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Defamation - a cause of action exists if published statements to a third person are capable of being understood in the defamatory sense, if even the statements were directed to someone else but could be reasonably mistaken to have been about P, and there is sufficient actual and proximate causation.

 

  1. must be published to a third person
  1. publication to any third person may suffice regardless of any relationship to P or D
  2. publication must be intentional or negligent
  3. CL liability of other involved in publishing:
    1. liability of publisher: strictly liable
    2. republisher: equally liable with original publisher
    3. disseminator: liable only if he knew or had reason to know of presence of defamation in product being loaned or sold
  1. statement must be capable of being understood in defamatory sense
  1. Majority: test is whether the statement tends to lower P’s reputation or deters others from associating with P
  2. Minority: test is whether statement exposes P to hatred, contempt and ridicule
  3. Statement must injure P "in the eyes of a substantial and respectable minority"
  4. Also defamatory if the statement could be reasonably interpreted by others as having defamatory meaning
  1. if a third party reasonably interpreted the statement as concerning the P even though D was referring to someone else of the same name, P may maintain an action for defamation
  1. there is no cause of action for defamation for the deceased
  2. any recognized entity (corporation or partnership) may be defamed and can sue
  3. group libel - individual action will only lie if P can show publication can reasonably be interpreted as defaming P
  1. defamatory statement must have been the actual and proximate cause of P’s damages
  1. same analysis as negligence
  1. Damages
  1. Special damages - the loss of something having economic or pecuniary value
    1. a P suing in libel (written) need not prove special damages
    1. defamation broadcast by radio or television is libel
    2. CA: defamation broadcast by radio or television is slander
    1. Special damages need not be shown
    2. General damages are presumed
    1. if P is suing in slander (oral) must plead special damages unless defamation falls into one of the following categories: allegations
    1. of commission of a crime
    2. that harm trade or business
    3. of a loathsome disease
    4. of unchastity in a woman
  1. General damages - compensate for harm to P’s reputation
  2. Punitive damages - must show the defamation was made with common law malice, such as hatred, ill will, or spite
  3. Nominal damages - symbolic, shows the D is guilty of defamation but that the words did not hurt (because the speaker was not credible or because the P had a strong reputation)
  1. Defenses
  1. Truth - a complete defense to civil libel
    1. test: if the words would have the same effect upon the mind as that which the pleaded truth would have produced
    2. not often used as a defense
  1. privileges
    1. absolute privileges - if the occasion gives rise to an absolute privilege, there will be no liability (often reserved for federal and state legislators)
    2. qualified (conditional) privilege - a communication made by one person to another upon a subject in which both have an interest
    1. if it can be demonstrated that D spoke with malice qualified privilege defense does not work
  1. Consent - a complete defense

 

 

Negative easements - the right of the dominant owner to stop the servient owner from doing something on the servient land

  1. four traditional types of negative easements; can stop your neighbors from:
  1. blocking your windows
  2. interfering with air flowing to your land in a defined channel
  3. removing the support of your building (usually be excavating or removing a supporting wall)
  4. interfering with the flow of water in an artificial stream
  1. there have been a few modern negative easements created:
  1. stop neighbors from erecting antennas that block a view
  2. conservation easement - prevents the servient owner from building on the land except as specified in the grant
  1. historical (English) objections to creation of more negative easements:
  1. to expand the list of negative easements would increase the risk to the purchaser that the land was subject to undiscoverable rights
  2. if new types of negative easements could arise by prescription, the servient owner’s rights to change the land use would be unduly restricted
  3. it was difficult to decide whether negative obligations should be analyzed as easements or as covenants

 

Covenants running with the land - a way to enforce land uses through contract

  1. benefits of covenants running with the land instead of negative easements
  1. maximize the value of all parts of the land
  2. allocate resources efficiently by arranging land uses so as to minimize conflicts
  3. minimize harmful impacts (external costs) that arise from conflicting resource uses
  1. rule of assignability of contract rights (19th Century) - where there is privity of estate the contract is enforceable against assignees; privity of estate exists between landlords and tenants; three propositions about the running of the burden of covenants:
  1. a covenant relating to something not in esse will not bind assignees of the covenantor unless the covenantor expressly agrees not only for himself by also for his assigns so as to show an intent to bind successors
  2. for the burden of the covenant to run it much "touch and concern" the land
  3. there must be privity of estate for a covenant to run
  1. American courts - did not define privity to only mean landlord-tenant relationship
  1. developed the American real covenant - a promise respecting the use of land that runs with the land at law
  2. horizontal privity - privity between original covenanting parties
  3. vertical privity - privity between promissee (or promisor) and assignee; privity of estate between one of the covenanting parties and a successor in interest
  1. Restatement (third) takes position that horizontal privity is not required for a covenant to run to successors
  2. Question is whether a covenant runs arises only when a person who is not a party to the covenant is suing or being sued
  3. Third restatement -
    1. on negative covenants- treated like easements for succession purposes; they run to all subsequent owners and possessors of the burdened and benefited property
    2. on affirmative covenants (covenant requiring the burdened owner to perform an act) - burdens and benefits of such covenants run to persons who succeed to estates of the same duration as were held by the original parties to the covenant (those persons who satisfy the traditional privity requirements); the burden also runs to adverse possessors

 

 

  1. a. No - no defamation of the deceased

    b. no - not about a specific person, the class is too large to identify a specific person

    c. yes - about unchasticy of a woman

    d. yes if it is reasonably interpreted as being slanderous, not necessary to plead special damages

     

  2. yes, because he was reasonably mistaken as the same person
  3. no - truth a defense
  4. no - not specific persons
  1. yes - disseminator, should have known
  2. yes - generally modern trend is to treat tv as libel; need not prove special damages first

134.

  1. split on this
  2. no - not directly defamed to a third person
  3. yes - need not prove special damages for libel

136.

b - some states have extended the slander exception for uncasticy to men

c - since this is unchasticy of a woman, although it is slander, it is one of the 4 exceptions so special damages need not be proven

d, e - maybe if reasonable person could consider unchastisy. Probably No

f - accusations of a serious crime

137. a, b, c, d, e, f

138.

  1. no
  2. no