Quiz 9: Torts
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.
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.
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.