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

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Tort Law You always wondered about

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Page 1: Tort Law You always wondered about. What is a tort?

Tort Law

You always wondered about

Page 2: Tort Law You always wondered about. What is a tort?

What is a tort?

Page 3: 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

Page 4: Tort Law You always wondered about. What is a tort?

Torts are not always crimes

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

Page 5: Tort Law You always wondered about. What is a tort?

Three types of torts

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

Page 6: Tort Law You always wondered about. What is a tort?

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

Page 7: Tort Law You always wondered about. What is a tort?

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

Page 8: Tort Law You always wondered about. What is a tort?

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

Page 9: Tort Law You always wondered about. What is a tort?

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

Page 10: Tort Law You always wondered about. What is a tort?

Defamation

Page 11: Tort Law You always wondered about. What is a tort?

LibelReferred to statements put in writing

Page 12: Tort Law You always wondered about. What is a tort?

Slander

Referred to spoken words

Page 13: Tort Law You always wondered about. What is a tort?

• Libel and slander are now considered one action.

• Technical differences between the two– Special damages for slander

• Distinction less important

Page 14: Tort Law You always wondered about. What is a tort?

What are the elements of defamation?

Page 15: Tort Law You always wondered about. What is a tort?

To prove defamation:

• False statement

Page 16: Tort Law You always wondered about. What is a tort?

To prove defamation:

• False statement• Fact

Page 17: Tort Law You always wondered about. What is a tort?

To prove defamation:

• False statement• Fact• Communicated to a third party

Page 18: Tort Law You always wondered about. What is a tort?

To prove defamation:

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

Page 19: Tort Law You always wondered about. What is a tort?

Which means what, exactly?

Page 20: Tort Law You always wondered about. What is a tort?

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

Page 21: Tort Law You always wondered about. What is a tort?

Fact

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

• Implication

Page 22: Tort Law You always wondered about. What is a tort?

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

Page 23: Tort Law You always wondered about. What is a tort?

Tends to lower reputation in community

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

Page 24: Tort Law You always wondered about. What is a tort?

Public figure? Or not?

Page 25: Tort Law You always wondered about. What is a tort?

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

Page 26: Tort Law You always wondered about. What is a tort?

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

Page 27: Tort Law You always wondered about. What is a tort?

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

Page 28: Tort Law You always wondered about. What is a tort?

Defenses to Defamation Actions

Page 29: Tort Law You always wondered about. What is a tort?

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

Page 30: Tort Law You always wondered about. What is a tort?

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

Page 31: Tort Law You always wondered about. What is a tort?

Opinion

• Distinct from fact• Only facts are actionable

Page 32: Tort Law You always wondered about. What is a tort?

Privileges

Page 33: Tort Law You always wondered about. What is a tort?

Privileges allow a person to avoid liability for a defamatory statement

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

Page 34: Tort Law You always wondered about. What is a tort?

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

• Only if not abused– Actual malice

Page 35: Tort Law You always wondered about. What is a tort?

Damages

Page 36: Tort Law You always wondered about. What is a tort?

Nominal damages

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

done• Used to prove a point, or vindicate reputation

Page 37: Tort Law You always wondered about. What is a tort?

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

Page 38: Tort Law You always wondered about. What is a tort?

Special damages

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

Page 39: Tort Law You always wondered about. What is a tort?

Punitive damages

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

Page 40: Tort Law You always wondered about. What is a tort?

The Tort of “Outrage”

Page 41: Tort Law You always wondered about. What is a tort?

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

Page 42: Tort Law You always wondered about. What is a tort?

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

Page 43: Tort Law You always wondered about. What is a tort?

Prima Facie Tort

Page 44: Tort Law You always wondered about. What is a tort?

Prima facie tort

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

Page 45: Tort Law You always wondered about. What is a tort?

Interference with contract

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

Page 46: Tort Law You always wondered about. What is a tort?

Privacy Torts

Page 47: Tort Law You always wondered about. What is a tort?

• 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

Page 48: Tort Law You always wondered about. What is a tort?

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

Page 49: Tort Law You always wondered about. What is a tort?

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

Page 50: Tort Law You always wondered about. What is a tort?

Court recognized three of the privacy torts

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

Page 51: Tort Law You always wondered about. What is a tort?

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

Page 52: Tort Law You always wondered about. What is a tort?

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

Page 53: Tort Law You always wondered about. What is a tort?

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

Page 54: Tort Law You always wondered about. What is a tort?

Misappropriation of likeness or name

• Use of anther’s identity– Name– Image

• Defendant’s advantage– Financial– Own purposes

• No consent• Injury

Page 55: Tort Law You always wondered about. What is a tort?

Misappropriation v. publicity

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

purposes

Page 56: Tort Law You always wondered about. What is a tort?

False Light

Page 57: Tort Law You always wondered about. What is a tort?

• 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