Tort of Conversion
Conversion is taking someone else’s property and treating it as your own. Requires dominion and control. Intention does not matter. Conversion is when it is gone and you cannot get the item back. Look on it as a forced sale. A blameless defendant can recover costs in some cases gold taken out of ground can subtract labor costs. Requires proof of ownership. Can get punitive damages if can prove malicious and bad faith.
Poggi v. Scott-wine stored in basement, building sold, new owner was scammed into selling the wine; bearer bonds were sent by registered mail but no restricted delivery, employee signed for and stole the bonds; wheat delivered to D for sale and money paid to wrong party; warehouse let wrong party take furniture.
Animals Rule: When wild animals, such as a bear or wolf, are kept as pets, an owner is liable for injuries caused by the animal, even if the owner had no prior knowledge of the animal's propensity to cause harm, and even if the owner has exercised the utmost care in preventing harm. Rule: Owners of domesticated animals may be held liable for harm caused by their pet if the owner knows or has reason to know that the animal has abnormally dangerous propensities, regardless of the amount of care exercised by the owner. Gehrts v. Batteen-dog secured in back of pickup, bit Batteen when she tried to pet him. Gibbs v. Jackson-held that keeper had no statutory or common-law duty to prevent horse from roaming onto a farm-to-market roadway in an area that had not adopted a local stock law HOSSENLOPP,v. CANNON-SC case strict liability for dog bite regardless of any prior problems.
Defenses: contributory negligence and assumption of the risk
Ultra-hazardous or Abnormally Dangerous Activities
Rule: Anyone conducting ultra-hazardous activities is strictly liable for resulting damage. Do not have to prove negligence, but do have to prove causation. In determining whether an activity is abnormally dangerous, the following six factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
Spano v. Perini Corp.-blasting damaged nearby building INDIANA HARBOR BELT RAILROAD COMPANY v. AMERICAN CYANAMID COMPANY-tank car leaked hazardous materials Defenses: Abnormally sensitive plaintiff- mink that ate young
Public Policy: By making the actor strictly liable-by denying him in other words an excuse based on his inability to avoid accidents by being more careful-we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident.
Rule: The plaintiff is strictly liable for a non-trespassory invasion that unreasonable interferes with another’s private use and enjoyment of land.
Ensign v. Walls A dog breeding company is a nuisance to the neighbors ,and did not acquire over time a prescriptive right to continue the nuisance. Vogel v Grant-Lafayette Electric Co-op Nuisance law is applicable to stray voltage claims because excessive levels of stray voltage may invade person's private use and enjoyment of land Rogers v. Elliott Ringing of bell caused convulsions. Not liable since did not bother ordinary person. Boomer v Atlantic Cement Co. The defendant Atlantic Cement operates a large cement plant. The plaintiffs are neighboring land owners alleging injury to property from dirt, smoke, and vibration from the plant. Whether air pollution from a cement plant is a nuisance? The court granted permanent damages to terminate the private litigation and lift the “servitude on land” imposed on the plaintiffs by defendant’s nuisance.
Public Policy: It is obvious from the history of the action for private nuisance that the interests originally protected were interests in the use and enjoyment of land, including interests in the use and enjoyment of easements and profits. These interests continue to be the interests that are protected by actions for private nuisance. When there is an invasion of these interests, the plaintiff may recover not only for harm arising from acts that affect the land itself and the comfortable enjoyment of it, but also for harm to members of his family and to his chattels. Defenses: Abnormally sensitive plaintiff (bell case), coming to the nuisance.
Rule: Loss of a right common to the public is actionable only for “special” harm to the individual plaintiff. The plaintiff must lose his entire business not just a short interruption.
