Other Torts Flashcards
Public nuisance:
An unreasonable interference with a right common to the general public.
To maintain a proceeding to enjoin or abate a public nuisance, one must:
1) have the right to recover damages;
2) have authority as a public official or public agency to represent the state or a political subdivision in a matter; or
3) have standing to sue as a representative of the general public, as a citizen in a citizen’s action, or as a member of a class in a class action
Private nuisance:
a thing or activity that substantially and unreasonably interferes with plaintiff’s use and enjoyment of her land
The interference must be unreasonable
For private nuisance, the invasion of another’s interest in the private use and enjoyment of land must be either:
1) intentional and unreasonable; or
2) unintentional and otherwise actionable under the rules for liability for negligent or reckless conduct
If a plaintiff acquires or improves his land after a nuisance exists, is he barred from recovery?
Not necessarily, but it is a factor for determining if the nuisance is actionable.
Defamation requires:
1) Defamatory statement of fact (not opinion)
2) Publication to any third party who reasonably understands
3) Damages (general damages presumed); special damages not required for libel and slander per se
A message is defamatory if:
it lowers plaintiff in the esteem of the community, or discourages third persons from associating with him
will lead others to feel hatred, ridicule, contempt or scorn for plaintiff.
Defamatory per se:
if it is apparent on the face of the message that it will injure plaintiff’s reputation.
Plaintiff has the burden to prove a publication. Publication of a defamatory statement occurs when
A reasonable third person who received the defamatory message understood it to refer to plaintiff. Thus, if the plaintiff is not specifically named in the allegedly defamatory communication, plaintiff must allege that through colloquium that some people will interpret the communication to be about plaintiff.
Libel:
Traditionally, a written form of defamation
Today, includes a defamatory message in permanent form - including a sound recording, video recording, picture, sculpture, etc.
Slander:
Traditionally, spoken form of defamation
Today, it is a defamatory message not preserved in permanent form
Slander per se:
Type of slander historically regarded as so harmful that it was presumed that plaintiff suffered damage from the very fact of its utterance.
Four types of slander per se:
1) Slander that imputed to plaintiff the commission of a crime involving moral turpitude or infamous punishment (imprisonment or death)
2) Allegations of plaintiff having a loathsome disease.
3) Slander which imputes to plaintiff behavior or characteristics that are incompatible with the proper conduct of his business, profession, or office
4) Slander which falsely imputed unchastity to a woman
Common law defense to defamation - truth:
Historically, falsity presumed once P established the publication of a defamatory communication. Thus, truth was a substantial defense
Common law defense to defamation - absolute privilege:
1) Legislator is not liable for a defamatory message uttered while on the floor of the legislature or during hearings or committee proceedings
2) A participant in judicial proceedings (judge, attorney, witness or juror) is not liable for any defamatory message it reasonbly related to the proceedings
Qualified Privilege:
Applies to a defendant who communicates on a matter of interest to the recipient of the communication or a 3d person is qualifiedly immune from liability for defamatory messages
Applies to defamatory messages republished in a report of public hearings or meetings, so long as defendant’s report is fair and accurate
Qualified privilege is lost if:
defendant does not possess an honest belief in the truth of the defamatory message
Where plaintiff is a public official or public figure, plaintiff must establish that defendant acted with:
malice - defined as knowing falsity or recklessness as to truth or falsity.
Types of Invasion of Privacy claims:
1) Intrusion upon seclusion
2) Appropriation of Identity or Likeness
3) Public Disclosure of Private Facts
4) Portrayal in a False Light
Intrusion upon seclusion
Occurs when defendant unreasonably intrudes into plaintiff’s seclusion
This includes physical intrusions (placing webcam in Plaintiff’s bathroom) and non-physical (photographing Plaintiff in his/her backyard)
Defendant’s conduct must be highly objectionable to a reasonable person
Appropriation of Likeness:
Unauthorized use of plaintiff’s identity or likeness for defendant’s commercial advantage
Public disclosure of private facts:
Occurs when defendant unreasonably discloses private facts about plaintiff to the public.
Actionable if it would be highly offensive to a reasonable person and not of legitimate public concern
The private facts must be disseminated to the public - telling a 3d party is not sufficient (that would be better as a defamation claim)
Information disclosed must be an aspect or component of plaintiff’s life not open to public view or inspection and not a matter of public record.
Not actionable when publication is newsworthy.
Portrayal in a false light:
Occurs when defendant publishes matters that portray plaintiff in a false light.
Must be communicated to a substantial number of people
False light means:
attributing to plaintiff views he does not hold or attributing actions to him that he did not take.
A reasonable person must find the action highly offensive.
