"Lesser" Torts

Question 1

Ultra-Hazardous Activities

Answer 1

If an activity is said to be abnormally dangerous, a person engaging in the activity will be held strictly liable for the damage caused by that activity.

Elements:

1. ) The activity involves a risk of serious harm.
2. ) The activity cannot be performed without complete safety no matter how much care is used.
3. ) The activity is not commonly engaged in in this community.
4. ) The dangerous propensity of the activity was the cause of the damage.

On the MBE, there are two basic hypos:

a. ) Dynamite blasting in the city
b. ) Chemical experiment in a small town
* Notes:*
1. ) Things that were once ultra-hazardous are no longer dangerous, and new activities are now considered dangerous.
2. ) It doesn’t matter how careful D was being.
3. ) If the elements can be established, D will be liable to people who were attempting to flee from the activity
4. ) Assumption of the risk is a defense to this tort.

Question 2

Animal Damage

Answer 2

Is this a domestic animal or a non-domestic (wild) animal?

Domestic Animals (this will always be a dog or a cat):

If you did not know the animal was dangerous, there is no strict liability. As soon as you learn of the animal’s dangerous tendency, you will be liable for all future damage. (one free bite rule)

Non-Domestic Animal (Snake, Lion or Tiger): For all non-domestic animals, you will be liable for all foreseeable damage, including damage to people fleeing from the animal. There will always be the possibility of a negligence claim even if there is no strict liability claim (failure to maintain control of the animal…etc). For wild animals, it doesn’t matter how much precaution D used–STRICT LIABILITY

Question 3

Nuisance

Answer 3

Definition:

Nuisance is the intentional or negligent conduct that substantially and unreasonably interferes with the use and enjoyment of land.

Note:

Loud noises or bad smells are not trespass which “invade” property, rather they are nuisances.

Elements:

P must show the interference was substantial AND unreasonable (judgement by the trier of fact…we don’t make that determination). If a “reasonable person” would not have been bothered by the interference, then the nuisances was not substantial and reasonable, and the claim will fail.

Public Nuisance:

Interference w/ the use and enjoyment of land by the general public or a large group of people. For example, a paper mill stinks up the entire town. As a general matter, a citizen can’t sue under a nuisance theory. The AG or some other public official would bring this suit

Question 4

Defamation

Answer 4

Defamation is a defamatory statement by D about P published to a third person that results in damage.

Note:

If the statement relates to a matter of public concern it must be (1) false and (2) made with malice.

Elements:

Common Law Elements:

(1) Defamatory statement by D
(2) Statement must be about the P
(3) Publication to a third person (simply means the statement was heard or read by a third person – if P is the only person who heard the statement, it does not meet this element).
(4) Damage
* Modern (public concern) Defamation adds two additional elements*:
(5) Malice by D (D knew the statement was false or was reckless in that regard)
(6) Statement was in fact false

(these two elements come from the supreme court as a matter of constitutional law to overcome freedom of speech)

Note:

The biggest test point is on the MALICE element. Ill-will or a mean spirit by P will not be sufficient.

Question 5

Invasion of Privacy

Answer 5

Invasion of Privacy (4 torts in one)

(1) Intrusion – unreasonable intrusion by the D into a private area of the P.
(2) Public disclosure of a private fact – unreasonable disclosure by the D of private facts about the P, even if the facts are true. (ex. public disclosure of a medical file)
(3) False Light – a portrayal of the P in a false light to the public that would be objectionable to a reasonable person.
(4) Appropriation – Use of the P’s name, picture or identity for commercial advantage without consent. (ex. advertising sweaters with a popular person’s image w/o consent)

Question 6

Misrepresentation / Deceit

Answer 6

Elements:

(1) Misrepresentation of a material fact
(2) KNOWLEDGE of the falsity or RECKLESS disregard as to the falsity of the fact
(3) Intent to induce reliance
(4) Reliance
(5) Damages
* Notes*:

Misrepresentation is not often tested, but here are some things to look for:

Injuries to the P from statements by the D can arise from other torts

• D falsifies identity of a police officer to take the P into custody (use false imprisonment)
• D falsifies identity of a doctor to touch P’s breasts (use battery)
• False representation’s damages are purely economic*
• Negligent misrepresentation is never the correct answer on the test*