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8/3/2019 Torts Kass Outline
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NEGLIGENCEElements:
1. Duty: a legally recognized relationship b/w parties that requires D to act a certain
way
2. Breach: A failure of D to meet the required standard of care
3. Causation: Nexus b/w Ds conduct and Ps harm1. Factual (actual) cause - "but for"
2. Proximate (legal) cause
4. Damages: A cognizable loss to P, compensable by a money reward
3. CAUSATION:
1. Proximate Cause:
(1) Reasonably foreseeable harm of the consequent damage
(2) Liable for anticipated/expected consequences of Ds neg. acts
Factors:
1. Foreseeable Consequence
1. Type of Harm (foreseeable) Not Extent of Harm
2. Eggshell Skull, the harm (foreseeable) not Particular Type of Harm
3. Unusual Manner, manner need not be foreseen
2. Not too attenuated (in time and space)
3. Natural and Continuous Sequence
1. NO superseding Intervening Forces:
Unforeseeable intervening forces - Cut Off Liability
Later int'l/crim conduct; extraordinary or far removed
from Ds neg. severs prox. Cause
Foreseeable Intervening Forces - DO NOT cut off liability
Later neg. by others
Later acts of nature; unless extraordinary or
unanticipated
4. Direct Connection (w/public policy reasoning)4. DAMAGES
P must prove actual damages ($loss) as part of their prima facie case for Negligence
Tort Damages:
COMPENSATORY: "to make P whole again"
Purpose: restitution and indemnity (nothing more)
1. Special (money damages) - must be plead and provide evidence
Medical and related expenses
Lost earnings/earning capacity
General (non-econ relief) - no calculations
Pain and suffering
Complete Destruction - Fair mrkt value
Partial Damage - Diminution in Fair mrkt value OR Cost of Repair
Temp. Deprivation of Use - Rental value
NOMINAL: small sum awarded to prove
a point ←
Not avail. In Neg
Actions
Purpose: Vindicate Ps rights or Prevent D from acquiring A Right
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PUNITIVE: additional sum awarded over/above
compensation
← Not avail. In Ordinary Neg
Actions
Purpose: punish the D and deter others engaged in similar conduct
Available when Ds conduct is outrageous
D's act with Reckless disregard or Malice
RULES: Single Recovery: All compensatory damages [past/present/future] must be
awarded @ time of trial
Adjust for time value [ ↑ for inflation ↓ for present value/interest ]
Duty to Mitigate: no recovery for aggravated damages [ Doctrine of
Avoidable Consequences]
P is responsible to limit losses by exercising reasonable care
3. Collateral Source: Ps damages are NOT affected by compensation received
from collateral sources
P gets a windfall; tort reform ha eliminated the rule in some states
4. Maximum Recovery: Jury award must be reasonably supported by the
Evidence Cannot be 2nd guessed by judge if w/in max. amnt. supported by the
evidence
LEGAL VIDEOS:
"Day in the life" - used as evidence during the damages phase @ trial
"Settlement Documentary" - used pre-trial to present case
Damages With Mutiple Ds
JOINT TORTFEASORS: D's who either -
1. Act in concert; agree to aid, engage, or encourage a tort
2. Cause a single divisible harm; from independent acts
3. Are Vicarious Liable; based on a special relationship
RULES:
COM. LAW: Joint and Several Liability
Entire amount recoverable from each tortfeasor; OR
A share of the damages from each
BUT; no double recovery
MODERN: Comparative Fault
P may recover only fault based share from each tortfeasor
DEFENSES TO NEGLIGENCEBased on Ps Conduct
CONTRIBUTORY NEGLIGENCE: COMPLETE BAR
(1) Ps own conduct falls below the strd. of care and (2) is a legally contribution cause
UNLESS; D had the Last Clear Chance (doctrine) to avoid the harm If applicable: D remains liable despite Ps prior neg.
