Nuisance, Defamation, and Other Torts

Question 1

What is Public Nuisance?

Answer 1

An unreasonable interference with a right common to the general public (e.g., health, safety, and morals of community)
a) Typically brought by a governmental actor, such as the Attorney General

Question 2

What is a Private Nuisance?

Answer 2

A thing, or activity, that substantially and unreasonably interferes with P’s use and enjoyment of P’s land
a) Mental State: Usually intentional, because once D is placed on notice that D is interfering, D still does not stop

Question 3

What are the 5 factors for balancing substantial/unreasonable interference?

Answer 3

i) Value of D’s activity;
ii) Whether there are alternatives;
iii) Nature of locality;
iv) Extent of P’s injury; and
v) Who was there first? (Used to be a defense, now just a factor)

Question 4

What are the Remedies for Private Nuisance?

Answer 4

Remedy = Injunction (equitable relief) – P must persuade a judge that:

i) P is suffering, or will suffer, irreparable harm + damages are an inadequate remedy
ii) Judge will then do balancing test

Question 5

Defamation Generally

Answer 5

1) P must establish that D published defamatory material concerning P that caused reputational harm

Question 6

Defamation Elements List

Answer 6

• Defamatory Message
• Pleading Problems
• Publication
• Type of Defamation
• Common Law Privileges

Question 7

Defamation: Defamatory Message

Answer 7

Subjects P to scorn, ridicule, or deters others from dealing with P, causing reputational harm (Ex: accusing of heinous crime)
i) Must be one that can be believed as truthful and reputation harming (hyperbole and opinions are not defamatory)

Question 8

Defamation: Pleading Problems

Answer 8

i) Where P is not named, P must allege it is of or concerning P, and that P is identifiable by context

Question 9

Defamation: Publication

Answer 9

Someone other than P read, saw, or heard the defamation

i) P must show that D either intentionally published the information or was negligent in publishing the information
ii) Republication Rule – In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well

Question 10

Defamation: Type of Defamation

Libel

Answer 10

Defamatory message embodied in any relative permanent form –> Reputational harm is presumed, but the damages have to be proven

Question 11

Defamation: Type of Defamation

Slander

Answer 11

Defamation in spoken form, rather than written form –> To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputation damages

Question 12

Defamation: Type of Defamation

Slander Per Se

Answer 12

The below constitute slander per se:

(a) Slander which imputes to P behavior or characteristics that are incompatible with the proper conduct of P’s business, profession, or office;
(b) Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death);
(c) Allegations P has some loathsome disease; and
(d) Falsely imputing lack of chastity to a woman

Question 13

Defamation: Common Law Privileges

Truth

Answer 13

P must prove falsity as part of P’s prima facie case

(1) Exception: P is a private, not public figure, and the matter is a private concern

Question 14

Defamation: Common Law Privileges

Absolute Privilege

Answer 14

Blanketed protection for D. If an absolute privilege exists, D will not be held liable for an otherwise defamatory message as a matter of law (no matter how bad it may have been)

(1) Contexts:
(a) Communications between spouses;
(b) Statements made on the floor of the legislature;
(c) Between high ranking executive officials; and
(d) Made in conduct of judicial proceedings
(2) Privilege ends if someone repeats in a non-privileged situation

Question 15

Defamation: Common Law Privileges

Qualified/ Conditional Privilege

Answer 15

D is qualifiedly immune from liability for defamatory messages (among others) if:

(a) Comments are made in a communication that appears reasonably necessary to protect, or advance, D’s own legitimate interests;
(b) Comments were communicated on a matter of interest to the recipient of the communication, or a third person; and
(c) Comments were communicated concerning a matter of public interest to an individual empowered to protect that interest

(2) Will lose privilege if:
(a) D has bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity
(b) D does not believe the truth of the defamatory communication

Question 16

Defamation: Constitutional Issues 4 Question Approach

Answer 16

Four question approach:

i) What is the status of P (public official, public figure, private figure)?;
ii) What is the subject matter of the statement? (public or private concern)?;
iii) What damages does P seek?
iv) What is the status of D?

Question 17

Defamation: Constitutional Issues

Public Official

Answer 17

If defamation is related to capacity as a public official, P must prove actual malice by clear and convincing evidence –> D knew it was false or recklessly disregarded the truth or falsity

Question 18

Defamation: Constitutional Issues

Public Figure

Answer 18

Treated just like public official; same standard – Clear and convincing evidence

i) All-purpose public figures: household names, e.g., Madonna
ii) Limited public figures: People who inject themselves into a controversy

Question 19

Defamation: Constitutional Issues

Private Figure

Answer 19

Look at subject matter and determine whether it is of public or private concern.
Consider form, content, and context
i) Public concern –> If the subject matter of the defamation is a matter of public concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence
(1) To be awarded presumed or punitive damages, actual malice is required

ii) Private concern –> P does not have to prove actual malice to get presumed or punitive damages (NOTE: - not settled; not tested)

