Misc torts - nuisance defamation etc Flashcards
Public nuisance
Unreasonable interference with right common to the general public (health, safety)
Usually brought by govt actor
To recover damages as an individual, must have suffered harm DIFFERENT from that suffered by the general public
e. g. business places giant bright loud sign, creates traffic hazard. this is public nuisance
- nursing home residents kept awake at night - THEY can recover
Private nuisance
Thing or activity that substantially and unreasonably interferes w P’s use and enjoyment of P’s land
Usually intentional, because typically D is placed on notice that they are interfering by P asking them to stop
Five factors for balancing interference:
- value of D’s activity
- existence of alternatives
- nature of locality
- extent of injury
- who was there first?
Remedy: injunction. Must persuade judge that P is suffering or will suffer irreparable harm and that damages are inadequate remedy
Defamation
P must establish that D published defamatory material concerning P that caused reputational harm.
Defamatory material: subjects P to scorn or ridicule or deters others from dealing with P
- hyperbole and opinion are not defamatory
Pleading issue: when P is not named, P must allege it’s concerning P and that P is identifiable by context
Publication: someone other than P read/saw/heard. P must show that D either intentionally or negligently published.
- Replication rule: other persons who repeat message can be liable as well
Types of defamation (2)
Libel: message is embodied in relatively permanent form.
- harm presumed, but damages must be proven
Slander: defamation in spoken form
- P must prove special damages - specific econ losses from slander. can also get rep damages
Slander per se:
- slander imputing to P behavior or traits incompatible with proper conduct of P’s business
- slander alleging commission of a crime of moral turpitude or infamous punishment (prison/death)
- allegations that P has a loathsome disease
- false imputation of lack of chastity, if P is a woman
Privileges (defenses) to defamation
TRUTH: P must prove falsity in prima facie case. Exception: private figures, private matter
Absolute privileges: a few contexts
- communications b/t spouses or high ranking executive officials
- statements made on floor of legislature or during judicial proceedings
Privilege ENDS if repeated in non privileged context
Conditional privileges: qualified immunity if
- comment made in reasonably necessary communication to protect/advance D’s own legitimate interests
- comments on a matter of interest to the recipient or third person
- comments on a matter of public interest to one “empowered to protect that interest”
LOSE privilege if D has bad intent/malice, or reckless w/r/t truth, or if D doesn’t believe it
Defamation and the constitution (4 questions)
What is the status of P?
Public official (in capacity) or public figure (inc limited public figure who “injected self” into controversy): need D’s ACTUAL MALICE by CLEAR AND CONVINCING evidence.
Private figure: what is the matter at issue?
- matter of public concern: need at minimum NEGLIGENCE by D
- presumed or punitive damages need actual malice
- private concern: don’t need to prove malice, even for punitives
Malice means either knowing falsehood or recklessness re: truth
Invasion of privacy torts (4)
Intrusion into seclusion
- D unreasonably intrudes into P’s zone of privacy and intrusion is highly objectionable to reasonable person (stalking, wiretapping)
- compensatory damages for distress, punitives if bad enough
Commercial appropriation of likeness/identity
- unauthorized use of P’s name/voice/likeness for D’s commercial gain. newsworthy exempt
Public disclosure of private true facts. P must prove:
- disclosure + private facts + highly offensive to reasonable person + not newsworthy
- need some sort of publication/dissemination. injunctive relief possible
- no liability for public records source
Portrayal in false light. elements:
- publication + false + highly offensive to reasonable person + defamation type fault
Wrongful institution of legal proceedings (3 types)
Malicious prosecution
- criminal case initiated by D for improper purpose, w/o probable cause, that ends favorably for P and causes damages. P must win ON MERITS
Wrongful institution of civil proceedings
- same as above but for civil
Abuse of process
- D intentionally misuses judicial process for a purpose other than intended
e. g. attaches property allegedly to pay off judgment, but really to remove from market
Economic torts (4)
Intentional misrepresentation
Negligent misrepresentation
Interference w contractual relations
Interference with prospective economic advantage
Intentional misrepresentation
Four elements:
- intentional material misrep by D
- of past or present fact
- made with knowledge
- on which P justifiably relies, to P’s economic detriment
Misrep can be false statement or active concealment. Failure to disclose not enough UNLESS:
- fiduciary relationship
- ambiguous or misleading statement causes reliance
- failure to disclose discovery of previous false statement
- D doesn’t intend reliance but discovers P relied
- P reasonably expects disclosure
Mental state requirement: D must intend P to RELY
- scienter present when D knew statement was false or was reckless as to truth
Negligent misrepresentation
Rule: D has NO DUTY to avoid negligent infliction of purely economic loss
Exceptions:
- special relationship
- D is knowingly acting for 3rd party benefit and that 3rd party relies
Interference with contractual relations
Elements:
- D knew of contract b/t P and third party
- D acted with purpose of having contract breached or making performance harder
Interference with prospective economic advantage
Elements:
- D knew of prospective econ advantage
- D acted to interfere with it for improper motives
NO liability for protecting D’s own competitive interests
