Misc intentional torts

Question 1

Defamation:

Elements

Answer 1

1) Defamatory language
2) Of or concerning the plaintiff
3) Publication to a third person
4) Damage to P’s reputation

If defamation concerns matter of public concern:

5) Falsity (basically shifts BOP to P)
6) Fault

Question 2

Meaning of “defamatory statement”

Answer 2

Language tending to adversely affect one’s reputation (need more than an opinion or name-calling)

Question 3

Meaning of “of or concerning the plaintiff”

Answer 3

A reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P

Question 4

Meaning of “publication”

Answer 4

Communication of defamation to a third person who understands it.

Question 5

Defamation:

Damages (Libel)

Answer 5

• Libel per se* (i.e., written or printed publication of defamatory language—includes radio/TV) —> damages presumed
• Minority Rule / OK*: Libel per quod (libel not defamatory on its face) —P must prove special damages (pecuniary loss)

Question 6

Defamation:

Damages (Slander)

Answer 6

• Slander* (spoken defamation) —> requires special damages
• Slander per se* —> damages presumed for statements that:
  1) adversely reflect on one’s conduct in a business or profession;
  2) one has a loathsome disease; or
  3) One is guilty of a crime involving moral turpitude
  4) Imputes unchastity to a woman

Question 7

Defamation:

Fault

Answer 7

• Public officials/figures:* actual malice (knowledge or reckless disregard as to falsity)
• Private persons:* negligence

Note: Required only if matter is one of public concern

Question 8

Defamation:

Absolute Privileges

Answer 8

1. Consent
2. Truth
3. Statements made during judicial proceedings
4. Statements made by legislators during legislative proceedings
5. Statements by federal executive officials
6. Statements between spouses

Question 9

Defamation:

Qualified Privileges

Answer 9

1. Reports of public proceedings
2. Public interest
3. Interest of publisher (person making statement)
4. Interest of recipient
5. Common interest of publisher and recipient

(Note: Not effective if malice, abuse, or excessive provocation shown)

Question 10

What are invasion of right of privacy torts?

Answer 10

Appropriation

Intrusion

False Light

Public Disclosure of Private Facts

Question 11

Invasion of Right to Privacy: Appropriation (elements)

Answer 11

1. Use of P’s name or likeness
2. for commercial advantage
3. without permission

Question 12

Invasion of Right to Privacy: Intrusion (elements)

Answer 12

1. Interference with a Plaintiff’s seclusion
2. in a way that would be highly offensive to a reasonable person

P must be in a place where there is a reasonable expectation of privacy

Question 13

Invasion of Right to Privacy: False Light (elements)

Answer 13

1. widespread dissemination of information that is in some way inaccurate
2. the spread would be highly offensive to a reasonable person

applies even if the dissemination makes P look positive

Question 14

Invasion of Right to Privacy: Public Disclosure of Private Facts (elements)

Answer 14

1. widespread dissemenation of accurate information
2. that would normally be confidential
3. the disclosure of which would be highly offensive to a reasonable person

Newsworthy disclosures do not count.

Question 15

Defenses to Invasion of Right to Privacy

Answer 15

Consent

Qualified privilege

(these only apply to false light and public disclosure)

Question 16

Fraud: elements

Answer 16

1. Affirmative misrepresentation (silence generally not enough)
2. Fault (intention)
3. Intention to induce reliance ( material)
4. Actual and justifiable reliance
5. Damages

Question 17

Negligent Misrepresentation

Answer 17

• Normally confined to commercial transactions

- confined to particular P whose reliance is contemplated

Question 18

What are intentional interference with business relations torts?

Answer 18

• inducing breach of K
• interference with contractual relations
• interference of prospective economic advantage

Question 19

Intentional Interference with Bus. Relations: Inducing Breach of K

Answer 19

An intentional action that causes a third person to breach an existing K with the plaintiff

Question 20

Intentional Interference with Bus. Relations: Interference with Contractual Relations

Answer 20

Interference makes performance more difficult, even if it doesn’t actually cause a breach

Question 21

Intentional Interference with Bus. Relations: Interference with Prospective Economic Advantage

Answer 21

Interference with a plaintiff’s expectation of economic benefit from third persons, even in absence of K

Question 22

Private nuisance

Answer 22

Substantial and unreasonable interference with the use and enjoyment of land

Interference is “substantial” if it is offensive, inconvenient, or annoying to the average person.

Interference is “unreasonable” if the harm to P outweighs the utility of the conduct.

Question 23

Public Nuisance

Answer 23

Conduct that causes physical or moral harm to the public in general

• usually brought by govt, but private P can maintain an action for public nuisance if she suffers an injury that is of a different character than the injury suffered by the public at large.

Question 24

Vicarious Liability:

Employer-Employee (Respondeat Superior)

Answer 24

An employer is vicariously liable for an employee’s torts committed within the scope of employment.

Frolic and detour - employer liable for torts conducted during minor deviations from employer’s business, but not during the employee’s “frolics.”

Employers are not vicariously liable for intentional torts of employee (X = force is part of the job)

Question 25

Vicarious Liability:

Independent Contractors

Answer 25

GR: No liability

Exception: IC is engaged in an inherently dangerous activity

Exception: Duty is non-delegable (public policy) — e.g., Invitor can’t escape liability by arguing that dangerous condition was created by a contractor rather than an employee

Question 26

Vicarious Liability:

Partners and Joint Venturers

Answer 26

Each member of a partnership of JV is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or JV.

Test for JV: (1) common purpose; (2) mutual right of control

Question 27

Vicarious Liability:

Auto owner & driver

Answer 27

General Rule: No liability

Agency exception: Owner liable if driver is performing an errand for him

Minority rules:

Family car Exception: owner liable for torts of immediate family or household members who are diving with express or implied permission.

Permissive Use Exception

Question 28

Vicarious Liability:

Parent & child

Answer 28

GR: parents not liability

By statute, most states make parents liable for the willful and intentional torts of their minor children (up to certain amount)

Question 29

Vicarious Liability:

Tavernkeepers

Answer 29

• Common law:* no liability

* Dramshop acts:* Liability for injuries to third parties caused by intoxicated vendees

Question 30

Joint & Several Liability

Answer 30

Each D is liable to the P for the entire damage occurred.

Apply when:

1. Two or more tortious acts combine to cause
2. An indivisible harm

Note: if acts are independent and injury is divisible, then each D is liable only for the identifiable portion (X = Ds act in concert)

Question 31

Indemnity

Answer 31

Shifts the entire loss between or among tortfeasors. Available in three scenarios:

1) Contractual right
2) Vicarious liability
3) Strict products liability
4) [some states] Identifiable difference in degree of fault

Question 32

Contribution

Answer 32

• Traditional Rule:* Paying D recovers proportional shares from other Ds.
• Comparative Contribution:* Recovery is based on the relative fault of each tortfeasor

Question 33

Tort immunities

Answer 33

1. Spousal immunity (old rule; modern majority—including OK—has eliminated this immunity)
2. Parent-Child immunity (the majority have abolished this)
3. Governmental Immunity (exception = Gov’t was engaged in a proprietary activity—e.g., running a parking garage)
4. Charitable Immunity (abolished in most states)