Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
QUESTION 1
Plaintiff was working as a crane oiler on a construction site. He was responsible for
maintaining the fluids used to operate the crane and for keeping its surfaces clean. The crane
consisted of a cab mounted on a stationary base or deck. As the crane was being operated from
inside the cab, the cab would swing around in different directions on the base. As it did so, it
would temporarily cover the portions of the deck over which it was swinging.
Plaintiff knew much of his work could be done while the cab was not moving, but
believed some of it could not. Plaintiff also knew the cab could potentially hit him or pin him
between the cab and deck as it turned, but he learned to listen for the change in the sound of the
engine which signaled the crane was about to turn. It was also common for oilers to work on the
crane while the cab was moving, despite the danger posed by the cab.
Plaintiff was cleaning the surface of the deck one morning when the cab started to turn.
He was not watching the cab, however, and therefore did not see it begin to turn. Because it was
windy that day, it was difficult to hear on the construction site, and he accordingly did not hear
any change in the sound of the engine. He was hit by the cab and pinned between it and the deck
as the cab continued its turn, suffering serious injury as a result. He later learned that, after the
crane manufacturer had sold the crane to his employer but before he was hurt, it began placing
decals on its new cranes warning of the dangers posed by the cab as it turns. He also discovered
the manufacturer knew of another, prior incident where a crane oiler had been injured by a
moving cab.
Plaintiff brought suit against the crane manufacturer, contending it improperly designed
the crane by not installing a sensor on the cab which would detect the presence of objects on the
deck and stop the cab from turning when it detected them. He also contended the manufacturer
failed to place a decal on the crane itself warning of the danger posed by the cab. At trial, the
manufacturer introduced evidence showing the installation of a sensor by him would add
$50,000 to the price of its crane, which, when new, sells for $125,000. The manufacturer noted
it had provided a warning in the manual it supplied with the crane stating in bold lettering:
“KEEP WORKERS CLEAR OF ROTATING CAB. SERIOUS INJURY CAN RESULT
FROM BEING TRAPPED BETWEEN CAB AND DECK.”
1. On what bases is plaintiff likely to recover against the crane manufacturer on his
claims? Discuss.
2. What arguments or defenses might the crane manufacturer raise in response?
Discuss.
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
QUESTION 2
Patricia, a teacher, obtained books for classroom use called “America Anew,” a pastiche
of writings concerning revolution, sex, and drugs, vividly illustrated. The father of one of her
students saw one of the books and brought it to the attention of his lodge, the Hoary Order Of
Bears. The Bears immediately protested the use of the book to the board of education.
The board held a public hearing where the book’s suitability was vigorously debated.
When that meeting did not result in total withdrawal of the book, the lodge initiated a “citizen’s
request for reconsideration of material” under school district regulations, which involved several
public meetings. Patricia was required by school board regulations to participate. The entire
process became a media event creating news stories with such titles as “Beauty and the Beasts”
and “Bares Versus Bears”.
Feeling that these meetings hadn’t been properly reported, Patricia herself called a press
conference, but only half the journalists notified showed up. Still, Patricia thought it went so well
toward clarifying her position as to the use of the book that she held another press conference,
but this one was even more sparsely attended than her first.
Daniel, a lodge member, watched on TV the second press conference with his nephew, a
former high school student from upstate. When Daniel’s nephew saw Patricia, he said, “that’s the
one who got me suspended, but it’s all right because right after that she was fired for teaching
that stuff”. The next day Daniel wrote an article which was published in The Hoary Order’s
newsletter, which had a circulation of about 12,000. The article contained the following:
“Last night on TV I watched the “Beauty and the Beasts” history teacher. This woman
was fired from an upstate high school for the way she taught history, why can’t she be fired from
here?”
Patricia had never been fired.
The day after Daniel’s article, David ran a story in a student paper about the need for
local violent revolution. He included a photographic collage which included Patricia speaking
and people burning flags. Under the collage was the caption “heroes of the revolution”. Patricia
took umbrage to her inclusion and brought suit against David.
Discuss the bases for the following lawsuits and any applicable defenses.
1. Patricia v. Daniel for defamation
2. Patricia v. David for violation of privacy
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
ISSUE SHEET-TORTS
Question 1
I.
