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Torts - Coggle Diagram

- - - - RULE - D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury or others
        
        Foreseeable P: D owes this duty only to those persons inside the geographic zone of danger at the time of D's Negligence
        
        Resucuers owed an independent duty (per se foreseeable Ps)
        
        Nonprofessional rescuers are foreseeable P's as a matter of policy can recover against negligent party creating need
        
        Danger invites rescue
        
        Nonfeasance: failure to intervene/confer benefit on the P.
        
        Generally No duty to rescue - or aid, except when
        
        D's tortious conduct creates need to rescue
        
        At common law, if a persons opts to undertake a rescue, even if they doesn't have a duty to do so, they must act reasonable
        
        But, many states have Good Samaritan statutes that protect rescuer unless they are reckless or engage in intentional wrongdoing
        
        Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies)/
        
        Modern Minority: a bystander causes the peril, even completely innocently, has a duty to use reasonable care to attempt a rescue
        
        Duty to Control Third Parties
        
        GR: there is no duty to control the conduct of a 3rd P as to prevent harm of another
        
        EXC:
        
        When a special relationship between D and the 3rd P gives the 3rd P a right of protection or imposes a duty on D to control the 3rd P’s conduct.
        
        Providers of Alcohol
        
        2 more items...
        
        Negligent Entrustment
        
        1 more item...
        
        Duty to Protect
        
        GE: no duty to protect another person from 3rd P criminal conduct (nonfeasance)
        
        EXC:
        
        Special relationship: LL/T, business/invitee
        
        Some jurisdictions only find duty where there is a special relationship AND prior similar incidents, that make the 3rd P's criminal conduct particularly foreseeable
        
        D is Governmental Entity
        
        Whether a duty is owed depends on function
        
        Proprietary Function - (acting in private area): treated as any other D for duty analysis
        
        Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty
        
        Ministerial Function: Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident)
        
        Public Duty Doctrine: Courts find no duty when professional rescuers (police/firefighters) sail to provide an adequate response, except when:
        
        there is is a special relationship between P and the agency; or
        
        the agency has increased the danger beyond what would otherwise occur
        
        If P's injury is not personal injury or property damages, Duty issues arise
        
        Negligent infliction of Emotional Distress (NEID)
        
        D engages in neg conduct and, as a result P suffers emotional distress that has some sort of physical manifestation
        
        Zone of danger
        
        Physical manifestation
        
        Exc:
        
        D negly shares info about death of a loved one
        
        D negly mishandles a corpse
        
        Bystander Actions: P must show
        
        (1) present at the scene and witnessed the event;
        
        (2) close relative of the 3rd party/victim; AND
        
        (3) suffered severe emotional distress as a result
        
        Wrongful Conception, Birth, and Life
        
        Wrongful Conception: Birth for a healthy child after the P took steps to avoid conception, often a negly performed sterilization procedure
        
        Wrongful Birth: Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy
        
        P must claim that she would have ended the pregnancy if the physician had not negly failed to diagnose
        
        Wrongful Life: Child's claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy
        
        D is a Land Owner (LO) Landlord (LL), Utility, or Governmental Entity
        
        Plaintiff on Land
        
        Invitees:
        
        enters D's land at D's express or implied invite and for purpose relating to D's interest or activates (i.e. shoppers, patrons)
        
        D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D's land
        
        Licensees:
        
        enters D's land w/ D's express or implied permission (social guests).
        
        D must warn of known concealed dangers (not cure)
        
        Trespassers:
        
        enters D's land without express or implied consent of land possess
        
        Duty to avoid infliction of willful or wanton harm
        
        Other Duties Owed by Land Possessors
        
        Unknown Trespassers
        
        If D is engaged in activity on the land - D owes Duty of Reasonable Care to all EXCEPT unknown trespassers
        
        Invitees
        
        LO has duty to reasonably search out dangers on property
        
        Known or Frequent Trespassers
        
        trespassers must be obvious (i.e. well-worn path)
        
        LO has duty to warn or known and concealed dangerous artificial conditions
        
        Child Trespassers (Attractive Nuisance Doctrine)
        
        Heightened standard of care to artificial conditions on D's land
        
        Even though child is a trespasser the will be treated as an INVITEE if:
        
        Too young to appreciate danger;
        
        D knows, or has reason to know, of trespass;
        
        D knows of the dangerous condition;
        
        Condition is artificial; AND
        
        1 more item...
        
        the risk of danger of artificial condition outweighs utility and burden to fix it
        
        P Not on D's land, but Adjacent to it
        
        Artificial condition on land - duty of reasonable care
        
        Natural condition from land - no duty except trees in urban areas
        
        LL/T
        
        LL is not liable unless:
        
        common areas over which LL retain control;
        
        Negligent repairs;
        
        At time of lease, LL knows of concealed dangerous condition; OR
        
        LL knows T is going to hold property open to public
        
        Standard of Care: What is the measured of duty owed?
        
