Student No. ______

                        Defamation, Privacy 1999 Answer Key

Multiple Choice Score ____

Question I

___ 5 Roe v. DOSH negligent failure to inspect

___ 5 negligence elements

___ 5 Roe argues state OSHA creates duty to inspect § 95-4 “as often as practicable” – not once in 11 years clear violation

___ 5 immunity for discretionary activities: policy-making Lockett (agency has discretion in resource allocation)

___ 5 immunity since gov’t agencies generally have no duty to act Riss and this is nonfeasance with no special relationship a la DeLong

___ 5 no liability unless private cause of action § 143 and no similar suit against private individuals (they don’t conduct safety inspections of businesses for OSHA compliance) v. private firms can be safety consultants

___ 5 DOSH argues statute creates no private cause of action § 95-6

___ 5 DOSH argues common law “public duty doctrine” Stewart (liability to general public, not individuals)

___ 10 Roe argues failure to follow inspection regs is operational  Loge v. DOSH’s response: regs do not prescribe specific action Lockett (“as often as practicable” leaves discretion to DOSH)

___ 5 Dube exception: was any conscious policy decision made? v. public safety inspections are an area of traditional government function Gaubert

___5 Roe v. IF/Hatter negligent failure to keep fire alarm system in place, mark exits, provide safe workplace (fire foreseeable in deep fat fryer)

___ 5 duty based on employer-employee relationship; ee as invitee

___ 5 duty based on statutes (violations DOSH  found); negl. per se

___ 5 defense of nonfeasance; no duty to warn of obvious dangers Griebler v. Doughboy v. still potential defense liability for open and obvious dangers Ward v. K Mart

___ 5 Roe v. IF/Hatter NIED (actual physical impact, Mitchell v. Rochester; medically diagnosable and significant Ford v. Aldi; presumably emotional distress from burns)

___ 5 Roe v. IF/Hatter respondeat superior liability for secretary misplacing renewal; IF respondeat superior liability for Hatter

___ 5 Roe v. Hatter failure to rescue or alert fire station v. saving himself in a fire

___ 5 Roe v. Safe duty based on contract (physical risks foreseeable Mobil Oil , fire and personal injury within scope of foreseeable risks Coyle)

___ 5 duty based on reliance (left equipment and didn’t get around to removing it)

___ 5 defense: contract expired, nonfeasance

___ 5 defense: no duties to third party beneficiaries   Moch; Roe analogizes to Palka v. Servicemaster (relationship anticipatible, part of responsibility assumed under contract)

___ 5 ultrahazardous activities (providing for safety near fire) nondelegable

___ 5 Roe v. Safe negl. training of Sam

___ 5 Roe v. Safe respondeat superior for Sam’s torts (in scope of employment Fruit, Riviello; frolic to answer calls from noncontracting parties?)

___ 10 Roe v. Sam  negl. delay in calling duty based on affirmative action Rest. § 323 (undertaking to render services for protection, liability for physical harm), answered distress call, said “okay” = assurance of help Newton v. Ellis; negl. waiting a few minutes when he knew bldg on fire; Roe suffered bodily injury; worsening Roe’s situation Rest. § 324 with time lapse Farwell

___ 5 Roe v. Sam duty based on reliance by Hatter (“hold on while I check location”), but no contact between Roe and Sam  Kircher, Florence

___ 5 Sam argues nonfeasance Yania v. Bigan v. special relationship

___ 5 organization

___ 10  innovative arguments/thorough analysis

            Total 160

Question II

___ 5 Hoppe v. Watson libel (“race tracks” “ups property assessment”)

___ 5 elements of defamation

___ 10 focus on colloquium “of or concerning” Cassidy, Bindrim (character identifiable as plaintiff: same position, similar name, analogy to actual conduct)

___ 5 defamatory: loathsome disease (herpes) and criminal improprieties (payoffs, race track) affect reputation as public official v. fictional nature akin to name-calling

___ 10 factually true or false? (AG’s office upheld tracking practice, but unknown re prop asess and slush fund) fact or opinion? (in column with by-line, opinionated columnist) Milkovich v. opinion actionable if based on verifiable facts Moldea

___ 10 public official or private figure (elected office, position invites scrutiny, access to media?) Jenoff; actual malice? NYT v. Sullivan; application of knowledge of falsity or reckless disregard (did Watson verify?)

___ 5 damages (lost election, but hard to show election result caused by column)

___ 5 Hoppe v. Nirvana Post-Intelligencer respondeat superior for Watson v. columnist an independent contractor  Leaf River

___ 5 Hoppe v. Nirvana Post-Intelligencer independent libel C/A for editorial control

___ 5 Hoppe v. Nirvana Post-Intelligencer negligent editing

___ 10 Hoppe v. Watson /N P-I false light highly objectionable to RP; recklessness re falsity? Is conduct less objectionable since Hoppe is a public official who should anticipate humorous jibes? Lane v. Random House

___ 5 Hoppe v. Watson NIED

___ 10 parody defense Falwell, Pring (“known for sharp pen and humorous, fanciful columns” means readers would not assume factual), first amendment protected v. parody coming too close to truth Salimone v. MacMillan

___ 5 fair comment privilege re matter of public concern: actual controversy over hiring detectives to trail deputy assessor and public charge of wrongful assessment practices; can fair comment apply to fictional account?  Street

___ 10 will you take the case? No, because public figure = malice std, comments not falsifiable, parody and fair comment defenses sound

___ 5 organization

___ 10 innovative arguments/ thorough analysis

        Total 120