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MBE > MBE Torts > Other Torts > Flashcards

Other Torts Flashcards

Learn about: - Nuisance and its defenses - Defamation, privacy torts, defenses, and constitutional limitations - Misrepresentations and defenses - Intentional interference with business relations and defenses - Vicarious Liability - Joint & Several Liability

1
Q

Elements for public nuisance claim

A
  1. D unreasonably interfered with a public right (typically right to health, safety, or property); and
  2. P suffered a distinct and different harm from the public at large
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2
Q

Who has standing to bring a public nuisance claim?

A
  • Government (common), or
  • Individual (must show that she is suffering from a different and distinct harm than the public at large)
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3
Q

Elements of private nuisance claim

A

Substantial and unreasonable interference of P’s use or enjoyment of their land

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4
Q

What constitutes substantial and unreasonable interference for a nuisance claim?

A

Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person

Unreasonable: Injury outweighs utility of behavior

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5
Q

What are the remedies for nuisance?

A
  1. Injunctions;
  2. Damages
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6
Q

Differentiate between nuisance and trespass

A

Nuisance:

  • No physical invasion required (can be light, smells, etc)
  • Continuous
  • Substantial interference

Trespass:

  • Physical invasion required
  • Does not need to be continuous
  • Does not need substantial interference
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7
Q

Elements of defamation

A
  1. Defamatory statement;
  2. Concerning P;
  3. Published to a third party (either intentionally or negligently);
  4. That damages P’s reputation
    ** If matter is of public concern or P is a public figure, must also show →
  5. D acted with actual malice
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8
Q

2 types of defamation

A
  1. Libel (written)
  2. Slander (spoken)
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9
Q

What types of statements are considered defamatory?

A

Those that diminish respect or goodwill towards P or deter 3rd parties from dealing with them

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10
Q

What type of statements are not considered defamatory?

A
  • Hyperbole: no reasonable person would believe the statement
  • Pure opinions: cannot be proved true or false

⚠️ Note: Opinions can be defamatory if speaker implies knowledge of facts

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11
Q

What constitutes publication for defamation?

A

D intentionally or negligently makes statement to a third party (someone other than the person bringing the action)

⚠️ Note: If third party learns of the statement through the grapevine, no defamation claim

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12
Q

What is the re-publication rule?

A

If someone repeats or re-publishes a defamatory statement, they can be held liable (even if they claim they don’t know whether or not the statement is true)

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13
Q

Can the dead be defamed?

A

No

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14
Q

Define

libel

A

Defamatory statement that is written, published, or expressed in physical form

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15
Q

Are defamatory TV and radio broadcasts considered libel?

A

Yes

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16
Q

Elements of trade libel

A
  1. Publication;
  2. Of a disparaging statement about quality of P’s business or service;
  3. That D knew was false or acted with reckless disregard for its truth; and
  4. P suffered economic harm
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17
Q

What type of damages does P have to prove to recover for libel?

A

General damages are presumed, P doesn’t need to prove special damages

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18
Q

Define

slander

A

Defamatory statement made orally

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19
Q

What damages need to be proven for slander?

A

Special damages, i.e. calculable damages

⚠️ Note: Special damages do not need to be proved for slander per se

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20
Q

Define

slander per se

A

Defamatory statement that doesn’t require proof of special damages.

Accuses P of either:

  • Misconduct that reflects poorly on P’s profession;
  • Committing a crime involving moral turpitude;
  • Having a loathsome disease; or
  • Sexual misconduct or impropriety
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21
Q

If defamation involves a matter of public concern, what must P prove?

A
  1. Statement was false; and either:
  2. Actual malice (public figure) or negligence (private figure)
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22
Q

Define

matter of public concern

A
  1. Relates to the political, social, or other concerns of the community; or
  2. Newsworthy issue that is of general concern to the public
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23
Q

Who is considered a public figure for defamation?

A

Household names, those who have widely known fame

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24
Q

What constitutes actual malice for defamation?

A
  • Knowing the published information was false; or
  • Recklessly disregarding the truth or falsity of the statement
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25
Q

What are the 3 main defenses to defamation?

A
  1. Truth (absolute defense);
  2. Consent; or
  3. Privilege: absolute (complete defense) & qualified (can be revoked)
26
Q

What communications are protected by absolute privilege?

A
  • Between spouses;
  • On the floor of a legislature;
  • During judicial proceedings (must be related to proceeding);
  • Between high-ranking government officials; and
  • Required publications in the media
27
Q

What types of communications are subject to qualified privilege?

A
  • Involving the public interest;
  • Made to defend one’s reputation; or
  • Made to promote truthfulness
28
Q

When does D lose a qualified privilege for defamation (thereby exposing himself to liability)?

A
  • Exceeding scope of privilege; or
  • Acting with malice or reckless disregard for the truth
29
Q

If D reasonably but mistakenly believed statement was true, is she liable for defamation?

A

No, unless she was negligent

30
Q

4 types of invasions of privacy

A
  1. False light;
  2. Appropriation;
  3. Disclosure; and
  4. Intrusion upon seclusion

Acronym: FADI

31
Q

Define

intrusion upon seclusion

A

D intentionally intrudes into P’s sphere of privacy in a way that is offensive to a reasonable person (e.g. recording conversation with a camcorder)

⚠️ Note: Public places generally do not have an expectation of privacy

32
Q

Define

misappropriation

A

Unauthorized use of P’s identity or likeness for a commercial purpose that causes harm

33
Q

Elements of public disclosure of private facts

A
  1. D gave publicity to a matter concerning the private life of another;
  2. On a matter that is highly offensive to a reasonable person; and
  3. Not of legitimate concern to the public

⚠️ Note: Activities done in public are not private matters

34
Q

What constitutes “giving publicity” for a public disclosure tort?

A

Disseminating private information widely enough that it becomes public knowledge

35
Q

Elements for portrayal in a false light

A
  1. Publication of;
  2. False information about P;
  3. That is highly offensive to a reasonable person

⚠️ Note: Many jurisdictions also require proof that D acted with actual malice

36
Q

Does D still have liability if the private facts are of legitimate public concern for:

  1. Intrusion upon seclusion?
  2. Public disclosure?
  3. Appropriation?
  4. False light?
A
  1. Yes, still liable
  2. No, not liable
  3. No, not liable
  4. Yes, still liable
37
Q

Defenses for invasion of privacy torts

A
  1. Privilege (absolute or qualified);
  2. Consent

⚠️ Truth is not a valid defense

38
Q

Elements of malicious prosecution

A
  1. D commences proceedings;
  2. For an improper purpose;
  3. Without probable cause;
  4. Proceeding terminated in favor of P; and
  5. P suffered damages (job loss, reputational damage, etc)
39
Q

Are judges and prosecutors liable for malicious prosecution?

A

No, they have absolute immunity

40
Q

Elements for abuse of process

A
  1. D uses the legal process;
  2. For an ulterior purpose; and
  3. Willfully acts or threatens P to accomplish the ulterior purpose; and
  4. P sustains damages
41
Q

Elements of intentional mispresentation

A
  1. D mispresents a past or present material fact;
  2. That D knows or should know to be false;
  3. With the intent to mislead P;
  4. P justifiably relied upon the fact; and
  5. P suffered actual economic damages
42
Q

When does failure to disclose material facts or opinions constitute misrepresentation?

A
  • Fiduciary relationship exists;
  • Ambiguous or misleading statement causes reliance and needs clarification;
  • Circumstances have changed and the original assertions are no longer true; or
  • P reasonably expects disclosure
43
Q

Elements for negligent misrepresentation

A
  1. D negligently prepared business or professional materials;
  2. That misrepresented past or presents facts;
  3. D knew P would rely on misrepresentation;
  4. D breached duty of care owed to P;
  5. P did rely on D’s misrepresentation; and
  6. P suffered actual economic damages

(e.g. D is an accountant and negligently prepares an accounting report for his client, P)

44
Q

Elements for intentional interference with business relations (tortious interference)

A
  1. D knew there was an existing K between P and third party;
  2. D intentionally interfered with K;
  3. Interference resulted in breach; and
  4. P suffered damages

⚠️ Note: Does not apply to K’s that are terminable at-will

45
Q

When is interference with business relations justified?

A
  • Motivated by morality or health & safety
  • To protect financial business interests (e.g. cell phone company providing incentives for customers to abandon their current cell provider or cable company offering discounts to switch)
46
Q

Define

vicarious liability

A

Holds a third party is liable for the tortious acts of another

47
Q

Define

respondeat superior

A

Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment

48
Q

For vicarious liability, what acts are considered within the scope of employment?

A

Acts that:

  • Employee was hired to do or are part of her official duties; or
  • Benefit the employer
49
Q

For vicarious liability, differentiate a detour vs. a frolic

A
  • Detour: a minor deviation from the scope of employment (employer is liable)
  • Frolic: unauthorized and significant deviation (employer is not liable)
50
Q

When is an employer liable for an employee’s intentional tort?

A

When the tort falls within the scope of employment. Can fall within the scope of employment if:

  • Force is inherent in the job (e.g. bouncer);
  • Employer authorizes force; or
  • Force is necessary to achieve employer’s goals
51
Q

Is an employer liable for torts committed by an independent contractor?

A

No, unless:

  • Act is inherently dangerous;
  • Act arises from a non-delegable duty (e.g. duty of shopkeeper to keep premises safe)
52
Q

Define

negligent hiring

A

Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee

53
Q

Are business partners vicariously liable for torts committed by the other partners?

A

Yes, if the acts are committed within the scope of the partnership

54
Q

Are parents vicariously liable for the tortious acts of their children?

A

No, unless the parents:

  • Authorized, facilitated, or encouraged the tort; or
  • Knew or had reason to know of child’s propensity for such acts
55
Q

When is a parent liable for their own negligence with respect to their children’s acts?

A

Can be liable for negligent supervision or negligent entrustment if:

  • Parent had power to control the child;
  • Knew or should have known such control was necessary; and
  • Failed to exercise such control
56
Q

Define

dram shop rule

A

Seller of alcoholic beverages who provides alcohol to intoxicated guests can be held liable for injuries they cause to third parties

57
Q

Define

joint and several liability

A

Each D is fully and independently liable for the full amount of damages owed

Ex. (comparative fault jurisdiction) Both Max and Mat are jointly and severally liable for Brianne’s injuries. Brianne’s damages are $100,000. Brianne can collect $100,000 from Max or $100,000 from Mat, or $50,000 from Max and $50,000 from Mat (or another amount from each as long as the total doesn’t exceed $100,000).

More info: Joint and Several Liability

58
Q

Define

contribution

A

If held jointly and severally liable, D can seek contribution from the other D’s for their share of the damages

Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.

More info: Contribution

59
Q

Define

indemnity

A

Shifts entire loss from one D to another

Ex. Supplier can indemnify all previous suppliers in a supply chain

60
Q

Compare contribution with indemnification

A

Contribution: Equitable apportionment, or sharing, among D’s

Indemnification: Shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm

61
Q

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MBE Torts (4 decks)

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