TORTS II – Prof. Treece



Five theories of Tort Recovery –

1. Intentional Torts

2. Negligence

            A. Duty

            B. Breach

            C. Causation – legal and proximate

            D. Damages

3. Strict Liability – Restatement 519 and 520

4. Warranty

5. Strict Products Liability – Restatement 402 A


I. Strict Liability

A. Abnormally Dangerous Activities

1. A person using his or her land for a dangerous, non-natural use is strictly liable for any damage to another’s property resulting from that non-natural use.

            2. A superceding cause will preclude strict liability

3. The storage of dynamite per se is not an ultra hazardous activity. Rejects the per se rule of ultra hazardous activities. Looks at the factors of hazardous activities and will decide on a case by case basis.

4. Restatement 520 – Whether or not an activity is abnormally dangerous and whether the actor may beheld strictly liable will depend on –

            1. The probability of harm is great,

            2. If the risk materializes, the harm would be great

            3. The accident can’t be prevented by due care.

4. The activity is not a matter of common usage, so there is no presumption that the activity is a highly valuable one despite it’s risk.

5. The activity is inappropriate to where it takes place

6. The value of the activity to the community must be great enough to offset the risks.

B. Limitations on Strict Liability –

1. The policy of the law does not  impose strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land.

A. Restatement 519 – One who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting  from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.

2. Where an event is beyond the ability of anyone to anticipate, and was clearly an act of god, or a non foreseeable intervening superceding cause, the rule of strict liability does not apply.

A. Restatement 522 - One who carries on abnormally dangerous activity is still subject to strict liability even though the strict liability activity was caused by the unexpected –

1. Innocent, negligent or reckless conduct of a third party

2. An act of an animal

3. An operation or a force of nature or act of god.

The restatement is the majority view of jurisdictions that have adopted 519 and 520. Texas has not adopted 519/520. Restatement has no opinion if the act of the third person was an intentional act. Recklessness is gross negligence – if there is gross negligence, there is no excuse. No clear rule on this. On exam will need to make a choice based on a public policy.

B. Requirements to determine the application of strict liability –

1. (Assuming that the activity is ultra hazardous) Is there an appropriate plaintiff? Has the plaintiff been harmed by the ultra hazardous activity?

2. The merits of the case will determine if it is an appropriate case under restatement 519 and 520 for strict liability.

3. Is there an intervening excuse that will excuse strict liability? Restatement 522- Strict liability will always apply to wild animals – domestic animals when the defendant knows in advance that his domesticated animal was aggressive – A third party act can be an intervening excuse that will excuse strict liability only if it was an intentional, deliberate and knowing act – but there is no majority rule.

4. Affirmative defenses that the defendant must prove and plead –


Assumption of risk –defendant must show that the plaintiff was aware of the risk and knowingly, voluntarily and unreasonably exposed himself to the risk. This is almost exclusively a jury question and the burden of proof is carried by the defendant.


3. Contributory negligence of the plaintiff cannot be a defense to strict liability where the defendant keeps an animal which he knows is aggressive and given to attack. Contributory negligence and comparative fault should not be admissible in strict liability unless the risk has been assumed by the plaintiff. Plaintiff’s assumption of the risk is an absolute defense.

Contributory negligence – Where the plaintiff was aware of the risk and knowingly and unreasonably subjected himself to the harm.


II. Products Liability

A. Development of Theories of Recovery –

1. Negligence

A. A manufacturer owes a duty of care when he knows that a thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of a contract, the manufacturer is under a duty to make it carefully. There is a duty to the foreseeable consumer.

2. Warranties

A. Express Warranties - A manufacturer or retailer of a product is responsible in tort for all representations upon which the consumer must rely, regardless of contractual relationship between the plaintiff and the defendant.


Privity problem – the manufacturer made an express warranty that flows from the manufacturer to the dealer to the downstream purchases who is in a class of persons who would purchase the car.


B. Implied Warranties – When a manufacturer and a dealer put into the stream of commerce a new automobile and promote it’s purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser, despite any contractual provisions to the contrary.


In strict liability you can sue the downstream retailer, as long as they are in the business of selling the product – if they are merchants.


Contributory negligence will not apply to a Warranty claim, or to a products liability claim.


If a plaintiff is outside of privity? Three options –

1. a sellers warranty expressed or implied will extend to any person who is in the family or household in the home of the buyer or a guest in the home –

2. A sellers warranty express or implied extends to any person who may reasonably expected to use consume or be affected by the goods and who is injured by breach of warranty. A seller can’t limit or exclude or the operation of the warranty. Majority Rule.

