Appropriation Lawsuits Privacy is the general right to be left alone and free from unwanted publicity. There are four well-established lawsuits for invasion of privacy: appropriation, false light, intrusion, and disclosure. This article gives examples of appropriation lawsuits. Appropriation is defined as the use of a person's name, likeness, or personality for the benefit of another. Defenses include that the matter is public or that the person who's privacy was invaded gave consent. Flake v. Greensboro News Co. In this case, the first defendant mistakenly put a photograph of the plaintiff in her bathing suit in the second defendant's advertisement. The court declared that "the unauthorized use of one's photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action." The court ruled that the plaintiff could recover nominal damages if she could not prove actual damages. Hinish v. Meier & Frank Co. In this case, the defendant used the plaintiff's name in a telegram to a governor urging the governor to veto a bill. The use of the plaintiff's name was in a matter of politics, not a commercial situation, but that did not stop the court from ruling that the defendant had wrongfully appropriated the plaintiff's name. "Selleck v. Rolling Rock" Based on changes made in advertisements for Rolling Rock beer, an invasion of privacy lawsuit may have been threatened by actor Tom Selleck, star of the television series "Magnum, P.I." Apparently knowing that a celebrity may sue a brewery advertiser for using the celebrity's voice in a radio advertisement for beer, the advertisers of Rolling Rock apparently hired Joe Garvey to narrate Rolling Rock advertisements. Interestingly, Joe Garvey's voice was very similar to Tom Selleck's voice. Again, based on changes made in the advertisements, Tom Selleck apparently reached an agreement with the advertisers of Rolling Rock that Joe Garvey would clearly identify himself in each advertisement for Rolling Rock beer. |
Wednesday, July 14, 2010
Appropriation Lawsuits
Negligence Per Se
In order for the doctrine of negligence per se to apply:
(1) the law must have been designed to prevent the kind of harm for which the plaintiff seeks to recover; and
(2) the plaintiff must be within the class of persons for whose protection the law was adopted.
In the above example, the speed limit law was designed to prevent automobile accidents, and the plaintiff is seeking to recover for injuries sustained in an automobile accident. Therefore, the law at issue was designed to prevent the kind of harm for which the plaintiff seeks to recover.
If the law at issue has nothing to do with the plaintiff's injuries, then the doctrine of negligence per se will not apply. For example, the defendant was not violating the speed limit law at the time of the accident, but his car violated an environmental emission law. The defendant's violation of that law had nothing to do with the accident, so the doctrine of negligence per se will not apply.
In the first example above, in which the defendant was violating the speed limit law at the time of the accident, the speed limit law was adopted to protect drivers. The plaintiff was a driver at the time of the accident, so he is within the class of persons for whose protection the speed limit law was adopted.If the defendant was violating the environmental emission law at the time of the accident, and the law was designed to protect the natural habitat of endangered condors, then the plaintiff is not within the class of persons for whose protection the law was adopted, and the doctrine of negligence per se will not apply.
A court may refuse to find a defendant negligent per se if the defendant had a valid excuse for violating the law. For example, if the defendant's brakes failed just before the accident and he was unable to slow down his car, then the court may refuse to find him negligent per se based upon his violation of the speed limit law.
Wednesday, July 7, 2010
Attorney Malpractice Liability to Non-Client
No Liability to Non-Client
Generally, an attorney is not liable to a non-client for legal malpractice. The basis of this rule is that an attorney cannot breach a duty to a non-client because there is no privity of contract between an attorney and a non-client.
Liability to Non-Client
In some jurisdictions under certain circumstances, the attorney may be held liable for malpractice to a non-client.
Intended Beneficiaries
An attorney may be liable to a non-client who was an intended beneficiary of the attorney's services to a client. For example, an intended beneficiary of a client's will may be entitled to bring an action against the attorney for improperly drafting the will.
Foreseeable Reliance Exception
A recognized exception to the general rule of no liability to non-clients is that an attorney may be liable if his services to a client were performed so as to influence non-clients to justifiably rely on the services rendered. For example, if an attorney issues an opinion letter regarding the legal status of his corporate client so as to influence potential lenders, the attorney may be liable to the lenders who relied on that letter if the letter was negligently drafted and caused damage to the lenders.
