TORTS
CHAPTER 2 - INTRODUCTION
TO TORTS AND LEGAL ANALYSIS
1. Definition of tort
Civil
wrongs, other than contracts, resulting in injury or damage, for which money
damages may be awarded.
The
wrongdoer is called the tortfeasor.
2. Categories of torts
Intentional: generally are also crimes - as an intentionial
wrongdoing that causes damage or injury would also be criminal.
Negligence: no intent to harm anyone, but a failure to live up to a reasonable level of behavior.
Strict
liability: liability without any
fault whatsoever.
3. Court cases as main
source
Common
law, as found in court cases, is the basic underlying source of tort law. They set out the rules and principles of
tort law and provide factual examples of the application of those rules and
principles.
When
you read a case, try to pull a rule from it and then see how the rule is
applied to the facts of that case.
4. Distinguished from
contracts
The
legal obligation under a contract arises from the contract itself and the
plaintiff is therefore limited to recovery for breach to the terms of that
contract (excluding resulting damage).
5. Goals of tort law
1) compensation
- to make the victim whole again
2) justice
- the person causing the injury or damage should be the one held responsible
3) deterrence
- to deter the same activity both from that person and others in society
4) prevention
of self-help remedies - as with criminal law, this helps prevent people
from taking the law into their own hands.
CHAPTER 6 - INTENTIONAL TORTS
- INJURIES TO PERSONS
6. The act must be
voluntary
Movement
during an epileptic seizure would not be voluntary.
Reflexive
actions (such as putting out your hand to avoid falling) are not considered
voluntary (although the text suggests otherwise).
7. Specific v. General
intent
With
specific intent, the actor has a particular goal in mind.
With
general intent, the actor intends the act itself but has no particular
goal in mind. So conversion (which is
the civil version of larceny), the actor must intend to keep the goods
permanently when he takes them -- the specific intent to steal.
8. Motive
Do
not confuse this with motive, which is the underlying reason for doing
something.
Motive
is generally not an element in most torts.
Although it might allow the award of punitive damages, which can be
awarded for intentional torts involving malice.
9. Transferred intent
Applies
when a person intends to commit a tort against one person but instead:
a)
commits a different tort against that person
b)
commits the same tort against a different person
c)
commits a different tort against a different person
So
if A swings a bat at B, intending only to frighten him (assault), but he hits C
with it, A=s intent to frighten B is transferred to C and he is
guilty of a battery on C.
10. Tort and crime in
the same act
The
same act can be both a tort and a crime (assault, battery, conversion,
trespass).
They
can be brought at the same time as separate actions.
An
adverse decision on one does not preclude a finding for the plaintiff on the
other.
The
result (conviction or judgment) on one cannot be used as evidence in the other,
but testimony in one can be used as evidence in the other.
As a
general rule, one cannot insure himself against intentional torts (or criminal
acts) he might commit -- this is against public policy.
Very
often, those who commit intentional torts are judgment-proof.
ASSAULT
11. Elements
The
tortfeasor=s placing another in fear or apprehension of an
imminent battery.
12. Threatened harm
must be imminent
The
threat of a future battery would not be assault.
Also,
there is no assault if the defendant is too far away to do any harm or is
merely preparing for a future act.
13. Apprehension, not
fear, required
Apprehension,
not fear, is all that is required. This
really means expectation.
The
apprehension is judged by a person of ordinary sensibilities (a reasonableness
standard). Courts will not generally
protect a plaintiff against exaggerated fears of contact (unless the defendant
knows of this unreasonable fear and uses it to put the plaintiff in
apprehension).
There
must be the apparent present ability to carry out the threatened battery.
Otherwise there would be no
apprehension. A defendant can commit an assault even if he in fact cannot carry
it through (as long as it appears as they he can).
14. Mere words
Mere
words, however strong, if unaccompanied by some overt act, will not consitute
an assault.
But
words may explain an act and thereby make a gesture into an assault.
Or
they may make what otherwise would be an assault into no assault at all (as in
the statement, >If you were bigger, I=d knock your block off=).
The
text suggests that it can be defined as the attempt to commit a battery. This is true in criminal law, but not in
tort, as there must be damage -- which is the apprehension. Thus, attempting a battery, about which the
victim is unaware, would not be a tort.
