I.

Definition of a tort:
a. a civil wrong other than a breach of contract for which the law provides a
remedy. It is an area of law that imposes duties on persons to act in a
manner that will not injure other persons ( most states have adopted the 2nd
/3rd Restatement of Torts as a model rule)
b. purposes of tort law:
i. to provide a peaceful means for adjusting the rights of parties who
might otherwise take the law into their own hands
ii. to deter wrongful conduct
iii. to encourage socially responsible behavior
iv. to restore injured parties back to their pre-injury positions ( to the
extent that this can be done through compensation for injurieds)
v. to vindicate individual rights of redress
vi. to promote the widespread distribution of losses by encouraging
individuals to purchase insurance
c. Two possible theories for tort law:
i. Originated with imposing liability based upon actual intent and
person culpability and later evolved into liability that was non-fault
base
ii. Tort law originated with imposing liability based on the causing of
physical harm by the D irrespective of fault (ex: strict liability) and
later evolved into imposing liability based upon fault ( personal
culpability)
d. 3 basis for imposing tort liability
i. intentional conduct
ii. negligent conduct
iii. strict liability ( conduct is neither intentional nor negligent)
1. a.k.a no fault or absolute liability
a. animals
b. abnormally dangerous activities
c. products
II. Development ton Strict Liability
a. Animal, Abnormally Dangerous Activities and Limitations
i. General:
1. Liability: dependant on those who keep, possess and harbor
animals may be held liable or responsible for injuries
caused to persons or property
2. Policy: liability is imposed due to the abnormal nature of
the animal and/or danger posed by the animal to the
particular community
a. Animal poses some kind of an abnormal risk to the
particular community where it is kep
ii. Wild animals

1. Definition: an animal that is not customarily devoted to the

service of mankind at the time and in the place where the
animal is being kept wtf does this mean r. 506
2. General rule:
a. Landowners are not responsible for harm done by
wild animals on their property
b. Exceptions:
i. Landowner reduced the animal to
possession
will be held strictly liability for
injuries cause by the animal due to
attacks on a person or animals of
another
ii. Landowner introduced a non-indigenous
animal into the area
iii. Ex:
1. Lions, tigers, bears,
elephants, wolves,
monkeys, deer, foxes
3. Key factor:
a. The type of animal subject to strict liability is one
the poses some type of abnormal risk to the
particular community where the animal is kept
i. Test:
1. Has the owner exposed a
person or the community o
an abnormal risk of harm?
a. Note should it matter if the
animal is viewed as wild or
domesticated
iii. Domesticated Animals
1. Definition: an animal that is customarily devoted to the
service of mankind at the time and in the place where the
animal is being kept R.506
a. Ex:
i. Cattle, horses, sheep, pigs, goats, chickens,
dog indicate
2. Common law rule for trespassing animals and injuries to
land
a. Rule: if animal is viewed as likely to trespass the
owner was held strictly liable for trespasses to land
i. Ex:
1. Barnyard animals-cattle,
horses, sheep, pigs, turkeys,
chickens, pigeons
ii. Exceptions:

1. Animals straying from a

highway on which they
were lawfully being driven
2. Cats/dogs
b. Fencing In/Fencing Out Statutes
i. Fencing In: requires owner of animals to
fence them in or otherwise restrain them.
Owner strictly liable if animal is not fenced
in
ii. Fencing Out: requires the owner to fence
their land properly, however the owner is
strictly liable for injuries caused by the
animal even with the land is fences properly
and the animal breaks through the fence and
damages the property
1. Otherwise, liability is
imposed only if the owner
of the animal was negligent
look up
3. Common law rule for domestic animals that injure a person
a. Rule: owner of a domesticated animal not held
strictly liable for bites and injuries unless the owner
was aware of the animals dangerous propensities
i. Definition of dangerous Propensities:
1. The animals propensity to
do any act that might
endanger the safety of the
persons and property of
others in a given situation
b. Dog Bite Statutes (DBS):
i. Eased the burden placed upon the plaintiff of having
to demonstrate the owners knowledge of the
animals dangerous propensities
ii. IL statute:
1. If a dog or other animal,
without provocations,
injures any person who is
peaceable conducting
themselves in a place where
they can lawfully be, the
owner is liable for the full
amount of the injury
2. Elements P must show:
a. Injury caused by a dog
harbored/ owned by the
defendant

b. Lack of provocation by the P

c. Peaceable conduct of the
person injured
d. person injured in place where
they have a legal right to be
b. Abnormally dangerous activity (Ultra hazardous is a limited definition that
was used before ADA)
i. Modern rule: Restatement Section 519/520
1. 519:
a. one who carries on an abnormally dangerous
activity is subject to liability for the harm done to
the person, land, or chattles of another resulting
from the activity, although he has exercised the
utmost care to prevent the harm
b. R. 520: test for abnormally dangerous activity
analysis
i. Existence of a high degree of risk of some
harm to the person land or chattle s of others
ii. Likelihood harm that results from it will be
great
iii. inability to eliminate the risk by the
exercise of reasonable care ( most
controlling factor)
iv. extent to which the activity is not a matter of
common usage
v. inappropriateness of the activity to the
place where it is carried on; and
vi. extent to which its value to the community
is outweighed by its dangerous attributes
1. note:
a. one is not sufficient but all 6
are not necessary
b. an activitys qualification as
an abnormally dangerous
activity under this test is a
question of law decided by a
judge not a question of fact
decided by the jury
c. apply factors to determine
whether strict liability should
be applied if not is it an
issue of reasonable care being
used?
d. examples of activities:
i. blasting in urban
areas

ii. transportation and

storage of toxic
chemicals and
inflammable liquids
iii. crop dusting
iv. fumigation with toxic
gases
v. testing of rockets
vi. fireworks display
2. Case Law :
a. Ryland v. Fletcher : D is liable only when they
damage another by a thing or activity unduly
dangerous and inappropriate to the place where it is
maintained, in the light of character of that place
and its surroundings
b. Abnormally conducted activity is generally
referring to activity on land not water
ii. Limitations on strict liability and abnormally dangerous activities
(defenses)
1. Limitations on injuries
a. Rule: strict liability is confined to consequences that
lie within the extraordinary risk whose existence
makes the activity abnormally dangerous
i. Note:
1. There must be a nexus
between the activity and the
injuries suffered by the P
( the cut off pt with strict
liability claims)
2. D will be liable only for
harm caused by the danger
that makes the activity
abnormally dangerous/
ultra hazardous)
2. Acts of God
a. Definition: extraordinary force of nature intervening
to bring about harm from that threatened by actors
negligence (restatement)
b. Factors:
i. Must be extra ordinary
ii. The force of nature is one that is generally
unforeseeable (unanticipated)
iii. The force of nature must not be already in
operation at the time the d acts
iv. Harm resulting must be of a kind that is
different from that which would have made

