TORTS II OUTLINE – Moore – Spring 2004

 

I.                   VL – there is L b/c there is a r’ship b/w 2 parties and b/c of act by 2d party, (s) is L – not based on fault – wrong imputed based on that r’ship.

a.       CL – required direct command by master à implied commands (ask if EE’s actions are in furtherance of ERs benefits/business)

b.      Lundberg:  an EE’s negligence will be imputed to ER, if EE was acting w/in scope of employment at the time the negligent conduct occurred.

                                                               i.      KEY:  scope of employment

1.      Driving to and from work is not in SOE

2.      EXCEPTION:  EE using his own car acting n SOE (in furtherance of ER’s business) is driving from his last appt.

3.      MAJ – rt of control/SOE

4.      MIN/Cardozo – if ER creates necessity for travel, he is in SOE, even though he is serving a personal purpose at the same time

a.       Ask if conduct is in furtherance of duties owed to ER and if ER could be exercising control over EE. 

c.       Fruit v. Schreiner:  A salesman attending a convention paid for by his ER may be acting w/in SOE while driving back to hotel from a bar in the city where the convention is being held. 

d.      PP

                                                               i.      deep pockets of ER – basis for recovery

                                                             ii.      spread costs (to buyers)

                                                            iii.      ER can buy insurance

                                                           iv.      ERs cannot control EEs as directly as they could in past (hiring, etc.)

                                                             v.      ERs assume the risk of using a 3d party to do your work

                                                           vi.      Enterprise theory – view of EE and ER as one unit

1.      Look at venture they enter into – so ER benefited or would have benefited from EEs acts b/4 accident

2.      If ER negligently hired EE, that would be negligence, not VL.

                                                          vii.      The law protects he is least able to protect himself

e.       Detour & frolic – if ER is doing own errands, on company time, no VL.

f.        ITs – an ER may be held L for ITs of EE, when EE’s ITs are rzbly related to EE’s employment & are therefore w/in SOE. 

                                                               i.      When EE’s ITs are with purely personal motives, he ahs departed from SOE and ER is not L.

g.       Murrell v. Goertz:  ICs – no VL for IC (one who engaged in service for (s) else, but is free from control and direction of ER. 

                                                               i.      EXCEPTIONS:

1.      In the case of a non-delegable duty, person upon whom the duty is imposed is L for IC’s actions in negligently performing that duty (Maloney v. Ruth)

h.       Popejoy v. Steinle:  JE­ – VL if parties acting in JE.

                                                               i.      4 parts to JE:

1.      agreement, exp/imp, among members of a group

2.      to act for a common purpose to be carried out by the group

3.      a community of pecuniary interest in that purpose

4.       an equal right of  control

i.         Shuck v. Means:  BAILMENTS - under many state statutes, the owner of an automobile, who is BR, is VL for the conduct of the BE when driving the automobile with the BR’s permission.

                                                               i.      Consent can spread to (s) not given express consent (subpermittee)

                                                             ii.      Family purpose doctrine – if child using car for family purpose, then VL to parents

1.      Omnibus Clause – clause in insurance policy extending coverage to any member of family or w/BR’s permission

                                                            iii.      Negligent Entrustment – if (s) entrusts car to (s) w/ known bad driving history, L can be imputed

                                                           iv.      CL – BR not L for acts of BE à statutes spread L (PP:  to give remedy for a wrong)

j.        Smalich v. Westfall:  CONTRIBUTORY NEGLIGENCE – П is barred from recovery if П, through VL, could be held liable as a Δ in master/servant and JE r’ships

                                                               i.      A driver’s negligence will not be imputed to a passenger, unless the r’ship b/w them is such that the passenger would be VL as a Δ for driver’s negligence.

                                                             ii.      Owner-passenger/driver r’ship is not enough for VL

II.                SL – Δ must pay damages although Δ was acted neither intentionally nor negligently

a.       ICs – non delegable duties??? (See notes on 1.26)

b.      Animals:  L upon those who keep, possess, or harbor the animal, not just the owner.