Claim by Plaintiff Against Crane Manufacturer for Design Defect:
To establish liability on the part of the crane manufacturer for a design defect, the
plaintiff will likely pursue at least two different theories, strict liability and negligence.
A.
Strict Liability:
To establish strict liability for a design defect, the plaintiff must show the product which
injured him was “unreasonably dangerous” due to the allegedly defective design. See
Restatement (Second) Torts § 402A. Most courts have adopted a “risk-utility” test to determine
whether a product is “unreasonably dangerous” for purposes of imposing strict liability. This
test requires the trier of fact to balance the risk, utility and other benefits of the product as
designed against the risks, utility and other benefits it would offer had it been designed as
plaintiff claims it should have been.
Here, the facts indicate the crane does pose a risk of great bodily injury due to the fact
persons can be struck by the moving cab and pinned between it and the deck. Also, the addition
of a sensor which would stop the cab from turning when it detected objects on the deck would
certainly greatly mitigate if not eliminate that risk. However, it is unclear whether adding such a
sensor would materially alter the usefulness of the crane.
While the cab could still be turned and thus operate normally, whether an interruption of
its turn due to the presence of an object in its path such as a worker on the deck, would pose
additional or different risks, is unknown. Depending on what it is moving or its weight, it may
be dangerous for it to stop abruptly during the course of a turn. It instead may be necessary for it
to complete its movement without interruption in order to avoid a spill or other hazard posed by
not doing so.
Further, the facts indicate the price of the crane as designed is $125,000, and that
installing the type of sensor plaintiff claims should have been would add $50,000 to the price.
The crane as designed accordingly provides a “benefit” in terms of a price that is approximately
30% less than if it contained such a sensor. Adding to the price of the crane would likely result
in an increase in the amount the construction company would have to charge for its work, and
thus add to the cost of construction.
Also, the facts indicate much of the work done by crane oilers can be done while the cab
is not in operation. They also suggest possibly all of it can be done when it is not in operation, as
they indicate it was the plaintiff’s belief some of the work had to be done while the cab was
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
moving. They accordingly suggest the risk of the crane as designed can be greatly mitigated if
not eliminated entirely by having the oilers only work on the crane when the cab is not moving.
The facts additionally indicate oilers know of the danger posed by the cab as it turns, and
thus know of the need to be on the lookout for it, and that they are aware of a change in the
sound of the engine signaling the cab is about to turn. As a consequence, if some of the work
must be done while the cab is moving, the facts suggest the risk of harm can be minimized by the
oilers remaining vigilant as to the location of the cab at all times and listening for the change in
the sound of the engine indicating the cab is about to turn.
Given the foregoing, it appears the plaintiff may have difficulty in establishing the crane
as designed is “unreasonably dangerous,” especially in light of the fact changing the design to
add the type of sensor envisioned by the plaintiff would increase the price by 40%. Instead, it
appears that, while the crane does pose a danger, that danger can be greatly mitigated by the
adoption of simple, “common sense” measures, such not working on the crane while the cab is
turning, or maintaining an awareness of its location at all times.
B.
Negligence:
To recover under a theory of negligence, the plaintiff will likely have to show the
foreseeable risks of harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design, and the omission of the alternative design makes the
product not reasonably safe. See Restatement (Third) Torts, Products Liability. Alternatively
stated, a manufacturer of a product which, because of its design, is dangerous for its intended
use, is subject to liability to others whom it should expect to use the product for physical harm
resulting from the manufacturer’s failure to exercise reasonable care in the adoption of a safe
plan and design. A manufacturer thus has a duty to use reasonable care in designing a product to
guard against a foreseeable and unreasonable risk of injury. This may even include a misuse of
the product which might reasonably be anticipated.
To establish the crane suffered from a design defect, the plaintiff must accordingly prove
the harm which occurred was foreseeable, that it could have been reduced or avoided altogether
by the adoption of a different design, and the failure to use the other design made the crane not
reasonably safe. In short, similar to a claim for strict liability, the foreseeable risks posed by the
product, along with its utility and the other benefits it offered as designed, must be balanced
against the risks, utility and benefits it would offer if designed as proposed by the plaintiff.
