Other Torts Flashcards
1) Defamation
a) Basic elements for private-figure private-concern (i.e., gossip cases!)
a) Basic elements for private-figure private-concern (i.e., gossip cases!)
i) A defamatory statement about the plaintiff
(1) “Defamatory” means that it adversely affects plaintiff’s reputation.
(a) It must be an assertion of fact.
(i) Ex.: Defendant states, “Plaintiff pays for law school by scamming buyers on eBay.” This is defamatory as it is a statement of fact that adversely affects the plaintiff’s reputation.
(b) Name-calling or stating a mere opinion is not enough.
(i) Ex.: If Defendant stated, “Plaintiff is really annoying,” that would not constitute a defamatory statement as that is a mere opinion.
(2) Plaintiff must be identified.
(a) Plaintiff is not identified if the plaintiff is part of a large group that is being defamed, but the plaintiff is identified if he is part of a small group that is being defamed.
(i) Ex.: If an article says all members of the American Association of Unicyclers steal the public’s money, no member of the Association can sue; but if the article says that “one of the members of the three-member Detroit branch of the American Association of Unicyclers has been found to embezzle money from the public,” all three members can sue.
(b) Plaintiff must be alive at the time the statement is made.
(c) A corporation may be a plaintiff.
ii) Unprivileged publication of the statement to a third party
(1) There must be a communication to a third person(s) (not the plaintiff!) who understands the statement.
(a) Ex.: It is not defamation if a defendant says something defamatory about Bob to Bob.
(b) Ex.: It is not defamation if a defendant says something defamatory about Bob to Lori in Spanish if Lori does not speak Spanish and does not understand what the defendant is saying.
(2) Only intent to publish is required (not necessarily intent to defame), so defendant is liable if she intended to publish the statement. Defendant may also be liable if she was negligent in her publication.
(a) Ex.: Glenda, a manager at Costco, stated in her dictaphone that she “caught Lilly stealing from the office cash register again” and reminded herself to recount the money at the end of the day. Unbeknownst to Glenda, she was actually speaking into the store intercom and everyone in Costco heard the statement. Glenda may be liable for her defamatory statement because she was negligent in her publication.
(b) Only one person is required to hear the statement for defamation to have occurred, but if more people hear it, more damages will be recovered.
(3) Who “publishes” a statement?
(a) Primary publisher—the first person to make the defamatory remark is liable.
(b) Republisher—one who repeats the statement is liable just the same as a primary publisher.
iii) Fault
(1) Under modern law, the defendant must speak with some degree of fault (i.e., at least negligence) in making the statement or he is not liable for defamation.
iv) Damages—depends on type of statement
(1) Libel
(a) Definition: Libel is written or an otherwise permanent defamatory statement. If it is libel once, it is always libel, even if later spoken.
(b) Damages are presumed in libel cases, but the plaintiff may prove damages and recover even more money.
(2) Slander
(a) Definition: Slander is a spoken defamatory statement. (If spoken, then later rewritten, the rewriting is libel).
(b) Damages are presumed if slander is in one of four “slander per se” categories. Slander per se exists if the defendant accuses the plaintiff of: (mnemonic = CLUB)
(i) committing a crime of moral turpitude (assault, larceny, etc.) (This is
probably the most common category!);
(ii) suffering from a loathsome disease (leprosy, venereal disease);
(iii) unchastity if plaintiff is a woman; or
(iv) something that reflects badly on the plaintiff’s business or profession.
- Ex.: “Larry Lawyer never went to law school and only pretends to be a licensed lawyer.”
(c) If slander does not fall into one of the “per se” categories, the plaintiff must prove actual damages by showing economic harm (getting fired, losing out on a contract).
Bar Exam Tip: This can be a sneaky MBE question! It will be easier if you
remember that you only need to prove damages on the MBE if it is a
slanderous statement that does not fall into one of the slander per se
“CLUB” categories.
