Other Torts Flashcards
What is a public nuisance?
An activity that is an unreasonable interference with a public right.
How is a claim for public nuisance brought?
- Brought by a government actor such as an attorney general
- For an individual action, the individual must show that she is suffering harm different and distinct from the public at large.
* More Info:* Public Nuisance
What are the elements of a private nuisance?
- A thing or activity
- That substantially or unreasonably
- Interferes with a plaintiff’s use or enjoyment of his land
* More Info:* Private Nuisance
What mental state is required for private nuisance?
The defendant must be notified of the interference and the defendant’s continued action after being put on notice establishes intent.
What factors should be weighed in private nuisance claim?
- The value of the defendant’s activity
- Alternatives available to both defendant and the plaintiff to minimize the harm
- The nature of the locality
- Extent of the plaintiff’s injury
And
- Who was there first?
What remedy is available for a nuisance?
- Injunctions
Or
- Damages
What is an injunction?
An equitable remedy sought by the plaintiff that mandates a defendant to stop an activity.
What must be shown for a plaintiff to obtain an injunction for a private nuisance claim?
- There is a nuisance
- Plaintiff is suffering irreparable harm through the continuing nature of the nuisance
And
- Damages are not an adequate remedy.
What are the elements of defamation?
- Defendant Published
- Defamatory material
- Concerning the plaintiff
- That caused reputation harm
* More Info:* Defamation Elements
What are false reputation harming communications?
Defamations
What is are the steps to analyzing a defamation claim?
Step 1: Determine if the communication defamatory
Step 2: Evaluate pleading issues
Step 3: Evidence of publication
Step 4: Determine what the type of defamation is: libel or slander
Step 5: Determine if common law privileges are applicable Step 6: Analyze any first amendment issues
What are the elements of a defamatory statement?
- The statement can be believed to be truthful
- It subjects the plaintiff to:
a. Scorn
b. Ridicule
c. Contempt
Or
d. Deters 3rd parties from dealing with them
What statements cannot be defamatory?
- Hyperbole: no reasonable person would believe the statement
And
- Pure opinions
Can the tort claim for defamation survive death?
No, the dead do not have defamation claims
When is a communication reputation-harming?
It subjects the plaintiff to:
a. Scorn
b. Ridicule
c. Contempt
Or
d. Deters 3rd parties from dealing with them
What are pure opinions?
Statements that cannot be proved to be true or false.
How can a plaintiff assert defamation when the plaintiff is not named in the published statement?
The plaintiff must prove that it is of or concerning her.
What is the limit on scope of defamation?
It only applies to identifiable persons. If said about a group, generally it is not defamation.
What is publication in defamation?
When a defendant intentionally or negligently permitted someone other than the plaintiff to come into contact with the defamatory statement.
What are the elements of publication?
- Defendant intentionally or negligently permitted
- A third party to hear the defamation.
What is the republication rule?
In addition to the defendant who originates the defamatory message, other persons who repeat the defamation will be liable for the defemation. Republication may lead to liability even if the statement is disclaimed “defendant said, {defamatory statement}.” Multiplying a defamatory statement attaches liability to the multipliers.
What is libel?
A defamatory message embodied in a relatively permanent form (e.g. a writing, photo, media).
What are the types of defamations?
- Libel
- Slander
What are the elements of slander claim?
- Defamation
- Defamation message not in a permanent form (oral)
- Special damages which are specific economic damages flowing from the defamation
* More Info:* Slander Elements
What is the effect of slander per se?
The plaintiff does not have to prove special damages, they are presumed.
What are the types of defamations that trigger slander per se?
Do not have to prove special damages if the defamation is about a plaintiff’s:
- Performance in business or trade
- Commission of a crime involving moral turpitude or infamous punishment (imprisonment or death)
- Having a loathsome disease (venereal disease or leprosy).
- Unchastity to a woman or general sexual impropriety.
When does a plaintiff not need to prove special damages for a slander claim?
When the defamatory statement is in a slander per se category.
What are the common law privileges for defamation?
- Truth of statement
- Absolute privilege
- Constitutional issues
In a defamation case, what does the plaintiff have the burden to prove?
That the communication was false
What is the effect of an absolute privilege on a defamation claim?
The defendant will not be liable for defamation. It is a safe harbor for defamation.
When does the absolute privilege for defamation occur?
- Communications between spouses
- Statements made on the floor of a legislature
- Statements made among high-ranking government officials
- Statements made during judicial proceedings.
When do qualified privileges for defamation apply?
- Business associates, meaning members of a group with a common interest
And
- Providing a reference in a job setting
When does a defendant lose an otherwise available qualified privilege for defamation?
- When defendant excessively publishes
- When the defendant knows the statement is false
Or
- When the defendant is reckless as to the truth or falsity of the statement.
What are the constitutional issues in defamation claims?
- The status of the plaintiff: public official, public figure, or private figure
- The subject matter of the communication: public concern or private concern
- What damages does the plaintiff seek: injunction or damages
- The status of the defendant: Media defendant or non-media defendant
What must a claim establish if defamation relates to a public official in capacity as a public official?
- Clear and convincing evidence
- Defendant knew information was false or recklessly disregarded the truth or falsity of the statement.
Who are considered public figures for defamation?
- All purpose public figures: household names
- Limited public figures: injects themselves into a controversy trying to have an affect on the outcome.
* More Info:* Public Figures - Defamation
What must a claim establish if defamation relates to a public figure in capacity as a public figure?
