More products digital (pdf, epub, mobi) instant download maybe you interests ...
Dynamic Business Law 3rd Edition Kubasek Test Bank
https://testbankfan.com/product/dynamic-business-law-3rd-editionkubasek-test-bank/
Dynamic Business Law The Essentials 3rd Edition Kubasek Solutions Manual
https://testbankfan.com/product/dynamic-business-law-theessentials-3rd-edition-kubasek-solutions-manual/
Dynamic Business Law 4th Edition Kubasek Solutions Manual
https://testbankfan.com/product/dynamic-business-law-4th-editionkubasek-solutions-manual/
Dynamic Business Law The Essentials 3rd Edition Kubasek Test Bank
https://testbankfan.com/product/dynamic-business-law-theessentials-3rd-edition-kubasek-test-bank/
Dynamic Business Law The Essentials 4th Edition Kubasek Solutions Manual
https://testbankfan.com/product/dynamic-business-law-theessentials-4th-edition-kubasek-solutions-manual/
Dynamic Business Law 4th Edition Kubasek Test Bank
https://testbankfan.com/product/dynamic-business-law-4th-editionkubasek-test-bank/
Dynamic Business Law The Essentials 4th Edition Kubasek Test Bank
https://testbankfan.com/product/dynamic-business-law-theessentials-4th-edition-kubasek-test-bank/
Dynamic Business Law The Essentials 2nd Edition Kubasek Test Bank
https://testbankfan.com/product/dynamic-business-law-theessentials-2nd-edition-kubasek-test-bank/
Environmental Law 8th Edition Kubasek Test Bank
https://testbankfan.com/product/environmental-law-8th-editionkubasek-test-bank/
Chapter 8 - Tort Law
CHAPTER OVERVIEW
This chapter serves as an introduction to tort law. Your students may be most familiar with this area of the law. You might want to begin the chapter by providing a general overview of the different areas of tort law: intentional torts, negligence, and strict liability. Explain how these three areas are distinct. Next, you might wish to move into a discussion of the damages available in tort cases.
As students read about torts, ask them to find examples of the types of torts they are learning. For example,someofthestudentscould find apopularreference to assault and battery, whileothers find a reference to a recent defamation case. However, the goal is not to get your students simply to find a reference (e.g., "Britney Spears was the plaintiff in a recent defamation case."). They should apply what they learn about the tort to analyze the case. Thus, they should explain how the case would be or should be decided.
“BUT WHAT IF…” SECTIONS
1.) Recall, in the Case Opener, that Bongiovi knew Jones was contemplating going to Sullivan for treatment and, because he wanted her business, he told her negative stories about Sullivan. What if BongiovihadnoideaJones hadeverheardofSullivanand wastellingherthestoryjustasareminderthat no surgery is completely risk-free?
If Bongiovi was not telling Jones the story about Sullivan to obtain Jones as a client, but instead to only warn Jones of the risks of surgery, then Bongiovi would likely not be found to have committed an intentional tort, that is, when adefendant takes actionsintending certain consequences. Rather, Bongiovi mightbefoundliableforanegligenttortbecause, althoughintentcannotbeproved, Sullivanmaybeable to prove that Bongiovi’s behavior subjected Sullivan to an unreasonable risk of harm.
2.)Recall,in theCaseOpener, thatSullivansuedBongiovibecauseofthefalsestatement Bongiovimade. What if, instead, Sullivan had called Bongiovi and said, “If you ever tell a potential client a lie like that about me again, I will slit your throat?” Would Sullivan have committed an assault or battery? Why or why not?
Sullivanwouldnothavecommittedassaultorbattery. Toproveassault, onemustprovethatapprehension exists. However, for reasonable apprehension of harm to exist, one must be immediately in danger of harm. But ifsomeonecalled you onthetelephone and threatened to comeover and hurtyou, thisisnotan assault because there is no question of immediate bodily harm. Words without a sign of action do not usually imply immediacy. Moreover, words, in most situations, are not enough to create reasonable apprehension ofharm. Thus, Sullivan’sbehaviorwould notbe considered assault, and because there was no bodily contact, his behavior would also not be considered battery.