Question 20

Invasion of Privacy: Intrusion into Seclusion

Answer 20

D unreasonably intrudes into P’s seclusion (zone of privacy)

i) Intrusion must be highly objectionable to a reasonable person (e.g., wiretapping,stalking)
ii) Damages include compensatory damages (e.g., mental distress) and if bad enough, punitive damages

Question 21

Invasion of Privacy: Commercial Appropriation of Likeness or Identity

Answer 21

Unauthorized use of P’s name, voice, or like- ness for D’s commercial advantage. Newsworthy purpose of P’s likeness, or identity, is exempt

Question 22

Invasion of Privacy: Public Disclosure of Private True Facts

Answer 22

i) P must prove: Disclosure of private facts that is highly offensive to a reasonable person and is not newsworthy
ii) Look for passage of time – 20 years pass, less relevant
iii) Need some sort of publication/dissemination of information
iv) Injunction is possible because the information is true (unlike defamation)
v) If D gets information from public records, D cannot be liable for sharing that information

Question 23

Invasion of Privacy: Portrayal in False Light

Answer 23

D publishes matters portraying P in a false light—i.e., attributing to P views P does not hold or attributing actions to P that P did not take. P Must show:
i) Publication + divulging of false information that is highly offensive to a reasonable person + some level of fault (parallel to defamation rules – actual malice, etc.)

Question 24

Invasion of Privacy: Malicious Prosecution

Answer 24

Criminal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages (P must prevail on the merits)

Question 25

Economic Torts: Intentional Misrepresentation

Answer 25

Elements:

(1) Intentional material misrepresentation by D;
(2) Of past or present fact;
(3) Made with knowledge; and
(4) On which P justifiably relies to P’s economic detriment

ii) Misrepresentation can be a false, affirmative assertion of fact (engine is new) or an active concealment (roll back odometer) Failure to disclose is not enough unless:
(1) There is a fiduciary relationship;
(2) There is an ambiguous or misleading statement that causes reliance;
(3) D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and fails to disclose;
(4) D makes a false assertion not intending reliance but discovers P relied; or
(5) P reasonably expects there would be disclosure

Question 26

Economic Torts: Negligent Misrepresentation

Answer 26

Rule: D has no duty to avoid negligent infliction of pure economic loss

ii) Exception 1: When there is a special relationship, like a fiduciary duty, or if D knows that they are acting for the benefit of a third party, and they rely and suffer economic loss
(1) Ex: Lawyer prepares a contract for Client and drafts it negligently, causing Client to lose $1M. Client sues for malpractice—Lawyer cannot avoid liability because it’s purely an economic loss. There is a fiduciary duty

iii) Exception 2: If D knows that they are acting for the benefit of a third party and the third party relies and suffers economic loss
(1) Ex: Lawyer drafts will for Client. Non-parties can only recover, if the will was negligently drafted leading to economic loss for the intended beneficiary

Question 27

Economic Torts: Interference with Prospective Economic Advantage

Answer 27

Protects “expectancy” interests of future contract relations of a party. P can prevail only by showing that D:

i) Knew of prospective economic advantage; and
ii) Acted to interfere with it for improper motives
(1) D can act to protect own competitive interest

Question 28

Economic Torts: Injurious Falsehood

Answer 28

P must prove:

i) False statement;
ii) Actual malice, or D knew statement was false or recklessly disregarded veracity;
iii) Made to another or published;
iv) Causing specific economic injury to P;

NOTE: Not about reputational harm but about economic loss

Question 29

Vicarious Liability: Employer/ Employee

Answer 29

(respondeat superior) –> Employer is liable for injuries caused by the negligence, or strict liability, of an employee if it occurred within the scope of the employment
i) Employer can be directly liable for negligent hiring

b) Intentional torts by employees are generally outside the scope of employment; however, if an employee uses force, even misguidedly, wholly or partly to further the employer’s purpose, such use of force may fall within the scope of employment, resulting in vicarious liability for the employer (ex. bouncer)

Question 30

Vicarious Liability: Independent Contractor

Answer 30

D is not liable for torts committed by IC’s because D has no right to control the performance of the ICs
i) Employee vs. IC status depends on whether the employer dictates the means, method, and manner of the work. The more control exercised, the more likely the person is an employee and not an IC

Question 31

Vicarious Liability: Parent/ Child

Answer 31

Parents are not generally vicariously liable for the torts committed by their child, absent a statute saying otherwise
i) Parents can be liable for their own negligence, negligent supervision, or entrustment

Question 32

Survival Action

Answer 32

(modern)—Death of the victim, or tortfeasor, no longer abates tort action and a claim can be brought by the estate of the decedent

Question 33

Wrongful Death

Answer 33

All jurisdictions statutorily provide for an action by which either heirs of a deceased victim, or the personal representative of the victim’s estate, may bring an action for wrongful death for their own losses resulting from the victim’s death (e.g., wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses)

Question 34

Loss of Consortium

Answer 34

Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc.