Torts for Defamation and Proximate Cause Discussion Questions 250-word (not including in-text citation and references as word count) count minimum with two | Homework Answers

Torts for Defamation and Proximate Cause Discussion Questions 250-word (not including in-text citation and references as word count) count minimum with two scholarly sources in APA format. For the two scholarly sources, one from the textbook that’s posted below and the other one from an outside source. Let’s be sure to write it in own work 100% and give credit appropriately when using someone’s else work.

1 There are two types of torts for defamation; name them and explain the difference between them. Provide the four elements that must be proven in order for liability to exist in a lawsuit for defamation. What are the defenses to the tort of defamation?

325 words per each question and there is a total of 4 questions (not including in-text citation and references as the word count), a minimum of three scholarly sources are required in APA format. For the three scholarly sources, one from the textbook that’s posted below and the other two from an outside source. Let’s be sure to write it in own work 100% and give appropriately when using someone’s else work.

Is proximate cause met in these situations?

1 A truck driver crashes into a guardrail. During the accident, a defective steering wheel rapidly spins around breaking the driver’s arm. The driver sues the maker of the steering mechanism.

2 A tenant hurts herself falling down defective steps. The tenant sues the landlord’s insurance company, alleging that they knew the steps were defective but insured him anyway, thus discouraging him from fixing them.

3 An employer burns down his warehouse for the insurance money. An employee is arrested and falsely imprisoned by the police for the crime. The employee sues the employer for negligence.

