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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, while others find a reference to a recent defamation case. However, the goal is not to get your students simply to find a reference(e.g., "BritneySpearswastheplaintiffinarecentdefamation case."). Theyshould applywhat 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 theCaseOpener, thatBongioviknewJoneswascontemplatinggoingtoSullivanfortreatment and, because he wanted her business, he told her negative stories about Sullivan. WhatifBongiovihad no idea Jones had ever heard of Sullivan and was telling her the story just as a reminder that 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 a defendant takes actions intending certain consequences. Rather, Bongiovi might be found liable for a negligent tort because, although intent cannot be proved, Sullivan maybe able to prove that Bongiovi’s behavior subjected Sullivan to an unreasonable risk of harm.
2.) Recall, in theCaseOpener,thatSullivan sued BongiovibecauseofthefalsestatementBongiovimade. What if, instead, Sullivan had called Bongiovi and said, “If you ever tell a potential client a lie like that aboutmeagain, Iwillslityourthroat?”Would Sullivan havecommitted an assaultorbattery?Whyorwhy not?
Sullivan would not have committed assaultorbattery.Toproveassault, onemustprovethatapprehension exists.However,forreasonableapprehension ofharmtoexist,onemustbeimmediatelyindangerofharm. Butifsomeonecalled you on thetelephoneand threatened tocomeoverand hurtyou,thisisnotan assault becausethereisnoquestion ofimmediatebodilyharm. Wordswithoutasignofactiondonotusuallyimply immediacy.Moreover,words, in mostsituations,arenotenoughtocreatereasonableapprehensionofharm. Thus, Sullivan’s behavior would not be considered assault, and because there was no bodily contact, his behavior would also not be considered battery.
3.)Recall,in theCaseOpener, thatJoneschosenottogotoSullivan fortreatmentbecauseofthestorythat Bongiovi told her. What if Jones had never considered going to Sullivan and had already scheduled an appointment with Bongiovi, so the storydid not affect Sullivan? Would slander have occurred? If slander had occurred, could Sullivan receive damages?
If defamation constitutes slander per se, i.e. statements so inherently harmful that general damages are presumed,then plaintiffsneed notprovethattherewasaspecificmonetarylossduetoslander.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 theCaseOpener, thatBongiovi’sfalsestoryaboutSullivanhurtSullivan’sbusiness.Butwhat 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. Because Sullivan’s story is assumed to be true, then conditional privilege would be an applicable defense 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 ofprivacy. However,thepatienthadsignedaformgivingtheclinicpermissiontoreleasematerials involving her surgery, including films for the purposes of releasing important health information 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 right to privacy. Thus, in the case above, the release would have likelyexcused Mayo Clinic from 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. What are some of the most common intentional torts, and whataretheelementsneeded toprovethese 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”
How are torts classified?
What are the most common intentional torts, and what are the elements needed to prove these torts?
• What torts did the makers of Vioxx allegedly commit?
• 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.
Joseph E. Hancock, Petitioner v. Easwaran P. Variyam, Respondant (briefed below) considers whether defamatory statements were defamatory per se
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Defenses to defamation: Truth – absolute defense. Privilege – affirmative defense. Absolute privilege- one 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 right to use the property.
o Conversion--defendant permanently removes the personal
What types of damages are available in tort cases?
Point/Counterpoint: Should medical malpractice awards be capped?
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:
• Who are the stakeholders here? How would malpractice caps affect each group of stakeholders?
• What function do malpractice caps serve?
For further arguments on both sides of the issue, see: https://www.hg.org/article.asp?id=7492 and http://www.pacificresearch.org/article/tort-reform-is-key-to-health-reform/
CASE BRIEFS WITH ANSWERS TO THE QUESTIONS
Case 8-1 Joseph E. Hancock, Petitioner v. Easwaran P. Variyam, Respondant, Supreme Court of Texas 400 S.W.3d 59Hancock (2013).
Case Brief
Issue:
Were Hancock's statements defamatory per se, and was he liable for damages relating to Variyam's loss of reputation and mental anguish?
