Other Torts Flashcards
572 - 5 elements of defamation
(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.
573 - What is defamatory language?
…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.
574 - What must a P show in order to prove a defamatory statement was considered “of and concering the P”?
… 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.
575 - How is the PUBLICATION element of dafamation satisfied?
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.
576 - LIBEL
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.
577 - SLANDER
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).
578 - When a defamatory statement involves a matter of public concern, does the P have the burden to prove falsity?
The 1st Am requires all Ps to bear the burden of proving that the statement is false.
579 - 8 defenses to defamation
(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.
580 - 4 types of INVASION OF PRIVACY torts
(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.
581 - MISAPPRORPRIATION OF P’S NAME OR PICTURE
is the UNAUTHORIZED USE of a P’s name or LIKENESS for advertising or other commercial purposes.
582 - INTRUSION ON P’S AFFAIRS OR SECLUSION
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.
583 - 4 elements of the PLUBLICLY PLACING THE P IN A FALSE LIGHFT
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.
584 - PULBIC DISCLOSURE OF PRIVATE FACTS
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.
585 - What are the types of misrepresentations by Ds?
(i) Intentional misrep; (ii) negligent misrep; (iii) misrep based on strict liability
586 - MALICIOUS PROSECUTION
the tort of malicious prosecution is an action for the wrongful institution of criminal proceedings by one private citizen against another.
587 - 5 elements of INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
(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.
629 - PRIVATE NUISANCE
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.
630 - Public Nuisance
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.
803 - Who may bring an action for defamation?
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.
804 - May a social club have sufficient status as a legal entity to sue for defamation?
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.
806 - 2 types of publishers
Original publishers and REpublishers
807 - SLANDER PER SE
is slander that is actionable even without a showing of special damages. Tip: There are four slander per se categories.
808 - ABSOLUTE PRIVILEGES in the context of defamation cases?
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.
809 - 4 elements of QUALIFIED PRIVILEGE
(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.
810 - 6 elements of a NEGLIGENT MISREPRESENTATION
(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.
836 - When may a private citizen recover for a public nuisance?
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.
840 - INTENTIONAL ALIENATION OF AFFECTIONS
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.
1353 - when MUST a P show actual malice in a defamation case?
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.
1354 - when is a statement considered DEFAMATORY?
if it has the tendency to harm the reputation of the P.
2035 - categories of slander per se
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.
2036 - Under a defamation action, how do the standards of proof differ for private versus public figures?
*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.
2037 - define the PUBLICATION element of defamation
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.
2038 - Common law defenses to defamation
i) consent; ii) truth; and iii) privilege including absolute nad qualified
2039 - define ACTUAL MALICE
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.
2040 - What must a P prove to recover when they are portrayed in a FALSE LIGHT as to a matter of public interest?
they must porve that the D acted with actual malice
2041 - Which IoP torts does the NEWSWORTHINESS EXCEPTION apply to?
i) misappropriation of a P’s name or picture; AND ii) public disclosure of private facts.
2042 - Are consent and privilege defenses to IoP torts?
Yes, to biable to ALL IoP torts.
2043 - define DEFAMATION
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.
2044 - types of damages available for defamation?
*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.
2045 - define INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
arises when a third-party interferes with a business contract or expectancy.
2046 - 5 elements of an intentional misrepresentation (fraud)?
(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.
