Torts Flashcards
Defamation PFC
Defamation requires a defamatory statement, of or concerning the plaintiff, published to a 3P, and damages.
Defamatory Statement
A defamatory statement is one that harms a person’s reputation by diminishing esteem, respect, or goodwill toward that person or deterring others from associating.
Of or concerning the plaintiff
A reasonable person must believe that the defamatory statement must be about a specific person.
Published to a 3P
The statement must have been intentionally or negligently communicated to a 3P who understood its defamatory nature.
Special damages
Slander is spoken damages, and unless the statement constitutes slander per se, special damages must be met. Special damages require the plaintiff to prove that a 3P heard the defendant’s defamatory statements and acted adversely toward them. Most often, special damages include economic loss like loss of employment or business.
Slander per se
Under the doctrine of slander per se, a plaintiff alleging slander need not plead and prove special damages if the statement defaming him accuses him of a crime, conduct that reflects his lack of fitness to perform business, sexual misconduct, or having a loathsome disease.
Matter of public concern or public figure
Whenever the statement is of public concern or involves a public figure, the plaintiff must prove falsity and fault.
Public figure - malice
If a plaintiff is a public figure, he must prove actual malice which requires a showing of knowledge that the statement was false, or a reckless disregard as to whether it was false
Private person
If the plaintiff is a private figure, then he need only to prove negligence regarding the falsity of the statement.
Qualified Privilege
Speakers may have a qualified privilege to make a statement if it is in the interest of the publisher, in the interest of the recipient, or it affects an important public interest.
IIED
A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. Public figures must also prove publication of a false statement with actual malice to recover.
Extreme and outrageous conduct
Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Severe emotional distress
If the plaintiff is hypersensitive and experiences severe emotional distress unreasonably, then there is no liability unless the defendant knew of the plaintiff’s heightened sensitivity.
False Light
To place one in false light, the disclosure must have attributed to the plaintiff actions that he did not take or views that he does not hold. It must also be highly offensive to a reasonable person. Additionally, most jurisdictions require the plaintiff to prove actual malice.
General Damages
General damages are those damages that naturally flow from the injury or harm and sim to place the plaintiff in the same position he was in prior to the tort. A plaintiff is entitled to compensation for loss of physical abilities and emotional distress caused by fear, anxiety, and humiliation.
Punitive Damages
Punitive damages serve to punish a defendant who engages in serious misconduct with an improper state of mind, such as malice.
Strict Liability: Domestic Animals
An owner or possessor of a domestic animal is strictly liable for harm done by that animal only if he knows or has reason to know that the animal has dangerous propensities abnormal for the animal’s category or species, and the harm results from those dangerous propensities. Otherwise, at CL, the owner of a domestic animal is liable only for negligence.
Negligence PFC
Negligence requires a showing of a duty, breach, causation (both actual and proximate), and damages
Duty - Foreseeable Plaintiff
A duty is owed to all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is within the zone of foreseeable harm.
Standard of Care - Business Invitee
A business invitee is someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. Duty of reasonable care
Breach
A breach occurs when the defendant’s conduct falls below the applicable standard of care
Actual Cause
But-for cause
Proximate Cause
The defendant’s conduct must also be the proximate cause of the injury. Proximate cause requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant’s conduct.
Damages
The plaintiff must prove actual harm like personal injury or property damage, in order to complete requirements of liability for negligence
Duty - rendering aid/placed in peril
In general, no affirmative duty to act. However, a person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid. Similarly, a person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.
Contributory Negligence
At CL, a plaintiff’s contributory negligence barred his right to recover, even if the degree of the defendant’s negligence was much greater than that of the plaintiff. Abolished by most jurisdictions.
Comparative Negligence
A plaintiff’s contributory negligence is typically not a complete bar to recovery but may reduce the number of recoverable damages
Assumption of the Risk
AOR is a complete bar to recovery in contributory negligence jdsx and a minority in comparative fault jdxs. This requires that the plaintiff voluntarily and knowingly assumed the risk.
Strict Liability: Wild Animals
The owner and possessor of a wild animal is SL for harm done by that animal in spite of any precautions the owner or possessor has taken to confine the animal or prevent the harm if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.
