Defamation Elements:(1)Defamatory statement (tends to injure the reputation in the popular sense, to diminish the esteem, respect, goodwill

or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him) (2)Of and concerning the plaintiff Neiman Marcus. Depends on size of group. (3)Publication to a third person (Possibility of publication by omission?)(4)Fault (Depends on type of plaintiff, defendant)(5)Special damages (economic damages)Libel start with per se special damages presumed Unless they are per quod where some outside information is needed for the listener to understand the defamatory implication Slander start with per quod must prove special damages. Exceptions: crime, loathsome disease, not capable of profession, unchastety Rationale: designed to protect a persons interest in their own reputation Defenses: Truth, Absolute Privilege (Court statements, if consent given) Qualified Privilege. Public Official or Figure Private figure Private figure, matter priv concern Liability standard actual malice Liability standard at least negligence ? Presumed or Punitive Damages actual malice Presumed or punitive damages actual malice ?

Recklessness means defendant must actually have entertained serious doubts about the truth of the statement (St Amant)Burden: CONVINCING CLARITY Public Figure: limited purpose if you are widely known and thrust yourself into the public discourse. Fact vs. Opinion No specific type of speech that is labeled as opinion is given absolute protection. Inquiry is does this imply a statement of fact? Anonymity factors 1. effort to notify anonymous poster that their identity is sought 2) set forth specific actionable statements 3) sufficient evidence to state prima facie case 4) balance strength of prima facie case against right of free speech to speak anonymously Privacy Rationale protect ones right to be left alone Intrusion Elements (1)Intentional invasion (physical or otherwise, (2) of solitude or seclusion of another, (Must be reasonable expectation of solitude or seclusion)(3)Highly offensive to the reasonable person ((a) degree of intrusion, (b) context of intrusion including intruders motives, (c) setting, including expectations of privacy)) discussion Recording what is seen vs. prying and uncovering the hidden.Berosini Public Disclosure of Private Facts Elements(1) publicity (Wide spread)(2) of private facts that are(3) highly offensive to a reasonable person, and(4) not a matter of public concern Scope: stmts of mother in hospital room outside scope of public concern about gang violence False Light Elements(1) publicity that(2) places another in a false light, and is(3) highly offensive to a reasonable person, and done with(4) knowledge or reckless disregard of its falsity controversy (duplicates other torts w/o procedural protections of defamation) Appropriation Elements (1) using anothers name or likeness(2) without consent(3) [mainly] for anothers commercial use or benefit Rationale Protects from emotional harm of private individual Punitive Damages: outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others.

(Appropriation: Right of Publicity) Elements(1) Defendants use of Plaintiffs identity; (2) the appropriation of Plaintiffs name or likeness to Defendants advantage; (3) lack of consent; and (4) resulting injury. Interest protected is right to make money off celebritys name Wendt v. Host International (cheers characters) Samsung Electronics (robot Vanna White case) Misrepresentation Involve pure economic loses Intentional misrepresentation Elements(1)Affirmative misrepresentation(Including opinions if they are made w/ scienter)(2)Scienter knowledge or reckless disregard for truth(Promise and breach is insufficient) (3)Intent to induce reliance(4)Justifiable reliance(5)Damages Exceptions mere puffing, Prediction of future events - difficult to base a fraud claim on this misstatement Burden: clear and convincing Failure to disclose? Starting point: omission is not fraud caveat emptor Exceptions: law has carved out areas where an omission is paramount to an affirmative misrep(a) matters known to him that other is entitled to know because of a fiduciary(b) necessary to prevent his partial or ambiguous statement of the facts from being misleading; (c) subsequently acquired information that he knows will make untrue or misleading a previous representation (d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.Rohm and Haas (fraud is anything calculated to deceive,)Damages: out of pocket AND benefit of bargain Negligent misrepresentation Elements (1) false representation(2) D had a pecuniary (not a volunteer)(3) D owed a duty of care to communicate truthful information(4)D exercise due care(5)Plaintiff justifiably relied on the representation(6)Plaintiff proximate result of his reliance thereon Third party use of info counts if it is be passed along, and foreseeable that the third party will act in reliance thereon Prosecution/Process Malicious Prosecution Elements(1) prosecution instituted or continued by defendant Nordstrom - failure to act counts(2) lack of probable cause for institution or continuation(3) malice (reckless disregard for others rights)(4) termination on merits or abandonment for plaintiff (5) damages (interference with personal property of their person) Abuse of Process Elements (1)Process (2)Ulterior or illegitimate purpose(3)Damages Personal Injury Damages Consists of: (1)Past and future medical (2)Past and future lost income, and (2)Pain and suffering Adjustments Discount rate (Only applies to future expenses) and inflation Cognitive awareness required for hedonic or p&s Punitive Damages Must prove recklessness. Indiana Capped at 3 times compensatory, or $50k, Split recovery 25% plaintiff/75% state. BMW Factors (to comport with Due Process)(a)Reprehensibility (Human life vs. pecuniary!)(b)Ratio(c)Criminal Sanctions Mitigation required unless cost or hazards too great, defendant has burden interest in making the statement breached that duty by failing to suffered a pecuniary loss as a foreseeable that the info will

Loss of Consortium The benefits one party would ordinarily be entitled to receive from another Collateral Benefits Some sort of award that comes from a source other than the defendant, Generally excluded from damage calculation Death Actions Wrongful death/survival are NOT causes of action, but can be based on strict liability, negligence, etc, recovery at death Wrongful Death Recovery for loss suffered by surviving relatives damages familys loss Fetuses Federal tort claims viable, Indiana born Survival Statutes Recovery for loss suffered by decedent, including pain and suffering Loss of Society Available for parents upon death of child, are pecuniary losses (Bullard) Multiple Tortfeasors Joint and Several Liability Joint and several liability w/ comparative apportionment approaches (1)Retain j&s liability Disney Case, Hill Case, (Liability is several only where defendants cause distinct or separate parts of plaintiffs harm) (2) several liabily as determined by % fault (3) three other hybrids Contribution involves a collective apportionment of the legal responsibility for paying a tort damage award among the various individual multiple tortfeasors, Used to just be pro rata apportionment Indemnity Vicarious Liability Passive defendant can be held liable based on strength of relationship with active defendant Theories Control, or Enterprise Elements (1)EE was negligent, and (2)EE was acting within scope of employment Exceptions (1)Coming and Going [Exceptions to coming and going; (a)Dual Purpose Rule(b)Special hazards rule(c)ER compensates EE for time traveling] (2)Frolic and Detour1 (3)Intentional Torts Starting Point no vicarious liability, unless (a) EE acting in a dual purpose or (b)EE acting in the execution of service for which EE was engaged Independent Contractor Factors - the ER of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a nondelegable duty of care, (1)The extent of control master may exercise over servant (most important) (2)whether or not the one employed is engaged in a distinct occupation or business (3)kind of occupation with reference to whether in the locality the work is usually done under the direction of the employer of by a specialist without supervision (3)The skill required (4)Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work (5)The length of time for which the person is employed(6)The method of payment whether by the time or by the job (7)Whether the work is part of the regular business of the employer (8)Whether or not the parties believe they are creating the relation of master and servant (9)Whether the principal is or is not in business

ER will be held liable if it is shown that the EE had gone on a mere detour in carrying out their duties, whereas an EE acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability.
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