Deck 9: Torts

Question 1

Christensen Shipyards built a 155-foot yacht for Tiger Woods at its Vancouver, Washington, facilities. It used Tiger's name and photographs relating to the building of the yacht in promotional materials for the shipyard without seeking his permission. Was this a right of publicity tort because Tiger could assert that his name and photos were used to attract attention to the shipyard to obtain commercial advantage? Did the shipyard have a First Amendment right to present the truthful facts regarding their building of the yacht and the owner's identity as promotional materials? Does the fact that the yacht was named Privacy have an impact on this case? Would it make a difference as to the outcome of this case if the contract for building the yacht had a clause prohibiting the use of Tiger's name or photo without his permission?

Answer 1

Facts of the case:
In this case a celebrity contracted a ship building company to construct a yacht. The contract for the ship included privacy agreements stating that the celebrity would not be disclosed as a buyer. However, the celebrity's image and yacht purchase was leaked by the company.
Opinion:
A right of publicity tort involves using a celebrity's likeness for commercial purposes without consent. The celebrity has a case as he grants use of his likeness to endorse other luxury items.
First Amendment grants broad right and protection to free speech. However, commercial speech such as using the celebrities to promote their products would not guarantee them protection, especially if there is a non-disclosure agreement. On the contrary, if a newspaper independently researched and found out this matter they would be granted First Amendment protection.
The fact that the yacht was named Privacy while making this case ironic, shouldn't have any impact on the case, in fact, he can name it Publicity and it will not matter.
The contract clause improves the celebrity's argument for breach of privacy. If there are other terms in the clause it may guarantee more protection to the celebrity as different states have different standards in cases of use of celebrity likenesses. Even if there was no clause the celebrity can still sue for right of publicity.

Question 2

ESPN held its Action Sports and Music Awards ceremony in April, at which celebrities in the fields of extreme sports and popular music such as rap and heavy metal converged. Well-known musicians Ben Harper and James Hetfield were there, as were popular rappers Busta Rhymes and LL Cool J. Famed motorcycle stuntman Evel Knievel, who is commonly thought of as the "father of extreme sports," and his wife Krystal were photographed. The photograph depicted Evel, who was wearing a motorcycle jacket and rose-tinted sunglasses, with his right arm around Krystal and his left arm around another young woman. ESPN published the photograph on its "extreme sports" Web site with a caption that read "Evel Knievel proves that you're never too old to be a pimp." The Knievels brought suit against ESPN, contending that the photograph and caption were defamatory because they accused Evel of soliciting prostitution and implied that Krystal was a prostitute. ESPN contends that the caption was a figurative and slang usage and was not defamatory as a matter of law. Decide. [Knievel v ESPN, 393 F3d 1068 (9th Cir)]

Answer 2

Refer to the case Knievel v ESPN (393 F3d 1068)
During a music awards ceremony, ESPN photographers shot a picture of Mr. K with his wife and another young woman. A caption of that photo on ESPN materials read "Mr. K proves that you're never too old to be a pimp." Mr. K sued for defamation on grounds of their use of word pimp, claiming it suggests to readers he was a solicitor of prostitutes. Trial court granted summary judgment in favor of ESPN and Mr. K appealed.
The appeals court affirmed. In this case, the argument surrounds the use of the word "pimp". Pimp may be defined as solicitor of prostitutes, or manager of prostitutes. However, many in the younger generation use pimp synonymously with someone who is cool. The court looked at the context in which the word pimp was used, it found that the photos are directed at younger generation and placed in articles relating to the award ceremony. Therefore, the reasonable person may conclude pimp means cool.

Question 3

While snowboarding down a slope at Mammoth Mountain Ski Area (Mammoth), 17-year-old David Graham was engaged in a snowball fight with his 14-year-old brother. As he was "preparing to throw a snowball" at his brother, David slammed into Liam Madigan, who was working as a ski school instructor for Mammoth, and injured him. Madigan sued Graham for damages for reckless and dangerous behavior. The defense contended that the claim was barred under the doctrine of assumption of the risk, applicable in the state, arising from the risk inherent in the sport that allows for vigorous participation and frees a participant from a legal duty to act with due care. Decide. [Mammoth Mountain Ski Area v Graham, 38 Cal Rptr 3d 422 (Cal App)]

Answer 3

Tort are actions which are wrong as per the private duty of an individual. When an individual causes direct harm to an identifiable person, he is said to have committed tort. They can be categorized as intentional, negligence and strict liability torts.
The actions which are not intentional but has caused harmed due to careless behavior comes under tort of negligence.
Case summary:
A ski instructor Mr. M employed by company M was hit by Mr. G , a minor, as Mr. G snowboarding while preparing to throw a snowball at his brother. Mr. M suffered injury as a result of collision and unable to perform his work was given worker's compensation by Mammoth. Mammoth sued Mr. G and his parents for recovery of worker's compensation owed to Mr. M.
To prove that tort of negligence has been committed the plaintiff has to prove following four elements negligence:
• Exercising reasonable care : It is the duty of person to ensure on his part that his actions do not harm another person. He must perform job in reasonable professional manner.
• Breach of duty : The duty is breached when it is established that person did not perform his duty as reasonably expected from him.
• Causation : It must be established that harm caused was possible or foreseeable due to negligence.
• Damage : The actual losses monetary or physical must be established.
One of the defense against the negligence is "Assumption of risk".
Assumption of risk : There are certain risks which are inherent to an action and by involving in such action the participant voluntarily assumes the risk and thus cannot sue if any harm is caused by negligence.
Under the primary assumption of risk, the snowboarding is an inherently dangerous sport which involve risk of injuries. The snowboarder assumes that there are various conditions which can cause him harm such as collision with obstacles and other snowboarders. Thus, it does not require defendant to act in due care to perform his duty of avoiding any harm.
It must be decided whether that harm to M arise from this "inherent risk" of sport.
Although, the risk is inherent to snowboarding, the fact is that the defendant was throwing snowball while snowboarding. It is not in fundamental nature of snowboarding to throw snowballs while coming downhill. The G was fully aware that it was not a normal practice in this sport to throw snowballs while snowboarding at the same time. This causes snowboarder to concentrate more on throwing rather than snowboarding. He was not looking ahead as a result.
Therefore, the action of throwing of snowball was out of range of ordinary activity of snowboarding. The assumption of risk is only valid for the inherent risk, and not the risk which is generated due to negligence. By involving in other activity, the G altered the fundamental nature of snowboarding thus acted recklessly and carelessly. He made a conscious choice of his conduct being aware of the consequences.
Therefore, the plaintiff M has right to recover damages from the defendant G.

Question 4

Following a visit to her hometown of Coalinga, Cynthia wrote "An Ode to Coalinga"(Ode) and posted it in her online journal on MySpace.com. Her last name did not appear online. Her page included her picture. The Ode opens with "The older I get, the more I realize how much I despise Coalinga" and then proceeds to make a number of extremely negative comments about Coalinga and its inhabitants. Six days later, Cynthia removed the Ode from her journal. At the time, Cynthia was a student at UC Berkeley, and her parents and sister were living in Coalinga. The Coalinga High School principal, Roger Campbell, submitted the Ode to the local newspaper, the Coalinga Record, and it was published in the Letters to the Editor section, using Cynthia's full name. The community reacted violently to the Ode, forcing the family to close its business and move. Cynthia and her family sued Campbell and the newpaper on the right-of-privacy theory of public disclosure of private facts. What are the essential elements of this theory? Were Cynthia and her family's rights of privacy violated? [Moreno v Hanford Sentinel, Inc., 91 Cal Rptr 3d 858 (Cal App 2009)]

Question 5

JoKatherine Page and her 14-year-old son Jason were robbed at their bank's ATM at 9:30 P.M. one evening by a group of four thugs. The thieves took $300, struck Mrs. Page in the face with a gun, and ran. Mrs. Page and her son filed suit against the bank for its failure to provide adequate security. Should the bank be held liable? [Page v American National Bank Trust Co., 850 SW2d 133 (Tenn)]

Question 6

A Barberton Glass Co. truck was transporting large sheets of glass down the highway. Elliot Schultz was driving his automobile some distance behind the truck. Because of the negligent way that the sheets of glass were fastened in the truck, a large sheet fell off the truck, shattered on hitting the highway, and then bounced up and broke the windshield of Shultz's car. He was not injured but suffered great emotional shock. He sued Barberton to recover damages for this shock. Barberton denied liability on the ground that Schultz had not sustained any physical injury at the time or as the result of the shock. Should he be able to recover? [Schultz v Barberton Glass Co., 447 NE2d 109 (Ohio)]

Question 7

Mallinckrodt produces nuclear and radioactive medical pharmaceuticals and supplies. Maryland Heights Leasing, an adjoining business owner, claimed that low-level radiation emissions from Mallinckrodt damaged its property and caused a loss in earnings. What remedy should Maryland Heights have? What torts are involved here? [Maryland Heights Leasing, Inc. v Mallinckrodt, Inc., 706 SW2d 218 (Mo App)]

Question 8

An owner abandoned his van in an alley in Chicago. In spite of repeated complaints to the police, the van was allowed to remain in the alley. After several months, it was stripped of most of the parts that could be removed. Jamin Ortiz, age 11, was walking down the alley when the van's gas tank exploded. The flames from the explosion set fire to Jamin's clothing, and he was severely burned. Jamin and his family brought suit brought against the city of Chicago to recover damages for his injuries. Could the city be held responsible for injuries caused by property owned by someone else? Why or why not? [Ortiz v Chicago, 398 NE2d 1007 (Ill App)]

Question 9

Carrigan, a district manager of Simples Time Recorder Co., was investigating complaints of He called at the home of Hooks, the secretary of that office, who expressed the opinion that part of the trouble was caused by the theft of parts and equipment by McCall, another employee. McCall was later discharged and sued Hooks for slander. Was she liable? [Hooks v McCall, 272 So 2d 925 (Miss)]

Question 10

Defendant no. 1 parked his truck in the street near the bottom of a ditch on a dark, foggy night. Iron pipes carried in the truck projected nine feet beyond the truck in back. Neither the truck nor the pipes carried any warning light or flag, in violation of both a city ordinance and a state statute. Defendant no. 2 was a taxicab owner whose taxicab was negligently driven at an excessive speed. Defendant no. 2 ran into the pipes, thereby killing the passenger in the taxicab. The plaintiff brought an action for the passenger's death against both defendants. Defendant no. 1 claimed he was not liable because it was Defendant no. 2's negligence that had caused the harm. Was this defense valid? [Bumbardner v Allison, 78 SE2d 752 (NC)]

Question 11

Carl Kindrich's father, a member of the Long Beach Yacht Club before he died, expressed a wish to be "buried at sea." The Yacht Club permitted the Kindrich family the use of one of its boats, without charge, for the ceremony, and Mr. Fuller -a good friend of Carl's father-piloted the boat. Portable stairs on the dock assisted the attendees in boarding. Upon returning, Fuller asked for help to tie up the boat. The steps were not there, and Carl broke his leg while disembarking to help tie up the boat. Carl sued the Yacht Club for negligence in failing to have someone on the dock to ensure that the portable steps were available. The Yacht Club contended that it was not liable because Carl made the conscious decision to jump from the moving vessel to the dock, a primary assumption of risk in the sport of boating. The plaintiff contended that he was not involved in the sport of boating, and at most his actions constituted minimal comparative negligence, the type which a jury could weigh in conjunction with the defendant's negligence in assessing damages. Decide. [Kindrich v Long Beach Yacht Club, 84 Cal Rptr 3d 824 (Cal App 2008).]

Question 12

Hegyes was driving her car when it was negligently struck by a Unjian Enterprises truck. She was injured, and an implant was placed in her body to counteract the injuries. She sued Unjian, and the case was settled. Two years later Hegyes became pregnant. The growing fetus pressed against the implant, making it necessary for her doctor to deliver the child 51 days prematurely by Cesarean section. Because of its premature birth, the child had a breathing handicap. Suit was brought against Unjian Enterprises for the harm sustained by the child. Was the defendant liable? [Hegyes v Unjian Enterprises, Inc., 286 Cal Rptr 85 (Cal App)]

Question 13

Kendra Knight took part in a friendly game of touch football. She had played before and was familiar with football. Michael Jewett was on her team. In the course of play, Michael bumped into Kendra and knocked her to the ground. He stepped on her hand, causing injury to a little finger that later required its amputation. She sued Michael for damages. He defended on the ground that she had assumed the risk. Kendra claimed that assumption of risk could not be raised as a defense because the state legislature had adopted the standard of comparative negligence. What happens if contributory negligence applies? What happens if the defense of comparative negligence applies?

Question 14

A passenger on a cruise ship was injured by a rope thrown while the ship was docking. The passenger was sitting on a lounge chair on the third deck when she was struck by the weighted end of a rope thrown by an employee of Port Everglades, where the boat was docking. These ropes, or heaving lines, were being thrown from the dock to the second deck, and the passenger was injured by a line that was thrown too high.
The trial court granted the cruise line's motion for directed verdict on the ground there was no evidence that the cruise line knew or should have known of the danger. The cruise line contended that it had no notice that this "freak accident" could occur. What is the duty of a cruise ship line to its passengers? Is there liability here? Does it matter that an employee of the port city, not the cruise lines, caused the injury? Should the passenger be able to recover? Why or why not? [Kalendareva v Discovery Cruise Line Partnership, 798 So 2d 804 (Fla App)]

Question 15

Blaylock was a voluntary psychiatric outpatient treated by Dr. Burglass, who became aware that Blaylock was violence prone. Blaylock told Dr. Burglass that he intended to do serious harm to Wayne Boynton, Jr., and shortly thereafter he killed Wayne. Wayne's parents then sued Dr. Burglass on grounds that he was liable for the death of their son because he failed to give warning or to notify the police of Blaylock's threat and nature. Was a duty breached here? Should Dr. Burglass be held liable? [Boynton v Burglass, 590 So 2d 446 (Fla App)]