        Reasonably Prudent Person (RPP)
        
        Obj. standard of an RPP under same or similar circumstances
        
        Law does not account mental ability, speed of reflexes, or mental health
        
        however, it does account for
        
        2 more items...
        
        Breach: Failure to Act as a RPP - factors to analyze breach
        
        what probability of harm occurring from D's conduct
        
        what is the likely magnitude of the harm going to be?
        
        what is the burden on D to avoid the harm?
        
        Children
        
        Majority - is assessed according to what a reasonable child of the same age, experience, education, and intelligence as D would have done
        
        EXC:
        
        1 more item...
        
        Minority view
        
        3 more items...
        
        Statutory Negligence:
        
        Statutes providing civil liability supersede common-law torts
        
        Negligence per se
        
        right person protected
        
        right harm protected
        
        Still have to prove causation and damages
        
        Excused violation of statutes
        
        Professionals:
        
        Custom establishes standard of care for professionals
        
        Med Malpractice - physicians are required to possess and use the knowledge, skill and training of other physicians in good standing in the relevant geographic community
        
        2 more items...
        
        Lawyers, Architects, Accountants:
        
        If pro complies w/ custom, the pro cannot be found to have breached their duty
        
        1 more item...
        
        Note: legal malpractice:
        
        1 more item...
        
        Lack of Informed Consent:
        
        Traditional Battery
        
        1 more item...
        
        Traditional Negligence:
        
        1 more item...
        
        New-Standard - Standard of Materiality
        
        1 more item...
  - - - Examples
        
        Res Ipsa Loquitur
        
        Allows jury to infer D's breach based on nature of harm and D's relationship to it
        
        arises when P cannot precisely identify what D did that was wrong, but the situation smells of negligence
        
        Only used to show breach - still must prove duty, cause, and harm
        
        Pneeds to show
        
        sort of incident does not normally occur absent negligence
        
        D is probably responsible because D controlled instrumentality of the harm; AND
        
        P did not contribute to injury
        
        Med Mal:
        
        Generally can only claim against one D
        
        exc: Med team can be found jointly and severally liable, unless individual Ds can show they did not cause the harm
        
        No need for expert if negligent conduct is common knowledge
        
        Slip-and-Fall cases
        
        P must show that D was Neg for not discovering and repairing dangerous condition
        
        AND dangerous condition was present long enough that D should have noticed
      - Two types of Evidence to show breach of duty
        
        Circumstantial
        
        Evidence from which one can draw reasonable inferences
        
        Direct Evidence
        
        (rare) an eyewitness or recording of the accident while occurring
      - P's burden to prove each element of prima facie case (POTE)
  - - - P shows it is more likely than not, that BUT FOR D's neg, P would not have been injured
        
        Other reasons do not matter
        
        Preponderance matters as long as more than 50%, then D is liable for full extent of damages under "But-for" test
        
        Four areas this arises in
        
        Market Share Liability
        
        Generic Product
        
        1 more item...
        
        Several Liability
        
        1 more item...
        
        Alternative Liability Theory
        
        two hunter shoot buck shot toward P - P is hit - unclear which hunter hit P
        
        2 more items...
        
        Loss of Chance
        
        (usually med mal situation)
        
        1 more item...
        
