Torts 53-75 Flashcards
Defamation
What are the elements of Defamation?
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
Defamation
What are the four Slander Per Se categories?
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
Defamation
Who is deemed a Public Figure?
What heightened standard applies if plaintiff is a Public Figure or Public Official?
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
Defamation
If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?
Plaintiff MUST ALSO PROVE:
That the speaker wasnegligent.
Priority: HIGH
Defamation
Qualified Privilege
vs.
Absolute Privilege
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
What are the Invasion of Privacy torts?
Misappropriation of Name or Picture.
False Light.
Intrusion of Privacy.
Public Disclosure of Private Facts.
Priority: n/a
What are the elements of
Misappropriation of Name or Picture?
When defendant:
Uses plaintiff’s name or likeness,
For defendant’s commercial advantage.
*Newsworthiness is a defense.
Priority: Low
What are the elements of False Light?
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
What are the elements of Intrusion of Privacy?
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
What are the elements of
Public Disclosure of Private Facts?
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
What are the elements of
Intentional Interference with Business Relations?
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
What are the elements for
Intentional Misrepresentation?
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
What are the elements for
Negligent Misrepresentation?
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
When is an action for Abuse of Process available?
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
What are the elements of Malicious Prosecution?
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
Public Nuisance
vs.
Private Nuisance
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
A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.
What is an Abnormally Dangerous Activity?
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
What are the elements for Strict Products Liability?
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
What 3 theories are available to prove Strict Products Liability?
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
What is the definition of a Commercial Supplier?
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
Products Liability – Breach of Warranty
What is the Implied Warranty of Merchantability?
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
Products Liability – Breach of Warranty
When is an Implied Warranty of Fitness for a Particular Purpose created?
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
Products Liability – Breach of Warranty
When is an Express Warranty created?
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
