Advanced Torts

Attack Outline:

A. Strict Liability
• Strict liability is when one is liable even if he was not negligent nor acted intentionally.
• To establish strict liability, there must be: (1) breach of that duty; (2) causation; and (3)
damage.
• (1) Breach of that Duty: A duty of care is a responsibility to another person that arises from
circumstances that create a risk.
• (2) Causation: A reasonably close causal connection between the conduct and the resulting injury
is commonly called causation.
o Causation in Fact: causation exists when the damage more likely than not would not
have occurred but for the defendant's actions (“But For” Test)
o Proximate Cause: The conduct must not have only caused the harm; it must have also
been a substantial factor in bringing about the harm (reasonably foreseeable that harm
would result)
• (3) Damage: Strictly liable for the injuries caused as a result of the defendant’s negligence.
a. Abnormally/Unreasonably Dangerous Activities
i. Rylands v. Fletcher
ii. Rylands v. Fletcher ruled that that those who use, or permit others to use, land for the
conduct of abnormally dangerous activities is strictly liable for resultant damages.
iii. Rylands v. Fletcher codified the rule for abnormally dangerous activities.
iv. The Restatement Second of Torts, §520, lists six factors to be considered in
determining whether an activity is “abnormally dangerous”
1. High degree of risk
2. Risk of serious harm
3. Cannot be eliminated even by due care: inability to eliminate the risk by
the exercise of reasonable care
4. Not a matter of common usage: extent to which the activity is not a matter
of common usage
5. Appropriateness: inappropriateness of the activity to the place where it is
carried on; and
6. Value: extent to which its value to the community is outweighed by its
dangerous attributes
v. Miller v. Civil Constructors, Inc.
vi. The use of firearms at firing range for target practice is not an ultrahazardous
activity.
b. Limitations on Strict Liability
i. Foster v. Preston Mill Co.
ii. There must be a nexus between the activity alleged to warrant strict liability and the
injuries suffered by plaintiff. Defendant only liable for harm caused by risks of
danger that makes the activity abnormally dangerous.
iii. Golden v. Amory
iv. Defendants cannot be held strictly liable for damage and injuries caused by an act of
God that the owner had no reason to anticipate.
v. Sandy v. Bushy
vi. An individual is strictly liable for keeping an animal that he knows has vicious
tendencies/disposition unless \the plaintiff voluntarily or unnecessarily puts himself
in the way of the animal.
vii. Defense (Strict Liability Not Available):
1. Contributory Negligence Rises to Assumption of Risk:
a. Plaintiff had actual knowledge of the risks;
b. Plaintiff was able to appreciate the magnitude of the risks; and
 c. Plaintiff voluntarily proceeds to encounter the risk, despite the first
two factors.
d. Therefore, plaintiff will not be able to hold defendant strictly liable
for the injuries that occurred since plaintiff was aware of the risks
but proceeded anyway.
B. Products Liability
• It is an umbrella term used to refer to the liability of a manufacturer, seller, or other supplier of a
chattel, to a person who suffers physical harm caused by the chattel.
• Products liability can be based on three different theories: (1) negligence; (2) breach of
warranty; and (3) strict liability.
a. Theories of Recovery
i. Negligence (Contractual Duties)
ii. MacPherson v. Buick Motor Co. (No Privity of Contract Required)
iii. The lack of privity is not a defense when it is foreseeable that the product, if
negligently made, can cause injury to a class of persons which includes the Plaintiff.
This effectively abolished the privity limitation.
iv. Warranties
1. Express Warranty
2. A seller may expressly represent that her goods have certain qualities. If the
goods turn out not to have these qualities, the purchaser may sue for this
breach of warranty. Furthermore, a manufacturer is also liable for
a breach of an express warranty, even though a consumer purchased the
good from a third-party.
a. Baxter v. Ford Motor Co. (No Privity of Contract = Liability)
b. There is liability even without privity of contract, when
manufacturer makes representations that the consumer relies on and
cannot readily ascertain themselves. As such, there is usually no
requirement of privity for breach of express warranty.
c. In other words, a manufacturer is liable to a consumer for breach of
an express warranty, even if there is no privity between the
manufacturer and the consumer.
3. Implied Warranty
4. A promise arising by operation of law, that something which is sold shall be
merchantable and fit for the purpose for which the seller has reason to know
that it is required
a. Implied Warranty of Merchantability
b. The implied warranty of merchantability implies minimum
standards of quality including safety. As such, the defendant must
be a “merchant” with respect to goods of that kind.
5. Henningsen v. Bloomfield Motors, Inc.
6. If the buyer makes known to the seller the particular purpose for which the
article is required and it appears that the buyer has relied on the seller’s skill
or judgment, an implied warranty arises of reasonable fitness for that
purpose. The implied warranty of fitness means that the good is reasonably
fit for the general purpose for which it is manufactured and sold.
7. A disclaimer or limitation of liability shall not be given effect if “unfairly
procured,” that is, the consumer was not made understandingly aware of it,
or it was not clear and explicit.
v. Strict Liability
vi. Greenman v. Yuba Power Products, Inc. (Strict Liability Without Inspection for
Defects)
vii. Strict liability is imposed on manufactures who place an article on the market
without inspection for defects and the article does, in fact, have a defect that injures
 the plaintiff. There is no requirement for privity of contract and the liability extends
to consumers even when they purchase the article from a middleman.
b. Defects:
c. The product is defective when at the time of sale or distribution it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warnings.
i. Design Defects
ii. Product is defective in design when 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 renders the product unreasonably
unsafe.