Rule: One who sells any product in a defective condition unreasonably dangerous to the user is subject to liability for physical injury or property damage if: The defendant a seller There is a manufacturing defect: Plaintiff: Have to show the product is different from all others, did not perform as expected, accident is kind that happens when product is defective, no one else used the product, product was used as intended Defense: Misused product and not a foreseeable misuse There is a design defect: Consumer expectation test-safely as an ordinary user would expect when used as intended or in a reasonably foreseeable manner. Product did not perform as he expected it to. How could have the product been different? Show that by adding the change it does not make it impossible to use. Risk utility test-benefits of design outweighed by the risks in the design-may shift the burden to the defendant. Likelihood of harm, burden of remedies to prevent harm. Modified expectation test: usefulness of design severity of harm feasibility of alternative design financial cost of alternative design feasibility of spreading the cost by increasing the price
On exam have to apply all three tests!
Questions to ask: Is the product free of a defect and still inherently dangerous? Did the product casue the D’s harm? Does a federal regulatory scheme preempt a claim?
MacPherson v Buick Motor Co. The defendant Buick manufacturers cars, which were sold by a retail dealer to the plaintiff MacPherson. The car collapsed because a wheel was made of defective wood and the spokes crumbled. The defect could have been discovered by reasonable inspection. Baxter v Ford Motor Co. found for a plaintiff who was injured by a small rock that shattered the windshield, because Ford had represented the glass as shatter-proof. McCabe v L.K. Liggett Drug Co. found liability for a manufacturer of a metal coffee maker that blew up: “If the coffee maker was so imperfect that it could not be used without the likelihood of an explosion it could be found that the appliance was not reasonable fit for making coffee and therefore not merchantable.” Escola v Coca Cola Bottling Co. of Fresno The plaintiff Escola was a waitress who was placing the restaurant’s Coca Cola bottles into the refrigerator, at least 36 hours after delivery. A bottle exploded in her hand and caused severe injuries. The plaintiff alleged excessive pressure of gas, or a bottle defect.
Casa Clara Condominium Association, Inc. v Charlie Toppino & Sons, Inc. The defendant Toppino & Sons supplied concrete for construction projects, including condominiums with the plaintiff Casa Clara Condominium Association. The concrete supplied by the defendant contained a high content of salt, which was likely to cause the reinforcing steel to rust and allow breaking of the concrete. The plaintiffs sued for breach of implied warranty, products liability, and violation of the building code. The trial court for the defendant because a tort action requires personal or property injury, and because building codes do not apply to suppliers. The court ruled that injury must occur before a negligence action exists, and that the homeowners suffered purely economic damages and disappointed expectations. The court ruled that the character of the damages are determined according to the product purchased by the plaintiff, which in this case was the home, not its components.
Cafazzo v Central Medical Health Services, Inc. In 1986, the plaintiff Cafazzo underwent surgery for implantation of a prosthesis. In 1992, it was discovered that the prosthesis was defective. Since the manufacturer was bankrupt, the plaintiff sued the physician and the hospital for providing the defective device. The court ruled that the patient-hospital relationship is not dictated by the distribution of products, and the provision of medical services is qualitatively different than the sale of products. The court ruled that the implant was an adjunct to the medical service provided, just like the many other instruments used for the surgery. The court noted that the hospital could be negligent in the choice of device. Only the manufacturer is liable.
Speller v Sears, Roebuck & Co. The plaintiff’s child Sandra Speller was killed in a house fire, and their seven year old son was injured. The fire marshall decided that a stove top grease fire was the cause of the fire, but the Spellers claimed that the fire was caused by faulty wiring from a refrigerator sold by the defendant Sears, Roebuck. The plaintiffs offered testimony from an electrical engineer who had studied the burn patterns on cabinets above the stove.
In products liability case, plaintiff must prove that product was defective, that defect existed when product left manufacturer's control, and that defect proximately caused injuries to plaintiff, a reasonably foreseeable or intended user. indeterminate product defect test”-under this test, it may be inferred that harm sustained by plaintiff was caused by product defect existing at time of sale or distribution, without proof of specific defect, when incident that harmed plaintiff was of a kind that ordinarily occurs as result of a product defect and was not solely result of causes other than product defect existing at time of sale or distribution.