Other point
Punitive
damages can be awarded if done with malice.
BATTERY
15. Definition
An
unlawful touching -- it is a completed assault. It is the intentional touching of another in a harmful or
offensive manner without consent.
Don=t confuse the above with an unwanted touching --
although this is sometimes accurate, it is not always (as in the case of
execution, spanking, self-defense) so it cannot be part of the definition -----
it is really an unlawful touching.
Physical
contact is required, although it may be only with the victim=s clothing or object that is being carried.
The
physical contact can occur in one of two forms:
A)
those which cause physical harm (bruises and broken bones)
B)
those which do not cause harm but are offensive or insulting
(spitting on someone or
patting someone on the fanny)
The
victim need not have been aware of the contact (as in assault cases) -- such as
a pickpocket or unauthorized operation).
16. Judged by a person
of ordinary sensibilities
Same
rule as for assault -- again, if the defendant is aware of a person=s extreme sensitivity, a battery can occur.
17. Necessary intent
If
there is no intent, the action might lie in negligence instead.
But
the accused need not have intented the harm as long as he intended the act.
18. Consent
If
the plaintiff consents to the contact, the defendant is privileged to make it
and there is no tort. But a person
cannot legally consent to that which is likely to cause death or serious
bodily harm.
FALSE IMPRISONMENT
19. Definition
The
confinement of someone without consent.
This
confinement must last for an appreciable amount of time and there can be
no reasonable means of escape.
The
essence of the tort is the mental harm caused by the knowledge that you are not
free to move about at will.
20. Awareness by the
victim
The
plaintiff must be aware that he is confined or there is no tort.
Merely
to block one=spath in one direction is not false imprisonment.
Restraint
can be by physical force (or the threat of force) or by duress sufficient
enough to vitiate consent.
It
will also lie if the physical force is directed at a member of his immediate
family.
An
action may also lie if the force is directed against the plaintiff=s property -- in one case, a woman refused to
leave her building because her purse had been wrongfully confiscated by the
defendant. She could have left the
building but that would have necessitated leaving her purse behind.
Mere
social or moral pressure is not enough.
21. False arrest
This
occurs when done under color of law
The
police can make an arrest on probable cause for a misdemeanor committed
in their presence or for a felony. .
21. (Again) Police
power v.citizens=
arrest power
A
citizen can make an arrest for a breach of the peace misdemeanor or for a
felony but is not protected with the probable cause umbrella -- so they would
be liable for false imprisonment if the crime was not in fact committed.
18.2-105
- Merchants may cause an arrest or detention of a suspected shoplifter on
probable cause. Merchant may hold a
person for up to one hour under this statute.
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
22. Arguments against
this action
Courts
are reluctant to allow actions for purely emotional injury.
There
is a fear of false claims and a feeling that the courts should not get into the
business of redressing wounds to the ego.
But
where the conduct is so outrageous that a strong emotional response is likely
to be evoked in a normal person, many courts allow this cause of action.
23. Virginia=s requirements
Virginia allows recovery for mental distress if the
action was calculated to bring about such distress. And the conduct must be outrageous and shock the conscience
-- conduct that transcends all bounds of decency.
Mere
words could constitute a basis for this action (unlike assault cases) as long
as they are truly outrageous (such as telling someone that their child was
killed).
This
would generally not include offensive or insulting language (unless there is a
special relationship between the parties or a sensitivity on the plaintiff=s part of which the defendant is aware).
24. Duty of common
carriers and innkeepers
They
owe special duties to their patrons that will be a basis for liability even
when the act is something less than outrageous (such as a bus driver making
insulting remarks to a passenger).
Other
situations in which the degree of outrageousness of the behavior is lowered is
when the victim has heightened sensitivity (such as children, the mentally
infirm, pregnant women and the elderly).
Other point
This
tort can occur by intentionally causing severe physical harm to one person in
front of a third party (related to the victim) and thereby causing
severe emotional distress to that third party. This requires that the defendant
be aware of the presence of the third party and that the action is likely
result in emotional distress.
But
otherwise, bystanders who happen to witness an act will not be included as
victims.
The
doctrine of transferred intent does not apply to these cases -- but
third party recovery pretty much serves the same purpose
25. Reckless conduct
Defendant
wil be liable not only for his intentional conduct but also for reckless
conduct (acting in reckless disregard of a high probability that emotional
distress will result).
