Other Torts Flashcards
What are the two types of nuisance?
Public and private
What is private nuisance?
Unreasonable AND substantial interference
with use and enjoyment
of another’s property
usually between two private individuals
What is unreasonable interference?
For the interference to be unreasonable, the severity of the inflicted injury must outweigh the utility of the D’s conduct.
eg, is landowner installs bright light for no reason other than to annoy his neighbor, then there is no utility to D’s conducdt, and the annoyance it causes will outweigh the utility and therefore the interference will be unreasonbale.
Must be interference that is unreasonable by objective standard.
eg, if someone is especially sensitive and breaks objective standard, for instance, someone hates a smell, or has an acute allergy, then this would not be a nuisance
eg, if i’m shooting hoops early evening, and couple goes to sleep early, that’s not unreasonable by objective standard
eg, i’m playing heavy metal music at 3am, this is unreasonable by objective standard and a nuisance
What is a public nuisance?
an unreasonable interference
affecting
public at large
EG of public nuisance?
chemicals from power plant; something flowing downstream and infecting the town
Who brings action for public nuisance?
Usually, The government. The district attorney/prosecutor or whoever would bring on behalf of the people.
What if private person brings public nuisance suit?
If private P brings public nuisance suit, must prove some sort of special (usually economic or pecuniary (to do with money)) harm.
What is the challenge with defamation?
All the answer choices look good.
Must distinguish between the answers.
What is the approach to defamation?
- Make sure you know whether statement in question was defamatory. Just bc you don’t like it, may not be defamatory
What makes statement defamatory?
A defamatory statement;
The statement must be false (and negative) and NOT an opinion. It usually contains language that diminishes respect toward the plaintiff or deters others from associating with the plaintiff.
eg, someone says i’m a carolina fan…i take offense, but this does not necessarily diminish my respect, so no defamatory statement.
What are the elements of defamation?
Defamation occurs when the defendant:
- Publishes;
- A defamatory statement;
- Of or concerning the plaintiff;
- Causing damage to the plaintiff’s reputation.
What does “publishes” mean for defamation?
The statement must be communicated to a third party who understands the content of the statement. A person who merely repeats a defamatory statement may still be held liable for defamation.
eg, someone calls me a liar to my face, but no one else around. NOT defamation bc no 3P.
eg, what if someone else around, but they call me a liar in mandarin? NOT defamation unless 3P understood mandarin and heard it.
What does “of or concerning the plaintiff” mean for defamation?
A reasonable person must believe that the defamatory statement referred to this particular plaintiff.
What are the types of defamatory statements?
Written down, printed, or recorded statements = LIBEL
Spoken statements NOT recorded = SLANDER
What are the types of slander per se?
- Slander about someone’s profession;
- Slander about the chastity of a woman;
- Slander about crime of moral turpitude (look for an accusal of committing a felony);
- Slander about a loathsome disease (eg, STD accusation)
Does it matter WHO is being defamed?
Yes, sometimes. Public v private standards are different.
What if person being defamed is private individual?
Cannot act negligently, otherwise liable.
A private individual is any person that is not a public official or public figure. If the plaintiff is a private individual AND the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was false and the speaker was at least negligent.
What if person being defamed is public?
Actual Malice Standard. If the plaintiff is a public official or a public figure, the plaintiff must prove actual malice. This requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.
Who is considered to be a public official?
A public official is a person who has control over government office (includes political candidates).
Who is considered to be a public figure?
A general purpose public figure is a person of persuasive power and influence in society.
A limited purpose public figure is a person who has injected himself into a public controversy.
What damages can public official/figures recover?
If the plaintiff is a public official or public figure, the plaintiff can only recover actual proven damages (no punitive or presumed damages).
If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.
What are the defenses to defamation?
Truth is the biggest defense. IF true, it’s an absolute defense.
Privilege is an absolute defense. Any public proceeding/official proceeding, have an absolute privilege and cannot be sued by official/figure for defamation
What is the qualified privilege defense?
Matter that appears necessary to protect D’s interest or public interest
EG, you ask me for a referral letter, then I write it but say something honestly that reasonably believed to be true, you cannot sue me because I have qualified privilege bc you asked me for it.
Look for character reference fact pattern, hiring, something of this sort
What are the ways you can invade someone’s privacy?
