(3) The discussion of defamation defenses should have included abuse of the qualified privilege because the "cheats" remark was possibly beyond the scope of the privilege. D would assert it was relevant to moral character and therefore integrity in business dealings.

Torts
Spring
Bar Question

QUESTION 1

White, a Marine Corps officer, was convicted of murder in 1946 in a highly publicized trial. The only evidence against him at the trial was the testimony of two former Marines that Japanese prisoners of war had been killed while in the custody of troops commanded by White during the battle for control of Guadalcanal. In 1954, one of these witnesses who was then dying of cancer confessed that he and the second witness had lied at the trial of White in order to avoid punishment for their own misconduct.  When investigation confirmed the truuth of the confession, White received a pardon, was released from prison, and entered a religious order where he lived in seclusion under vows of silence and poverty.

Late in 1984 White developed a serious illness. He reluctantly left the order and entered a hospital for treatment.

News, a daily newspaper in the city in which the hospital is located, has prepared a feature article that fully and truthfully recounts the trial, imprisonment, and the events leading to the pardon of White. The author and editors rave relied solely on information available in public records. News has notified White that it intends to publish the article. White objects to the prospect of unwelcome publicity. White and News have begin warned by White's doctors that the emotional stress White may suffer if the story is published will impede his recovery.

1. If the story is published, on what theory or theories might White base an action for damages against News? Discuss.

2. If White seeks an injunction to prohibit publication of the proposed story, what defense or defenses should News offer, and how should the court rule on them.  Discuss.

ANSWER A TO QUESTION 1

1. White's best theory would be that the story constitutes an invasion of privacy. There are four separate causes of action that are assumed under this rubric: 1) "false light" privacy, where facts that may be true are presented in such a manner as to be misleading; 2) "true" privacy, in which a person's repose is impaired by prying eyes, such as by an eavesdropper or a person rummaging through one's private effects; 3) "right of publicity," which involves the misappropriation of a person's name or face for commercial purposes; and 4) public revelation of private facts.

There is no question of false light privacy here, as we are told that the article fully and truthfully recounts the events. There is also no question of "true" privacy here, because the News relied solely on information available in public records. White might argue that he has been the victim of commercial misappropriation in that the News is publishing the story for commercial gain, but he would lose. If it were otherwise, any story appearing in a newspaper would constitute such a cause of action. The general rule distinguishes between a story in a newspaper, for example, and an advertisement.

If White has any hope of prevailing on a privacy claim, it will be on the theory that the News has publicly revealed private facts about him. In order to succeed, he would have to show that a reasonable person of ordinary sensibilities would object to the revelation. Thus, the fact that he objects to the story and finds the prospect of the publicity unwelcome is not sufficient to make out a claim for relief.

Had the story appeared shortly after the events in question, White would have no hope at all, for under the First Amendment, "newsworthiness" is an absolute defense to a "private facts" cause of action. What makes this case difficult is the fact that three decades have passed since the occurrence of the events in question. Courts have recognized that facts that were once public may, over time, acquire the status of "private facts." Analogizing to principles developed in the law of defamation, courts have been particularly protective of those who did not voluntarily thrust themselves into the limelight. In this case; it is no doubt the case that White was an unwilling participant in the murder trial.

On the other hand, where information can be found in public records, a plaintiff would have a heavier burden of demonstrating that the story was not "newsworthy" and that the facts revealed were actually private. This is probably especially so in light of the fact that the conduct involved allegations of misfeasance by an agent of the government.

In determining whether White would succeed, it would make some difference that White has lived in seclusion as a monk, as that demonstrates that his activities are no longer of public concern.

On balance, I doubt that White could prevail. Although the story does not involve fast-breaking news, it does involve the history of World War II and is derived wholly from public sources.

White may also bring an action for intentional infliction of emotional distress. In order to make out such a claim, the plaintiff must demonstrate that the defendant acted for the purpose of causing such distress. Although a defendant is not ordinarily responsible far distress suffered by a peculiarly sensitive plaintiff. he is responsible if he knew that the plaintiff was... (copy of test unreadable here.) 

