified in relying upon the representation
6. π must have sustained pecuniary damage

Front 38

Malicious Prosecution

Back 38

1. ∆ initiates or procures criminal prosecution
2. Without probable cause &
3. Primarily for purpose other than bringing an offender to justice (malice?)
4. Proceedings terminated in accused's favor
5. (Damages)

Front 39

Wrongful Civil Proceedings

Back 39

1. ∆ initiates or procures civil proceedings
2. Without probable cause &
3. With malice (without a reasonable basis)
4. Earlier proceedings terminated in current π's favor
5. (Special) Damages

Front 40

Local Government Liability
(General Liability)

Back 40

- Where the government has displaced private enterprise --e.g. hospitals; public transit; public facilities such as convention centers
- Where government activities provide facilities or services for public; highways; public buildings

-In these cases, treat the gov't. agency just like any private defendant

-Must distinguish Discretionary Acts and Ministerial Acts

Front 41

Discretionary Acts
(Local Government Liability)

Back 41

- Discretionary Acts are those that require judgement on the part of government officials
-Immune so long as not arbitrary or fraudulent

-Examples: decision to build a road, construct a new stadium, taxing, appointing employees, inspecting properties for violations, ordinances, enforcement, public improvements, licensing, school officials closing a school, creating a teaching position, raising teacher salary schedule above minimum

Front 42

Ministerial Acts
(Local Government Liability)

Back 42

- Ministerial Acts are those that don't require judgment; instead are those that involve simple application of pre-existing standards
-Not immune for negligence in performance

-Examples: Decision to grant a zoning variance under the rules, refusal to enroll a student without proper immunization, entry of an order by a clerk of the court, issuance of a building permit, approval of a subdivision

Front 43

Police Protection
(Local Government Liability)

Back 43

- General Rule: Failure to act or to provide police protection generally does not give rise to liability

- Exception for Special Relationship:
1. Assumption of an affirmative duty (e.g. promises or undertaking to act)
2. Government agents know their inaction might lead to harm
3. Contact between government agents and injured person
4. Justifiable reliance

Front 44

Road Design
(Local Government Liability)

Back 44

- General rule: municipality owes a duty of keeping streets in a "reasonably safe condition" (Limited)

- As long as gov't. acts reasonably, chooses between conflicting opinions, is studying the problem in due course, or relies on expert opinion=NO LIABILITY
-Delay in taking action stemming from a "legitimate ordering of priorities" with other projects or from need for further study=NO LIABILITY

Front 45

Road Design Liability
(Local Government Liability)

Back 45

- Gov't. traffic study is clearly inadequate
- Gov't. has no basis for its decision not to repair road
- If state is aware of a dangerous condition, but takes no steps to study the condition
- Unreasonable delay in enacting the repair or remedy the dangerous condition