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

51. “False light” not recognized by the Lake court – Could be recognized in another suit – Facts not present

52. Intrusion upon seclusion Intentional intrusion – Physical or otherwise Solitude or seclusion of another – Private affairs or concerns Highly offensive to a reasonable person – Context – Maybe not in a public place No publicity required Consent is a defense

53. Publication of a private fact Giving publicity – Widespread – Public at large Matter concerning the private life of another – Not a matter of public record Highly offensive to a reasonable person Not a matter of legitimate public concern Consent is a defense

54. Misappropriation of likeness or name Use of anther’s identity – Name – Image Defendant’s advantage – Financial – Own purposes No consent Injury

55. Misappropriation v. publicity Often confused Publicity is right of famous people Identity has some economic value No action unless identity taken for financial purposes

56. False Light

57. Giving publicity to a matter Puts a person in a false light Highly offensive to a reasonable person – Harm to reputation not required Actor knew matter was false, or acted in reckless disregard of falsity Photo editing Tort not recognized in Minnesota yet