There is nothing in the fact pattern to suggest that News intends to cause emotional distress to White. Although it is acting with reason to believe that the story will cause such harm, that is not sufficient if News is acting in pursuit of its legitimate objectives through legitimate means. Again, this would come back to the question whether the story is newsworthy. if any subject of a news story could successfully bring an action for intentional infliction of emotional distress merely because the story offended, the chilling effect on the press would no doubt be significant.

Because a claim for intentional infliction requires the additional element of intent to harm, it would be even more difficult to succeed on this theory than on the privacy theory.

Plaintiff would have no cause of action for libel since the story is true and because it is unlikely that the story, taken as a whole, is defamatory in light of the fact that it shows that White was exonerated.

2. If White seeks an injunction, the News would respond that an injunction would constitute a prior restraint on the exercise of First Amendment freedoms. It would raise the objections already referred to in section t, relating to the merits, and then point out that regardless of whether it appears that plaintiff has a substantial likelihood of prevailing on the merits, an injunction should be denied, since prior restraints are permissible only on the showing of a "clear and present danger." The archetype of a clear and present danger would be publication of secret troop movements during wartime.

A corollary of the lack of clear and present danger is the fact that White has an adequate remedy at law: awaiting of publication and then suing for
damages.

Because of the strong First Amendment interests involved in cases like this, equity courts are exceedingly reluctant to grant injunctive relief, and this case is no exception. The best that White could do is to argue that he will be irreparably harmed by publication, since his health is not something that money damages can adequately protect. Although that is a reasonable argument, the court should not grant the injunction.

ANSWER B TO QUESTION 1

Action Based on Invasion Privacy:

Since the article prepared by News is a complete and accurate account of White's trial and imprisonment, White's best theory of recovery is invasion of privacy since an action can lie despite a defense of truth.

There are two types of privacy actions applicable to these facts. The first, public disclosure of private facts, makes actionable the publication of embarrassing or private facts which the reasonable individual would desire to keep private.

Here, the ordeal White suffered, the trial and imprisonment based on the perjured testimony of witnesses is the. type of incident which a reasonable person would desire to forges. Indeed, White was so traumatized by the event that he entered a religious order and-lived in seclusion, leaving only when illness precluded his continued seclusion.

White himself is shown to be sensitive to the desire to maintain the peace and anonymity he sought by entering the order.

Newsworthy Defense:

The primary hurdle which White faces in the above "true privacy" action is the defense of newsworthiness. The right of the public to know and the right of News as a media defendant to print true newsworthy information have usually been held to give way to the plaintiff's right to be left alone.

Thus, in Cox, the U.S. Supreme Court held there was no right of action by a plaintiff against a media defendant for the publication of the name of a rape victim whose identity was a matter of public record.

Similarly, White's conviction and imprisonment are matters of public record and since News plans to publish solely that information contained in public records, their reliance on Cox would be a strong argument.

Lapse of Time:

Despite the "public records" defense and the newsworthy defense in general, the courts have indicated that at some point the public's right to know is lessened as the time lapse between the event and the publication increases. Thus, the "newsworthy' defense is somewhat .lessened by time.

Given the nearly 40-year lapse between White's trial and the proposed publication as well as the 30-year lapse between the discovered perjury and the anticipated publication, News' newsworthy defense is not as strong as it would have been.

The outcome in this case may well depend on the political climate which exists as News contemplates publication. Foreign affairs, Japanese relations, and military misconduct could all be current issues which would lend strength to a newsworthy defense despite passage of time.

Note that this tort is defeated by a newsworthy defense despite plaintiff's susceptibility to harm. Thus, White's anticipated emotional distress, discussed below, will not overcome News' First Amendment claims since as most courts have held, the newsworthy defense has virtually swallowed the tort .

False Light: 

This type of privacy tort lies when technically true facts for false) place plaintiff in a false light.

There are insufficient facts here to determine whether White's action could be based on false light. Certainly News could downplay the perjured testimony and pardon and write a story the essence of which casts White in a false light. Since the facts indicate full and truthful factual accounting, however, I would conclude no false light cause of action.

