Appropriation Lawsuits

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. www.ballandyorke.com

Negligence Per Se

Ordinarily, a jury determines whether a defendant was negligent in a personal injury action. However, in some cases, a court may determine that a defendant was "negligent per se." If a court determines that a defendant is guilty of negligence per se, then the defendant's negligence is conclusively established and the plaintiff is not required to offer further evidence of the defendant's negligence. Most negligence per se cases involve an unexcused violation of a law. For example, a plaintiff is involved in an automobile accident with a defendant. The plaintiff files a personal injury action against the defendant. It is undisputed that the defendant was driving at 85 miles per hour at the time of the accident. According to state law, a person may not drive in excess of 65 miles per hour. A judge may determine that the defendant is guilty of negligence per se because he was violating the speed limit law at the time of the accident. If so, the defendant's negligence will be conclusively established.

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.

www.ballandyorke.com

Attorney Malpractice Liability to Non-Client

Malpractice Non-Client

In the course of an attorney's representation of a client, he may commit legal malpractice with respect to his prosecution, defense, or appeal of the client's action or his preparation of transactional documents for the client. The attorney's actions may constitute legal malpractice if he fails to use the skill, prudence, and diligence that attorneys of ordinary skill and capacity would use in performing their legal tasks. In addition to being liable to the client, the attorney may also be liable to a non-client in certain circumstances.

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.

If you have any further questions please feel free to view our web page or give us a call. You can find us at: www.ballandyorke.com as well as on facebook!

Also, if you have any comments please post them.

Ball & Yorke Attorneys at Law

Proven Results & Experience You Can Count On!

For almost two decades, the Law Office of Ball & Yorke has represented thousands of clients in Southern California.

We have unmatched experience with all types of civil cases, including:

• Auto Accidents
• Serious Personal Injury
• Wrongful Death
• Insurance Bad Faith
• Insurance Issues
• Slip and Falls
• Motorcycle Accidents
• Dog Bites
• Real Estate Matters
• Employment Law and Wrongful Termination

Our goal is to provide the highest quality legal services to you and your business in a timely and professional fashion.

We welcome the opportunity to talk with you and to discuss how we may be of service.