Volkswagen of America, Inc. v Young The court ruled that a negligence standard applied to a car design that enhanced injury in a collision. The court ruled that frequent collisions are foreseeable, and the manufacturer should afford reasonable safety when collisions occur.
list of factors in determining whether a product is unreasonably dangerous: (1) usefulness of the product, (2) safety aspects of the product, (3) availability of a substitute, (4) manufacturer’s ability to eliminate the unsafe characteristics of the product, (5) user’s ability to exercise care, (6) user’s anticipated awareness of the inherent dangers of the product, (8) feasibility of the manufacturer spreading the loss. The obviousness of a danger does not preclude a plaintiff from establishing a case for negligent design, but that such obviousness would be relevant to the comparative fault of that plaintiff. Barker v Lull Engineering Barker was injured while operating a high-lift loader manufactured by Lull Engineering. The loader was designed to be kept level on a sloping terrain, and Barker was using the loader on uneven ground. Barker lost control and jumped off the loader, and was then seriously injured by some falling timber. The court ruled that a product is defective in design when (1) the product fails to perform as safely as an ordinary consumer would expect when used as intended or as is reasonably foreseeable, or (2) the benefits of the challenged design do not outweigh the risk of danger of the design. The court ruled that once a plaintiff made a prima facie case showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove that the product is not defective. Linegar v Armour of America Linegar was a state highway patrol officer who was shot and killed in the line of duty while wearing a bulletproof vest manufactured by Armour. The wounds Linegar suffered were caused by shots that struck under his arms, which was not protected by the vest. The court ruled that the coverage of the vest was obvious to the police department when it selected the vest. The court ruled that the manufacturer is not obligated to market only the vest safest design possible, and that personal safety devises require personal choices.
Don’t forget it is still strictly liable Is the product defectively designed is the call of the question Is there a design defect if so was it being used properly Was there a manufacturing defect? If so is it different Show causation and reduce damages by fault of plaintiff in using it incorrectly Did machine cause 50% or 100% Plaintiff needs to argue that he was using the product correctly and the risk outweighed the benefit
Potter v Chicago Pneumatic Tool Co. The plaintiffs were shipyard workers at the Electric Boat factory. The defendant Chicago Pneumatic Tool manufactured hand tools for chipping and grinding. The workers alleged that the tool vibrations caused injuries. The court ruled that design defects may be inferred without expert testimony. The court ruled that the ordinary consumer expectation test applied when everyday experience permits the inference that the product did not meet minimum safety expectations, but that risk-utility balancing was required when the particular facts do not reasonably permit the inference.
Duty to Warn
Rule: A manufacturer has a duty to warn all persons who it is foreseeable will come into contact with and be endangered by the product.
Halliday v Sturn, Ruger & Co. Jordan Garris was a three-year-old child who shot himself while playing with his father’s handgun. The gun was manufactured by the defendant Sturn, Ruger & Co. The father disregarded warnings from the retailer and left the gun under his mattress with a loaded magazine on the bookshelf in the same room. The child assembled the gun and shot himself in the head. The consumer was aware of this danger.
MacDonald v Ortho Pharmaceutical Corp.
The plaintiff Carole MacDonald was prescribed contraceptive pills manufactured by the defendant Ortho Pharmaceutical Corp. The prescription was filled annually after visits to MacDonald’s gynecologist. After three years of using the pill, MacDonald suffered a stroke and was permanently disabled.
Heeding Presumption- that the patient would have heeded the warning.
In products liability cases involving scope of manufacturer's duty to warn of dangers associated with use of product, manufacturer is held to knowledge and skill of an expert. A manufacturer has a duty to test and inspect its product. Manufacturer's duty to warn of foreseeable dangers associated with its products extends to all users and consumers, including common worker in shop or in field.
Hood v Ryobi America Corp. The plaintiff Wilson Hood removed the blade guards from a miter saw manufactured by the defendant Ryobi America. While cutting without the guards, the blade flew off the saw and amputated Hood’s thumb and lacerated his leg. Hood had been warned not to remove the guards, but argued that he should have been warned that removed the guards permitted the blade to detach from the saw. The court ruled that the warning not to remove the blade guards was sufficiently clear and specific. The court ruled that the defendant provided warnings sufficient to apprise the ordinary consumer that it is unsafe to operate the saw without guards.
