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Torts II
University of Kansas School of Law
Kautsch, M.A. (Mike)

Torts II
Fall 2000
I.                   Defamation
a.        Elements
1.      False and defamatory statement by D
2.      “of and concerning P”
3.      Publication to a 3rd person
4.      “Scienter” (level of fault in making false statement)
5.      Damages
1.      Nature of Defamatory Communication
a.       Belli v. Orlando Daily Newspaper
Facts: Atty sued a newspaper who printed story that atty charged a bunch of clothing to hotel at Florida Bar Assoc.’s expense.
Issue: Is the publication false and defamatory?
Appellate: Publication is capable of defamatory meaning; should go to jury.
      Steps for determining first element of defamation:
1.      It is for the COURT to determine whether the words are reasonably capable of a particular interpretation.
2.      It is then for the JURY to say whether they were in fact understood as defamatory. If multiple meanings, jury decides which meaning is meant.
(For examples, see p. 838)
b.      Grant v. Reader’s Digest Association
Facts: P accused (by D) of being representative of Communist party.
Issue: Is this a false and defamatory statement?
Holding: The statement carries a defamatory meaning if a significant # of people change their opinions of the P, (hurts the P’s reputation). Courts do not consider how “right-thinking” people are affected (sensitive, enlightened).
c.       Kilian v. Doubleday & Co.
Facts: War vet wrote an article about events he had heard about in a prison camp in England. Author changes from 3rd to 1st person and discusses the cruel and unusual punishment allowed by P. D is publisher.
·         P’s name was not used in article, but was acquitted of similar charges (noted in footnote).
·         D brought in 3 witnesses from the camp that said some events were close, but not exact to story—substantially true.
·         Substantially true is a defense so long as what is inaccurate does not go to the heart of the matter.
Holding: new trial awarded. (Jury verdict in TC for D).
Criminal libel- does not matter whether true or false
Civil libel- must have a false statement
Common law- truth is an affirmative defense, D must raise and has burden of proof.
Modern law- burden of proof is on P, P must prove in P case-in-chief.
Libel proof- have no reputation left to damage because of so many past bad activities.
            2. “Of and concerning” the D
a.       Neiman-Marcus v. Lait
Facts: P are 3 employee groups that are defamed by D’s book.
Issue: Is there a cause of action when a publication libels some or less than all of a designated small group.
Holding: salesmen have a cause of action because it was alleged that most are fairies (15 in group) while saleswomen have no cause of action because general language and group too large (380).
STEPS (look at these to consider actionability):
1)      class size (25 is as large as caselaw has allowed)
2)      # actually referred to (refers to an ascertained person)
·         Large group- no cause of action
·         Small group- all have a cause of action
·         1 of 3 is a crook- no cause of action (not ascertained)
·         Referring to most of the people in a small group- each person in the group has a cause of action.
·         Must be living to have an action for defamation—unless—
·         It defames someone living. Ex: deceased never married mother of P’s child.
·         Injurious falsehood- can damage property of deal people by a defamatory statement
·         A corp., partnership can be defamed in the way it conducts its activities- honesty, credit, efficiency, business character
·         Non-profit corp.- defamation allowed if statement keeps people from contributing funds.
b.      Bindrim v. Mitchell
Facts: P is psychologist that conducts nude therapy. D is a novelist who participated in the therapy and signed a contract not to write about it. D wrote a book about it. She described the technique but did not disclose P’s name, nor did the doc in her book depict P.
Analysis of elements:
1.      defamatory statement- Doc used abusive language
2.      of and concerning P- 3 witnesses who were at therapy said same type of therapy.
3.      Published- novel
4.      Scienter- D knew P did not act that way towards patients
5.      Damages (Beke says none- D should have won).
Test for fiction: whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the P acting as described.
Test when P not identified: whether a reader with knowledge of the surrounding circumstances could have reasonably understood that the words referred to the P. Fictional or actual conduct for jury to decide.
Holding: P wins.
·         Disclaimer- does not give someone blanket immunity
Libel- written or permanent
Slander- oral defamation- must prove special damages
c.       Shor v. Billingsley
Facts: action for a nationwide telecast. D is a nationwide radio station. DJ adlibbed a remark that P owed everyone money—no script.
Issue:whether action based on a telecast not read from a script is libel or slander.
Holding: radio and t.v. are treated as libel.
·         New technology is treated as libel because it has the impact of reaching millions.
·         A speech read to a large group is slander because it is so similar to the public definition of what slander consists of.
·         Oral statement repeated from a written statement is libel.
d.      Terwilliger v. Wands
Facts: D says that P is having an affair and P would do anything to keep woman’s husband in jail so that he could have access to her.
Issue: Can P recover?
Holding: statement did not damage character- no slander per se—must prove special damages.
      In libel- assume damages to reputation
      In slander- must prove special damages or fit into a slander per se
Special damage examples: lost of marriage, loss of hospitable gratuitous entertainment (sex), preventing a servant or bailiff from getting a place, loss of customers.
     -whenever a person is prevented from receiving that which would otherwise be conferred upon him. (today, need pecuniary damages, economic loss.
Slander per se
1)      imputation of a major crime
Major crime- must be one involving “moral turpitude” defined as “an inherent baseness or vileness of principle in the human heart.”
2)      Loathsome Disease
-Leprosy and venereal disease- old cases-
-AIDS- (no cases extending to this disease)
3)      Business, Trade, Profession or Office
-if words are likely to affect P’s business, trade, profession or office (must be relevant to the qualification) probability of some “temporal” damage is sufficiently obvious. Ex: English professor is illiterate- okay. But, prof. is a coward- qualification not relevant
4)      Serious sexual misconduct
–          applied only to sexual intercourse of an unmarried woman
–          may be meaningful today thru religion, ethnic culture, double standard for women.
Libel per se and Libel per quid
1)      per se- clearly defamatory on its face
2)      per quod- have to look at extrinsic facts to see the defamation.
-Don’t use per quod any more-only a descriptive term.
            3) Publication to a 3rd person
a.       Econompoulos v. A.G. Pollard
Facts: P accused of stealing a handkerchief. Some one stated this in English.
Holding: no publication
–          Any third person must hear the statement, here, ct says no one else heard but P
–          Must be intentional or at least negligent—eavesdropping does not qualify
–          3rd person must be able to understand statement—diff language no publication
–          2 meanings of a word, both understandable- then question of which meaning was understood.
–          Dictating a letter- publication, but might be privileged
–          Send a letter to P, P shows someone else- not publication, unless P has to have someone else read to him (blind, illiterate).
–          P tells new employer of why terminated (defamatory nature about old employer) by old employer –cts split about whether employee is liable.
–          Failure to remove defamation- D can be liable if on notice it was there or should have known it was there.
–          To repeat defamation is defamation; original speaker and the one who repeats are both liable.
b.      Ogden v. Association of the United States Army
Facts: Statement made in an article
Issue: Whether there is a cause of action for every sale or delivery of a copy of a book, periodical, newspaper or only one cause of action?
Holding: SOL runs at time of original publication
–          Only one cause of action
–          Damages are adjusted according to magnitude of sales
–          Reprinting of a book (2nd publication)
–          Rerun of a movie (2nd publication)
–          If paper prints more than one edition- may be separate publication for each edition
4. Scienter
            Secondary Publishers-
·         A distributor of a paper, book, etc. is a secondary publisher and is not liable if he had no knowledge of libelous matter in the publication and had no reason to be put on guard.
·         T.V.- local stations broadcasting major network- not secondary publisher—no fault.
a.       New York Times Co. v. Sullivan
Facts: NY Times ran an ad about Civil Rights, Dr. King, etc. Ad says: police did awful things to blacks and specific events were stated that were not correct. P is elected commissioner in charge of PD. (Need extrinsic evidence to meet of and concerning element). 
Holding: jury- P wins; S.Ct.:
S.Ct.: public officials should not be able to recover for defamatory statements about their official conduct unless there is proof of actual malice (knowledge of false statement or reckless disregard for the truth).       
·         Actual Malice- if you knew statement was false or if you held a reckless disregard for whether statement was true or not.
·         Public Officials- anyone whose job is such that people are interested in their qualifications or job performance (no gov’t official too low)
·         If the official can show actual malice = defamation action.
·         Public Figures- rule extended to them (broad)
1) Celebrities
2) Individuals who are not normally public figures, but become public
figures by interjecting self into some public debate
·         Defense of Fair Comment- common law privilege of opinions and comments—limited to only opinions and did not immunize statements with incorrect facts (3/4 states say)
·         Matters of Public Interest- anyone involved in a matter of public concern is also subject to the NY Times rule (actual malice) (Rosenbloom).
b.      St. Amant v. Thompson
Facts: televised interview was read over radio at a later date. The answers to question were read, and the answers were false statements about P, an officer running for public office. D did not attempt to check the facts.
Issue: Reckless disregard?
Holding: S.CT: not enough evidence of reckless disregard. There must be sufficient evidence to permit the conclusion that the D in fact entertained serious doubts as to the truth of this publication.
Standard for Reckless Disregard:
·         Good faith standard
·         No good faith if based on an anonymous phone call (Butts)
·         Lack of verification, personal knowledge or doubt
c.       Masson v. New Yorker Mag.
Facts: D did an interview with P and in her publication; she puts things in quotation marks that are not exact quotes. “Intellectual gigilo” & “sex, women and fun.”
Issue: Was the false publication done maliciously?
Holding: ct focuses on actual malice—satisfied only whe

agencies that have quasi-judicial proceedings if in nature of judicial proceedings.
·         No remedy if there is an absolute privilege
b)      Legislative privilege- anything Senator or Congressman says on floor is privileged.
·         Statement does not have to be relevant
·         Includes witness and staff members that speak on floor, papers and reports given.
·         Does not authorize outside statements that are defamatory, ex: newsletter to constituents not covered.
c)      Federal executive branch government employees (pres, vp, all the way down.
·         Limitation- statement must be made in course of and arising out of employment
d)     State employees (governors, heads of state, etc.)
·         Limitation- people who are not at the top of the list (police officer) only has a qualified privilege, so if statement made with malice, no privilege.
e)      Forced publication- compelled
·         Ex: bankruptcy notice- absolute privilege because newspaper must print it
·         Political advertisement- station cannot insist on changes, so station is privileged.
2)      qualified or conditional privilege
a.       Sindorf v. Jacron Sales Co., Inc.
Facts: D was P’s former employer. D made false accusations to P’s new employer about watching their inventory because P may have stolen while employed with D.
Issue: conditional privilege?
Holding: Former boss allowed to give reference about former employee. This is a conditional privilege. Privilege depends on whether former boss volunteered info or was asked by new boss. Here, former boss went to new boss for bad motive- so abused privilege.
      Can lose conditional privilege by
1)      malice
2)      excessive publication
3)      go beyond purpose of communication
·         lose privilege if any fault (negligence)- old cases
Today- require actual malice
                                    Conditional privilege applies:             p. 930
1)      reports to gov’t (police) by citizens are qualified privileged unless malicious
2)      fair comment- opinion based on fact- facts must be true
3)      protection of interests of a 3rd person
4)      agencies performing a legitimate function
            5. Damages
a.       actual damages
·         impairment of reputation, standing in community, personal humiliation, mental anguish and suffering (can be pecuniary, not presumed)
·         damage of emotional distress—some cts allow (KS does not)—must have actual damages—something substantial
b.      punitive damages
·         must show actual malice to get punitive damages
c.       nominal damages
·         not normally given under defamation (some cts say may be allowable)
d.      Mitigation of damages
·         Provocation by P is admissible
·         Evidence that P’s reputation is bad is also admissible
·         Rumors are admissible if shown to be widespread
e.       random thoughts
·         qualified privilege to defame back
·         retraction statutes- may be relevant to malice—problem- people who heard the defamation may not read the retraction–varies from state to state
II.                Privacy
a.       Use of a celebrity name to sell something
Flake v. Greensboro
Facts: Local paper advertised using name of the star of a theatre show and her picture. Pic ended up being someone else.
Issue: Does an individual have a right to prohibit the use of an unauthorized use of an image?
Holding: unauthorized publication of P’s photo in connection with advertising gives rise to cause of action. (KS- limited to commercial use). P only gets nominal damages because it was a mistake without malice and the newspaper desisted the ad.
·         Exploitation of name or likeness
·         Survives death of P (carries over to the estate)
·         Note 6- have right to prevent press from showing on t.v. (ex: human cannon ball- if shown on t.v., no one would pay to come see it).
·         Must exploit name or likeness, not just use it (ex: if you have the same name of a famous person, okay to use, just cannot exploit).
b.      Intrusion Upon Seclusion
Pearson v. Dodd
Facts: (conversion and privacy case) A couple a Senator’s former employees entered P’s office without authority and slipped private papers to the newspaper to have printed. D is the publisher.
Issue: Cause of action- intrusion upon seclusion- form of invasion of privacy. Whether D improperly intruded into a protected sphere of privacy of P.
Holding: No cause of action. If you are in the public, you do not have the same expectation of privacy. Publication itself is not an invasion of privacy. Role in obtaining info does not make them liable.