3.) Recall, in the Case Opener, that Jones chose not to go to Sullivan for treatment because of the story thatBongiovitoldher. WhatifJoneshadneverconsideredgoing toSullivanandhadalreadyscheduledan appointmentwithBongiovi, sothestorydidnot affectSullivan?Would slanderhaveoccurred?Ifslander had occurred, could Sullivan receive damages?
If defamation constitutes slander per se, i.e. statements so inherently harmful that general damages are presumed,thenplaintiffsneednotprovethattherewasaspecificmonetarylossduetoslander.Statements
that constitute slander per se include statement deeming another person professionally incompetent. If Bongiovi’s story is interpreted as saying that Sullivan is professionally incompetent, then slander per se would have occurred, and Sullivan could still receive damages.
4.) Recall, in the Case Opener, that Bongiovi’s false story about Sullivan hurt Sullivan’s business. But what if Bongiovi thought the story about Sullivan was actually true and was telling his friends about an interesting story in his field? Would conditional privilege be an applicable defense for Bongiovi? If the story were actually true, would Bongiovi have committed slander at all?
Under conditional privilege, a party will not be held liable for defamation unless the false statement was made with actual malice, that is, with either knowledge of its falsity or reckless disregard for its truth. BecauseSullivan’sstory isassumed to betrue, then conditionalprivilegewould bean applicabledefense for Bongiovi if he can show he never acted with actual malice. If Sullivan can prove that Bongiovi acted with actual malice, then Bongiovi would still have committed slander.
5.) A patient of the famous Mayo Clinic in Minnesota sued the clinic and a news station for not only filming her surgery but airing it on a local news channel. Subsequent to the airing, the patient sued for invasion of privacy. However, the patient had signed a form giving the clinic permission to release materialsinvolvinghersurgery, including filmsforthe purposesofreleasingimportanthealthinformation to the general public. How do you believe this release affected the outcome of the lawsuit?
Public disclosure of private facts occurs when someone publicizes a private fact about another that a reasonable person would find highly offensive. However, the individual must have not waived his or her righttoprivacy.Thus, inthecaseabove, thereleasewouldhavelikelyexcused MayoClinicfrom liability under the invasion of privacy tort.
LEARNING OBJECTIVES
After reading this chapter, students will be able to answer the following questions:
1. How are torts classified?
2. Whataresomeofthemostcommonintentionaltorts,andwhataretheelementsneededtoprovethese torts?
3. What types of damages are available in tort cases?
LECTURE NOTES WITH DEFINITIONS
In the news…
Teaching tip: For each chapter, consider asking students to relate current news items to material from the chapter.
In addition to ideas students come up with on their own, consider weaving in news stories provided by the textbook publisher. Stories are available via a McGraw-Hill DVD, and on the publisher’s web site.
For Chapter Eight, McGraw-Hill offers the following story:
“Texas Jury Finds Drug Company Guilty the Vioxx Fallout”
• What torts did the makers of Vioxx allegedly commit?
How are torts classified?
What are the most common intentional torts, and what are the elements needed to prove these torts?
• The jury award was what specific amount in damages? How do you make sense of this sum, given what you read in Chapter Eight?
• Objectives of tort law
o Providing compensation for injured parties
o Contributes to maintaining order in society by discouraging private retaliation by injured persons or their friends
o Give citizens a sense that they live in a just society
• How torts are classified
o Intentional torts - defendant takes action intending that certain consequences will occur knowing they are likely to occur.
o Negligent torts – defendant is careless to another person's detriment.
o Strict liability torts – defendant takes action that is inherently dangerous and can never be undertaken safely
Teaching tip: Gather short fact scenarios, and create a matching game for class, asking student to match specific facts with specific torts.
• Intentional torts against persons - intentional acts that harm an individual's physical or mental integrity
o Assault and Battery
▪ Assault: one person places another in fear or apprehension of an immediate, offensive bodily contact. Battery: intentional, unwanted, offensive bodily contact. Defenses available:
▪ Self-defense responding to the force of another with comparable force to defend yourself. Defense of others. Defense of property – reasonable force to defend from intruder.
o Defamation intentional publication of false statement harmful to plaintiff's reputation.
▪ Libel--defamation published in permanent form a. general damages.
▪ Slander – oral defamation.
▪ Special damages special damages- specific monetary loss resulting from defamatory statements.