Daly v General Motors Corp. The plaintiff Daly was driving his Opel, manufactured by the defendant General Motors, and struck a metal divider at between fifty and seventy miles per hour. Daly was ejected from the car and died from head injuries. The door lock had an exposed push button, and the plaintiff claimed that the door was forced open during the original collision. General Motors was allowed to present evidence of contributory negligence, that Daly was not wearing a seatbelt, was intoxicated at the time of the accident, and had been warned to wear a seatbelt and lock the doors while driving. The court ruled that the manufacturer cannot avoid liability for defective products even when the plaintiff’s own conduct contributes to the injury. The court ruled that the manufacturer cannot assume that the user of a defective product will be blameworthy. The court ruled that the goals of strict liability, specifically relieving consumers of the burden of proving negligence and spreading the compensation costs throughout society, would not be impaired by the adoption of comparative principles. The court ruled that assumption of risk could reduce but not bar a strict products liability claim. The court ruled that the jury could fairly apportion liability.
Geier v American Honda Motor Co. In 1992, Alexis Geier was driving a Honda Accord and was seriously injured when she collided with a tree. The car was equipped with manual seat belts, but no airbags or passive restrain devices. Geier sued Honda for the design defect of not installing an airbag. The court ruled that the federal standard deliberately provided manufacturers with a range of choices among passive restraint systems, and that allowing the action would conflict with the variety promoted by the federal standard.
Look at language of the law for legislative intent or private right of action. Does the law expressly prohibit a lawsuit-preemption clause A savings clause allows you to sue
Dimmitt Chevrolet v. SOUTHEASTERN FIDELITY INSURANCE CORPORATION Term “sudden and accidental” as used in pollution exclusion clause in comprehensive general liability policy was not ambiguous; ordinary and common usage of term “sudden” includes temporal aspect with sense of immediacy or abruptness, such that word as used in pollution exclusion clause means abrupt and unexpected. Rule: Construe against the drafter basically against the insurance company and use the plain meaning interpretation to resolve any ambiguity.
The Insurer’s Duties
Rule: Insurer's duty to defend insured in action brought against him extends to cases where complaint alleges several causes of action or theories of recovery against insured, one of which is within coverage of policy while others may not be.
Application: Duty to defend- four corners of the policy once they start have to continue. Look at the complaint to determine coverage. Good faith duty to settle cannot gamble with the defendant’s money
Rule: A worker is entitled to benefits if the injury occurred in the course of his employment and arose out of his duties as an employee. Consider extent and seriousness of claimant's deviation from work duties, completeness of the deviation (i.e., whether activity was commingled with performance of work duty or was complete abandonment of duty), extent to which the activity had become accepted part of employment, and extent to which nature of employment may be expected to include some horseplay. "In the course of" and "arising out of" tests are separate and distinct and both must be satisfied in order for an injury to be deemed compensable for purposes of workers' compensation.
CLODGO v. RENTAVISION, INC. Injury sustained by store salesperson while engaged in horseplay of shooting staples at coworker during lull between customers did not occur in course of his employment for workers' compensation purposes, though shooting staples was common among store employees and some horseplay was to be expected during idle times, as shooting staples constituted substantial deviation from salesperson's work duties; shooting staples at coworkers was not accepted part of salesperson's employment and did not further employer's interests.
No fault system so no defenses.
Rule: In order to constitute defamation, the matter complained of must be false, be published or communicated, and be demonstrably about the person claiming to have been defamed.
First thing to do is to analyze who the person is.
Private plaintiff/private defendant
Application: Defamation is a strict liability tort. If the defendant published a false and defamatory statement concerning the plaintiff, the plaintiff is entitled to recover actual damages. It does not matter what the defendant knew or should have known at the time the statement was made. It is not necessary to prove that the defendant intentionally made statements he knew to be false (or that he knew he had no reason to believe were true), or even that the defendant is negligent in making the statement without checking its accuracy. If the statement was false and defamatory, the defendant is liable. The plaintiff is entitled to a presumption that the defamatory statement is false, and actual damages are presumed without proof. Punitive damages are available, but require a showing of culpability.