Facts:
Dr. Easwaran Variyam was the Chief of the Gastroenterology Division of the Texas Tech University Health Sciences Center. Dr. Joseph Hancock was an associate professor under Variyam. In 2006, a dispute arose between the doctors over the transfer of patients from Hancock's care to Variyam. Variyam sent Hancock a letter to “express [his] disapproval . . . of the lack of professionalism and disregard for patient care that you exhibited this morning.” Hancock responded to the letter by sending a letter of his own to the Chair, the Dean of the School of Medicine, and an entity reviewing the Division's application for its accreditation. In the letter, Hancock resigned his position under Variyam and stated that Variyam had a “reputation for lack of veracity” and “deals in half truths, which is legally the same as a lie.” The Division was not accredited, and the Chair removed Variyam as Chief of the Division. Variyam sued Hancock for defamation and damages relating to loss of reputation.
Procedural History:
The district court and court of appeals ruled in favor of Variyam. Hancock appealed, arguing that his statements were not defamatoryper se and therefore Hancock was notliableforthedamagesVariyamwas alleging.
Holding:
The judgement of the court of appeals was reversed, and judgement was rendered that Variyam recover no damages.
Reasoning:
• The court defined “defamation” as “the invasion of a person's interest in her reputation and good name.”
• The court ruled that a statement is defamatory per se when it attacks a particular skill or trait that an individual possesses that is required to perform their profession.
• Hancock alleged that Variyam “lacked veracity,” but the court argued that
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Variyam's truthfulness does not affect his ability to perform his job as a physician.
• Hancock's statements were ruled as not defamatory per se, and because the Variyam's specific damages could only be awarded as a response to defamation per se, Variyam wasn't awarded anything.
Answers to the questions
Critical Thinking
Essentially, most professionals are at risk of being adversely affected by this ruling. The court argued that if general statements attacking the reputations of professionals are defamatory per se, then “all statements defaming professionals would be defamatory per se.” The ruling could allow individuals to make defamatory statements about professionals and, as long as the statements aren't directly related to the individual’s ability to perform their profession, not be expected to recompense the professional for loss of reputation.
Ethical Decision Making
On the one hand, one may weigh professionals and their reputations highest in a case like this. The above ruling may allow people to make defamatory remarks about professionals and not pay damages so long as the remarks don't target the professional's ability to perform their job. In a perfect world, this ruling probably wouldn't matter, because one's character is unrelated to their ability to do excellent work in many disciplines. In reality, however, people may not want to deal with someone who's been accused of “lacking veracity” regardless of their skill, and real damages may occur as a result of comments unrelated to professional ability.
On the other hand, as the court reasoned, is it fair to hold individuals accountable for potential professional reputation loss when those individuals make defamatory statements that have nothing to do with their professional ability? If so, then all defamatory statements are defamatory per se, and individuals could be charged with damages that extend beyond the scope of their remarks.
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) allows students to explore more than one theory 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 recoveryfor Zeran? Be specific. Hint: He sued for 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.*
Diamond BroadcastingownsKRXO,aclassic-rockradiostation in OklahomaCity.On April29,1995,an AOL member sent an e-mailcontainingacopyoftheoriginal,April25th postingtooneofKRXO'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 theaftermath ofthebombing,and continuingforaperiodoffourtosix weeks thereafter, however,theshowhad becomeaforumfordiscussion ofthebombingand 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 dayit was sent or earlythe next morning, May1, 1995.Shannon wasan AOLmemberand had given hisscreen nameoutovertheairtoenablehislistenerstosend messagestohim.Hedidnotknow the person who sent the posting.
