Other Torts Flashcards
Malicious Prosecution
Malicious prosecution addresses the wrongful prosecution of an innocent person instigate in bad faith.
1) In order to prevail on a claim for malicious prosecution, the P must prove that 1) the D initiated legal proceedings against the P 2) without probable cause 3) for an improper purpose 4) that was terminated in favor of the P AND 5) damages.
Malicious Prosecution - Initiation of Legal Proceedings
Malicious prosecution can be established only if the D initiated legal proceedings against the P.
Malicious Prosecution - Lack of Probable Cause
Lack of probable cause means there was insufficient facts for a reasonable person to believe that a claim is plausible. Laypersons may only rely upon the device of counsel, but attorneys are held to the standard of a reasonably competent professional.
ESSAY TIP
The requirement of probable cause will likely be the main issue.
Malicious Prosecution - Improper Purpose
An improper purpose means for a purpose other than to bring the accused to justice. In the civil context it means that the suit was brought for any purpose other than to seek compensation for one’s injuries e.g. to harass or to extort a settlement by one who knows that the facts do not support his claim.
Malicious Prosecution - Terminated in P’s Favor
the prior proceeding must have been terminated in favor of the current P e.g. the charges were dropped or the case was dismissed.
Malicious Prosecution - Damages
Damages include all lossess that were caused by the D’s wrong such as expense incurred in defending the prior suit, attorney’s fees, embarrassment, and mental anguish.
MEMORY AID
WIFI (without probable cause, initial legal proceedings, favorable termination, improper purpose).
Abuse of Process
Abuse of process is the misuse of legal proceedings to accomplish a goal for which the process was not designed. This tort is usually committed when the D tries to compel the P to yield on some matter not involved in the suit e.g. to drive a party into bankruptcy.
1) To prevail for abuse of process, the P must prove that the D 1) misused the legal process for an improper purpose AND 2) attempted to accomplish an ulterior purpose
Nuisance
A private nuisance is a substantial and unreasonable interference with the use and enjoyment of one’s land. A nuisance is substantial if a person of normal sensibilities would be affect by the harm and considers it strongly offensive or seriously annoying. A slight inconvenience or a claim by a person with hypersensitive does NOT rise to the level of nuisance.
1) It is unreasonable if the gravity of the harm to the P outweighs the utility of the D’s conduct
2) Courts may consider many factors to determine if an activity or condition is unreasonable including 1) the character of the neighborhood such as whether the activity is customary in the area 2) the magnitude, frequency, or duration of the harm 3) priority in time 4) whether the D is in compliance with zoning and 5) the utility of the D’s activity – whether it is important to the community. No single factor is necessarily controlling.
Fraudulent Misrepresentation
A fraudulent misrepresentation is 1) a false statement of material fact 2) that the D knows is false i.e. scienter 3) made with the intent to induce a party to enter into a contract AND 4) the party actually and justifiably relies on the representation 4) causing economic loss.
