weekly case analysis
Each student will treat this as an individual assignment. Your response should be well-rounded and analytical and should not just provide a conclusion or an opinion without explaining the reason for the choice. For full credit, you need to use the material from the week’s lectures, text and/or discussions when responding to the questions. Post a case analysis of a listed problem for the week in the corresponding weeks assignment drop box. The case assignments are posted below in the Case Assignments.
The assignment should consist of a Word Document. It should include a summary of the relevant facts, the law, judicial opinion and answer the case questions. All that is necessary for an understanding of the case is important and required.
The report must go beyond the discussion of the problem posed in the textbook, to achieve a superior grade. Do research outside the textbook- this must include research outside the case citation such as the Lexus-Nexis in the DeVry Library or FindLaw.com, do research on the parties and circumstances of the case itself and incorporate some visual modality as a part of the case analysis. Something about one of the parties, as well as some background contained in the legal opinion. Doing significant research outside the textbook is essential.
Utilize the case format below.
Case Analysis Format
Read and understand the case or question assigned. Show your Analysis and Reasoning and make it clear you understand the material. Be sure to incorporate the concepts of the chapter we are studying to show your reasoning. Dedicate at least one heading to each following outline topic:
Parties [Identify the plaintiff and the defendant]
Facts [Summarize only those facts critical to the outcome of the case]
Procedure [Who brought the appeal? What was the outcome in the lower court(s)?]
Issue [Note the central question or questions on which the case turns]
Explain the applicable law(s). Use the textbook here. The law should come from the same chapter as the case. Be sure to use citations from the textbook including page numbers.
Holding [How did the court resolve the issue(s)? Who won?]
Reasoning [Explain the logic that supported the court’s decision]
Do significant research outside of the book and demonstrate that you have in an obvious way. This refers to research beyond the legal research. This involves something about the parties or other interesting related area. Show something you have discovered about the case, parties or other important element from your own research. Be sure this is obvious and adds value beyond the legal reasoning of the case.
1. Dedicate 1 heading to each of the case question(s) immediately following the case, if there are any. Be sure to restate and fully answer the questions
2. Quality in terms of substance, form, grammar and context. Be entertaining! Use excellent visual material
3. Wrap up with a Conclusion. This should summarize the key aspects of the decision and your recommendations on the court’s ruling.
4. Include citations and a reference page with your sources. Use APA style citations and references
Case 11-2 Nemet Chevrolet, Ltd. v.
Consumeraffairs.com
, Inc.
United States Court of Appeals for the Fourth Circuit 591 F.3d 250 (2009)
The plaintiff, Nemet Chevrolet, Ltd., is in the business of selling and servicing automobiles. The defendant,
Consumeraffairs.com
, Inc., operates a website where consumers can comment on the quality of goods and services, including those at Nemet Chevrolet. Nemet felt that several of the postings on the defendant’s website were false and harmful to its business reputation, so it filed suit alleging defamation. The defendant filed a motion to dismiss, under Federal Rule 12(b)(6), for failure to state a claim upon which relief could be granted. According to the defendant, the statements on its website are protected by the Communications Decency Act of 1996 (CDA), which prevents plaintiffs from holding Internet service providers liable for the publication of information created and developed by others. The district court granted the motion with leave to amend the complaint. The plaintiff amended, but the defendant filed another 12(b)(6) motion to dismiss. The district court again granted the dismissal. The plaintiff appealed.
Circuit Judge Agee
Recognizing that the Internet provided a valuable and increasingly utilized source of information for citizens, Congress carved out a sphere of immunity from state lawsuits for providers of interactive computer services to preserve the “vibrant and competitive free market” of ideas on the Internet. The CDA bars the institution of a “cause of action” or imposition of “liability” under “any State or local law that is inconsistent” with the terms of § 230. As relevant here, § 230 prohibits a “provider or user of an interactive computer service” from being held responsible “as the publisher or speaker of any information provided by another information content provider.” Assuming a person meets the statutory definition of an “interactive computer service provider,” the scope of § 230 immunity turns on whether that persons’ actions also make it an “information content provider.” The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
Taken together, these provisions bar state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties. Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them. State-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.