▪ Slander per se – statements so inherently harmful that general damages are presumed.
Steven J. Hatfill v The New York Times Company and Nicholas Kristof (briefed below) illustrates how a plaintiff attempted to use defamation per se.
▪ Defenses to defamation: Truth – absolute defense. Privilege – affirmative defense. Absolute privilegeone can make any false statement, regardless of intent of knowledge of falsity of claim and cannot be sued for defamation. Conditional privilege- no liability unless false statement was made with actual malice. Public figure privilege- individuals in public eye are subject to grater discussion.
o Privacy torts
▪ False light publicity about a person creates an impression that is not valid.
▪ Public disclosure of private facts about person: person publicizes a private fact that a reasonable person would find highly offensive.
▪ Appropriation for commercial gain: defendant uses another person's name, likeness, voice, or other identifying characteristics without person's permission for commercial gain.
▪ Invasion of privacy: one party invades another's solitude or personal affairs when they have the right to expect privacy.
o False imprisonment intentional restraint or confinement of person against his will for an appreciable period of time. Must include physical restraint. Typically known as "shopkeeper's tort."
o Intentional infliction of emotional distress occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to the party toward whom the conduct is directed.
Aaron Olson v. CenturyLink (briefed below) considers intentional infliction of emotional distress.
o Misuse of legal procedure includes the torts of malicious prosecution, wrongful civil proceedings, and abuse of process.
• Intentional torts against property - intentional acts that harm an individual's
o Trespass to realty Elements: person intentionally: enters land of another without permission, causes an object to be placed on the land of another without the landowner's permission, stays on the land of another when the owner tells him to depart, and refuses to remove something he placed on the property that the landowner asked him to remove.
o Private nuisance person uses his property in an unreasonable manner that harms a neighbor's use and enjoyment of his property.
o Trespass to personalty person temporarily exerts control over another's personal property or interfering with the true owner's
What types of damages are available in tort cases?
Point/Counterpoint: Should punitive
right to use the property.
o Conversion defendant permanently removes the personal property from the owner's possession and control. Owner recovers damages for full value of covered item.
• Intentional torts against economic interests
o Disparagement defendant published a false statement of material fact about plaintiff's product or service that resulted in loss of sales. May be called slander of quality (if spoken) or trade libel (if in printed form).
o Intentional interference with contract Elements: contract between two parties existed, defendant knew of the existence of contract and its terms defendant intentionally took steps to cause one of the parties to breach the contract, plaintiff was injured as result of breach
o Unfair competition occurs when someone enters a business with the sole intent of driving another firm out of business.
o Fraudulent misrepresentation occurs when a party uses deceit to facilitate personal gain.
Teaching tip: Pick a newspaper story that describes a real and recent accident. Have students calculate the likely damages, assuming the plaintiff wins.
• Compensatory damages are damages designed to compensate victim for all harm caused by person who committed the tort (tortfeasor), e.g., medical bills, lost wages, property repair bills, compensation for pain and suffering.
• Nominal damages are small amounts of money given to recognize that a defendant committed a tort but no compensable damages were suffered.
• Punitive damages are damages awarded to punish the defendant.
o Generally given only when defendant's conduct is extremely outrageous.
o Purpose is to punish defendant and deter others who are similarly situated.
o Urge to limit punitive damages. Supreme Court must review trial court's decision on constitutionality of aware de novo (no longer give deference to trial court's determination that jury award was not unconstitutionally excessive)
o Virtually every state has enacted some form of tort reform law (damage caps, evidentiary standards to restrict availability, capping noneconomic damages, etc).
Clark v. Chrysler Corporation (briefed below) considers whether a specific jury verdict is constitutionally excessive.
Teaching tip: Here are some questions to help you tie the Point/Counterpoint into class discussion:
damages be more strictly limited?
• Why does the “yes” side describe tort cases as “litigation lotteries”?
• What evidence does the “no” side use to respond to the question whether the use of punitive damges is somehow problematic?
• What function do punitive damages serve, in addition to sometimes making a specific plaintiff a lottery winner?
CASE BRIEFS WITH ANSWERS TO THE QUESTIONS
Case 8-1 Steven J. Hatfill v. The New York Times Company and Nicholas Kristof, 416 F.3d 320 (4th Cir. 2005).
