Liability for Commercial Disparagement in "The 'O' Show

1. Chapter 6 Tort Law

2. Chapter 6 Case Hypothetical When Olivia P. Rae talks, people listen. As a talk show host on her nationally-syndicated television program, “The ‘O’ Show,” Olivia reaches approximately thirty (30) million viewers each week. Her dedicated viewers are collectively referred to as “Olivia’s Militia,” and most of her viewers wait for Olivia’s on-air blessings before deciding what to read, how to vote, and more generally, how to think.One of her recent programs has Olivia in “hot water.” Olivia devoted her September 30 episode to a food-borne illness commonly referred to as “crazy chicken” disease. During the past two years, approximately fifty (50) people in the United States had developed physical symptoms after eating undercooked, diseased chicken. Apparently, chickens had developed the disease after eating substandard feed, and consumers had been affected in the food chain. Common symptom included muscle contractions, nausea and diarrhea, and less-than-caring individuals, many skeptical of the disease’s legitimacy, referred to these symptoms as “The Chicken Dance.”During the September 30 episode of “The ‘O’ Show,” Olivia interviewed a medical doctor. Dr. Tyson Fowler, who said that in his opinion, chicken was not safe for human consumption. In response, Olivia had said “Doctor Fowler, if that is the case, I will never eat chicken again.”Hearing of this episode, the United Poultry Growers Association sued Olivia and “The ‘O’ Show,” claiming commercial disparagement (the commercial equivalent of defamation.)Are the defendants Olivia and “The ‘O’ Show” liable for commercial disparagement?

3. Chapter 6 Case HypotheticalOfficers Jones and Henderson are well-respected police officers in the Woodlawn community. They have been recognized, both within the police department and by the community, for their outstanding service. While on patrol in downtown Woodlawn late one evening, Jones and Henderson observe an individual sleeping on a park bench in the town square. The individual is Fred Ames, a homeless person known in the community for his trouble with alcohol and illicit substances. Ames has a twenty-year history of bad choices and bad luck, and most in Woodlawn “know his story.” Woodlawn does not have a law against vagrancy or homelessness.Determined to “clean up” the downtown area, the officers demand that Ames seat himself in the back of the squad car. Reluctantly, and without the use of force on the part of Jones and Henderson, Ames complies. Officers Jones and Henderson transport Ames to a rural area, where they release him on a dark country road, and warn him not to return to Woodlawn until he “cleans up his act once and for all.”Have Officers Jones and Henderson committed a tort against Ames? Are the officers within the “privilege of their authority” in removing Ames from the downtown area? Did the officers act unethically? Should Woodlawn implement a law against vagrancy/homelessness?

4. Tort Definition: A civil wrong or injury to another, other than breach of contract, giving the injured party the right to bring a lawsuit against the wrongdoer to recover compensation for economic and/or physical damages

5. Goals of Tort Law Provide compensation for injured parties Maintain order in society by discouraging private retaliation by injured parties Give citizens a sense that they live in a just society

6. Classification of Torts Intentional Torts—Occur when defendant takes action intending that certain consequences will result, or knowing they are likely to result Negligent Torts—Occur when defendant acts in a careless way that subjects other people to an unreasonable risk of harm Strict Liability Torts—Occur when defendant undertakes an “inherently dangerous” action (an action that cannot be undertaken safely, no matter what precautions the defendant takes)

7. Intentional Torts (Against Persons) Assault Battery Defamation

8. Assault Definition: Situation when one person places another in fear/apprehension of immediate, offensive bodily contact

9. Battery Definition: An intentional, unwanted, offensive bodily contact

10. Defenses Available to the Defendant in a Battery Lawsuit Consent Self-Defense Defense of Others Defense of Property

11. Defamation Definition: The intentional publication (communication to a third party) of a false statement harmful to an individual’s reputation

12. Types of Defamation Libel -Definition—Defamation published in permanent form, such as in a magazine or newspaper Slander -Definition—Defamation made orally

13. Intentional Torts (Against Property) Trespass to Realty Private Nuisance Trespass to Personal Property Conversion

14. Trespass to Realty Occurs when a person intentionally: Enters the land of another without permission; Causes an object to be placed on the land of another without the landowner’s permission; Stays on the land of another when the owner tells him/her to depart; or Refuses to remove something he/she placed on the property that the landowner asked to be removed

15. Private Nuisance Definition: A situation when a person uses his/her property in an unreasonable manner that harms a neighbor’s use or enjoyment of his/her property

16. Trespass to Personal Property Definition: A temporary exercise of control over another’s personal property, or interference with the true owner’s right to use the property

17. Conversion Definition: A situation that occurs when a person permanently removes personal property from the owner’s possession and control

18. Intentional Torts (Against Economic Interest) Disparagement Intentional Interference With Contract Unfair Competition Fraudulent Misrepresentation

19. Disparagement Definition: A false statement of material fact resulting in damage to a business or product’s reputation

20. Intentional Interference With Contract (Elements) A valid and enforceable contract between two parties; Defendant knew of the existence of the contract and its terms; Defendant intentionally undertook steps to cause one of the parties to breach the contract; and Plaintiff injured as a result of the breach of contract

21. Unfair Competition Definition: A tort against economic interests that occurs when the defendant unreasonably interferes with the plaintiff’s opportunity to earn a profit

22. Fraudulent Misrepresentation (Elements) The defendant knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions; The defendant intended to have another party rely on the misrepresentation; The plaintiff reasonably relied on the misrepresentation; and The plaintiff suffered damages because of reliance on the misrepresentation

23. Negligence Definition: The failure to exercise reasonable care to protect another’s person or property, causing an unreasonable risk of harm to others

24. Elements of Negligence Duty Breach of Duty Causation (Actual and Proximate) Damages

25. Res Ipsa Loquitur (“The Thing Speaks For Itself”) Elements: The event was a kind that ordinarily does not occur in the absence of negligence; Other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated; and The indicated negligence is within the scope of the defendant’s duty to the plaintiff

26. Negligence Per Se (“Negligence In or Of Itself”) Applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs

27. Defenses to Negligence Contributory Negligence Comparative Negligence Assumption of the Risk

28. Strict Liability Definition: Liability without fault

29. Elements of Strict Liability An activity that: Involves a risk of serious harm to people or property; Is so inherently dangerous that it cannot ever be safely undertaken; and Is not usually performed in the immediate community

30. Damages Available in Tort Cases Compensatory Damages: Designed to compensate the victim for all harm caused by the defendant Nominal Damages: Small amount of money given to recognize that defendant committed a tort, in a case where plaintiff did not experience, or failed to prove, actual damages Punitive Damages: Imposed to punish defendant for extremely outrageous conduct, and to deter the defendant and others from committing similar future offenses