1. A plaintiff must show that there was a design defect by proving that: that the
design flaws existed at the time the product left the manufacturer's control,
and that the product was in substantially the same condition as it was when it
left the manufactures/sellers hands.
2. Majority Test: Negligence/Risk Utility Test (ONLY APPLIES TO
DESIGN DEFECTS)
3. Where a negligence standard is used, the key issue is the reasonableness of
the manufacturer’s conduct in placing the product on the market. The factors
relevant to such a determination include:
a. the relative need for the product (i.e., whether the item is an
essential or a luxury);
b. the likelihood that the product will cause injury, as well as the
probable severity of such injury; and
c. the availability of an affordable, safer alternative design
4. The Third Restatement of Torts Approach (ONLY APPLIES TO
DESIGN DEFECTS)
5. The Third Restatement adopts a risk-utility test as the sole test for defective
design, which focuses on the “reasonable alternative design” (RAD). Here,
the plaintiff will have to prove that there indeed existed a RAD that would
have been materially safer.
6. To ensure recovery, the plaintiff must still demonstrate that the existing
design is so dangerous that failing to use a reasonably alternative design
would still render the product unreasonably safe.
7. Minority Test: Consumer Expectations Test (ONLY APPLIES TO
DESIGN DEFECTS)
8. To determine whether a design defect is unreasonably dangerous, a plaintiff
must show that the product failed to perform as an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner.
9. Mikolajczyk v. Ford Motor Company
10. Illinois uses the consumer-expectation test to determine whether a design
defect exists.
a. Defense to the Consumer Expectation Test:
i. Misuse of the intended use of the product
1. Misuse of a product occurs when it is used for a
purpose neither intended nor reasonably
foreseeable by the defendant based on an objective
standard. Therefore, defendant is not liable for an
injury caused by an unforeseeable misuse of his
product.
iii. Manufacturing Defects
iv. Product has manufacturing defect when it departs from its intended design even
though all possible care was exercised.
 v. This is the case where the particular item that injures the plaintiff is different from
the other ones manufactured by the defendant, because something went wrong with
the manufacturing process.
vi. Rix v. General Motors Corp.
vii. Four part-test to determine if there is a manufacturing defect:
1. The defendant must be the manufacturer (seller, retailer or distributor) of the
product;
2. the product must be defective at the time it was sold;
3. the product reached the plaintiff without substantial changes to its condition;
4. the defective condition of the product was cause (actual or proximate) cause
of the plaintiff’s injuries.
a. However, this rule does not apply, if the product is altered after it
leaves the care of the manufacturer, which would make it
fundamentally unfair to hold a manufacturer liable on those
grounds.
viii. Warning Defects
ix. Product is defective due to inadequate instructions when the foreseeable risks of
harm posed by the product could have been reduced/avoided by the provision of
reasonable instructions or warnings.
x. State of Art
xi. A plaintiff must prove that a manufacturer must have knowledge of a potential risk or
danger inherent in its product before strict liability can be imposed for failure to
warn. Therefore, evidence that the risk was known or knowable through the
application of general scientific knowledge available at the time of manufacture—
that is, evidence of the state of the art—is admissible.
xii. As such, in a strict products liability case in which failure to warn of the danger is
claimed, evidence of the state of the art of manufacturing the product is admissible.
1. Defenses
a. State of the Art
b. Defendant can defend a strict liability claim by showing that the
product was designed in accordance with the “state of the art” when
it was manufactured and first sold.
c. The burden of proof is on the defendant to prove that the product
was in conformance with the “state of the art” knowledge and
technology at the time the product was manufactured or sold.
xiii. Proof of Circumstantial Evidence
xiv. To maintain a claim for a defective product, the plaintiff must prove that:
1. a defect in the product exists;
2. that the defect existed when the product left the manufacturer; and
3. that the defect caused injury to an end user that was reasonably foreseeable.
xv. These elements can be proven by circumstantial evidence and the plaintiff need not
prove that all other possibilities did not cause the injury.
xvi. In other words, the plaintiff does not have to eliminate all other possible causes of
their injury. They only need to show that there was circumstantial proof that this
defective product caused the plaintiff's injuries.
xvii. Defenses
1. Comparative/Contributory Negligence
2. 4-5 states declare that this defense is a complete bar to recovery if plaintiff is
partially responsible for their injury. While the other 45-46 states reduce the
sum of damages awarded to the plaintiff if they are partially responsible for
their injury.
 a. Daly v. General Motors Corp.
b. The doctrine of comparative negligence applies in a strict products
liability case to reduce the plaintiff’s recovery only to the extent that
his own lack of reasonable care contributed to his injury.
3. Misuse of the Product
4. Generally, will be a bar to recovery if plaintiff is misusing the product.
Therefore, the manufacturer is not liable for injuries from abnormal or
unintended use of a product if use is unforeseeable.
5. Ford Motor Co. v. Matthews
6. A manufacturer is not liable for injuries caused by abnormal or unintended
use of its product, only if such use is not reasonably foreseeable.
C. Pre-Emption
• The doctrine of “pre-emption” applies in three situations:
o (1) when the state law is inconsistent with the federal statute,
o (2) when the federal statute is sufficiently comprehensive to occupy the field, and
o (3) when the enforcement of the state law frustrates the federal scheme
• Usually applicable in drug regulation, automobile safety regulation, and the regulation of
chemicals, such as pesticides.
• The Supremacy Clause: This clause states that federal law takes priority over conflicting state
law.
a. Express Pre-Emption:
i. This occurs when Congress explicitly says that it intends to take away the states’
ability to regulate in a particular way. As a result, the Supremacy Clause
nullifies/abolishes any attempt by a state to do what Congress has said the state may
not do.
ii. Congress expressly states that a federal law (a valid law that is not beyond the
constitutional power of Congress) intends to preempt certain types of state
legislation. In addition to expressly stating an intent to preempt, Congress can also
expressly state that it does not intend to preempt certain types of state legislation.