the from that which would have made the

actors conduct negligent
1. ( harm that could not have
been prevented by the
exercise of due care)
c. Rule: even when the Ds activity is subject to strict
liability ( participating in abnormally dangerous
activities) the Ds will not be liable for those
injuries caused by an act of God or and act
nature which D could not have anticipated
i. Ex: hurricanes, floods, earthquakes,
extraordinary rainfalls, extra severe frosts
3. Contributory Negligence
a. Rule: generally contributory negligence will not be
a defense to an action for strict liability. It will be a
defense, however, when the negligence of the P
rises to the level of implied/voluntary assumption
of the risk
b. Assumption of the Risk Test:
i. P has actual knowledge of the risks
ii. P is able to appreciate the risks
iii. P voluntarily proceeds to encounter the risk
1. ex: P climbing under the
rope putting himself in
harms way of the
dangerous animal
c. Defective Products and Products Liability
i. Products liability: focus is to hold sellers, retailers, manufacturers,
people who put products out into the market place strict liable
ii. Forms of products liability:
1. Negligence
2. Warranty
3. strict liability:
iii. Negligence
1. Theories of recovery:
a. Duties of care under tort law can arise out of
contractual relationships or agreements
i. Products liability actions
ii. Contractual agreements: where a party
agrees to do something and a breach of the
K results in harm done to the p
iii. Professional mal practice actions
b. Contractual duties:
i. Misfeasance: active misconduct that works
a positive injury to others

1. Ex: when D misperforms

the K
2. If the Ds actions constitute
misfeasance, then the
possibility of recovery
under tort law is greatly
increased. Privity of K
would not be a bar from
recovery
ii. Nonfeasance: inaction or a failure to take
steps to protect Ps from harm.
1. where there is only the
promise to do something
and the breach of that
promise
2. Privity of K is a key factor
3. If the Ds actions constitute
nonfeasance, then
historically, the K action
would lie and no tort action
could be maintained
iv. Warranty
1. Definition: a promise or agreement by the seller that an
article sold has certain qualities or that the seller has good
title thereto
a. Or a statement of fact respecting the quality or
character of goods sold, made by the seller to
induce the sale, and relied on by the buyer
2. Forms :
a. Expressed: written agreement/ expressed
representations. A promise, ancillary to an
underlying sales agreement, which included in the
written or oral terms of the sales agreement under
which the promisor assures the quality, description,
or performance of the goods.
i. Test:
1. Must be expressed
language
2. P must bring evidence that
they relied on this
statement when they
purchased the good
b. implied : covenants that run with the land. A
promise arising by operation of law, that something
which is sold shall be merchantable and fit for the

purpose for which the seller has reason to know that

it is required.
i. note: implied warranty of fitness of purpose
may run with the article even though D put
the information in the K and P did not read it
( ex: K of adhesion)
ii. ex: when manufacturer puts product in the
stream of trade and promotes its purchase
by the public an implied warranty follows
it
1. the implied warranty can
run with the sale even if
product was given to
another an a gift and there
is not privity of K between
manufacture and the
receiver of the gift
3. Public policy :
a. Protecting the consumer and requiring that an
implied warranty of fitness accompany the sale of a
product
b. unequal bargaining power between the consumer
and the manufacturer
i. lay persons does not have the ability to
inspect or to determine the fitness of the
automobile that he or she will purchase, or
to negotiate or alter standardized contracts
of the seller
4. Advantages/Disadvantages of breach of warranty theory:
a. Advantage: its not dependant on negligence or
knowledge on the defect and the express and
implied warranty theories provide additional
protection for the consumer
b. Disadvantage: weakens the manufacturers
reliability on the privity of K with the consumer for
a breach to ensue, warranties have limitations
v. Strict Liability
1. Rule:
a. a manufacturer is strictly liable in tort when an
article he places on the market knowing that it is to
be used without inspection for defects process to
have defect that causes injury to human beings
2. Public Policy:
a. to insure that the cost of injuries resulting from
defective products are borne by the manufacturers
that put such products on the market rather than by

the injured persons who are powerless to protect

themselves ( easing burden on P)(Greenman)
3. Test to prevail under Strict Liability: (Greenman)
a. P must prove they were:
i. Injured while using the product in a way that
it was intended to be used
ii. The injury was a result of a defect in the
design of the product
iii. The P was not aware of the defect
b. R. 402A:
i. 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:
1. the seller is engaged in the
business or selling such a
product; and
2. it is expected to and does
not reach the user or
consumer without
substantial change in the
condition in which it s sold
a. note:
i. this rule still applies
even if the seller has
exercised all possible
care in the preparation
and sale of his
product
ii. the user or consumer
has not brought the
product from or
entered into any
contractual relation
with the seller
3. product must be defective
at the time it leaves the
Manufacturer or the seller
4. applies to any person
engaged in the business of
selling products for use or
consumption:

a. ex: manufacturer, whole sale

or retail dealer distributor,
and the operator f a restaurant
4. A product can be defective in 3 ways: R.420(A)
a. Manufacturing:
i. Definition: when the product departs from
its intended design even though all possible
care was exercised in the preparation and
marketing of the product
1. flawed b/c it was
misconstrued or a result
from some mishap in the
manufacturing process
itself. i.e. improper
workmanship
ii. Test:
1. Product is evaluated against
the manufacturers own
product standards.
( products of the same
design
b. Design:
i. Definition: 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 the seller or
other distributor, or a predecessor in the
commercial chain of distribution, and the
omission of the alternative design renders
the product not reasonably safe
1. Imperfections/ problems in
the deign of the product
( blueprint)
ii. Policy:
1. The victims injured by
defective products should
be compensated for their
injuries without being
subject to the contractual
intricacies of the law of
sales
2. To encourage the design of
safer products this reducing
incidents of injuries

10

iii. Uniform Products Liability Act : adopted a

negligence/ fault system in determining
design defects
iv. Test to determine design defects:
v. Risk utility Balancing test
1. Design is defective when
the risk of harm outweighs
the utility of the design
2. Factors:
a. Usefulness and desirability of
the product its utility to the
user and to the public as a
whole
b. The safety aspects of the
product which would meet
the same need and not be as
unsafe (alt.design
c. The manufacturers ability to
eliminate the unsafe character
of the product without
impairing its usefulness or
making it too expensive to
maintain its utility
d. The users ability to avoid
danger by the exercise of care
in the use of the product and
their avoidability because the
general public knowledge of
the obvious condition of the
product or of the existence of
suitable warnings instructions
e. Feasibility on the part of the
manufacture of spreading the
loss by setting ht price of the
product or carrying liability
insurance
vi. Consumer Expectations about the product
1. Does the product meet the
ordinary/ reasonable
consumers expectations for
the safety of the product?
2. Standard: P must introduce
evidence that demonstrates
that the product dialed to
perform as safely as an
ordinary/reasonable