To further the policies underlying the CDA, courts have generally accorded § 230 immunity a broad scope. This Circuit has recognized the “obvious chilling effect” the “specter of tort liability” would otherwise pose to interactive computer service providers given the “prolific” nature of speech on the Internet. Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, “immunity is an immunity from suit rather than a mere defense to liability” and “it is effectively lost if a case is erroneously permitted to go to trial.” We thus aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from “ultimate liability,” but also from “having to fight costly and protracted legal battles.”
Nemet does not dispute that
Consumeraffairs.com
is an interactive computer service provider under the CDA. What Nemet contends is that
Consumeraffairs.com
is also an information content provider as to the twenty posts and, therefore, cannot qualify for § 230 immunity. In other words, Nemet’s argument is that its amended complaint pleads sufficient facts to show
Consumeraffairs.com
is an information content provider for purposes of denying statutory immunity to
Consumeraffairs.com
at this stage in the proceedings.
. . . We must determine . . . whether the facts pled by Nemet, as to the application of CDA immunity, make its claim that
Consumeraffairs.com
is an information content provider merely possible or whether Nemet has nudged that claim “across the line from conceivable to plausible.”
In the amended complaint, Nemet recited the specific language from each customer about his or her automobile complaint for each of the twenty posts it claimed were defamatory. Then, Nemet pled as to each of the posts as follows:
Upon information and belief, Defendant participated in the preparation of this complaint by soliciting the complaint, steering the complaint into a specific category designed to attract attention by consumer class action lawyers, contacting the consumer to ask questions about the complaint and to help her draft or revise her complaint, and promising the consumer that she could obtain some financial recovery by joining a class action lawsuit. Defendant is therefore responsible, in whole or in part, for developing the substance and content of the false complaint . . . about the Plaintiffs.
. . . In short, Nemet argues [that] the language . . . shows Consumeraffairs.com’s culpability as an information content provider either through (1) the “structure and design of its website,” or (2) its participation in “the preparation of” consumer complaints: i.e., that
Consumeraffairs.com
“solicit[ed]” its customers’ complaints, “steered” them into “specific categor[ies] designed to attract attention by consumer class action lawyers, contact[ed]” customers to ask “questions about” their complaints and to “help” them “draft or revise” their complaints, and “promis[ed]” customers would “obtain some financial recovery by joining a class action lawsuit.”
We first examine the structure and design of the website argument, which encompasses all the facts pled in the Development Paragraph except for the claim
Consumeraffairs.com
asked questions and “help[ed] draft or revise her complaint.” . . .
Even accepting as true all of the facts Nemet pled as to Consumeraffairs.com’s liability for the structure and design of its website, the amended complaint “does not show, or even intimate,” that
Consumeraffairs.com
contributed to the allegedly fraudulent nature of the comments at issue. Thus, . . . Nemet’s pleading not only fails to show it is plausible that
Consumeraffairs.com
is an information content provider, but not that it is even a likely possibility.
We now turn to the remaining factual allegations, common to all twenty posts from the Development Paragraph, that
Consumeraffairs.com
is an information content provider because it contacted “the consumer to ask questions about the complaint and to help her draft or revise her complaint.” Nemet fails to make any cognizable argument as to how a website operator who contacts a potential user with questions thus “develops” or “creates” the website content. Assuming it to be true that
Consumeraffairs.com
contacted the consumers to ask some unknown question, this bare allegation proves nothing as to Nemet’s claim [that]
Consumeraffairs.com
is an information content provider.
The remaining claim, of revising or redrafting the consumer complaint, fares no better. Nemet has not pled what
Consumeraffairs.com
ostensibly revised or redrafted or how such affected the post. . . .
Moreover, in view of our decision in Zeran, Nemet was required to plead facts to show [that] any alleged drafting or revision by
Consumeraffairs.com
was something more than a website operator performs as part of its traditional editorial function. It has failed to plead any such facts. . . . § 230 forbids the imposition of publisher liability on a service provider for the exercise of its “editorial and self-regulatory functions.”
