Restatement (Second) of Torts § 288A

Oluf and Debra Johnson are organic farmers in central Minnesota whose fields are certified under the National Organic Program. Paynesville Farmers Union Cooperative Oil Company is a member-owned provider that applies pesticides to conventional farm fields adjacent to the Johnsons' property. In June 2007 the Johnsons filed a complaint with the Minnesota Department of Agriculture alleging pesticide drift onto one of their transitional soybean fields. On June 15, 2007, winds of 9 to 21 miles per hour carried Status (diflufenzopyr and dicamba) and Roundup Original (glyphosate) from the Cooperative's spraying of a neighboring conventional field onto the Johnsons' soybeans. MDA testing detected dicamba below detection levels but no diflufenzopyr or glyphosate. The MDA nevertheless directed the Johnsons to plow down approximately 10 acres of the crop because of visual damage and the presence of dicamba. The Johnsons also notified their certifying agent, the Organic Crop Improvement Association. An August 27, 2007 OCIA letter stated that chemical drift may have occurred and that, if contamination were confirmed, the field would have to return to the beginning of the 36-month transition period. The Johnsons therefore restarted the three-year transition for that soybean field. In July 2008 the Johnsons reported a second incident in which Roundup Power Max and Select Max (glyphosate and clethodim) drifted onto a transitional alfalfa field. MDA testing found minimal glyphosate. On August 1, 2008, they reported a third incident involving Lorsban Advanced (chlorpyrifos) on the same alfalfa field. Testing again showed minimal residue. The MDA concluded that drift from the Cooperative's applications caused both positive results. The Johnsons took the alfalfa field out of organic production for an additional three years. The Johnsons sued the Cooperative for trespass, nuisance, negligence per se, and battery, claiming economic losses from the three-year transition periods, destruction of the soybean crop, increased weeding and reporting burdens, and adverse health effects to Oluf Johnson. They also sought a permanent injunction barring spraying within a half mile of their fields. The district court granted summary judgment to the Cooperative on all claims and denied the Johnsons' motion to amend the complaint to add the 2008 incidents. The court of appeals reversed in part. The Minnesota Supreme Court granted the Cooperative's petition for review.

John W. Carson has hosted “The Tonight Show” on NBC five nights a week since 1962 and appears as an entertainer in night clubs and theaters around the country. From the time he began hosting the program, he has been introduced each night with the phrase “Here’s Johnny,” a method of introduction first used for him in 1957 when he hosted a daily television program for ABC. The phrase “Here’s Johnny” is generally associated with Carson by a substantial segment of the television viewing public. In 1967 Carson first authorized use of the phrase by an outside business venture, permitting it to be used by a chain of restaurants called “Here’s Johnny Restaurants.” In 1970 Johnny Carson Apparel, Inc. was formed to manufacture and market men’s clothing to retail stores. Carson, who serves as president and owns twenty percent of its stock, licensed the company to use his name and picture, which appear on virtually all of its products and promotional material. He also consented to use of the phrase “Here’s Johnny” on labels and in advertising. In 1977 Apparel granted a license to Marcy Laboratories to use the phrase as the name of a line of men’s toiletries. The phrase has never been registered by appellants as a trademark or service mark. Here’s Johnny Portable Toilets, Inc., a Michigan corporation engaged in renting and selling portable toilets, began operations in 1976. Its founder was aware at the time he formed the corporation that “Here’s Johnny” was the introductory slogan for Carson on “The Tonight Show.” He coupled the phrase with a second slogan, “The World’s Foremost Commodian,” to make a play on words. Shortly after appellee went into business, Carson and Apparel brought suit in the United States District Court for the Eastern District of Michigan alleging unfair competition, trademark infringement under federal and state law, and invasion of privacy and publicity rights, seeking damages and an injunction. After a bench trial the district court issued a memorandum opinion and order in 1980 that served as its findings of fact and conclusions of law and ordered dismissal of the complaint.