                                                               i.      TRESPASSING ANIMAL RULE:  CL & East US:  O L when animal trespasses (cattle, horses, sheep, hogs, goats, errant fowl; NOT dogs, cats – no value, hard to confine)

1.      EXCEPTION:  straying from a highway on which they were lawfully being driven (necessity of getting animals to market) – only first property

2.      West US – rejected CL rule

a.       Fencing out statutes – if П fenced his land properly, there was SL when the animals broke thru the fence

b.      Fencing in statutes – O must fence in animals or otherwise restrain them, if not O is SL

                                                             ii.      FN RULE: CL & MAJ:  O or Possessor of a FN was subject to SL if animals injured anyone

1.      Customs of community determine FN

                                                            iii.      DOMESTICATED ANIMALS RULE:  CL:  owner of DA (cat, dog, sheep or horse) was SL only if O knew or had reason to know that animals had VP

a.       VP abnormal to its class

c.       ADAs:  no fault in activities, but b/c so dangerous, SL applies

                                                               i.      Rylands v. Fletcher:  one may be held liable for damages caused by non-natural use of the land, even if here is no negligence on the part of the land-owner which causes the damage

1.      If you bring non-natural thing onto your land, and keep it their, you are responsible for it escaping

2.      EXCEPTIONS:

a.       vis major (e.g. Golden v. Amory below)

b.      Пs fault (contributory negligence)

                                                             ii.      Bridges v. Kentucky Stone:  2 rules

1.      When one stores dynamite, in a storage site, far from where the activity occurs, it is not necessarily deemed to be ADA.

2.      П must prove that the Δ’s engaging in ADA is the pxcx of the damage or loss

                                                            iii.      American Harbor Belt RR v. American Cyanamid:  it’s not the substance that is ADA, but it becomes dangerous when it is handled or used in some way after it leaves the mfr’s premises; no SL even if the danger is foreseeable. 

1.      could be a negligence c/a – but not preventable by any standard of care

                                                           iv.      Foster v. Preston Mill:  under SL, one may recover for only the type of harm that makes the activity UH or AD and therefore subject to SL

1.      PP:  right to use & enjoy land VS. limiting responsibility for extraordinary & unusual consequences

d.      DEFENSES TO SL:

                                                               i.      Golden v. Amory: one will not be able to recover in SL if the harm is caused by an unforeseeable event; vis major à no SL

                                                             ii.      Sandy v. Bushy:  Contributory negligence is NOT a defense, but ASS/RISK is (if prove 1. S had knowledge of risk and 2. S voluntarily placed himself in way of harm)

1.      PP:  court doesn’t want to help person who knows their animal is vicious – issue of fairness – not letting wrong-doer go unpunished

III.             PL – L of a mfr, seller, or other supplier of chattels, to one w/ whom he is not in privity of K, who suffers physical harm caused by the chattel:  through mfr’s negligence of warranty

a.       5 THEORIES TO RECOVERY – more thorough covering below

                                                               i.      Negligence: same as b/4 except for causation prong

1.      NEED: 

a.       conduct on part of mfr

b.      injury or harm to Пs person or property

å      accident itself

å      product changes

å      R.I.L.

c.       causation b/w behavior and injury

å      limited by 4Cability

2.      Learned Hand Theory:  B <PL à L (economic argument – risk utility)

                                                             ii.      Br/wty – exp/imp

1.      express wtys:  no disclaimer, no ads

a.       representation of fact

b.      basis of bargain

2.      implied wtys

a.       merchantability

å      seller is a merchant

å      fit for ordinary purpose

b.      fitness for a particular purpose

c.       disclaimers

å      conspicuousness

å      “as is” disclaimers

3.      stopped – see notes from 2.4.2004 – ALSO, go thru SL and VL reviews

                                                            iii.      SL – L w/out fault

1.      402A – seller of product in a defective condition unreasonably dangerous to user/consumer is subject to L for physical harm to ultimate user/consumer or his property

