Torts 53-75

Question 1

Defamation

What are the elements of Defamation?

Answer 1

A false defamatory statement,

Of and concerning the plaintiff made by the defendant,

Publication by a defendant to a third party, AND

Damages.

Priority: HIGH

Question 2

Defamation

What are the four Slander Per Se categories?

Answer 2

Impugning the business integrity of the plaintiff.

A statement of unchastity about an unmarried woman.

A statement that the plaintiff had/has a loathsome disease.

Attributing a crime of moral turpitude to the plaintiff.

Priority: HIGH

Question 3

Defamation

Who is deemed a Public Figure?

What heightened standard applies if plaintiff is a Public Figure or Public Official?

Answer 3

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.

If person is a Public Figure or Official, then a heightened defamation standard applies.

P must also prove: Actual malice – D spoke with recklessness or knowledge of falsity.

Priority: HIGH

Question 4

Defamation

If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

Answer 4

Plaintiff MUST ALSO PROVE:

That the speaker wasnegligent.

Priority: HIGH

Question 5

Defamation

Qualified Privilege

vs.

Absolute Privilege

Answer 5

Qualified: A defense when the speech serves a socially useful purpose. Speaker must be speaking in good faith AND not be reckless.

Absolute: Defense for defamatory statements made about/by parties in a judicial proceeding.

Priority: HIGH

Question 6

What are the Invasion of Privacy torts?

Answer 6

Misappropriation of Name or Picture.

False Light.

Intrusion of Privacy.

Public Disclosure of Private Facts.

Priority: n/a

Question 7

What are the elements of

Misappropriation of Name or Picture?

Answer 7

When defendant:

Uses plaintiff’s name or likeness,

For defendant’s commercial advantage.

*Newsworthiness is a defense.

Priority: Low

Question 8

What are the elements of False Light?

Answer 8

When defendant:

Causes widespread dissemination,

Of plaintiff’s beliefs, thoughts, or actions,

In a false light,

That would be highly objectionable to a reasonable person.

*If plaintiff is a public figure à must show actual malice.

Priority: Medium

Question 9

What are the elements of Intrusion of Privacy?

Answer 9

When:

D intrudes into the private affairs of P;

P has a reasonable expectation of privacy; AND

The intrusion is highly objectionable to a reasonable person.

Priority: Low

Question 10

What are the elements of

Public Disclosure of Private Facts?

Answer 10

When defendant:

Caused widespread dissemination,

Of truthful private information,

That would be highly objectionable to a reasonable person.

*Newsworthiness is a defense unless actual malice is present.

Priority: Medium

Question 11

What are the elements of

Intentional Interference with Business Relations?

Answer 11

There was a contract or business expectancy;

The defendant knows of the contract/expectancy;

The defendant intentionally induces another party to breach or terminate the contract/relationship;

A breach occurs; AND

Plaintiff suffered damages.

Priority: Low

Question 12

What are the elements for

Intentional Misrepresentation?

Answer 12

Plaintiff must show:

Misrepresentation of material facts by the defendant;

The defendant knew the statement was false;

Intent of the defendant to induce the plaintiff;

Actual and reasonable reliance by the plaintiff; AND

Damages.

Priority: HIGH

Question 13

What are the elements for

Negligent Misrepresentation?

Answer 13

Plaintiff must show:

A misrepresentation by the defendant;

Supplied for the guidance of others in a business transaction;

The defendant knew that the information was supplied to guide the plaintiff in his business transactions;

The defendant was negligent in obtaining/communicating the false information;

Actual and reasonable reliance by the plaintiff; AND

The false info proximately caused damages.

Pirority: HIGH

Question 14

When is an action for Abuse of Process available?

Answer 14

When:

One party wrongfully uses the court process;

Against another for improper purpose;

An act or threat is used to accomplish that purpose; AND

Damages result.

Priority: Low

Question 15

What are the elements of Malicious Prosecution?

Answer 15

Initiation of criminal proceedings against a plaintiff;

Claim was initiated for improper purpose;

The claim was not supported by probable cause;

The claim ended in the plaintiff’s favor; AND

The plaintiff suffered damages.

*Most states have expanded this tort to include wrongful civil proceedings.

Priority: Medium

Question 16

Public Nuisance

vs.

Private Nuisance

Answer 16

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.

To recover damages, the injured party must show ACTUAL damages.

Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property. (offensive/inconvenient/annoying)

Priority: HIGH

Question 17

A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.

What is an Abnormally Dangerous Activity?

Answer 17

An activity that:

Is not of common usage in the community; AND

Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Priority: HIGH

Question 18

What are the elements for Strict Products Liability?

Answer 18

The product was defective (manufacturing defect, design defect, or failure to warn);

The product was not altered when it reached the plaintiff;

The product caused an injury when it was being used in an intended use (or unintended foreseeable use); AND

The defendant is a commercial supplier who routinely deals in goods of this type.

Priority: HIGH

Question 19

What 3 theories are available to prove Strict Products Liability?

Answer 19

Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.

Failure to Warn: Plaintiff was not warned of the risks regarding use, which are not obvious to an ordinary user.

Design Defect: There was a way to build the product that was safer, more practical, AND at a similar cost.

Priority: HIGH

Question 20

What is the definition of a Commercial Supplier?

Answer 20

Any person/entity who is engaged in selling goods of the type (routinely sells such goods).

*A strict products liability suit may ONLY be brought against a commercial supplier of goods.

Priority: HIGH

Question 21

Products Liability – Breach of Warranty

What is the Implied Warranty of Merchantability?

Answer 21

It requires that ALL goods sold by a merchant be fit for their ordinary purpose.

*The only issue to determine is whether the product was merchantable when sold.

Priority: Low

Question 22

Products Liability – Breach of Warranty

When is an Implied Warranty of Fitness for a Particular Purpose created?

Answer 22

When:

A seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND

The buyer relies on the seller’s skill/judgment to select suitable goods.

Priority: Low

Question 23

Products Liability – Breach of Warranty

When is an Express Warranty created?

Answer 23

When:

A seller makes an affirmation of fact, promise, or description, OR provides a sample;

Which relates to the goods; AND

It becomes part of the basis of the bargain.

Priority: Low