Torts 2 – Fischer – Fall 2009 Outline
INVASION OF PRIVACY
3 prong test
- Legally protected privacy interest
- Autonomy – my stuff – political views, sexuality, fears
- Informational – what is on your credit card or drivers license – data
- This is an objective approach
- Reasonable expectation of privacy
- If you put your self out there, might be harder to prove reasonable expectation
- Serious violation
- look at the narrative aspect of it – porn star v. mormon
- If p can show all 3 prongs then he will win
- unless – d can show a countervailing interest then d can win
- but if p comes back and says you could have been less invasive way to fulfill your interest – p will win again
CA privacy: all ppl are by nature free and independent and have inalienable rts – among these are enjoying and defending life and liberty, acquiring, possessing and protecting prop and pursuing and obtaining safety, happiness and privacy
NCAA v. Hill
- NCAA wants to test athletes –
- Encourage healthy athletes, good role models, fair athletes
- Athletes argue that this is an invasion of privacy
- Ct states that there is a countervailing interest – so it is up to p to show alternative
- Procedure: hill wins appellate ct – sc reversed remanding back to trial ct
Physical Privacy
Feminist Womans Health Center
- Requiring p to use cervical in front of women – she didn’t want to – got fired
- Even first and third requirements are fulfilled – Issue whether there was reasonable expectation of privacy – p had signed a contract – no reason to expect privacy
- Can fire someone unless against public policy – bc of race, age, etc
- Procedure: seeking writ of mandate – asking appellate ct to dismiss lower cts order of summary judgment
Employer’s Computer, Use at Home
TGB Insurance Services
- P worked for co – had stock options – right before they were to pay out to him – co decided to look into his computer – saw some porn and fired him – p claims computer is privacy
- Reasonable expectation is the issue here – p had signed a k stating that the comp will be only used for business reasons – idea that they relinquished their privacy rights when they signed that contract
- Countervailing interest – d want s to protect its system
- Procedure: motion to compel – tgb wins the rt to discovery
Personal Information, Medical Records
Colleen M
- Woman using x’s credit card – gets in vetro fertilization – when x called to see what charge was for – fertility store gave him the info – p sues claiming invasion of privacy
- P loses bc despite privacy issue, a person paying for healthcare is permitted to deman info for what treat hes paying for
- Statute here overrides the common law in ncaa
- Procedure: Trial ct found summary judgment for clinic – p appeals
Investigations
Kelly v State Personnel Board
- Criminal told cops of criminalist provided her w/ drugs – investigation begins – investigators ask p for 5 names – he refused claiming invasion of rt of privacy and freedom of association
- Ct said that info requested was related to the investigation
- This was an administrative matter – someone in govt can ask to have hearing to determine why fired – this is what p did – appealed all the way then went through the ct system
- P argues there was an abuse of discretion – ct says there is a big public concern – cops can ask for this info
- Didn’t got through ncaa steps bc this case was before ncaa
- Procedure: superior ct denied petition for writ ordering reinstatement to criminalist position – p appeals
Intrusion – Phone Call Monitoring
Kearney v ssb
- Calls from GA to CA – GA law only one party needed to consent to have calls recorded but CA both parties had to consent
- Ct looks at CAs interested and what would be violated v GA
- Balancing test – CA has an interest ot protect their laws – their citizens
- Ct finds for CA – they have more to lose
- But ct doesn’t subject GA to past damages of recordings – they just have to inform when all CA when recording from now on
- Procedure: superior ct and appellate ct sustained demurrer – Kearney appealed to sc
Home Addresses
Planned Parenthood
- Antiabortion activist – lawsuit arises – discovery includes giving names and contact info of abortion activities
- It is important to give names and info for witnesses
- But here, ct realized that there is risk to give these names – they have been cases where people have been killed who were pro-abortion – this was a compelling state purpose but ct reasons that using pseudonyms is a fine alternative
- Procedure: lower ct granted the discovery order to disclose names – p appeals and higher ct issues writ of mandate to vacate the discovery order
Rape Victim Identity
Cox v Cohn
- P sues news reporter for disclosing daughters name – she was a rape and murder victim who was 17
- Ct ruled news reporter got the name from the indictment – it was a public record – media has a rt to publish it
- Ct saying our trials are public – we don’t wna self-censorship – if news reporters worried about what to publish – then they will be hesistant
- Procedure: lower ct found for p – ct of appeals remanded and USSC reverse lower ct
RIGHT OF PUBLICITY
- celebrity’s rt to the exclusive use of his or her name and likeness
- use one’s name for financial gain w/o his consent
- rt of publicity survive after death
Appropriation of Name or Likeness and Identity
MLK v American Heritage Products
- D selling bust of MLK and selling it – cente files suit to cease and desists
- Ct finds that this violates rt of publicity – above