3. Warranty, express or implied extends to any person or entity who may be reasonably expected to use consume or be affected by it and who is injured by breach of warranty. A seller may not exclude or limit the operation of this section with respect to the injury of a person of an individual to whom the warranty extends.

UCC sec. 2-719 – Disclaimers – Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitations of damages where the loss is commercial is not.

Mean you can’t disclaim damages for personal injury at all!


3. Strict Liability in Tort –

A. When an article is placed on the market by a manufacturer who knows that the product will be used without inspection for defects, the manufacturer will be strictly liable in tort for any injury caused by a defect in the product. The law of contracts as to notice shall not limit personal injury recovery in a tort action for breach of warranty.


B. Restatement 402 A- Special liability of seller of product for physical harm to user or consumer - 

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if –

                                    a. The seller is engaged in the business of selling the product, and

b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in subsection 1 applies although-

a. The seller has exercised all possible care in the preparation and sale of his product, and

b. The user or consumer has not bought the product from or entered into any contractual relation with the seller.


8 policy reasons to adopt 402 A liability –

1. the consumer finds it too difficult to prove negligence against the manufacturer

2. Strict liability provides an effective and necessary incentive to manufacturers to make their products as safe as possible

3. Res Ipsa Loquitur is in fact applied in some cases, to impose liability upon producers who have not in fact been negligent; therefore negligence should be dispensed with.

4. Reputable manufacturers do in fact stand behind their products, replacing or repairing those which prove to be defective, and many of them issue express agreements to do so, Therefore all should be responsible when an injury results from a normal use of the product.

5. The manufacturer is in a better position to protect against harm, by insuring against liability for it, and, by adding the cost of the insurance to the price of his product, to pass the loss onto the general public.

6. Strict liability already can be accomplished by a series of actions, in which the consumer first recovers from the retailer on warranty, and liability on warranties is then carried back through the intermediate dealers to the manufacturer. The process is time consuming, expensive, and wasteful. There should be a short-cut.

7. By placing the product in the market, the seller represents to the public that it is fit, and he intends and expects that it will be purchased and consumed in reliance upon that representation. The distributors and retailers are no more than a conduit, a mechanical device through which the thing sold reaches the consumer.

8. The cost of accidents should be placed on the party best able to determine whether there are means to prevent the accident. When those means are less expensive than the cost of such accidents, responsibility for implementing them should be placed on the party best able to do so.


It eliminates the need for a sale, or a privity relationship – can be held liable for a good that you give away.

Even if the defendant has exercised all possible care, he can still be held liable for injury


Comment N – to 402 A – contributory negligence is no defense to 402A liability and in fact is irrelevant. One of the most powerful causes of action in American Tort law.


Later acquired information that led to a recall or that a product wasn’t safe, while relevant, cannot be used to absolve the manufacturer of guilt in regards to the knowledge of the manufacturer at the time the product was produced.


Strict liability doesn’t focus on the conduct of parties, but on the condition of an inanimate object. That is why contributory negligence isn’t a defense. Strict liability isn’t supposed to fair – trying to induce the manufacturer to make safe products.


B. Product Defects

1. There are different types of 402 cases

1. Manufacturing defect – where a mistake was made in the manufacturing process, and the specific unit has a problem that isn’t common to all units.

2. Design defect – That every product that comes off the assembly line has the same common defect – because the engineering is wrong. The entire engineering process leading to production is flawed.

3. Marketing Defect – Failure to warn - inadequate instructions or warnings- when risk of harm posed by the product could have been reduced or avoided by proper warnings or instructions. The product is defective because of inadequate warnings.

Because a design defect applies to every unit produced, results in indemnification for the down stream seller of the product – the manufacturer will have to defend the design of the product.


2. Manufacturing Defect -


            A. A manufacturer will be held strictly liable for manufacturing defects.


            B. Restatement 402 A

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if –

                                    a. The seller is engaged in the business of selling the product, and

b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in subsection 1 applies although-

a. The seller has exercised all possible care in the preparation and sale of his product, and

b. The user or consumer has not bought the product from or entered into any contractual relation with the seller.


            C. Three essential elements for strict liability –

1. That the product was defective and unreasonably dangerous to the consumer at the time of production and at the time of sale,

2. The product was expected to and did reach the ultimate consumer w/out substantial change in the condition form the time it was sold,

3. That the defective condition of the product proximately caused the plaintiff’s injury.


3. Design Defect –


A. Liability of the manufacturer rests upon a departure form proper standards of care – a pure negligence analysis. 4 general ways to define defectiveness - 

1. Manufacturer viewpoint – Similar to the consumer viewpoint test, but asks the manufacturer – if the manufacturer knew of the defect in the product, would he have been reasonable by introducing it into the stream of commerce? Ex. – sue tobacco industry – does the manufacturer know of the dangerous condition that cigarettes cause cancer – knowing that, is it reasonable to introduce them into the stream of commerce?

