Other Torts

Question 1

572 - 5 elements of defamation

Answer 1

(1) publication to 3rd persons;
(2) which* is understood as defamatory to the P;
(3) contains an *allegation of falsity;
(4) causation by the D; and
(5) damages.

Tip: “Actual Falsity” may also be required for some types of defamation.

Question 2

573 - What is defamatory language?

Answer 2

…refers to a statement that has potential to injure the reputation of the P.

The statement must tend to lower the P’s reputation in the estimation of the community where published.

Tip: Statements that are not defamatory on their face may still constitute defamatory language.

Question 3

574 - What must a P show in order to prove a defamatory statement was considered “of and concering the P”?

Answer 3

… the P must show that some third person reasonably interpreted it to refer to the P.

Tip: where a publication is clearly defamatory of someone, yet on its face does not refer to the P, the P must establish some persons reasonably interpreted it as about the P.

Question 4

575 - How is the PUBLICATION element of dafamation satisfied?

Answer 4

The defamation must be published (i.e., communicated) to someone other than the P, because the recovery intended to remedy damage to reputation. Tip: Statementes uttered by the D directly to the P and neiter seen nor heard by anyone else, do not satisfy this requirement.

Question 5

576 - LIBEL

Answer 5

Libel is defamation that appears in some written or printed form (i.e., appearing in a newspaper or letter). Tip: Generally, representations tot he eye are libel. Thus, words, pictures, signs, statutes, films, and even certain conduct may be libel.

Question 6

577 - SLANDER

Answer 6

Slander is usually oral defamation. i.e., representation to the ear. The principal characteristic of slander is that the defamation is in less permament and less phsyical form. Tip: Other examples include gestures (e.g., nodding one’s head).

Question 7

578 - When a defamatory statement involves a matter of public concern, does the P have the burden to prove falsity?

Answer 7

The 1st Am requires all Ps to bear the burden of proving that the statement is false.

Question 8

579 - 8 defenses to defamation

Answer 8

(i) Truth; (ii) Consent; (iii) common law absolute/Qualified Privilege; (iv) Fair Comment privilege; (v) record Libel privilege; (vi) federal preemptive privileges; (vii) REpublushiers defenses; AND (viii) SLAPP suits.

Question 9

580 - 4 types of INVASION OF PRIVACY torts

Answer 9

(i) misappropriation of P’s name or picture; (ii) intrusion upon P’s seclusion or private affairs; (iii) false light; and (iv) public disclosure of private facts. Tip: Each type of invasion should be considered its own tort.

Question 10

581 - MISAPPRORPRIATION OF P’S NAME OR PICTURE

Answer 10

is the UNAUTHORIZED USE of a P’s name or LIKENESS for advertising or other commercial purposes.

Question 11

582 - INTRUSION ON P’S AFFAIRS OR SECLUSION

Answer 11

is an intentional/negligent intrusion by a D into a P’s private affairs in a manner that would be highly offensie to a reasonable person. Tip: the P must have been in an area where they reasonably expected privacy.

Question 12

583 - 4 elements of the PLUBLICLY PLACING THE P IN A FALSE LIGHFT

Answer 12

Publically placing a P in false light requires proof of: (1) publication by the D; (2) that places the P in a false light in the public eye; (3) the misrepresentation would be highly offensive to a reasonable person; AND (4) causation. Tip: If the P is a public figure or it is a matter of public concern, then actual malice (knowing or reckless falsity) must be shown.

Question 13

584 - PULBIC DISCLOSURE OF PRIVATE FACTS

Answer 13

arises when the D publishes truthful private information about the P that would be highly offensive to a reasonable person. The disclosure is made to the PUBLIC AT LARGE or to ENOUGH INDIVIDUALS that it is likely to reach the general public. Tip: the publication of private facts is privileged if the facts are newsworthy.

Question 14

585 - What are the types of misrepresentations by Ds?

Answer 14

(i) Intentional misrep; (ii) negligent misrep; (iii) misrep based on strict liability

Question 15

586 - MALICIOUS PROSECUTION

Answer 15

the tort of malicious prosecution is an action for the wrongful institution of criminal proceedings by one private citizen against another.

Question 16

587 - 5 elements of INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS

Answer 16

(1) there was a contract/business expectancy; (2) the D knows of the contract/business expectancy; (3) the D INTENTIONALLY induces another party to breach or terminate the contractual relationship; (4) a breach occurs; and (5) the O suffers damages.

Question 17

629 - PRIVATE NUISANCE

Answer 17

a SUBSTANTIAL and UNREASONABLE interference with the possessory interest of an indivudal in the use or enjoyment of their land. Tip: a P’s hypersensitivity or abnormal use of the land is NOT considered when determining substantial interference.

Question 18

630 - Public Nuisance

Answer 18

a UNREASONABLE interference with the Health, Safety, or Property Rigts of the community. Tip: Recovery for public nuisance is limited to Ps with particularized, unique damages.

Question 19

803 - Who may bring an action for defamation?

Answer 19

i) living persons; ii) corporations; iii) partnerships; and/or iv) any other legally recognized entity. Tip: The estate of a deceased person may not bring an action for defamation on that person’s behalf.