2.      Greenman – mfr is SL when an article he places on the market, knowing it is to be used w/o inspection for defects, that causes injury

                                                           iv.      Misrepresentation

1.      402B

a.       not puffing

b.      “to the public” – not on showroom

c.       П must prove:

å      Justifiable reliance – knowledge

å      Injury

                                                             v.      Fraudulent Misrepresentation – truth or not telling it, makes c/a

b.      FAILURE TO WARN THEORY

                                                               i.      FIND these 4 things:

1.      Mismanufacture – it has bee improperly mfr’d; somewhere along the line the mfr did not put it together well

2.      Defect of design – entire line was dangerous

3.      Failure to give adequate warning

4.      Failure to give proper instruction

                                                             ii.      Negl – if harm w/out warnings is significant or unrzbl – harm & probability against cost to warn

                                                            iii.      SL – product that reasonable man wouldn’t have put in soc if he knew of harmful character

                                                           iv.      Br/wty – 4Cable danger – at time of sale

c.       DEFENSES

                                                               i.      Warning (req’t: seller has duty that if not subject of timely and adequate notice, expose purchaser, user or bystander to an unrzbl risk/harm)

                                                             ii.      no warning of sure 3d arty or buyer will give info to user

1.      Exception:  RXs

2.      NSSA – Nature of risk, Severity, Scope, means of Avoidance

                                                            iii.      Пs contr/negl – not in jrds w/ comp. fault (no failure to discover defect)

                                                           iv.      Пs ass/risk – subjective knowledge

                                                             v.      Misuse (àpxcx—no c/a)

1.      must be substantial

                                                           vi.      comp. fault – see ii. Above

d.      NEGLIGENCE

                                                               i.      MacPherson Buick (wheel) – MAJ rule now

1.      Пs negl. Remedy against mfr w/o regard to privity of K.

2.      finished products seller’s responsibility for design and mfrg integrity of component parts

3.      mfr’s duty to conduct reasonable and necessary tests on product before its introduction into commerce.

e.       STRICT LIABILITY – 402A

                                                               i.      Greenman v. Yuba –

1.      a mfr is SL is tort when an article he places on the market, knowing that it is to be sued w/o inspection for defects, proves to have a defect that causes injury to a human being.

2.      П can recover against mfr w/o proof of fault if:

a.       Defect product

b.      Product used in manner it was intended to be used

c.       П injured as result of defect

d.      Knowledge by mfr that product would be used w/o inspection for defects

3.      PP – cost borne by mfr, rather than by the injured party who is powerless to protect himself.

                                                             ii.      402A –

1.      seller of product in a defective condition unreasonably dangerous to user/consumer is subject to L for physical harm to ultimate user/consumer or his property IF:

a.       seller is engaged in business of selling such product

b.      AND expected to & does reach user w/o substantial changes in condition

2.      APPLIES EVEN THOUGH

a.       All possible care exercised (hence SL, not negligence)

b.      AND no privity/K

c.       Mfr has ability to 4C some hazards

å      The ability to guard against them

å      The ability to insure against the risk of injury and spread cost of risk avoidance to customers

                                                            iii.      Risk/utility test

1.      only rzbly safe products should be marketed (utility > risk)

                                                           iv.      FROM HER REVIEW (4/22)

1.      §402 A: mfr defect—if it departs from its intended design—SL at its truest sense

2.      this is inadvertent defects

3.      don’t have to show carelessness—is true SL don’t have to prove any of that

4.      allows you to sue the mfr w/o any negligence considerations

f.        PRODUCT DEFECTIVENESS (R.3d)

                                                               i.      L of commercial seller or distributor for harm caused by defective products

1.      one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to L for harm to persons or property caused by the defect

2.      a product is defective when, at time of sale or distribution, it contains a mfr defect, is defective in design, or is defective b/c of inadeq instructions or warnings

                                                             ii.      Definition of defects

1.      mfr defect – product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

2.      design defect – when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by seller, distributor, or predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not unrzbly safe

a.       Rix – use negligence std – weigh risk of injury against cost of safer designs