Defamation: 

Truth is generally regarded an absolute defense to a defamation action. Thus, even though the passage of time has stripped White of his public figure status, a defamation recovery is highly unlikely.

Moreover, News is a media defendant and given the First Amendment freedom of the press, a plaintiff seeking recovery against News must prove at least negligence under Gertz v. Welsh and malice under N.Y.T. v. Sullivan if White retains his public figure status.

Since fault in the context of Gertz and N.Y.T. relates to truth and not to the damage of plaintiff, there should be no recovery here given the truth of the article.

Intentional infliction of Emotional Distress:

The above tort cause of action lies when a defendant engages in extreme or outrageous conduct with the intent to cause or in reckless disregard of the strong probability of causing extreme emotional distress.

When White's doctors informed Views of the anticipated distress White would suffer if the story were published, their decision to publish despite that warning. -could be construed as reckless disregard of the probable consequences.

However, it is doubtful whether their actions would be construed as extreme and outrageous by a reasonable person. Even though News knew of White's particular sensitivity and even though the First Amendment is not a defense per se to this tort, the fact of News' status as a media defendant cannot be overlooked in that if media defendants suppress news on the basis of potential emotional distress, the First Amendment is weakened. Again, the facts surrounding publication should be examined, but I conclude on these facts no cause action.

Negligent infliction of emotional distress, actionable in some states, is a more viable action since the intentional and reckless prerequisites are omitted.

Injunction

Injunction is an equitable remedy and will not be granted unless the remedy at law is inadequate. Modernly, 'inadequate" is construed as "superior" and this element is met here given the irreparable harm to reputation and emotional stability which White faces.

White must also show that the right he seeks to enforce is one traditionally protectible in equity. Although there is no "property" right per se under these facts, the general rule is that courts modernly recognize important persona! rights as well as constitutional rights as meeting the requirement.

Whether one construes White's right to privacy as being in the former or latter category, his privacy right meets this requirement.

However, the major exception to the "enforceable right" exists under these facts and that is that equity will not enjoin free speech.

The reason for the exception is two-fold. First, First Amendment rights are involved. Second, enjoining free speech deprives defendant of a jury trial.

The courts are particularly reluctant to enjoin speech when the content of the subject matter is true as in this case. Prior restraint is highly disfavored and the courts would rather punish the defendant after the wrongful publication rather than risk suppressing free speech at the outset.

I would conclude that given the truth of this publication, and its arguably newsworthy value, injunction should be denied.

Since newsworthiness will defeat the privacy action unless undue passage of time, the question should be one for the jury.

Question One (Time: 1 1/2 hours)

In 1987, the State of New Tortshire was invaded by a microscopic organism that threatened to destroy the State's billion dollar wine business. The tiny organisms ("bytes") attack the roots of grape vines. Until 1985, the only chemicals known to control the bytes had been found to cause cancer. However, in 1985, Tru-Chem Inc. began marketing a new chemical powder called ByteAway. ByteAway had been approved by state and federal authorites because it was effective against bytes and, after extensive tests, demonstated no cancer-causing properties. ByteAway is sold in cardboard boxes (small boxes for garden use and larger ones for use in larger vineyards).

ByteAway is sprinkled around the base of the grape vine. When mixed with water, the powder produces gas fumes that protect the roots of the vine, not by killing the bytes, but by interfering with their reproductive systems. Because bytes have a very short life cycle, when they can no longer reproduce, the vines are restored to health. TruChem was aware that the gaseous fumes could cause nausea, dizziness, or shortness of breath in humans and placed adequate warnings to that effect on each box.

In 1987, Harry Hauler, an independent trucker, was hauling a load of Tru-Chem to the vineyards in northern New Tortshire in a bad rainstorm. He was driving with all due care, but had to swerve to avoid an unforseeable obstacle in the road. Although the truck had been reasonably packed, a number of boxes of the chemical fell off the truck. Some landed in puddles; others became rainsoaked. Driver blockaded the road so that he could begin to pick up the boxes, but fumes began to make him weak and dizzy.