Case Brief
Issue:
Did Kristof’s columns defame Hatfill by imputing to him the commission of crimes of moral turpitude?
Facts:
Plaintiff, Hatfill, sued The New York Times and Nicholas Kristof after Kristof’s columns implied that Hatfill was involved in anthrax mailings in 2001.
Procedural History:
A district court dismissed Hatfill’s allegation that Kristof and The New York Times engaged in defamation per se.
Holding:
The district court erred in dismissing Count One, alleging defamation per se. Kristof’s columns, taken together, are capable of defamatory meaning under Virginia law.
Reasoning:
• A plaintiff asserting a claim of defamation per se must allege a publication of false information concerning the plaintiff that tends to defame the plaintiff’s reputation.
• One kind of statement that is actionable as defamation per se are statements that “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.”
• Kristof’s columns implied that Hatfill murdered five people who were exposed to anthrax letter. Murder would fall under the phrase “moral turpitude.”
Answers to the questions
Critical Thinking
I agree with the court’s decision. The decision promotes security American citizens know they have a remedy of a newspaper columnist implies that an individual engaged in a crime involving moral turpitude.
Ethical Decision Making
Journalists and newspapers are affected by this decision. The decision inspires them to be
more careful. Individual citizens are affected too, but positively.
Case 8-2 Aaron Olson, Appellant, v. CenturyLink, Respondent, Court of Appeals of Minnesota, No. A12–0884 (Unpublished Opinion), February 4, 2013.
Case Brief
Issue:
Is CenturyLink liable in tort for intentional infliction of emotional distress?
Facts:
Aaron Olson contracted to receive telephone service from respondent CenturyLink and also applied for reduced-rate service that CenturyLink provides. CenturyLink did not apply the reduced rates to Olson’s bill, but instead instructed Olson to fill a TAP application. Olson called CenturyLink several times regarding the application and resent the application, but CenturyLink claimed to have never received the application. Eventually, Century Link disconnected Olson’s services without informing him, and when Olson called to resolve the dispute, he was repeatedly hung up on.
Procedural History:
In April 2012, Olson filed suit, claiming that CenturyLink committed intentional infliction of emotional distress. Because he did not have the money for filing fees, Olson also filed a petition to proceed in forma pauperis (IFP).The district court denied Olson’s petition, determining that the action was frivolous because the claims had no basis in law. Olson appealed.
Holding:
Affirmed in favor of defendant CenturyLink.
Reasoning:
• CenturyLink’s acts of failing to process Olson’s application, disconnecting his telephone service, and hanging up on him during telephone conversations are not so atrocious that they pass the boundaries of decency. The defendant’s conduct fails to satisfy the elements for the tort for intentional infliction of emotional distress.
• Olson’s claims lack a reasonable basis in law. As a consequence, the district court did not abuse its discretion by determining that his action is frivolous and denying his IFP petition.
• Answers to the questions
Critical Thinking
The threshold to establish that prove intentional infliction of emotional distress is very high according to case law. To prove that this tort occurred, a plaintiff must establish the defendant’s conduct (1) was extreme and outrageous, (2) was intentional or reckless, (3) caused emotional distress, and (4) the distress was severe. . . . Extreme and outrageous conduct is behavior “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community. . . . Furthermore, the emotional distress must be so severe “that no reasonable man could be expected to endure it.” For Olsen to have prevailed, CenturyLink would have had to engage in behavior that was far beyond a
simple annoyance, as held in Langeslag v. KYMN Inc., and that no reasonable person would be expected to tolerate.
Ethical Decision Making
The value of individualism is being upheld by this decision. Individualism refers to the belief that people are fundamentally in control over their decisions. Because the court ruled against Olsen, it is likely that the court expects Olsen to be able to deal with the way that CenturyLink treated him, for example, by simply switching companies. However, it is also possible that Olsen in fact did feel severe emotional distress because of circumstances outside of his control, for example, maybe Olsen could hardly afford telephone services because he lived in poverty and could not afford to switch to another company, despite CenturyLink’s frequently ignoring him. If a court assumes that humans are primarily in control over their own circumstances, then the latter scenario would likely not be a reasonable basis for the tort in question because Olsen could easily avoid emotional distress by seeking the services of another company. If a court, however, believes that people are primarily influenced by circumstances over which they have little control, then one might be more likely to view that a reasonable person would find it emotionally stressful to be ignored by a company with which they have no choice but to conduct business.