1) Defamation
b) Defamation in cases of private figure public concern
b) Defamation in cases of private figure public concern
i) Prove all of the above four elements (defamatory statement, unprivileged publication, fault, damages) plus falsity. In a private figure, private concern, the plaintiff does not have to prove falsity but defendant can use truth as a defense.
ii) Damages are limited to the actual injury. But, damages are presumed if malice is present.
(1) Ex.: If defendant states, “the proctor at the bar exam falsely plants evidence that exam takers are cheating,” this is a private figure public concern case. If the proctor wanted to recover, he or she must show all of the elements above, plus falsity.
1) Defamation
c) Defamation in cases of public figure
i) A public figure is someone who has pervasive fame or notoriety either generally or in a particular public controversy.
ii) Prove all of the above five elements (defamatory statement, unprivileged publication, fault, damages, falsity). However, the level of fault required is malice. Plaintiff must show that the defendant made the statement with knowledge of the statement’s falsity or with reckless disregard as to its truth or falsity.
1) Defamation
d) The plaintiff’s reputation can be used as evidence in a defamation case for two reasons:
i) to prove damages, and
ii) to prove liability.
1) Defamation
e) Affirmative defenses
i) Consent
ii) Truth
(1) This is a defense in matters of purely private concern where the plaintiff is not required to prove falsity as part of its prima facie case. (Otherwise, the plaintiff must prove falsity as part of its prima facie case.)
(2) If the statement is factually accurate, there is no case for defamation.
iii) Privileges
(1) Absolute privilege
(a) Statements made during judicial, legislative, and executive proceedings (e.g., those made by judges, witnesses, legislators, etc.) are absolutely privileged.
(b) Statements made between spouses are absolutely privileged.
(2) Qualified privilege
(a) This privilege exists whenever candor is encouraged.
(b) Speakers must have reasonable belief the statement is accurate and only discuss matters relevant to the situation.
(i) Ex.: A statement made to an investigating police officer is privileged so long as the statement is relevant and the speaker is reasonable in her belief that the statement is accurate.
(ii) Ex.: Bill Boss wants to hire job applicant, Joe. Bill calls Joe’s past employer, Patty, and asks Patty whether Joe was a hard worker. Patty states that he was but she thought he may have been stealing petty cash from the register. These statements are privileged so long as Patty’s belief is reasonable.
2) Privacy torts
Bar Exam Tip: unlike defamation (where the information spread is false), these four torts usually have to do with truth, not falsity.
a) Intrusion (mnemonic = PPO)
i) defendant intentionally pries or intrudes
ii) into a private place
iii) in a way that would be offensive to the reasonable person.
(1) Ex.: Peering through the windows of plaintiff’s home with binoculars, stalking, tapping plaintiff’s phone lines.
b) Appropriation
i) Elements:
(1) an unauthorized use of the plaintiff’s name or likeness
(2) to advertise a product.
(a) Plaintiff does not have to be famous.
(b) Defendant’s purpose must be commercial!
(c) Note: appropriation is not present if the purpose is merely newsworthy (e.g., if plaintiff’s face is put on the cover of a newspaper or magazine as part of a story).
c) False light
i) defendant widely spreads facts about plaintiff (the defendant must tell a lot of people, unlike defamation, where the defendant does not need to tell a lot of people)
ii) which place plaintiff in a false light that would be
iii) offensive to a reasonable person.
(1) The statement just has to be objectionable, not necessarily defamatory. For example, one could mischaracterize beliefs in a way that is not defamatory but that would still be objectionable to that person.
(a) Ex.: Sally (who is very against abortion and constantly protests it outside of abortion clinics) could be put in a false light if someone said, “Sally is always at the abortion clinic, if you know what I mean.”
(2) Fault is not required. Defendant may be reasonable in his belief and may still be liable for putting the plaintiff in a false light.
iv) Note: newsworthy exception—the First Amendment prohibits recovery when the published matter is in the public interest unless the defendant acted with malice.
d) Disclosure
i) defendant widely disseminates or publishes
ii) private information about the plaintiff
iii) that would be highly offensive to a reasonable person.