COMPARATIVE NEGLIGENCE: LIMITS RECOVERY
Pure: can recover regardless of own neg. but Ps recovery is reduced by own fault %
Modified: Ps recovery is reduced by % of own neg. OR
BARRED - IF P's negligence EXCEEDES the fault bar [level of culpability]
is "greater than" Ds neg = BAR {Majority}
is "Equal or Greater than" Ds neg = BAR
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is "More than Slight" = BAR {1 State}
ASSUMPTION OF THE RISK [A/R]: Generally D is NOT LIABLE
Where P knows of the risk posed by Ds conduct and voluntarily encounters it
1. EXPRESS A/R : by K or other explicit agreement P accepts risk: COMPLETE BAR
Exceptions; (assumption is invalid)
1. Intentional, Reckless or Gross Negligence (by D?)
2. Grossly unequal bargaining power
3. Public Interest Transactions
i. TUNKL TEST: (determine what is pub trans)
Suitable for pub
regulation
Superior bargaining power
Essential service Adhesion K
Services held open to
the pub
Seller has control over and subjects
P to risk
4. Outside the scope of Assumption
5. K invalid, Fraud, Mistake, Undo Influence2. IMPLIED A/R: Ps conduct shows P assumed risk : COMPLETE BAR
D must prove P; (1) Knew of the risk/magnitude, and (2) voluntarily encountered
it
INVOLUNTARY Conduct: Juris split where -
P is coerced or under duress
P has no reasonable alternative
UNREASOANBLE A/R: Juris Split -
[1] A/R Remains Complete Defense BAR Traditional
[2] A/R Partial merger w/ COMP
Fault
Unreasonable A/R
→
Reasonable A/R
→
(Patial Defence)
↓Recovery
BAR
Min. Trend
[3] A/R Fully merged w/ COMP Fault
Unreasonable A/R
→
Reasonable A/R
→
NO BAR
↓Recovery
No or Some ↓
Maj. Trend
VICARIOUS LIABILITY [V/L]Liability based on a relationship not fault (imputed)
Employer [ER] / Employee [EE] - Generally Liable (if w/in scope of employment)
ER / Independent Contractor [IC] - Generally not Liable
Joint Enterprises - Generally Liable
Bailment - Generally Not LiablE
EMPLOYMENT V/L
Step 1: Is the tortfeasor an EE or an IC
Test: Right of Control - Factors
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Control over details Tool provider and place of
work
Similarity of occupation to
business
Length of employment
Extent of supervision Payment method (salary -EE)
Skill level (higher = more
likely IC)
Understanding of the
parties
EXCEPTION: foreseeable damages that arise from or are related to work
Step 2:
a. IF EE - Were they acting w/in Scope of Employment
Test: "Going and Coming Rule" - EE ordinarily outside scope while commuting
to/from work
EXCEPTION: foreseeable dangers
"Frolic and Mere Detour Rule"
Frolic: personal acts far removed in time, distance, purpose, and
expectations of
employment - outside scope
Detour: personal acts closely related in time, distance, purpose,
and expectations of
employment - within scope
"intentional Torts"
ER V/L for EE int'l torts where EE acted to serve ER's purposes
ER NOT V/L for EE int'l torts when EE acted purely for personal
reasons
b. If IC - Do any exceptions apply to general rule of No V/L
Exceptions: "Non-Delegable Duties" - as a matter of pub policy cannotdischarge duties by hiring
someone else
"Inherently Dangerous Activities" - Require more than ordinary
precaution
ER Not V/L if IC engage in collateral negligence - risk not
usual to work
-crop dusting, moving giant logs, unloading propane
JOINT ENTERPRISES - mostly applies to commercial ventures
Factors:
Agreement, common goal, pecuniary purpose, equal right of control
BAILMENTS - loaning chattel to anotherException to general non liability; Permission given to the driver - bailee from bailor
Car consent statutes, bailor is passenger in car, Family Purpose Doctrine
STRICT LIABLITY [S/L]Liability without fault, not absolute b/c need prox cause and some defenses are awarded
ANALYTIAL FRAMEWORK:
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Step 1: are S/L Animals or S/L Activities involved
Step 2: is type of harm w/in the inherent risk posed by Animal or Activity
Step 3: is there causation, factual but for and prox cause foreseeable harm
Step 4: does D have any Defenses
TRESPASSING ANIMALS - keepers of roaming animals are S/L for any harm caused
Exceptions: cats and dogs, livestock straying from highways
Livestock Statutes:
Fencing out - P fences out
Fencing in - D fences in
Strict liability - same as common law
No liability w/o fault
DANGEROUS ANIMALS - 2 Tests; wild v. domestic
1. Inherent Nature of Species - dangerous and untamable
Look at entire class of animal, not just the particular case
2. Customarily of Service to Humankind - determined by community standards o Wild - S/L - provided the type of harm results from the animals dangerous nature unless
exception exists (zookeeper)
o Domestic - ordinarily not S/L for harm - Exception; if owner is on notice (or should have known) of animals vicious
propensities (scienter)
Subject to statutory modification
ABNORMALLY DANGERUS ACTIVITIES - 2 approaches
1. Rylands: when a person brings something that’s harmless as long as it remains, BUT
would naturally do mischief if it escapes the property, the owner is S/L for all natural