Question 20

804 - May a social club have sufficient status as a legal entity to sue for defamation?

Answer 20

No - clubs, fraternaties, and other unincorporated associations do NOTpossess sufficient status as an entity to sue for defamation. Tip: However, individual members may sure if the matter clearly defames them.

Question 21

806 - 2 types of publishers

Answer 21

Original publishers and REpublishers

Question 22

807 - SLANDER PER SE

Answer 22

is slander that is actionable even without a showing of special damages. Tip: There are four slander per se categories.

Question 23

808 - ABSOLUTE PRIVILEGES in the context of defamation cases?

Answer 23

are complete defenses against claims based on defamation and privacy regardless of malice or abuse. Tip: Absolute privilege extends to judicials officers, attorneys, jurors, witnesses in legislative proceedings, legally required publications, and statements made by a party during trial or in a pleading.

Question 24

809 - 4 elements of QUALIFIED PRIVILEGE

Answer 24

(1) reasonable belief that an important interest is threatened; (2) the statement heard is reasonably RELATED to the interest protected; (3) a reasonable belief that the person to whom the statement is published can protect the interest; AND (4) some relationship between the publisher and the person to whom the statement is published.

Question 25

810 - 6 elements of a NEGLIGENT MISREPRESENTATION

Answer 25

(1) misrep by the D; (2) supplied for the guidance of others in a BIZ TRANS; (3) the D KNEW that the information was supplied to guide the P in their biz trans; (4) the D was negligent in obtaining or communicating the false infomration; (5) actual and reasonable RELIANCE by the P; (6) the false information proximately caused the damages. Tip: Neg misrep is an action limited to commercial transaction.

Question 26

836 - When may a private citizen recover for a public nuisance?

Answer 26

ONLY if/when they suffered an injury “peculiar in kind” Tip: The lawful sale of lawful products does not give rise to a public nuisance claim.

Question 27

840 - INTENTIONAL ALIENATION OF AFFECTIONS

Answer 27

is a tort by which a husband could sue a third-party who had intentionally alienated the affections of his wife. Tip: most states have abolished the action by either judicial or legislative action.

Question 28

1353 - when MUST a P show actual malice in a defamation case?

Answer 28

P must show actual malice when the defamatory statement concerns: (a) public officials; (b) all-purpose public figures; OR (c) limited-purpose public figures. Tip: Private individuals do not need to make a showing of malice to prevail.

Question 29

1354 - when is a statement considered DEFAMATORY?

Answer 29

if it has the tendency to harm the reputation of the P.

Question 30

2035 - categories of slander per se

Answer 30

a statement that: (i) adversly reflects the business reputation of the P; (ii) is about the unchastity of an unmarried women; (iii) states that the P has or had a loathsome disease; OR (iv) attributes a crime of moral turpitude to the P.

Question 31

2036 - Under a defamation action, how do the standards of proof differ for private versus public figures?

Answer 31

*When the P is PUBLIC OFFICIAL or PUBLIC FIGURE -> actual malice must be shown; *When the P is a PRIVATE PERSON, the standard differs based on whether the statement involes a matter of P/P concerns. PUBLIC CONCERN -> neg is required. PRIVATE CONCERN -> publication only suffices.

Question 32

2037 - define the PUBLICATION element of defamation

Answer 32

a D’s message must be intentionally or negligently communicated to a third person who receives and understands it. Tip: It is not actionable to utter a defamatory message to the P alone.

Question 33

2038 - Common law defenses to defamation

Answer 33

i) consent; ii) truth; and iii) privilege including absolute nad qualified

Question 34

2039 - define ACTUAL MALICE

Answer 34

actual malice occurs when a statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. Tip: For defamaation matters involving priv-persons & matters, there is a “no-fault” standard. However, where the P is a pub/priv figure, the P must establish that the D acted with actual malice.

Question 35

2040 - What must a P prove to recover when they are portrayed in a FALSE LIGHT as to a matter of public interest?

Answer 35

they must porve that the D acted with actual malice

Question 36

2041 - Which IoP torts does the NEWSWORTHINESS EXCEPTION apply to?

Answer 36

i) misappropriation of a P’s name or picture; AND ii) public disclosure of private facts.

Question 37

2042 - Are consent and privilege defenses to IoP torts?

Answer 37

Yes, to biable to ALL IoP torts.

Question 38

2043 - define DEFAMATION

Answer 38

Defamation arises when a statement concerning the plaintiff is made by the defendant to a third person that is harmful to the P’s reputation.

Question 39

2044 - types of damages available for defamation?

Answer 39

*General damages are presumed by law; *Special damages, meaning P suffered special economic loss due to the defamatory statement, must be shown for SLANDER, but are not required to recover for libel and slander per se.

Question 40

2045 - define INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS

Answer 40

arises when a third-party interferes with a business contract or expectancy.

Question 41

2046 - 5 elements of an intentional misrepresentation (fraud)?

Answer 41

(1) a misrepresentation of material facts by the D; (2) the D knew the statment was false; (3) intent of the D to induce the P; (4) actual and reasonable reliance on the P; AND (5) damages. Tip: P must prove actual pecuniary loss to recover.