1 1) DEFAMATION a) Elements i) Defamatory statement of factstatement that tends to adversely affect reputation of ii) Concerning P (1) Defamaotry on its

s face (a) No extrinsic evidence showing (i) Understood as applying to P (b) Refer to group of which P is a member of iii) Publishedcommunication to a third person (1) Intenitonally or neglignently (2) Communicated to a thrid party (3) D lable as republisher iv) Damages, maybe (if must prove damages, limited to economic injury) b) Examples i) ii) iii) iv) c) Mere name calling is not defamatory Must be an alleged factual statement that reflects poorly on the honesty and integrity of Opinion can be defamatory if reasonably interpreted as fact Cannot defame dead persons

Libel i) Defamation embodied in permanent form (i.e., writing, videotape) ii) need not show actual damages but can if he wants to

d) Slander i) Spoken defamation ii) Slander per se: need not show damages if statement was about: (1) Business/professional activities of (2) Crime of moral turpitude (fraudulent; dishonest) committed by (3) Unchastity of a woman (4) Loathsome disease held by (leprosy; venereal disease) iii) All other cases are not per se slander and must prove actual damages e) Constititional Principles i) Public or private figure ii) Public or private concern iii) Appropriate Standard (1) Public v media D (2) Public figure v non-media D (3) Private Figure v media D (4) Private figure v Non-mediate D Defenses to Defamation i) Consent (1) Express or implied (a) Lack of capacity (b) Fraud, duress, mistake (2) Exceed the scope of consent ii) Truth (s burden) iii) Absolute Privilege (Identity of Speaker)

f)

2 (1) Communication between spouses (2) Executive, legislative, and judicial branch employees including lawyers and witnesses iv) Qualified Privilege (When and Why Statement was Made) (1) Fair and accurate report of public proceeding (2) Matter of public interst Fair comment on a matter of public interest (3) Empowered to protect that interst (4) speaks in a socially useful context (letters of recommendation; references; etc.) (5) Defamatory material is relevant to context (6) makes statement with good faith belief in its truth even though a false statement 2) PRIVACY TORTS a) Appropriation i) uses s name or picture without permission for commercial advantage (e.g., Tiger Woods) ii) Unauthorized use of Ps identity (1) Commercial Advantage iii) Exception: Newsworthiness b) Intrusion i) Invasion by of s seclusion in a way objectionable to average person (e.g., eavesdropping) ii) must have an expectation of privacy iii) No trespass requirement c) False Light Widespread dissemination of major misrepresentation concerning s character, history, or beliefs that would be objectionable to an average person ii) Damages are emotional and psychological loss iii) Non-defamatory falsehood can be false light (e.g., Jewish guy portrayed as devout catholic) iv) Careless or negligent act enough i) d) Disclosure i) ii) iii) iv) v) Widespread dissemination of confidential information about that is objectionable to average person Unreasonable public disclose of private facts E.g., medical records, transcripts, etc. Exception: Newsworthiness Dual Life Fact Pattern: operates in two public spheres of activity; information obtained from one sphere to the other is not disclosure (e.g., gay pride guy openly gay at rallies; has not come out at work; secretary sees him at gay rally and tells other workers; secretary not liable for disclosure)

e)

Defenses i) Consent ii) Defamation privileges (see above) apply to false light and disclosure

3) STRICT LIABILITY: Safety Precautions are Irrelevant a) Animals i) Domesticated Animals (dog bites) (1) No strict liability (2) Exception: has knowledge of vicious propensities ii) Trespassing Cattle and Wild Animals (1) Strict Liability