We thus conclude that the Development Paragraph failed, as a matter of law, to state facts upon which it could be concluded that it was plausible that
Consumeraffairs.com
was an information content provider. Accordingly, as to the Development Paragraph, the district court did not err in granting the Rule 12(b)(6) motion to dismiss because Nemet failed to plead facts sufficient to show [that]
Consumeraffairs.com
was an information content provider and not covered by CDA immunity.
Even if the facts pled in the Development Paragraph are insufficient for Rule 12(b)(6) purposes, Nemet separately argues that as to eight of the twenty posts, the amended complaint pled other facts which show [that]
Consumeraffairs.com
is an information content provider. Thus, Nemet argues [that] the motion to dismiss should not have been granted as to these eight posts. . . . [A]s to the eight posts, Nemet pled as to each that “[b]ased upon the information provided in the post, [Nemet] could not determine which customer, if any, this post pertained to.”
. . . Nemet’s sole factual basis for the claim that
Consumeraffairs.com
is the author, and thus an information content provider not entitled to CDA immunity, is that Nemet cannot find the customer in its records based on the information in the post.
Because Nemet was unable to identify the authors of these comments based on “the date, model of car, and first name” recorded online, Nemet alleges that these comments were “fabricated” by
Consumeraffairs.com
“for the purpose of attracting other consumer complaints.” But this is pure speculation and a conclusory allegation of an element of the immunity claim. . . . Nemet has not pled that
Consumeraffairs.com
created the allegedly defamatory eight posts based on any tangible fact, but solely because it [Nemet] can’t find a similar name or vehicle of the time period in Nemet’s business records. Of course, the post could be anonymous, falsified by the consumer, or simply missed by Nemet. There is nothing but Nemet’s speculation which pleads Consumeraffairs.com’s role as an actual author in the Fabrication Paragraph.
On appeal, Nemet argues that its supporting allegations nonetheless . . . [present] adequate facts that
Consumeraffairs.com
is the author of the eight posts, but each is meritless. These allegations include (1) that Nemet has an excellent professional reputation, (2) none of the consumer complaints at issue have been reported to or acted upon by the New York City Department of Consumer Affairs, (3) Consumeraffairs.com’s sole source of income is advertising and this advertising is tied to its webpage content, and (4) some of the posts on Consumeraffairs.com’s website appeared online after their listed creation date. Nemet’s allegations in this regard do not allow us to draw any reasonable inferences that would aid the sufficiency of its amended complaint.
That Nemet may have an overall excellent professional reputation, earned in part from a paucity of complaints reported to New York City’s Department of Consumer Affairs, does not allow us to reasonably infer that the particular instances of consumer dissatisfaction alleged on Consumeraffairs.com’s website are false. Furthermore, Nemet’s allegations in regard to the source of Consumeraffairs.com’s revenue stream are irrelevant, as we have already established that Consumeraffairs.com’s development of class-action lawsuits does not render it an information content provider with respect to the allegedly defamatory content of the posts at issue. Finally, the fact that some of these comments appeared on Consumeraffairs.com’s website after their listed creation date does not reasonably suggest that they were fabricated by
Consumeraffairs.com
. Any number of reasons could cause such a delay, including Consumeraffairs.com’s review for inappropriate content. . . .
Viewed in their best light, Nemet’s well-pled allegations allow us to infer no more than “the mere possibility” that
Consumeraffairs.com
was responsible for the creation or development of the allegedly defamatory content at issue. Nemet has thus failed to nudge its claims that
Consumeraffairs.com
is an information content provider for any of the twenty posts across the line from the “conceivable to plausible.” As a result,
Consumeraffairs.com
is entitled to § 230 immunity and the district court did not err by granting the motion to dismiss.
*
*
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. United States Court of Appeals for the Fourth Circuit 591 F.3d 250 (2009).
Judgment Affirmed.
Critical Thinking About The Law
In every legal case, there are at least two separate conclusions. The plaintiff believes that the court should rule one way, whereas the defendant thinks that the court should rule another. In Case 11-2, plaintiff Nemet provided one conclusion, but the court supported a conclusion more similar to Consumeraffairs.com’s conclusion. The court’s reasoning provides the answer for why the court reached its particular conclusion. The following questions address the court’s reasoning.