Public plaintiff/public issue
Where the plaintiff is a public official or public figure and the issue is one of public interest, the Supreme Court has held that the constitution mandates a significantly heavier burden on the plaintiff who would recover damages for defamation. In order for the plaintiff to recover at all, he must show that the defendant acted with "actual malice" - knowledge of the falsity of the statement or reckless disregard of its truth or falsity. New York Times v. Sullivan. Further, the court has clarified that reckless disregard of the truth means something more than even gross negligence. The defendant must have in fact entertained serious doubts as to the truth of the statement. The plaintiff has the burden of proof on actual malice. The plaintiff also has the burden of proving that the statement was false. Unlike most other civil cases, the burden of proof is not a mere preponderance, but "clear and convincing". No damages will be presumed, but once the plaintiff has carried his burden he can recover actual and punitive damages.
Private plaintiff/public issue
Where the plaintiff is not a public official or public figure, but the statement concerns a public issue, the Supreme Court has held that the plaintiff must bear an intermediate burden in order to recover damages for defamation. The plaintiff must demonstrate some degree of fault on the part of the defendant (at least negligence). As in the public/public case, the plaintiff has the burden of proof on the falsity of the statement. No damages will be presumed. Punitive damages are not available unless the plaintiff can demonstrate actual malice.
Defenses: Truth is an absolute defense. Opinion is not actionable unless the speaker does not in fact have that opinion or there is a false implication of underlying facts. The communication was privileged, usually within the workplace. Self-publication, where you have told others. Deliberate parody is not defamation, if it is unbelievable there is no claim. First Amendment, right of free speech.
Limits on Liability: Under the "single publication rule," only a single cause of action arises against the publisher, the number of copies circulated affecting the extent of damages. The single publication rule does not apply to the reissuance of defamatory matter subsequent to the first publication. Reissuance generally gives rise to a new cause of action.
GONZAGA UNIVERSITY v. JOHN DOE- student accused of date rape and did not get certificate required to teach. Defamation since was false and communicated outside of employment duties.
Libel and Slander Actions for defamation can be based both on written and oral statements. If the action is predicated on a writing, printing, effigy, or picture, it is designated as an action for libel. If a writing that tends to expose a person, or in some circumstances a corporation, to contempt, ridicule, aversion, or disgrace or to induce in the minds of right-thinking persons an evil opinion of him and so cause others to shun or avoid him, is said to be libelous. An action based on a false oral statement is an action for slander. An oral statement is actionable per se—that is, without proof of special damages—only in certain circumstances. Traditionally, an oral statement is actionable per se only if it does one or more of the following: (a) charges the commission of a crime; (b) imputes unchastity to a woman; (c) charges affliction with a loathsome disease; or (d) tends to injure a person in his trade, office, business or profession. The reason, it is said, for the different legal treatment accorded libel and slander is that the spoken accusation, as opposed to the written one, is usually unpremeditated, made in the heat of anger, indiscriminately, and of limited circulation. Slander per se: Slanderous statements that impugn one's business or profession belong to a category typically called "slander per se" and are actionable without proof of pecuniary loss; in such cases, proof of the defamation itself is sufficient to establish the existence of some damages so that the fact finder may, without other evidence, estimate the amount of damages.
MUZIKOWSKI v. PARAMOUNT PICTURES CORPORATION-Movie about baseball coach 2) mere fact that motion picture was labeled "fiction" did not preclude finding that it could be reasonably interpreted to refer to baseball coach; (3) baseball coach stated cause of action for per se defamation; and (4) baseball coach stated cause of action for false light invasion of privacy. Had a cause of action since he was the only person the movie could be about and they said he sold stocks without a license which was untrue and a criminal act.
First Amendment does not inoculate all opinions against defamation suits; statement couched as opinion that presents or implies existence of facts which are capable of being proven true or false can be actionable.
Determination of whether statement is hyperbole protected by First Amendment depends primarily upon whether reasonable person could interpret statement to provide actual facts about individual or institution it describes. The Court explained: "If a speaker says, 'In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth," and the comment. By contrast, if the speaker says, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," the First Amendment bars recovery because the statement cannot be objectively verified.