11

consumer would expect

when using the product in
its intended or reasonably
foreseeable manner.
vii. Risk-utility and consumer expectations
viii. State of the Art Defense:
1. Definition: referring to the
existing level of
technological expertise and
scientific knowledge
relevant to a particular
industry at the time a
product is designed
2. Defense: evidence that the
product is in conformance
with state of the art
technology and information
at the time of the
manufacture of the product
can show that th no better/
or alternative design was
available at the time the
product was designed
c. Warning (information): when the foreseeable risks
of harm posed by the product could have been
reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other
distributor or predecessor in the commercial chain
of distribution, and the omission of the instruction
or warnings renders the product not reasonably safe
i. Hopkins rule: product poses an unreasonable
risk of harm/danger to a consumer can often
be made safe by including an adequate
warning informing of the dangers and how
to properly use the product
ii. Rule: P must prove only that the D did not
adequately warn of a particular risk that was
known or knowable in light of the generally
recognized and prevailing best scientific and
medical knowledge available at the time of
manufacture and distribution of the product
iii. Factors to determine adequacy of the
warning:
1. Does the warning attract
the users attention?

12

( typeface of font, size,

color)
2. Does the warning tell of the
hazards or dangers of the
product? ( look at the
expressed language )
3. Does the warning inform
the use as to how the
product can be used safely
in the order to avoid the
hazards and dangers?
( expressed langauge)
iv. State of the art design
1. Defense: evidence that the
particular risk was neither
known nor knowable by the
application of scientific or
medical knowledge
available at the time of the
manufacturer and or the
distribution of the product
a. D must have actual and
constructive knowledge of
the potential risk or danger of
product b/f strict liability is
imposed P must show this
5. Analysis of product liability:
a. Whats the tort at issue? What are the policies
behind strict liability?
b. Can P establish the prima facie elements for strict
liability (R. 402A)
c. does the defendant have a defense?
6. Test:
a. D must be the manufacture or the seller of the
product
b. The product must be defective at the time it was
sold by the D ( manufacturing, design, warning)
c. The product must reach the consumer without
substantial changes in its conditions
d. The defective condition of the product must be the
cause ( proximate/actual) of the ps injuries
7. Proof:
a. Direct:
i. demonstrative ( tangible the actual defective
product after the incident), probable cause of
accident

13

ii. witness testimony (eye witness/experts)

iii. state of the Art
b. Indirect: circumstantial
i. Common knowledge- the happening of the
event, evidence of injury occurring in the
course of or following use of product
8. General Defenses to Products liability:
a. Attacks on the prima facie elements
b. Product alteration
c. Design alteration
d. Design defects state of the art
e. Information defects state of the art
f. Plaintiffs contributory negligence(complete bar at
common law)
g. Comparative fault
i. Forms
1. Pure
a. Manufactures relieved from
strict liability if P has been
contributory negligent. Ps
negligence must rise above
the level of being
assumption of the risk
2. Modified
a. Jurisdictions that follow the
no greater than the
defendant approach (50% or
lower0 and the not as great
as the defendant approach
(49% or lower)
ii. Recover= total damages minus Ps % of
fault
1. R=TD-P%
iii. Policy:
1. Principle of protecting the
defenseless is also
preserved/ ps recovery is
reduced only to the extent
that the ps own lack of
reasonable care resulted in
their injury
h. Product misuse ( foreseeable/unforeseeable misuse)
i. Manufacturer is not liable for injuries
resulting from the abnormal or unintended
use of the product if such use was not
reasonably foreseeable

14

ii. They are liable for injuries caused from the

abnormal or unintended misuse of the
product if the misuse is reasonably
foreseeable
III. Misrepresentation
a. Defintion:
i. A false representation of a fact
ii. Policy:
1. To protect persons from relying upon false information in
business and personal dealings
2. To protect the intangible economic interests of persons who
are induced to enter into bargaining transactions
iii. Forms
1. Negligent misrepresentation
2. Fraudulent misrepresentation
iv. Analysis
1. Whats the tort to be considered? What are the polices
behind the tort of misrepresentation?
2. Can the plaintiff establish the prima facie elements for this
tort?
3. Does the defendant have a defense?
v. Concealment and Non-disclosure
1. Elements of misrepresentation
a. A false representation or concealment of a material
fact
b. The representation is made to the P or a 3rd party
with the purpose or goal of inducing the P to act or
to refrain from acting on the representation
c. P relies on the representation
d. P reliance is reasonable or justified
e. P suffers pecuniary losses as a result of his or her
reliance on the representation or concealment of a
material fact
2. Some factors considered by courts
a. The uttering of a half truth by the defendant
b. any actions on the ds part to prevent or stop the P
from acquiring information about the condition of
the house
c. a showing that the parties were in a fiduciary
relationship
d. the parties stoop in a position of confidence with
each other contractual relationship
3. At common law the D has a duty to speak up when the
following are present:
4. Fiduciary relationships

15

a. ex:
i. principle/ agent
ii. atty/client
iii. physician/ patient
iv. priest/ parishioner
v. partners
vi. tenants in common
vii. husband/wife
viii. parent/child
ix. guardian/ward
5. certain types of contractual relationships at commons law
a. those of suertyship and guaranty, joint adventure, or
insurance, were recognized as in themselves
creating or involving something of a confidential
relation, and hence as requiring the utmost good
faith and full and fair disclosure of all material facts
6. two view points in the area of non-disclosure
7. traditional view: absent active concealment or material
misrepresentation, the traditional view holding that there is
no duty to disclose no matter how unfair caveat emptor
8. modern trend: where there is a serious and dangerous
latent defect, known to exist by the seller, then the seller
must disclose such defect to the unknowing buyer or suffer
liability
9. Definition of Material:
b. Misrepresentation Made to the plaintiff or Third Persons
i. Fraudulent misrepresentations require proof of fraud, and nothing
short will suffice. Fraud is proved when it is shown that a false
representation has been made: ( case law)
1. Knowingly; or
2. without belief in its truth; or
3. recklessly, careless whether it be true or false
ii. Restatement 526 A misrepresentation is fraudulent if the maker:
1. Knows or believes that the matter is not as he represents it
to be;
2. does not have the confidence in the accuracy of his
representation that he states implies , or
3. knows that he does not have the basis for his
representation
a. for purposes of fraud, knowledge is scienter
iii. Fraudulent misrepresentation
1. Elements
a. A false representation or concealment of a material
fact;
b. the representation with fraud (scienter;

