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Tort Law

Tort Law. You always wondered about. What is a tort?. The real definition:. A civil action that does not involve a breach of contract. Common-law actions Same facts may be either breach of contract and a tort Forms of action. Torts are not always crimes. Some overlap

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Tort Law

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  1. Tort Law You always wondered about

  2. What is a tort?

  3. The real definition: • A civil action that does not involve a breach of contract. • Common-law actions • Same facts may be either breach of contract and a tort • Forms of action

  4. Torts are not always crimes • Some overlap • Violation of a criminal law is not always a tort • Vice-versa

  5. Three types of torts Categorized according to the state of mind of the person who does the tort (the “tortfeasor”)

  6. Intentional • Intent to do the physical act • Not intent to injure or cause harm • Battery, assault • No insurance against intentional torts • No bankruptcy discharge for damages

  7. Unintentional • Negligent • Failure to exercise due care under the circumstances • Damages may be covered by insurance, or discharged in bankruptcy • Most personal injury actions involve negligence

  8. Strict Liability • State of mind is not an issue • High risk of harm even if due care is exercised • Dog bites, dangerous products, storing hazardous material

  9. Many torts are “hybrid,” and can either be intentional or unintentional • State of mind could still be relevant • Depends on circumstances, such as who is victim • May affect damages awarded

  10. Defamation

  11. Libel Referred to statements put in writing

  12. Slander Referred to spoken words

  13. Libel and slander are now considered one action. • Technical differences between the two • Special damages for slander • Distinction less important

  14. What are the elements of defamation?

  15. To prove defamation: • False statement

  16. To prove defamation: • False statement • Fact

  17. To prove defamation: • False statement • Fact • Communicated to a third party

  18. To prove defamation: • False statement • Fact • Communicated to a third party • Tends to lower reputation in the community

  19. Which means what, exactly?

  20. False Statement • Any kind of communication • Substantially false • If a public figure, statement must be made with actual malice • If not a public figure, statement must be made negligently

  21. Fact • Not name-calling • Not opinion • Mixed statements divided into fact and opinion • Opinions supported by “facts” are treated as fact • Implication

  22. Communicated to a Third Party • “Publication” • Told to someone other than the victim • At least one other person • Reasonably certain third party will hear • Opening mail • Overhearing • Know they are eavesdropping

  23. Tends to lower reputation in community • Ordinary meaning of statements • Understood as defamatory • Lower person in esteem of community • Innuendo • Implication • Must be credible

  24. Public figure? Or not?

  25. Why does it matter? • First Amendment protections • Public figures must prove false statement was made with “actual malice” • Intentionally false • Reckless disregard for truth or falsity of statement • “New York Times” malice • Others need only show statement was negligently false

  26. Who is a “public figure?” • Existence of a public controversy/matter of interest • Individual involved in that controversy/matter • Relationship between statements and controversy/matter • Involuntary public figure • Conduct or situation makes them legitimate figure of interest

  27. Most public figures are “limited purpose” • Not everything they do will be matters of public interest • If it doesn’t concern matter of public interest, they are not a public figure for that purpose • Very few all-purpose public figures • President

  28. Defenses to Defamation Actions

  29. Truth • Duty of plaintiff to prove falsity • British rule requires defendant to prove truth • Underlying implications of statement looked at • “Alleged” or “reputed” won’t necessarily work

  30. Harmless to reputation • Statement does not harm reputation • Obviously not true • Plaintiff has such a bad reputation no further harm could be done to it

  31. Opinion • Distinct from fact • Only facts are actionable

  32. Privileges

  33. Privileges allow a person to avoid liability for a defamatory statement • Absolute privileges • Government proceedings • Congress • Evidentiary privileges • Consent • Rebuttal • Reply to prior defamation

  34. Qualified privileges • Statements about public officials • Employee references • Reporting official proceedings • Public records • Fair comment and criticism • Only if not abused • Actual malice

  35. Damages

  36. Nominal damages • One dollar • Defamation was proven, but no real harm was done • Used to prove a point, or vindicate reputation

  37. General damages • No proof of actual loss required • Damages presumed to flow from injury • Harm to reputation • Emotional distress • Pain and suffering • Matter for jury to decide

  38. Special damages • Plead and prove • Not presumed to exist • Actual harm that came from this defamation • Lost income • Lost business opportunity • Medical expenses

  39. Punitive damages • Willful indifference to rights of others • Recoverable even if no special damages • Meant to deter and punish • Reserved for especially egregious cases

  40. The Tort of “Outrage”

  41. Intentional infliction of emotional distress • Also called “outrage” • Conduct goes beyond norms of human decency • Intentional or reckless conduct • Some states require physical manifestations of distress • Difficult to prove

  42. First Amendment may limit outrage actions • Snyder v. Phelps • Hate picketing at soldiers’ funerals • Supreme Court held: Protected speech • Matter of public concern • Picketers were someplace they were allowed to be

  43. Prima Facie Tort

  44. Prima facie tort • Unjustified • Intentional infliction of harm • Results in damages • Would otherwise be lawful

  45. Interference with contract • Contract exists • Defendant knew of contract • Defendant interferes with contract • Plaintiff was damaged

  46. Privacy Torts

  47. Private tort action • Idea slow to develop in United States • Theory refined by influential Brandeis article • Some states (New York, California) enacted statutes • Minnesota did not recognize, until 1998

  48. Lake v. Wal Mart • Vacation in Mexico • Two women photographed in shower together • Brought film to Wal-Mart for developing • Some pictures not returned; didn’t meet stores “standards” • Rumors about women started to be heard

  49. A Wal-Mart employee kept prints of the shower pictures, and was responsible for starting the rumors.

  50. Court recognized three of the privacy torts • Intrusion upon seclusion • Publication of private facts • Misappropriation of likeness

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