consequences
Exceptions: Acts of God (as a superseding innerving cause), unnatural
consequence, Ps contrib. neg
Applies only to harm to property from non-natural uses of property
RS 2nd Factor Test : (balancing)
1. High risk of some harm
2. Likelihood of great harm
3. Inability to eliminate risk w/out reasonable care
4. Uncommon usage
Community strd
Masses of humanity engage
5. Inappropriate location
6. Value to community outweighed by danger of activity ] Hand formula: B<PL
B = Burden, P = probability of harm, L = magnitude of harm
Activities: Dynamite blasting, tox chem ship/storage, pile driving, fumigation, rocket
testing
DEFENSES
A/R - know/voluntarily encounters risk
Privileges and immunities - exempt because of public good or government
requirement
Comparative fault - not defense, results in reduction
Contributory negligence - not complete defense, some jurisdictions allow for
reduction
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PRODUCTS LIABLITYGoverns liability for the commercial transfer of products that cause harm b/c they are
defective and/or falsely represented
1. NEGLIGENCE
Duty: owed by all Products Sellers (Ds) to Purchasers and other foreseeable Ps Breach: Unreasonable product design, mfg., or warnings
Causation: But for factual and proximate foreseeable harm legal cause
Damages: $ loss from physical injury or property harm
Defenses: Comparative fault, Implied A/R, Unforeseeable Product Misuse (will bar
p's claim if injury results from unforeseeable misuse of defective product - but not if
misuse was reasonably foreseeable)
2. INTENTIONAL
Requires:
Intent: D Intended consequences or KTSC harm would occur
Damages: Compensatory and Punitive (like intl torts)
Defenses: Consent only (no neg defenses for intl torts)3. MISREPRESENTATIONS: RS2nd 402b - Seller of any product in a defective condition
unreasonably dangerous to the
consumer/user of property is subject to liability of physical harm
Elements:
1. Merchants
2. Who make a misrepresentation of material fact to public in advertising, labels
or otherwise
3. Are liable to P (consumer or incidental user) if justifiably relies on the misrep
4. And damages for physical injury proximately result
Defenses: Ps Neg and A/R
4. STRICT PRODUCTS LIABLITY (RS 402A) manufacture, design, warning defects
IF;1. Seller is engaged in the business of selling such a product and
2. It is expected to and does reach consumer without substantial change in
condition
Elements:
Commercial seller and consumer user; enjoy, prepare for use, doing
work w/ product)
Defective product that is unreasonably dangerous
The defect caused physical harm or property damage
The product is expected to and does reach consumer without substantial
change
MANUFACTURING DEFECTS: does not conform to some significant aspect of theintended design nor does it
conform to the great maj of products with that design
Test:
Product unit is dif from others
Is more dangerous
Defect existed @ the time the product left Ds control
Considerations: post sale alterations, time passage, settlements
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2. DESIGN DEFECTS: occur when intended design of whole product line is inadequate
and needlessly dangerous
Tests: Risk Utility - If R > U then design defect
R=Risk of harm from product design. U=Utility of product as designed
RS3rd Factors:
1. Usefulness and desirability touser/public
5. User ability to avoid dangers
2. Safety aspects of product 6. Mfg. spreading loss > insurance
3. Available substitute 7. Consumer expectations
4. Ability to make safe without
increased
cost/usefulness
State of the art: Existing level of
technological
expertise and scientific
knowledge of a
particular industry at the time
the product
was designed
Consumer Expectations : defective product design if it is
Dangerous to an extent BEYOND that contemplated by the consumer
with ordinary knowledge common to the community as to its
characteristics
Hybrid Approach:
Prong 1: Consume Expectations Test: P must prove product failed to
perform safely as an ordinary consumer would expect
Prong 2: Risk/Utility Test: if p proves the products design proximately
caused the injury, D must prove U> R (utility as designed was greater
than risk of the harm)
Availability of Safer Design Alternative:Courts split on if P must prove a safer, practical, alternative design was
available to the manufacturer
Unavoidably Unsafe Products Doctrine: risk/benefit analysis; Even though the
product is dangerous (aka serious cancer drug side effects), the product is not
defectively designed b/c the risks outweigh the benefits of the product (cancer
drugs saving a life)
This exception typically applies to medical devices where -
a. The product is unavoidably unsafe (incapable of being made completely
safe) for its intended and ordinary use
b. The product has an extraordinarily high utility
c. The utility of the product outweighs the dangers; andd. The product is sold with appropriate directions or warnings are
provided.