3 b) Ultra-hazardous/Abnormally Dangerous Activities i) ii) iii) iv) Activity that cannot be made safe (cant be elimited by exercise of due care) Severe risk of harm Uncommon in area where conducted Fact patterns (1) Major explosives (2) Toxic chemicals (3) Nuclear energy v) Actual and proximate cause vi) Damages vii) Defenses c) Nuisance (1) Inconsistent land use (2) Liability if s activities interfere with s enjoyment of s land to an unreasonable degree ii) Private Nuisance (1) Volitional Act (2) Intend to cause a substnatial and unreasonable intereference (3) Cause the harm (4) P sufferes substntial and unreasonable intereference with the use and enjoyment of his land iii) Public Nuisance (1) Violitional Act (2) Intend to unreasonably interefere (health, safety, property of the public) (3) Representaive of public (a) Damages different in kind those infliced on the public d) Products Liability i) Merchant: Proper Defendant (1) Casual seller excluded (2) Service provider is not merchant of goods used to provide services (3) Commercial lessors are included (4) is a merchant whether or not dealt directly with merchant (i.e., everybody in the commercial chain from mfg. to sale is on the hook)

ii) Defective Product (1) Mfg. Defect (production anomaly) (a) Product is different from other products and is more dangerous than consumers could expect (b) E.g., one in a million (2) Design Defect (a) Alternative way to physically construct the product (b) Alternative is safer (c) Alternative is cost-effective (d) Alternative is practical (does not impair the intended purpose of the product; i.e., butchers knife can be made dull, but it wont serve its purpose) (3) Warnings (a) Clear, prominent, understandable to the class of anticipated customer (i.e., bilingual etc.) (b) No warning = defective product iii) Breach of Warranty (1) Express Warranty Nature or quality of product (2) Implied warranty of: (1) fitness or (2) merchantibaility iv) Actual and Proximate Cause v) Damages

4 vi) Defect existed when the product left the hands of the vii) makes foreseeable use of the product even if non-intended use viii) Defenses: comparative negligence most prominent 4) VICARIOUS LIABILITY i) Elements: ii) Look for active tortfeasor and passive party and their relationship iii) Employer and employee (1) Employer liable for employees torts done in the scope of employment (2) Rule of Detour = liability for employees minor detours on the job (3) Rule of Frolic = no liability for employees major detours on the job (4) Generally, intentional torts are outside the scope of employment unless (1) force required for the job (bouncer); force furthers the employers purpose; (3) collecting practices are part of job iv) Hiring Party and Independent Contractor (1) No vicarious liability (2) Exception: Occupier of land vicariously liable if IC hurts an invitee v) Automobile Owner and Authorized Driver (1) No vicarious liability (2) Exception: use furthers the owners purpose (i.e., running errands for the ownerGo get my fuckin laundry, punk) vi) Parents and Children: No vicarious liability at all for childrens torts b) Multiple Defendants i) General Rule: Out-of-Pocket can recover from co- pursuant to percentage of fault found by the jury ii) Indemnity Exception: Out-of-pocket can recover 100% from co-defendants if (1) Out-of-pocket was vicariously liable only (2) Products Liability Case: any party other than mfg. can get indemnity from mfg. c) Immunities i) Governmental (1) Immune when engaging in traditional governmental activities involving discretionary decisionmaking or (2) Duty owed to the public as a whole and not just to the at the time (3) Can be liable if (a) Routine (b) Non-discretionary or (c) Proprietary

ii) Employers Immunity in Workers Compensation Cases (1) Boss is immune from negligence suit; workers compensation is exclusive remedy for on-the-job accidents (2) Co-workers are not immune 5) Economic Torts a) Deceit i) Material misrepresentaion of fact ii) Intend that the P rely iii) Scienter iv) Justifiably rely v) Actual and proximate cause of damages suffered vi) Damages b) Negligent Misrepresentation

5 i) Material misrepresentation of fact ii) Failure to exercise due care iii) Justifiably rely iv) Actual and proximate cause of damages suffered v) Damages c) Interference with K i) Inducing breach of K ii) Volitional Act iii) Intend to induce a third person to breach the K iv) Cause the harm v) Breach of an existing K vi) Defense d) Interference with prospective Econ Advantage i) Volitional Act ii) Intende to induce a third person to refrain from entering into K iii) Cause the harm iv) Suffer Ham v) Defenses