1. Identify the court’s conclusion in Case 11-2.
Clue: Reread the final paragraph of the court’s decision.
2. What are the reasons the court provides to support this conclusion?
Clue: Look at the court’s application of the Communications Decency Act.
3. To demonstrate the significance of primary ethical norms in court decisions such as this one, identify the ethical norm that would have reversed this decision.
Clue: This norm is related to prioritizing the plaintiff’s rights over those of the defendant in cases such as Case 11-2.
Defenses to Defamation
There are two primary types of defenses to a defamation action: truth and privilege. It is often stated that truth is an absolute defense. In other words, if I make an honest statement that harms the reputation of the defendant, there has been no defamation. For the ordinary plaintiff, however, a defendant cannot use the excuse that he or she thought the statement was true. Only when a possible privilege exists is the defendant’s incorrect belief about the truth of the statement important.
Privilege is the second type of defense in a defamation action. Most privileges arise under certain circumstances in which our society has decided that encouraging people to speak is more important than protecting people’s reputations.
There are two types of privilege: (1) absolute and (2) qualified or conditional. When an
absolute privilege
exists, one can make any statement, true or false, and cannot be sued for defamation. There are very few situations in which such a privilege exists. The Speech and Debate Clause of the U.S. Constitution gives an absolute privilege to individuals speaking on the House and Senate floors during congressional debate. This privilege encourages the most robust debate possible over potential legislation. Another absolute privilege arises in the courtroom during a trial.
absolute privilege
The right to make any statement, true or false, about someone and not be held liable for defamation.
Applying the Law to the Facts . . .
Consider a situation where Jerry and Melissa are witnesses in a trial, and during the trial, Jerry makes false statements about Melissa that cause harm to her reputation. After the trial, Melissa sues Jerry for defamation. Which defense to defamation would Jerry use to protect his speech? Would this defense work for him in light of the circumstances under which he made his statements? What if he had made the comments to Melissa in the hallway, and an unseen reporter had overheard them and published them in the newspaper without checking their accuracy? Is anyone liable now?
The other type of privilege is a qualified or conditional privilege. A
conditional privilege
provides that one will not be held liable for defamation unless the false statement was made with malice. Malice has a special meaning in a defamation case: it means knowledge of the falsity of the statement or reckless disregard for the truth. In other words, the defendant either knew that the statement was false or could easily have discovered whether it was false.
conditional privilege
The right to make a false statement about someone and not be held liable for defamation provided the statement was made without malice.
The conditional privilege most often used is the public figure privilege. People in the public eye, such as politicians, often find themselves the victims of false rumors. When a defendant has made a false statement about a public figure—a person who has thrust herself or himself into the public eye and who generally has access to the media—the defendant will raise the public figure privilege as a defense to charges of defamation. If the defendant proves that the plaintiff is a public figure, the plaintiff will have to additionally prove that the defamation was made with malice (defined as knowledge of the falsity or reckless disregard for the truth) in order to recover for defamation.
The reason for this privilege to comment freely about public figures as long as statements are made without malice is to encourage open discussion about persons who have a significant impact on our lives. Also, because public figures generally have access to the media, they are in a position to defend themselves and, therefore, need less protection than an ordinary private citizen.
A libel or slander case brought by a public figure sometimes appears quite complex. First, the public figure plaintiff proves that the defendant made a false statement that harmed the plaintiff’s reputation. Then the defendant must prove
Exhibit 11-1 The Shifting Burden of Proof in a Defamation Case
that the plaintiff is in fact a public figure. Then the burden of proof shifts back to the plaintiff, who must prove that the statements were made with malice (
Exhibit 11-1
).