        Multiple Causes - Substantial Factor Test
        
        Used when 2 Ds cause harm, but each D alone would have been enough to cause entire harm
        
        1 more item...
    - - Unforeseeable Extent of Harm
        
        Does not matter for damages
        
        EGGSHELL SKULL RULE: a principle related to damages, and not liability
        
        RULE: take a victim as you find them - unique susceptibility to greater harm does not alleviate liability
        
        Damages - Not Liability - meaning, you are liable for whatever damages your tort causes, but a common touch that is not a tort that injures an eggshell P will NOT expose D to liability
      - Unforeseeable Type of Harm
        
        Was injury suffered within the risk created by D's conduct
      - Unforeseeable Manner of Harm
        
        Superseding Cause
        
        unforeseeable, intervening cause that breaks chain of causation between initial wrongful act and ultimate injury
        
        Not all intervening events will be a supersede cause
        
        The more culpable the intervening force, the more likely it supersedes
        
        Typically criminal conduct will supersede - unless foreseeable
        
        Subsequent neg conduct is generally not so unforeseeable it cuts off liability
        
        Look for passage of time - liability must cut off at some point
      - NEED BOTH
  - - - Nominal damages not available - because damages are an element of negligence, you need more than just nominal damages
      - Punitive, not available alone, need more than just damages
    - - Requires
        
        TYPE of damage must be foreseeable
        
        must be reasonably certain (not speculative)
        
        Not avoidable
        
        Avoidable Consequences Doctrine: P must take reasonable steps after injury to not increase/exacerbate injury
      - Two types of damages:
        
        Special Damages
        
        Pecuniary medical costs, lost wags, and cost of repair
        
        Can recover past, present, and future damages; however future damages will be reduced to present value
        
        Collateral Source Rule: the fact that P has insurance to cover some or all damages does not mean that D does not have to pay up - D should not benefit from P's foresight
        
        General Damages
        
        more controversial because these damages are intangible and difficult to measure (Pain of suffering)
    - - Never recoverable just for negligent conduct - D's acts must be more culpable than negligence - like willful, malicious, or reckless (gross negligence)
  - - - Contributory Negligence (Old CL Rule)
        
        Any fault of P bars recovery
        
        Last Clear Chance (Generally Wrong Answer)
        
        only applies in context of contribution
        
        if D's negligence occurs after P's neg, so that D had the last opportunity to avoid the harm, then P is entitled to full recovery
      - Comparative Fault
        
        Pure Comparative Fault (or Comparative Neg) (DEFAUL RULE)
        
        P can recover no matter how much P is at fault
        
        Recovery amount = amount of damages minus P's % of fault
        
        J/S liability applies if there are multiple Ds, and P is at fault
        
        Here, subtract P's percentage fault and P can sue any D for the remaining damages
        
        Modified Comparative Fault
        
        P is barred from recovery IF P is more at fault or equally at fault as D
        
        Key distinction
        
        Barred for equal fault
        
        P cannot recover if 50% - only 49% and bellow
        
        Barred for more fault
        
        P can recover if 50% at fault or less
    - - Express assumption of rise: P, orally or in writing, relieves D of responsibility to be non-negligent
        
        typically waiver that accompanies athletic activities and recreational sports
        
        AR is not allowed for necessities - for example, if LL rents an apartment or a hospital provides care
        
        express assumptions have three requirements to be valid:
        
        (1) the plaintiff is aware of its terms;
        
        (2) the injury which occurred is w/in risk of which the P agreed to relieve the D; AND
        
        (3) the disclaimer is not contrary to public policy
      - Implied assumption of risk
        
        P can assume the risk impliedly when:
        
        Appreciated the specific danger that injured P; AND
        
        Voluntarily choses to subject themselves to the danger
        
        Note: assumption of risk does not apply to necessity - P must voluntarily subject themselves to the danger
        
        P knew of and appreciated nature of the risk
      - Firefighter Rule:
        
        A professional rescuer injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue
        
        Different from good Samaritans - we want to encourage good Samaritans to rescue so the law allows them to sue for negligence
      - Primary Assumption of Risk
        
        In certain contexts, there is no duty to be non-negligent - often arises in the context of sporting events
- - - - Newsworthy purpose is exempt
  - - - one who initiates, continues, or procures civil proceedings against another, is liable for (WICP) if:
        
        (1) they act w/o basis and primarily for the purpose other than that of securing he proper adjudication of the claim; and
        
        (2) except when they are ex parte, they lost
  - - - D has no duty to avoid neg infliction of pure economic loss
- - - - Domestic Pet Rule
        
        every dog gets one bite - not liable unless D is on notice of danger
      - Wild Animal Rule
        