1. Example:
a. Express pre-emption is likely to be found where the Food and Drug
Administration pre-approves a newly developed medical device
such as a pacemaker or heart valve. Once this happens, a user of the
device will generally not be permitted to recover under state tort law
for the device’s defectiveness.
b. That’s because the court will likely conclude that the federal
approval expressly pre-empts a state from awarding tort damages
premised on the device’s defectiveness.
b. Implied Pre-Emption (Two Types: Conflict and Field Pre-Emption)
i. Congress (or a federal agency acting under direction from Congress) does not
explicitly tell the states that they may not take a particular tort-related action.
ii. There are two different ways in which implied pre-emption can occur in a tort-law
context, a (1) direct conflict and a (2) federal decision to occupy an entire field.
1. Conflict Pre-Emption:
a. The federal law and the state law shows that the two are in direct
conflict.
b. When this happens the state law must yield.
c. The direct conflict can be of two sorts:
i. (1) it is impossible for the maker of a product to comply
simultaneously with the federal regulation and the state
regulation; or
ii. (2) the objectives behind the federal regulation and the state
regulation are inconsistent.
 2. Field Pre-Emption (Occupation of Entire Field):
a. The second form of implied pre-emption occurs where the federal
government is found to have intended to occupy an entire field of
regulation.
b. To demonstrate that field pre-emption exists, the challenger must
show that Congress intended to fully occupy a field and leave no
room for even supplemental state regulation.
c. When the Court is uncertain as to whether Congress intended to pre-
empt the field, it will look at the nature of the regulated area.
d. If the area regulated by Congress is an area in which the federal
interest is dominant, the Court will be more inclined to presume that
Congress intended to occupy the field
e. Even if field pre-emption exists, there may still be a dispute as to
the scope of the field that Congress intends to pre-empt.
c. Peterson v. Lou Bachrodt Chevrolet Co.
d. Strict liability will not be imposed upon the used car dealer, absent a showing that the defects
were created by him. Otherwise, “the used car dealer would in effect become an insurer
against defects which had come into existence after the chain of distribution was completed,
and while the product was under the control of one or more consumers.”
e. T.H. v. Novartis Pharmaceuticals Corp.
f. Brand-name drug manufacturers owe a continuing duty of care to maintain adequate warning
labels used on generic versions made by other manufacturers and as soon as reasonable
evidence exists associating a serious risk with a particular drug.
g. To determine whether to create an exception to a brand-name drug manufacturer’s
duty to warn, we balance the constellation of factors:
i. Three of those factors are:
1. foreseeability, the certainty of the injury, and the closeness of the connection
between the plaintiff and the defendant
ii. The remaining four are:
1. moral blame, the policy of preventing future harm, the burden on the
defendant and the general public, and the availability of insurance
h. Hector v. Cedars-Sinai Medical Ctr.
i. Hospitals are not subject to strict liability for a defective product provided to a patient during
treatment when the hospital is a provider of services rather than a seller of a product.
j. Amazon.com, Incorporated, v. Morgan Mcmillan
k. A seller is a person who is engaged in the business of distributing or otherwise placing, for
any commercial purpose, in the stream of commerce for use or consumption a product or any
component part thereof.
l. When a product-related injury arises from a transaction involving a sale, sellers are those who
have relinquished title to the allegedly defective product at some point in the chain of
distribution
m. Therefore, since the product in this case was sold on Amazon’s website by a third party and
Amazon did not hold or relinquish title. As such, Amazon is not a seller even though it
controlled the process of the transaction and the delivery of the product.
D. Misrepresentation
a. Intentional Misrepresentation (Deceit or Fraud)
b. To recover for “intentional misrepresentation” (also called “deceit” or “fraud”), P must
establish the following elements:
i. Misrepresentation: A misrepresentation by D; usually in words, (e.g., “The lot that I
am selling consists of 26 acres”).
ii. Scienter: Scienter (i.e., a culpable state of mind — either knowledge of the
statement’s falsity or reckless indifference to the truth);
iii. Intent: An intent to induce P’s reliance on the misrepresentation;
 1. Third-party recovery: Even if D did not intend to influence P, however, P
can recover if she can show that she is a member of a class which D had
reason to expect would be induced to rely, and the transaction is of the same
sort that D had reason to expect would occur in reliance.
iv. Damage to the plaintiff, stemming from the reliance.
c. Concealment and Nondisclosure
d. Elements of Misrepresentation:
• A false representation or concealment of a material fact;
• The representation is made to a third party with the purpose of inducing plaintiff to
act or to refrain from acting on the representation;
• Plaintiff relies on the representation;
• Plaintiff’s reliance is reasonable;
• Plaintiff suffers pecuniary losses as a result of his or her reliance on the
representation or concealment of a material fact.
i. Swinton v. Whitinsville Savings Bank (Old Trend, Modern Trend – Duty to Disclose
Dangerous Latent Defects)
ii. A seller is not required to disclose latent defects. The seller cannot purposefully hide
a latent defect. This is because if a defendant is liable on this declaration, then every
seller is liable who fails to disclose any non-apparent defect know to him in the
subject of the sale which materially reduces its value and which the buyer fails to
discover.
iii. Modern Trend: where there is a serious and dangerous “latent” defect, known to
exist by the seller, then the seller must disclose such defect to the unknowing buyer
or suffer liability for failure to do so.
iv. Griffith v. Byers Constr. Co. of Kansas, Inc.