Fiduciary Relationship
An attorney may be liable for malpractice if his negligence causes damage to a non-client with whom he has established a fiduciary relationship. For example, an attorney for a corporation may have a fiduciary duty to the directors of the corporation. Thus, if his malpractice in relation to his services to the corporation causes damage to the directors, he may be liable.
Intentional Torts
An attorney, like other people, may be held liable for an intentional tort committed against a non-client, usually an adverse party of the attorney's client. A non-client may bring a malicious prosecution claim if the attorney misused the legal process for a purpose other than that of securing the proper adjudication of the client's claim. An attorney may be liable for abuse of process if he uses the legal process to secure a collateral benefit not directly related to the process. A non-client may bring an action for fraudulent, malicious, or intentional misrepresentations made by the attorney to the non-client (e.g., during the course of negotiating a settlement). An attorney may also be liable for intentional infliction of emotional distress. For example, the attorney may continually harass an adverse party in an attempt to influence the course of litigation.
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Defendant's Wrongful Use of Process
| It is a tort to use the civil or criminal form of process to primarily seek a result other than that for which the form of process was intended. The conduct that encompasses the abuse of process is a defendant's wrongful use of the process for an ulterior purpose and some willful act in the use of the process to accomplish that ulterior purpose. For example, if a defendant obtains a judgment against a plaintiff for a debt, and the plaintiff subsequently pays the debt, the defendant is liable for abuse of process if he takes out an execution on the judgment. Abuse of process does not involve the wrongful bringing of a suit, which is the tort of malicious prosecution. Rather, it involves the improper use of the process after the suit has properly begun. Abuse of process also does not cover situations in which a defendant has an incidental motive of spite or an ulterior purpose to bringing the action if the action is brought primarily for the purpose for which the form of process was intended. Thus, a person who prosecutes an accused based on the accused's unlawful act is not abusing the process merely because he incidentally does not like the accused. The usual case of abuse of process occurs with relation to extortion, whereby a person uses the process to put pressure upon another to compel him to pay a debt not related to the action. The defendant will be liable to the plaintiff for any harm caused by the abuse of process. Check us out at www.ballandyorke.com |
Friday, July 2, 2010
Tort Law - Procedural Law
Tort Law--Procedural Law
Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses the civil procedure for enforcing tort law. Filing a Lawsuit The general method provided by civil procedure to enforce the rights and duties provided by tort law is for persons and organizations who believe that any of their rights have been violated to "sue" the persons and organizations whom they allege have failed to do their duty as provided by tort law. To "sue" refers to the initial act required to formally enforce the law, which is to file with a court a group of documents that notify the court and the alleged violators of the alleged violation or violations of tort law. The group of documents is known as a suit, and so the whole process is known as a lawsuit. The lawsuit asks the court to declare that the filers have been harmed under tort law and that they are entitled to satisfaction -- usually money -- from the persons or organizations against whom the group of documents were filed. The court declaration is important because anyone who fails to obey the court's declaration ordering satisfaction is potentially subject to punishment by the court for their failure to obey the court's declaration. The Threat of a Lawsuit Sometimes it is not actually necessary to file a lawsuit to enforce tort law. Sometimes the threat of the successful use of civil procedure encourages and prompts persons and organizations who have failed to obey tort law to settle the substantive law matter out of court. Words Used In a Lawsuit A person or organization who has had one or more of its rights under tort law violated may be known as a victim. The victim is said to have suffered a wrong. The person or organization who has failed to obey one or more of its duties under tort law may be known as a perpetrator, tortfeasor, violator, or wrongdoer. As a general rule, a person or organization that files a lawsuit is known as a plaintiff. As a general rule, a person or organization that responds to a lawsuit is known as a defendant. A victim or alleged victim is usually known as a plaintiff or potential plaintiff. A perpetrator, tortfeasor, violator, or wrongdoer, or an alleged perpetrator, tortfeasor, violator, or wrongdoer, is usually known as a defendant or potential defendant. It is also possible for a person or organization that is sued, a defendant, to counter-sue the plaintiff or plaintiffs. For the sake of clarity, the parties to a lawsuit retain their initial designations as plaintiff or defendant, even though the result of the lawsuit may be a finding that the real victim, if any, is a defendant on the defendant's counter-suit and not a plaintiff on the plaintiff's initial suit. If you have further questions feel free to check us out at: |