å      Risk/utility factors:

1.      utility of product to the general public and to the specific user

2.      the likelihood it will cause injury

3.      potential for designing a safer product that is functional/rzbly priced

4.      availability of a safer design

5.      Пs ability to avoid harm by safer use of the product

6.      the degree of awareness of the product’s danger which can be attributed to П

7.      mfr’s ability to spread cost related improving safety design. STOPPED

b.      From Moore’s review (4/22)

å      4Cable risks of harm

å      alternative design, if you had used that you would have been able to avoid the risk

å      consumer expectation test is NOT used

å      Risk utility test is used

3.      defect b/c of inad instruction/warning – when the 4Cable risks of harm posed by the product could have been reduced or avoided by providing reasonable instructions or warnings by the seller, other distributor, or a predecessor in the commercial chain of distribution, and omission of the instruction or warning renders the product unrzbly safe.

                                                            iii.      Only 3 types on SPL under 402A

1.      mfr defect – something went wrong with a few units

2.      design defect – every unit is defective

3.      marketing defect – failure to warn or adequately warn

                                                           iv.      Rix – a mfr is SL if it sells a product in  a defective condition, unreasonably dangerous to the consumer and it causes injury

1.      product must be defective when sold;

2.      it must be expected to and actually reach the consumer w/out substantial change in the defective condition

3.      condition is the pxcx of the injury

g.       MISC FROM MOORE’S REVIEW ON 4/22

Warning:

·        Restatement 2nd:  based on the type of the injury (neg, etc)

·        Restatement 3rd: based on the type the defect (design, mfr, warning, mrktg); supposedly makes it easier; removes negligence type

o       Product is defective b/c of inadequate warnings when the risk could have been avoided

o       Not the same as 402A 2nd –b/c here was it reasonable under the circumstances

o       Consider

§         the content of the warning,

§         comprehensiveness,

§         content of the expression(was it in bold or embedded in the warning itself)

§         Who do you expect to reach from with that warning

§         Broad Test: no defect as long as the prescription drug is therapeutic for any class of patients to prompt a reasonable health care provider to prescribe the drug to prompt the dr to give reasonable warning for the use of the product—relieves the mfr

·        Intermediary doesn’t work if the mfr knows that the healthcare provider would be unable to give the risks of the product

§         This is the majority—use of comparative negligence as an affirmative defense; recognizes that if the P could have reduced the harm to him or herself the way it is supposed to be—then this must be weighed alongside the mfr

·        Can reduce the amt of recovery for the P’s failure to reduce the harm to him or herself

·        Doesn’t absolve the mfr of all liability

 

402 B:

·        Modern manifestation of misrepresentation

·        Looks at someone who is engaged in selling advertising or makes something available the public--the product and what is critical is that

o       Msut be a represenatin of material fact

o       Subj to L for harm to the consumer who justifiably relies on that representation

·        If you rely with or w/o privity, and you advertise it wrongly—no need to show negligence, fraud, privity

·        Critical: has to be a misrepresentation of a material fact and there must be justifiable reliance

·        Establishing duty and breach of that duty

·        Baxter case

·        Misrepresentation can be for both products L and for reasonable reliance of some information

·        Can’t skirt over a reasonable reliance—puffing doesn’t count, you can give in your 2 cents as long as not major

·        PL—proper there is no arg that the product is defective,

o       Ex: truck can carry 500 lbs but advertisement says 1000 lbs (is wrong)

§         Here misrep of a material fact

·        No need for reliance in the purchaser (direct) not an issue of privity so only has to be someone that expect to use the product

·        You can make stmts, advertise, etc.—anything that can cause misrep

·        Key in quiz: misrepàshould have focused as a major concern (father on the scooter but really only for children)

·        When talking about material facts, it can’t be an indirect nondescript misrep but has to be the quality of the thing—ct requires this