There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. The public figure for all purposes was defined in the foregoing paragraph. Movie stars, musicians, and politicians fall into that category. The public figure for a limited purpose is a private figure who achieves substantial media attention for a specific activity. That person is then considered a public figure but only for matters related to that activity. For example, the leader of an antiabortion group would be considered a public figure for matters related to abortion. Thus, if the activist brought a defamation suit against a defendant who falsely stated that the activist had undergone three abortions as a teenager, the activist would have to prove that the defendant knew the statement was false, or acted recklessly, without even trying to check the veracity of the claim. In contrast, had the defendant claimed that the activist stole money from at least three former employers, no public figure privilege would arise, and it would not be necessary for the activist to prove that the claim had been made with malice.
Some people are trying to argue that the public figure privilege should also apply in another context: when the defamatory statement is published over the Internet. The rationale for this privilege is twofold. First, remember that part of the reason for the public figure privilege is that the public figure who has been defamed has access to the media and, therefore, has the ability to defend himself or herself. Likewise, when a person is defamed over the Internet, the defamed party can respond with a few keystrokes. Thus, there is less need for the stronger legal protection we ordinarily give to the private party. A second reason is that we want to encourage free expression and the exchange of ideas on the Internet. Requiring a plaintiff to prove malice would encourage such free discussion because people would not have to worry about making errors when they speak about others.
Another use of the conditional privilege arises with respect to job recommendations. To encourage employers to give honest assessments of their former employees, an employer who makes a false statement about a former worker can be held liable only if the statement is made with malice.
Privacy Torts
Although truth may be an absolute defense to defamation, one is not necessarily allowed to reveal everything one knows about another person. The recently developed tort of invasion of privacy is used to allow a person to keep private matters confidential. Just as defamation has two forms, libel and slander, the tort of invasion of privacy is really four distinct torts: (1) public disclosure of private facts, (2) false light, (3) appropriation, and (4) invasion of privacy.
Public disclosure of private facts
occurs when the defendant makes public a fact about the plaintiff that the plaintiff is entitled to keep private. The disclosure must be unwarranted, and the plaintiff must not have waived his or her right to privacy. For example, if the defendant worked in a clinic and revealed the names of women who had obtained abortions at the clinic, the defendant would be liable for public disclosure of private facts.
public disclosure of private facts
A privacy tort that consists of unwarranted disclosure of a private fact about a person.
False light
occurs when you do not actually make a defamatory statement about someone, but by your actions you place the person in a false light. For example, a neighborhood newsletter publishes a story captioned “Gang Warfare Growing in Our Community,” and between the caption and the article is an untitled photo of four girls sitting on the hood of a car. The photo is clear enough that the girls’ identities are obvious. If these girls are not gang members, they have been placed in a false light and may sue the publisher. Often, illustrations in tabloids may lead to false-light claims.
false light
A privacy tort that consists of intentionally taking actions that would lead observers to make false assumptions about the person.
Appropriation
of a person’s name for commercial gain occurs when a defendant uses another’s name or likeness without that person’s permission for commercial gain. This tort, for example, prohibits a cereal company from putting an athlete’s picture on its cereal box without obtaining the athlete’s permission.
appropriation
A privacy tort that consists of using a person’s name or likeness for commercial gain without the person’s permission.
The final privacy tort is
invasion of privacy
, which occurs when someone invades another’s solitude, seclusion, or personal affairs when that person has the right to expect privacy. One example of invasion of privacy is wiretapping and using someone’s password to gain access to the person’s electronic mail messages. In another example, an owner of an ice skating rink who installed two-way mirrors in the women’s dressing room would have committed an invasion of privacy, because the skaters should be able to expect a certain degree of privacy in a dressing room. Of course, the degree of privacy one may reasonably expect varies greatly. For example, if one is trying on clothes in a department store fitting room where signs are posted saying that the “area is under
Technology and the Legal Environment CAN-SPAM: Putting Spam on the Stand
Spam, or unsolicited commercial email, constitutes more than one-half of all electronic mail traffic. The flooding of these unwanted messages prompted Congress to impose regulations on such messages. For instance, Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act), which took effect in January 2004. The act states, “Most of these messages are fraudulent or deceptive in one or more respects.” Consequently, Congress created three provisions for spammers. First, spammers must clearly label their messages as advertisements, avoiding misleading or untruthful subject lines that function simply to entice readers to view such messages. Second, spammers must provide a clear and convenient opt-out option in their messages, whereby recipients may reject future emails from these spammers. Third, spammers must send messages from legitimate return addresses, while also including the sender’s postal address. These three restrictions on spammers, however, do not apply in situations in which a recipient has given prior affirmative consent to receive spam messages.
Congress created this federal act to preempt most state laws against spammers while making exceptions for state laws related to deceptive information in commercial electronic mail. The Federal Trade Commission, along with other federal and state agencies and attorneys general, can bring suit against spammers. Violations of the CAN-SPAM Act could result in civil and criminal penalties, including heavy fines and possible imprisonment.
observation to deter shoplifting,” it would not be unreasonable for the store to have authorized security guards of the same sex as the dressing-room occupants observing the dressing rooms.
invasion of privacy
A privacy tort that consists of encroaching on the solitude, seclusion, or personal affairs of someone who has the right to expect privacy.
False Imprisonment
False imprisonment is the intentional restraint or confinement of a person against that person’s will and without justification. The tort protects our freedom of movement. The confinement cannot be by moral force alone. There must be either physical restraint, such as locking a door; physical force, such as holding someone down; or threats of physical force.
Most cases of false imprisonment are brought against security guards and retailers. In fact, this tort is brought so frequently against retailers who have detained a person suspected of shoplifting that it has become known as the “shopkeepers’ tort.” In most states, retailers who detain suspected shoplifters for questioning are entitled to raise “the shopkeepers’ privilege.” Under this privilege, a merchant who has reason to believe that a person has shoplifted may detain the person for questioning about the incident. The detention must be conducted in a reasonable manner, and the suspect can be held for only a reasonable time.
Even if one is successful in bringing an action for false imprisonment, damages are often not easy to prove. Obviously, a person who is physically restrained might have medical bills for treatment of physical injuries, but most cases do not involve physical harm. Usually, plaintiffs ask for a monetary award to compensate them for time lost from work, pain and suffering from the mental distress, and humiliation.
Occasionally, however, as in the 2006 case of Jackson v. Rich’s,
15
the store personnel’s behavior leaves the jury no choice but to award the plaintiff a huge verdict. Jackson was leaving the store after buying some clothes for her terminally ill son when Rich’s plainclothes detectives stopped her and told her that she had been caught shoplifting. Remembering the kidnapping and murder a few years earlier of a woman who had been abducted from the same parking lot, Jackson was terrified and offered to let the men search her bag. They said they could do that only in the store’s detention room. She refused to go with them and attempted to use her cell phone to call 911. They took her phone and said they were the police. They handcuffed her and escorted her, crying, through the store, then handcuffed her to a bar in the store’s detention center so that she could not move. She asked to call the police again, but they still refused. A manager then came in and examined her receipt and told the men that they could unhook her and let her go. He then apologized and offered her a discount on her purchase.
15
Natalie White, “False Arrest for Shoplifting Yields $1.2 Million Verdict,” Lawyer’s Weekly, May 22, 2006, p. 10.
After two hours of deliberation, the jury awarded Jackson $1.2 million in compensatory damages for emotional distress. The plaintiff had testified that as a result of the incident, she no longer can go shopping alone, wear anything tight around her wrists, or be in close quarters. She gets frightened when anyone gets too close to her.
The jury felt that the security men’s approach was overkill, when all they needed to do was ask to see what was in the bag, especially because she had offered to show it to them. According to store policy, they should not approach anyone unless they have shoplifting on tape. In Jackson’s case, before leaving the store, she had seen a shirt that she thought might match the shorts she had just bought. She took the shorts out of the bag to compare them and then put the shorts back into the bag. The security officers saw her putting the shorts back into the bag and jumped to the conclusion that she had been shoplifting.
Before arguments for punitive damages could be made in the case, the defendants settled for a confidential amount.
Intentional Infliction of Emotional Distress
This tort arises when the defendant engages in outrageous, intentional conduct that is likely to cause extreme emotional distress to the party toward whom such conduct is directed. For example, a debt collector calls a debtor and tells the debtor that he is a police officer and he is sorry to inform the debtor that his wife has just been killed in an auto accident, and her last words to the medic at the scene of the crash were, “God must be punishing me for our not paying our debts.” Such conduct would most likely be interpreted as the
intentional infliction of emotional distress
.
intentional infliction of emotional distress
Intentionally engaging in outrageous conduct that is likely to cause extreme emotional pain to the person toward whom the conduct is directed.