Beforebeginninghisshifton May1,Shannonunsuccessfullyattemptedtoe-mailKenZZO3throughAOL, but received a pop-up message informing him that the addressee was not a known AOL member. He did not attempt to call the telephone number on theposting, purportedlybecauseitwasbeforebusinesshours. 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 him for offeringsuch products. On thatday, Zeran received approximately80angry,obscenity-lacedcallsfromthe Oklahoma City area, including death threats. Zeran described it as the worst day of his life and, shortly thereafter,involved lawenforcement. TheanxietyZeranfeltasaresulteventuallyledhimtovisithisfamily physician, who treated Zeran by prescribing an anti-anxiety drug. Although most of the callers hung up before Zeran had an opportunityto 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 TIP: Communicate 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. Compensatorydamagesarethoseawardedtothevictimtocompensatethemfordamagescausedbythe tortfeasor. These damages tend to include things such as medical bills, lost wages, property repair bills, and compensation for pain and suffering. Lawyers' fees, however, are not recoverable by compensatorydamages.Nominaldamagesaresmallamountsawarded when itisrecognized thatthe defendantcommitted atort,butdamagesarenotcompensable.Nominaldamagescanalsobeawarded for failing to prove actual damages. Punitive damages are intended to punish defendants for their outrageous conduct. Punitive damages are also meant to deter the defendant and others who are in a similar situation as the defendant. The usual trend is the worse the action, and the more wealth the defendant has, the higher the amount 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 beafraid ofproducingadefectiveproductand thenwillbeforcedtopaymillions of dollars in law suits.
3. Five intentional torts are: assault and battery, defamation, privacy torts, false imprisonment, and intentionalinfliction ofemotionaldistress:(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 isan intentional,unwanted,offensive bodily contact. Intention must be shown to prove battery. (2) Defamation is the 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 that the comment 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;orclaimthatawomanhasengaged in sexual misconduct. Also, defamation must be proven to be a statementoffact, 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 thisperson. Publicdisclosureofprivatefactsoccurswhenonepersonmakespublicinformationabout anotherperson thatareasonable person would find highly offensive. If a plaintiff shows that a defendant has used the plaintiff's name, likeness, voice, or other identifying characteristic for commercialgain withouttheplaintiff'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 amount of privacy. (4) False imprisonment is proven when a plaintiff shows that they were intentionally restrained or confined againsttheirwillforan 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. Theappellatecourtaffirmed thelowercourt'sruling.Thecaserevolvedaroundtheterm“boughtoff,” which the court found could be interpreted in many different ways. The court determined that the most general interpretation of “bought off” would simplybe that Holmes had been induced in some manner to stop representing her, whether by consideration or by threat. At any rate, Holmes was unabletoprovethatLoveknewherstatementwasfalseorthatshehad seriousdoubtsaboutthetruth of the statement went she made it, and therefore the court ruled the statement was not defamatory.
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 againstLadd, then hewould likelynotbeheld liablefordefamation.Intheactualcase,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 defamation in the first instance, despite negative fallout to Ladd. Second, even if untrue, statements made in judicial proceedings are absolutely privileged. Lathan, 30 Wis. 2d at 151. An absolute privilege gives ‘complete protection.’”
6. The court argued that while previous New York cases held that statements imputing homosexuality are defamation per se, these decisions are no longer consistent with public policy. Categorizing statementsthatimputehomosexualityasdefamatoryperse,thecourtreasoned,isbasedontheflawed premise that it is shameful or disgracefultobegay,lesbian orbisexual, and thattherule“necessarily equatesindividualswhoarelesbian, gayorbisexualwith thosewhohavecommitted a'seriouscrime' --oneofthefourestablished persecategories.”Thispremiseisinconsistentwith theSupremeCourt case Lawrence v. Texas, which held that laws criminalizing homosexual conduct violate the Fourteenth Amendment.Thus, thestatementswerenotdefamatoryperse,andsotheplaintiff'sfailure to allege special damages required that the case be dismissed.
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 relyon the assertion that the doctor was “Board Certified.”
8. The injunction was upheld on appeal. The court argued that, while everyone has the right to the reasonable use and enjoyment of his or her own property, a property owner may not use their right so as to unreasonably deprive an adjacent owner of the lawful use and enjoyment of his or her property. The noise stemming from the operation of the gas station would provide a constant nuisance to the churchgoers who are reasonably enjoying the property, and so McPherson was forbidden from building a gas station next to the church.
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 assert an action against the store for invasion of privacyand false imprisonment. Thestoreclaimed privileged,butprivilegeprotectscommunications,notconduct,and customer's arrest by security officer was unprotected conduct, not communication.
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