16

c. the representation is made to the plaintiff or a 3rd

party with purpose (or goal) of inducing the
plaintiff to act or to refrain from acting on the
representation
d. the plaintiff relied on he representation
e. the plaintiffs reliance is reasonable or justified
f. the plaintiff suffers a pecuniary loss as a result of
his or her reliance on the representation or
concealment of material fact
i. this defense will fail when:
1. when the belief is destitute
lacking of all reasonable
foundations
2. the person making the false
statement representation
has shit his eyes to the facts
3. had purposely decided not
to inquire into the facts
iv. Negligence R.311
1. One who negligently gives false information o another is
subject to liability for physical harm caused by action by
the other in reasonable reliance upon such information
2. Such negligence may consist of failure to exercise
reasonable care
a. In ascertaining the information; or
b. In the manner in which it is communicated
3. Elements
a. A false representation or concealment of a material
fact
b. The representation is made with negligence
c. the representation is made to the P or a 3rd party
with the purpose or goal of inducing the plaintiff to
actor or to refrain from acting on the representation
d. P relies on the representation
e. Plaintiffs reliance is reasonable or justified
f. Plaintiff suffers pecuniary losses as a result of his or
her reliance on the representation or concealment of
material fact
4. Nature of Misrepresentation: misrepresentations (or false
representations) can be made either expressly (i.e. through
words) or by actions designed to conceal information (i.e.
prevent plaintiff from discovering certain information).
1.

Concealment and nondisclosure: what types of

relationships (i.e. bargaining positions) do not
require affirmative disclosure of information? What

17

types of statements will not constitute grounds for

an action in misrepresentation?
NOTE: review termite infestation dilemma
(traditional and modern viewpoints) and
cases where statements made do not
constitute misrepresentations.
2. Disclosure: situations and circumstances (i.e.
relationships) may require the defendant to disclose
information (i.e. duty to correct the making of a "halftruth"; defendant "actively" conceals cracks in car
engine block; fiduciary or special relationships, etc.).
Review cases to pull out additional situations or
circumstances.
v. Innocent Misrepresentation R.552C
1. One who, in the sale or exchange transaction with another,
makes a misrepresentation of a material fact for the purpose
of inducing the other act or to refrain from acting in
reliance upon it, is subject to liability to the other for a
pecuniary loss caused to him by his justifiable reliance
upon the misrepresentation, even though it is not made
fraudulently or negligently
c. To third Persons
i. actions for misrepresentation can be maintained by the recipient of
the representation or by third parties.
1. Liability to 3rd parties for misrepresentation may be
imposed when the parties (defendant and 3rd parties) are in
privity, or a relationship so close to approach privity
a. D must be aware that the ___ will be used for a
particular purpose or purposes
b. D must be aware that a known party were intended
to rely on the document
c. Conduct on the part of the D linking them to the
other party there must be evidence demonstrating a
nexus between the accountant and the plaintiff

18

ii. Three different approaches taken courts to evaluate liability to

third parties that rely on misrepresentation:
1. Credit alliance (majority)
a. Rule: liability to 3rd parties for misrepresentation
may be impose when the parties (defendant and 3rd
parties) are in privities or in relationships so close
as to approach privity
i. Factors for establishing a relationship
1. When D at least knows the
purpose for which ( the
document at issue) to be
made
2. 3rd partys reliances on ___
3. nexus of relationship b/tw
the parties
2. Citizens Bank
a. Liability to 3rd parties is imposed for all foreseeable
injuries resulting from the defendants negligence act
(except as limited by public policy(ex: remoteness,
injury out of proportion to the defendants culpable
act,etc.)
i. Public policy factors
1. Remoteness( injury too
remote from the
negligence)
2. Proportionality ( the injury
is too wholly out of
proportion to the culpability
of the negligent tort feasor
3.
3. Restatement Second Approach(minority)
a. Liability to 3rd parties is imposed only for a limited
group of 3rd parties who are expected to gain access
to the financial statement information in an
expected transaction
d. Reliance
i. Key points:
a. P must rely on the false representation or
concealment of a material fact
b. Ps reliance must be justified (ex. Reasonable)
ii. where reliance is not justified
1. Rule: obviously false
a. One cannot justifiably rely on obviously false
statements.

19

2.

3.

4.
5.

6.

7.

8.

b. Courts will refused to act for the relief of a person

claiming to have been misled by anothers
statements, blindly acts in disregard of knowledge
of their falsity, or in disregard of reasonable
opportunity to discover the falsity
Factors court consider in determining whether the falsity
was obvious or could have been detected by ordinary
observation?
a. The relationship between the parties (ex: fiduciary)
b. The intelligence and life experiences of the misled
party
Rule: An opinion
a. Opinions are not fraudulent because they fo not
ordinarily deceive or mislead. They are statements
that are vague, indefinite in their nature and terms,
loose, conjectural, exaggerated
b. Opinions are not statement of material facts
Future predictions:
a. Generally not liable
Rule: State of ones mind
a. Generally, a person is not justified in relying on an
opinion
b. puffing a subset of opinion or trade talk are the
types of statements that no reasonably person takes
seriously
Rule: Misrepresentations of law
a. Generally one is not justified in relying on
misrepresentations of law or misrepresentations as
to matters concerning the law
Two rationales:
a. everyone is held to know the law
b. no one without special training, is expect to know
the law..
exception:
a. a representation or legal opinion given by an atty or
judge

e. Damages
i. General point:

20

ii. P must suffer pecuniary damages as a result of his or her reliance

on the misrepresentation
f. Approaches used by the court to determine damages
i. Out of pocket loss theory (tort recovery)
1. Formula
a. Recovery = price paid- the value of good at the
time of sale
i. Can get at anytime
ii. Benefit of the bargain rule ( contract recovery)
1. Formula
a. Recovery= value of the Good as represented the
value of the good at the time of sale
i. ** look for examples on ecommons
IV. Defamation
a. General Overview
i. Definition
1. Defamation- a communication that tends to damage the
plaintiffs reputation more or less in the popular sense
a. E.g= to diminish the respect, good will, confidence
or esteem in which the plaintiff is held in the eye of
others, or to excite adverse or unpleasant feelings
about the plaintiff
ii. Protected interest
1. Provide protection against injury to your reputation and
good name
iii. Elements/ test
1. A false statement
2. of and concerning the plaintiff
3. a publication of the false statement;
4. injury to reputation
a. P suffers a loss of esteem in the eyes of another, or
the false statement about the P deters 3rd persons
from associating or dealing with the plaintiff
iv. Types of defamation
1. Libel (printed/written)
2. Slander (oral)
b. The role of the Judge and Jury
i. It is the role of the ct to determine 1st whether the words are
reasonably capable of a particular meaning
ii. The jury should determine, if, within the context of the statement,
the words would be understood by others as being defamatory
1. Basic Rules:
a. If the statement has no defamatory meaning
whatsoever, the court can dismiss the case for
defamation as a matter of law

21

b.

