Sample Graded Essay

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Torts 8July 09, 2005, 11:43 PMN/A****
IRAC Score Summary
Overall Notes

Not a passing answer. Better organization is needed. Use your outline to create a roadmap for your analysis. Need clear conclusions for each issue discussed. Use tag words -- "here" to introduce analysis/facts and "thus" to identify your conclusion. Always discuss truth and opinion in libel/defamation essays. Use facts, but avoid spending time recopying long quotes. Summarize or use key words instead.

Exam Scorecard
Amy's Causes of Action
Grader Comments: No clear conclusion.
Libel Per Se
Grader Comments: Not addressed.
Private V. Public Plaintiff
Grader Comments: Good use of facts.
Grader Comments: You recognized there might be other tort liability, but didn't hit the right theory/issue.
Daily Breeze's Defenses
Grader Comments: Some credit given for discussion, though not clearly set out as a defense.
Grader Comments: Suggested by the facts.
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Vicarious Liability

Through the doctrine of respondeat superior, an employer may be vicariously liable for the torts of its employees that are conducted within the scope of the employment. The story about Amy at issue was written by Reporter who works for DB. It was presumably written within the scope of Reporter’s employment and so any liability that may attach to Reporter based on its contents will also attach to DB by respondeat superior and vicarious liability.

DB may assert in defense that Reporter was acting as an independent contractor and therefore, it should not be held liable for Reporter’s actions. However, even if this were the case, DB may still be liable for Reporter’s story because DB published it.


A person may be liable under a theory of defamation for the publication of defamatory statements of or concerning the plaintiff. Defamation that is in writing is libel. When the defamation involves a public figure and matter of public concern, in order to prevail, the plaintiff must show that the statements were false and that the defendant acted with malice.

Defamatory Statements – Defamatory statements are those that tend to reflect negatively on the reputation of a person and which would be objectionable by a reasonable person. In this case the story indicated that Amy was a suspect and was to be criminally charged in the murder of her own son. Being called a murderer would be highly objectionable by a reasonable person and if people were to believe the story, it would certainly cause damage to Amy’s reputation.

Of or Concerning the Plaintiff – To satisfy this element, the plaintiff needs to show that a person who reads the defamatory statement would know that it is the plaintiff to whom the defamatory statements are referring. Here, the story identified Amy by name and so this element is satisfied.

Public Figure / Matter of Public Concern - Because Amy is a prominent women's rights activist it can be presumed that she is a public figure. In addition, the murder of a prominent citizen's 18 year old son would be a matter of public concern. Thus, Amy must show the additional elements of falsity and malice in order to recover from DB.

(1) “Foul play is suspected in Benny’s death and Amy is a suspect.” This statement may have been true but it is clear from the facts that at the time that DB published this, they did not know it to be true. Reporter was making the assumption that foul play was suspected because of what she read in an unofficial preliminary coroner’s report. In addition, Reporter presumed that Amy was a suspect because of what she was told by Officer Oren. However, Officer Oren did not say Amy was a suspect, what he said was that he would not be surprised if she were to become a suspect. His statement actually indicates that at the time he made the statement to Reporter, Amy was not yet a suspect in her son’s death.

(2) “A reliable source confirmed that Amy will be charged with Benny’s murder in the very near future.” There is a question of fact here as to whether or not Officer Oren, as a non-participant in the investigation, could be considered a reliable source. A jury on this question could go either way.

In addition to what the story said on its face, the story implied that Amy may have been responsible for the death of her son. This was proven to be false. The official autopsy report indicated that her son died of a rare heart condition and no foul play was involved. In addition, Amy was neither arrested nor charged at any time with her son’s death.

Malice – Assuming that there is a finding of falsity as discussed above, Amy must also prove that Reporter and/or DB acted with malice. This means she must show that they printed the story either knowing that it contained false statements or with reckless disregard to its truth or falsity. Amy will aruge that because the Reporter did not verify the information she received from Officer Oren, nor did she speak with either the coroner or Amy, that she acted with reckless disregard for the truth of the story.

DB will attempt to assert the defense of 1st Amendment freedom of the press. However, the 1st Amendment does not protect defamatory statements and under the facts above, Amy should be successful in her cause of action against DB under a theory of defamation. In addition, DB will try and assert that they are not liable because they retracted the story, however, retraction does not take away their liability.

Intentional Infliction of Emotional Distress
A plaintiff may recover for intentional infliction of emotional distress if the defendant intended or acted with extreme outrageousness to cause emotional distress and the plaintiff suffered emotional distress. Here there are no facts to indicate that Reporter's conduct was so outrageous as to transcend all bounds of human decency. Thus, Amy will probably not recover under this theory.
She also would not recover for negligent infliction of emotional distress because she that theory of liability requires that she suffer physical harm and there are no facts indicating that any such harm was suffered.

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Question: Torts 8
Topic: Torts

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:

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.
Amy's Causes Of Action
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
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.
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.
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.
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.
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Daily Breeze's Defenses
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.
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.
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.
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