v. When a defendant is aware of a material condition that will affect a plaintiff’s buying
condition, and he conceals that condition, he may be guilty of fraudulent
concealment, in tort, as well as breach of implied warranty of fitness (did not win on
this claim in court).
vi. Derry v. Peek
vii. Derry v. Peek established a 3-part test for fraudulent misrepresentation, whereby the
defendant is fraudulent if he:
1. knows the statement to be false (knowingly), or
2. does not believe in the statement (without in its truth), or
3. is reckless as to its truth (recklessly, careless as to whether it be true or
false).
viii. An action of deceit will only stand in a court when a plaintiff can show not only
misrepresentation, but also that defendants knew they would be unable to follow
through with their representations.
e. Fraudulent Misrepresentation
f. Elements of Fraudulent Misrepresentation:
• A false representation or concealment of a material fact;
• The representation is made with fraud (e.g. scienter);
• The representation is made to the plaintiff or a 3rd party with the purpose (or goal) of
“inducing” the plaintiff to act or to refrain from acting on the representation;
• Plaintiff relies on the representation;
• Plaintiff’s reliance is reasonable;
• Plaintiff suffers pecuniary losses as a result of his or her reliance on the false
representation.
i. International Products Co. v. Erie Railroad Co. (overruled Derry v. Peek)
ii. A cause of action for negligent statements may be upheld when a plaintiff is harmed
by relying on a defendant’s words.
 iii. This case overrules Derry v. Peek and states that a cause of action for
misrepresentation may be upheld when a defendant can be reasonably assured that a
plaintiff is acting in reliance of his words. Therefore, a defendant has a duty to speak
with care, when it knows that Plaintiff is acting in reliance of its statement.
g. Negligent Misrepresentation
h. Elements of Negligent Misrepresentation:
• A false representation or concealment of a material facts;
• The representations are made with negligence (carelessness)
• The representation is made to a third party with the purpose of inducing plaintiff to
act or to refrain from acting on the representation;
• Plaintiff relies on the representation;
• Plaintiff’s reliance is reasonable;
• Plaintiff suffers pecuniary losses as a result of his or her reliance on the on the false
representation or concealment of a material fact.
i. Winter v. G.P. Putnam’s Sons
ii. A publisher will not be held liable for misrepresentation when it publishes a book of
another’s work because it has no duty to investigate the accuracy of its books.
iii. Hanberry v. Hearst Corp.
iv. While a publisher may not be held liable for misrepresentations by an author (Winter
v. GP. Putnam’s Sons), an advertiser who gives a consumer a guarantee after relying
on the endorsement, purchases the product and is injured, may be held liable when a
product does not live up to that guarantee.
i. Misrepresentation to Third Persons
i. Credit Alliance Corp. v. Arthur Andersen & Co.
ii. Liability to third parties is imposed only when the defendant and the third party are
in “privity” of contract, or a relationship so close as to approach privity.
1. When will a relationship approach privity?
a. The defendant accountants must be aware that the financial reports
were to be used for a particular purpose or purposes;
b. The defendant accountants must be aware that a “known” party or
parties was/were intended to rely;
c. There must be some conduct on the part of the accountants linking
them to the party or parties (plaintiffs) (which is evidence of the
accountant’s understanding of that party or parties’ reliance).
2. Citizens State Bank v. Timm, Schmidt & Co.
3. Any tortfeasor is fully liable for the foreseeable consequences of his or her
actions, except as those consequences are limited by public policy.
a. Public Policy Factors:
i. Remoteness (the injury is to remote from the negligence);
ii. Proportionally (the injury is too wholly out of proportion to
the culpability of the negligent tortfeasor);
iii. The injury is to highly extraordinary;
iv. Recovery would place too difficult a burden on the
tortfeasor;
v. Recovery might open the door for fraudulent claims;
vi. Recovery might open the door for indefinite liability.
iii. Ultramares Corp. v. Touche (Requires Privity of Contract)
iv. Negligence or blindness, even when not equivalent to fraud, is none the less evidence
to sustain an inference of fraud if the negligence is gross.
j. Reliance
k. Element of Reliance:
i. The plaintiff must rely on the false representation or concealment of a material fact in
order to sue for misrepresentation.
 ii. The plaintiff’s reliance must be reasonable (e.g., justified)
iii. Williams v. Rank & Son Buick, Inc. (Obvious False Statements – Lack of
Inspection)
iv. Courts will refuse to grant relief for one claiming to have been misled by another’s
statements who blindly acts in disregard of knowledge of their falsity or with such
opportunity that by the exercise of ordinary observation, he or she would have
known. As such, one cannot close his eyes to what is obviously discoverable.
l. Defenses to Reliance:
i. No Misrepresentation for an Opinion
ii. The expression of an opinion cannot constitute fraud because an opinion is too
indefinite to be relied upon. As such, these types of statements are not fraudulent in
law because they do not ordinarily deceive or mislead.
iii. No Misrepresentation for Future Predictions
iv. A plaintiff is not justified in placing reliance upon representations of things that will
take place in the future since it is unjustifiable to rely on representation that are based
on future.
v. No Misrepresentation for “Trade Talk” Opinions:
vi. “Puffing” or “trade talk” cannot be the basis for an action for fraud. It is a form of
opinion. Therefore, a person is not justified in relying on puffing or “trade talk”
m. Damages (Due to Deceit or Fraud)
i. Hinkle v. Rockville Motor Co., Inc.
ii. In fraud and deceit cases, the plaintiff may recover either the benefit of his bargain or
his out-of-pocket losses.
1. For a misrepresentation action, the plaintiff must suffer pecuniary damages
as a result of his or her reasonable reliance on a misrepresentation by the
defendant.
