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Torts 2

Torts 2 – Fischer – Fall 2009 Outline


3 prong test

  1. 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
  1. Reasonable expectation of privacy
  • If you put your self out there, might be harder to prove reasonable expectation
  1. 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


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


  • 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


  • 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


  • 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



  • 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


  • 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 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 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


  • 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


  • 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


  • 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


  • 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


  1. Are your oral or written publication in good faith – no malice
  2. 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


  • 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


  • 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



  • 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


  • 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


  • 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



  • 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


  • 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
  • Procedure: trial ct for d and p appeals –appellate ct affirms – Aleve wins


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


  • 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


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


  • 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
  • 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


– Trade Libel/  Injurious Falsehood

– Defaming Perishable Foods?

– Securities Fraud/ PSLRA

– Accountants/ Auditors

– Accountants/ Auditors

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