2. Risk-Utility – Failure to warn theory – Under a risk utility test, not cost-benefit – means a lot of different things – Characteristics in common – Similar to negligence.

Plaintiff must plead and prove that -

1. Was the safer alternative design known in the industry when the product was produced? (state of the art)

2. What the failure to warn is –

3. what the safer alternative design is,

4. The product could be made safer in a way that is cost feasible or cost-efficient, and it was known in the industry.

3. Consumer viewpoint test-whether or not the average, reasonable consumer would be aware of the defect and the risk inherent in the product? If the reasonable average consumer knows of the defect and the risk inherent in it, then it will not be considered defective. (doesn’t work with failure to warn) The majority rule in this country -

(From comment i of the restatement - Certain products, the defect is so obvious that anyone can see it– is the average reasonable consumer aware of the risk in that product? If the average consumer is aware of danger, they can’t sue for defectiveness – ex. – cigarettes. If a product was manufactured in a way to make it defective? The majority position and the restatement version of 402 A. Supposed to be easier than negligence).

4. Combination of risk utility and consumer expectations. – is sometimes used in a negligence analysis – have to find out what the jurisdiction means


In Texas – have risk utility – Turner and Boatland – the plaintiff shows safer alternative design, that is was economically feasible, and known in the industry – in design defect case. In manufacturing defect and failure to warn, use consumer viewpoint. Consumer viewpoint is an unworkable test in design defect, b’c it takes on the entire product line.


B. How different jurisdictions adopt strict liability without making the manufacturer the absolute insurer of the product, or, collapsing back into a negligence theory –

1. A trial court must permit a jury to consider whether the risks of injury so out weighed the utility of a product’s design so as to render it defective. (New Jersey)


The New Jersey test shifts the burden of proof – once the plaintiff shows that he is injured and established a causal link between the product and the injury, the burden shifts to the defendant to show that the product is not defective.


2. Warnings Defect –


A. If there are warnings of all the risks known by the industry about the product at the time it enters the stream of commerce, then manufacturer is absolved of all strict liability. (California)

                                    1. The idea of a learned intermediary- To be a professional –

1. Post graduate education

2. Licensed

3. Internal ethical considerations

4. Continuing Education.

A downstream, learned intermediary cannot be held strictly liable. Can sue a downstream learned intermediary in negligence. All persons who are excepted from strict liability as learned intermediaries are professional. Downstream sellers do not include health care providers because doctors don’t sell goods – the treat illness, and doctor’s duty to warn is a function of negligence.


3. Proof –


A. A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated.

            Test – The plaintiff must show in a product liability case –

1. That the product that injured him was in fact manufactured by the defendant.

2. That the product was defective and he was injured as a result.

3. That the defect existed in the product or was present in it when it was sold by the particular defendant.

B. Federal Rule of Evidence 407 – based on the policy that the fixing or improvement of the product will not be held as proof that the manufacturer knew the product was defective. After acquired knowledge not admissible.

But, evidence of subsequent change to design or repair has been admitted to impeach a manufacturer.

4. Defenses –

A. Plaintiff’s conduct - Comparative fault will be extended to actions founded on strict liability, but the evidence of the plaintiff’s contributory negligence cannot be considered until or unless the jury determines that the product is defective and caused the damages. Only then can plaintiff’s contributory negligence be considered, and then only to apportion damages.


Where Comparative fault is applied to strict liability, the separate defense of assumption of risk, to the extent that it is a form of contributory negligence, is abolished.


Defendant’s liability for a defective product remains strict. Plaintiff’s recovery is reduced only to the extent that his lack of reasonable care contributed to his injury. The question of the plaintiff’s contributory negligence only comes in after the jury has made a finding of product defect. If they do not find the product defective, the trial is over.

1. The jury finds the product is defective

2. The jury finds that the defect caused the damage

3. The jury considers the conduct of the plaintiff – he can’t be 100% at fault.

4. The jury decides the percentage of the plaintiffs fault, subtracts it from the damage award, and awards plaintiff the difference.

The product must be found defective before the jury can apportion damages.


1.Only 2 absolute defenses to strict liability under the restatement –

1. assumed risk

2. Unforseeable misuse of the product.


2. If the misuse of a product is reasonably foreseeable by the manufacturer, then it’s occurrence is not a bar to an action in strict liability.


