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Torts FYLSE > Page 5 > Flashcards

Page 5 Flashcards

0
Q

What is “coming to the nuisance”?

A

If you come to the nuisance knowing about it, then you can’t complain about it later on, so this bars recovery

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1
Q

What are the elements of private nuisance?

A
  • volitional act
  • intent to cause interference with P’s use/enjoyment
  • actions caused harm
  • P suffered substantial/unreasonable interference
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2
Q

Is “coming to the nuisance” common-law or modern law?

A

Common-law rule. Modernly it is only a factor to be considered in determining the plaintiff’s recovery and is not a complete defense

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3
Q

How is joint and several liability related to nuisance?

A

Everyone that creates a nuisance is jointly and severally liable for the wrong/injury.

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4
Q

If you employ another company to dispose of your toxic waste, and they dump it into a lagoon, who is liable?

A

Both of you because of joint and several liability

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5
Q

What can be done about prospective nuisances?

A

Injunctions can be granted to stop risks of future harm if the risk is substantial and the harm is imminent

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6
Q

What would be an example where an injunction would be granted for a prospective nuisance?

A

A plant that was built over an old mine that might collapse and cause explosions could be shut down

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7
Q

If an equity court is deciding whether or not to abate a nuisance, what will they consider?

A

They will balance the hardships to see if the nuisance outweighs the convenience of the plaintiff

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8
Q

What is the best defense to nuisance?

A

Argue social necessity and that they are operating in a proper place and proper manner

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9
Q

Would cell phone towers in a sparsely populated area that gave one plaintiff headaches be considered a private nuisance?

A

Probably not because cell phones are a social necessity and in a sparsely populated area are in the proper place

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10
Q

What is public nuisance?

A

Volitional done with the requisite intent which unreasonably interferes with the health, safety, or property rights of the community at large

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11
Q

Public nuisance must affect who?

A

An interest common to the general public, not just one that affects one or a few people

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12
Q

Who should bring a public nuisance claim?

A

A government official representing the public

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13
Q

What are the elements of public nuisance?

A
  • volitional act
  • intent to unreasonably interfere with the rights of the public
  • proper complainant with standing to sue
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14
Q

What is a qualitatively different harm for the special injury rule for public nuisance?

A

Special and unique injury

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15
Q

If everyone in the community has the same problem, can the plaintiff recover for public nuisance?

A

No, he must have a special and unique injury

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16
Q

What must the plaintiff show for the special injury rule for nuisance to public?

A

A substantial interference with a right common to the public has occured and he suffered special harm that was different than the public’s

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17
Q

If Defendant contaminates a lake, do boaters and swimmers have a special injury to sue for public nuisance?

A

No, but someone whose job it is to stock the lake and gets his contract canceled because of the contamination does

18
Q

Are health injuries considered to be special and particular damages?

A

Yes

19
Q

If you get Leukaemia because of defendant’s nuisance, is that a special injury?

A

Yes, because health injuries are special and particular damages

20
Q

What is the “public waters exception” for public nuisance?

A

People that harvest from public waters are allowed to recover as long as they can show they suffered damage particular to them that was different in kind, not just degree

21
Q

What are the three major approaches to damages for nuisance?

A
  • corrective justice approach
  • utilitarian approach
  • restatement II combo approach
22
Q

What is the corrective justice approach for damages for nuisance?

A

Plaintiff can get damages for interference and an injunction against the interference continuing

23
Q

What is the Utilitarian approach for damages for nuisance?

A

Focuses on:

  • the benefits the activity confers on the community
  • the investment the defendant has made
  • the economic harm suffered by the plaintiff
24
Q

What is the Restatement II combo approach for damages for nuisance?

A

The invasion is unreasonable if the gravity of the harm outweighs the utility of the conduct, so if money can compensate, it will be given

25
Q

What are the different types of remedies available for nuisance?

A
  • compensatory damages
  • injunctions
  • punitive damages
  • abatement
26
Q

What is an abatement for nuisance?

A

P is entitled to self-help where he can enter the defendant’s land to correct the nuisance

27
Q

What are defenses to nuisance?

A
  • contributory negligence
  • comparative negligence
  • assumption of the risk
  • consent
  • coming to the nuisance
28
Q

Does contributory negligence relate to nuisance?

A

If the nuisance is a result of negligence, it is available. If it is a result of intentional nuisance, it is not available

29
Q

How is consent a defense to nuisance?

A

If the plaintiff consented to something, knowing it would create a nuisance, he can’t get damages for it

30
Q

What are the two positions on coming to the nuisance?

A
  • CL: can be a defense if plaintiff came to the nuisance with knowledge of it
  • modern: knowledge of the nuisance is no defense
31
Q

What should you watch out for on an exam that relates to nuisance?

A

Sympathetic defendants like farmers that have raised pigs for generations without complaints, because coming to the nuisance should just be considered one of many factors, not a defense

32
Q

What is conversion of chattels?

A

Volitional act with requisite intent which causes a serious and substantial interference with plaintiff’s chattel

33
Q

What is chattel?

A

Tangible personal property or intangible things like embryos, shares, stocks, names

34
Q

Does transferred intent apply to conversion of chattels?

A

No

35
Q

What is an example of conversion of chattels?

A

Throwing someone else’s book into a fire thinking it is your own

36
Q

What are the elements of conversion of chattels?

A
  • volitional act
  • intent
  • actions caused the harm
  • plaintiff suffered destruction/substantial interference with chattel
37
Q

What is the volitional act required for conversion?

A

An act that results in substantial interference with another’s possession of chattel

38
Q

If you steal a precious vase that you sell to someone for $1 million, who are the converters?

A

Both of you because mistake is no defense

39
Q

What are some ways to convert chattel?

A
  • steal
  • sell
  • destroy
  • materially alter
  • refuse to return
40
Q

What is the intent required for conversion?

A

Intent to do the acts that cause the conversion, not intending to convert

41
Q

Must you be conscious of your wrongdoing for conversion?

A

No, you only have to intend to exercise substantial dominion over chattel

42
Q

If you take someone’s umbrella thinking it is yours, what have you done?

A

Converted

Torts FYLSE (61 decks)

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