Here, it appears it was certainly foreseeable the plaintiff could be injured in the manner
he was– not only is the risk apparent to one observing the movement of the cab, the crane
manufacturer included a warning of the danger in the manual it supplied with the crane,
indicating it was aware of the risk. Also, as set forth above, it appears that risk could have been
greatly reduced if not eliminated altogether by the adoption of the design proposed by the
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
plaintiff. However, the plaintiff must still show the manufacturer’s failure to adopt that design
made the crane not reasonably safe.
As noted above, it is not clear the plaintiff could do so. Instead, given it appears simple,
“common sense” measures can be adopted to greatly reduce the risk if not eliminate it entirely, it
does not appear the failure of the manufacturer to install a sensor in the cab which would detect
the presence of objects and stop the cab from turning made the crane not reasonably safe. As
further noted above, this especially appears to be the case given doing so would increase the
price by 40%.
C.
Arguments or Defenses the Manufacturer Might Raise:
As alluded to above, the manufacturer is likely to attempt to defeat the plaintiff’s claim
for strict liability by asserting the crane was not “unreasonably dangerous” as designed. As for
negligence, it is likely to attempt to defeat that claim on the ground its failure to adopt the
different design contended for by plaintiff did not make the crane “unreasonably safe,” and that,
as a consequence, it did not fail to exercise reasonable care in the adoption of a safe plan and
design.
1.
Comparative Negligence:
However, depending on the jurisdiction, it may also attempt to assert in response to any
claim for strict liability that the plaintiff was himself negligent. In this regard, some jurisdictions
have concluded strict liability is not absolute liability, and that its purposes would not be
undermined by the adoption of principles of comparative negligence. Also, the comparative
negligence of the plaintiff can very likely be asserted in response to a claim for negligence in
connection with the design of the crane.
Here, it appears the plaintiff may have been negligent in failing to take proper
precautions for his own safety while working on the crane. He was not only aware of the danger,
he knew much of his work could be done while the cab was not moving. This raises the issue of
whether he should have waited to do the work at a time when it was not in operation.
The facts also indicate the plaintiff was not watching the cab while he was cleaning the
surface of the deck, and as a consequence, did not see it begin to turn. Had he been watching the
cab, he likely would have been able to move out of the way and avoid injury. Also, the facts
indicate that, because it was windy that day, it was difficult to hear on the construction site. In
light of that information, he likely knew he may have difficulty in hearing the change in the
sound of the engine signaling the cab was about to turn. Assuming he had to do the work while
the cab was being operated, he thus should have been extremely vigilant in watching it in order
to avoid being injured.
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
2.
Misuse:
To the extent it is recognized as a defense in the jurisdiction, the manufacturer may also
attempt to claim the plaintiff misused the product, contending he should not have been
attempting to clean the deck while the cab was being operated, and certainly should not have
failed to keep clear of it as it warned in its manual. However, misuse of the product will not bar
recovery under a theory of strict liability where the misuse was reasonably foreseeable.
Here, the facts indicate it was common for oilers to work on the crane while the cab was
moving, despite the danger posed. They also indicate the manufacturer knew of another, similar,
incident. They accordingly indicate the type of actions engaged in by plaintiff here were
reasonably foreseeable, and thus would not constitute a misuse of the product sufficient to bar
liability.
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
Also, as noted above, a manufacturer is under a duty to design a product in a manner
which will guard against a foreseeable and unreasonable risk of injury, and this may include a
reasonably foreseeable misuse of the product. The manufacturer is accordingly unlikely to be
successful in asserting the plaintiff misused the product.
II.
Claim by Plaintiff Against Crane Manufacturer for Failure to Warn:
A.
Theories: Strict Liability & Negligence:
To recover against the manufacturer on a claim for failure to warn, the plaintiff will also
likely proceed under theories of strict liability and negligence. To recover under a theory of
strict liability, the plaintiff must prove the defendant did not adequately warn of a particular risk
that was known or capable of being known in light of the generally recognized and prevailing
best scientific or medical knowledge available at the time of manufacture and distribution.