But
you must intend to cause emotional distress. If you intend a battery, and fail,
thereby causing emotional distress, recovery would lie only under negligence
rules (which means there must be some physical symptoms before recovery can be
had).
26. When infliction is
only negligent
There
must be physical symptoms of the emotional damage.
Virginia
requires there be physical injury which can be shown by these physical symptoms
of that injury (which is in fact emotional damage).
Remember
that when there is physical impact, recovery for the accompanying emotional
distress will always be permitted.
27. Damages
Actual
damages must be shown.
Bar review example
Gracie
is pathologically afraid of Republicans.
George, not realizing this, puts on a Richard Nixon mask, hides under
Gracie=s dining room table, and pops up when she sits down to
dinner. She faints and suffers
emotional anguish for months. Is he
guilty of intentional infliction of emotional distress?
No
-- The conduct must objectively outrageous -- it would have to be
outrageous to a person of ordinary sensitivities. It would only take into account any unusual sensitivities only
if the defendant were aware of them.
Case #1 - Ruth v.
Fletcher, 237 Va. 366 (1989)
Intentional
infliction of emotional distress.
Defendant
had sexual relations with two men (the plaintiff and a bartender) within less
than a week. She became pregnant and
convinced the plaintiff that he was the father. He provided emotional support during the pregnancy and birth and
later provided monetary support for the child and established a visitation
schedule. The child grew to love him and regarded him as her father.
The
defendant married a third man, who wished to adopt the child. The plaintiff refused to give consent to the
adoption. The defendant then told him
that the bartender was really the father.
She then cut off the plaintiff=s
visitation rights and proved that the child was not his.
Plaintiff
sued for intentional infliction of emotional distress and was awarded
$35,000.00 in damages. The judgment was
reversed on appeal.
The
elements of the tort of intentional infliction of emotional distress are that
the wrongdoer=s conduct was intentional or reckless, that it was
outrageous and intolerable; that there was a causal connection between the
conduct and the distress, and that the emotional distress was severe.
Plaintiff
must prove such a case by clear and convincing evidence.
There
was no proof that the defendant=s conduct was
intentional or reckless, that she set out to convince the plaintiff that the
child was his, and to cause him to develop a loving relationship with the child
so that she could later hurt him by taking the child away.
Case #2 -- Womack v.
Eldridge, 215 Va. 338 (1974)
The
defendant was hired as an investigator by Richard Seifert and his attorney to
obtain a photograph of the plaintiff to be used in a trial against Seifert, who
was charged with molesting two young boys.
They wanted to show such photograph to the boys at the preliminary
hearing and see if they would identify the plaintiff as the one who molested
them. They had no reason to suspect
that he was and were basically trying to trick the boys into identifying the
wrong man.
The
defendant went to the plaintiff=s home and said
that she was doing an article on the school where the plaintiff was a coach and
that she wanted a picture of him for the article. He agreed to be photographed.
At
the preliminary hearing, Mr. Seifert=s
lawyer showed the photograph to the boys and they said he was not the one who
had molested them. The prosecutor asked to see the photo and requested
additional information about the plaintiff. The defendant then was called to
the stand and supplied the plaintiff=s
name and address.
The
photo in no way resembled Seifert. The
only reason given by the defendant for taking the picture was that he was at
the school when Seifert was arrested (although the alleged offenses did not
occur at the school).
The
prosecutor directed a detective to bring the plaintiff to court. He appeared voluntarily and testified as to
the circumstances under which the photo was taken.
The
plaintiff was questioned several times thereafter by the police. He was summoned to the grand jury but was
not called and was summoned to appear at Seifert=s trial on several occasions (due to continuances).
He
testified in his own civil action that he suffered great shock, distress and
nervousness. He also suffered great
anxiety as to what people would think of him and feared that he would be
accused of molesting boys. He had been
unable to sleep while the matter was being investigated and, while testifying,
he became emotional and incoherent. His
wife testified that he experienced great shock and mental depression from the
involvement.
The
trial court found for the defendant on the ground that there could be no
recovery for emotional distress in the absence of physical damage or other
bodily harm. This was reversed on
appeal, stating:
>A
cause of action will lie for emotional distress, unaccompanied by physical
injury, provided four elements are shown: 1) the wrongdoer=s conduct was intentional or reckless. This element is satisfied when the wrongdoer
knew or should have known that emotional distress would likely
result. 2) the conduct was outrageous and intolerable in that it offends
against the generally accepted standards of decency and morality. This requirement is aimed at limiting
frivolous suits and avoiding ligitation where only bad manners and hurt
feelings are involved. 3) there was a causal connection between the conduct and
the emotional distress. 4) the emotional distress was severe.
A
jury could conclude that the defendant acted recklessly. There is no evidence that the plaintiff may
have been involved in the child molesting cases. The only possible excuse for involving him was that Seifert had
been arrested where the plaintiff was employed. A reasonabe person would have
recognized the liklihood of the serious mental distress that would be caused in
involving an innocent person in a child molesting case.
Case #3 -- Hughes v.
Moore, 214 Va. 27 (1973)
Negligent
infliction of emotional distress.
Plaintiff
was standing in a doorway in her home between the kitchen and the living room
looking through a picture window when she heard a noise and saw the headlights
of the defendant=s car shining into her living room. The car then crashed into the front porch of
the house, and after the initial collision, it moved back and forth several
times against the porch.
The
plaintiff froze in her tracks and screamed.
She became weak and felt as if her legs were going to fold under her.
She became very nervous, could not sleep that night, and had pains in her chest
and arms as the result of the collision.
Although she received no physical injury from without, she could not
breast feed her three-month old baby for lack of milk, and her menstrual period
started. Her doctor referred her to a
psychiatrist, who diagnosed her condition as anxiety reaction with phobia and
hysteria.
Judgment
for the plaintiff was affirmed:
>...where
conduct is merely negligent, not wilful, wanton or vindictive, and physical
impact is lacking, there can be no recovery for emotional disturbance alone. We
hold, however, that where the claim is for emotional disturbance and physical
injury resulting therefrom, there may be recovery for negligent conduct,
notwithstanding the lack of physical impact, provided the injured party
properly pleads and proves by clear and convincing evidence that his physical
injury was the natural result of fright or shock caused by the defendant=s negligence.
Case #4 -- Naccash v.
Burger, 223 Va. 406 (1982)
Negligence
in blood testing caused the parents to be unaware of a possible genetic
disorder in the fetus (Tay-Sachs disease), thereby depriving the parents of the
opportunity to make an informed decision as to abortion.
As a
general rule, damages for emotional distress are not recoverable unless
resulting from physical injury, but 2 exceptions have been made: 1) when
physical injury results from the emotional distress and (2) when the tort is
intentional or reckless.
This
case justifies a third exception to the general rule: When there is no
suggestion that the emotional distress was feigned or that the claim was
fraudulent -- and when there is an unbroken chain of causal connection between
the wrongdoing, the result and the emotional distress which followed.
FRAUD AND
MISREPRESENTATION
29. Deciet
A
false representation of a material fact (past or present) knowing it to
be false (or acting with reckless indifference to the truth) with intent that
the plaintiff rely on it -- and the plaintiff must in fact have acted in
reliance on it.
The
statement must have been about a fact, not an opinion.
30. Statements as to
quality and value
Statements
as to quantity are considered factual, whereas statements as to quality and
value are considered opinion.
However,
if the defendant has a superior knowledge of the subject matter (such as an
auto mechanic), his fraudulent statement can be considered factual.
31. Statement as to
future events
Statements
of future events are viewed as statements of opinion, unless they may be
characterized as statements of a present intent to do something in the future
(such as a promise to pay back a loan).
Such a statement is generally limited to situations in which the
defendant has control over the future event.
Incomplete
statements, designed to be misleading, are actionable.
32. When there is a
duty to disclose
There
is no general duty to disclose a material fact or opinion. This is not considered
misrepresentation. An exception to this
rule is if the defendant stands in a fiduciary relationship to the
plaintiff.
33. Scienter
The
defendant must have known the representation to be false (or to have been made
with reckless disregard as to its truth or falsity).
34. Third party
reliance
If a
statement is made to someone and another relies on it, the defendant will be
liable to that third party if he should reasonably have forseen that that third
party would so rely on it.
Example:
if the defendant sends a false profit statment to a stockbroker and a client of
that stockbroker relies upon that statement to his detriment.