After the 1990 census showed that Georgia's population entitled it to an eleventh congressional seat, the General Assembly adopted redistricting guidelines requiring equal population, contiguity, nondilution of minority voting strength, and compliance with sections 2 and 5 of the Voting Rights Act before considering other factors such as preserving political subdivisions. The legislature submitted an initial plan creating two majority-minority districts and one additional district with a 35 percent black voting-age population, but the Department of Justice refused preclearance on January 21, 1992, stating that the plan failed to recognize certain minority populations. The General Assembly enacted a second plan that increased black populations in three districts, yet the Department of Justice again refused preclearance, pointing to alternative plans that created three majority-minority districts through a Macon/Savannah trade. Using the ACLU's max-black plan as a benchmark, the legislature then passed a final plan that created the Eleventh District by transferring black populations from Macon to the Second District and extending the Eleventh to include Savannah, resulting in a district that split twenty-six counties. On January 13, 1994, five white voters registered in the Eleventh District filed suit against state officials in the United States District Court for the Southern District of Georgia, alleging that the district was a racial gerrymander. A three-judge panel received evidence including the Justice Department's objection letters, testimony from the operator of Georgia's reapportionment computer, the State's admissions that portions of Effingham and Chatham Counties were added solely to increase the black population, and expert reports showing fractured political and economic interests within the district. The District Court found that race was the overriding and predominant factor explaining the Eleventh District's irregular boundaries and invalidated the plan. Appellants appealed, the Supreme Court granted a stay, and later noted probable jurisdiction over the direct appeal.

The Florida Star is a weekly newspaper which serves the community of Jacksonville, Florida, and which has an average circulation of approximately 18,000 copies. A regular feature of the newspaper is its Police Reports section that contains brief articles describing local criminal incidents under police investigation. On October 20, 1983, appellee B. J. F. reported to the Duval County, Florida, Sheriff's Department that she had been robbed and sexually assaulted by an unknown assailant. The Department prepared a report on the incident which identified B. J. F. by her full name. The Department then placed the report in its pressroom without restricting access to either the pressroom or the reports made available therein. A Florida Star reporter-trainee sent to the pressroom copied the police report verbatim, including B. J. F.'s full name, on a blank duplicate of the Department's forms. A Florida Star reporter then prepared a one-paragraph article about the crime, derived entirely from the trainee's copy of the police report. The article included B. J. F.'s full name and appeared in the Robberies subsection of the Police Reports section on October 29, 1983. In printing B. J. F.'s full name, The Florida Star violated its internal policy of not publishing the names of sexual offense victims. On September 26, 1984, B. J. F. filed suit in the Circuit Court of Duval County against the Department and The Florida Star, alleging that these parties negligently violated § 794.03. Before trial, the Department settled with B. J. F. for $2,500. At the ensuing daylong trial, B. J. F. testified that she had suffered emotional distress from the publication of her name. She stated that she had heard about the article from fellow workers and acquaintances and that her mother had received several threatening phone calls from a man who stated that he would rape B. J. F. again. These events forced B. J. F. to change her phone number and residence, to seek police protection, and to obtain mental health counseling. In defense, The Florida Star put forth evidence indicating that the newspaper had learned B. J. F.'s name from the incident report released by the Department and that the newspaper's violation of its internal rule against publishing the names of sexual offense victims was inadvertent. At the close of the newspaper's defense, the judge granted B. J. F.'s motion for a directed verdict on the issue of negligence, finding the newspaper per se negligent based upon its violation of § 794.03. The jury awarded B. J. F. $75,000 in compensatory damages and $25,000 in punitive damages. The First District Court of Appeal affirmed in a three-paragraph per curiam opinion, stating that the directed verdict for B. J. F. had been properly entered because, under § 794.03, a rape victim's name is of a private nature and not to be published as a matter of law. The Supreme Court of Florida denied discretionary review. The Florida Star appealed to this Court, which noted probable jurisdiction and now reverses.