Amy's Causes of Action

Defamation

Defamation is a defamatory statement of purported fact made by the defendant of or concerning the plaintiff, which is false, misleading, or detrimental to plaintiff’s reputation, and that is published to a third person. Here, The Daily Breeze published a statement about Amy, which appeared on page one of the local section. The Daily Breeze is the local paper and published to third persons. The language of the statement does not purport to be an opinion. Thus, if Amy can prove damage to her reputation, then she would have a supportable case of defamation.

Libel Per Se

Libel per se exists where defendant has made a defamatory publication regarding plaintiff on such areas as plaintiff’s work, her criminal background, plaintiff’s morals or her reputation for being unchaste. Here, Daily Breeze published a statement concerning Amy's criminal background, i.e., a reliable source confirmed that Amy will be charged with the murder and that she is a suspect. Thus, Amy may be able to prove libel per se.

Private v. Public Plaintiff

If plaintiff is a public person or official, they must prove actual malice in making the defamatory statement.

Here, Amy will argue she is a private plaintiff. She will argue she is merely a woman who is mourning the loss of her son and who has a normal place in society. She will claim she has not achieved pervasive fame or notoriety and persons such as actors and actresses, politicians and sports players. The Daily Breeze however, will argue Amy is a prominent women’s activist and needs to prove actual malice. The paper will also claim there was no malice as they published a retraction as soon as the final autopsy report was released. Thus, it is likely Amy will be held as public person and the paper has a good claim that there was no malice rebutting the defamation claim

Negligence

Amy, as a private citizen plaintiff, may pursue a negligence action against The Daily Breeze. Amy will have to show that The Daily Breeze had a duty of care to her as a private citizen to not publish false statements; that The Daily Breeze breached such duty; that such breach caused her damages; and that damages resulted.

Duty

A defendant owes a duty to act with due care to foreseeable plaintiffs so they are not injured by the defendant’s acts or omission. Here, the Reporter and The Daily Breeze had a duty to Amy and to the rest of the community to publish information that is not false or misleading. Thus, there was a duty.

Breach

To determine whether a defendant breached his duty of care, the court may consider: (1) the community standard, which is the reasonable person standard; (2) whether there has been a breach of a statute; or (3) the doctrine of res ipsa loquitor.

Here, the reporter for the paper discovered the insurance policy on late Benny’s life, then gained access to the unofficial coroner’s report, and subsequently spoke to an officer who was not on the case. The reporter did not verify his information as a reasonable reporter would do. Thus, the reporter for The Daily Breeze breached the duty of care when he did not check the facts behind his allegations.

Actual Cause

In determining actual causation, courts may use the “but for” test or the “substantial factor” test. The “but for” test requires a direct correlation between the defendant’s act and the plaintiff’s injury. Under the “substantial factor” test, the defendant’s action need only be a substantial cause of the plaintiff’s injury.

Here, “but for” the reporters failure to check the facts the story would not have been printed and Amy’s reputation would not have been damaged. Thus, the breach was an actual cause of Amy’s injury.

Proximate Cause

A defendant’s negligence is the proximate cause of injury if it was foreseeable the negligent act would result in the specific harm. Here, it was foreseeable that if Reporter printed an untrue story about a mother killing her own son, then there would be damage to that person’s reputation. Thus, Reporter’s actions were the proximate cause of A’s injuries.

Damages

To recover in negligence, the plaintiff must show actual harm or injury to plaintiff’s person or property. Here, it is unclear what the damages are although it is likely Amy will be able to show some damage to her reputation. Thus, there is likely to be damages and Amy would likely be able to support a case of negligence.

Daily Breeze's Defenses

Truth

Truth is a complete defense to defamation. Here, neither Daily Breeze nor the reporter verified the facts, and the official autopsy report indicated that Amy's son died of a rare heart condition and no foul play was involved. Thus, truth is not a likely defense.

Opinion

An opinion is not a statement of fact and not generally defamatory. Here, Daily Breeze will argue that the article was merely an opinion, not fact, and therefore is not actionable. Daily Breeze will argue that a reasonable person reading the article would not regard the statement as a statement of fact. However, Amy will argue the words used in the article assert a statement of fact based on the information contained in the report and based on an officer’s comment. Thus, it is unlikely Daily Breeze will be able to rely on this defense.

Agency

An employer will not be liable for an employee’s action outside the scope of the business. Here, the Breeze will argue that reporter acted independently of the Breeze by not checking the facts. However, it seems clear that reporter was acting in the course of his work for the Breeze. Moreover, the Breeze had a duty to check the facts of the matter before publishing the article, for ignorance is not a defense. Thus, it is unlikely that the Breeze will be successful with this defense.

Torts 8

Amy, a prominent women's rights activist, is a resident of Yuba City, California. She was the mother of Benny, who was 18 years old. Benny lived at home with Amy, while attending Community College. On Benny's 15th birthday, Amy took out an insurance policy on Benny in the amount of $1,000,000. Amy named herself as the insurance policy's beneficiary. Two weeks after his 18th birthday, Benny died mysteriously of a heart attack.

Reporter, who works for The Daily Breeze (Yuba City’s daily newspaper), discovered the existence of the insurance policy on Benny's life. Reporter also gained access to the coroner's unofficial, preliminary report. The report stated that Benny may have died as a result of poisoning, possibly administered through his food over a period of several months. Reporter spoke with Officer Oren, an officer with the Yuba City Police Department who did not participate in the investigation of Benny's death. Officer Oren told Reporter the following: "I would not be surprised if Amy were to become a suspect in Benny's death and charged with murder by tomorrow." Reporter did not verify this information. Reporter did not speak with either the coroner or Amy. The next day, The Daily Breeze ran the following story on page one of its local section:

PROMINENT MOM SUSPECTED IN SON'S DEATH
Benny, the son of Amy, died yesterday of a mysterious heart attack. Amy is a prominent women's rights activist and resident of Yuba City. Foul play is suspected in Benny's death and Amy is a suspect. A reliable source confirmed that Amy will be charged with Benny's murder in the very near future.

Angered by The Daily Breeze’s allegations, Amy wrote The Daily Breeze a scathing letter and requested a retraction. Amy was neither arrested nor charged with Benny's death. After an autopsy, the coroner's official report stated Benny's heart attack was caused by a rare heart condition. The Daily Breeze printed a retraction after the official autopsy report was released.

Amy would like to file suit against The Daily Breeze. She comes to you for legal representation. Discuss the cause(s) of action available to Amy along with anticipated defense(s) available to The Daily Breeze. Discuss the likely outcome of such litigation.