·        Justifiable reliance on a material fact is not puffing

·        Just another avenue of recovery

IV.              NUISANCE

a.       Rule: an invasion which arises to the level of a private nuisance may be either intentional or unintentional and an intentional invasion resulting in injury to others gives rise to liability regardless of the degree of care or skill exercised to avoid the injury

b.      Public (PBN): the unreasonable interference of a right common to the general public; including activities that injure the health, safety, morals, and comfort of the public. The law envisions that only public officials can bring these claims

                                                               i.      Factors of Public:

1.      The activity is not customarily suited to the area

2.      It causes observable affects that most would find disagreeable whether or not they harm the Π

3.      There are other activities or methods which would cause less disturbance

4.      The activity is of little value to the Δ

5.      The activity is unimportant to society

6.      The Δ activity began after the Π began the present use of their land

c.       Private (PVN): wrongful interference of the enjoyment of the use of the land of another

                                                               i.      FACTORS:

1.      The Π has to prove that his loss is financially large

2.      Π has to prove that there is observable physical damages to their premises

3.      Π on the land suffers observable mental harm or anguish

4.      Π must prove that it would be costly or difficult for the Π to avoid the harm

5.      Harm is of long duration or unremitting

6.      Coming to the nuisance: consider if Π has come to the nuisance

                                                             ii.      Philly v. Hercules

1.      Rule: a PVN cause of action is designed to protect neighbors to the nuisance not owners of the nuisance even where the owner of a nuisance did not create it

2.      Rule: in an individual claim for a PVN pecuniary harm under the Restatement 2nd § 821(2)(c)(2) may qualify as harm different in kind from that suffered by the general public

3.      Rule: to support a successful PBN claim the pecuniary ham must have been suffered as a result of ones exercise of a right common to the general public

4.      Key: we do engage in allocations of risk when we transfer property and caveat emptor still applies in law

                                                            iii.      Morgan v. High Penn Oil

1.      Rule: a lawful enterprise cannot be a nuisance per se or one at law, but it can become a nuisance per accidens or one in fact without being construed or operated in a negligent manner

2.      Rule: an invasion which arises to the level of a PVN may be either intentional or unintentional and an intentional invasion resulting in injury to others gives rise to liability regardless of the degree of care or skill exercised to avoid the injury

                                                           iv.      Winget v. Winn-Dixie

1.      Rule: operating even a lawful business can become a nuisance if it interferes with the health, safety, or comfort of the neighbors or with their right to enjoy their land

                                                             v.      Spur Industries v. Del Webb

1.      Rule: you cannot bar a Π from recovery simply b/c they came to the nuisance

2.      Key: steps away from the traditional rule to the extent that the personal activity is more important than the conducting of the business so the business is shut down

d.      Mixed: combo, have to have an injury different in kind than the general public to show that the claim could not just be brought by a public official

e.       Average Reciprocity of Advantage: while you are forced to give up some rights you do not want to give up, society is better off as a whole and so are you by giving up those rights

f.        TEST – balance the utility of the conduct against the serious nature of the interference

g.       4 Ways to Get a Nuisance:

                                                               i.      Negligence

                                                             ii.      Intentional

                                                            iii.      Reckless

                                                           iv.      Ultra Hazardous

                                                             v.      Note (4)

1.      tell the Π that the Π may get an injunction, here the court will find that Δ conduct is unreasonable and that means that it causes more harm than good and the court concludes that the behavior causes substantial harm to the Π

2.      Π can get damages but no injunction, here the court will find that the Δ conduct is reasonable meaning that it causes more social good than harm and that means the conduct should be allowed to go forward but the court also finds that the harm is substantial to the Π and it would be unfair to make the Π bear the burden of that conduct

3.      The court will find that Π is entitled to no injunction. They find that the harm is not substantial or they find that the Δ conduct is more socially useful than harmful and that it is not unfair to impose the burden of that activity on the Π. The imposition of damages would put the Δ out of business and avoiding this result is more important than avoiding the harm to the Π

