Torts Flashcards
What is needed to succeed on a private nuisance claim?
In order to succeed on a private nuisance claim, the plaintiff must show (1) that his use and enjoyment of his land was interfered with in a substantial and unreasonable way and (2) the defendant’s conduct was negligent, abnormally dangerous, or intentional.
A plaintiff can recover economic damages.
Battery
Battery occurs where the defendant, with the INTENTION of causing either a harmful or offensive contact OR an IMMINENT APPREHENSION of such a contact, causes a harmful contact with the plaintiff.
Negligently inflicted harm/Negligent products liability: Tacking on of emotional distress claim
In jdxs that disallow recovery for pure emotional distress for negligently inflicted harm or harm caused by a defective product, a plaintiff may recover for emotional distress as a “tack on” is the plaintiff has also suffered bodily harm from the same product or event.
Defamation on Public Concern: Public Figures
If a plaintiff is a public figure, the plaintiff must prove that the statement is false and that the defendant acted with MALICE–that is, knowledge of falsity or reckless disregard of truth or falsity.
Defamation: Private concern
If the issue is of private concern, then common law defamation applies, and the only elements that plaintiff needs to prove are
(1): defamatory language;
(2): of or concerning the plaintiff;
(3): publication thereof by defendant; and
(4): damages to plaintiff’s reputation.
Importantly, there is no need for plaintiff to prove that the statement was false (rather, defendant will have to prove that the statement was true), and fault on the part of defendant need not be proven.
Defamation on Public Concern: Private Figure
A private figure only needs to prove negligence, or that defendant made a false statement that a reasonable person would not have made.
Private figure will only be able to recover damages for an actual injury.
If private figure proves malice, damages are presumed. (good idea for private plaintiff to try and prove malice to ensure they can get damages)
Contributory negligence and last clear chance
In contributory negligence jurisdictions, negligent plaintiffs are barred from recovering damages from negligent defendants, HOWEVER, if defendant has LAST CLEAR CHANCE to avoid harming the plaintiff and still harmed them, plaintiff can recover.
(hypo: woman mowing lawn, plaintiff riding by on bike negligently without using hands, woman kept mowing even though she saw plaintiff and didn’t stop–woman had last clear chance to avoid harming plaintiff so plaintiff can still recover)
NEID: Bystanders
The only way bystanders may recover in a NEID is if they are closely related to victim AND were in the zone of danger.
Battery: absence of intent
the absence of an intent to cause harmful contact is irrelevant if the intentional act is, an act that causes offensive contact.
Assault: bystanders
when a party’s voluntary and intentional act causes another to experience a reasonable apprehension of an immediate harmful or offensive contact, the party will be liable.
IIED: bystanders
plaintiff must establish they are either immediate family of victim or, if not family member, that their injuries included some physical injury beyond sever emotional distress.
rescuers
rescuers are always foreseeable plaintiffs
Slander: defamatory words
Often an action in slander requires that pecuniary loss be shown, but there is no such requirement where the statement accuses the plaintiff of engaging in serious criminal conduct.
