Other Torts

Question 1

Public nuisance:

Answer 1

An unreasonable interference with a right common to the general public.

Question 2

To maintain a proceeding to enjoin or abate a public nuisance, one must:

Answer 2

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

Question 3

Private nuisance:

Answer 3

a thing or activity that substantially and unreasonably interferes with plaintiff’s use and enjoyment of her land

The interference must be unreasonable

Question 4

For private nuisance, the invasion of another’s interest in the private use and enjoyment of land must be either:

Answer 4

1) intentional and unreasonable; or

2) unintentional and otherwise actionable under the rules for liability for negligent or reckless conduct

Question 5

If a plaintiff acquires or improves his land after a nuisance exists, is he barred from recovery?

Answer 5

Not necessarily, but it is a factor for determining if the nuisance is actionable.

Question 6

Defamation requires:

Answer 6

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

Question 7

A message is defamatory if:

Answer 7

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.

Question 8

Defamatory per se:

Answer 8

if it is apparent on the face of the message that it will injure plaintiff’s reputation.

Question 9

Plaintiff has the burden to prove a publication. Publication of a defamatory statement occurs when

Answer 9

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.

Question 10

Libel:

Answer 10

Traditionally, a written form of defamation
Today, includes a defamatory message in permanent form - including a sound recording, video recording, picture, sculpture, etc.

Question 11

Slander:

Answer 11

Traditionally, spoken form of defamation

Today, it is a defamatory message not preserved in permanent form

Question 12

Slander per se:

Answer 12

Type of slander historically regarded as so harmful that it was presumed that plaintiff suffered damage from the very fact of its utterance.

Question 13

Four types of slander per se:

Answer 13

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

Question 14

Common law defense to defamation - truth:

Answer 14

Historically, falsity presumed once P established the publication of a defamatory communication. Thus, truth was a substantial defense

Question 15

Common law defense to defamation - absolute privilege:

Answer 15

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

Question 16

Qualified Privilege:

Answer 16

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

Question 17

Qualified privilege is lost if:

Answer 17

defendant does not possess an honest belief in the truth of the defamatory message

Question 18

Where plaintiff is a public official or public figure, plaintiff must establish that defendant acted with:

Answer 18

malice - defined as knowing falsity or recklessness as to truth or falsity.

Question 19

Types of Invasion of Privacy claims:

Answer 19

1) Intrusion upon seclusion
2) Appropriation of Identity or Likeness
3) Public Disclosure of Private Facts
4) Portrayal in a False Light

Question 20

Intrusion upon seclusion

Answer 20

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

Question 21

Appropriation of Likeness:

Answer 21

Unauthorized use of plaintiff’s identity or likeness for defendant’s commercial advantage

Question 22

Public disclosure of private facts:

Answer 22

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.

Question 23

Portrayal in a false light:

Answer 23

Occurs when defendant publishes matters that portray plaintiff in a false light.

Must be communicated to a substantial number of people

Question 24

False light means:

Answer 24

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.

Question 25

Defenses for invasion of privacy:

Answer 25

Truth is not a defense to appropriation or intrusion because truth or falsity is not a relevant issue.

Truth is a complete defense to portrayal in a false light.

Question 26

Economic torts include:

Answer 26

Intentional Misrepresentation (Fraud); 
Interference with Contractual Relations

Question 27

Intentional Misrepresentation:

Answer 27

An assertion of false past or present fact (intentional misrepresentation) by defendant, made with scienter, which is material and justifiably relied upon by plaintiff and which causes damages to plaintiff

Question 28

A misrepresentation can consist of:

Answer 28

1) a false, affirmative assertion;
2) active concealment; or
3) an omission of fact (failure to disclose)

Question 29

Interference with Contractual Relations:

Answer 29

Inducing breach of contract or interference with contract