2. For fraudulent misrepresentation, a majority of states will allow the
plaintiff to recover the “benefit of his bargain.”
a. This is designed to compensate the plaintiff as though the
transaction had been carried out as represented.
3. Other states have restricted the plaintiff’s recovery to his or her “out of
pocket” losses
iii. Calculation of Damages:
1. Benefit of the Bargain Rule
a. Recovery (R) = Value of the Good as represented (VGR) minus the
Value of the Good at the time of Sale (VGS)
b. R = VGR – VGS
2. Out-of-Pocket Rule
a. Recovery (R) = Price Paid (PP) minus the Value of the Good (VGS)
at the time of sale
b. R = PP – VGS
E. Defamation (Libel and Slander, collectively, CANNOT DEFAME A DEAD PERSON)
• A communication that tends to damage the plaintiff’s “reputation” more or less in the popular sense
(e.g., to diminish the respect, good will, confidence or esteem in which the plaintiff is held in the eyes
of others, or to excite adverse or unpleasant feelings about the plaintiff)
• Protected Interest: The defamation tort is designed to provide protection against injury to your
reputation and good name
o Element/Test:
▪ a false statement;
▪ “of and concerning” the plaintiff;
▪ a publication of the false statement;
▪ injury to reputation
 ▪ For example, plaintiff suffers a loss of esteem in the eyes of another, or the false
statement about the plaintiff deters third persons from associating or dealing with the
plaintiff.
a. Libel
• Libel is caused by a written statement, and also includes things communicated by sense
of sight
• Proof of Damages: Libel does not require special damages to be actionable. Defamatory
communications often do not produce pecuniary loss, and it is often impossible to prove
when it does exist.
i. Grant v. Reader's Digest Ass’n:
ii. It is not necessary that the majority of people would find an article to be damaging to
Plaintiff’s reputation so long as some people would reasonably find in damaging.
iii. As long as someone who hears the statement loses respect or esteem for the plaintiff,
then there will be injury to the plaintiff, even if they are members of the “wrong-
thinking” group (e.g. “politically incorrect,” or “non-law abiding” group).
iv. Neiman-Marcus v. Lait (Group too Large  No Claim for Libel, No Identifiable
Plaintiff)
v. Where the group or class libeled is large, generally, no one will be able to sue. This is
because a general condemnation could not reasonably be regarded as referring to
each individual or any particular individual within the group.
vi. On the other hand, where the group or class libeled is small, and each and every
member of the group class is referred to, then any individual member can sue
1. Exception: Even if the group is large, a member of the group may have a
cause of action for defamation if he/she can demonstrate that some
circumstance (facts) points to him or her as the person defamed.
vii. Bindrim v. Mitchell
viii. The test is whether a reasonable person, reading the book, would understand that the
fictional character was, in actual fact, the plaintiff acting as described. It is not
important that all readers be able to identify the statement as being about the
plaintiff. All that is necessary is that one person can identify the statement as being
about the plaintiff.
b. Pleading Defamation in a Complaint:
• Elements:
o Colloquium: The plaintiff will have to plead in the complaint, a formal
allegation that the words were spoken of and concerning the plaintiff when the
plaintiff is not identified in the language of the statement. For example, “he/she
burned down his/her own barn.”
o Inducement: The inducement will have to plead “extrinsic facts” in the
complaint when the defendant’s statement, on its face, is non-defamatory
▪ Extrinsic Facts: The plaintiff has $200,000 insurance policy on the
property. The plaintiff has attempted to sell the property for several
years but to no avail. A barn fire occurs a few months ago but the cause
is still unknown.
o Innuendo: The plaintiff should include in the complaint, a paragraph that
explains the particular defamatory meaning of the words stated
o Special Damages: e.g. in slander actions (necessary to prove)
c. Slander
• Slander is caused by an oral statement, also include things communicated by the sense
of hearing.
• Not actionable without showing damages.
• Proof of Damages: For a slander claim, it is necessary to prove “special damages” (i.e.
pecuniary loss), unless the words spoken come within one of the four classes of what is
called slander per se.
 i. Terwilliger v. Wands
1. If the false and disparaging statement made about a plaintiff is slander, then
the plaintiff must allege and prove that he or she has suffered an injury due
to the disparaging word.
2. Specifically, the plaintiff must demonstrate that he or she suffered a “special
damage” as a result of the injury to his or her reputation. There must be a
nexus between the disparaging words and the injury suffered by the plaintiff
as a result of the attack on his or her reputation.
ii. Publication:
iii. The plaintiff must show that the defamation was “published”. Publication is a term of
art meaning “seen or heard by someone other than the plaintiff”.
iv. Rule for Publication:
1. To maintain a defamation cause, publication of the defamatory statement
must occur to someone other than the person defamed. Therefore, to be
actionable, the defamatory speech must be communicated to someone other
than the plaintiff. Additionally, the person hearing a slander must understand
the meaning of the language.
v. Ogden v. Association of the United States Army
vi. At Common Law:
1. Every sale or delivery of libelous matter was a new publication, therefore, a
new cause of action accrued on each occasion. Thus, each sale or delivery of
a copy of the offending material gave rise to a new and separate cause of
action
vii. The “Single Publication” Rule (American Rule):
1. The publication of a book, periodical, or newspaper containing defamatory
matter gives rise to only one cause of action for libel, which accrues at the
time of the original publication, and the statute of limitation runs from that
date.
d. Libel Per Se
• At common law, libels are treated as “per se,” which means this claim is actionable
without a showing of injury to reputation; there is a presumed injury to reputation.
i. Belli v. Orlando Daily Newspapers, Inc. (Jury Determines Whether the Statement
Was Libelous)
1. If the meaning of an article is capable of two interpretations, one being
defamatory and the other not, it is for the jury to determine the meaning of
the article based on all of the evidence.
