Torts II Outline
I.
II.
III.
Affirmative Defenses
**Do both the A of R and Comp-Fault analysis on exam**
a. Assumption of the Risk
i. TEST: (1) know the risk, and (2) voluntarily, (3) take the risk (THIS BARS RECOVERY).
ii. Express: Signed exculpation agreement (courts prefer this)
Public Policy Test **USE THIS TEST ON EXAM**
1. It doesn’t adversely affect the public interest
2. The exculpated party is not under a legal duty to perform
3. It does not involve a public utility or common carrier; or
4. The contract does not grow out of unequal bargaining power or is otherwise
unconscionable
iii. Implied: Implied by your conduct (this is like comparative negligence)
1. Knowledge of the risk
2. Voluntarily take or assume it.
iv. General A of R requires that you know of a risk and you voluntarily assume it. Outcome of a
successful A of R= no recovery by Π
b. Comparative Fault
i. TEST: Did s/he act like a reasonable prudent person in the same or similar circumstances. (THIS
DIMINISHES RECOVERY).
c. Doctrine of Avoidable Consequences (Mitigation):
i. Injured victims have a responsibility to act reasonably to limit or “mitigate” losses incurred. If a
plaintiff fails to act reasonably to mitigate injuries, the defendant will not be held liable for
incremental losses that otherwise could have been avoided. [See Restatement § 918.]
ii. Critical Question: When did the Δ injure the Π?
1. If it is AFTER the point of injury that the Π does something to aggravate their injury
Non-Conduct Based Defenses
a. Immunities (Discretionary Function Exception under the FTCA);
i. FTCA (Federal Tort Claims Act Immunity) Comes in when tortfeasor is agent/employee of gov’t
1. Carved out exception to sovereign immunity.
2. If the nature of your claim is that we did do something that we had the discretion not to
do than you should get $. The answer is: NO, you don’t.
a. Immunity applies if they had the discretion to do it.
3. What’s done or not done must be the subject of the discretion.
4. DISCRETIONARY FUNCTION EXCEPTION TEST:
a. 1. Is the action or issue something they had a choice about?
i. If no choice, then the gov’t cannot use FTCA to bar the claim
b. 2. Whether the judgment is of the kind that the discretionary function exception
was designed to shield. (policy judgments)
c. When you have a choice tied into a policy, we don’t want people 2nd guessing
you.
b. Statutes of Limitations;
c. Statutes of Repose
Joint Tortfeasors,
a. 3 situations where a tortfeasor can be held responsible to pay all the Πs damages even though other
tortfeasors were also responsible for the harm
i. Concerted Action (Rest 2d §876): For harm resulting to a third person from the tortious conduct
of another, one is subject to liability if he:
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IV.
1. (a) does a tortious act in concert with the other or pursuant to a common design with
him, or (§876 a)
a. Must cooperate in a particular line of conduct, or
b. Accomplish a particular result
c. In Criminal law this is like conspiracy
2. (b) knows that the other's conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself (§876 b)
a. Has 2 parts: a knowledge part and an action part. BOTH the assistance or
encouragement must be substantial
b. In Criminal Law this is like aiding and abetting
ii. Liability by Operation of Law
1. EX: Respondent Superior (vicarious); products liability
iii. Indivisible Injury
1. Can’t be divided among the Δs. EX: 2 drivers hit 1 driver, both of the Δ are the cause in
fact and the proximate cause
2. If you can divide the injury, there is no “indivisible injury” liability
b. OUR RULE FOR CLASS: Apportionment by fault (abolished joint & several liability) Both Δ caused all of
the harm, it is the fault that is apportioned.
i. Δ 1= 75%, ( if impecunious, pays nothing)
ii. Δ 2= 25%, pays his 25%
iii. Δ 2 will never seek contribution b/c he can never make an overpayment. The problem is that the
Π takes the hit for the non-recovered amount from Δ1.
c. Joint and Several Liability: In jurisdictions that have kept J&S liability, apportionment is by % of harm
(see above): Δ1= 50%, Δ2=20%, Δ3=30%
d. Contribution
i. One party pays more than they were supposed to. If Δ1 pays ALL damages, Δ1 can seek
contribution from the other Δs for their share. Apportioned per capita.