In most states, to recover damages for intentional infliction of emotional distress, the plaintiff must demonstrate some physical symptoms caused by his or her emotional distress. For example, in the preceding example, if the plaintiff had high blood pressure and after hearing the message had a heart attack, the heart attack would provide the necessary physical basis to prove his injury. Other physical symptoms commonly arising from emotional distress include headaches, a sudden onset of high blood pressure, hives, chills, inability to sleep, or inability to get out of bed.
Although some people argue that the requirement of physical harm puts an undue burden on the plaintiff, others fear that without the requirement of physical symptoms of harm, it would be too easy to successfully recover damages in a situation in which there is not any real harm. For example, critics point to the 1998 suit filed against Dennis Rodman of the Chicago Bulls for intentional infliction of emotional distress as an illustration of abuse of the tort. Rodman and a friend were playing craps at the Mirage Hotel in Las Vegas. While playing, Rodman allegedly rubbed the dealer’s bald head for good luck. The dealer claimed that this act caused him “embarrassment, indignity, degradation, and anger.” Because of the severe results of Rodman’s head-rubbing, the dealer sought damages in excess of $10,000.
16
16
“Across the USA: Nevada,” Lawyers Weekly. Accessed February 25, 2008. www.lawyersweekly.com.
Intentional Torts against Property
The second category of intentional torts involves damage to property.
Trespass to realty
, also called trespass to real property, occurs when a person intentionally enters the land of another or causes an object to be placed on the land of another without the landowner’s permission. Trespass to realty also occurs when one originally enters another’s land with permission, is told to leave, and yet remains on the land. It is no defense to argue that one did not know that the land belonged to another; the intent refers to intentionally being on that particular piece of land.
trespass to realty (trespass to real property)
Intentionally entering the land of another or causing an object to be placed on the land of another without the landowner’s permission.
Trespass to personalty
occurs when one intentionally interferes with another’s use and enjoyment of his or her personal property. It is usually of short duration, but the trespasser is liable for any harm caused to the property or any loss suffered by the true owner as a result of the trespasser’s having used the property.
trespass to personalty
Intentionally exercising dominion and control over another’s personal property.
Conversion
is a more extreme wrong. It occurs when the defendant deprives the owner of his or her use and enjoyment of personal property. Traditionally, the tort required the defendant’s permanent removal of the property from the owner’s possession and control, such that the item could not be recovered or restored to its original condition. Today, however, a serious deprivation, even if not permanent, may constitute conversion. The plaintiff usually recovers damages for the full value of the converted item.
conversion
Intentional permanent removal of property from the rightful owner’s possession and control.
If I take my neighbor’s car for a drive without permission, but I return it unharmed before the owner knows I have it, I have committed trespass to personalty, but the true owner suffers no damages. If I take the car and hit a tree, damaging the bumper, before I return the car, I have again committed trespass to personalty and will be liable for the cost of repairing the car. If I take the car and sell it to a salvage firm that tears the car apart and sells its parts, I have committed conversion and will be liable for replacing the car.
Intentional Torts against Economic Interests
Torts against economic interests are the torts that most commonly arise within the business context. One such tort is
disparagement
.
disparagement
Intentionally defaming a business product or service.
To win a disparagement case, a plaintiff must prove four elements. First, the defendant made a false statement of a material fact about the plaintiff’s business, product, or service. In general, the types of statements that are actionable are statements about the quality, honesty, or reputation of the business, as well as statements about the ownership of the business property. The second element is publication. Remember, publication in the context of any kind of defamation action means communication to a third party. So, if the defendant makes disparaging comments about the plaintiff’s business in a public address to a consumer group or in an advertisement, the defendant has published the statement.