D. Pre-emption and other Government actions –


1. General common law duties such as failure to use due care in the design and manufacture of a product are not pre-empted by a congressional act that is aimed at specific products.


E. Defendants other than Principal manufacturers/ Harm other than a personal injury


1. Other suppliers of Chattels - Strict liability will not be imposed on a dealer of used goods when the alleged defect arose after it left the dealer’s possession, but if the product was defective at time of manufacture (or before it comes to the used dealer), then the used dealer can be held strictly liable.

                                                Test for a defendant of strict liability of down stream dealers -

1. The entity must be in the business of selling the product (not just an occasional seller).

2. Must have an alleged defect that occurs before the product reaches the used dealer

By definition, a design defect failure to warn cannot be imposed on downstream retailers in strict liability. These are liabilities that flow from the manufacturer only.


2. Services - – As a provider of services rather than a seller of a product, the hospital is not subject to strict liability for a defective product provided to the patient during the course of his or her treatment.


When a transaction has the characteristics of both a sale and a service, courts will not apply strict liability if the transaction is predominately a service, with only incidental transfer of goods – If the defendant is a professional, then can’t impose strict liability. Can only impose negligence or professional responsibility.

When may you use 402 A law? Whenever you have a defective product that –

1. Causes personal injury

2. Or when you have property loss other than to the product it’s self.


                        F. Harm Other Than Personal Injury

1. Economic Loss resulting from personal Injury – lost wages and diminished earning capacity, other losses in strict liability, and loss of consortium based on personal injury in product liability cases in most jurisdictions.


2.  Economic loss without personal injury – limited – no strict liability when the product did not perform as expected. Usually a remedy in warranty.


3. Damage to property – covered by section 402 A. When the property is destroyed, some courts treat it as an economic loss not recoverable in tort, others as a property loss recoverable in strict liability.


                        G. Legislation and Products Liability

1. UCC – Article 2, covering breach of warranty for the sale of goods has been adopted in every state except Louisiana.


2. Restatement of Torts – 402 A has been adopted both judicially and legislatively.


                                    3. Tort Reform – legislative


4. Uniform Product Liability Act – A model product liability code- where it has been adopted, it has often been varied from it’s original form, thus, variation among the states as to product liability law continues.


III. Nuisance-

A. 3 dimensions

                        1. Intentional

2. Negligent

3. Arising from dangerous activities – based on strict liability

            B. Nuisance – a harm annoyance or inconvenience. Covers two types of liability

                        1. Public nuisance – invasions of the public right

2. Private nuisance – unreasonable interference with the use or enjoyment of a property interest in land. Distinguished form Trespass because it doesn’t require physical entry onto another’s premises.

            C. Two kinds of Nuisance –

1. Nuisance per se (or at law) – an act, occupation or structure that is a nuisance at all times and under any circumstances, regardless of location or surroundings.

2. Nuisance per accidens (or in fact) become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained or operated.

            D. In Nuisance –

1. There must be a violation of a duty to the defendant to recover under private nuisance.

2. To recover for an individual action in public nuisance, one must suffer harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

E. A party who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such an injury.

When a business conducts it’s self in an unreasonable intentional fashion that violated the quiet use and enjoyment then it becomes a nuisance per accidens – in fact –


F. Restatement 825 – An invasion of another’s interest in the use and enjoyment of land is intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is substantially certain to result form his conduct.


G. Minority view - In a nuisance action seeking damages the interest of the community, which would include the utility of the conduct, should be considered in the determination of the existence of nuisance.


H. A use of property which does not create a nuisance per se cannot be enjoined or abated only because it renders neighboring property less valuable. If no nuisance is created, no recovery of damages is allowed for diminution in value of the property by reason of lawful use of such property made by a nearby owner.

1. Damages can’t be the diminution of value, it has to be based on the substantial, unreasonable interference with then enjoyment of land.

2. Negligence in fact must be a substantial, continuing, unreasonable, interference with the quiet, useful enjoyment of land.


I. Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting there from, there can be but one recovery.

1. Eminent Domain – that the government can take private property for a public purpose and justly compensate the owner.

2. Nuisance law can be seen as a way to deprive someone of property rights

3. When damages are awarded in a settlement agreement, it is placed in the chain of ownership of the property, and will appear in a title search – conveyances, mortgages, judgments and easements are filed in the deed records.

4. If a nuisance occurs long enough without complaint, you obtain an easement to do it

5. Adverse possession – if a party “squats” on the land of another for a long enough period of time, they have adverse possession of the property and may be able to divest the original owners of the property.