2. In a libel action, the court determines whether a communication is capable of
bearing a particular meaning, and whether that meaning is defamatory. The
jury determines whether a communication, capable of a defamatory
meaning, was so understood by its recipient.
ii. Judge-Jury Allocation:
iii. It is up to the court to determine whether the statement has at least one possible,
reasonable, meaning that is defamatory.
iv. If the court decides that it does, it is then up to the jury to decide whether at least one
recipient took this interpretation (the words would be understood by others as being
defamatory).
e. Libel Per Quod
• The term is used when a libel (defamatory statement in writing) is not defamatory on its
face and required the reader to be aware of unstated or extrinsic facts in order to
appreciate the defamatory meaning.
f. Slander Per Se
• At common law, a slander requires that the plaintiff demonstrate special damages
(monetary losses as result of injury to his/her reputation).
 • Four types of slander are actionable without proof of special damages under the common
law. These are:
o (i) imputations of a major crime;
o (ii) loathsome disease;
o (iii) affecting one’s business trade, profession, or office;
o (iv) serious sexual misconduct.
• Note: “Per se” means that the statement is actionable without having to show special
damages. Injury to reputation is implied and presumed.
g. Defense to Defamation:
i. The Truth (Affirmative Defense to Defamation Claim)
ii. Kilian v. Doubleday & Co., Inc.
iii. “Truth” is an affirmative defense to a defamation action. As such, in order to support
the defense of truth, the defendant only has to prove that the statements made about
the plaintiff are “substantially” true.
1. At common law, the plaintiff is not required to provide evidence of
damages for slander per se.
h. Types of Damages (for Both Libel and Slander)
i. Nominal Damages → no proof needed
ii. General Damages:
1. Presumed → no proof needed
2. Proven → requires evidence
iii. Special Damages → out-of-pocket pecuniary damages caused by damage to
reputation
1. Must be plead specifically and with particularity and proof
2. Must flow directly from injury to reputation caused by defamation, not from
the emotional effects of the defamation
iv. Punitive Damages → if ill will or malice
F. Public Officials (First Amendment Protection for Public Officials)
• First Amendment Factors:
o Plaintiff’s Status: Is the plaintiff a public official or a public figure?
o Defendant’s Status: Is the defendant a member of the media?
o Defamatory Speech: Does the speech complained about concern a matter of public
concern?
a. Actual Malice
• “Actual Malice” can be demonstrated by showing that the statement about the plaintiff
was made with: (a) knowledge that it was false; or (b) with reckless disregard of whether
it was false or not
i. New York Times Co. v. Sullivan
ii. If a plaintiff is a public official or is running for public office, he or she can recover
damages for defamation only by proving with clear and convincing evidence the
falsity of the defamatory statements and the presence of actual malice in the speaker.
1. The policy behind this rule is to foster uninhibited, robust and wide-open
debate on public issues.
iii. St. Amant v. Thompson
iv. To constitute reckless disregard for the truth in a defamation claim brought by a
public official, there must be evidence that the speaker entertained serious doubts as
to the truth of his statement.
1. “Actual Malice” can be demonstrated by showing that the statement about
the plaintiff was made with:
a. (a) knowledge that it was false; or
b. (b) with reckless disregard of whether it was false or not
 2. “Reckless Disregard”:
a. Reckless conduct is not measured by whether a reasonably prudent
man would have published or would have investigated before
publishing
b. There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication
c. They must have seriously doubted the truth, but published anyway
3. “Serious Doubts”:
a. Serious doubts has been defined as publishing a defamatory
statement with a “high degree of awareness of probable falsity”
v. This test requires public officials bringing a defamation lawsuit to show that the
statement in question is made with actual “malice,” that is, with knowledge that the
statement was false or with reckless disregard for whether it was false or not.
vi. Harte-Hanks Communications, Inc. v. Connaughton
vii. In a defamation claim brought by a public official, if the defendant deliberately
decides not to ascertain available information on the truthfulness of its statement, that
is sufficient to constitute actual malice. Here, the standard is that the plaintiff must
show by clear and convincing evidence that the defendant acted with “reckless
disregard” for its truth (had serious doubts about the legitimacy of the claims).
G. Public Figures
• In New York Times Co. Sullivan the status of the plaintiff as a public official was critical to the
publication receiving additional First Amendment protections. This has now been extended to
include public figures.
a. Universal Public Figures:
i. Individuals who have achieved pervasive fame or notoriety so as to become a public
figure for most purposes and in most contexts
ii. Examples: Renown families such as the Kennedy’s, the Royal Family, U.S.
Presidents, celebrities, sport athletes, etc.
b. Limited Public Figures
i. Voluntary Public Figures: Individuals who have voluntarily injected themselves
into a public controversy in order to influence the resolution of the issue involved
ii. Steps to Determine a Limited Public Figure:
1. In deciding whether a person may be a limited public figure, it is necessary
first to inquire whether a “public controversy” exists.
2. Once a public controversy is identified, the issue then becomes whether the
plaintiff’s role was such that he is a limited public figure in the context of
that controversy
iii. Involuntary Public Figure: Those persons who have been thrust into a
controversy/public eye though no purposeful action of his or her own (e.g., thrown
into a controversy due to a relationship with another). The person must have been
recognized as a “central figure” during the debate over the public controversy.