Case 8-3 Clark v. Chrysler Corporation, 2006 U.S. App. Lexis 2435. Case Brief
Issue:
Was the jury verdict constitutionally excessive?
Facts:
A jury awarded Mrs. Clark punitive damages in a case against Chrysler, alleging that a pick-up truck was defectively and negligently designed. The jury awarded Mrs. Clark $471,258.26 in compensatory Damages (but cut that in half due to comparative negligence Mr. Clark was 50% at fault) and $3 million in punitive damages.
Procedural History:
After several appeals on a variety of matters, the Circuit Court of Appeals is going to decide whether the jury verdict is constitutionally excessive.
Holding:
The jury verdict is constitutionally excessive, based upon the Gore guideposts.
Reasoning:
• The three important considerations here are:
o The degree of reprehensibility of the defendant’s misconduct. Here, the court considered the physical harm suffered by Mr. Clark, which was serious. However, Chrysler was not indifferent, malicious, or deceitful here there was an accident.
o The disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award. Here, a 2:1 ratio between the compensatory and
punitive damage awards is appropriate because of the lack of reprehensibility factors.
o The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Based upon the evidence, a 2:1 ratio is appropriate. The punitive damages award is $471,258.26
Answers to the questions
Critical Thinking
The most ambiguous words from the Gore guideposts are “reprehensibility,” “potential harm suffered,” and “comparable cases.” Here, the fact that there was an accident, and no malicious or indifferent behavior by Chrysler was significant.
Ethical Decision Making
The judge here is guided by a sense of justice or fairness, e.g., giving to the Clarks what they are due. Chrysler should be punished, but only a certain amount. This remedy acknowledges the extent of Mr. Clark’s injuries.
TEACHING SKILLS: ADDING A REAL CASE FOR APPLICATION PURPOSES
The “Teaching Skills” and “Teaching Ideas” sections for Chapter Eight highlight using facts from a case not in the textbook as the basis for a variety of activities both in and out of the classroom. Plus, facts from real cases make excellent test questions. For this chapter, Zeran v. Diamond Broadcasting, Inc (next page, so professors can copy it for class) fits all criteria for a good case that can serve multiple uses.
Tips for selecting a case that can be used for multiple purposes. Pick a case that:
TEACHING IDEAS
Connecting to the Core
Teaching Basics
Advanced Teaching
(1) will interest students.
(2) where the facts are not overly complicated.
(3) allowsstudentsto exploremorethanonetheory in the chapter.
Assign a paper that asks students: What specific managerial policies, if implemented by Diamond Broadcasting/KRXO would have prevented Zeran from suing?
Ask students: Which torts are most likely to yield recoveryforZeran? Bespecific. Hint: Hesuedfor three separate torts this chapter explains.
Ask students: Assuming Zeran sued for: (1) defamation, (2) false light invasion of privacy, and (3) intentional infliction of emotional distress, why did he lose under each theory? Be specific.
ZERAN V. DIAMOND BROADCASTING, INC.*
DiamondBroadcastingownsKRXO,aclassic-rockradiostationinOklahomaCity.OnApril29,1995,an AOLmembersentane-mailcontaining acopyoftheoriginal,April25thpostingtooneofKRXO'son-air personalities, Mark ("Shannon") Fullerton, who, together with Ron ("Spinozi") Benton, hosted the "Shannon & Spinozi Show," a drive-time morning show, which usually consisted of light-hearted commentary, humor, and games. In the aftermath of the bombing, and continuing for a period of four to six weeks thereafter, however, the show had become a forum for discussion of the bombing and expression of the emotions it aroused. Its tone was serious and somber. Shannon first saw the e-mail either late in the evening on the day it was sent or early the next morning, May 1, 1995. Shannon was an AOL member and had given his screen name out over the air to enable his listeners to send messages to him. He did not know the person who sent the posting.