4.      Courts allow the Π to purchase or buy an injunction. The Δ conduct causes more harm than good but that it is unfair to impose the burden of shutting down the Δ business on the Δ

h.       NOTES

                                                               i.      Defenses

1.      Where there is an intentional PVN, contributory negligence is not a defense

2.      If you are looking at negligence then CN does apply to mitigate down the damages

3.      When based on SL, CN of Π failing to discover the danger is not a defense

4.      If Π discovers the danger and deliberately proceeds to encounter it his CN will effect his recovery

                                                             ii.      Self Help: dangerous b/c people can go to far, but if you are going to abate the nuisance then you have the right to use reasonable force, the only person who can use the force is the person who is harmed by the nuisance

                                                            iii.      Anticipatory nuisance: provides the means of preventing an activity that has a high probability of being a nuisance.

1.      Used in nuisance per se cases

2.      Used in situations were the harm is extremely difficult if not impossible to remedy

                                                           iv.      Two advantages are:

1.      Help the Π by preventing the harm before it occurs

2.      Prevent economic waste by a Δ b/c it prevent him from expending financial and other resources to conduct an activity that will most likely be prohibited

V.                 DEFAMATION – See Fig. 1.a

a.       DON’T FORGET:

                                                               i.      Average reciprocity of advantage arg

                                                             ii.      1AM protection

                                                            iii.      self-censorship

                                                           iv.      free exchange in marketplace of ideas (robust discussion, etc)

1.      chilling effect

b.      Nature of Defamatory Communication

                                                               i.      Interpretation: if there is only one interpretation then the judge decides the impact of the statement; if there is more than one then it if for the jury to decide

                                                             ii.      Standard: words that tend to expose the Π to hatred, ridicule, distrust, contempt, obloquy; now includes shunned and avoided

                                                            iii.      Considerations:

1.      the audience

2.      circumstances surrounding what was being said

3.      by whom it might be read and interpreted

c.       Libel & Slander

                                                               i.      Slander: spoken and often requires a showing of special damages (SSS)

1.      CL slander actionable if you could show special damages of pecuniary harm

                                                             ii.      Belli v. Orlando Daily Newspapers

1.      Rule: the judge has the task of deciding whether the pleading is capable of defamatory meaning, the jury has the job of deciding whether the material should be regarded as defamatory. The gatekeeper is the judge

2.      Key: we are not looking at the hateful words, we are looking at the effect of the words on the person and on his reputation which prevents him from engaging in social discourse

3.      Test for Libel:

a.       Has to be false and privileged communications

b.      It has to be in writing

c.       Has to expose someone to ridicule, distrust, hatred, contempt

d.      Tendency to injure me in office, reputation, or employment

e.       If the publication is false and it is not privileged the harm has to be the natural and probable consequences that would result

                                                            iii.      Grant v. Readers Digest

1.      Rule: the standard for determining whether a statement is libelous is not whether the majority of people or “right thinking” view it as such, instead according to learned hand it is if some people find it libelous even if the group is a “wrong thinking” group or the minority

2.      Rule: when the statement is made if that minority group person could take that statement and shun the person for what the statement expresses then the statement will be libelous

3.      Pleading:

a.       Clear meaning: when you are talking about the meaning of language that is clear on its face and the language is in fact clear on its face then the Π has to prove that the words themselves were defamatory and that you are pleading that these words were communicated to a 3rd party

b.      Ambiguous meaning:

å      1st: have to plead the defamatory words

å      2nd: have to show publication or communication to a 3rd party

å      3rd: have to look at the extrinsic facts to understand if the meaning of the statement was made to defame the Π (this is known as inducement)

å      4th: must be a formal allegation that the words were spoken concerning the Π

å      5th: must be a particular defamatory meaning meant by the words (this is called innuendo)

å      6th: show that there are some special damages

c.       Key: have to have 4 and 5 together, so that they are read in light of the spoken facts and what you pleaded, they have to come together to have someone believe that something defamatory was said

                                                           iv.      Neiman Marcus v. Lait – must be able to show that YOU are a person in the group defamed. 