Other point
Subsequently
acquired information must be
disclosed if it makes previously supplied information faulty.
35. Defenses
If
the plaintiff justifiably relies on a fraudulent misrepresenation, he will not
be barred by his own contributory negligence.
This
is likely due to the fact that it is an intentional tort -- and contributory
negligence should not offset an intentional tort.
36. Duty to investigate
There
is no duty to investigate (unless the plaintiff is on notice that something is
wrong) even if it would be relatively easy to check out.
However,
if he does investigate, he may not rely on representations by the defendant
which are inconsistent with what his investigation produces.
MALICIOUS PROSECTION
37. Elements
Institution
of criminal proceedings -- such
as a warant or arrest.
Termination
of the proceedings in favor of the plaintiff -- but this must indicate the innocence of the
accused (not a dismissal because a witness did not show up, or as part of a
plea bargain, or some other technical reason).
38.
Absence of probable cause - This
can be established by showing either that there were insufficient facts for a
reasonable person to believe in the plaintiff=s guilt or that the defendant did not in fact believe the plaintiff to
be guilty.
A
grand jury indictment is prima facie evidence of probable cause. But the failure of a grand jury to indict is
not evidence of lack of probable cause.
Improper
purpose in bringing the charge --
this is satisfied when it is shown that the defendant=s primary purpose in bringing the charge was something
other than bringing a person to justice.
Other points
Wrongful
institution of civil proceedings --
the same general rules apply here except it is harder to show a lack of
probable cause because a reaonable person would more readily file a doubtful
case where the only consequences to the person sued are civil.
INVASION OF PRIVACY
39. Appropriation of plaintiff=s picture or name
This
involves the unauthorized use of the plaintiff=s picture or name for
the defendant=s commercial advantage. It is limited to the promotion or advertisement of a product or
service.
Merely
to include a person=s name in a magazine article would not suffice.
Example:
the ads selling the heart-saving machine for the home that shows 6 people each
holding the maching and showing the date when the machine saved their
lives........this must be approved by each of them.
40. Intrusion into
plaintiff=s affairs or seclusion
This
includes the act of prying or intruding into the affairs or seclusion of the
plaintiff.
This
intrusion must be something that would be objectionable to a reasonable person.
It
also must be considered private. So the taking of photographs of a person in a
public place is not actionable. Nor
would the checking out of public records on someone.
But
putting a microphone in the plaintiff=s
bedroom would be.
This
would also include peeping toms, wiretaps, property searches and tampering with
one=s mail.
41. Public disclosure
of private facts
These
facts may in fact be true. But there is
no legitimate reason for their disclosure.
To
be actionable, the disclosure must be such that a reasonable person of ordinary
sensibilities would find it objectionable (such as the showing of a video of a
woman=s Caesarean section operation).
But
if the matter is of legitimate public interest, the publication will be
privileged. Thus, President Reagan=s colonoscopy results would be privileged.
There
is an absolute privilege with regard to matters of public record, such as the
name of a rape victim obtained from court records and used in a newspaper
article.
42. Public figures
Even
in the case of a celebrity, when the publications are so intimate as to outrage
the average person=s notion of decency, and when they disclose facts that
did not occur in public, they will not be privileged. But public figures cannot be found to complain when the
disclosure is about facts of legitimate public concern or interest.
43. Publication of
facts placing the plaintiff in a bad light
The >false light=
must be something that would be objectionable to a reasonable person under the
circumstances. It can include views the
plaintiff does not hold or actions that he did not take.
Example:
placing a picture of a cab driver over an article describing cheating going on
in the taxi business (when the person in the picture was not involved).
44. Generlities as to
all right of privacy cases
The
right of privacy is a personal right and does not extend to members of a family
and does not survive the death of the plaintiff.
It
does not apply to corporations.
DEFAMATION
45. Elements
A defamatory
statement is one which tends to injure a person=s reputation by holding him up to shame, disgrace or
ridicule.
A
false statement which does not include the shame element is not
defamation. So saying a person is not a
member of the republican party when in fact he is (and thereby causing him to
lose an election) is not defamation.
His reputation
must be shown to exist among a substantial group of respectable
people.
It
must be false, there must be fault, and there must be publication
and damage.
46. Truth as a defense
It
is up to the plaintiff to establish that the statement was false.
Earlier
cases required the defendant to raise truth as an affirmative defense in order
to prevail. -- This seems to be the
better rule since it is difficult for a plaintiff to establish that something
did not happen, and easier for the defendant to prove that it did.
47. Public figures v.
Priave individuals - different levels of proof
The
fault that is required differs with the type of plaintiff involved.
Public
figures - include those who have a
degree of fame and are considered figures for all purposes (movies stars, etc.)
as well as those who have been drawn into particular controversies (such as a
community activist) who is considered a public figure only for that limited
range of issues.
It
is rare that a person is considered a public figure without having
intentionally injected himself into the public light -- so merely being the
mother of quintuplets would not make a person a public figure.
Private
individuals - the level of proof necessary to establish a case is lower than
for a public figure.
48. Damages
For
a private individual to recover compensatory damages, he must
prove by a preponderancy of the evidence that the defendant either
knew the statement was false or, if believing it to be true, lacked
reasonable grounds for such belief, or acted negligently in failing to
ascertain the truth.
For
a private individual to recover punitive damages -- or a for a public
figure to recover compensatory damages, he must prove by clear
and convincing evidence that the defendant knew that the
statement was false or acted with malice (which is defined in
defamation cases as acting with utter disregard as to whether the statement was
true or not).
For
a public figure to collect punitive damages, he must show that
the defendant acted with actual malice (ill will).
Private
individuals are held to a lesser
standard because they are more vulnerable to injury from defamation in that
they do not have realistic opportunities for rebuttal as public figures do.
49. Inducement and
innuendo
If a
statement is defamatory on its face, it needs no additional facts to show why it is defamatory.
But
if a statement alone would not be considered defamatory, other facts are
necessary to establish defamation and an explanation of why it is defamatory
may also be needed.
Example
-- Tom is married to Beth. Alone this
is not defamatory.
(A)
But Tom is still married to Carol.
(B)
It is illegal to have two wives.
The
defamatory meaning is called the innuendo (B) and the extrinsic fact necessary
to make it defamatory is called the inducement (A)
Note
- Statements of opinion are generally not considered defamatory unless
there is intimation that they are based on specific facts known by the defendant
(ie. I would never buy another car from that thief)..
50. Who can be defamed
Only
living persons can be defamed.
Corporations
(or other legal entities) can be defamed (ie. As to their financial condition,
integrity, etc.).
51. Colloquium
Evidence
that tends to show that the statement was intended to appy to the plaintiff in
particular. This would include a
statement that Barbara S. Is the president of the garden club when the
defamatory statement references only the president as the garden club. Statements that show who is being
defamed.
It
must be clear that a reasonable person would conclude that it is the plaintiff
who is being referred to (such as the >the
boy owner= of the Redskins).
52. Group defamation
Each
member of the group can be defamed if the group is small enough.
But
if the group is large, it will not work -- as saying all lawyers are thieves.
53. Publication
Communication
to a third party, who understood it.
So
something printed in a foreign language would only be actionable if you
understood that language.
The
publication can be either intentional or negligent.
There
is no need to establish an intent to defame, only either the intentional or
negligent publication of defamatory material.
54. Damages - general
presumed in libel cases
Libel is written (or permanent) defamation.
General
damages are presumed in libel cases
-- they need not be proven by the plaintiff.
They are designed to compensate the plaintiff for the general injury to
his reputation.
Special
damages, of course, can also be
proven, showing the specific injury suffered.
This might inlcude loss of a job, or a promotion.
55. Damages - in
slander cases
Slander is oral defamation.
Injury
is not presumed in slander cases.
Special damages must be shown, except in the following areas:
56. Slander per se
a) a
statement adversely reflecting on a person=s
ability to conduct his trade or profession
b)
that a person has a loathesome disease
c)
that a person has committed a crime involving moral turpitude (anything done
contrary to justice, honesty, modesty or good morals)
d)
that a woman is unchaste
57. Libel and slander
compared
The
more permanent the form, the more likely it will be considered libel.
The
broader the area of dissemination, the more likely it will be considered libel.
The
more premeditated the character of the defamation, the more likely it will be
considered libel.
TV-scropted
material is considered libel.
58. Privilege as a
defense
Absolute
privilege (even with malice present)
a)
judicial proceedings (all participants)
b)
legislative proceedings
c)
executive proceedings
d)
compelled broadcasts (as when TV has to give equal time)
e)
spousal communications
59. Qualified privilege
a)
reports of public hearings or meetings
b)
public interest - such as statements made to those who are to take official
action (such as testifying before a parole board)
c)
fair comment - criticism about things in the public interest (such as book
reviews)
d)
interest of the recipient - when the recipient has an interest in the
information and the publication is reasonable (such as giving a job reference
to a potential employer)
e)
common interest of the publisher and the recipient - might include teachers
discussing a student who is in both their classes
It
must be exercised reasonably and without malice (as defined in defamation
cases)
In
order to defeat a qualified privilege, the plaintiff must show malice
by clear and convincing evidence.
60. Mitigating factors
Absence
of actual malice (when malice as
defined in defamation cases has been shown)
Retraction - it can reduce the actual damage and shows good
faith
Anger
by the speaker (in mitigation)
Case #5 - Richmond
Newspapers, Inc. V. Lipscomb, 234 Va. 277 (1987)
Some
parents of high school students were unhappy with a particular teacher. One
parent tried unsuccessfully to have the teacher removed. He called the newspaper and a reporter
looked into it, but was unable to interview that particular teacher or other
teachers or the superintendant. An article was written about the difficulty
parents had in getting rid of incompetent teachers. The plaintiff was the only
one who was singled out for particular scrutiny (ie. Lack of preparedness,
absences and conduct toward students).
She
was allowed to recover compensatory damages but not punitive as she had not
shown malice.
NOTE:
a public school teacher is not considered a public official or public figure
(which would have required a showing of malice to collect compensatory
damages). She was not an elected
official and appeared to have no influence on school policy.
This
case relies on New York Times v. Sullivan, 376 U.S. 254 (1964)
which prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with malice (defined as knowledge that it was false or with a reckless
disregard as to whether or not it was false).
Case #6 - Oberbroekling
v. Lyle, 234 Va. 373 (1987)
Plaintiff
was a full-time property manager for a homeowner=s association in a recreational community. He was accused of mismanagement of funds thorugh a memo and
ultimately resigned before being fired.
A few days later, the defendant (one of the board of directors) was
overheard telling another property owner that the plaintiff was a lying,
cheating SOB, that he (the plaintiff) got him, crucified him and nailed him to
the wall.
In
order to defeat a qualified privilege, the plaintiff must show malice by clear
and convincing evidence. Malice
can be established by showing some sinister or corrupt motive or that
the statement was made with a wilful desregard for the truth or with knowledge
that it was untrue.
The
memo was found to be malicious and the later statement was found to be
probative on the issue of negligence (recklessness). Thus both compensatory and punitive damages were appriate.
TRESPASS TO LAND
The
wrongdoer must enter another=s land without
permission.
61. Intent
Mistake
as to the lawfulness of entry is no defense.
Intent to trespass is not required. Only the intent to do the act of
entering is required.
62. The entry
It
is not necessary that the defendant personally come onto the land. A trespass will exist if the defendant
floods the land, throws rocks onto it it chases a third person onto it.
But
when no physicl object enters the property (as a concussion from blasting),
this will not normally be considered trespass, but a case in nuisance or strict
liability if hazardous activities are involved).
Remaining
on the land after the defendant=s lawful right
to be there expires is considered a trespass.
63. The land
The
trespass may occur on the land, and over and above the surface.
This
is generally held to include air space and subsurface space to the height or
depth that the plaintiff can make beneficial use of such space. Thus, stringing wires, flying a plane at a
low altitude, or tunnelling under it, can be a trespass.
64. Who may bring the
action
Anyone
who is in actual or constructive possession of the land, including a lessee
(but his damage is limited to damage to his leasehold interest).
Extra point
Damages
are presumed. Actual damage to the land
is not an essential element.
TRESPASS TO CHATTELS
65. Elements
This
involves the interference with the plaintiff=s
right of possession in a chattel (which is considered a movable object).
Intermeddling - conduct which directly damages the chattel (ie.
Denting a car)
Dispossession - conduct which disposses the plaintiff of his
rightful possession
66. Damages
Actual
damages are necessary.
CONVERSION
67. Compared with
conversion
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