- Even if mlk didn’t make money off his image while he was alive – it doesn’t matter – his image when to his heirs
- Procedure: p files for an injunction – lower ct granted/denied in part – p appeals
Appropriate of Commercial Identity
Vana White
- Samsung uses wheel of fortune type board and robot resembling vana w/o her consent
- Focuses on appropriation of ps name or likeness
- Case was thrown out but court here ruled that there can be a rt of publicity issue – have to leave this to the jury to decide
- Procedure: District ct granted summary judgment for Samsung and vana appeals
FALSE LIGHT
- someone depicts you in a way that is so outrageous that causes humiliation – depiction is false
- The person puts you in that image knows or should have known it is false (actual malice)
- For punitive damages, have to show actual malice
People Bank v Globe
- Mitchell ran a newsstand – globe ran a story about a grandma being pregnant and put ps picture on the story
- P wins on false light – d trying to argue that story is not reasonably believable – main question whether there was actual malice
- Ct finds for p – awards damages – there was false light
- Procedure: Mitchell sues globe – fury found for Mitchell re invasion of privacy and ieed – globe appeals
Douglass v Hustler
- Hustler published nude photos of p – p sues and wins
- P claims those photos cast her in a false light – claims she will pose for playboy but not for hustler
- Ct says she has a claim for false light – playboy difft than hustler
- D argues that he already posed nude for playboy – no proof whether these photos in hustler shouldn’t have been published – no proof of actual malice
- Procedure: p won – higher ct ruled that have to show actual malice- case remanded
Cantrell v. Forest City Publishing Co
- D does an article on p and her family – her husband died in the bridge collapse
- P wasn’t even there when d did interviews – but article showed she was there
- Ct rules this is false light bc it was false – but no punitive damages bc no actual malice
- D appeals saying if there is no malice – the second prong of false light is not proven so p doenst have a case
- Supreme ct says that all p has to prove is that d should have known the story was false – p proves this and d wins
- Ct distinguishes this kind of malice from ny times malice – all she has to prove was reckless or wanton disregard for ps rts
- Due to vicarious liability, newspaper held liable
- Procedure: trial ct for p – d appeals and wins – p appeals to ussc and p wins
DAMAGES
- Actual damages = what the case cost – paying for the suffer, the cost of a contract, the actual damages
- Consequential damages
- Punitive Damages = teach d a lesson
- Exemplary damages
DEFAMATION
- private citizens don’t so they need more protection
- Slander – defamation when someone says something
- Libel – defamation when someone writes something about you
Defamation – Public Figures
NY Times v Sullivan
- Civil rts organization put story in NY times – discussing racism and cops behavior – Sullivan sues NY Times
- Ct comes up with actual malice = you published and knew or should have known it was false – reckless disregard for the truth
- If public figure – have to prove actual malice to win for defamation
- Private person has to prove falsehood
- Ct says Sullivan a public figure – didn’t prove actual malice – NY times wins
- Ct discusses importance of freedom of speech
- Procedure: trial ct and appellate ct rule for p – sc reverses saying no actual malice
Defamation – Actual Malice/ Parody
Hustler v Falwell
- Falwell a pastor – gives an interview to Hustler – Hustler makes that interview about the firs time Falwell had sex with his mom – p sues for defamation/libel
- Ct finds this publication to be a parody
- P won in trial ct for iied – hustler appealed saying have to use ny times actual malice standard for iied cases bc falwell is a public figure
- Ussc agreed w/ hustler – parody didn’t make false statements claiming it to be true – it was exactly that a parody – if rule for falwell here then all political cartoonist would have major damages everytime they published
- Rule in favor of hustler – protect you if you are doing something you know is false but doing out of humor – rt to parody
Defamation – Job References
Hassan v Mercy
- P a doc applies to work at another hospital – current hospital he words for – d gave a bad referral and a convo which was bad for p
- P sues for defamation and ct grants ds summary judgment bc said that information they shared w/ the other hospital was privileged
- Hospital protected bc had a qualified privilege – can give bad referrals
Safe Harbor
- This is where you can slander, defame and libel and get away w/ it
- Legislative Privilege – when you speak at legislative hearing, you can say anything you want – and no one can be sued
- Litigation Immunity – wont be sued for what you say in a lawsuit, your testimony
Privileges
- Absolute privilege = excludes liability for a publication notwithstanding that it is made w/ actual malice
- Qualified privilege = doesn’t protect d who acted maliciously
- if you say something that is not true in recommendation – then you can be liable and sued
- Associational Privilege
- Also known as common interest privilege
- If you don’t act w/ malice/hatred and if you are acting in good faith and you don’t spread it around to ppl – then you will probably win
- But if you act in bad faith – then you are liable
- Ex – someone gets fired and you have to testify – you say bad things about the person but don’t have bad faith and not in malice – you cant be held liable