1. 3 Δ= each pay 1/3 or 33.3% of damages
e. Indemnification:
i. When 2 or more persons are or may be liable for the same harm and one of them discharges the
liability of another in whole or in part by settlement or discharge of judgment, the person
discharging the liability is entitled to recover indemnity in the amount paid to the Π, plus
reasonable expenses if:
1. The indemnitor has agreed by contract to indemnify the indemnitee;
2. The indemnitee
a. Was not liable except vicariously for the tort of the indemnitor, or
b. Was not liable except as a seller of a product supplied to the indemnitee by the
indemnitor and the indemnitee was not independently culpable.
3. A person who is otherwise entitled to recover indemnity pursuant to K may do so even if
the party against whom indemnity is sought would not be liable to the Π.
ii. IN SHORT: A retailer usually has a manufacturer sign an indemnity agreement. If the retailer is
sued by a consumer for harm, and they pay damages, they will go after the manufacturer for the
amount paid.
Liability of Owners/Occupiers of Land
a. Analysis for Duty owed to Entrants:
i. Establish Status: Trespasser, Licensee, Invitee, Child, Trespasser In position of peril
1. Scope of invitation determines level of duty owed
ii. Establish the relevant duty/ level of care owed
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iii. What are the fact that support breach?
KEEP IN MIND: your status can change AND, you must make all arguments
1. Invitee: (1) Come by invitation for purposes connected with the business dealings of the
possessor (to confer a benefit on possessor), or (2) Members of the public who come on
to the land for the purposes for which that land is held open to the public (ex: privately
owned hunting grounds on which the owner allows public hunting).
a. Duty Owed: Ordinary Care (the highest level of care)
i. What MAY be required: (1) inspect the premises, (2) take steps to
protect against the danger, (3) warnings against the danger may be
sufficient (it is a jury decision if warnings were sufficient)
ii. Key: Whatever is reasonable under the circumstances
b. Test (is the entrant and invitee or licensee?): Will the possessor receive a
material benefit from the entrant’s presence?
i. If NO: Licensee
ii. If YES: Invitee
2. Licensee: Someone who has permission to be on the property, but is present on the
property for their own purposes (ex: a social guest)
a. Duty Owed: (1) Conduct activities on the property in a reasonable manner, (2)
warn of KNOWN hidden dangers (remember: this is NOT “or should have
known” ALSO possessor doesn’t have to fix the danger that they know of, only
warn about it)
3. Trespasser: Present on the property without the permission of the
possessor/landowner.
a. Duty Owed: Reasonable Care: Refrain from wanton, willful, and reckless
behavior
i. Wanton: Malicious
ii. Willful: with purpose
iii. Reckless: Knowing your action may cause a harm, but doing it anyway
4. Trespasser In Peril: Present on the property without the permission of the
possessor/landowner and possessor known or should have known the trespasser is in
peril (helpless or unable to protect himself).
a. Duty Owed: Ordinary Care
5. Children: Special circumstances apply to children
a. Duty Owed: List of conditions on page 440 of book
i. Rest 2d § 339: Liability is imposed on a possessor of land to a child
trespasser for physical harm resulting from artificial conditions on the
land when the following conditions are met.
1. The place where the condition exists is one where the possessor
knows or has reason to know that children are likely to trespass,
and;
2. The condition is one of which the possessor knows or has
reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to
such children, and;
3. The children because of their youth do not discover the
condition or realize the risk involved in intermeddling with it or
incoming within the area made dangerous by it, and;
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V.
4. The utility to the possessor of maintaining the condition and the
burden of eliminating the danger are slight as compared to the
risk to children involved, and;
5. The possessor fails to exercise reasonable care to eliminate the
danger or otherwise to protect the children.
b. Rules limiting Possessors’ Liability (limited duty rules):
i. People off of the premises
1. Duty: To conduct or engage in reasonable activities, or create artificial conditions, on
your premises to avoid harming people off of your premises.
a. However: if natural conditions on property create a danger off of the property,
NO duty is owed.
ii. Duties owed by landlord/ lessor (to any foreseeable person, not just the tenant)
Tenant liability is the same as owner liability (same entrant categories)
1. Liability is limited to 4 categories:
a. Hidden danger on the premises of which the landlord but not the tenant is
aware
b. Premises leased for common use
c. Premises retained under the landlord’s control, such as common stairways, or
d. Premises negligently repaired by landlord.
iii. Premises Liability
1. Businesses owe a duty to their invitees to implement reasonable measures to protect
their patrons from criminal acts that are reasonably foreseeable by the business.
a. TEST for foreseeability: Totality of the circumstances test
i. This test takes into account additional factors such as nature, condition,
and location of the land as well as other relevant circumstances bearing
on foreseeability. (Often focuses on the level of crime in the
surrounding area).