3. WARNING DEFECTS:
Rule: manufacturers obligation is to inform consumers of hazards which seller
knew or should have known at the time of manufacture and distribution
For S/L failure to warn, P must prove Ds actual or constructive
knowledge of the products potential risk/danger
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Manufacturer owes no duty to warn about risks that are open and
obvious
Adequacy of Warning:
Content - comprehensible and fair indication of specific risk
Form - Reasonably catch consumers attention
Factors:
Gain Attention Instruct on Avoidance
2. Identify Hazard 4. Provide Remedy
Sophisticated User Doctrine: exempts sellers from duty to warn if the buyer
already knows of the risk b/c of his expertise
Learned Intermediary Rule: pharmaceuticals - warnings can be directed at Dr.
not patient and seller owes no duty to warn to patients
Post Sale Duty to Warn Doctrine : imposes a duty for manufacturer to provide
post sale warnings about risks discovered after the sale
MISREPRESENATION
[Commercial] harm caused by Ps justified reliance
on Ds false representation of material fact
Words or Actions that:
1. Create false impressions
2. Cover up
3. Remove discovery opportunities
Methods for Achieving Misrep:
1. Active Deceptions (words/actions)
2. Certain Failures to Disclose -
a. Fiduciary relationship = duty
b. Buyer unable to discover w/ reasonable
diligence = maybe duty3. Partial Disclosures, 1/2 Truth
Factors for Misrepresentation: (Int'l, Neg, S/L)
1. Must be MATERIAL
TESTS:
Objective - a RPP would attach importance to it
Subjective - D knew or should have known of the particular P would consider it
important
2. Must be Past or Existing FACT
Gen Rule: Opinions such as Puffering, Trade Talk, ad Statements of Value are not
actionable
Exception: parties are of unequal footingOpinions are Actionable when;
1. Ds with superior knowledge and expertise
2. Fiduciary Duty
3. Independent Neutrals
Predictions: Statements cannot consist of conjectures of future acts/events
UNLESS; the misrep implied existing facts or present intent
INTENTIONAL MISREPRESENTATION - Fraud - Factors;
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3. State of Mind: Requires Scienter (as to falsity)
a. Knowledge that it is false OR
b. Recklessness as to the truth
4. Proper Party: Ds liable to persons (or class) whom;
a. D intends or has reason to expect will act in reliance of misrep
1. Desire to induce or KTSC they will rely
b. Must be reliance on the Type of Transaction D Intended or Expected to Influence
c. P must be of the Class D had reason to expect to View the misrep
5. Justifiable Reliance: P cannot rely on a misrep which is obviously false and cannot avoid
discovery of the truth
a. Factors; Nature of the Statement, P's Qualities and Character, and the Circumstances
6. Damages:
a. Benefit of the Bargain = Bargained for Value - Actual Value
b. Out of Pocket = Amount Paid - Actual Value
NEGLIGENT MISREPRESENTATION - Factors;
2. Limited to Commercial Fact
3. State of Mind: American Rule - Recovery Allowed where D
a. Who: Owes a duty to give "Correct Info" Speak with Care b. When: (1) D has Knowledge of Materiality and Reliance AND
(2) A relationship exists where P has a righ to rely
4. Protected Parties:
a. NY Approach: (Quasi-Privity) - in K Relationship or Equivalent
1. Requires;
a. Ds awareness of the particular purpose info to be used for
b. " " a specific party intended to rely on info AND
c. Linking conduct between D and P showing D understood P would rely
b. WI Approach: (Foreseeable)
1. Ps injury must be Foreseeable and Liability Not against Public Policy (PP):
a.