1. Examples: Mel Gibson’s wife in their divorce action; Richard Jewell
arrested for the 1996 Olympic bombing in Atlanta, Georgia
c. Milkovich v. Lorain Journal Co.
d. The First Amendment does not automatically protect opinions from defamation laws. As
such, under the First Amendment, a newspaper can be sued for libel, when a plaintiff can
show that statements published were an attack on reputation. Therefore, an opinion can form
the basis of a defamation case.
e. Under the common law, a cause of action for defamation requires only that a plaintiff
establish an unprivileged publication of false and defamatory matter.
f. Defenses Under the Common Law
i. Truth
1. At common law, the burden of establishing truth was on the defendant. The
defendant only has to establish “substantial truth” to prevent/prohibit a
defamation claim.
ii. Opinion
1. Opinion can be a defense to a defamation action but may also be actionable
under defamation law.
iii. Privileges
iv. The common law developed a number of defenses in order to protect the interest of
free speech and political and public debate.
1. Fair Comment Doctrine
a. The defense of fair comment has now been constitutionalized
b. At common law, this is an affirmative defense that affords
immunity for the honest expression of opinion on matters of public
interest.
2. Absolute Privilege
a. The distinction between these two classes is that an “absolute”
privilege applies regardless of whether the defendant was activated
solely by malice or other bad motives.
b. Examples:
i. Judges, lawyers, parties, and witnesses are all absolutely
privileged in what they say during the course of
judicial/legislative proceedings
ii. Government officials (federal and states)
iii. Husband and wife
3. Conditional/Qualified Privilege
a. “Conditional/Qualified” privilege applies only where the defendant
acts for certain well-defined purposes. The distinction is that the
conditional privileges will be lost if the defendant is acting
primarily from malice, or for some other purpose not protected by
the privilege.
b. As such, a defendant cannot claim a qualified or conditional
privilege if he or she knows that his/her defamatory statement is
false or does not believe it to be true.
c. However, a conditional privilege is defeasible. It can be lost if not
exercised properly (e.g., the communication is outside the purpose
of the privilege)
4. Factors to consider in determining if the speaker has abused the
privilege:
a. The defendant’s reasonable belief in the truth of the statement;
b. The excessive nature of the language used;
c. Whether the disclosure was unsolicited;
d. Whether the communication was made in a proper manner and only
to proper parties
5. Sindorf v. Jacron Sales Co., Inc. (Employer-Employer Have Conditional
Privilege when Discussing Former-New Employees)
a. A defamatory publication is conditionally privileged when the
occasion shows that the communicating party and the recipient have
a mutual interest in the subject matter or some duty with respect
there to. As such, an employer will generally have a conditional
privilege to give information about his ex-employee to a new
employer.
 b. While a conditional privilege may exist, when two parties are
discussing another party, they have in common, and there is truth to
the discussion, the question of whether the communication was
made out of malice is still a proper question for a jury.
H. Private Plaintiffs
I. Private Figures: If the plaintiff is neither a public official nor a public figure, there is no
constitutional requirement that he has to prove knowledge of truth or reckless disregard of the
truth.
a. Gertz v. Robert Welch, Inc. (The Fault Standard in Gertz is Negligence)
b. Since private individuals have fewer effective opportunities for rebuttal than do public
officials and public figures, they are more vulnerable to injury from defamation. Thus, state
interest in compensating injury to the reputation of private individuals is greater than for
public officials and public figures, and States may constitutionally allow private individuals
to recover damages for defamation on the basis of any standard of care except liability
without fault.
c. Private Speech
i. No First Amendment Protection, If Not a Matter of Public Concern
ii. Rule:
1. The First Amendment protects speech “on matters of public concern,” not
speech related to purely private concerns. As such, distributors of
information, such as credit agencies, do not enjoy First Amendment
protections as defendants in libel lawsuits. Therefore, the rule of Gertz does
not apply where the false and defamatory statements involved do not involve
matters of public concern.
2. In other words, a court may permit recovery of presumed and punitive
damages in a defamation case absent a showing of actual malice when the
defamatory statements do not involve matters of public concern.
d. Proving Falsity
• Under the First Amendment, instead of defendant having to prove truth, plaintiff has to
prove falsity.
i. Philadelphia Newspapers, Inc. v. Hepps
ii. When a media defendant publishes a matter of public concern, a private plaintiff may
only recover damages by showing that the statement at issue is false and the
defendant is at fault. Here, the plaintiff bears the burden of showing falsity, as well as
fault, before recovering damages.
J. Remedies (Damages)
K. Damages: A successful defamation plaintiff may, of course, recover compensatory damages.
L. These can include not only items of pecuniary loss (e.g., lost business), but also compensation for
humiliation, lost friendship, illness, etc.
a. Damages
i. Compensatory and punitive damages
ii. Prime remedy for defamation
iii. General damages for libel and slander per se
iv. For publication of public concern its compensation for actual injury unless plaintiff
establishes actual malice
v. Special damages must be proven in case of slander if not per se
vi. Actual injury may include impairment of reputation, personal humiliation, mental
anguish and suffering
b. Mitigation of Damages
i. Provocation by the plaintiff is generally regarded as admissible for the purposes of
mitigating punitive damages
ii. Where the defamatory statement would not be believed, the resultant damages are
reduced
 c. The “Libel-Proof” Plaintiff
i. This is rare
ii. Plaintiffs possess such an atrocious reputation that they are in effect, immune from
libel in a given suit
d. Plaintiff’s Bad Reputation
i. Defendant may introduce evidence to show that plaintiff’s reputation is generally
bad. This may result in a reduction of recovery.