6. If you acquire and abuse an easement, it can be lost.


J. Having brought people to the nuisance at the detriment of the business, the developer must indemnify the business for a reasonable amount of the cost of moving or shutting down.

1. A residential landowner may not have relief if he knowingly came into a neighborhood reserved for agricultural or industrial purposes and was damaged thereby. 

2. Where injury is slight, the remedy for minor inconveniences lies in an action for damages rather than an injunction.

3. Moving to a nuisance is a major factor in granting an injunction, but not money damages. Doesn’t change nuisance – creates an affirmative defense.


IV. Defamation

1. Three levels of Defamation

            A. Elements of Defamation – common law

            B. First Amendment Problems

            C. Overcoming Privileges

1. Everything made and said in a judicial proceeding is privileged, as long as they have any relevance to the suit. All lawsuits are filed in total immunity from defamation.

2. Common law elements of defamation –

            A. nature of a defamatory communication – The components of Defamation

1. Libel –associated with written communication – perceived by the eye – read

Libel per se – any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy.

2. Slander – associated with oral communication – percieved by the ear


B. A publication claimed to be inflammatory must be first read by a court, and if the meaning is so unambiguous that only one meaning is possible, then it for the court to decide what that meaning is. But if there are two possible meanings, one libelous and actionable, and the other not, it is for the jury to decide which of the two meanings will be attributed to it by those to whom it is addressed or to those by whom it may be read.


C. Sec. 559 Restatement –

1. A communication is defamatory if it tends to harm the reputation of another by lowering him in the estimation of the community, or

2. It is defamatory if it causes third persons to shun, avoid, or not associate or deal with


A substantial minority of the community must think less of him, or, third parties would shun, avoid or not associate with him.


D. Restatement 558  - Cause of action for defamation – must have -

1. A false,

2. defamatory statement of fact concerning another

3. which is published to a third party who is capable of understanding the defamatory meaning.


E. Libel per se – where nothing else need be pleaded – damages are presumed -  v. libel per quod – where extrinsic facts must be pleaded to establish defamatory communication – must show the pecuniary loss to receive damages. Extrinsic fact are facts not in the written document-

1. Must plead facts showing that the person can be identified as you – colloquium

2. Must plead the innuendo- the particular defamatory meaning conveyed by the words.

If it is libel per se and don’t need to plead extrinsic fact, you are entitled to damages. If it is per quod, then have to show how you have been harmed.


F. Libel consists of utterances which arouse hatred, contempt, scorn obloquy, or shame.


G. If an allegation of specific misconduct was made, and other misconduct occurred, then the issue goes to the jury. If you make a specific allegation, must show it is specifically true. A general allegation may be shown to be generally true.

1. At common law, the plaintiff doesn’t have the burden of proving falsity. The defendant could then plead substantial truth.

2. Constitutional test modifies the word “falsity” have to show the defendant knowingly made a false statement, or the defendant made a false statement when he should have known it was false.


H. Where the group or class libeled is large, none can sue even though the language used is inclusive.

1. But Where the group or class libeled is small, and each and every member of the group or class is referred to, then any individual member may sue.


I. Publication for purposes of defamation is sufficient when publication is to only one person other than the person defamed.

1. Reference to the plaintiff need not be by name if it is reasonably understood as referring to him.

2. The fewer the number of people who are possessed with the knowledge of the surrounding circumstances that identify the plaintiff, less damages may be awarded.


            J. Restatement 568

1. Libel consists of the publication of defamatory matter by written or printed words, or by it’s embodiment in physical form, or by any other form of communication which has potentially harmful qualities characteristic of written or printed words.

2. Slander consists of publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in subsection 1.

3. The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander.


K. – In the absence of a script or transcription, defamation by radio or television broadcast is slander.


L. Where words upon their face do not import such defamation as is injurious, it is necessary that the plaintiff aver some specific damage arising from the words.


M. Slander per se –

4 special kinds of slander are excepted from the common law rule and are actionable without proof of special damages – The presumed Damage Rule :

                        1. Imputation of a major crime –usually a crime involving moral turptitude.

                        2. Loathsome disease – no longer really applies, but what about AIDS?        

3. Harm in Business, Trade, Profession or office – if the spoken words are likely to harm the plaintiff in his business, trade, profession or office, even voluntary uncompensated offices of confidence have been included.

4. Serious sexual misconduct

A. But, only against a woman. If it is against the man and affects his business, trade or profession, then it can be libel per se. For bar exam purposes, a man is not hurt by an allegation of sexual misconduct as long as it is heterosexual, and so a man must show a special damage, unless it triggers Business, trade or profession damages.

