Defamation, Privacy  2000 Answer Key

 ___ 5 Lowry v. Afton Labs: Negligence (knew complicating factors and didn’t screen on medical intake form with food questions) proximately caused foreseeable econ injury; elements

___ 10 Lowry v. Afton Labs: Negl./inf. consent (failed to warn re food sources, undisclosed risk occurred), but no phys. risks, outside scope of job, Arato; no choice to avoid mand. test;

standard of disclosure Wooley or Harnish?

___ 5 “therapeutic” withholding of info may be justified in this rare case to avoid excuses

___ 5 no negligence since Lowry was the only one of 4,000 in 5 years to use “poppy defense” and expert confirmed opiates in Lowry’s sample; nonfeasance not to tell

___ 5 Lowry v. Afton Labs: Negligence (knew complicating factors and didn’t have MRO)

___ 5 expert test. that industry standard, even if not required by law, was to have MRO and improper for Afton Labs not to ask test subjects what foods they had eaten v. not required by certifying agency and lack of food inquiry only his opinion, not std practice testimony Walski

___ 5 Afton Labs just trying to save money by not having that level of review

___ 10 Lowry v. Afton Labs: Lab malpractice (a certified lab, run by med. profls. with spec. training); prof’l std. (nat’l or local? Vergara) under Kerkman or reasonable lab? 4,000 proc.

___  5 if prof’l, expert testimony required Walski  forensic toxicologist would satisfy

      ___ 10 Lowry v. Afton Labs no tort based on contract; econ. loss only and no phys. risks SW Bell v. Delanney;  third party, no privity has no enf. rts. Moch; reliance? Florence v. Goldberg

  ___ 5 Lowry v. Afton Labs: Libel but results factually true, although perhaps tests invalid

      ___ 5 Lowry v. Stanley Negl. suspension but required by Police Dept. policy pending investig.

      ___ 5 Lowry v. Stanley: NIED  Sacco but no phys. manifest. emot. injury Ford v. Aldi, some states require threat  phys. impact; no duty to protect emot. health of plaintiff  Boyles v. Kerr

___ 10 Lowry v. Stanley:  Slander (“we don’t want evidence disappearing” + wink);  elements; false implication based on poppy seed tainted exam but did fail drug test

___ 5 “of or concerning”; need to prove colloquium –  statement made in connection with deprivation of access; innuendo that Lowry would take drugs illegally

___ 5 slander per se: implies Lowry unfit for profession, even if  crime imputed is futuristic and question if theft crime of moral turpitude (but maybe by police officer); if private ind, may not need to prove damages, except most jurisdictions follow Gertz (job loss would be damages)

___ 10 Lowry may be a public official (appointed?, subject to pub. scrutiny & substantial control public affairs? Jenoff v. Hearst: 2^nd in command of county dept., media liaison officer, not term. until March, but was suspended) or perhaps ltd purpose public figure? (gen. notoriety or at least for police affairs, didn’t thrust self into controversy); if malice std applies, was it knowing and reckless falsehood NYT v. Sullivan; prob. private ind., matter public concern

___ 5 Lowry v. Stanley: False Light: implies drug user, wd commit theft, no public portrayal

___ 5 While Stanley is privileged to suspend access, the privilege does not extend to unnecessary implications in her comments

___ 5 Lowry v. Stanley: Slander re calling Times  reporter “had used illegal drugs” false or unproven until hearing v. BOP on Lowry to show no drug use & hearing results damning

___ 5 Lowry v. Stanley: False light re calling Times Picayune reporter (death for police career)

___ 10 Lowry v. Stanley (and Times-Picayune): Public disclosure of private facts: elements (divulged only to one reporter, but knew the facts would be communicated to reading public; internal hearing is private, even for public official Taylor v. K.T.V.B.,  Diaz);  was it public record? Cox Broadcasting; for paper, legitimately obtained Florida Star; same tort re evidence officer – no publication

___ 5 fair comment privilege; newsworthiness privilege re PDPF? Cape Publications, Inc. v. Bridges (results of hearing might be newsworthy, but suspension pending it more questionable)

___ 5 Lowry v. Times-Picayune: Libel/False light  (tested positive v. illegal drug use)

___ 5 malice standard: would failing to try harder to reach Lowry be reckless disregard?

___ 5 Neutral report. priv. Price v. Viking Penguin (public office, police officer competence newsworthy, but quote from “unnamed sources” not a disclosed public figure, no verification)

___ 5 Lowry v. Police Dept. Intrusion on secl. drug testing, but no 4^th A. viol. Birnbaum or evidence of bias Navarro; priv. to protect workplace safety v. supervisor not safety sensitive job

___ 5 Lowry v. Police Bd. Negl. termination, but Afton Labs + hearings =  reas. grounds

___ 5 Lowry v. Police Dept. Negl. hiring of Afton Labs (substandard procedures) but certified

___ 5 Police Dept./Bd. Comm’rs/County no resp. sup. liab. for Afton Labs, an I.C. Leaf River

___ 5 ostensible agency Jackson v. Power (holding out? but no facts)

___ 5 Police Dept./Bd. Comm’rs/County resp. sup. liability for Stanley’s defamation (evidence officer within scope of emp., but call to paper from home phone Edgewater Motels v. Gatzke is PO always on call?); was purpose to serve master in defaming Lowry? Lisa M.

___ 10 Police Dept./Bd. Comm’rs/County immune for policy to test in first place & discretionary resource decision not to retest Lockett, failure to provide greater procedural protections such as MRO, Loge (can’t sue for an absence of regs requiring something)

___ 10 Lowry v. Stanley: Defamation  (not returning computer calls): failure to return four calls when message clearly marked “Seeking Job Recommendation for Lowry” implies incompetence (and Stanley, 1^st in command, was Lowry’s only “boss”) v. no communication or publication

  ___ 5 Lowry v. Stanley: Negligence  (not returning computer calls) but no special rel. (not emp’r any more) and not negligence to say nothing, causation and damages tough to prove

  ___ 5 failure to follow policy (but policy allowed but did not require minimal verification)

  ___ 5 nonfeasance Yania v. Bigan, Stanley probably didn’t create duty by dismissing? South

___ 5 immunity for inactivity DeShaney; no immunity for other instances of defamation because comments to paper and evid. officer do not relate to govt’l policy  and are in bad faith

___ 5 Organization and use of captions

___ 5 Composition (clarity of sentences, avoidance of sentence fragments, grammar)

___10 Innovative arguments/thorough analysis

            250 points possible