4 A passenger is injured an automobile accident. The passenger sues the liquor store that sold alcohol to the driver of the car who was already visibly intoxicated. Final PDF to printer
10
CHAPTER
Torts and Products
Liability
R
I
C
A
R
D
learning
,
objectives
After studying this chapter, students who have mastered
the material will be able to:
260
UNIT TWO
mel23807_ch10_260-293.indd 260
10-1
A
Articulate
a basic definition of a tort and identify the
source
of
law
governing various types of torts.
D
10-2
Determine
the classification of tort based on the
R
conduct of the wrongdoer.
10-3
Give specific examples of how tort law applies in the
E environment.
business
10-4
N the elements and defenses of the torts of
Apply
defamation,
trade libel, and product disparagement
N
and discuss the applicability of each in the business
E
environment.
10-5
Identify the differences in terms of liability for
traditional print defamation and defamation in
2
cyberspace.
10-6
Distinguish business competition torts from other
intentional
torts and understand their applicability in
7
commercial relationships.
10-7
Recognize conduct that is classified as negligent and
T any potential defenses.
identify
10-8
S alternate theories of liability and defense
Provide
that can be applied when a product is the cause
of an injury.
10-9
Articulate what must be proved in negligence and
strict liability cases and appreciate how the levels
of proof differ.
I
4
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R
I
C
A
R
earning to recognize situations in which a
D
business venture may have potential liability
to another party is an important part of limiting
,
L
risk in business operations. Tort law and products
liability law set out certain conduct and standards
of reasonableness and provide legal recourse when
A
a violation of those standards results in an injury
D
causing losses. Because business owners are ordinarily responsible for the intentional or accidenR
tal conduct of their employees who cause another
I
party harm, it is essential for managers to understand ways in which to control risk and reduce
E
liability. In this chapter, students will learn:
N
? The fundamental principles of tort law, types of
N
torts, and how each applies in a business context.
? Rules governing intentional and business comE
petition torts.
? How liability arises for negligent acts and the
2
defenses to liability.
? Special rules governing strict liability and prod4
ucts liability.
7
OVERVIEW OF TORT LAW LO 10-19
A tort1 is a civil wrong where one party has acted,
T
or in some cases failed to act, and that action or
S
inaction causes a loss to be suffered by another
1
The term tort originally derives from the Latin root tortus,
meaning “twisted” or “wrested aside”. As with many legal
terms, Latin words were given a French twist in English
common law via the Norman kings. Thus, the shortened term
tort is a French root meaning “wrong.”
party. The law provides a remedy for one who has
suffered an injury by compelling the wrongdoer
to pay compensation to the injured party. Tort law
is best understood as law that is intended to compensate injured parties for losses resulting in harm
from some unreasonable conduct by another.2 One
who commits a tort is known as the tortfeasor.
The tortfeasor’s wrongful conduct is described as
tortious conduct. Recall from Chapter 1, “Legal
Foundations,” that an individual may commit
a criminal offense and a civil wrong in the very
same act. While criminal statutes are intended to
punish and deter the wrongdoer, the common law
of torts is primarily intended to provide compensation for the victim. In some cases tort law also may
be used to deter wrongful conduct in the future.
SOURCES OF LAW
For the most part, tort law is governed by state common law principles. Recall from Chapter 1, “Legal
Foundations,” that courts look to rules articulated
by the American Law Institute (ALI) for guidance
on applying common law legal principles. For tort
law, these rules are known as the Restatement of
Torts. The ALI has amended the Restatements
twice, and, therefore, these sources of law are called
the Restatement (Second) of Torts and the Restatement (Third) of Torts. Remember that courts are
not bound by any of the Restatements, but they do
2
Black’s Law Dictionary.
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recognize them as widely applied principles of law.
The Second Restatements have the benefit of volumes of case law and wide acceptance, and therefore
references to the Restatements in this chapter refer
to the Second Restatements unless otherwise noted.
Laws that cover individuals who are injured by a
product, known as products liability laws, may take
the form of state common law or state statutes that expressly impose liability for injuries
that result from products. These statutes are based primarily on the Restatements and are
relatively uniform from state to state.
LO 10-2, 10-3
CATEGORIES OF TORTS
Torts fall into one of three general categories:
intentional torts, negligence, and strict liaR
bility. An intentional tort is one in which the tortfeasor was willful in bringing about a
particular event that caused harm toI another party. Negligence is an accidental (without
willful intent) event that caused harmCto another party. The difference between the two is
the mind-set and intent of the tortfeasor. For example, suppose that Pangloss is the delivery
van driver for Cultivate Your GardenAFlowers Inc. One day while on a delivery he spots
his archenemy crossing the street, soRhe accelerates his truck and hits him. In this case,
Pangloss has committed an intentional tort (battery). If, on the other hand, Pangloss is late
D a turn, and accidentally hits a pedestrian crossing
for his delivery, carelessly speeds around
the street, he has committed the tort of
, negligence.
Strict liability torts, in which a tortfeasor may be held liable for an act regardless of
intent or willfulness, applies primarily in cases of defective products and abnormally danA
gerous activities (such as major construction
demolition). Owning a wild animal or even
some breeds of dogs can result in strict liability should the animal harm an individual,
D
regardless of the precautions taken by the animal’s owner.3
Legal Speak >))
Willful Conduct
Intentional behavior
directed by the
“will.”
LO 10-4
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INTENTIONAL BUSINESS-RELATED
TORTS
I
While the law provides relief for injured
E parties in a variety of circumstances, there are
some intentional torts that are more important to business owners and managers because