            Remember that  -

1. Libel per sethat it is not necessary to prove special damages to maintain a cause of action for libel.

2. Libel per quodwhere the statement is not defamatory on it’s face and it is necessary for the plaintiff to allege and prove extrinsic facts to have a cause of action for defamation.


N. When there is no publication of words which can be understood by others, there is no cause of action for slander. The party published to must be capable of understanding what was said – if the publication is made in a language that the third party does not understand, there is no defamation.

                        1. Under what circumstances may the plaintiff publish the defamatory material?

A. The only time that the plaintiff may engage in self publication is when it is clearly foreseeable to the defendant that the plaintiff will have to do so. 

Ex. – When a plaintiff is fired for stealing, but he did not steal, and then he applies for a new job, and the new job asked why he left the last one – the plaintiff then has to tell the truth, he defames himself, and then he can sue the defendant.

2. Negligent publication – leaving a private defamatory communication where others may see it.

3. Hypo - What if you write your defamation on a wall owned by a third party – you have published the defamation, but the third party is not the publisher until:

1. They discover that it is there,

2. They were unreasonable in taking steps to remove the publication, once they have discovered it.

O. The single uniform publication rule – a statute of limitations. Has been adopted in some jurisdictions, but not a majority. Not a national requirement. A minority rule.

1. Jurisdictions may, or may not adopt the rule.

2. Every state in the union is free to have any statute of limitations for defamation that they choose. In Texas, one year for any kind of statute of limitations.

3. In states which have adopted it, it begins a national clock on the cause of action for defamation – based on when the material was originally published, anywhere in the United States.


P. The publication of a book, article or newspaper containing defamatory matter gives rise to only one cause of action for libel, which accrues at the time of original publication, and that statute of limitations runs from that date.


3. First Amendment Elements of Defamation - – how do you balance a speech tort like defamation with the first amendment and freedom of the press? Must look at:

            1. Status of the plaintiff test – who is the plaintiff

            2. Certain degree of knowledge of falsity

            3. What standard it must be proved by


A. A public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice.

            1. Actual malice is knowledge of actual falsity or reckless disregard for the truth

A. Must show, on issue of falsity, that the defendant knew it was false, had subjective awareness it was false.

B. Some evidence of the defendant’s knowledge is not enough.

C. Must show malice by clear and convincing evidence.

1. Not a preponderance of the evidence.

2. Not proof beyond a reasonable doubt, like criminal law.

Must use this standard to show the Defendant’s knowledge of falsity to show the defendant’s malice.


B. A Public Figure plaintiff– 2 kinds

                        1. Full Public official – or public figure

                        2. Rule of limited purpose public figure – A limited purpose public figure has-

1. Voluntarily put themselves

2. Into a pre-existing issue of public controversy

3. For purposes of it’s resolution.


C. Who is the media? Supreme Court says it can’t be answered. Burger said that anyone who tries to define the media will run into equal protection problems. Can’t take fundamental rights under the constitution, like speech rights, and give some groups, like the media, more than other groups, like non media private persons.


D. To recover damages for defamation, a public official must prove that the defendant had serious doubts as to the truth of his publication, but published it anyway, to demonstrate actual malice.

1. Reckless disregard is subjective –

A. have to know the statement is false, or,

B. have to have serious doubts as to TRUTHFULLNESS. Have to get into the mind of the defendant and show that they had subjective awareness of the falsity of the words.


E. A deliberate alteration of words constitutes knowledge of falsity in a libel action if the alteration results in a material change in the meaning conveyed by the statement.


F. There is no constitutional privilege for defamation of a private individual. States should retain considerable latitude in efforts to enforce a legal remedy for defamatory falsehoods that injure the reputation of a private individual.

1. The New York Times rule of falsity with actual malice doesn’t apply to private individuals because they have not exposed themselves to public scrutiny and have few avenues for self help.

2. A state may not permit recovery of punitive or presumed damages when liability is not based on a showing of falsity or reckless disregard for the truth.

3. Gertz negligence -negligence or fault as to falsity – defendant knew or should have known it was false – is the standard when the plaintiff seeks to recover actual damages, not presumed damages.


G. Speech of Private Concern- Recovery may be obtained for libel without a showing of actual malice when the statements do not involve a matter of public concern.

1. A private person who is defamed on a matter of no pubic concern and no public interest has no constitutional limitations upon their ability to recover.

2. States to make any rules they wish when there is a private person defamed on a matter not of public interest or concern.