Before beginning his shift on May 1, Shannon unsuccessfully attempted to e-mail Ken ZZO3 through AOL,butreceived apop-up messageinforminghimthattheaddresseewasnotaknownAOLmember.He did not attempt to call the telephone number on the posting, purportedly because it was before business hours. Shannon then went on air, discussing the posting, reading the slogans, and reading Zeran's telephone number. Shannon urged his listeners to call Ken ZZ03 and tell Ken ZZ03 what they thought of himforoffering suchproducts.On thatday,Zeran receivedapproximately80angry,obscenity-lacedcalls from the Oklahoma City area, including death threats. Zeran described it as the worst day of his life and, shortly thereafter, involved law enforcement. The anxiety Zeran feltasaresult eventually led him to visit hisfamilyphysician,who treatedZeranbyprescribing ananti-anxietydrug. Althoughmostofthecallers hung up before Zeran had an opportunity to speak, Zeran was able to learn that the posting had been mentioned on KRXO. Zeran called KRXO and asked that KRXO broadcast a retraction, which it did.
Zeran does not know of anyone who knows him by the name Kenneth Zeran who saw the AOL postings, heard the broadcast, or associated him with "Ken Z" or the phone number on the AOL postings.
A BEST PRACTICES
TEACHING
TIPCommunicate
High Expectations.
This teaching tip is based on another of David Royse’s seven principles of “good teaching.” David Royse advises teachers that if they expect more from students, then students will be more likely to put more effort into the work they turn in. The goal from this tip is to become self-aware of one’s expectations as a teacher. While one does not want to expect too little, one does also not want to make a course impossibly difficult. Thus, the goal is to find a reasonable medium. That is, according to Royse, one should have “goals that can be attained as long as individual learners stretch and work hard, going beyond what they already know” (12). A few things a teacher can do to help put this principle into action are:
1.) Communicate your expectations very clearly orally and in writing at the beginning of your course.
2.) Explain the penalties for turning work in late.
3.) Recommend supplemental reading.
4.) Identify excellent work by students; display this work to class if possible to show what excellent work looks like.
* Facts for this case come nearly verbatim from Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (2000).
5.) Encourage students to set high academic goals (for example, publishing a research paper or encouraging those who ought to consider graduate school.)
References:
David Royse, Teaching Tips for College and University Instructors: A Practical Guide (2001).
ANSWERS TO QUESTIONS AND PROBLEMS
1. There are three types of damages available in tort cases: compensatory, nominal, and punitive. Compensatory damages are those awarded to the victim to compensate them for damages caused by the tortfeasor. These damages tend to include things such as medical bills, lost wages, property repairbills, andcompensationforpain andsuffering.Lawyers'fees,however,arenotrecoverableby compensatorydamages.Nominaldamagesaresmallamountsawardedwhenitisrecognizedthatthe defendant committed a tort, but damages are not compensable. Nominal damages can also be awardedforfailingtoproveactualdamages.Punitivedamagesareintendedtopunishdefendantsfor theiroutrageousconduct.Punitivedamagesarealsomeanttodeterthedefendantandotherswhoare in a similar situation as the defendant. The usual trend is the worse the action, and the more wealth thedefendanthas,thehighertheamount to be paid by the defendant. The defendants are required to pay large sums to punish them and attempt to hurt them to prevent these actions in the future.
2. Many groups see punitive damages as necessary because they are a good method for encouraging manufacturers to produce the safest products possible. Those that disagree with this say that compensatory damages are enough to punish manufacturers. These people say that punitive damages, instead of producing safe products, are more likely to discourage innovation because manufacturers will be afraid of producing a defective product and then will be forced to pay millions of dollars in law suits.
