Torts Outline

TORTS OUTLINE
DEFAMATION: 
·         The most difficult tort b/c of the 1st amendment “Freedom of Speech & Press”
·         This tort is about one thing only which is Reputation ->Must do harm to your reputation
·         Truth is an absolute defense to any claim of defamation
 
Elements:
1) A defamatory communication has been made
Ø Statements that will tend to diminish a person’s reputation, hold them up to ridicule, or to cause ther people not to be associated with them
Ø Defamatory comm. tend to sound like facts b/c someone is stating facts that tarnish someone’s reputation as opposed to mere insults         
Ø “Ms. Miller cheated on the exam” appears as fact, and is defamatory!
2) Defamatory communication has to be about the plaintiff
Ø If the plaintiff is not mentioned by name, then you put in your pleadings what is known as the colloquium
Ø Set out the facts that make it obvious defendant was indeed talking            about the plaintiff
3) Remark or statement has to be communicated to a third party
Ø Can be one person or many but must be someone other than plaintiff
Ø Comment must be understandable
Ø If no one understands the comment, it is not actionable
4) Plaintiff must show resulting damages
Ø Can be minor or major (Slippery slope)
Ø At this level, defamatory communication is presumed to be false
Ø Thus, the burden of proof of whether the defam. stmt is true is on the defendant
 
Example: “George & Martha Washington were transvestites”
Ø Can the dead be defamed? NO
·         No interests in our reputation when we are dead
·         Any living person or corporation can be defamed
 
Two Ways to Defame Someone:
1) Slander: Spoken word
·         Has no general or presumed damages meaning that the plaintiff must prove that they have suffered some type of pecuniary injury
·         To recover, plaintiff must show they were effected economically
2) Libel if it is in some form of permanent embodiment (Video camera)
·         Libel is more serious than slander historically speaking
           
Slander Per Se: (statements so severe, no showing of loss necessary)
            1) Stmts that injure plaintiff’s business reputation
            2) Stmts that plaintiff has some loathsome disease (STDs, AIDS, TB)
            3) Stmts saying plaintiff has committed a crime of moral turpitude
            4) Stmts involving the unchasitizing of a woman (today’s time goes for both sexes)
Ø Slander Per Se is important b/c if it is proven, the damage is presumed and no damages need be proven separately! (Plaintiff’s dream)
 
Ø Shyster is typically thought to be a defamatory statement
 
Ø Everyone who repeats a defamatory statement has personally liability w/ Slander Per Se
 
 
Public Officials: Office they hold has to be rsbly high to qualify as a PO (Sherriff, senator, etc.)
Public Figure:  (Hillary Clinton)  If she wants to sue, she has an additional burden of proof
Ø She has to prove that the defamer acted with actual malice
 
Actual Malice: person knew what they were saying was false or if they did
not point blank know it, they acted with reckless disregard to the truth or falsity of it
 
·         Reckless disregard for the truth or with actual knowledge that it was false
 
Ø You can invest a lot of money in a defamation case when it involves a public figure
Ø An accusation can effect a person’s career in a magnificent way (lawyer accused of rape)
Ø When the group gets too large, the court is not comfortable in giving each and every member of the group a cause of action
Ø The larger the group, the less credibility the defamatory claim can have
 
Defamatory Statements:
 
-Private Person v. Private Person
            -Defam. elements
 
-Public Official or Figure v. Anyone
            -Defam. elements
            -must prove actual malice
            -this is the toughest category to be in
 
-Private Person v. Media (Press)
            -no proof of actual malice to win the case
            -is it a matter of public concern? if yes, then P has to prove next two things:
            -must prove falsity of the stmt
            -also prove some level of fault
 
Ø if P is in a matter of public concern, the burden of proof for whether the stmt is false or not falls back on the P when the media is involved
 
 
 
**Gertz case** All Gertz had to do to change his status from strictly private figure to a limited purpose public figure would be to hold a couple (maybe one) press conference
-But he was involved in a matter that concerned the public
-Having to prove falsity complicates