Here, as indicated above, it appears the manufacturer did know of the particular risk in
question, that a worker could be injured by a moving cab. Liability will therefore likely turn on
whether it “adequately” warned on that risk. The manufacturer did warn of the risk in the
manual it supplied with the crane. However, whether that was sufficient to adequately warn the
plaintiff of the risk is not clear. Presumably the owner of the crane, plaintiff’s employer, would,
upon becoming aware of the warning, pass it along to all those working on or near the crane.
Nonetheless, the facts indicate the manufacturer began placing decals on its new cranes
warning of the danger prior to the accident, suggesting it was concerned the warning in the
manual was not being passed along, and that it needed to place something on the crane itself
warning them of the danger, as contended by plaintiff. Also, that another worker was injured
additionally indicates the provision of a warning in the manual may not have been enough. The
manufacturer accordingly may not have adequately warned the plaintiff of the risk.
To impose liability on the ground of negligence, the plaintiff must prove the defendant
did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e.,
what a reasonably prudent manufacturer would have known and warned about. Here, it is
unclear whether a reasonable manufacturer would have done more than include the warning
contained in the manual. While information showing another worker was injured would militate
in favor of doing more, such as placing a warning on the crane itself, there is no duty to warn of
open or obvious dangers, and the danger here was likely an open and obvious one. The
manufacturer thus may have acted reasonably in including a warning in the manual only.
B.
Arguments or Defenses the Manufacturer Might Raise:
In addition to arguing it adequately warned of the risk, or that it otherwise acted as a
reasonably prudent manufacturer in including a warning in the manual, the manufacturer may,
depending on the jurisdiction as noted above, argue the plaintiff misused the product and was
himself negligent. It is also likely to argue the danger posed by the cab was an open and obvious
one, and that there was accordingly no obligation to warn the plaintiff of it.
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
ISSUE SHEET-TORTS
Question 2
DEFAMATION Patricia V Daniel
1. a. Has Daniel made a statement of fact, or a statement of opinion implying a knowledge
of facts, sufficiently factual so as to be susceptible to being proved true or false?
Milkovich v Lorain Journal(1990)497 U S 1;
Has Daniel stated that the “ ‘Beauty And The Beasts’ history teacher” had been fired from an
upstate high school for the way she taught history? Could this be proved true or false by
checking with the upstate school?
b. Is Daniel’s language so loose, figurative, or hyperbolic so as to negate the impression of
seriousness? Falwell v Hustler Magazine(1988)485 U S 46;
Does it sound as if he actually wants her fired? In that context, does it sound as if he’s joking or
trying to provoke?
2. Is the statement defamatory? Could the statement harm a reputation? Belli v Orlando
Daily Newspapers(1967)389 F 2d 579;Fairfield v American Photocopy (1955)138 C A
2d 82(distinguishing privacy actions);
Could information about the loss of one’s job for the way one’s been doing it be detrimental to
one’s good name, and do injury both financially and emotionally?
3. Does the statement refer to Patricia? Even though she is not named in the statement, will
extrinsic facts make a reader to reasonably understand that the statement refers to
Patricia? Semple v Andrews(1938)27 C A 2d 228;Restatement 2d Torts 564;Bindrim v
Mitchell(1979)92 C A 3d 61;
Have there been public hearings turned into a media event creating news stories with such titles
as “Beauty And The Beasts “? Did Patricia, a history teacher, participate in these hearings?
Would a reader reasonably understand Patricia to be the history teacher in the statement?
4. Did Daniel publish the defamatory statement to a third person who understood its
meaning? Economopoulos v A G Pollard(1914)218 Mass 294;Restatement 2d Torts
577;Ringler Assoc. v Maryland Casualty(2000)80 C A 4th 1165;
Did Daniel write an article which was published in The Hoary Order’s newsletter, which had a
circulation of about 12,000?Could it be shown that someone read that article and understood it to
mean that Patricia had been fired?
5. Was the publication a fixed representation to the eye and therefore libel? Shor v
Billingsley(1956)4 Misc 2d 857;Cal Civ Code 45;
Was the statement defamatory of Patricia without the need of introducing any extrinsic facts as
explanatory matter ,and therefore libel on its face? Cal Civ Code 45a; Does a defamatory
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
meaning appear from the language of the statement itself? MacLeod v Tribune
Publishing(1959)52 C 2d 936;
Did Daniel’s statement plainly say that the “Beauty And The Beasts” history teacher had been
fired?