PP Considerations 1. Injury too remote 4. Unreasonable burden on D
2. Injury disproportionate to
culpability
5. Fraudulent claims
3. Too highly extraordinary that neg.
brought harm
6. Recovery would open the liability
floodgates
c. RS Approach: P must be a person or limited group for;
1. Whose benefit and guidance D INTENDS to supply info (or knows recipient
intends to supply info)
2. P relied on an intended transaction or subs. similar one
e. Justifiable Reliance and Damages: Same as IntlS/L MISREPRESENTATION
2. Limited to certain Sales Transactions
3. State of Mind: Innocent - D has means of knowing, duty to know or ought to know truth
4. Protected Parties: Privity - only parties of the transaction
5. Justifiable Reliance : same
6. Damages: Same as Intl But LIMITS to OUT OF POCKET
DEFENSES (none for Intl Misrep)
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1. Contributory Neg: Only Neg. Misrep
2. Comparative Neg: Neg. and S/L
3. A/R: Neg. and S/L
DEFAMATION
Harm to reputation from false statementsCom. Law: Def stmts are those that hold P up to "SCORN, RIDICULE, or CONTEMPT
RS : Def stmts tend to harm Ps reputation by
a. LOWERING him in estimation of community OR
b. DETERS 3rd parties from associating with him
Elements:
1. DEFAMATORY STATEMENT : must be UNDERSTOOD as defamatory by -
a. Gen Rule: SOME # of pple
b. RS Position: A SUBSTANTIAL minority of pple who are not ANTI-Social
c. Min Rule: some RIGHT Thinking people
Plead in addition to Def Stmt to
Inducement: background info to explain principle that makes the stmt defamatory
Innuendo: Explains defamatory Meaning
2. ABOUT THE P : must reasonably be understood by recipients as being ABOUT or CONCERNING
the P
Colloquium: the formal allegation that the Def words are "of and concerning the P"
IF P is a member of a:
Large Group: cannot sue; UNLESS particular circumstances point to the P (can an individual
in a large group prevail)
Small Group: May all sue; IF stmt refers to EVERY MEMBER
3. FALSE : P must prove falsity at least in cases w/ public Ps or Media Ds and Matter of Public
ConcernTrad Com Law Rule: PRESUMED Def Stmt to be FALSE; but D could asset "TRUTH" as
affirmative defense
To support Defense based on truth --
D must be able to prove the stmts are SUBSTANTIALLY TRUE
4. FACTUAL : stmt must be a fact to be actionable (opinions actionable in limited circumstances)
Fact v. Opinion
Matters of Pub Concern: Stmt must be PROVABLY FALSE
Protected Exception: Rhetorical Hyperbole which cannot be reasonably interpreted
as actual facts
Gen OPINION Rule: Actionable where it either -
a.