If the statement bears only one meaning and the

meaning is defamatory, it will be left for the judge
to determine if the interpretation of the statement is
defamatory
c. if the statement carries the possibility of two
meaning ( one defamatory, the other nondefamatory), the court must pass the statement ton
to the jury to determine which of the two meanings
would be attributed to the statement by those to
whom it is addressed or may read it
2. Evaluation:
a. Are the alleged statements concerning the P libel/
slander?
b. What is defamation as defined by the statute?
c. How will the court evaluate a defamatory
statement?
i. Ex:it will be evaluated in light of the
context it will be construed in a way in
which ordinary persons would understand it
3. Standard for determining whether the meaning of a
statement is defamatory
a. As long as someone who hears the statement thinks
loses respect or esteem for the plainttiff, then there
will be injury to the P, even if they are members of
the non politically correct or non-law abiding
group)
c. The defense of truth
i. Truth is an affirmative defense to a defamation action
ii. To support defense, the D only has to prove that the statements
made about the plaintiff are substantially true
d. Pleading
i. Elements
ii. Colloquium
iii. Inducement
iv. Innuendo
v. Special damages when required (ex: in slander actions)
e. Colloquium
i. When pronouns are used ( he/ she burned down)
ii. When statements are directed at groups individuals
iii. When false statements occur in works of fiction
1. Rules :
a. Group Defamation
i. Where the group or class libeled is large,
generally no one will be able to sue
ii. Where the group or class libeled is small,
and each and every member of the group or

22

class is referred to, then any individual

member can sue
1. Rationale: Such a general
condemnation could not
reasonably be regarded as
referring to each individual
or any particular individual
within the group
iii. Exception: even If the group is large, a
member of the group may have a cause of
action for defamation if he/she can
demonstrate that some circumstance (facts)
points to him or her as the person defamed
iv. R.564A: one who publishes defamatory
content concerning a group or class of
persons is subject to liability to an individual
member of it if, but only if,
1. The group or class is so
small that the matter can be
reasonably understood to
refer to the member, or
2. The circumstances of
publication reasonably give
rise to the conclusion that
there is a particular
reference to the member
i. Groups that are
generally successful
in pursuing group
libel action number
25 or less
b. Works of Fiction
i. The fictional setting or label will not shield a
defendant from defamation when a
reasonable person would understand that the
character was a portrayal of the plaintiff
ii. For purposes of defamation actions, when
the P is not identified by name, the test for
determining whether a fictional character in
a book is the plaintiff is:
1. Whether a reader with
knowledge of the
surrounding circumstances
could have reasonably

23

understood that the words

referred to the P.
2. It is not important that all
readers be able to indentify
the statement as being
about the P. All that is
necessary is that one person
can indentify the statement
as being about the plaintiff
f. Libel and Slander Broadened
1. Libel (printed or written)
a. Common law rule:
i. Treated as per se actionable without
showing injury to reputation; presumed
injury to reputation
b. Expansion of definition:
i. The term has been broadened to include
things communications by the sense of sight
c. R.568
i. Libel consists of the publication of
defamatory matter by written or printed
words or by its embodiment in physical
form, or by any other form of
communication with has the potentially
harmful qualities characteristic of written or
printed words
2. Slander (oral)
a. Common law rule:
i. Not actionable without showing damages. P
must show they suffered special damage
Pecuniary damages from the disparaging
words are required
ii. There must be a nexus between the
disparaging words and the injury suffered by
the plaintiff as a result of the attack on his or
her reputation
1. Exception: slander per se
b. Expansion of definition:
i. The term has been broadened to include
things communications by the sense of
hearing
c. R.568
i. Slander consists of the publication of
defamatory matter by spoken words,

24

transitory gestures, or by any form of

communication other than those stated in
Subsection 1
g. Defamatory Broadcasts and Slander Per Se
i. Broadcasts
1. Rule: the utterance of ad-libbed defamatory remarks
made over the radio airwaves should be treated as a libel.
The speaking of these words over the radio airwaves is
potentially as harmful to a defamed persons reputation as
would publishing the words in writing
a. Reasonable to presume damage
ii. Slander Per se
1. Statements of major crimes(ex: crimes of moral turpitude);
a. Crimes of Moral Turpitude
i. Moral turpitude is personal conduct which
goes against public morals. Generally crimes
that violate community standards n addition
to the law
1. Ex: murder, fraud, rape,
arson, robbery, and
counterfeiting
ii. such conduct is regarded as a black mark
against someones reputation, and may cause
problems in the future after conviction
1. ex: employment
opportunities or activities
2. Loathsome disease (ex: leprosy)
3. Business, trade, profession or office (doctors, lawyers,
bankers, mayor)
4. Serious sexual misconduct of a female
h. Libel per se and Libel per quod
i. Definitions:
1. Libel per se: at common law, all libels were per se
(actionable without having to demonstrate injury to
reputation).
2. Libel per quod: term used when a libel, defamatory
statement in writing, is not defamatory on its face and
required the reader to be aware of unstated or extrinsic facts
in order to appreciate the defamatory meaning
i. Publication
i. Definition:
1. Publication is a term of art.
ii. Rule:

25

1. P suing for defamation must allege in the complaint and

prove (at trial), that the false statement concerning him or
her was published.
2. In order to be actionable, the defamatory speech must be
communicated to someone other than the P
3. Additionally, the person hearing a slander must understand
the meaning of the language
a. ex: when the statement is in a foreign language
iii. Single publication rule:
1. The publication of a book, periodical, or newspaper
containing defamatory matter gives rise to only ONE cause
of action for libel, which accrues at the time of the original
publication
2. IL Rule and Statute of Limitations
a. 735 ILCS 5/13-201
i. actions for slander, libel or for publication
of matter violating the right of privacy, shall
be commenced within one year next after
the cause of action accrued
b. 740 ILCS 165/1
i. no person shall have more than one cause
of action for damages for libel or slander or
invasion of privacy or any other tort founded
upon any single publication or exhibition or
utterance, such as any one edition of a
newspaper or book or magazine or any one
presentation to an audience or any one
broadcast over radio or television or any one
exhibitions of a motion picture. Recovery in
any action shall include all damages for nay
such tort suffered by the plaintiff in all
jurisdictions.
iv. Defamation and the internet
1. Rule:
a. The Communications Decency Act (47 U.S.C. 230
(b)(1),(2) and (4)
i. no provider or user of an interactive
computer service shall be treated as the
publisher or speaker of any information
provided by another information content
provider
ii. the statute provides immunity from liability
for a Interactive Computer Services/ Internet
Service Providers, that publish
(communicate) false or defamatory material

