Other Torts

Question 1

Public Nuisance

Answer 1

An unreasonable interference with a right common to the general public (e.g. health, safety, and morals of community).
Typically brought by a government actor such as an attorney general.
To recover damages as an individual, one must have suffered harm different from that suffered by other members of the public.

Question 2

Private Nuisance

Answer 2

A thing or activity that substantially and unreasonably interferes with P’s use and enjoyment of P’s land.
Mental State: Usually intentional, because once D is placed on notice that D is interfering, and D still does not stop.
Five factors for balancing substantial/unreasonable interference:
Value of D’s activity;
Whether there are alternatives;
Nature of locality;
Extent of P’s injury; and
Who was there first? (used to be a defense now just a factor)
Remedy = injunction (equitable relief).
To prevail, P must persuade a judge that P is suffering or will suffer irreparable harm and damages are an inadequate remedy.
Judge will then do balancing test.

Question 3

Defamation

Answer 3

Defamatory message

publication

Question 4

Defamatory message

Answer 4

Subjects P to scorn, ridicule, or deters others from dealing with P causing reputational harm (Ex: accusing of heinous crime).
Must be one that can be believed as truthful and reputation harming.
Hyperbole and opinion are not defamatory.
Pleading Problems
Where P is not named, P must allege the message is of or concerning P and that P is identifiable by context.

Question 5

Publication

Answer 5

Someone other than P read, saw, or heard the defamation.
P must show D either intentionally published the information or was negligent in publishing the information.
Republication Rule: In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well.

Question 6

Libel

Answer 6

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

Question 7

Slander

Answer 7

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

Question 8

Slander Per Se

Answer 8

The below constitute slander per se:
Slander which imputes to P behavior or characteristics that are incompatible with the proper conduct of P’s business, profession, or office.
Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death).
Allegations that P has some loathsome disease.
Falsely imputing lack of chastity to a woman.

Question 9

CL privileges

Answer 9

Trust
Absolute Priv
Qualified/Conditional Priv

Question 10

Truth

Answer 10

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

Exception: P is a private, not public figure, and the matter is a private concern.

Question 11

Absolute Privilege

Answer 11

D may not be held liable for an otherwise defamatory message as a matter of law. No matter how bad the D is. Blanket protection.
Contexts:
Communications between spouses.
Statements made on the floor of the legislature.
Communications between high ranking executive officials.
Statements made in conduct of judicial proceedings.

Question 12

Qualified/Conditional Privilege

Answer 12

D is qualifiedly immune from liability for defamatory messages (among others) if:
Comments are made in a communication that appears reasonably necessary to protect or advance the D’s own legitimate interests;
Comments were communicated on a matter of interest to the recipient of the communication or a third person;
Comments were communicated concerning a matter of public interest to one empowered to protect that interest.

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

Question 13

Public Official

Answer 13

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

Question 14

Public figure

Answer 14

Treated just like public official, same standard of clear and convincing evidence.
All-purpose public figures: household names, e.g. Madonna.
Limited public figures: People who inject themselves into a controversy.

Question 15

Private Figure

Answer 15

Look at subject matter and determine whether it is of public or private concern. Consider form, content, and context.

Question 16

Public Concern

Answer 16

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.
Presumed or punitive damages require actual malice.

Question 17

Private Concern

Answer 17

P does not have to prove actual malice to get presumed or punitive damages (note - not settled; not tested)

Question 18

Intrusion into seclusion

Answer 18

D unreasonably intrudes into P’s seclusion (zone of privacy).
Intrusion must be highly objectionable to a reasonable person (e.g. wiretapping, stalking).
Damages include compensatory damages (e.g. mental distress) and if bad enough, punitive damages.

Question 19

Commercial appropriation of likeness or ID

Answer 19

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

Question 20

Public Disclosure of Private True Facts

Answer 20

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

Question 21

Portrayal in false light

Answer 21

D publishes matters portraying P in a false light. Looks like defamation but not quite, like saying someone has cancer or is poor. P must show:
Publication;
False information;
Divulging of information is highly offensive to reasonable person; and
Some level of fault (parallel to defamation rules – actual malice, etc.).

Question 22

Malicious Prosecution

Answer 22

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 23

Wrongful Institution of Civil Proceedings

Answer 23

Similar to malicious prosecution

Question 24

Abuse of Process

Answer 24

Exists where D intentionally misuses a judicial process (civil or criminal) for a purpose other than that for which it was intended. Also similar to malicious prosecution.

Question 25

Intentional Misrep Elements

Answer 25

Intentional material misrepresentation by D;
Misrepresentation can be a false, affirmative assertion of fact (en
gine is new) or an active concealment (roll back odometer).
Of past or present fact;
Made with knowledge; and
On which the P justifiably relies to P’s economic detriment.

Question 26

Intentional Misrep. Failure to disclose is not enough unless

Answer 26

There is a fiduciary relationship;
There is an ambiguous or misleading statement that causes reliance;
D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and D fails to disclose;
D makes a false assertion not intending reliance but discovers P relied; or
P reasonably expects there would be disclosure.
Mental state (key): D must intend P (or class of persons which P belongs) to rely (will act or fail to act in reliance on D’s misrepresentation)
Scienter present when D knew statement was false or is reckless as to veracity.

Question 27

N Misrep

Answer 27

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

Question 28

Interference w/ contractual relations

Answer 28

P must prove:
D knew that there is a contract between P and a third party; and
D acted with the purpose of having the contract breached or making it harder to perform.

Question 29

Interference w/ prospective economic advantage

Answer 29

Protects “expectancy” interests of future contract relations of a party. P can prevail only by showing that D:
Knew of prospective economic advantage; and
Acted to interfere with it for improper motives.
D can act to protect their own competitive interests.

Question 30

Injurious Falsehood

Answer 30

P must prove:
False statement;
Actual malice or D knew statement was false or recklessly disregarded veracity;
Made to another or published; and
Causing specific economic injury to P.
Note: Not about reputational harm but about economic loss.

Question 31

Respondeat Superior

Answer 31

Employer is liable for injuries caused by the negligence or strict liability of the employee if it occurred within the scope of employment.
Employer can be directly liable if negligent hiring.
Intentional torts by employees are generally outside the scope of employment, except when the employee uses force to further the employer’s purposes (e.g. bouncer at a bar commits battery when ejecting an unruly patron). Such use of force may fall within the scope of employment, resulting in vicarious liability for the employer.

Question 32

Independent Contractor

Answer 32

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

Question 33

Parent/Child

Answer 33

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

Question 34

Survival Statutes Modern

Answer 34

Death of the victim or tortfeasor no longer abates tort action and a claim can be brought by estate of decedent.

Question 35

Wrongful Death Statutes

Answer 35

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

Question 36

Loss of Consortium

Answer 36

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