N relationships and operations.
they have the potential to impact business
N
Defamation
E
The law recognizes an individual’s or a company’s reputation as a valuable asset by imposing
liability on any party that makes false and defamatory statements affecting another party’s
reputation. In this context, the term party means an individual, business, or product. Just as
2
in all civil lawsuits, the untrue statements must have caused the victim to suffer damages.
4 as libel and oral (spoken) defamation as slander.
Generally, we think of written defamation
In order to recover for a defamation action,
7 the plaintiff must prove four elements:
? Defamatory statement: A false and defamatory statement concerning a party’s reputation or honesty or a statement 9
that subjects a party to hate, contempt, or ridicule.
In order to qualify as defamatory,
the statement must have a tendency to harm the
T
reputation of the plaintiff.4 Because many statements can be interpreted in more than
S
one way, the law provides that the statement is defamatory so long as a defamatory
interpretation is an objectively reasonable one and the plaintiff shows that at least one
3
Numerous cities and municipalities have declared certain breeds of dogs such as pit bulls, rottweilers, and
mastiffs to be dangerous animals, and many have even banned the ownership of such animals. See, for example,
Tracy v. Solesky, 25 A.3d 1025, 421 Md. 192 (2011).
4
Restatement (Second) of Torts, § 559.
262
UNIT TWO
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?
?
?
of the recipients did in fact make that interpretation. Note that the statement must be
false, not merely unkind. Moreover, if a statement was pure opinion, that statement is
not defamatory. That is, a defamatory statement is one that must be provable as false.
Dissemination to a third party: In the Restatements, this requirement is referred to as
publication, but in this context it does not literally require the statement to be published.
Rather, this element requires that the statement must somehow reach the ears or eyes of
someone other than the tortfeasor and the victim. For example, suppose a manager telephones one of his employees and says, “You are the one who stole $100 in petty cash,
so you’re fired.” Even if the accusatory statement is false, the manager has not defamed
the employee based on that action alone. No third party heard the statement, and, thus,
the dissemination element is missing.
Specificity: The statement must be about a particular party, business, or product. Thus,
any general statement about a profession as a whole cannot constitute defamation, but a
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false statement about a company can be the basis of a reputation claim.
I must be able to prove that he or
Damages: In a business context, the aggrieved party
she suffered some pecuniary harm. Examples of damages
in a defamation suit include
C
situations in which the victim has lost a valuable client due to the tortfeasor’s defamaA
tory comment or the victim is unable to secure employment
because of a tortfeasor’s
defamatory comment during a reference check. R
Legal Speak >))
Pecuniary Harm
Lost revenue or
profits, both actual
and potential.
D figure, such as a candidate for
Public Figure Standard If the victim is a public
political office or a celebrity, the defamation must have
, been committed with malice or
reckless disregard for the truth. This “public figure” rule is based on the U.S. Supreme
Court’s landmark ruling in New York Times v. Sullivan.5 The case involved a public official,
a police commander, who sued The New York Times A
for defamation based on allegations
printed in the newspaper that accused him of complicity in criminal activity. In announcing
D for a public figure to prevail in a
the public figure standard, the Court ruled that, in order
defamation case, the plaintiff must provide evidenceR
that the defamer either had “actual
knowledge” that the statement was false or made the defamatory statement with a “reckI
less disregard for the truth.”
E
N
Truth Truth is an absolute defense to a charge of defamation. If the statement made is
N
truthful, no defamation has occurred.
E
Defenses to Defamation
Legal Speak >))
Malice Typically
defined as the
intentional doing
of a wrongful act
with intent to
harm. However,
in the context
of defamation
evidence of ill will is
not required for the
plaintiff to prevail.
Privilege Defenses If the injured party meets all of the requirements of a defamation claim, the defendant may still avoid liability if the defamatory statement falls into the
category of privileged statements. Privilege is a defense
2 that recognizes either a legal or
public policy–based immunity from a defamation claim. It is divided into two subcatego4 not offer any further evidence to
ries: absolute privilege, where by the defendant need
assert the defense, and qualified privilege, where by 7
the defendant must offer evidence of
good faith and be absent of malice to be shielded from liability.
9
Absolute Privilege Courts generally recognize three types of absolute privilege:
T
? Government officials: The framers recognized the need for free debate among members of
S “speech and debate clause,” which
Congress and gave immunity in the Constitution via the
shields members of Congress from liability for any statement made during a congressional
debate, hearing, and so on, while in office. The U.S. Supreme Court later extended that
protection to all federal officials.6
5
376 U.S. 254 (1964).
Barr v. Matteo, 360 U.S. 564 (1959).
6
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?
?
Judicial officers/proceedings: All states now recognize some protection of participants
of a judicial proceeding for statements made during the proceeding. This includes
judges, lawyers, and, in some cases, witnesses.
State legislators: Similar immunity has been extended by the states to protect state legislators for statements made in the course of carrying out their duties.
Qualified Privilege Courts also recognize certain qualified privileges that are grounded
in public policy:
? Media: Employees of media organizations (e.g., television, radio, periodicals) are
afforded a qualified protection from defamation liability. So long as the media has acted
in good faith, absent of malice, and without a reckless disregard for the truth, the media
is protected from liability through privilege as a defense for unintentional mistakes of
fact in their reporting.
R
? Fair report privilege: If one relies on an official public document or a statement made