3. Five intentional torts are: assault and battery, defamation, privacy torts, false imprisonment, and intentional infliction of emotional distress: (1) Assault occurs when one person puts another in fear of apprehension of an immediate, offensive bodily contact. Both apprehension and immediacy are necessary to establishing if something is assault. Battery is an intentional, unwanted,offensivebodily contact. Intentionmustbeshowntoprovebattery. (2)Defamationisthe intentional communication to a third party of a false statement that is harmful to the plaintiff's reputation. Defamation is most often libel, if printed or permanently recorded, or slander, if spoken. To prove defamation, one must demonstrate that the comment caused a monetary loss or thatthecomment was so inherently harmful that general damages are assumed. Things that fall under the latter are called slander per se and include comments that: claim that the plaintiff has a loathsome, communicable disease, i.e. a venereal disease or leprosy; claims that the plaintiff is guilty of a crime worthyofimprisonment;isincompetentintheirprofession;orclaimthatawoman hasengagedin sexualmisconduct.Also,defamationmustbeproventobeastatementoffact,notan opinion. (3) Privacy torts come in four kinds: false light, public disclosure of private facts, appropriation, and invasion of privacy. To prove false light, one must show that an invalid impression of the plaintiff has been created, such as attributing characteristics or beliefs to a person that are untrue of this person. Public disclosure of private facts occurs when one person makes public information about another person that a reasonable person would find highly offensive. If a plaintiff shows that a defendant has used the plaintiff'sname,likeness,voice, orotheridentifyingcharacteristicforcommercialgain withoutthe plaintiff's consent, the plaintiff has proven appropriation. Invasion of privacy is proven when the plaintiff shows that their
solitude, seclusion, or personal affairs were invaded, when the expected a reasonable amountof privacy. (4) False imprisonment is proven when a plaintiff shows that they were intentionally restrained or confined against their will for an appreciable amount of time. The plaintiff must also prove the use of physical restraint or someone's refusal to release the plaintiff's property occurred. (5) Infliction of emotional distress is proven by showing that the defendant engaged in outrageous, intentional conduct that was likely to cause extreme emotional distress. Some states require proof of physical symptoms caused by the emotional distress before damages can be awarded.
4 Yes, Florimont’s comments were enough to defame Senna’s business. Negligence, as opposed to actualmalice, istheapplicablecommon lawstandard fordefamation.Thecommentswereintended to drive business away from Senna’s parlor and into Florimont’s establishment.
5. It is likely that her appeal would be dismissed because absolute privilege arises in the courtroom during a trial. If this privilege is granted to Uecker when he filed material in court to seek an injunction against Ladd, then he would likely not be held liable for defamation. In the actual case, the court did affirm the trial court’s decision. The affirmation was based on its finding that Uecker enjoyed absolute judicial immunity when he filed materials in court to seek an injunction. Specifically, the court wrote: “[W]e are unpersuaded that Uecker’s factual statements amount to defamationin thefirstinstance,despitenegativefallouttoLadd. Second,evenifuntrue,statements made in judicial proceedings are absolutely privileged. Lathan, 30 Wis. 2d at 151. An absolute privilege gives ‘complete protection.’”
6. Mohican isnotliableforintentionalinflictionofemotionaldistress. Mohicanhadnodutytoinform Del Core of her brother’s death. Del Core did not assume any responsibility for her brother’s welfare. Mohican owed Del Core no duty to prevent her brother’s unsuitable burial.
7. Knepper won. The court ruled that the damages Knepper suffered were a reasonably foreseeable consequenceofDex’sintentionalmisrepresentationofthedoctor’squalifications.Ifthedoctorhad, in fact, been a board-certified plastic surgeon, an adverse result would have been less likely, and Dex should have foreseen that a patient could rely on the assertion that the doctor was “Board Certified.”
8. Northwest Herald Newspapers appealed based on the fair report. The court of appeals affirmed the District Court’s decision in favor of the defendant. The court essentially found that the two elements to apply the fair report privilege had been met, that is, the report was an official proceeding, and the report was complete and accurate or a fair abridgment of the official proceeding. Because no employee had had a chance to see the second email sent by the Police Department until after the article’s being published, the newspaper had constructed an accurate and fair abridgement of the information that they had received from the first email regarding Eubanks. As a consequence, the court concluded that the fair report privilege applied because newspaper had not intended to damage Eubanks reputation, but had only relied on information that had been passed on from the Police Department, and had published this information truthfully and accurately in the newspaper.
9. Wilspec is entitled to punitive damages if the company can prove that DunAn acted either recklessly, intentionally, or maliciously by clear and convincing evidence. Here, the fact that DunAn made disparaging remarks to Wilspec’s customers seems intentional. Thus, Wilspec seems entitled to punitive damages.
10 Buchanan was successful on appeal. The held that the store’s conduct was not privileged communication. Buchanan could assertanaction againstthestoreforinvasionofprivacy and false imprisonment. The store claimed privileged, but privilege protects communications, not conduct, and customer's arrest by security officer was unprotected conduct, not communication.
Another random document with no related content on Scribd: