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Transferred Intent Doctrine Transferred intent is defined as intending to commit a tort against one person but the intent is transferred to another tort or person. The transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (i) commits a different tort against the same person; (ii) commits the same tort as intended but against another person; or (iii) commits a different tort against a different person. The defendant is liable only because of the transferred intent doctrine, and only to the person harmed. Transferred intent may be invoked only where the tort intended and the tort that results are both within the following list: (i) assault; (ii) battery; (iii) false imprisonment; (iv) trespass to land; and (v) trespass to chattels. Transferred intent does not apply to the torts of intentional infliction of emotional distress or malicious prosecution. Implied Consent Consent by mistake is not a form of implied consent. Where a plaintiff expressly consents due to a mistake, the mistake is disregarded and the expressed consent is valid (unless the defendant caused the mistake or knew of it and took advantage). Apparent consent is a kind of implied consent. Apparent consent is that which a reasonable person would infer from the plaintiff's consent. Thus, for example, somebody who voluntarily engages in a body contact sport impliedly consents to the normal contact inherent in playing it. Consent from custom is also a kind of implied consent. It is a form of apparent consent that may be inferred as a matter of usage or custom. Thus, for example, a person is presumed to consent to the ordinary contacts of daily life, e.g., minor bumping in a crowd. Intentional Infliction of Emotional Distress Actual damages are required to prove intentional infliction of emotional distress. To establish a prima facie case for intentional infliction of emotional distress, there must be proof of: (i) an act by the defendant that amounts to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to the effect of the defendant's conduct; (iii) causation; and (iv) severe emotional distress. While proof of physical injury is not required, the plaintiff must present some evidence of severe emotional distress. Express Consent An express consent will be valid unless it was made by mistake induced by the defendant. A defendant is not liable for a tortious act if the plaintiff consented to the act. Express consent exists when the plaintiff has expressly shown a willingness to submit to the defendant's conduct. If the plaintiff consents by mistake, the consent will still be valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it. An express consent will still be valid if it was induced by fraud as to a collateral matter. If the express consent was induced by fraud, the consent will generally not be a defense for the defendant. However, the fraud must go to an essential matter; if it only goes to a collateral matter, the consent will remain effective. Also an express consent will still be valid if it was induced by threats of future action. Consent obtained by duress will generally be held invalid. However, threats of future action or of future economic deprivation do not constitute legal duress sufficient to invalidate the express consent. Appropriation for Commercial Purposes Appropriation of a plaintiff's picture or name for commercial purposes requires only one element: unauthorized use of the picture or name for commercial purposes. Neither of the other choices is required. The defendant's use need not be highly offensive to a reasonable person. Appropriation of a plaintiff's name or picture for commercial purposes does not require that the use place the plaintiff in a false light. A separate branch of the invasion of privacy torts, publication of facts placing plaintiff in a false light, requires publication placing plaintiff in a false light. Defamation- Inducement For the tort of defamation, inducement means proving additional facts to establish a statement as defamatory. Sometimes a statement is defamatory on its face. Other times, a statement is actionable via inducement, in which the plaintiff pleads and proves additional facts to show the defamation. Inducement does not mean a statement standing alone is defamatory. A statement is defamatory standing alone when it is defamatory on its face without additional facts as inducement. Inducement also does not mean establishing the meaning of words to prove that a statement is defamatory. This process is known as innuendo. When a statement is not defamatory on its face, a plaintiff may prove additional facts as inducement and establish the defamatory meaning by innuendo. Inducement for defamation purposes does not mean the motivation for making a defamatory statement, although that is more like the ordinary meaning of the word. Defamation- Publishers The newspaper is liable as a primary publisher. Each individual who takes part in making the publication is charged with the publication as a primary publisher; e.g., a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker. The newspaper is not liable as a republisher or as a secondary publisher. A republisher is one who repeats a defamatory statement. A republisher usually will be held liable on the same general basis as a primary publisher. A secondary publisher is responsible only for disseminating materials that might contain defamatory matter (e.g., a vendor of newspapers, a player of a tape) and is liable only if he knew or should have known of the defamatory content. Because the newspaper is a primary publisher rather than a secondary publisher, it will be liable even absent negligence that the statement was defamatory. Interference of Business Relationships The defendant's relationship with a third party is a factor that may give rise to a privilege to interfere with the plaintiff's business relations with another. The type of damages suffered by the plaintiff is not considered in determining whether a privilege exists in an action for interference with business relations. The plaintiff must prove actual damages from the interference, and may recover mental distress damages and punitive damages in appropriate cases, but the type of damages suffered by the plaintiff is not related to the privilege factors. The fact that there was no contract between the plaintiff and the third party is not a factor giving rise to a privilege. In fact, the tort of interference with business relations also covers interference with a valid business expectancy of the plaintiff, not just a contract. Defamation- Special Damages Loss of a job would form the basis for special damages from defamation. Special damages from defamation are awarded when the plaintiff suffers a pecuniary loss as a result of a defamatory statement. The loss of a job is the type of pecuniary loss contemplated in the awarding of special damages. Mental distress does not form the basis for special damages from defamation. Mental distress is an element of general damages for defamation, which are presumed by the law and need not be proved by the plaintiff in a defamation claim. Loss of friends does not form the basis for special damages from defamation. Special damages require proof of a pecuniary loss and are not proved merely by evidence of actual injury, such as the loss of friends, humiliation, or hurt feelings. Invasion of Privacy- False Light Publicity of the facts that place the plaintiff in a false light in the public eye is required to establish a prima facie case for invasion of privacy for false light publication. This requires more than mere publication in the defamation sense. It is not required that the false light be highly offensive to the plaintiff. Rather, the false light must be something that would be highly offensive to a reasonable person under the circumstances. Actual malice is also not required. Actual malice is required on the part of the defendant only when the published matter is in the public interest. Fraud/Deceit- Misrepresentation With regard to the element of misrepresentation in an action for fraud or deceit, the defendant cannot actively conceal a material fact. While there is no general duty to disclose a material fact, where a person actively conceals a material fact, she is under a duty to disclose this fact, and failure to do so satisfies the misrepresentation element of a prima facie case for intentional misrepresentation. The defendant CAN be liable for a misrepresentation of opinion. Typically, the misrepresentation is of a material past or present fact. However, in cases where reliance on an opinion is justified, a misrepresentation of opinion may be actionable. It is also incorrect to state that the defendant cannot be liable for failing to disclose a material fact unless a fiduciary relationship exists between the parties. There are other exceptions where failure to disclose may satisfy the misrepresentation element, such as when the defendant is selling real property and knows that the plaintiff is unaware of and cannot reasonably discover material information about the transaction, or when the defendant speaks and her utterance deceives the plaintiff. Consent as a Defense Consent is a defense to an action for invasion of the right to privacy. Some states by statute require that the consent be in writing. Even with consent, however, the defendant may still be liable if he exceeds the consent granted. Misrepresentation- Intentional The elements of intentional misrepresentation are: (i) Misrepresentation by the defendant; (ii) Scienter; (iii) An intent to induce the plaintiff's reliance on the misrepresentation; (iv) Causation (i.e., actual reliance by the plaintiff on the misrepresentation; (v) Justifiable reliance by the plaintiff on the misrepresentation; and (vi) Damages. Scienter and an intent to induce the plaintiff's reliance do not need to be proved for a prima facie case for negligent misrepresentation; rather, those must be established for a prima facie case of intentional misrepresentation. Justifiable reliance by the plaintiff must be proved for the prima facie case for both intentional and negligent misrepresentation. Causation and damages are also elements of both torts. Misrepresentation- Negligent Justifiable reliance by the plaintiff must be proved for the prima facie case for both intentional and negligent misrepresentation. Causation and damages are also elements of both torts. The elements of negligent misrepresentation are: (i) Misrepresentation by the defendant in a business or professional capacity; (ii) Breach of duty toward a particular plaintiff; (iii) Causation; (iv) Justifiable reliance by the plaintiff upon the misrepresentation; and (v) Damages. Presumed damages cannot be recovered for libel when: When the plaintiff is a private figure, the defamation involves a matter of public concern, and actual malice is not proven, the Supreme Court has held that the plaintiff must prove (i) fault in making the defamatory statement and (ii) actual injury suffered (i.e., presumed damages are not allowed). However, the requirement of proof of actual injury does not apply for defamation involving a matter of public concern or when the plaintiff is a public figure so long as the plaintiff proves actual malice by the defendant. Once the plaintiff shows actual malice (i.e., knowledge of falsity or reckless disregard as to truth or falsity), the constitutional protections do not apply, and the plaintiff can recover presumed damages for libel permitted by state law. When the plaintiff is a private figure and the defamation involves a matter of purely private concern, the constitutional limitations established by the Supreme Court do not apply; only the four elements of the common law prima facie case are required (note, though, that many states require proof of negligence as a matter of state law even for defamation on matters of private concern). Thus, presumed damages might be recoverable even when actual malice is not proven. With regard to defamation, "actual injury" includes: For purposes of defamation law, "actual injury" includes economic damages, mental distress damages, and reputation damages. Damages for a defamation claim by a private person on a matter of public concern are based on the "actual injury" sustained by the plaintiff. This term is not limited to economic loss or out-of-pocket loss, but may include humiliation damages and mental distress damages as well as damage to reputation. There must be competent evidence of actual injuries, however; presumed damages are not permitted. Punitive damages are not within the definition of "actual injury," and may be recovered only if malice is shown. Invasion of Privacy- "Publicity" The invasion of privacy branches based on publication of facts placing plaintiff in a false light and public disclosure of private facts about plaintiff require "publicity" concerning the false light or private facts—i.e., widespread dissemination of the facts. Mere publication to a third person is not sufficient for liability. In contrast, invasion of privacy based on intrusion on plaintiff's affairs or seclusion does not require either publication or publicity - just the act of intruding. Defamation- Colloquium Colloquium involves pleading additional facts to show that a defamatory statement refers to a plaintiff. A statement may be actionable even though it has no clear reference to the plaintiff on the face of the statement. In such a case, the plaintiff must introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. This process is called colloquium. Defamation- Inducement/Innuendo Inducement and innuendo are not the processes used to prove that a defamatory statement refers to a plaintiff. Rather, these are the terms for demonstrating that a statement is defamatory, when it does not appear so on its face. A statement not defamatory on its face can be actionable if the defamatory meaning becomes apparent by adding extrinsic facts. The plaintiff pleads and proves additional facts, known as inducement, and establishes the defamatory meaning, known as innuendo. Prima Facie case for Interference with Business Relations An existing contract between the plaintiff and a third party is not always required; the plaintiff also has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. To establish a prima facie case for interference with business relations, the plaintiff must show: 1. Existence of a valid contractual relationship between the plaintiff and a third party, or a valid business expectancy of the plaintiff; 2. The defendant's knowledge of the relationship or the expectancy; 3. Intentional interference by the defendant that induces a breach or termination of the relationship or the expectancy; and 4. Damage to the plaintiff. Damages are NOT presumed if the interference is intentional and unprivileged. The plaintiff must prove actual damages from the interference. A defendant MAY be privileged to interfere if it is a competitor of the plaintiff. Interference with the plaintiff's prospective business relationships is likely to be privileged if the defendant is a competitor of the plaintiff pursuing those same prospective customers. The statement that the interference may be intentional, reckless, or negligent is false. The defendant must have intended to interfere with the existing or prospective contractual relationship of the plaintiff. Publication of facts placing a plaintiff in a false light- Actual Malice may require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case of publication by a defendant of facts placing a plaintiff in a false light, the following