Private Person and Public Matter
Gertz v Welch
- Cop kills youth – family hires Gertz in a civil suit – American Opinion publishes article claiming Gertz to be a communist – Gertz sues for libel
- D arguing that bc Gertz is a public figure – has to prove malice
- Ct disagrees w/ d – saying p might be famous in the political field – if you defame him w/in that association – then p needs to prove malice
- Bc in main realm he is a private person – all he needs to prove is that the article was false – p wins – but have to prove actual malice for punitive damages bc there is a public concern
- Procedure: p won in trial and d appeals
Private Person and Private Matter – Credit Information
Dun and Bradstreet v Greenmoss Builders
- Credit report includes false statements
- Bc there is no public concern here – don’t have to prove ny times malice for punitive damages
- Procedure: trial ct awards punitive damages, appellate ct moves for new judgment – sc reversed the grant of a new trial and ruled for p
Westmoreland v CBS
- P used to be a general in Vietnam – sues documentary portraying him to be part of a conspiracy to suppress intelligence
- Cbs moves for summary judgment – saying they did research for their documentary
- Ct rules that just bc they did research doesn’t mean they didn’t intent to defame
- Even though media is highly protected – they don’t have a free pass to publish whatever they want
- Ct rules that there is enough evidence to go to trial
- Westmoreland a public figure – has to prove actual malice
Libel Proof = your reputation is so terrible that you cant win a defamation claim – rep so badly tarnished that he cant further be injured by any statement
Cerasani
- Cerasani part of the mob – claims donni brasco film defamed him
- Ct ruled that he cerasani has such a bad reputation that he is libel proof
- D files motion to dismiss – ct grants it
Entertained Serious Doubt
St. Amant v Thompson
- St amant running for office – gives a speech and discloses info re Thompson that he learned from albin – corruption w/ union – turns out info re Thompson is false
- Thompson sues st amant
- Ct rules that in order to determine whether someone acted w/ reckless disregard – have to ask whether he entertained serious doubt
- Seems to be bonus to morons – can claim you never had serious doubt
- Ussc says bc st amant never entertained any doubts – he isnot liable
- Procedure: lowe grant granted for p – ct of appeals reversed saying no actual malice
Newspaper Retarction Privilege – Slander/Libel
Mercado v Hoefler
- Real estate – Mercado working for hoefler selling homes – Mercado tries to sell home to Japanese man – hoefler sells Mercado bc doesn’t want to sell to minors – when public learns of the racism – heffler gives interview about how Mercado was a bad worker that’s why he got fired – Mercado sues for libel
- Ct rules that bc he is a private person – have to prove only falsity
- Law in CA – if want to get punitive damages for libel – you have to formally ask for a retraction and if they don’t retract then can win punitive damages – but if newspaper does retract then don’t get punitive damages
- Bc Mercado never asked for a retraction – seems as though he wouldn’t win – but then his attorney says its slander – the interview is slander and then that interview was written
- Mercado wins for slander and gets punitive damages
Neutral reporter Privilege
Khawar
- Khawar stands next to kennedy’s podium the day of the assassination – take pics and globe runs article that it was khawar that killed kennedy
- P sues a book that was previously published and the globe
- Ct rejects glob’s neutral reporter privilege – all we said was that there was a book that reported this – we just reiterated the book
- P here is an individual private person – everyone knows sirhan killed kennedy
- Ct rejects neutral reporter privilege – says maybe we will consider it for a public figure but not for a private individual
- P wins trial ct, appellate ct and supreme ct
- P gets actual and punitive damages
Resuscitating Old Facts
Gates v Discovery Communications
- P charged w/ accessory of murder 13 yrs ago – did his time and moved on w/ his life- 13 yrs later documentary on tv discussed the murder case
- P files suit against tv station for invasion of privacy and defamation
- Ct says that in Briscoe – used to be the case when something is so old and irrelevant to your life and someone publishes about it – it would be libel
- Now ct overrules this – saying it is not libel
- Truth is complete defense to an allegation of defamation
- Also – info received here were from public records
ANTI-SLAPP
- Strategic lawsuits against public participation
- Cts wants to deter ppl “slapping” others w/ lawsuits just so they can rid of their money – have no money left to defend themselvs
- Don’t want to deter ppl to publicly participate – should not be intimdated w/ lawsuits
Sipple
- P known political activist – has strong stance against dv – but then article comes out about info that he was violent against his ex-wives – p sues for defamation
- Procedure: trial and appellate ct dismiss ps complaint
- Lower cts – info gotten from public records and p a public figure so has to prove actual malice
- D claiming that all p is doing is slapping us w/ a lawsuit
- Ct rules dv is a public concern – article discussing a public issue so this is part of anti-slapp – also that d is a public figure
Internet Republication Privilege
Barett
- Broad immunity to protect those who use the internet to publish info that originated from another source