e. Nominal Damages
i. Even a plaintiff who has suffered no direct loss will, in order to “clear her name,”
often have a powerful incentive to try to establish defamation, and to recover
nominal damages
ii. Gertz, insofar as it allows a plaintiff to recover only “actual” damages if she does not
establish reckless disregard of the truth, may mean that nominal damages are no
longer awardable upon a showing of mere negligence.
f. Declaratory Relief
i. Nominal damages brought primarily for vindication purposes
ii. Judicial determination that statement is false
g. Self-help
i. First remedy of any victim of defamation is self-help
ii. Using available opportunities to contradict the lie or correct the error and thereby to
minimize its adverse impact
iii. Not liable to the original defamer unless he abuses the privilege by making irrelevant
charges or charges of his own in reckless disregard of their truth or falsity
h. Right of Response Statutes
i. Several states have passed statutes requiring a public communication medium to give
a right of response to a person who claims that he has been defamed
ii. Person claiming to have been defamed may also go to the person publishing the
defamation, explain that there has been a mistake and request a correction or
retraction
i. Retraction Statutes
i. Statutes that require news media to provide a public retraction of defamatory speech
published in its news medians
1. Note: the retraction must be unequivocal and not partial
ii. Defendant publishes a retraction of a defamatory statement within a certain period of
time, and it bars recovery by plaintiff
1. A retraction to be effective must be unequivocal and not partial or hesitant
and hypothetical
j. Injunctive Relief
i. Non-monetary relief-requesting to court to order the defendant to stop publishing
defamatory information about the plaintiff
1. Prior restraint of a publication runs afoul of 1st amendment
2. Injunctive relief is appropriate once there is a determination that the
statement is defamatory
3. Not generally a remedy for defamation
4. Suitable when it has been formally determined in court that a statement is
both defamatory and false, and defendant continues to publish it
M. Privacy
• Invasion of Privacy
• Invasion of privacy protects right of a private individual to be left alone and protected from
unauthorized publicity in essentially private affairs
a. Four types of privacy torts:
i. Misappropriation of another’s name or likeness
ii. Intrusion of another’s solitude (unreasonable intrusion upon seclusion of another)
 iii. Public disclosure of private facts (undue publicity given to another’s private life –
offensive facts)
1. The publicizing of even truthful details of the plaintiff’s private life may be
an invasion of his privacy. The tort is usually referred to as “public
disclosure of private facts.”
a. Example: Defendant, a frustrated creditor of plaintiff’s, puts up a
notice in the window of his store stating that plaintiff owes him
money and has not paid him. This is an invasion of P’s privacy.
2. Elements of the tort: The Second Restatement defines the tort this way:
defendant is liable for the publication of “private facts” when “the matter
publicized is of a kind that:
a. (a) would be highly offensive to a reasonable person, and
b. (b) is not of legitimate concern to the public.”
3. This definition thus has four elements:
a. the defendant must have publicized certain facts relating to the
plaintiff;
b. the publicized facts must be private ones, that is, ones not already
on the public record;
c. the facts being publicized must be ones the disclosure of which
would be “highly offensive” to a reasonable person in plaintiff’s
position; and
d. the facts must not be of “legitimate concern to the public” (the so-
called “newsworthiness” test).
iv. False light (publicity that places another in a false light)
b. Misappropriation
i. Misappropriation of another’s name or likeness
1. The plaintiff can sue if her name or picture has been appropriated by the
defendant for his own financial benefit. The action is said to be for
“misappropriation of identity” or “right of publicity.”
c. Joe Dickerson & Associates, LLC v. Dittmar (Appropriation)
i. Misappropriation tort happens when one appropriates another’s image to his own use
or benefit and is subject to liability to the other for the invasion of his privacy. Here,
the misappropriation of one’s name or likeness does not require evidence that a
plaintiff’s name has value.
1. In order to succeed on a claim for invasion of privacy by appropriation
of one’s name or likeness, a plaintiff must prove:
2. the defendant used the plaintiff’s name or likeness;
3. the use of the plaintiff’s name or likeness was for the defendant’s own
purposes or benefit;
4. the plaintiff suffered harm; and
5. the defendant caused the harm incurred
ii. As such, the publication of an individual’s name and likeness in a truthful article
regarding the individual’s felony conviction is privileged speech under the First
Amendment as newsworthy.
d. Intrusion
i. Intrusion of another’s solitude (unreasonable intrusion upon seclusion of another)
1. Intrusion: The plaintiff may sue if his solitude is intruded upon, and this
intrusion would be “highly offensive to a reasonable person.” Rest. 2d,
§652B.
2. This “intrusion upon seclusion” branch of invasion of privacy is triggered
only where a private place is invaded. Thus, if the defendant takes the
plaintiff’s picture in a public place, this will normally not be enough.
e. Sanders v. American Broadcasting Companies, Inc., et al. (Intrusion)
i. The use of wiretaps and other kinds of electronic surveillance equipment will
generally constitute an intrusion into a “private place.” Here, there is a reasonable
expectation of limited privacy at work that someone will not tape your conversation
without your knowledge.
ii. The cause of action for intrusion tort, has two elements:
1. intrusion into a private place, conversation or matter,
2. in a manner highly offensive to a reasonable person.
iii. The plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff. The
tort is proven only if the plaintiff had an objectively reasonable expectation of
seclusion or solitude in the place, conversation or data source.
f. False Light/Falsehood
i. False light (publicity that places another in a false light)
1. The plaintiff can sue if he is placed before the public eye in a false light, and
this false light would be highly offensive to a reasonable person.
g. Cantrell v. Forest City Publishing Co.
i. To maintain a false light claim, the plaintiff must show that the defendant published
falsehoods knowingly or recklessly. Here, there were “calculated falsehoods,” which
are sufficient to establish the knowing element of a false light claim.