Strict Liability:
a. Possession of Animals;
i. Those who possess, confine, and manage animals which are capable of causing harm both to
persons and property, if they escape confinement.
1. Livestock: Including cattle, horses, sheep, goats and the like
a. Liability: Strict Liability
2. Wild Animals: confined for a variety of reasons both personal and commercial
a. Spiders and Snakes are wild animals (just b/c you make it a pet doesn’t make it
domesticated)
b. Liability: Strict Liability
3. Domesticated Animals: dogs, cats, and other domesticated animals other than livestock
a. Liability: Only liable if the Π proves that the pet owner knew or should have
known ahead of time that the animal was vicious (prone to violence).
b. Most obvious way to do this is to prove the animal bit someone before
i. B/c this can be hard to prove, many states have eliminated requirement
of knowledge to protect dog bit victims
c. In dog bite cases: Π must prove Δ didn’t act reasonably to contain the animal. *
If owner knew or should have known about the dog’s vicious tendencies, they
are strictly liable regardless of reasonable action to restrain animal.
i. Π doesn’t have to show anything about restraints
ii. CAVEAT: “viciousness” includes jumping up and being friendly
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b. Abnormally Dangerous Activities; (Rest 3d §20; simplified Rest 2d §520)
i. An actor who carries on an abnormally dangerous activity is subject to strict liability for physical
harm resulting from the activity. Ordinary Care cannot defeat liability
ii. Liability imposing strict liability upon one who introduces a hazardous condition upon his
property that, upon its escape, causes harm to another.
iii. An activity is abnormally dangerous IF:
1. The activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors, and
2. The activity is not one of common usage
iv. NOTE: not all dangerous activities are ABNORMALLY dangerous; also it must be an activity
1. Remember Indiana Harbor: it was not the chemicals themselves that could be called
abnormally dangerous, it was the activity of transporting that could’ve been AD.
However, they exercised due care and transportation on a train car is not abnormally
dangerous, per se.
c. Products Liability: (3 types)
i. BIG Rule: Products are defective when they are unreasonable dangerous due to (1)
Manufacturing defect; (2) Design Defect; (3) a Failure to provide adequate warnings; or (4)
Misrepresentation. (on exam write this then who is liable- seller, manufacturer, etc. and
whether it was foreseeable)
ii. Manufacturing Defects:
1. Rule: a product that departs from its intended design (does not meet the
manufacturer’s own standard) is defective even if the manufacturer and all parties in
the commercial chain of distribution used all due care.
2. Rest 2d § 402A CET
a. TEST: whether or not the product meets the expectations of the average
consumer
i. Prong 1: Would the harm still have happened if the defect was absent?
ii. Prong 2: So long as the injury was not caused by something else... as
long as the defect is part of what caused the harm.
3. Prod. Liability Rest §3: Circumstantial Evidence Supporting Inference of Product Defect
RULE: If it departed from its intended design in a way that made it unreasonably unsafe.
a. It may be inferred that the harm sustained by the Π was caused by a product
defect existing at the time of sale or distribution, without proof of a specific
defect, when the incident that harmed the Π:
i. (a) was of the kind that ordinarily occurs as a result of product defect;
and
ii. (b) was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution
b. Breakdown: Even though an expert can’t pinpoint what the defect is, the
accident itself is evidence of a defect (similar to Res Ipsa Loquitor in Negligence
claims)
4. NOTE: Defect was introduced while in the commercial chain (manufacturer, distributer,
seller, re-seller). Passed on defective product in the stream of commerce. ANY member
of the commercial chain are liable; not limited to any ONE of them
iii. Design Defects:
1. To prevail on a design defect claim, a Π must prove:
a. The design of the product created a defective condition unreasonably
dangerous to the use (as long as the danger’s not trivial)
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Vatour
Rest 3d §2
Prentis
Potter
Soule
Muskin
More of a
policy
b. The condition existed when the product was sold by a commercial seller
c. Use of the product was reasonably foreseeable by the manufacturer
i. It doesn’t matter if they warned you not to do it; if it was reasonably
foreseeable that the consumer would do it, the manufacturer must take
safety precautions
ii. There could potentially be an A of R or Comp Fault analysis for Δ
d. The condition caused injury to the user or user’s property
i. Must be a causal relationship between defect and injury.
e. Must show actual and proximate cause (Scope of the risks: what types of
risks/injuries do we usually worry about with this
2. Risk Utility Balancing: There is a design defect if the risk of danger exceeds the burden
to the manufacturer of making the product safer. (answers the question of whether the
manufacturer acted like a reasonably prudent manufacturer)
a. ① The seriousness of the risk imposed by the product’s design;
b. ② The likelihood the risk will materialize;
c. ③ Benefit to the public of the product as originally designed;
d. ④ The availability of a reasonable alternative design that would be generally
safer, cost-effective, and availability cannot be commercially impractical (just
being safer is not enough)
e. ⑤ The degree to which warnings could make the product safer with a redesign.
f. Once the jury does the RUB analysis, it then asks whether, given this
information, an ordinary consumer would find the design defective.
3. Consumer Expectation Test (§402(a))
a. Under the consumer expectations test, a product is defectively designed if the
“everyday experience of the product’s users permits a conclusion that the
product’s design violated minimum safety assumptions of ordinary consumer.”
If everyday experience doesn’t provide a basis to judge how safely a product
should perform, then this test doesn’t apply and the product is considered to
have a complex design.
i. Simple Design: Use CET
ii. Complex Design: Use modified RUB/ CET
iii. Judge makes the initial decision if it is simple or complex
4. Modified CET:
a. ① RUB: w/ RAD as a factor, but not required... THEN,
b. ② CET: Does it meet the safety expectations of the ordinary consumer
5. Different Jurisdictions
RUB + RAD as a factor (not required b/c too expensive for Π)
RUB + RAD (required) Some products are so low utility, but high risk, even if it is made the
best it can be, it is still defective per se.
Modified CET, Is product simple or complex?
 Simple Design: Use CET
 Complex Design: Use modified CET (RUB then CET)
Simple: CET w/ experts not allowed (if we need experts the design is probably complex)
Complex: RUB w/RAD as a factor (not required), must have experts to testify
Even if it is true that it’s designed as safely as possible, it could still be defective & Strict
Liability will attach. Think: am I looking at a product that is designed as safely as possible
(lawn dart)
a. DEFENSE TO DESIGN DEFECT: State of the art evidence. Used by Δ.: We’ve made
this the best it can be made
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VI.
iv. Failure to Warn (Analyze both Strict Liability and Negligence)
1. A product is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or avoided by
the provision of reasonable instructions or warnings . . . and the omission of the
instructions or warnings renders the product not reasonably safe.
a. The manufacturer must have known or could have known of the risk before the
FTW.
2. Strict Liability FTW: Requires Π to prove only that Δ did not adequately warn of a
particular risk that was known or knowable in light of the generally recognized and
prevailing best scientific knowledge available @ the time of manufacture and
distribution.
a. Π must show they would have heeded the warnings
3. Negligence FTW: in FTW cases, requires Π to prove a manufacturers negligence: Would
a reasonable manufacturer have warned?
a. Better chance of higher damages w/ Neg FTW
v. Defenses TO FAILURE TO WARN:
1. State of the Art Defense: There was no scientific evidence at the time. WE didn’t know
and neither did the scientific world. The warnings were the best they could be.
2. Assumption of the Risk
3. Proximate Cause;
a. What are we worried about in the risks of certain types of product’s design
4. Comparative Fault (more than 1 Δ);
Trespass to Land and Nuisance
a. Trespass to land (we deal with indirect trespass in Torts 2)
Tort protects: Π possessory interest
i. ① An invasion affecting an interest in the exclusive possession of one’s property
ii. ② An intentional doing of the act which results in the invasion
iii. ③ Reasonable foreseeability that the act done could result in an invasion of possessory interest
1. You don’t have to make a jury decide this in trespass claims
iv. ④ Substantial damages
b. Nuisance
Tort protects: Unreasonable interference w/ the use and enjoyment of your property
i. ① Basis of liability
ii. ② Significant harm
iii. ③ An unreasonable invasion of land
1. To determine unreasonableness: An intentional invasion of another's interest in the use
and enjoyment of land is unreasonable if:
a. Rest § 826 (a) the gravity of the harm outweighs the utility of the actor's
conduct (Best for Δ), or
b. Rest § 826 (b) the harm caused by the conduct is serious and the financial
burden of compensating for this and similar harm to others would not make the
continuation of the conduct not feasible. (Middle Ground)
c. Rest § 829A: An intentional invasion of another's interest in the use and
enjoyment of land is unreasonable if: the harm resulting from the invasion is
severe and greater than the other should be required to bear without
compensation. (Looks @ Π.)
iv. Can be predicated on intent, negligence, or strict liability (Δ conduct must fit in one of the
traditional tort categories)
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VII.
v. Public Nuisance: Unreasonable interference w/ a right common to the public (health, safety)
vi. Private Nuisance: Unreasonable interference with a right not common to the public
Damages
a. Compensatory Damages;
i. Designed to put the Π in the position he would’ve been in, in the absence of the legal wrong
“to make whole”
ii. Damages for personal injury deal with these things:
1. Physical pain- past and future
2. Mental anguish- past and future
3. Medical expenses- past and future
4. Diminished earning capacity or lost wages- past and future
a. Lost Wages: Calculated current wages over period of time you would’ve worked.
(locks you in to what you were doing @ time of injury).
b. Diminished Earning Capacity: If you can prove with reasonable certainty (that
you were going to do something) using ability, skills, aptitude, & facts on the
ground.
5. Permanent disability and disfigurement
a. Disfigurement is separate from pain and suffering for our purposes
6. Loss of pleasures and pursuit of life (form of pain and suffering)
7. Maximum Recovery Rule: How judges decide if jury’s decision comports with the
evidence. Preference is for case specific analysis.
iii. Harm to Property
1. If the property is permanently destroyed or taken, damages are the market value at
time of destruction or taking
2. If the property is not permanently destroyed, damages are repair cost or diminished
value. If it costs more to repair than the market value, it is considered a total loss
a. Can get loss of use damages.
iv. Wrongful Death and Survival
b. Punitive Damages
i. What conduct caused the harm? Was it actual malice
ii. 4 questions to ask
1. Is the Π eligible for Punitive Damages? (@ Trial)
a. Must prove AM- d conduct was characterized by evil nature, intent to fraud, ill
will, wantonness
2. How much should Punitive Damages be? (@ trial)
a. Look to intent, culpability, duration, $ needed to deter behavior in future, Δ
ability to pay (ex. Forcing Coca Cola to pay a $100,000 is not an appropriate
punishment to deter future behavior- it’s like chump change)
3. Were the damages too much? (Post trial- on review)
a. Substantive Due Process Issue Look @ guideposts from Gore
i. Degree of reprehensibility of Δ conduct (we can use harm to non-parties
to establish this)
ii. Disparity b/w actual and potential harm suffered and the Punitive
Damages award (compare compensatory damages to punitive; ratiousually single digits is ok), and
iii. Differences b/w Punitive damages and civil penalties authorized in
comparable gov’t sanctioned cases (how similar is it).
4. Was due process done correctly? (Post trial- on review)
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VIII.
IX.
a. Cannot punish for harm to non-parties, Check if it looks like the jury may have
awarded for harm to non-parties
i. If damages are reflective of a jury trying to award for non-parties,
SCOTUS says “no, no, no”
b. Discuss the jury instructions here
Compensation Systems as Alternatives to Tort;
a. Workers’ Compensation
i. Rule: To receive worker’s compensation, the injury must occur in the course of employment,
and arose out of employment
1. Test: In the course of employment
a. Time, place, circumstance
2. Test: Arose out of employment
a. Under all the circumstances is there a causal connection under the conditions
which the work was required to be performed and the resulting injury
Defamation
a. Common Law Rule for Defamation
i. Δ is subject to liability to the Π for defamation if the Π can show:
1. False (if the facts show it’s not true, just address on exam)
a. Falsity is presumed. Δ must show statement is true; unless Hepps scenario
than Π must prove it is false.
2. Defamatory
a. Rest 2d §539: Communication is defamatory if it tend to harm the reputation of
another as to lower him in the estimation of the community or deter 3d persons
from associating with him
3. Statement of Fact (Is it fact or opinion)
a. Determining whether fact or opinion:
i. Precision/Specificity: If statement is more precise/specific than it is
more likely to be a fact. This applies to the ACTUAL language of the
statement.
ii. Verifiability: Applies to defamatory meaning of statement (allegation).
Can that meaning be verified? If not verifiable, than not fact.
iii. Literary Context: Look @ the category of publication, its style of writing
and intended audience. Is it a publication that people usually attribute
facts to?
iv. Public Context: Where does the statement fall on the pantheon of the
1st Amendment? Whether the statement implicates core values of the
1st Amendment (protection of free speech) than it is more opinion
based and thus more protected (@ the core of the 1st Amend.)
1. This is a policy prong, but we must do it.
4. Published to a 3rd party
a. Must be communicated to a 3d party and the communication must be
Intentional or Negligent (Communication is: spoken, written, or through
behavior)
5. Of an concerning the Π (If Π named, element is easily met)
a. Content Specific (reasonably refers to Π)
b. Don’t have to say their name
c. If Some of a Small Group Defamed = ALL can sue
d. If ALL of a Small Group Defamed = ALL can sue
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e. If Some of a Large Group Defamed = NONE can sue
f. If ALL of a Large Group Defamed = NONE can sue
g. An identifiable person of any size group can sue
6. How to Analyze on exam:
a. ① After analyzing 5 step,② determine status of person (pvt, public), ③Is this
this a matter of public concern?, ④ Then choose case to use for rule
b. Status of Person
i. Public Official
1. Generally an elected or appointed official w/ substantial responsibility or control over
public or governmental affairs. (Easy when it’s a high up official, harder the further
down you go: Police Officers, Judges, Wardens held to be POs; teachers, court reporters
not held to be POs)
ii. Public Figures (2 types)
1. All Purpose Public Figure: Think celebrities, someone famous- Oprah!
2. Limited Purpose Public Figure: (1) There is a controversy, (2) the person injects herself
into public debate, (3) or has been swept into it, (4) the defamation must relate to her
role in the debate
iii. Private Person
c. Burden of proof (clear and convincing evidence: higher level than “preponderance of evidence,” but
lower than a reasonable doubt.”)
i. Actual Malice: Knowledge of falsity, or reckless disregard for whether the statement was false
or not.
1. Proving Reckless Disregard: Whether the publisher entertained serious doubts as to the
truth of what they are publishing, (May be able to prove by showing that falsity was
purposefully ignored, but this is difficult)
ii. Negligence: (as to the truth of the publication) This is a question of fault
1. Did the publisher act reasonably?
2. Did they follow industry standards?
3. Did they follow their own standards?
4. Were there reasons to doubt the source?
5. How much fact checking was done?
iii. Fault: This goes to the DECISION to publish. Did you know it was false or was there a high
probability that it was false and you decided to publish anyway?
d. Constitutional Issues of Defamation
Person
Defamed as a matter of
(issue)
Public Official & Public
Public Concern
Figures
In order to recover must show
Private Individual
Public Concern
Private Individual
Private Concern
Private Individual
Public Concern (defamed by
a Media Δ
w/o Media Δ, falsity is
presumed
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Actual Malice (for ALL damages)
NYT
Actual Malice (for presumed or punitive
damages)
Negligence (ie; some degree of fault) (for
Actual Damages)
NO ACTUAL MALICE required for any
damages
Negligence (ie; some degree of fault) (for
actual damages)
Actual Malice (for presumed damages)
Gertz
Dunn
Bradstreet
Hepps
**side note (not on exam): you cannot defame dead people, but you can defame people associated with them through
your statements about them
X.
e. Defenses to Defamation
i. Fair Comment: Honest expression of opinion on matters of legitimate public interest when
based on true or privileged statement of fact.
ii. Fair and accurate report: Substantially accurate reports of government proceedings are
privileged even if the statements made during those reports are false or defamatory (think:
senate confirmation hearings).
f. Privileges:
i. Test for privilege:
1. WHEN: Appropriateness of occasion on which the defamatory info is published
2. WHAT: Legitimacy of the interest thereby sought to be protected or promoted
3. To WHOM: Pertinence of the receipt of the info
ii. If all is true: you have a qualified privilege
iii. Areas where we want free flowing communication: Defending yourself or a family member
from a verbal attack; reporting abuse, public health issue, health care quality problems of
providers; Giving information to prospective employers under limited circumstances
Privacy;
a. Right of Publicity (Appropriation of Likeness for Δ advantage): Appropriate another’s likelness for a
commercial advantage, without their consent.
i. What’s covered: Π name, likeness, achievements, identifying characteristics, actual
performances, and fictitious characters created by Π.
ii. Why: Protects ones’ right to make money off of their own identity or creations
b. Public Disclosure of Embarrassing Private Facts
i. Rule: (1) public disclosure, (2) of embarrassing private facts that would be offensive to a
reasonable person, (3) that is not newsworthy (of legitimate public interest).
1. Very limited tort: limited to incredible exploitation or private gossip
ii. Key difference b/w this and defamation is this is true. “Yes, the facts are true, but I don’t want
my info published.”
iii. If press gets this info from a public record, they are free to print
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