        If D keeps a wild animal and P gets injured because it does something characteristic of
    - - an activity is abnormally dangerous when
        
        There is a high risk of serious harm to others
        
        D cannot engage in the activity without risk, and cannot eliminate the risk with care; and
        
        It is not a commonly undertaken activity in the community
  - - - Proper P
        
        Any P who is a user, consumer, or bystander physically injured by a defective product
      - Proper D
        
        Commercial suppliers at all levels - manufacturer, wholesaler, and retailer
      - Proper Context for Products Liability
        
        Generally services alone are not enough - When both a product and services are present, the goods/product must dominate
      - Defect
        
        almost all jxs impose strict where the product is in an unreasonably dangerous defective condition
        
        Manufacturing Defect
        
        Product in condition not intended by manufacturer AND defect existed when leaving manufacturer's hands
        
        Design Defect
        
        Two tests
        
        Ordinary Consumer Expectation Test - product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community
        
        Risk-Utility Balancing Test - jury determines whether the danger the design threatens (cost in human and property damage), outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger
        
        weighs the likelihood, nature and potential severity of injuries against the usefulness of the product:
        
        1 more item...
        
        Warnings
        
        P is asserting a Warning is Inadequate
        
        The test here is reasonableness = does the warning reasonably inform a reader of
        
        P is Asserting There is no Warning:
        
        a Manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm
        
        Cause-in-Fact
        
        Proximate Cause
        
        Damages
    - - Misuse
        
        use was not intended or foreseeable
        
        D may still be held liable for foreseeable misuse
      - Alteration
      - Assumption of the Risk
    - - Express warranty
      - Implied Warranty/Warranty of Merchantability
  - - - NOT A DEFENSE TO SL
    - - IS A DEFENSE TO SL
- - - - IIED
        
        Rule - D engages in an intentional or RECKLESS act amounting to extreme and outrageous conduct that causes P to severe emotional distress
        
        I or R
        
        I - D acts with desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur
        
        R - D acts in conscious disregard of a high degree of probability that emotional distress will follow
        
        Extreme and Outrageous Conduct
        
        conduct exceeds all bounds tolerated by civilized society
        
        Offensive or insulting language generally not enough, except when:
        
        D is common carrier/innkeeper;
        
        D knows of P's particular sensitivity; or
        
        D is an authority figure using racial/ethnic slurs against a subordinate
        
        Severe Emotional Distress
        
        P does not have to prove physical injury, but must be severe;
        
        meaning greater than a reasonable person would be expected to endure
        
        Must be substantial/long lasting opposed to trivial/transitory
      - Battery
        
        Rule - D causes harmful or offensive contact with P's person or something closely connected to P
        
        I - D must either
        
        desire to cuase an immediate harmful or offensive contact; or
        
        knows that such contact is substantially certain to occur
        
        Harmful or Offensive contact
        
        inflict pain or impair any function of the body
        
        (obj. standard) offensive to a reasonable person
        
        To the person or something physically closely connected thereto
        
        i.e D intentionally kicks P's cane out from under P causing him to fall to the ground
        
        P does not need to prove injury; will get compensatory damages just by showing the elements
        
        Defense
        
        Consent
      - False Imprisonment
        
        Rule: D intentionally causes P to be confined to a bounded area against P's will and P knows of the confinement OR is injured by it
        
        I D must either:
        
        Desire to confine or restrain P in a bounded area, or
        
        knows that such confinement is virtually certain to result
        
        Confinement in Bounded Area
        
        Confinement can consist of: physical barriers, threats of force, failing to release P after duty to release
        
        No duration requirement - a very brief confinement will suffice
        
        If P has actual knowledge of a reasonable means of escape - no sufficient confinement
        
        Reasonable means of escape: escape shows no threat or harm to P or Property
        
        Against P's Will - Consent is a defense
        
        P is Aware of Confinement or Injured Thereby
        
        If P is aware of confinement - P is entitled to damages the jury finds appropriate
        
        If P is unaware of confinement - can only claim damages if injured by the confinement
      - Assault
        
        I - D must:
        
        act w/ the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, OR
        
        know that such a result is substantially certain
        
        Reasonable Apprehension
        
        objective standard
        
        reasonable person in same position as P would've experienced the same apprehension
        