Isn’t explaining that Patricia is the mentioned teacher and how a reader would reasonably
understand this , an introduction of extrinsic facts? Is the statement then not libel on its face and
therefore not libel per se but libel per quod and unable to support an award of presumed
damages? But isn’t there authority in California to support the position that even if a plaintiff is
not named, that does not preclude such a statement from being actionable per se so long as the
statement
contains words clearly conveying a meaning within one of the statutory
classifications of libel ? Washer v Bank Of America(1943)21C 2d 822;
Aren’t there constitutional considerations pertaining to presumed damages to be discussed
below?
6. As to falsity, is truth initially an affirmative defense that must be pleaded and proved by
Daniel? Lipman v Brisbane Elementary(1961)55 C 2d 224;However,may the allocation of the
burden of proof be subject to federal constitutional limitations, as will be discussed below?
7. Was Daniel privileged to make his statement?
a. Was the statement fairly made? 1.Did Daniel have a sufficiently legitimate interest in the
statement’s information? Did Daniel’s readers have a sufficiently legitimate interest in the
statement’s information? Restatement 2d Torts 594,595,596;
Do the facts state that Daniel has a nephew who is a former, not a present high school student? Is
there anything to indicate he has any other private interest? Could a position be supported that
everyone has a private,as well as a public interest in the quality of education ? What about
Daniel’s readers? Aren’t some of them probably parents of school -age chidren with an interest
in the quality of education?
2.Did Daniel publish for the purpose of giving the public benefit of comment that they are
entitled to have about a teacher at a high school, a public institution?Prosser and Keeton(5th ed
1984)831;
Has the suitability of the book Patricia obtained been vigourously debated? Should this light
shine on Patricia as well?
b. Was the statement made in a reasonable manner? Was publication in The Hoary Order’s
newsletter excessive? Restatement 2d Torts 604;
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
Who was Daniel trying to reach? Parents? Citizens? Should he have restrained himself to
communication with school officials?
c. Was the statement published with a proper purpose? Restatement 2d Torts 603;
Was Daniel’s concern for the way Patricia taught history or could he have acted with an ill will
against her for suspending his nephew? What if the publication was inspired only in part by his
indignation? Wouldn’t the privilege still apply? Also, in not checking his nephews story, did
Daniel act in reckless disregard as to the statements truth or falsity thereby abusing any possible
privilege? Restatement 2d Torts.
8. Are there constitutional limitations to liability?
a. Was Patricia a public official? Rosenblatt v Baer(1966)383 U S 75;Mosesian v McClatchy
Newspapers(1988)205 C A 3d 597;Franklin v Benevolent And Protective Order Of
Elks(1979)97 C A 3d 915;
Did Patricia have or appear to have substantial responsibility for or control over the conduct of
government affairs?
Did Patricia obtain books for classroom use to help with her job as a teacher? Was Patricia
required by school board regulations to participate in public hearings and meetings? Is her
responsibility here “substantial”? Couldn’t her required participation evidence control or lack of
it?
Does Patricia, because of her job, enjoy significantly greater access to mass media? Didn’t it take
a media event to get her greater access?
b. Was Patricia a limited purpose public figure? Wolston v Reader’s Digest(1979)443 U S
157;Khawar v Globe Int’l(1998)19 C 4th 254; Franklin v Benevolent And Protective Order Of
Elks(1979)97 C A 3d 915;
Did Patricia voluntarily engage the public’s attention in an attempt to influence the outcome of a
public controversy?
Did Patricia herself call a press conference? Then, when she thought it went so well toward
clarifying her position, didn’t she call another one? Isn’t she trying to influence the outcome?
However, hadn’t Patricia been required by school board regulations to participate in the book
suitability and reconsideration meetings? Hadn’t she called these conferences because she felt
that these meetings hadn’t been properly reported ? Should this be considered truly voluntary or
more in the way of a required response after having been pulled into a controversy?
Did Patricia acquire such public prominence in relation to this controversy as to permit media
access sufficient to effectively counter published defamatory statements?
Torts II - FINAL
Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
Did the entire process become a media event? Did Patricia acquire some prominence that way?