26

so long as the information was provided by

another (ex: 3rd party) and not the publisher
1. to receive immunity, the
publisher cannot be an
Information Content
Provider for the defamatory
statement/ or speech at
issue
iii. if the publisher (Interactive Computer
Service) in a content provider, then the
publisher can be liable for defamatory
statements about the plaintiff that are posted
on its website
2. Public Policy
a. To promote the free exchange of information and
ideas over the internet (ex: to promote the continued
development of the interest)
b. To encourage voluntary monitoring for offensive or
obscene material
j. Primary and Secondary Publishers
i. Primary/ Original: newspapers, book publishers, magazine
publishers
1. Common law practice:
a. Primary publishers were subject to strict liability
for defamation, even though the publishers may
have innocently taken the defamatory materials
from someone else, without notice that the materials
contained defamation
i. Note: R.581(a) broadcasting stations (ex:
television and radio) should be treated as
original or primary publishers for
defamation purposes
ii. Secondary publishers: a vendor, or distributor of a news paper,
magazine, or book is considered a secondary publisher at
common law, a secondary publisher is not strictly liable for
defamation contained in publications that it sold, of it had no
reason to be put on guard or notice that its publication contained
defamatory materials
iii. Internet services: prior to the adoption of the communications
decency act, internet service providers (ex:AOL, Yahoo, etc.) were
classified as secondary publishers
k. First Amendment Policies- Fault Standards-Matters of Public Concern
i. U.S. Const. Art. VI, Cl. 2
1. This constitution, and the Laws of the United States which
shall be made in pursuance thereof; and all treaties made,

27

ii.

iii.

iv.

v.

vi.

vii.

viii.

or which shall be the supreme Law of the Land; and the

judge in every State shall be bound thereby
U.S. Const. amend. I
1. Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press
U.S. Const. amend. X
1. The powers not delegated to the United States by the
constitution nor prohibited by it to the States,are reserved to
the States respectively, or to the peropel
Analysis
1. Can the P establish the common law test for defamation
2. Does the D enjoy a defense or privilege? Ex: truth
3. are there 1st amendment concerns in the problem?
a. Is the defamatory speech protected under the 1st
Amendment?
First Amend. Factors
1. Plaintiffs Status: Private/ Public
2. Defendants Status: (Private/Media)
3. Defamatory Speech ( Matter of Public Concern/ Private
Concern)
Important Supreme Court Decisions
1. NY Times v. Sulluvan
2. Gertz v. Robert Welch
3. Dun & Bradstreet
4. Philadelphia Newspapers, Inc. v. Hepps
Constitutional Fault Requirements when Federal Interests are
Present
1. The first amendment requires a balancing of both the
federal and state interests in defamation cases.
2. When the federal interest is present in a defamation case,
the Constitution requires a plaintiff, in addition to proving
the common law elements, to also demonstrate fault,
before the plaintiff can obtain any damages (ex:
compensatory or punitive)
3. The Supreme Court has adopted two fault standards to
ensure protection of the federal interests (ex: First
Amendment Speech and Press)
a. The N.Y. Times actual malice standard( when the
federal interest is high)
b. The Gertz negligence standrd ( when to
accommodate any state interest involved (ex:
private plaintiffs)
First Amendment Fault Standards

28

1. Actual Malice (NY Times) Negligence (Gertz) Common

Law Presumed Damages/ Punitive Damages When no Federal
Interests are Present (Dun & Bradstreet)
ix. Matters of Public Concern
1. Rule: the commission of crime, prosecutions resulting
from it, and juridical proceedings arising from the
prosecutions, however, are without question events of
legitimate concern to the public and consequently fall
within the responsibility of the press to report the
operations of government.
l. First Amendment Fault Standards
i. Public officials
1. Persons with positions in government that are so important
that the public has an independent interest in the
qualifications and performance of the person who holds it.
2. Persons who have or appear to the public to have
substantial responsibility for or control over the conduct of
governmental affairs
a. Indicia of public official status
i. Elected official
ii. Candidate for elected office
iii. Judge
iv. Appointment by executive officer
3. Rule: (NY Times)
a. The constitution delimits a states power to award
damages for libel in actions brought by public
officials against critics of their official conduct
b. When defamatory speech concerns a public
plaintiff or a matter of public concern, the federal
interest in protecting speech is high. The plaintiff
will have to overcome an additional federal
safeguard before he or she will be allowed to
prevail in a defamation action (libel or slander)
c. the constitution guarantees requires a federal rule
that prohibits a public official from recovering
damage for a defamatory false-hood relating to his
official conduct unless he or she proves that the
statement was made with actual malice- with
knowledge that the speech was false or with
reckless disregard of whether it was false or not
4. Rule (Thompson)
a. The constitutional guarantees require a federal rule
that prohibits a public official from recovering
damages for a defamatory false-hood relating to his
official conduct unless he or she proves that the
statement was made with actual malice with

29

knowledge that the speech was false or with

reckless disregard of whether it was false or not
b. actual malice can be demonstrated by showing
that statement about the plaintiff was made with:
i. knowledge that it was false; or
ii. with reckless disregard of whether it was
false or not
iii. Reckless disregard:
a. Reckless conduct is not
measured by whether a
reasonably prudent man
would have published or
would have investigated
before publishing
b. There must be sufficient
evidence to permit the
conclusion that the defendant
in fact entertained serious
doubts as to the truth of his
publication (ex: high degree
of awareness of probable
falsity)
c. the evidence submitted to demonstrated actual
malice must meet the clear and convincing
evidence standard rather than the preponderance of
the evidence standard for most tort cases.
i. Evidence that, when weighed against
evidence in opposition, will produce in the
mind of the trier of fact a firm conviction as
to each essential element of the claim and
high probability as to the correctness of the
conclusion
ii. proof by clear and convincing evidence
requires a level of proof greater than a
preponderance of the evidence of the
substantial weight of the evidence, but less
than beyond a reasonable doubt.
d. The actual malice standard has been extended to
apply to:
i. Speech involving public discussions of
qualifications of candidates running for
elective office; and
ii. speech on matters of public concern
ii. Public figure
1. Universal

30

a. Individuals who have achieved pervasive fame or

notoriety so as to become a public figure for most
purposes and in most contexts
i. Examples: renown families such as the
Kennedys, the Royal Family (England)
celebrities, sports athletes, etc.
2. Limited
a. Voluntary : individuals who have voluntarily
injected themselves into a public controversy in
order to influence the resolution of the issue
involved.
i. Example: the guy leaking classified
information from the National Security
Agency to the press
b. Involuntary. Those persons who have been thrust
into a controversy/public eye through no purposeful
action of his or her own (ex: thrown into a
controversy due to a relationship with another..)
i. Ex: mel gibsons wife in their divorce action
1. Richard Jewell arrested of
the 1996 Olympic bombing
iii. Rule:
a. the constitution guarantees requires a federal rule
that prohibits a public official from recovering
damage for a defamatory false-hood relating to his
official conduct unless he or she proves that the
statement was made with actual malice- with
knowledge that the speech was false or with
reckless disregard of whether it was false or not
b. however, when the states interest is present in a
defamation action (ex: private individuals), as long
as the State does not impose liability without fault
(ex: presumed injury and punitive damages), the
States may define for themselves the appropriate
standard of liability for a publisher or broadcaster
of defamatory falsehood injurious to a private
individuals.
i. Note: the standard for Gertz is negligence
2. A state may not permit recovery of presumed or punitive
damages t least when liability is not based on a showing of
knowledge of falsity or reckless disregard for truth.
a. Punitive and presumed damages will be allowed if
the plaintiff demonstrates N.Y. Times actual
malice
iv. matters of public concern:

31

1. whether speech addresses a matter of public concern must

be determined by the (expressions) content, form, and
context
a. content
i. the nature/subject matter of the speech (ex:
credit report of a private business)
b. form
i. credit reports are generally private
documents
c. context
i. the credit report was sent out to 5 D&B
subscribers)
v. Analysis:
1. Is plaintiff public or private?
2. Id the defendant a media or non-media defendant?
3. Does the speech that involve a matter of public concern?
4. What does the U.S. Constitution require in this situation?
m. 1st Amend. Falsity and Opinion
i. Rule: Falsity
1. Common law presumption that defamatory speech is false
cannot stand when a plaintiff seeks damages against a
media defendant for speech involving public concerns
2. When a media defendant is being sued for defamation that
concerns speech involving a matter of public concern, the P
has the burden of demonstrating that the statement is made
both with fault ( ex: NY times actual malice or Gertz
negligence) AND that the statement is false ( common law
presumption of falsity is now longer allowed)
ii. Rule: Opinion
1. The 1st Amendment provides no separate protection for
your opinion. The Supreme Courts First Amendment
cases( ex: NY times, Gertz, Philadelphia Newspapers)
provide sufficient protection for false statements that
constitute opinion
a. The 1st amend. Does not mandate a specific and
separate inquiry into whether a statement is either
opinion or fact
2. An expression of opinion, however, may often imply an
assertion of objective fact.
a. Opinion can be a defense to a defamation action
when the opinion refers to underlying facts that are
false and defamatory
i. Ex: where there are facts capable of proving
the opinion is false)
n. Defenses (common law)
i. Truth.

32

1. At common law, the burden of establishing truth was on the

defendant. Defendant only had to establish substantial
truth
a. Truth is not a defense when the 1st Amen.
Protections (gertz & n.y. times rules) apply.
b. When 1st amend. Concern are present, the plaintiff
will have the burden of establishing fault )actual
malice or negligence.
i. The P will have the burden of establishing
falsity (Ex: that the alleged defamatory
statements about him or her are false) when
the plaintiff sues the media defendant
ii. Opinion
1. Opinion can be a defense to a defamation action but may
also be actionable under defamation law.
a. For example, expressions of opinion may often
imply an assertion of objective fact.
iii. Privileges
1. A peculiar right, advantage, exemption, power, or immunity
held by a person or class, not generally possessed by others
2. Common law privileges:
a. Fair comment:
i. At common law, prior to NY Times, the
courts had developed ( without reference to
the constitution), a privilege of criticism of
public officers and their official conduct.)
1. A majority of courts held
the privilege was limited to
the expression of opinion,
and not misstatements of
fact
2. It was an affirmative
defense. It afforded
immunity for the honest
expression of opinion on
matters of legitimate public
interest when the
commenting was based on
true and privilege
statements of fact.
i. It protected
statements of opinion.
The privilege was
used to strike the
balance between the
need for vigorous

33

public disclosure and

the need to protect
against injuries to
reputation
iv. Reporters privilege:
1. At common law it was a privilege that exempted a
defendant from liability if his/her report of defamatory
speech was verbatim or a fair and accurate summary of
official proceedings in the public interest, been though the
defendant speaker was at fault for defamation
2. Initially, the privilege protected the reporting of all official
proceedings in the public interest (ex: sessions of
legislative committees, juridical proceedings.)
3. Today, it has been extended to now include: reports filed by
officials in the performance of their duties; information of
public concern uttered at public meetings, etc.)
v. Absolute & Conditional Privileges
1. Absolute:
a. Judicial proceedings
i. An absolute privilege will apply to
participants in judicial proceedings as long
as the statements made are pertinent and
relevant to issues in the litigation.
ii. Judges have an absolute privilege
(protection from civil liability) for
defamatory words published in the course of
judicial proceedings
iii. Attys are protected for defamatory words
made during the course of a judicial
proceeding, if relevant and pertinent to the
issues in the litigation
iv. Witnesses are extended the privileges even
though they voluntarily testify
v. Pleadings. Defamatory statements in
pleadings are covered
b. Legislative proceedings
i. An absolute privilege will apply to members
of congress and of the state legislatures, in
the performance of their legislative
functions.
1. Federal and state
constitutional provisions
have been construed to
extend the privilege to
anything whatever said in

34

the course of the

proceedings
ii. Members of congress and state legislatures
while in the performance of their legislative
functions
iii. Hearings of a legislative body
iv. Witnesses testifying before legislative body
c. Public officials
i. An absolute privilege will apply to public
officials in the performance of their official
duties
1. High ranking federal
executive branch officers.
Immunity is afforded to
high ranking federal
executive officers (ex.
Cabinet officials) from
defamation liability while
acting as their duties
require or inherently
permit. It also extends to
federal agents of lower
standing.
2. Some states have extended
the absolute privilege to
officials of lower rank.
3. Many courts however, hold
that official of lower rank
are entitled to a qualified
privilege only
2. Conditional privileges:
a. A condition privilege (qualified) will apply in some
instances for speech that is deemed less important
but nonetheless essential.
i. Ex: employee references
b. Conditional privileges protect speech in various
occasions, even though the speech is defamatory
and the occasion is not paramount as under the
absolute privilege ( when speech ahs some
important social value)
i. Speech was protected (ex: not legally
actionable) even though it was defamatory,
if it was communicated by the publisher to
the recipient where both parties had a
reciprocal duty and interest to

35

communicated and receive it. (ex: letters of

reference)
c. Conditional privilege is defeasible: it can be lost if
not exercised properly (ex: the communication is
outside the purpose of the privilege)
i. Privilege must be exercised in a reasonable
manner and for a proper purpose
ii. Privilege will be forfeited if the defendant
steps outside of the scope of the privilege, or
abuses the occasion
1. Ex: publication to persons
other than those whose
hearing of the speech is
reasonably believed to be
necessary or useful for the
furtherance of the common
interest between speaker
and receiver
3. Factors to consider in determining if the speaker has abused
the privilege:
a. The Ds reasonable belief in the truth of the
statement;
b. the excessive nature of the language used;
c. whether the disclosure was unsolicited
d. whether the communication was made in a proper
manner and only to proper parties
4. a defendant cannot claim a qualified or conditional
privilege if he or she knows that his or her defamatory
statement is false or does not believe it to be true
o. Remedies
i. Damages (compensatory or punitive)
ii. Mitigation of damages (ex: provocation by plaintiff)
iii. The libel proof plaintiff
iv. Ps bad reputation (reduction of recover)
v. Nominal damages
vi. Declaratory relief
vii. Self- help (most import)
viii. Right of response statutes
ix. Retraction statutes ( the retraction must be unequivocal and not
partial)
x. injunctive relief
V. Invasion of Privacy
a. Types
i. False light (publicity that places another in a false light_
1. Protected interest: protection against publicity that places
the plaintiff in a false light (false position) in the eyes of the

36

public. (protection of plaintiff from being made to appear to

public in a position otherwise than as the plaintiff actually
is.)
2. R652E
a. One who gives publicity to a matter concerning
another that places the other before the public in a
false light is subject to liability to the othe rfor
invasion of his privacy if
i. The false light in which the other was placed
would e highly offensive to a reasonable
person
3. Elements:
a. Statements, comments, implications about the
plaintiff (false)
b. Publication (made public)
c. Placing plaintiff in a false position in the eyes of the
public (ex: attributing to plaintiff, characteristics,
conduct, or beliefs that are false)
d. NY times malice is required if the comments,
implications, etc., pertain to a matter of legitimate
public concern ( ex: bridge collapse in West
Virginia)
4. The tort is similar to defamation in that it is designed to
police injuries towards reputation
5. Because it is similar to defamation, the N.Y. Times actual
malice rule will apply when the speech involves a matter of
public concern
6. In hall v Post the Supreme Court of North Carolina
declined to adopt this tort, primarily on the basis that it was
duplicative (ex: defamation could police against these
concerns)
ii. Appropriation ( of another name of likeness)
1. Rule:
a. One who appropriates to his or her own use or
benefit the name or likeness of another is subject to
liability to the other for the invasion of his privacy
(R.652C)
2. Elements***
a. Defendant uses the plaintiffs name or likeness;
b. The use of the name or likeness is for the
defendants benefit (commercial or noncommercial);
c. plaintiff suffers damages (special (economic) or
non-economic general)) due to the use of his or her
name;

37

3.
4.

5.

6.

7.

8.

d. the Ds use of the name or likeness has caused the

damages
This tort is generally implicated when D is using Ps photo,
name, likeness for economic gain
First type of privacy to be recognized by most jurisdictions
and the court
a. If it is not a public area is it not an invasion of
privacy
i. Sunbathing in a public park
General Points
a. The tort protects a persons proprietary interest in
the use of his or her name or likeness
b. plaintiffs injuries can either be personal (ex:
humiliation, embarrassment etc.) or economic (i.e.
value of name or likeness)
c. It was the first type of invasion of privacy to be
recognized by the courts
Right to publicity
a. It evolved to police against appropriations of
names, likeness, and identity, where the name and
likeness of the individual had economic value
(celebrities)
b. unlike appropriation tort, the right publicity is
statutory and designed to protect the commercial
value of the plaintiffs name or likeness.
c. An important distinguishing feature of the right to
publicity is that it is treated as a property right
( they expire when you expire as a person) the right
will survive after the death of the plaintiff, unlike
the privacy tort of appropriations which expires
upon death of the plaintiff
d. it protects against commercial injury, while the right
to privacy tort protects against both personal and
commercial injuries.
Examples:
a. Use of race car divers car to promote cigarettes
b. A sound a like voice (Better Midler)
c. the birth name of a famous athlete
d. phrases such as Heres Johnny to sell portable
lavatories
e. a stick figure of vanna white
Defenses:
a. The 1st amendment: newsworthiness and matters
legitimate public concerns (ex: crime reporting,
judicial proceedings, public records)

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i. there is a 1st amendment privilege that

permits the use of a plaintiffs name or
likeness when that use is made in the context
of, or reasonably relates to a publication
concerning a matter that is newsworthy or of
legitimate public concern.
b. Matters of public concern:
i. the commission of crimes, prosecutions
resulting from it, and judicial proceedings
arising from the persecutions, however, are
without question events of legitimate
concern to the public and consequentially
fall within the responsibility of the press to
report the operations of government.
iii. Public Disclosure/ Private Facts (offensive facts)
1. Liability will be imposed for publication of private facts
when the matter publicized is of a kind that: (a) would be
highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public.
2. Elements:
a. Private facts ( facts that are not already available to
the public ex: public records, documents, etc.)
b. There must be a publication of the facts
c. Disclosure of the facts must be highly offensive
to a reasonable person
d. The private facts must not be of legitimate public
concern (criminal activity, criminal records, judicial
proceedings)
3. Other points:
a. There is no publication sufficient for liability if the
publication of the private fact is made to one person
only, or a small group of individuals. The
publication must be made to a large number of
individuals.
b. Persons captured on film incidental to newsworthy
reports have no cause of action.
c. There is no liability for public disclosure of private
facts if the disclosure concerns facts that are already
in the public domain.
4. Problems with this tort
a. North Carolina has refused to recognize this tort and
holds that it is constitutionally suspect because it
imposes liability for the disclosure of truthful
information
i. Note: in the defamation analysis, the
supreme court has held that even flase

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statements may get first amendment

protection ( they receive limited breathing
space)
iv. Intrusion ( unreasonable intrusion upon seclusion of another)
1. Protected interest: the tort protects against intrusion
(physical trespass or non-physical) into spheres from which
an ordinary man in plaintiffs position could reasonably
expect that the particular defendant should be excluded).
2. R.652B
a. One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another
or his private affairs or concerns, is subject to
liability to the other for invasion of privacy, if the
intrusion would be highly offensive to a reasonable
person.
3. Rule:
a. An act of intrusion into a private place,
conversation or matter; physical or non- physical)
i. Note: is the sphere one in which the plaintiff
has a reasonable expectation of privacy>
b. The act is done in a manner that is highly offensive
to a reasonable person ( would the conduct/ act be
objectionable to reasonable persons)
4. Examples:
a. Secret videotaping in the marital bedroom;
b. Wiretapping of phone calls bugging
c. Computer hacking into ones medical records, other
personal information
i. There is no intrusion when the plaintiff is
observed or photographed or recorded in a
public place.
v. Intentional Infliction of Emotional Distress and Actual Malice
1. See hustler magazine v. flawell
2. IIED claim emanating from a publication
3. Public plaintiff (public figures)
4. 1st Amendment Protected Speech (Parody)
5. Holding: public figures and public officials may not
recover for the tort of intentional infliction of emotional
distress by reason of publication (such as parody) without a
showing (in addition) that the publication contains a false
statement of fact which was made with actual malice.
VI. Misuse of Legal Procedure

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