MY NOTES

TORTS MARCH NOTES

March 10, 1999

When she calls on me say "I think you are totally insane."

Availability of punitive damages:

Intentional torts - yes if desire to harm

Reckless or willful and wanton conduct - yes, ex:

oppression
fraud
malice - intent or despicable conduct with willful and conscious disregard of others safety
Taylor - p. 651 (drunk driving)

Negligence - no unless reckless (such as drunk driving)

Products liability - yes, if aware of high risk and refuse to take steps to decease danger - Fischer - p. 658 (asbestos)

Reasons for Punitive damage for intentional torts:

Deterrence - punish the defendant
set an example
incentive to D to change product rather than just pay compensatory damages

Reasons against availability of punitive damages:

person may be already fully compensated
manufacturer may be driven to bankruptcy

survival action: some states allow the decedent's cause of action to survive even after the person dies. The suit must have brought the action BEFORE the person dies. CAN recover punitive damages. CA has this type of statute.

Wrongful death action: if the decedent's estate brings the suit AFTER the person dies, the estate CANNOT recover punitive damages.

Vicarious liability for punitive damages - majority rule: employer may be liable for punitive damages.

Minority (CA) - no punitive damages unless:

employer ratified, or approved behavior
employee was unfit and employer was reckless in employing him
employee was working in a managerial capacity
employer was personally guilty of oppression, fraud, or malice

products liability - can impose strict liability

possibility of overkill in punitive damages: some awards are too high

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March 15, 1999

Defamation - deals with harm to a person's reputation

economic or personally

There is a common law and modern law section

Public concern

Negligent publication - someone should have foreseen that publishing to a third person would cause someone else to be come aware of it. Can happen by failure of exercise of due care

Defamation's can also be actions - taking someone in handcuffs through a crowded store

Disseminator: held to negligence standard of due care - liable only if know or had reason to know of presence of defamation in product being loaned or sold

Merely associating with a mobster, person in jail - probably not enough for defamation

Accusing someone of being insane - should not cause damage to person's reputation and therefore not defamation;

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March 17, 1999

Defamation continued

Room 127 7:40 - 8:45 - Monday night next week

Publication to a third party - have to show negligently communicated AND it went to someone other than the plaintiff

If defamatory statement is capable of

At common law damages were presumed. Under modern law P usually has to prove damages. Most likely to be tested on times when damages are not presumed.

General damages - damages which flow from defamation itself (harm to reputation, loss of friends, etc)

CAL CIV CODE

1786.52. Nothing in this chapter shall in any way affect the right

of any consumer to maintain an action against an investigative

consumer reporting agency, a user of an investigative consumer

report, or an informant for invasion of privacy or defamation.

An action to enforce any liability created under this title may be

brought in any appropriate court of competent jurisdiction within

two years from the date on which the liability arises except that

where a defendant has materially and willfully misrepresented any

information required under this title to be disclosed to a consumer

and the information so misrepresented is material to the

establishment of the defendant's liability to the consumer under this

title the action may be brought at any time within two years after

the discovery by the consumer of the misrepresentation.

(a) Any investigative consumer reporting agency or user of

information against whom an action brought pursuant to Section 1681n

or 1681o of Title 15 of the United States Code is pending shall not

be subject to suit for the same act or omission under Section

1786.50.

(b) The entry of a final judgment against the investigative

consumer reporting agency or user of information in an action brought

pursuant to the provisions of Section 1681n or 1681o of Title 15 of

the United States Code shall be a bar to the maintenance of any

action based on the same act or omission which might be brought under

this title.

Libel (letter) - written - something that people see (also can be pictures, braile, feeling a statue)

Slander (spoken) - less permanent, less physical, oral. Nods of head.

Section 46 - of Cal Civ Code

44. Defamation is effected by either of the following:

(a) Libel.

(b) Slander.

45. Libel is a false and unprivileged publication by writing,

printing, picture, effigy, or other fixed representation to the eye,

which exposes any person to hatred, contempt, ridicule, or obloquy,

or which causes him to be shunned or avoided, or which has a tendency

to injure him in his occupation.

45a. A libel which is defamatory of the plaintiff without the

necessity of explanatory matter, such as an inducement, innuendo or

other extrinsic fact, is said to be a libel on its face. Defamatory

language not libelous on its face is not actionable unless the

plaintiff alleges and proves that he has suffered special damage as a

proximate result thereof. Special damage is defined in Section 48a

of this code.

46. Slander is a false and unprivileged publication, orally

uttered, and also communications by radio or any mechanical or other

means which:

1. Charges any person with crime, or with having been indicted,

convicted, or punished for crime;

2. Imputes in him the present existence of an infectious,

contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office,

profession, trade or business, either by imputing to him general

disqualification in those respects which the office or other

occupation peculiarly requires, or by imputing something with

reference to his office, profession, trade, or business that has a

natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

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March 22, 1999