(1) Unlike defamation and false light, the information is accurate.
(2) It must be confidential information—and truly private.
(3) There is an exception for newsworthy material that is very broad.
e) Affirmative defenses to privacy torts
i) Consent is a defense to all four privacy torts.
(1) However, a mistake (even if it was reasonable) as to whether consent was given is not a defense.
ii) Defamation privileges apply to false light and disclosure.
iii) Note: one does not have privacy rights after one dies.
3) Nuisance
a) There are two kinds of nuisance:
i) Private nuisance: there is a substantial unreasonable interference with the plaintiff’s use or enjoyment of her property.
(1) Ignore the plaintiff’s hypersensitivity or specialized use of her property. The interference must be “unreasonable” (offensive, annoying) to an average person in the community.
ii) Public nuisance: When an act unreasonably interferes with the health, safety, or morals of a community. To successfully sue, plaintiff must suffer unique damages.
(1) Ex.: There is a large display of Christmas lights on a person’s house in a city downtown. The display includes animated reindeer that gallop on the lawn and look as though they will run into the street.
This causes a traffic jam on the winding road that passes by the person’s house. This is a public nuisance. Can all of the people who sit in traffic sue? No. In order to sue, the plaintiff must show he suffered a unique harm (e.g., if the plaintiff got into a car accident due to the display, the plaintiff may recover).
b) Defendant’s state of mind does not matter. Regardless of whether the defendant is acting intentionally or accidentally, it makes no difference in a nuisance action.
c) Distinction from trespass:
i) Defendant is not crossing the boundary line into plaintiff’s land.
ii) Defendant is doing something on his own property that interferes with plaintiff’s use or enjoyment of his land (rather than his exclusive possession).
d) “Coming to the nuisance”
i) Most jurisdictions state that the fact that a nuisance existed before the plaintiff came within its scope is no defense. However, if the plaintiff knew of it then this could be used against her.
(1) Ex.: Linda moves next door to a home that has a dry cleaning operation that emits a foul odor. She knew the existence of the condition prior to moving into the neighborhood. She could still be successful in a nuisance action against the landowner. However, because she knew of the nuisance a court may take that into account and find against her.
e) If a plaintiff succeeds in establishing a private nuisance (or ongoing trespass), “a court will apply a balancing test to determine whether [the plaintiff] can obtain injunctive relief.” The court will balance the impact of the injunction on both parties and on the public.
4) Other torts (less heavily tested)
a) Malicious prosecution
i) Elements:
(1) prior proceedings have been terminated in favor of the present plaintiff,
(2) there was an absence of probable cause for those proceedings, and
(3) “malice” was present.
b) Intentional interference with business relations
i) Elements:
(1) there is a valid business relationship or expectancy existed between the parties;
(2) the defendant knew of this relationship or expectancy;
(3) the defendant intentionally coerced one of the parties to terminate the business relationship, breach a contract, or withhold a business expectancy;
(4) the defendant was not authorized to interfere with the parties’ dealings; and
(5) the defendant’s interference resulted in damages to the plaintiff.
ii) Remedy to plaintiff:
(1) economic losses,
(2) punitive damages if the defendant acted maliciously, and/or
(3) an injunction.
c) Misrepresentation
i) Elements of intentional misrepresentation:
(1) there is a material misrepresentation by defendant,
(a) This can be through words or conduct. Generally, nondisclosure of a material fact is not enough to suffice for misrepresentation (unless there was a fiduciary relationship between the parties, a need to correct a past false statement, or a partial disclosure was made where a full disclosure should have been made).
(b) “Puffing” is not considered to be a misrepresentation.
(2) the defendant knew his statement was false or said it with reckless indifference to the truth (scienter),
(3) the defendant had intent to induce reliance on the misrepresentation,
(4) there was justifiable reliance by the plaintiff, and
(5) the plaintiff suffered pecuniary damage.
ii) Note: there is also such thing as negligent misrepresentation as well as innocent misrepresentation (neither of these is heavily tested)