Contains or implies provably true or false facts ORb. Is contrary to speakers actual viewpoint
5. PUBLISHED : (1) COMMUNICATED int'ly or neg'ly by the D (2) to @ least ONE person other than
the P who UNDERSTOOD it
a. Self Publication: NO publication where P rather than D communicates the Def Stmt
EXCEPT; Reasonably expected consultants or Forced Self Publication
b. Re-Publishers: REPETION of a published Def Stmt GENERALLY constitutes an actionable
publication
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Rules -
a. Primary Publishers: are liable for any repub. EVEN IF they innocently took Def Stmt
from someone else
b. EXCEPTIONS;
1. Single Publication Rule - entire edition of a book, periodical, or newspaper
constitutes a single pub = a single cause of action
2. Secondary Publishers - Are NOT LIABLE
a. UNLESS; They (1) had KNOWLEDGE of the Def matter AND (2) Some
reason to be put ON GUARD
c. Internet Publishers: No interactive comp service is treated as a publisher of info provided
by another content provider
6. P must SUFFER DAMAGES : proof of damages turns on;
Com Law: whether claim is Libel or Slander
Con Law: status of the parties and type of concern
SLANDER - Spoken words, transitory gestures and any form non Libel
Rule: requires proof of Special Damages unless claim is Per-se
Eg. Loss of marriage, customers, gratuitous entertainment
Per-se: 4Cs
a. Serious Crimes c. Professional inCompetence
2. Loathsome Communicable
Diseases
4. Serious sexual misConduct (want of
Chastity)
LIBEL - Written or Printed words, or embodiment in physical form of equivalent harmful qualities
Rule: allows for general (presumed) damages
Per-se: Def meaning understood from the written words alone
Per Quod: extrinsic evidence needed to show defamatory meaning
*juris split on proof of damages
1st Amendment Elements7. Ds STATE OF MIND : In matters with Pub Officials/Figures -
Rule: Pub Officials/Figures can only recover from Def Stmts made with ACTUAL MALICE
b/c have/appear to have sub. Responsibly for or control over the conduct of Gov
affairs actual malice re true/false
Applies to; (1) Pub Official and Pub Figure Ps, (2) Public Matters, (3) Possibly Media Ds
PROOF OF FAULT:
Actual Malice: reckless disregard for truth or falsity of Stmt
Must be sufficient EV that -
1. D entertained SERIOUS DOUBTS as to the truth of Pub OR
2. D made Pub w/ HIGH DEGREE OF AWARENESS of Probable Falsity
Evidentiary Strd -
Clear and Convincing Evidence
All Purpose Pub Figure: has achieved pervasive fame and notoriety or enjoys pervasive
power and influence
Limited Purpose Pub Figure:
Voluntarily injected him/herself OR
Was drawn into a particular Pub controversy and Attempted to INFLUENCE THE
OUTCOME
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DEFENSES TO DEFAMATION ACTIONS
CONSENT
1. Not based upon fraud or duress (voluntary)
2. The publication does not exceed the scope of consent and
3. Made by a competent person
TRUTH: D must be able to prove the statements are substantially true
**con law cases shifts the burden to P if PO/PF or Matter of Public Concern**
PRIVILEGES
Absolute Privilege - absolute immunity -
GOVERNMENT PROCESS (judicial, legislative & executive); Protects statements by
Anyone involved in a judicial hearing
a. Published in the course of judicial proceedings
b. That have some reasonable relationship to the judicial proceedings
Legislative privilege protects statements
a. Made in legislative proceedings (e.g. floor debate, committee work,
witnesses at hearings)
b. Made as part of the deliberative process
Executive Privilege applies at least to
a. Absolute and statutory - limited to hi ranking fed and state gov officials
b. Who are exercising the functions of office
*The Federal Tort Claims Act protects: Statements by any federal official w/in
the scope of employment (exceptions and can be waived)
COMPELLED BROADCASTS: Can't sue the outlet that is broadcasting gov. type
forced stuff
SPOUSAL COMMUNICATIONS: Communication between married couples is
protected
Qualified/Conditional Privilege - can be lost (if you knew it was false when it was said, or made
it with an improper purpose/ill will bad faith)
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o P has proved all the elements, D is saying that they cannot be held liable b/c of a priv.
FAIR COMMENT PRIVILEGE : Protects opinion on matters of public interest
Irrelevant: look to provably false standard (if implies facts that are provably true that
are objective then actionable)
FAIR AND ACCURATE REPORTING PRIVILEGE : Reports on public proceedings are
conditionally privileged as long as the reports are
Verbatim transcriptions or
Fair and accurate summaries (not biased or taken out of context,
substantially correct)
Lost if not transcribed correctly
If 1st amendment applies, D must be at fault
INTEREST PRIVILEGES (social utility, but can be los if abused)
Public interest: protects statements that are made in the interest of the
public, like a PSA, and trying to inform the public
Loose if made with malice, or made knowing they are false or to
an inappropriate person who is not in a position to benefit
Ds self-interest
Protected unless know it is false acting with ill will/malice 3rd party interest
Common interest
Personal
Injury
Property
Damage
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