elements must be proved: (i) Publication of facts about the plaintiff by the defendant placing the plaintiff in a false light in the public eye; (ii) The false light is something highly offensive to a reasonable person; and (iii) Actual malice by the defendant when the published matter is in the public interest. Intrusion on a plaintiff's affairs or seclusion- Actual Malice does not require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case of intrusion on a plaintiff's affairs or seclusion, the following elements must be proved: (i) An act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant; (ii) The intrusion is highly offensive to a reasonable person; and (iii) The thing to which there is an intrusion or prying is private. Appropriation of a plaintiff's picture or name- Actual Malice does not require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case for this branch, only one element need be proved: unauthorized use by a defendant of a plaintiff's picture or name for the defendant's commercial advantage. Right of Privacy The right of privacy is a personal right and does not extend to members of a family. It also does not apply to corporations; only individuals may avail themselves of a right-to-privacy action. The right of privacy is NOT assignable and does NOT survive the death of the plaintiff. Interference of Business Contracts- Privilege to Interfere Privilege may make interference with a business contract acceptable. Interference with contract provides for liability if there is intentional interference by a defendant that induces a breach or termination of a contract or expectancy. However, the defendant's conduct may be privileged if he is properly attempting to obtain business or protect his interests. Several factors determine whether the defendant has a privilege to interfere, such as if the plaintiff is pursuing a prospective business relationship but does not have an existing contract, or if the defendant uses commercially accepted means of persuasion rather than illegal or threatening tactics. Persuasion and competition are not the reasons that interference with a business contract may be acceptable; interference may be acceptable because it is privileged. However, persuasion and competition may provide the foundation for a defendant's conduct being privileged. For instance, interference with a plaintiff's prospective business relationship will likely be privileged if the defendant is a competitor of the plaintiff pursuing the same customer. To recover for interference with business relations, the plaintiff must prove actual damages from the lost economic opportunity or contract. In appropriate cases, the plaintiff may also recover__________ mental distress damages and punitive damages in a claim of interference with business relations. To establish a prima facie case, the plaintiff must prove damages. The plaintiff must prove actual damages from the interference, but he may also recover mental distress damages if those are proved and punitive damages if the defendant's conduct warrants it. A plaintiff may recover more than just mental distress damages and more than just punitive damages for a claim of interference with business relations. The plaintiff may recover both types of damages in appropriate cases. Four Branches of Invasion of Privacy (i) Appropriation by a defendant of a plaintiff's picture or name for the defendant's commercial advantage; (ii) Intrusion by a defendant into a plaintiff's affairs or seclusion; (iii) Publication by a defendant of facts placing a plaintiff in a false light; and (iv) Public disclosure of private facts about a plaintiff by a defendant. To establish a prima facie case for the first branch, only one element need be proved: unauthorized use by the defendant of a plaintiff's picture or name for the defendant's commercial advantage. The defendant's conduct need not be highly offensive to a reasonable person. Intrusion into seclusion requires that the intrusion be highly offensive to a reasonable person to constitute an invasion of privacy. Public disclosure of private facts requires that the act of disclosure of matters to the public be highly offensive to a reasonable person. Publication of facts placing plaintiff in a false light requires that the false light be something that is highly offensive to a reasonable person. If a private figure plaintiff cannot prove "actual injury" from a defamation involving a matter of public concern: If the plaintiff cannot prove an "actual injury" from a defamation, he cannot recover any damages unless he proves malice (i.e., that the publication was made with knowledge of its falsity or with reckless disregard for the truth). If he proves malice, the plaintiff would be entitled to whatever recovery is permitted under state law in such cases, typically presumed or general damages and even punitive damages when appropriate. It is not correct that the plaintiff can still recover presumed damages if he cannot prove an "actual injury" from a defamation. He cannot recover any presumed damages unless he can show that the defamatory statement was published with knowledge of its falsity or with reckless disregard for its truth. Defamation- Pleading Rules