H. A private plaintiff cannot recover for defamatory speech of public concern without showing that the statements are false.


            I. Recap –

Category 1 plaintiff –If the plaintiff proved it was defamatory, the burden shifted to the defendant to prove truth or substantial truth (common law). Strict liability against secondary publishers only applies to category 1.

            Plaintiff is -

            1. A full public figure, or

2. A limited purpose public figure – voluntarily inject yourself in a matter of public concern for the purpose of it’s resolution.

To have a cause of action, a public plaintiff must show New York Times malice to clear and convincing evidence that-

1. knowing falsity, and

2. a reckless disregard, and

3. must show by clear and convincing evidence that defendant has a subjective awareness of falsity. Have to put on “state of mind” evidence that the defendant had awareness of falsity. Very hard to prove – not the same as common law malice. Scienter – the standard of fraud knowledge – very high.


Category 2 plaintiff – A private plaintiff defamed on a matter of public interest or public concern. For a cause of action, plaintiff must show -

            1. Fault, or

            2. Negligence (known or should have known) as to falsity

Still a first amendment concern for recovery, but the first amendment interest is not as heavy as when plaintiff is a public figure – The plaintiff has a lower burden of proof.

            Damages -

1. show only negligence as to falsity, plaintiff can only collect actual or compensatory damages – embarrassment, reputation, etc. Not presumed damages.

2. To collect presumed, or punitive damages, must show fault, i.e, New York Times malice by clear and convincing evidence.

            Category 3 – a private plaintiff defamed on a matter of no public concern

1. There is no constitutional protection of the defendant’s speech.

2. States can do any rules that they want. Can impose NYT malice if they want to, as long as they do not impose strict liability.

3. Presumed damage rules are okay.


4. Privileges - an absolute privilege will defeat any plaintiff case – no matter what standard they meet. Any absolute privilege if properly established, will defeat any defamation case. Even if the plaintiff is a public official or a public figure that the defendant knew was false, an absolute privilege will defeat the plaintiff’s claim if the privilege is properly established.


A. There is no additional constitutional privilege for “opinion” under the first amendment.

2 kinds of opinions –

1. The combined elements of specificity and verifiability –

Have to be able to

1. Specifically

2. Verify the statement as true or false – If you can’t, then it is probably an opinion. If there are ways to empirically prove something true or false, then it is not an opinion.

A state can decide if a defamatory statement is a fact or a statement –

What if you couch the speech in terms of an opinion – Factors –

                                    1. The specific language used

                                    2. Whether the statement is verifiable

                                    3. General context of the statement

                                    4. The broad context in which the statement occurred.

2.Constitutionally protected opinion – provides protection for statements that cannot reasonably be believed to be true. If it can’t reasonably believed to be true, then it is protected because it isn’t capable of being true.

A. Protected if it is-

1. opinion

2. rhetorical hyperbole, or

3. satire

                                    B. Examples –

1. Hustler v. Falwell  - Satire. Where political cartoons make fun of people- provides assurance that public debate will not suffer for lack of imaginative expression.

2. Letter Carries Case – Opinion. If its just angry speech and name calling, then it can’t be defamatory, because it’s not being held out as a statement of fact. Its just name calling.

3. Person v. Bressler – Opinion and rhetorical hyperbole. Refused to sell his property to the city, and his conduct was alleged to be black mail. It was published in terms of his negotiation ploy, so, it was just name calling

            B. 4 types of Absolute privileges –

1. Absolute Privilege “of record” libel. Also called by its common law nickname – reporter’s privilege. Any third party has an absolute right to fairly and accurately report on what occurred in a public proceeding. Anything said in a public proceeding or in a public record is subject to the absolute privilege “of record” libel.

                                    A. As long as it was a

1. fair and

2. accurate report of what was said, and

3. is put into proper context, then

4. the third party(media) who reports it, is privileged, even if they know it is false.

2. Absolute Judicial privilege – Witness, attorneys, judges. Gives witnesses an absolute privilege to lie – and the testimony is privileged – in an adversarial system have to be a zealous advocate.

            A. An absolute privilege as long as –

                        1. it is relevant and

2. pertinent to the issues in litigation, even  if they are false and malicious

3. They do not enjoy the privilege outside the courtroom.  

4. Can’t publish it, or tell anyone else.

5. If say it outside the courtroom, then you can be sued for saying it outside the courtroom, and you don’t have the privilege of record libel because you aren’t a third party – you are a participant and would become a defendant.

6. Trial documents are subject to judicial privilege, but once filed, they become subject to the privilege “of record” libel.