- Distributors only liable if they knew the articles they posted had defamatory statements
- P here a doc who files compliant against website saying bad things about doc – claiming libel
- Ct rules that website didn’t write the article – they cant be liable for posting it
- Trying to protect free internet speech and encourage self-regulation
- Website not held liable
- Procedure: lower ct dismissed case – appellate ct says can be liable for defamation – sc says no defamation for distributors
Single Publication Rule – Discovery Rule
Shivley
- P testified at OJ case – then book written about her saying she is a felon probationer
- P sues publisher for libel but sol has passed (for defamation sol 1 yr)
- Single publication rule – sol starts when book published – sol doesn’t restate unless new edition
- Discovery Rule – ppl you want to sue hid facts from you that are critical for you to know in order to sue – can argue discovery rule and sol will start from date you discovered the defamation – very rare
- Estoppel theory – don’t want to give p many opportunities to be able to sue yrs after the case – want d to be ready and no constant litigation
- ct rules p cant use discovery rule here – she cant bring the suit
- Procedure: p sues and ct grants demurrers saying sol passed – ct of appeals reverses lower ct and sc finds for d, agrees w/ trial court
ASSOCIATION PRIVILEGE
- Are your oral or written publication in good faith – no malice
- Is there excessive distribution or excessive publication
Common Interest Privilege
Garziano v EI Du Pont
- P sexually harasses matheny and co fires p
- Plant issues bulletin about sexual harassment – doesn’t include ps name but apparent about p – p files suit for slander
- D argues Associate Privilege – Qualified privilege – protecting communication btwn employers and employees
- common interest privilege = Ppl in the same association – when ppl have a common interest in something, sometimes you are allowed to share info w/ them about someone
- ct looks at the 2 prong test – their communication to employees were in good faith and weren’t excessive
MISREPRESENTATION/ FRAUD
- Concealment = passive fraud
- Nondisclosure = misleading me
- Fraud/deceive
- Mal practice = professionals who fail to meet a reasonable standard
- Recklessness – know or should have known your actions would cause harm
- Negligence – didn’t meet the standard that a reasonable professional would meet
Opinions
- did someone rely on them to the detriment
- good faith opinions v bad faith opinions –lose on all bad faith opinions
- person advances an opinion in which he does not honestly or cannot reasonbly believe, then an action for affirmative fraud
Suing the Government
- have to give claim notice – write letter w/in 100 days of incident telling them you are thinking of suing them
- if you don’t put them on notice, then you cant sue the govt
Concealment/Non-Disclosure
Cooper
- case w/ bad condos
- as realtor, have to disclose everything you know or should have known about the house
- buyer also has to do some of his own hw
- charges realtor, architect, inspectors
Williams
- p bought car thinking it had ac – claims he relied on the ad – but cant be true bc ad was published after he bought the car
- ct said wasn’t fraud – basically he lied so he lost
- but p could have had a case – how can you tell the difference btwn the ac and the vent – he thought it was ac so he bought the car
- same rules here re fraud and disclosing all the info
- p still has to have due diligence
Federalizing State Fraud Claims
Schmuck
- p sells used cars – would take back the miles then sell the cars
- this is a state crime but bc feds are trying to make it a fed crime – they say its mail fraud – the dmv apps he mailed were part of the scheme so its mail fraud
- if feds can show that critical part of crime dealt w/ the mail fraud – then can federalize the case
- pros proved that fraud isn’t complete until you sell the car and cant sell it until you mail that app to the dmv – pros won
Falsifying Resumes
- MIT admission director lied on her resume
- Adoption clinic claiming they are nurses and a law clinic
- Cook/food channel guy
Endorsements
Hansberry
- P buys shoes – wears some – falls bc slippery due to shoes – she sues
- She bought shoes off magazine that had seal of approval
- negligent misrepresentation – you endorse something that you don’t know you’re lying about but you are lying about it
- ct making up a new statute – neg misresp – you have to try the product if you are going to be endorsing it
- ct rules magazine liable – hey endorsed a prod –foreseeable ppl will be relying on the seal
- Procedure – judgment for dismissal – p appeals
Deceptive Advertising
Lavie
- Aleve case – gets ulcer when takes aleve – claims he was misled by advertising
- Least sophisticated consumer standard – have to see whether it fooled the least sophisticated consumer in ca
- This is what the atty general wants to use
- Ct uses reasonable consumer standard – would reasonable consumer be fooled by the advertising
- Exception to reasonable consumer standard
- Certain subgroups who are unusually susceptible
- Young children and elderly
- Certain subgroups who are unusually susceptible
- Exception to reasonable consumer standard
- Procedure: trial ct for d and p appeals –appellate ct affirms – Aleve wins
Funerals/Morticians
Wilson v. Houston
- Subsection of tort law dealing w/ cemeteries and burials
- Drives to bank instead of funeral – wont take place unless he gets paid – crazy driver
- Particular area of law w/ emotions, certain rules, etc.
- Torts here: false imprisonment, unprofessional conduct, breach of duty, implied covenant to provide appropriate/dignified burial service, breach of k
Expressions of Fact v. Opinion
Bose
- Article written about speakers that says it hovers about the room – bose sues
- Cooperation here is a person – corp can be defamed – usually public ppl
- Bose has to prove: article was false but writer knew it was false, acted w/ reckless disregard for the truth, entertained serious doubts
- Opinion – if you say an opinion that you yourself don’t believe – not protected
- Appellate cts cant revisit the facts – but exception on first am cases –
- 1st am v. fed rule 52 a
- Ct looks at the facts and decides:
- 1. bose is a public person
- 2. has to prove ny times malice
- 3. clear and convincing evidence of liability
- 4. not convinced of the facts that p knew or should know his review was false or misleading
- Procedure – lowest ct for bose – appellate ct for d and ussc for d
INTERFERENCE W/ BUSINESS
Defaming Perishable Foods
Texas Beef
- Oprah show w/ 3 experts on mad cow disease
- Perishable foods – something bad said about them – no one buys ex tomatoes for 2 mths – the whole industry can go out of business
- Can defame a whole industry here – industry of perishable foods
- Oprah’s defense – I had both sides – one saying meat was bad an other saying it wasn’t
- For defamation re perishable foods – need to prove:
- 1. person disseminates info relating to a perishable food product in public
- 2. person knows info is false
- 3. info states/implies that perishable food isn’t safe for consumption by the public
- need clear and convincing evidence re the elements above
- Ct ruled don’t have clear and convincing evidence that Oprah aimed to destroy the industry
Injunction re Defamation
Balboa
- Bar case – p had hotel near bar – would harass customers and employees
- Cant stop someone from defamation – have to let them defame then bring lawsuit
- Here, woman found liable for defamation so judge issues a restraining order – not allowing her to say certain things
- D is challenging the injunction
- Ct rules that injunction in general after defamation cases is ok – but in this case – the injunction is too broad – have to be more specific
Securities Fraud – PSLRA
- More cases coming about how ppl losing stocks and simply filing law suits
- Codes that protect cos from this
- Private Securities Litigation Reform Act – PSLRA
- If you want to claim fraud when you lose money from stocks – you have to prove:
- 1. you have to plead fraud w/ specificity
- Who defrauded – what exactly was said – when and where was it said
- 2. whatever was said – that fraud was material to your loss
- But for the fraud, I would have never bought the shares
- If you buy starbucks stock bc you like coffee – wont win on fraud – you were going to buy it anyway
- But for the fraud, I would have never bought the shares
- 3. reliance
- Relied on what was said
- 4. fraud was done w/ scienter/knowledge
- Person who defrauded knew they were fooling/defrauding you
- 5. fraud was proximate cause of your loss
Blockbuster Case
- Moving from vhs to dvd – predicted it would transition fine
- But ended up losing lots of money
- Ppl start to sue – claiming Blockbuster misrepresented them – they raise PSLRA defense – Blockbuster wins
- Ct wanted specifics – wants p to prove what Blockbuster did defraded them
- Idea that cos should all use forward looking statements – caution
- par at end of press release – cant know what is going to happen tomorrow – this is what we predict but not sure – covering your ass
- Blockbuster argued that they used forward looking statements – they win
STOPPED AT WEEK 11 LECTURE
STOPPED AT BILY CASE – WEEK 10 READING
– Trade Libel/ Injurious Falsehood
– Defaming Perishable Foods?
– Securities Fraud/ PSLRA
– Accountants/ Auditors
– Accountants/ Auditors