        If the apprehension is reasonable, it doesn't matter whether D could actually carry out the threat
        
        i.e. brandishing an unloaded gun can still be an assault
        
        NOTE: apprehension is not fear - apprehension - a state of believing the battery is imminent
        
        Imminent Battery:
        
        Battery must be able to occur almost instantly
        
        Look for words that negate intent
        
        "if it weren't a tort, I would punch you in the face"
        
        Words alone will rarely create an assault
        
        Rule - D intentionally causes P to be in reasonable apprehension of an immanent harmful or offensive contact
    - - Trespass to Land
        
        I
        
        D desired to enter the land/caused something to enter, or
        
        D knew that land entry was substantially certain to result
        
        Mistake is NOT a defense
        
        Entry
        
        D enters or causes someone/something to enter the land
        
        D enters the land lawfully but then refuses to leave when required
        
        D fails to remove/eject from P's land when under legal duty to do so
        
        P's Land
        
        Anyone is possession can bring a claim (Owner, Tenant, Adverse Possessor)
        
        Remedies:
        
        Nominal damages available
        
        D is liable for full extent of harm caused by the trespass
        
        Restitutionary remedy of ejectment: Action brought by P to have D removed from property
        
        Rule: Intentional act that causes a physical invasion of P's land and interferes w/ P's possessory interest in the land
      - Trespass to Chattels
        
        Rule - D interferes w/ P's chattel, causing damages
        
        I
        
        D intentionally performs physical act that intereferes w/ P's chattel
        
        Liable even though D did not intent to trespass
        
        Mistake is NOT a defense
        
        Interference
        
        Uses or borrows w/o authorization
        
        P's Chattel:
        
        P's personal property
        
        Actual Damages:
        
        Unlike TtL proof of actual damages is an element of the cause of action - actuall damage to the chattel is not necessary - damages include loss of value of use of chattel during dispossession
        
        Remedies:
        
        Damages - cost of repair, fair market rental value, potentially punitive damages
        
        Replevin: get back personal property of which one has been wrongfully dispossessed
        
        Note:
        
        Ds are strictly liable for any TtL or TtC done by their livestock, or done by wild animals they possess if:
        
        of a kind likely to escape, trespass, and do damage
      - Conversion
        
        Rule - intentional act by D, where D exercises dominion or control that causes the destruction of, or serious and substantial interference w/, P's chattel
        
        I
        
        Mistake is NOT a defense - D is liable even if acting in good faith
        
        Dominion and Control (BFP)
        
        Destruction or Serious and Substantial Interference
        
        means the exercise by D of dominon and control over the chattel
        
        interference with P's property interest is more significant than trespass to chattel - longer period of interference and greater use by D leads to conversion
        
        Remedies
        
        Forced sale (common): price will be fair market value at time converted
        
        Replevin: Action brought by P to get personal property
  - - - Something conscious or willed, as opposed to something purely reflexive
    - - Purpose or Knowledge + Transferred Intent
        
        P - D desires the act to cause harmful result
        
        K - D knows w/ substantial certainty that such a result will occur
        
        TI - if D acts w/ necessary intent to inflict certain intentional tort against P, but causes injury to victim, D's intent transfers to victim
        
        only int torts - battery, assault, false imprisonment, trespass to land, and trespass to chattels
    - - D act, or a force set in motion by D, causes P's Injury
    - - Varies based on the kind of tort
      - Ways to establish harm: 1) establish elements of the tort; 2) prove specific injury
  - - - D entitled to defend another from an attack by P to same extent that 3rd P would be lawfully entitled to defend
        
        BUT D is liable for mistake
    - - D can use reasonable force to defend real or personal property
      - May NEVER use deadly force to protect personal or real property
        
        But watch for fact patterns where it escalates to self-defense, then Deadly force may be permissable
      - May use reasonable force to eject a trespasser after asking him to leave
      - Recapture of Chattels:
        
        reasonable, non-deadly force may be used to get back own personal property if:
        
        the person seeking the recapture requests its return first or a request would be futile; and
        
        D is in hot pursuit
    - - Usually a defense for battery and assault
      - Express: P affirmatively communicates permission for D to act
        
        Limit: Reasonability; D's actions cannot exceed the scope of consent
      - Implied: A reasonable person interprets P's conduct as evidencing permission to act
        
        NOTE: Obj. standard from perspective of D
        
        i.e. a football player getting tackled
      - Mistaken: can negate consent when it goes to the consequences or nature of the act
    - - Arrest
        