SPROUSE v. CLAY COMMUNICATION, INC. Unsuccessful gubernatorial candidate brought libel suit against owner of newspaper which, two weeks before the election, allegedly published a series of articles that, by misleading words in oversized headlines rather than by outright false statements, raised an implication of wrongdoing by plaintiff in connection with certain real estate transactions.
The Basis of Torts Liability
ELLSWORTH v. MARTINDALE-HUBBELL LAW DIRECTORY, Inc.-
Why is this case not defamation pre se? Always try for this first since do not have to prove special damages.
Words tending to injure in business, so as to be actionable per se, are those which impugn solvency or would directly have adverse effect on credit, or which charge unethical or unfair practices in conduct of business.
1. In an action for the publication of words not actionable per se, special damages must be alleged with as much certainty and particularity as is reasonable considering all the circumstances. 2. In such case where damages are claimed on account of a general diminution of professional business and income resulting from the publication, it is sufficient, where it appears that it is impossible to be more specific, to plead what that business amounted to prior to the publication and what it was after the publication and as a result thereof.
Remedies: Injunctions -recall or stop publication- free speech issue only when no legal remedy in monetary damages
Retractions -same font and placement
Privileges in the Public Sphere
Kennedy v. Cannon Scope of absolute privilege of attorney to make statement outside judicial proceeding is restricted to communications such as those made between attorney and client, or in examination of witnesses by counsel, or in statements made by counsel to court or jury
Attorney had no absolute privilege to make statement to managing editor of newspaper that attorney's client, who had been charged with rape of married woman, contended that she submitted to his advances willingly.
Statements to the police are protected subject to perjury
Right To Privacy
We approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded.
Term “right of privacy” covers several distinct wrongs: using celebrity's name or picture in advertising without his consent, tapping someone's phone or otherwise invading person's private space, harassing celebrity by following her too closely, albeit on public street, casting person in false light by publicizing details of the person's life that while true are so selected and highlighted as to convey misleading impression of person's character, and publicizing personal facts that while true and not misleading are so intimate that their disclosure to the public is deeply embarrassing to person thus exposed and is perceived as gratuitous by the community. On exam you have to distinguish which tort or torts you are claiming not just right of privacy.
Intrusion Upon Seclusion
Rule: The tort is the intrusion upon seclusion it must be intentional, must be one's private affairs, you can report things that are not private, it is not private when you tell somebody, maybe not a spouse (argument) but probably not, how they get the information is critical to the claim, overzealous surveillance YOU DO NOT LOOK AT PUBLICATION THAT IS DEFAMATION AND YOU CAN CLAIM BOTH BUT HAVE TO DISTINGUISH BETWEEN THEM. IF CONSENT THEN NO INTRUSION.
The defining situation is whether a persons private space is violated. example is pretending to be a meter reader in order to obtain access to home. The tort has nothing to do with publication.
NADER v. GENERAL MOTORS CORPORATION
Fact that defendants may have interviewed many persons who knew plaintiff and asked questions about him and cast aspersions on his character did not constitute invasion of privacy, notwithstanding that inquiries may have uncovered information of a personal nature but that complaint that defendants engaged in unauthorized wiretapping and eaves-dropping by mechanical and electronic means stated cause of action for invasion of privacy. Mere gathering of information about a particular individual does not give rise to cause of action for invasion of privacy, since there can be no such invasion where information sought is open to public view and where it has been voluntarily revealed to others. It must be shown that defendant's conduct was truly intrusive and that it was designed to elicit information which would not be available through normal inquiry or observation.
Public Disclosure of Embarrassing Private Facts
Rule: One who gives publicity to a matter concerning the private life of another is subject to liability for the invasion of privacy if the matter published is highly offensive to a reasonable person and is not of legitimate concern to the public.
Here publicity means making it known to the public at large rather than just communicating it to a third person as is the requirement for defamation. This is a two prong test and both prongs must be satisfied. No issue about how the information is obtained. The focus is what has been publicized. It can be a true statement and still you have a claim. If it is false it is defamation but what if you can’t prove it is false then can use this tort.
SIDIS v. F-R PUB. CORPORATION. The intimate details of private life are not entitled to an absolute immunity from the prying of the press, and a limited scrutiny may be had of the private life of any person who has achieved, or has had thrust upon him, the questionable and indefinable status of a “public figure”.
Publishing of name of rape victim If a person, whether willingly or not, becomes an actor in an event of public or general interest, "then the publication of his connection with such an occurrence is not an invasion of his right to privacy." Accordingly, Doe's invasion of privacy claim fails as a matter of law, and the trial court's directed verdict was proper.
Haynes v. Alfred A. Knopf, Inc. Book revealing plaintiff's previous misconduct, including his heavy drinking, his unstable employment, his adultery, and his irresponsible and neglectful behavior toward his wife and children, did not invade plaintiff's privacy, under Illinois law, by publicizing personal facts; book did not reveal intimate details of plaintiff's life.
Commercial Appropriation of Plaintiff’s Name or Likeness
Rule: One who appropriates to his own use of benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
Midler v. Ford Motor Co. We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.
White v. Samsung Electronics (Vana White Case) Under California law, right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable; it is not important how defendant has appropriated plaintiff's identity, but whether defendant has done so.
Rule: One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability if: It is highly offensive to a reasonable person and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. False light does not have to harm your reputation. Look at Hill case
Fraud Rule: Must be a false statement (may not have to be a fact) that induces the plaintiff to act-usually a monetary investment. Plaintiff must have acted in reliance of the false statement.
The misrepresentation or false promise or concealment must have been made or done with the intent to induce some person or persons to act in reliance upon it and the party making the representation or promise is liable only to those persons to whom the representation or promise has been made from whom a material fact was concealed with such intent. If others become aware of the representation or promise or are misled by the concealment and act upon such, there is no liability.
Vulcan Metals Co. v. Simmons Mfg. Co. Where buyer of vacuum cleaners and materials and machinery for their manufacture was allowed full opportunity to inspect cleaners and test them, misrepresentations concerning their qualities and powers should be deemed mere puffing talk, which would not give rise to action for deceit. Where seller of large number of vacuum cleaners already manufactured and materials and machinery for their manufacture represented that they had not been put on the market, such representation was one of fact, falsity of which would give rise to action for deceit. Where buyer made no offer to return articles delivered, he cannot, despite seller's misrepresentations, rescind contract and escape liability on notes given for purchase price.
Rule: A duty to exercise reasonable care in giving information exists when the defendant has a pecuniary interest in the transaction. Recovery of damages in a negligent misrepresentation action is based upon negligent conduct and predicated upon a negligently made false statement where a party suffers either injury or loss as a consequence of relying upon the misrepresentation. To recover in a negligent misrepresentation action, a plaintiff must prove: (1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as a direct and proximate result of his reliance upon the representation. Ultramares Corporation v. Touche In action for damages through misrepresentations of accountants brought by one advancing money relying on certified balance sheet, evidence supported finding that report was negligently made. “Fraud" by public accountant includes pretense of knowledge when there is none. Representation, though knowingly false, does not authorize action of deceit unless made with intent to be communicated to persons acting upon it to their prejudice. Public accountants' verification by "test and sample" was insufficient as to accounts not entered on books, where inspection of invoices was necessary to ascertain whether there were accounts.
Inducement of Breach of Contract
Rule: One who intentionally and improperly interferes with the performance of a contract is subject to liability. The actor must have knowledge of the contract with which he is interfering.
The tort has expanded to be applicable to all types of contractual arrangements where the persuasion is malicious. "Mere persuasion" is not actionable, and the "notice" requirement of Lumley v. Gye must be read in that light. In Bowen v. Hall, "malice" was defined as any persuasion which was used "for the indirect purpose of injuring the plaintiff or of benefitting the defendant at the expense of the plaintiff." 2. The tort action may be available in a contract even if it is terminable at will by either party, as long as there was a breach. However, it does not apply where the party is not in breach, such as leaving the job for higher wages elsewhere.
Interference with Prospective Advantage or Economic Gain
Rule: An individual owes a duty of care to take reasonable measures to avoid risk of causing economic damages, aside from physical injury, to particular persons or persons comprising an identifiable class with respect to whom individual knows or has reason to know are likely to suffer damages from its conduct; failure to adhere to this duty allows liability for economic damages proximately caused without physical damage. Close proximity of railroad's terminal and airline offices at airport, obvious nature of airline's operations and particular foreseeability of economic losses resulting from an accident and resulting evacuation and railroad's actual or constructive knowledge of the volatile properties of chemicals carried in tank cars would be sufficient to permit airline to recover economic losses due to evacuation following a tank car accident, although it suffered no physical damages. We stress that an identifiable class of plaintiffs is not simply a foreseeable class of plaintiffs. For example, members of the general public, or invitees such as sales and service persons at a particular plaintiff's business premises, or persons travelling on a highway near the scene of a negligently-caused accident, such as the one at bar, who are delayed in the conduct of their affairs and suffer varied economic losses, are certainly a foreseeable class of plaintiffs. Yet their presence within the area would be fortuitous, and the particular type of economic *264 injury that could be suffered by such persons would be hopelessly unpredictable and not realistically foreseeable. Thus, the class itself would not be sufficiently ascertainable. An identifiable class of plaintiffs must be particularly foreseeable in terms of the type of persons or entities comprising the class, the certainty or predictability of their presence, the approximate numbers of those in the class, as well as the type of economic expectations disrupted.
Robins Dry Dock cannot recover not foreseeable no privity of contract
J’Aire contractor did not finish air conditioning in building on time. Recovery allowed, it was foreseeable not a contract claim because no contract with the restaurant. Have to sue in tort because incidental third party beneficiary, this is a rare case.
Rule: One who causes harm to the commercial relations of another by engaging in a business or trade is subject to liability for: (1) deceptive marketing (2) infringement of trademarks and patents (3) appropriation of trade secrets and the right of publicity (4) other acts or practices determined to be actionable as an unfair method of competition, taking into account the nature of the conduct and its likely effect on both the person seeking relief and the public.
Ely-Norris Safe Co. v. Mosler Safe Co. Defendant's false representation that safes contained explosion chamber held unfair competition, and actionable. Reversed on appeal because Ely-Norris could not prove it actually lost customers because there were other safes on the market with the explosion chamber.
Tuttle v Buck A complaint which states, in substance, that the defendant, a banker and man of wealth and influence in the community, maliciously established a barber shop, employed a barber to carry on the business, and used his personal influence to attract customers from the plaintiff's barber shop, not for the purpose of serving any legitimate purpose of his own, but for the sole purpose of maliciously injuring the plaintiff, whereby the plaintiff's business was ruined, states a cause of action.
INS v. Associated Press "Hot-news" misappropriation claim that survives preemption under Copyright Act is limited to cases where: plaintiff generates or gathers information at a cost; information is time sensitive; defendant's use of information constitutes free ride on plaintiff's efforts; defendant is in direct competition with product or service offered by plaintiff; and ability of other parties to free ride on efforts of plaintiff and others would so reduce incentive to produce product or service that its existence or quality would be substantially threatened.
McCoy v. Mitsuboshi Cutlery, Inc.
(1) manufacturer that produced patented knives under agreement with patentee had implied license, and could resell knives under Texas law as self-help remedy when patentee refused to pay; (2) manufacturer did not commit trademark infringement or unfair competition by reselling knives; and (3) manufacturer did not tortiously interfere with patentee's prospective business relations. McCoy manufactured the knives for Mitsuboshi who had a patent and then sold the knives when Mitsuboshi could not pay for them.
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One of the most common arguments between family members is who has the right to make the decedent's funeral arrangements. If your client wants his executor (personal representative) to be responsible, then consider adding the following language into their will.
My executor shall have the power to employ and make the necessary arrangements for the proper disposition of my final remains in accordance with any written statement by me or, if none, at my Executor’s sole discretion except that it is my desire that I be cremated.
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