                                                             v.      Bindrim v. Mitchell

1.      Rule:  for П to establish a c/a for libel, he must show that a reasonable person who read publication could identify the statement as being about the П.

2.      Rule:  It isn’t important that all the readers identify the statement as being about the П – it's important that only one reader does so. 

                                                           vi.      Shor v. Billingsley

1.      ad-libbing (not form script) à libel

2.      read from written transcript à libel

3.      speak in gym à slander

4.      defamation by radio à libel

                                                          vii.      Terwilliger v. Wands – CAUSATION

1.      Rule: if the slanderous statement is not actionable per se – meaning  facially damaging to П – then it is necessary that the П prove (plead and prove) some particular damages happened

2.      Rule:  the statement has to be disparaging to the Пs character and the special damage must flow from the damage to Пs character

                                                        viii.      Slander per se (BLIS)

1.      Business, trade, profession of office – likely to affect your office or profession and some temporal damages that come with that. 

2.      Loathsome disease – people recognize you to be excluded from society (VD, leprosy – today, AIDS)

3.      Imputation of major crime – crime must be one of moral turpitude

4.      Sexual misconduct

                                                           ix.      NY Times – PF/PO

1.      Rule: The © won’t allow public officials to recover for publication of defamatory comment unless he can prove AM (knowledge or reckless disregard)

                                                             x.      St. Amant v. Thompson

1.      Rule:  standard for establishing malice is whether the speaker in fact entertained serious doubt as to the truth of his publication

a.       Publication with such doubt shows reckless disregard for the truth and demonstrates AM

2.      Rule:  a publisher can’t solely rely on his belief that the statement was true.

a.       PP:  you cannot shut your eyes to the existence of given facts

3.      Rule:  the fact finder must determine whether the publication was indeed made in GF

4.      Standard being applied:  high degree of awareness of probability of falsity

a.       NOT OBJECTIVE!!!

5.      PP:  self-censorship (you have to give up some rights to be in society)

                                                           xi.      Mason v. New Yorker Mag

1.      Rule:  to prove AM, П must show that Δ acted w/ knowledge of falsity or reckless disregard for truth or falsity of the statement

2.      Rule:  deliberate alteration of the words spoken by П doesn't = knowledge of falsity unless alteration results in material change in meaning conveyed by original statement

3.      Rule:  using quotations to attribute words not in fact spoken is important to the inquiry of known falsity, but isn’t dispositive in every case

                                                          xii.      Gertz v. Robert Welch – falsity & fault

1.      private П, public concern à no P&P

2.      Rule:  that a newspaper or b’caster that publishes defamatory falsehood against another who is neither a public official or public figure, may be held to a lower std than the NY Times std of AM

3.      Rule:  that the state, so long as it doesn’t impose L w/out fault, may define for itself the appropriate std of L for a publisher or b’caster of defamatory falsehood that injures a private person

4.      Rule:  The state may not permit the recovery of presumed or punitive dgs unless L is based on knowledge of falsity or reckless disregard of truth (AM)

5.      4 main points

a.       No AM needed for private citizen

b.      Rt/recovery of punitive dgs only w/ AM

c.       b/c of case, you may become a PF in a limited way

d.      AM or lower than AM are acceptable in ©al limits

                                                        xiii.      D&B v. Greenmoss

1.      private П, private concern à P&P okay

2.      Rule:  where you have matters of purely private concern, they receive less 1AM protection

3.      Rule:  a person can recover for P&P w/out showing of AM when statement doesn’t involve a matter of public concern

4.      KEY:  Δ is not media – so not same kind of protection

                                                        xiv.      Philly Newspapers v. Hepps

1.      Rule:  where you have a newspaper that publishes speech of public concern, than a private figure П can't recover dgs w/out also showing statements at issue are false

2.      Keys:

a.       In terms of proving falsity, BOP is on П

b.      Where you have a newspaper that publishes speech of a public concern, a private figure П cannot recover damages w/out showing that the statements at issue are false.

                                                         xv.      PFs/POs

1.      reasons we place burdens on PFs

a.       they have access to media