A statement that is not defamatory on its face requires pleading BOTH inducement and innuendo to be actionable. A statement not defamatory on its face may be actionable if the defamatory meaning becomes apparent by adding extrinsic facts. The plaintiff may plead and prove such additional facts as inducement and establish the defamatory meaning by innuendo. A statement of opinion CAN be defamatory. While a statement of fact may always be defamatory, a statement of opinion can also be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory. Invasion of Right to Privacy- Pleading Damages Emotional distress and mental anguish are sufficient damages to be pleaded by the plaintiff in an action for invasion of the right to privacy. The plaintiff need NOT plead and prove special damages, provided the elements of a prima facie case are present. The plaintiff does, however, need to plead damages; i.e., damages are not presumed. Interference of Business Relations- Determining Privilege to Interfere The type of damages suffered by the plaintiff is not considered in determining whether a privilege exists in an action for interference with business relations. The plaintiff must prove actual damages from the interference, and may recover mental distress damages and punitive damages in appropriate cases, but the type of damages suffered by the plaintiff is not related to the privilege factors. Factors that are considered in determining whether a privilege exists include: (i) the type of business relationship interfered with, (ii) the means of persuasion used to trigger the interference, (iii) the defendant's relationship with the third party, and (iv) whether the defendant is a competitor of the plaintiff. Defamation- Common Law Elements 1. Defamatory language on the part of the defendant; 2. The defamatory language must be "of and concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); 3. Publication of the defamatory language by the defendant to third person; and 4. Damage to the reputation of the plaintiff. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern. Publication of facts placing a plaintiff in a false light may require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case of publication by a defendant of facts placing a plaintiff in a false light, the following elements must be proved: (i) Publication of facts about the plaintiff by the defendant placing the plaintiff in a false light in the public eye; (ii) The false light is something highly offensive to a reasonable person; and (iii) Actual malice by the defendant when the published matter is in the public interest. Interference with Business Contracts Privilege may make interference with a business contract acceptable. Interference with contract provides for liability if there is intentional interference by a defendant that induces a breach or termination of a contract or expectancy. However, the defendant's conduct may be privileged if he is properly attempting to obtain business or protect his interests. Several factors determine whether the defendant has a privilege to interfere, such as if the plaintiff is pursuing a prospective business relationship but does not have an existing contract, or if the defendant uses commercially accepted means of persuasion rather than illegal or threatening tactics. Persuasion and competition are not the reasons that interference with a business contract may be acceptable; interference may be acceptable because it is privileged. However, persuasion and competition may provide the foundation for a defendant's conduct being privileged. For instance, interference with a plaintiff's prospective business relationship will likely be privileged if the defendant is a competitor of the plaintiff pursuing the same customer. Negligence- Duty of Care Generally A rescuer is a foreseeable plaintiff and is owed a duty of care as long as the rescue is not wanton, but only if the defendant negligently put herself or a third person in peril. However, firefighters and police officers may be barred by the "firefighter's rule" from recovering for injuries caused by the risks of a rescue. A duty of care is owed to a viable fetus; prenatal injuries are actionable. A third party for whose economic benefit a legal or business transaction is made is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently. Lessor of Realty- Duties A lessor has a duty to disclose known, hidden defects. At the time of the transfer of possession to a lessee, a lessor is obligated to warn a lessee of existing defects in the premises of which the lessor is aware or has reason to know. A lessor does not have a duty to remedy known defects. After disclosing concealed, dangerous conditions, the lessor is not obligated to make repairs to defects; he would only be liable if he covenanted to make repairs and did so negligently. A lessor does not have a duty to continue to maintain the premises in possession of the lessee. Liability ordinarily is an incident of occupation and control. If a lessor leases the entire premises, the lessee becomes burdened with the duty to maintain the premises so as to avoid unreasonable risk of harm to others. When the lessor leases only a portion of the premises, he is subject to liability for dangerous conditions in those portions of the premises over which he still retains control. Liability- Bailment (Common Law) If a bailment is for the sole benefit of the bailor, at common law the bailee is liable for gross negligence only. In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without a transfer of title. If the bailment is for the sole benefit of the bailor, such as a bailor asking his neighbor to get his mail for him while on vacation, then the bailee can be liable only for gross negligence. Thus, it is incorrect to state that the bailee cannot be liable for negligence. Gross negligence is actionable. On the other hand, the bailee in such an instance is NOT liable for ordinary negligence. That would be the standard if the bailment was for the mutual benefit of the bailor and bailee, such as a bailment for hire. Landowner's Duty to Invitee An invitee may lose that status if she exceeds the scope of her invitation. A person loses her status as an invitee if she exceeds the scope of the invitation, such as if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. A firefighter engaged in fighting a fire on the landowner's premises is NOT an invitee. Under the "firefighter's rule," police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A landowner DOES owe an invitee a duty to make inspections. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious dangers known to the landowner and to use ordinary care in active operations on the property), plus a duty to make reasonable inspections to discover dangerous conditions and make them safe. However, the duty to "make safe" does not require that the landowner must repair dangerous conditions to satisfy his duty to invitees. Depending on the nature of the danger, it is usually sufficient if a reasonable warning has been given. Landowner Duty to Licensee A landowner owes a duty to a licensee to warn of or make safe known dangerous conditions on the land of which the licensee is not aware. A licensee is one who enters on land with the landowner's permission, express or implied, for her own purpose or business, rather than for the landowner's benefit. The owner has a duty to warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. As to a licensee, the landowner does NOT need to inspect for dangerous conditions on the land. Similarly, the landowner need NOT repair known dangerous conditions on the land of which the licensee is not aware; a warning generally will suffice. The landowner DOES have a duty to protect the licensee from active operations on the land. The owner has a duty to exercise reasonable care in the conduct of active operations for the protection of a licensee whom he knows to be on the property. Violation of Statute for Statutory Standard of Care- Excuses A violation of an applicable statute may be excused if: (i) compliance with the statute would cause more danger than a violation (e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or (ii) compliance with the statute would be beyond the defendant's control (e.g., a blind pedestrian crosses against a light). Violation of the statute will not be excused if violation of the statute causes more danger than compliance; this misstates the rule stated above. It is not correct to state that violation of the statute will be excused if violation of the statute would result in a civil infraction instead of a criminal one; rather, the statute itself supplies the remedy rather than damages through a common law negligence action. The defendant will not be excused for violating the statute. Landowner Duty Outside the Premises - Generally The general rule is that a landowner owes no duty to protect persons outside the premises by making dangerous artificial conditions on the premises safe. However, he does owe a duty as to unreasonably dangerous artificial conditions or structures abutting adjacent land. This duty extends to passersby who may stray onto the edge of the landowner's property. The general rule is that a landowner does not owe a duty to protect persons against natural accumulations of precipitation. Lessor's Duties- Lesser/Public for Unsafe Conditions/Repairs A lessor owes no duty to a lessee as to unreasonably dangerous conditions of which the lessee is or should be aware. The lessor's duty applies only to concealed conditions of which the lessor knows or has reason to know, and of which he knows the lessee is not likely to discover on reasonable inspection. A lessor's duty to members of the public as to unreasonably dangerous conditions does not end when the premises is transferred to the lessee. The lessor's responsibility continues until the lessee should have, in the exercise of reasonable care in inspection and maintenance, discovered and remedied the defect. If a lessor, though under no obligation to do so, voluntarily makes repairs, he is liable if he does so negligently, failing to cure the defect; it is not necessary that his negligent repairs make the condition worse. A lessor's duty to repair dangerous conditions on the premises does not relieve the tenant, as occupier of the land, of liability for injuries to third persons from the dangerous conditions within the tenant's control.