- Portray someone in a false light
doesn’t necessarily have to be bad (this would be in category of defamation), just has to be false. Can even be complimentary
eg, you’re a carolina fan = portraying me in false light - Appropriation: unauthorized use of someone’s name/likeness for commercial advantage
eg, using celebrity in ads
Watch out for using someone’s name/likeness unauthorized, but no commercial gain - Public disclosure of private matter
eg, must be expectation of privacy. if person puts matter out there in the public (on social media sites, etc.), no expectation of privacy.
eg, if newsworthy or matter of public record, no exp of privacy - intrusion on exclusion
eg, going through someone’s drawers and taking information
for false light v defamation
Look for it being false, but not negative.
What is intentional misrepresentation aka fraud/deceit?
Can be intentional:
D misrepresents
intentionally
a material fact
that they knew or should have known
could be false
with intent to induce reliance
then person does rely and
causes damages
This is someone trying to trick you. 3-card montie on the boardwalk.
What is negligent misrepresentation?
D misrepresents
negligently (not on purpose)
with false-misleading statement
to someone with special relationship (usually fiduciary relationship)
they relied
caused them damages
eg, broker/client and broker fails to tell you about defect in roof (not on purpose); then they buy house and causes damages
What is tortious interference with a contractual relationship?
Contract exists
with D’s knowledge
and D intentionally
induces
to breach that K
causes damage
eg, broker/client and broker knows client represented and tries to get someone to break that K
eg, sports agent induces another sports star to get out of their K with other sports agent.
What is malicious prosecution?
Starting a criminal proceeding
without probable cause
for reason other than justice
eg, just want to make someone look bad
eg, revenge, with no PC that they did something bad
In terms of mental state of D, the plaintiff in a private nuisance action must show that the defendant’s interference with the plaintiff’s use and enjoyment was either
(a) intentional; (b) negligent; (c) reckless; or (d) stemming from an abnormally dangerous activity. See Rest. 2d Torts, § 822(b).
the word “intentional” is defined quite broadly in this context. It’s not necessary that the defendant act for the purpose of causing the interference. Rather, it’s enough that the defendant knows that the interference is either occurring, or is substantially certain to occur in the future, as a result of the defendant’s conduct.
What if someone publishes false statements about a public official and unreasonably failed to investigate the accusation before publishing it, and caused reputational damage to the public official?
They are not liable for defamation, because they merely acted negligently in unreasonably failing to investigate, and not reckless or intentionally (ie, with actual malice).
Publisher must have “entertained serious doubts” as to whether true and published anyway to be considered reckless. If honestly believe it to be true, however negligent/unreasonable that belief might be, the publisher is not liable for defamation against a public figure. WOULD BE liable for defamation if against PRIVATE individual though.
The Supreme Court has held that the First Amendment requires that a public figure, in order to recover for defamation, must prove that the defendant acted with more than mere negligence with regard to the truth or falsity of the defamatory statement.
As to the media and the publication of public disclosures and private facts…
…A qualified privilege exists for accurate reports of public hearings, meetings, or events of sufficient public interest.
For libel, P may recover…
…general damages (things like damage to reputation or personal relationships, and mental anguish.) without proving concrete measurable harm. P does not have to prove any special harm or economic damages to prevail on defamation claim
For slander (not slander per se) P MUST PROVE…
… special harm/economic damages (like a lost job, inheritance, gift, customers, and the like), which require more concrete showing of actual economic loss, to prevail
What is slander per se?
Must you prove special damages?
statements so bad that there are Presumed damages not limited to special damages (like a lost job, inheritance, gift, customers, and the like) and cover general damages (things like damage to reputation or personal relationships, and mental anguish.) = SLANDER PER SE
No, not required to prove special damages, can recover general damages.
In tort law, what are special v general v actual v nominal damages?
In tort law, special damages are damages like car dents or medical expenses that can actually be ascertained, and they are contrasted with
general damages, damages for things like intentional infliction of emotional distress which do not have a set monetary cost.
actual damages, also known as compensatory damages, are damages awarded by a court equivalent to the loss a party suffered. If a party’s right was technically violated but they suffered no harm or losses, a court may instead grant nominal damages.
court will look at fair market value to det actual damages
nominal damages = (like 1$) A trivial sum of money awarded to a plaintiff whose legal right has been technically violated but who has not established that they are entitled to compensatory damages because there was no accompanying loss or harm. Unlike compensatory damages which are intended to compensate for injury, nominal damages are awarded to commemorate the plaintiff’s vindication in court.