Table 11-4 Elements of Disparagement
|
1. A false statement of a material fact about the plaintiff’s product or service 2. Publication 3. Damage to the reputation of the product or service 4. Economic loss |
Third, there must be harm to the reputation of the business, product, or service. Finally, there must be actual economic loss as a result of the false statements. Proving the economic loss that provides a basis for compensatory damages is not always easy. Usually, damages will be based on a decrease in profits that can be linked to the publication of the false statement. An alternative, albeit a less common way to prove damages, is to demonstrate that the plaintiff had been negotiating a contract with a third party, but the third party lost interest shortly after publication of the false statement. The profits the plaintiff would have made on the contract would be the damages.
Table 11-4
lists the elements of disparagement.
In 13 states, a closely related tort has been created: food disparagement. Dubbed “veggie libel” and “banana bills” by their critics, these laws provide ranchers and farmers a cause of action when someone spreads false information about the safety of a food product. The first major test of one of these laws came in a $6.7 million case filed by a rancher in a federal district court against talk-show host Oprah Winfrey and one of her guests. They were discussing the potential for U.S. cattle to contract mad cow disease, and, at one point, Oprah said that was it—the conversation had stopped her from ever eating a burger again. After the broadcast, which the show’s producers said tried to show both sides of the issue, the price of cattle futures fell.
The Texas law at issue provides that anyone who says that a perishable food product is unsafe, knowing the statement is false, may be required to pay damages to the producer of the product. The defendants originally asked that the case be dismissed on the ground that the law unconstitutionally interferes with free speech. The judge dismissed the food-disparagement claims on the grounds that the cattlemen did not prove that “knowingly false” statements were made and that a perishable food was not involved. The jury then decided there was no case under traditional business disparagement law either.
Another tort against economic interests is the tort of intentional interference with a contract, a complex and difficult tort to prove. To prove the tort of
intentional interference with a contract
, the plaintiff must demonstrate that:
intentional interference with a contract
Knowingly and successfully taking action for the purpose of enticing a third party to breach a valid contract with the plaintiff.
1. The plaintiff had a valid contract with a third party.
2. The defendant knew of the contract and its terms.
3. The defendant took action knowing that it was highly likely to cause the third party to breach the contract with the plaintiff.
4. The defendant undertook the action for the purpose of causing the third party to breach the contract.
5. The third party did in fact breach the contract.
6. As a result of the breach, the plaintiff was injured.
Some of the most common cases concerning intentional interference with contracts in the business setting involve employers taking employees from another firm when they know that the employees have contracts for a set period of time. Luring an employee from a successful competitor is often a delicate situation. There is no problem if the employee does not have a contract for a fixed period of time, but if the employee is indeed bound by a contract of employment for a fixed term or by a contractual agreement not to work for a competitor for a set period of time, then pursuit of the employee opens a second employer with knowledge of the contract to liability.
A third tort against economic interest is
unfair competition
. Our legal system assumes that individuals go into business for the purpose of making a profit. Competition is supposed to drive inefficient firms out of business because the more efficient firms will be able to provide less expensive goods and services. For this system to work, however, firms must be in business to make a profit. Therefore, it is unlawful for a person to go into business for the purpose of causing a loss of business to another without regard for his or her own profit.
unfair competition
Entering into business for the sole purpose of causing a loss of business to another firm.
For example, assume that Mark wants to open a painting business but his father wants him to go to college. When Mark opens his business, his father starts a competing firm and is able to underbid every job his son bids because the father is willing to lose money. He just wants to force his son out of business. The father in this example is engaging in unfair competition.
Misappropriation is another tort against economic interest that is difficult to prove.
Misappropriation
occurs when a person presents an unsolicited idea for a product, service, or even method of marketing to a business with the expectation of compensation if the idea is used by the firm and the firm subsequently uses the idea without compensating the individual. The individual may then have the basis for an action for misappropriation.
misappropriation
Use of an unsolicited idea for a product, service, or marketing method without compensating the originator of the idea.
The firm may always defend on the ground that it had already independently come up with the idea that the plaintiff proposed. The firm may also deny that the idea was even discussed. It is, therefore, extremely important that anyone offering an unsolicited idea to a firm have that idea and the offer to the firm documented.