Just then, Al, an impatient driver, came along. Enraged by the delay caused by the spill, he jumped from his car. Harry lurched toward A1 waving a shovel and shouting. "Get outta here!" Thinking that Harry was drunk and coming at him, A1 punched Harry and knocked him unconscious. Al checked to make sure that Harry was not seriously hurt and then drove off. Because the Tru-Chem gasses have no odor, and because he was not there long enough to be affected by the fumes himself, A1 had no reason to know that the chemical was what was affecting Harry.

Harry lay unconscious amongst the ByteAway boxes for some time before Sally Samaritan stopped to help him, gave him emergency care, and transported him to a hospital.

In 1988, Harry married Sally. They soon discovered that he was sterile. At about the same time, other Tru-Chem employees were tested. More than forty percent of the male employees who had handled HyteAway regularly were found to be sterile.

In order to get the trucking job, Harry had to sign an agreement waiving his rights to sue TruChem for the negligence of any of its employees or agents should he be injured while transporting TruChem products.

What claims might Harry have against Tru-Chem or A1? What is the likelihood of success for each of the claims? Explain. Do not discuss warranty or misrepresentation

Assume:

1. No statute of limitations problems exist.

2. No federal or state statutes apply.

Final Examination
Torts 
Professor John M. Adler 

Dreemo Inc. produces a popular sleeping medication called Dreemon. Dreemo has been marketing Dreemon for five years. The prescription medication was approved by the Food and Drug Administration after the results of lengthy studies by Dreemo were submitted for approval. Dreemon is extremely popular because it is shorter-acting than other sleeping medications. It has no "hangover" effect commonly found in most other sleeping medications and is therefore extremely useful for people who need to be alert the morning after use. Evidence will show that Dreemo did everything reasonably possible to test the safety of the product before marketing it.

However, in early 1991, two individuals arrested in separate incidents for bizarre and violent behavior attributed their conduct to Dreemon. Their stories were reported in the press. Investigation revealed that both suffered from a rare neurological disorder affecting only 1 in 100,000 individuals. In each case, the affected individual had been taking the standard .25mg dose of Dreemon each day for a month or longer.  The medication received additional publicity at that time when regulators in several countries decided to ban Dreemon, based upon reports of a variety of sleep disturbances and other psychological side effects of the medication. Dreemo continued to market Dreemon in the United States, maintaining that the medication had no greater side effects than other less effective sleep aids and dismissing suggestions to the contrary as "anecdotal". In March, 1991, however, Dreemo began marketing Dreemon only in .lOmg amounts in sealed plastic packets that contain only 20 tablets. Dreemo informed physicians of the incidents reported above and of the decisions of regulators in other countries and recommended that they monitor any patient who needed to take the medication for periods longer than twenty days.

In 1990, Paul and Paula Paychens retired and moved to Beachtown, New Hasteshire. Before the move, Paula's physician prescribed a six week supply of Dreemon to help her make the transition. The move went smoothly, however, and she had no need for the medication. In October, 1991, Paul, who was 75 years old and not in good health, began to take Paula's unused Dreemon to induce sleep. After four or five weeks, Paula urged him to stop using the pills because she vaguely recalled reading about reported problems with the medication and because Paul was unusually forgetful and anxious and.had begun to walk in his sleep.

One night after Paul had taken Dreemon and he and Paula had gone to sleep, Paula was awakened by a crash. Her first thought was that Paul was downstairs watching a western on T.V., but she leaped from bed to find that he had fallen over the balcony rail outside their bedroom to the floor of the living room below. The fall was fatal. Paula was so depressed and angry that she stopped speaking to anyone outside hems immediate family.