3.Absolute Legislative privilege – an absolute privilege for legislators in the performance of their legislative duties. Need the privilege to insure robust public debate within the legislative body.

1. The speech and debate clause on the federal side – it is constitutionally required.

2. A member of the house and senate can say anything in the performance of their legislative duties. Even if it is false and defamatory.

3. Third parties can report if it is uttered in a public proceeding. 

4. Extends to house and senate floor and committees, and to legislative hearings and to witnesses testifying at those hearings, but only limited to those places.

 5. Applied by the states to their legislators, same privilege with the same limitations on the state level. City counsels and county commissioners – the majority view grants an absolute privilege, but there is some dispute.

5. But, if the defamation is not in the course of legislative duties, on the senate floor, then it isn’t protected. If the defamatory speech uttered in the senate floor is then repeated in a non legislative forum, then it is not privileged and it is subject to suit. See Hutchinson v. Proxmire.

            4. Absolute privilege of Federal public officials

A. From the president to any federal agent, even of lower standing.

1. Scope of privilege equivalent to scope of duty.

2. Anything said by the official, as long as it is said in the execution of their official duties.

3. Extended to the FBI and ATF agent.

4. Lower state officials –a majority of courts have extended executive privilege all the way down to lower, minor officers.

            C. Qualified privilege – (also called conditional privileges)

Prior to the 60s there was no constitutional limitations – so privileges were very important because if a defendant could establish a qualified privilege, and he would prevail.

1. Qualified privilege is lost if the defendant –

                                    1. knew it was false

                                    2. Should have known it was false.

3. At common law, proof of negligence will overcome a qualified privilege, because the defendant knew or should have known it was false.

                        2. A conditional privilege arises when the publication is –

                                    1. Fairly made in the discharge of public or private duty,

                                    2. in the conduct of the publishers affairs, or

                                    3. In matters where the publisher’s interest is concerned.

                                    4. Is exercised in a reasonable manner for a proper purpose.

                        3. Three kinds of Qualified privileges –

1. Protection of the publisher’s own interests- including the protection of one’s reputation against defamation on the part of others.

2. Protection of the interests of a third person – where the publisher reasonably believes that the information is of sufficient interest to a third party that he publishes it out of a legal duty.

A. Importance of whether information was requested of, or volunteered by the publisher.

3. Common interest. A privilege to speak on matters of common interest. More freedom to volunteer information.




V. Privacy

1. Tort privacy – 4 different interests which states may choose whether or not to protect – not like constitutional privacy –

1. Tort of commercial appropriation one who appropriates the likeness or name of another for his own use, is liable for damages. A cause of action that exists when you take someone’s name or likeness for commercial use.

A. Statutory version of this tort is the right to publicity – protects a person’s likeness or name from unwarranted intrusion or exploitation – is it a right of action to vindicate the privacy right of the person, or it is a recognition of an intellectual property right? Recognizes that upon the death of the individual, the name or likeness is a property right which passes to their estate. There is a statutory right of succession of the name or likeness of an individual. If you commercially exploited you name or likeness during you life, then it becomes a property right that passes to your estate.

B. The plaintiff has a cause of action for the unauthorized use of a person’s photograph for an advertisement or any other commercial enterprise.

C. Restatement 652 C- one who appropriates the likeness or name of another for his own use, is liable for damages.

2. intrusion upon seclusion- one who intentionally intrudes on the solitude of another, is liable if the intrusion would be highly offensive to a reasonable person.

A. Where the publisher has not engaged in intrusive acts to obtain the information and it is of obvious public interest, there is no invasion of privacy.

Test for invasion –

1. Intrusion into a private matter, place, or conversation, and

2. the intrusion is highly offensive to a reasonable person

B. Restatement 652 B – one who intentionally intrudes on the solitude of another, he is liable if the intrusion would be highly offensive to a reasonable person

3. Tort of public disclosure of private Facts - IN every case the supreme courts has said that first amendment rights overcome tort rights.

A. – Interest in privacy does not extend to information that appears in the public record.

B. Restatement 652 D -  A person who publishes private information of public interest that are highly offensive to a reasonable person, plaintiff must show that the information is not of public interest, and not news worthy)

4. False light privacy -  (652 E – is a poor man’s defamation case – if you can’t prove it was defamatory, but it was highly offensive, it is false light – just have to show it was highly offensive to a reasonable person.) in addition to showing the plaintiff was placed in a false or offensive light, have to show that defendant had NYT malice. The defendant knew it placed the plaintiff in a false light. Has been judicially abolished in Texas. Texas supreme court found it was duplicative.