However, when Patricia called her own conference, didn’t only half the journalists notified show
up? Wasn’t the second conference more sparsely attended than the first?
C. Was Patricia a private figure , and if so , did the statement involve a matter of public
concern? Does the form, content, and context of the statement demonstrate that a matter of
public concern is implicated? Carney v Santa Cruz Women Against Rape(1990)221 C A 3d
1009;
Is a statement in a newsletter about the qualifications of a high school teacher in the context of
controversy about a book a matter of public concern?
d. If Patricia is characterized a public official or a limited purpose public figure, what standards
may be applied to harmonize the tensions between the right to one’s good name and the right of
free speech?
1. As to standard of fault:
If Patricia is a public official or limited public figure, then wouldn’t the interest in a free range of
ideas concerning Patricia’s qualifications be best served by requiring that it be proved by clear
and convincing evidence that Daniel published his statement with actual malice? Is actual malice
a knowledge of falsehood or a reckless disregard of the truth? New York Times v
Sullivan(1964)376 U S 254;
Was Daniel’s conduct reckless? His nephew had told him that Patricia had been fired although
she had not been. Apparently he believed his nephew and never checked his story, Does this rise
to the level of recklessness?
2. As to the availability of presumed damages:
Would the discretion of juries to award damages where there is no proved actual injury in
matters concerning public officials and public figures inhibit the vigourous exercise of free
speech? Gertz v Robert Welch(1974)418 U S 323;
3. As to punitive damages:
Will proof of actual malice be enough for an award of punitive damages? Bindrum v
Mitchell(1979)92 C A 3d 61;or must Patricia show ill-will malice as well? Burnett v National
Enquirer(1983)144 C A 3d 991);
4. As to burden of proof of falsity:
Must Patricia the plaintiff plead and prove the falsity of the statement with convincing clarity?
Garrison v Louisiana(1964)379 U S 64;
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Spring Term 2012
Ventura & Santa Barbara
Profs. Eric Kunkel & Stephen Fay
e. If Patricia is characterized a private person engaged in a matter of public concern, what
standards may be applied to harmonize the tensions between the right to one’s good name and
the right of free speech?
1. As to standard of fault:
So long as they do not impose liability without fault, may states define for themselves the
appropriate standard of fault? Gertz v Robert Welch(1974)418 U S 323;
Does Daniel’s reliance on his nephew’s story, and failure to follow up, rise to the level of
negligence? Did Daniel fail in some duty of care?
2, As to presumed and punitive damages:
In a matter of public concern, must Patricia prove actual malice? Dun & Bradstreet v Greenmoss
Builders(1985)472 U S 749;for punitive damages ,must she also prove ill-will malice or
not?Bindrum v Mitchell(1979)92 C A 3d 61;Burnett v National Enquirer(1983)144 C A 3d 991;
3. As to the burden of proving falsity:
Must plaintiff Patricia plead and prove the falsity of the statement? Philadelphia Newspapers v
Hepps(1986)475 U S 767;
FALSE LIGHT PRIVACY
Patricia V David
a. Has there been a general public divulgence of David’s collage? Werner v TimesMirror(1961)193 C A 2d 111;
Did David publish his collage in a student newspaper? Is this public enough?
b. Has David cast Patricia in a false light? O’Hilderbrandt v Columbia
Broadcasting(1974)40 C A 3d 323;M.G. v Time Warner(2001)89 C A 4th 623;
Did David include Patricia’s picture with a photo of people burning flags and near a
caption “heroes of the revolution”?
Is there any evidence that Patricia is associated with a revolution?
c. Could the implication that she is involved in an activity associated with the burning of
flags be reasonably objectionable to Patricia? Prosser,”Privacy” 48 Cal L. Rev.383;
d. Must Patricia prove actual malice in any fact situation when it would be required under
defamation law?Johnson v Harcourt,Brace,Jovanovich(1974)43 C A 3d 880;However
Patricia is characterized,did David’s behavior violate the appropriate standard? The facts
state David published a photograph of Patricia speaking the day after he read Daniel’s
article. Could this be
characterized as a reckless disregard for the truth or a negligent disregard for the truth as
to whether Patricia could have been described as a hero of a revolution?