Paula's grown son, Pete, began to read everything he could find about Dreemon. Convinced of the dangerousness of the product, in November he attended the annual shareholder's meeting of Dreemo, Inc. in New Hasteshire. Although he was not a shareholder, he pushed his way into the large board room where Dreemo's new Chief Executive Officer, Steven Sleeper, was meeting with the Dreemo Board of Directors prior to being introduced for the first time to the shareholders at the general meeting. Pete shouted toward the conference table where Sleeper and the Board of Directors were seated, "You are putting out a product that has resulted in the death of my father! Not only that, but you've been hiding the truth about Dreemon for years and you know it!"

Several staffers and security guards escorted Pete out of the room, but he managed to shake his fist and shout, "You're dead! I'm going to find you! You'll see how it feels!" Outside the board room, a young tabloid reporter snapped a photo of Pete being removed, pressed one of the harried security guards for an account of what had happened and called the story in.

The tabloid ("The Rattler") printed the story within hours. It carried a full-page front page photo of Pete in the grip of the security guards, yelling. The photo was accompanied by a large headline, "'You murdered my dad!' charges angry son." In a box to the side of the photo are the words, "Dreemo CEO charged with coverup in drugrelated death! ! " The story on the inside pages of the Rattler accurately reported the incident in the board room.

After several weeks of investigation, Pete was able to find the Sleeper's quiet suburban home. He watched the family's activities for several days from a parked car. He discovered the name of the Sleeper's only child by going through the family's trash can before the trash was collected at curbside by the town's sanitation department. Then Pete waited one afternoon for Mrs. Sleeper and her 7 year-old son, Sandy, to arrive home from school. As they were unloading groceries from the car parked in the driveway, Pete yelled at them, " Hey Sandy, this car was bought with my father's blood! Before I'm through, everyone will know your dad makes Dreemon." Then, with several neighbors peering out at the scene from behind closed curtains, Pete poured red paint on the Sleeper's car. The paint washed off in a rainstorm several hours later.

Sandy was shaken by the incident and has had difficulty sleeping in the months since.

Prior to being hired by Dreemo, Sleeper had worked in the hospital supply industry for years. Known as an effective but quiet leader, he had been one of the executives to accompany the President on his trip to Japan, but Sleeper's name was rarely mentioned because auto industry executives dominated the press coverage. Since November, 1991, Dreemon sales have continued to skyrocket and Sleeper already has been rewarded with several hefty bonuses.

1. Paula asks your firm to represent her in a lawsuit against Dreemo, Inc. on a contingency fee basis. You are asked to analyze Paula's potential tort claims in advising whether to take the case. (45 minutes)

2. What tort claims can be made by Steven or his family against Pete or the Rattler? What chances of success? Why? (75 minutes).

Hypo

Billy Porter was seventeen. He had been close to his parents until adolescence, when he began using drugs and alcohol and ran away from home. A private detective, hired by Bills distraught parents to find the boy, tracked Billy to a rural farm that was rumored to be a center for a paramilitary group called "Bare Arms Militia".

The Porters asked the detective to get evidence that Billy was, in fact, living with the Bare Arms group. The detective was able, with a hidden camera, to get photos of Billy in combat fatigues marching in a field with the group. Subsequently, posing as a militia recruit, the detective was able to surreptitiously tape a conversation between Bill; and his "Commander" within the barn "headquarters". On the tape, the Commander denied Billy's request for a "leave" to visit his parents. Standing inches from Billy's face, the Commander taunted him, "you swiveling little wimp! We're gonna straighten you out--B>'1y, like you've never been straightened out before!" The smoke from the Commander's cigar made Billy begin to retch.

The Commander then called one of his body guards. `escort this pup to his quarters." The bodyguard took Billy by his shirt sleeve out of the room.

Based on the detective's photos and tape, Billy's parents were able, after some difficult negotiations, to have Billy returned to them.  Although he is glad to be home, has no intention of running away again, is off of drugs and alcohol and doing better in school, he still lives in fear that Bare Arms will seek him out and kidnap him.

Billy's parents have not forgiven Bare Arms and come to you to see what, if any, legal action you would advise. Analyze the likelihood of success of a suit for damages (on behalf of themselves and/or Billy). Analyze any counterclaim Bare Arms might file in response. (Consider intentional torts only.)