- Clear and convincing evidence
- Defendant knew the published information was false or recklessly disregarded the truth or falsity of the statement.
What are the element of an intrusion into seclusion claim?
- Defendant intentionally
- Unreasonably
- Intrudes into plaintiff’s sphere of privacy (≠ public visible)
- Invasion is offensive to a reasonable person
What types of damages are available for intrusion into seclusion claims?
- Emotional distress
Or
- Punitive damages
What are the elements of a commercial appropriation claim?
- An unauthorized use of
- plaintiff’s identity or likeness
- For a commercial purpose (≠ newsworthy purpose)
* More Info:* Commercial Appropriation Elements
What are the elements for a public disclosure of private true facts claim?
- Disclosure of private facts (≠ from public record)
- Disclosure of which would be highly offensive to a reasonable person
- The facts are newsworthy
What are the types of invasions of privacy?
- Intrusion into Seclusion damages
- Commercial Appropriation
- Public Disclosure of Private True Facts
- Portrayal in a False Light.
Differentiate between portrayal in a false light and defamation.
False Light: The claim is offensive but it is not reputation harming.
Defamation: The claim is reputation harming.
What are the elements for portrayal in a false light claims?
- Publication of
- False information
- With the same level of fault required as in defamation (i.e. public figure/official need actual malice)
What is malicious prosecution?
Malicious prosecution arises when
- Criminal proceedings are instituted by defendant
- Plaintiff instituted it for an improper purpose and without probable cause
- The case terminate favorably to the defendant on the merits and cause defendant damages
What are the elements of an intentional misrepresentation?
- An intentional misrepresentation by the defendant
- Of a past or present fact
- Made with scienter
- Plaintiff justifiably relied upon the fact
What are the types of economic tort actions?
- Intentional misrepresentation
- Negligent misrepresentation
- Interference with contractual relations
- Interference with a prospective economic advantage
- Injurious falsehood (trade disparagement)
When is there a duty to disclose a fact?
- There is a fiduciary relationship
- There is ambiguous or misleading statement that causes reliance and needs clarification
- Defendant makes an assertion believing it to be true, subsequently discovers that it was false or that circumstances have changed, and fails to disclose the truth or changed circumstances
- When defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers that plaintiff intends to rely upon it
- Where plaintiff reasonably expects disclosure
What is the mental state requirement for intentional misrepresentation?
- Defendant must intend for the plaintiff to rely upon a statement
- Defendant must know the statement is false or is reckless as to truth or falsity
When can a π recover for negligent misrepresentation?
Generally, the defendant has no duty to avoid the negligent infliction of pure economic loss; however, the defendant is liable when there is a special relationship (fiduciary relationship).
More Info: Negligent Misrepresentation
When can a plaintiff recover for pure economic loss in torts?
Never; however, they can add in their economic loss when there is property damage or other injuries.
What are the elements for interference with contractual relations?
- Defendant knows that there is an existing contract between the plaintiff and a third party
And
- Defendant acts with the purpose of impairing the contract
Who can sue a lawyer for legal malpractice?
- A client
- An intended beneficiary under a will
What does the claim of intentional interference with a prospective economic advantage protect?
This tort protects the probable expectancy interests of future contractual relations of a party.
More Info: Intentional Interference with Contractual Relations
What are the elements of an intentional interference with a prospective economic advantage claim?
- Defendant knew of the prospective economic advantage of the plaintiff
- Defendant acted solely to interfere with the economic advantage for an improper purpose
What are the elements of an injurious falsehood/trade disparagement claim?
- A false statement
- Which the defendant knows is false or is reckless as to truth or falsity
- Made to another or published
- Causes specific economic injury to the plaintiff
* More Info:* Injurious Falsehood/Trade Disparagement Claim
What vicarious liability does an employer have for the torts of an employee?
An employer is liable for injuries caused by the negligence or strict liability of an employee if the tortious act occurred in the scope of employment.
If an employer is held liable for the actions of an employee, then who can an employer recover from?
He can seek indemnity from the employee.
How is an employer directly liable for their employees?
They are liable for negligent hiring.
When is an employer liable for an employee’s intentional tort?
When done pursuant to business purposes/when done to benefit the employer
When is an employer liable for an independent contractor’s actions?
When it’s not an independent contractor, and it is an employee. The more the employer controls:
- Means
- Method
And
- Manner of Work
The more likely they are an employee.
What claims can be brought against parents for the torts of their children?
- Negligent supervision
- Negligent entrustment
What is the effect of a survival statute?
The death of the victim or tortfeasor no longer abates the tort action and the claim survives the death of the victim. The claim becomes an asset of the estate.
What is the effect of a wrongful death statute?
An action by which either heirs of a deceased victim or the personal representative of the victim’s estate may bring a claim for their loss due to death.
What is a loss of consortium claim?
When a spouse is killed, the surviving spouse may bring a claim for loss of consortium for the loss of the
- Relationship
And
- Sex
* More Info:* Loss of Consortium
In a private nuisance, the harm to the plaintiff should be evaluated from whose standpoint?
The subjective point of view of the plaintiff; how much is it harming them particularly?
If a defendant’s wild animal wanders onto another’s property, what’s the liability to the defendant?
They are strictly liable for trespass.
When will assumption of the risk of animal attacks be a defense for a defendant?
When the victim does something voluntarily to cause the animal to injure him.
When are defendant’s animals excused from injuring others?
The injuries cause injuries to a plaintiff trespassing on defendant’s land
