tort law you always wondered about. what is a tort?

Tort Law

You always wondered about

What is a tort?

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

Torts are not always crimes

• Some overlap• Violation of a criminal law is not always a tort• Vice-versa

Three types of torts

Categorized according to the state of mind of the person who does the tort (the “tortfeasor”)

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

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

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

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

Defamation

LibelReferred to statements put in writing

Slander

Referred to spoken words

• Libel and slander are now considered one action.

• Technical differences between the two– Special damages for slander

• Distinction less important

What are the elements of defamation?

To prove defamation:

• False statement

To prove defamation:

• False statement• Fact

To prove defamation:

• False statement• Fact• Communicated to a third party

To prove defamation:

• False statement• Fact• Communicated to a third party• Tends to lower reputation in the community

Which means what, exactly?

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

Fact

• Not name-calling• Not opinion– Mixed statements divided into fact and opinion– Opinions supported by “facts” are treated as fact

• Implication

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

Tends to lower reputation in community

• Ordinary meaning of statements• Understood as defamatory• Lower person in esteem of community• Innuendo • Implication• Must be credible

Public figure? Or not?

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

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

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

Defenses to Defamation Actions

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

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

Opinion

• Distinct from fact• Only facts are actionable

Privileges

Privileges allow a person to avoid liability for a defamatory statement

• Absolute privileges– Government proceedings– Congress– Evidentiary privileges– Consent– Rebuttal– Reply to prior defamation

• Qualified privileges– Statements about public officials– Employee references– Reporting official proceedings– Public records– Fair comment and criticism

• Only if not abused– Actual malice

Damages

Nominal damages

• One dollar• Defamation was proven, but no real harm was

done• Used to prove a point, or vindicate reputation

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

Special damages

• Plead and prove• Not presumed to exist• Actual harm that came from this defamation– Lost income– Lost business opportunity– Medical expenses

Punitive damages

• Willful indifference to rights of others• Recoverable even if no special damages• Meant to deter and punish• Reserved for especially egregious cases

The Tort of “Outrage”

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

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

Prima Facie Tort

Prima facie tort

• Unjustified• Intentional infliction of harm• Results in damages• Would otherwise be lawful

Interference with contract

• Contract exists• Defendant knew of contract• Defendant interferes with contract• Plaintiff was damaged

Privacy Torts

• 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

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

A Wal-Mart employee kept prints of the shower pictures, and was responsible for starting the rumors.

Court recognized three of the privacy torts

• Intrusion upon seclusion• Publication of private facts• Misappropriation of likeness

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

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

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

Misappropriation of likeness or name

• Use of anther’s identity– Name– Image

• Defendant’s advantage– Financial– Own purposes

• No consent• Injury

Misappropriation v. publicity

• Often confused• Publicity is right of famous people• Identity has some economic value• No action unless identity taken for financial

purposes

False Light

• 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