        Police officer can arrest if reasonably believes D committed a felony
        
        Police can arrest for misdemeanor if D's action constituted a breach of the peace
        
        citz arrest: Private person acts at his/her own peril - if wrong, liable for tort
      - Shopkeeper's Privilege
        
        Not liable for false imprisonment if had a reasonable suspicion that P stole
        
        Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity
      - Discipline:
        
        parent/teacher may use reasonable force to discipline a child
    - - D is permitted to injure P's property if it is reasonably necessary to avoid a SUBSTANTIALLY GREATER harm to the public, self, or D's Property
      - Public: D is acting to protect the public at-large form severe harm
        
        D off the hook NO liability
      - Private: D commits an intentional tort to protect himself.
        
        if reasonable person would believe that action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard
        
        D is not liable for the technical tort - BUT will pay for harm D caused
    - - Rule
        
        D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack
        
        D only needs to be reasonable and respond with proportionate force
        
        Once force is over, the defense will not work. There must be an imminent existing threat
        
        Deadly force cannot be used against non-deadly threat
        
        Retreat
        
        some jurisdictions require retreat before using deadly force
        
        One never has to retreat from their own home
- - - - An action may interfere unreasonably with a public right if it interferes significantly with public health, safety, or convenience, or is proscribed by law
      - To recover damages or an injunction based on public nuisance, an individual plaintiff must have suffered harm different from that suffered by other members of the public
- - - - Subjects P to scorn, ridicule, or deters others from dealing with P causing reputational harm
        
        must be one that can be believed as truthful and reputation harming
        
        Hyperbole and opinion are not defamation
    - - where P is not named, P must allege the message is of or concerning P; AND
      - that P is identifiable by context
    - - Someone other than P read, saw, or heard the defamation
        
        P must show D either intentionally published the info; OR
        
        was negligent in publishing the info
    - - Libel
        
        Defamatory message embodied in any relative permanent form
        
        reputational harm presumed, BUT damages must be proven
      - Slander
        
        spoken defamation
        
        P must prove special damages (specific economic losses that flow from the slander)
        
        P can also receive reputational damages
        
        Slander per se
        
        any of the following:
        
        D says P - behavior or characteristics incompatible w/ proper conduct of P's business, profession, or office
        
        D says P - crime involving moral turpitude or infamous punishment
        
        D allege P has some loathsome disease
        
        Falsely imputing lack of chastity to a woman
    - - Truth
        
        P must prove falsity as part of P's prima facie case
        
        exc:
        
        P is a private, not public figure, and the matter is a private concern
      - Absolute privilege
        
        D will not be held liable for defamation - no matter how bad in the following contexts:
        
        Communications between spouses
        
        Statements made on the floor of legislature
        
        Communications between high ranking executive officials
        
        Statements made in conduct of judicial proceedings
        
        Does not apply IF: if someone repeats in a non-privileged situation
      - Qualified/Conditional Privilege
        
        D is qualifiedly immune from liability if:
        
        Comments made in communication that appears reasonably necessary to protect/advance D's legitimate interests;
        
        Comments were communicated on a matter of interest to recipient of the communication or 3rdP; OR
        
        Comments were communicated concerning a matter of public interest to one empowered to protect that interest
        
        D loses privilege if:
        
        D has bad intent, acts of of malice, or is reckless as to the statement's truth/falsity
        
        D does not believe the truth of the defamatory communication
    - - Four Questions Approach
        
        What is the status of P (public official, public figure, private figure)?
        
        What is the subject matter of the statement (public or private concerning)?
        
        What damages does P seek?
        
        What is the status of D?
      - Public Official: If defamation is related to capacity as a public official, P must prove actual malice by clear and convincing evidence
      - Public Figure: treated just like public official, same standard of clear and convincing evidence
        
        all-purpose public figures: household names, e.g. Madonna
        
        Limited public figures: people who inject themselves into a controversy
      - Private Figure: look at subject matter and determine whether it is of public or private concern - consider form, content, and context
        
        Public Concern: if subject matter of defamation is a matter of public concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence
        
        presumed punitive damages require actual malice
        
        Private Concern: P does not have to prove actual malice to get presumed or punitive damages (note - not settled; not tested)