Tort Flashcards
How damage of property is measured for torts of nuisance, trespass, negligence, or tort of waste:
(1) the decline in market value of the property (measured from immediately before tort and after); or (2) cost to restore the property to its previous condition. WHICHEVER IS LESS
Nuisance
- A substantial and unreasonable interference with a person’s use and enjoyment of her land.
- substantial - must be offensive, annoying, or inconvenient to the average person in the community
- unreasonable - severity of P’s injury outweighs utility of D’s conduct
Defamation - elements
Defamatory Statement
Concerning P
Publication - intentionally or negligently to third party
Harmful to P’s Reputation
**falsity and fault for matters of public concern
Defamation - proving damages
- depends on whether libel (written) or slander (spoken)
- Libel - P doesn’t need to prove special damages
- Slander - P needs to prove special damages (specific economic loss). Except for Slander per se where damages are presumed
Defamation - Slander per se
Slander per se - don’t need to prove special damages. CLAMS
C - statement that P committed a serious CRIME
L - current LOATHSOME disease
A - statements reflecting ADVERSELY on business profession
M - crimes of MORAL turpitude
S - serious SEXUAL misconduct
Defamation - additional element for matters of public concern
*must prove falsity and fault
Private figure - negligence
Public figure/official - actual malice - statement made with actual knowledge of the statement’s falsity or with reckless disregard as to whether the statement was false
Defamation - defenses
- truth
- privilege (qualified or absolute)
- for qualified you need to show malice
Transferred Intent Doctrine - applies to
Battery, assault, trespass, false imprisonment
Assault
(1) Attempted Battery; or
(2) Act by D causing a reasonable apprehension in P of imminent harmful or offensive contact to P’s person
- intent, causation
- apprehension must be reasonable but its ok if impossible for D to actually hit P
- threats of future battery not enough
Battery
Intentional harmful or offensive contact to P’s person by D.
A prima facie case of battery is established when the P shows that she suffered harmful or offensive contact and that the D intended to cause such contact.
conduct is offensive if it offends a reasonable sense of personal dignity.
- reasonable standard for whether harmful/offensive
- no injury necessary
- can happen with the P is asleep
- defenses: consent, self defense
Defense to Intentional Torts - Self Defense
- Reasonable use of force the D reasonably believed necessary to protect himself or another from an imminent tort.
- mistake ok if above was reasonable
- no duty to retreat
False Imprisonment
An act or failure to act by D resulting in P’s restraint or confinement to a bounded area.
an actor is subject to false imprisonment of another if he acts intending to confine another within boundaries or a confined area fixed by the actor, his actions result in such a confinement, and the other is conscious or harmed of it.
- can be privileged if its necessary for safety but this must be reasonable
- duration doesn’t matter
- threats ok for confinement
- no reasonable means of escape that P is aware of
Intentional Infliction of Emotional Distress
Extreme and outrageous conduct by the D causing “s severe emotional distress.
- conduct that exceeds the bounds of decency in society
- non outrageous conduct can be actionable if: D targets P’s known sensitivities, continuous and repetitive conduct, P is member of fragile class, D is common carrier or innkeeper
Negligent Infliction of Emotional Distress
- P must have been in “zone of danger” – a near miss
- D’s negligence resulted in P’s emotional distress
- physical manifestation of emotional distress (can be instant or days later)
Most states - Claims for distress resulting from accidents involving others - closely related to the injured, was near the scene, and suffered shock from the sensory and contemporaneous observation of the D’s actions
Bystanders of Intentional Torts
- must have seen the event happen
- D must have been aware the the bystanders presence so that the impact on the bystander was forseeable
- physical symptoms not needed for close family members byt needed for third parties