by a public official and, when making
I an alleged defamatory statement, cites the document or public statement, no cause of action for defamation occurs unless the speaker
C
knows the statement is false.
? Employers: An increasing numberA
of states have extended some liability protection for
employers who are providing a reference
for an ex-employee. So long as the informaR
tion is factual and the employer has not acted with malice, the employer’s statement
D
may be privileged.
In Case 10.1, a federal trial court applies
, a state employer-reference privilege statute.
A
D
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E
2
4
7
9
T
S
Some states provide statutory immunity from defamation claims for employers
providing references for ex-employees, so long as the information is factual.
264
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CASE 10.1
Belanger v. Swift Transportation, Inc., 552 F. Supp. 2d 297
(U.S. Dist. Ct. Conn. 2008)
FACT SUMMARY Swift Transportation operates a
trucking company and hired Belanger as a tractor-trailer
driver. Swift has various safety policies, among them
the “Forbidden Five,” which are five infractions that can
lead to immediate termination of its drivers. One such
infraction is rear-ending another vehicle. In his third year
of employment, Belanger was driving a Swift tractortrailer on the Cross Bronx Expressway when he crashed
into the back of another tractor-trailer, causing $40,000
R
in damage. Swift considers every accident preventable
unless proved otherwise, so Belanger was immediately
I
terminated for violating one of the Forbidden Five.
C
Belanger claimed that the accident was not his fault,
but a subsequent investigation by Swift’s claims departA
ment concluded that the accident was preventable. Swift
R
recorded the incident on a specialized database website
D
(Data Website) that is operated by the U.S. government
to promote highway safety through a readily available
,
check on commercial driving records. When Belanger
sought other truck-driving jobs, the companies looked
on the Data Website and found out that, according to
A
Swift, Belanger “did not meet the company’s safety
D
standards.” Belanger sued Swift for defamation in the
workplace. Swift defended that employer-to-employer
R
references were privileged from liability for defamation
I
unless Swift acted with malice. Belanger contended that
(1) posting the information on the public Data Website
E
resulted in a loss of the employer’s reference privilege
N
because it was not employer-to-employer and (2) Swift
acted maliciously by not acknowledging Belanger’s
N
side of the story in its investigation.
E
SYNOPSIS OF DECISION AND OPINION The
U.S. district court ruled in Swift’s favor, citing two rea2
sons. First, there was no reason why employer candor
regarding employee references should not be protected
from defamation suits when it occurs on the website
since it was equally as important as it would be in a oneon-one discussion. Second, Swift’s following of company procedures of immediate termination, independent
investigation, and recording of the accident on Data
Website did not indicate malice.
WORDS OF THE COURT: Defamation in an Employee
Reference “Mr. Belanger offers no rationale for the
distinction which he draws between a [Data Website]type employer information clearinghouse and direct
employer-to-employer contact addressing the candor
concern underlying the [employer-to-employer reference] privilege. Here, employer forthrightness about
employee driving records has obvious importance, as
evidenced by the federal regulation compelling trucking companies to investigate applicant drivers’ safety
records before hiring.” . . .
Malicious Defamation by the Employer “[T]he
sparse record here contains no evidence capable of
showing any improper motive in inputting the incident
in the [Data Website] records. Mr. Belanger’s evidence
that he had received no contact from the defendant
in response to his explanation of how the accident
occurred provides no basis for a jury to reasonably find
‘any improper or unjustifiable motive.’ ”
Case Questions
1. What is the public policy behind giving privilege to
employer references?
2. Is it fair that Belanger has a permanent bad reference? Would you hire him?
4
7
9
Trade Libel and Product Disparagement
T Laws
In cases where a competitor has made a false statement that disparaged a competing prodS
uct, an injured party may sue for trade libel. This tort requires that the statement (1) be
a clear and specific reference to the disparaged party or product (e.g., using the actual
brand name of the product), (2) be made with either knowledge that the statement was
false or reckless disregard for the truth, and (3) be communicated to a third party (similar
to defamation).
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Some states have passed product disparagement statutes intended to protect the interest of a state’s major industries, such as agriculture, dairy, or beef.7 In perhaps the most
famous product disparagement case, the Texas Cattle Ranchers Association sued Oprah
Winfrey under a Texas law allowing recovery for any rancher who suffered damages as a
result of false disparagement. On her television show, Winfrey agreed with statements
made by one of her guests that alleged certain U.S. market hamburger meat could cause
mad cow disease, which is fatal to humans. At the end of the segment, Winfrey took the
position that she would cease eating any hamburgers. The ranchers showed evidence that
beef sales dropped precipitously immediately after the broadcast and alleged that Winfrey’s statements were false and caused the ranchers lost revenue. The jury rejected the
cattle ranchers’ claim as too broad and without sufficient evidence that the remarks alone
were the cause of the losses.8
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Fraudulent Misrepresentation
I
Recall the discussion of misrepresentation and fraudulent misrepresentation in Chapter
C to note that there are some important overlap7, “Contract Formation.” It is important
ping legal principles of tort and contract
A law. For example, in some cases contract law
allows a contract to be canceled if one party made false representations concerning a
R
material fact. This means that the misrepresented
fact must involve an important aspect
of the basis of the contract, such as aD
change in the value of the contract or an increase in
one party’s risk. Fraudulent misrepresentation (some, referred to simply as fraud) is also recognized
times
KEY POINT
as a tort in cases …
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