Other Torts Flashcards
Nuisance
Substantial and unreasonable interference with another’s use and enjoyment of property (e.g. dust, smoke, chemicals, criminals)
Nuisance: Elements
- Substantial
- offensive, incovenient, or annoying to the AVERAGE person in the community
- Unreasonable (balancing test)
- utility vs. harm (actual injury outweighs utility)
-Non-trespassory
Nuisance: Types
Private: Substantial, unreasonable interference with another’s use or enjoyment of property
Public: Act unreasonably interferes with Health, Safety, or Property right of community
-standing: UNIQUE damage
Nuisance: Remedies
- damages
- injunction
- abatement by self-help
- owner/possessor
- demand
- entry reasonable
- force reasonable
***If nuisance, do INJUNCTION analysis
Misrepresentation: Intentional (fraud)
A misrepresentation of material fact made knowingly with intent to induce P’s reliance, causing P to justifiably rely to his detriment
Intentional Misrepresentation: Elements
- Misrepresentation of material fact
- Scienter (D knew statement false)
- Intent (to induce reliance)
- Justifiable reliance (not on opinion)
- Damages (pecuniary)
***NO defenses
Misrepresentation: Negligent
Misrepresentation of material fact which is made with a lack of DUE CARE, intended to induce reliance, which proximately causes P’s damage
**Limited to commercial/professional setting
Negligent Misrepresentation: Elements
- Misrepresentation (in commercial setting)
- need special relationship
- Breach of duty
- only if PARTICULAR P is contemplated
- Causation
- Justifiable Reliance
- Damages (out-of-pocket only)
Business Torts
Interference with Contract
-words or action by D intentionally interfering with existing contract of P, causing damages
Interference with Prospective Advantage
Business Torts: Elements
- Valid relationship or Business expectation (e.g. existing contract)
- D has knowledge of relationship or expectation
- Intentional interference by D inducing breach or termination of expectancy
- Damages
PRIVILEGE if: prospective (rather than existing K), used commercially acceptable persuasion, is a competitor, has a financial interest in third party or responding to request
Malicious Prosecution
Initiation of criminal proceedings against P that terminates in P’s favor and for which there was no probable cause and an improper purpose, resulting in damages to P
Malicious Prosecution: Elements
- Initiation of criminal proceedings against P
- Termination in P’s favor
- Absence of probable cause
- Improper purpose
- Damages (prosecutors immune)
Wrongful Civil Proceedings
Same as malicious prosecution, except CIVIL
Abuse of Process
Use of criminal or civil process for purposes for which it was not intended.
Must be intentional misuse for an ulterior purpose, calculated to cause damage
Abuse of Process: Elements
- Wrongful use of process
- For an ULTERIOR motive
- Definite acts or threats against P to accomplish ulterior purpose
- Damages
