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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

7 Intentional Torts

A

(1) Battery
(2) False Imprisonment
(3) Assault
(4) Intentional Infliction of Emotional Distress
(5) Trespass to Land
(6) Trespass to Chattels
(7) Conversion

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2
Q

Battery

A

The plaintiff must show that

  • the defendant committed a harmful or offensive contact
  • contact must be with the plaintiff’s person
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3
Q

Harmful/Offensive

A

Harmful: actual physical trauma (injury/death)

Offensive: unpermitted to a person of ordinary sensitivity

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4
Q

Extended Personality Rule

A

Person includes anything you’re holding/touching/connected to

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5
Q

Assault

A

Defendant must place plaintiff in immediate apprehension of an immediate battery

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6
Q

Apprehension

A

Actually means knowledge. You have to see it coming.

You don’t have to be afraid.

Need only a reasonable belief. An apparent ability creates a reasonable apprehension. If it looks like he can do it, believe that he can do it.

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7
Q

Unloaded gun problem

A

If you know the gun is loaded= assault

If you know the gun is not loaded= not assault

If you don’t know= assault

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8
Q

Immediacy

A

Mere (naked) words ARE NOT sufficient to create immediacy– conduct required!

Talk is cheap, until you make a move, it’s not immediate.

Menacing gesture: picking up a weapon, drawing hand back.

Sometimes words can negate immediacy!

  • Conditional words
  • Future words
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9
Q

False Imprisonment

A

Defendant must commit an act of physical restraint

Plaintiff must be confined in a bounded area.

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10
Q

Act of physical restraint

A

Threats are sufficient (threat that would operate on the mind of a reasonable person)
Ex: if you leave, I’ll call the cops

Failure to act can be an act of restraint if there is some pre-existing duty between the people

-Plaintiff must be aware of it/harmed by it

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11
Q

Confined in a Bounded Area

A

An area is not bounded if there is a reasonable means of escape that the plaintiff can reasonably discover.

-You’re not locked in if you can get out

If the only way out is danger, disgusting, humiliating, the area is considered banded.

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12
Q

Intentional Infliction of Emotional Distress

A

Don’t need to show intent, can show defendant behaved recklessly (utter disregard for plaintiff’s emotional tranquility)

Of the 7 intentional torts, only one that does not require intent is IIED

Defendant must engage in outrageous conduct
Plaintiff must suffer severe emotional distress

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13
Q

Outrageous Conduct

A

Conduct that exceeds all bounds of decency tolerated in a civilized society

Negative rule: mere insults are never outrageous regardless of intent

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14
Q

Outrageous Conduct: 4 Plus Factors

A

(1) Where conduct is continuous or repetitive
(2) If Defendant is a common carrier or an inkeeper
(3) Where plaintiff is a member of a fragile class of persons (children, elderly people, pregnant women)
(4) If defendant has advance information that plaintiff has some kind of emotional weakness, then targeting that weakness is itself outrageous.

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15
Q

Severe Emotional Distress

A

No specific (type)(kind)(category) of evidence is required. Can establish severe distress however you want.

Look for negation of the element in the fact pattern! (i.e. mildly annoyed)

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16
Q

Trespass to Land

A

Defendant must commit an act of physical invasion

Invasion must be of plaintiff’s land

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17
Q

Physical invasion

A

GO on someone else’s land (on purpose)

Defendant does not have to know that s/he has crossed a boundary line

Your obligation is to know where the boundary is.

Can throw/project something onto the property– the thing you send on the land must be tangible, physical (intangibles– nuisance)

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18
Q

Trespass to Land: Must Relate to Land

A

land includes air above and soil below to a reasonable distance.

Airplane is beyond a reasonable distance

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19
Q

Trespass to Chattels

A

Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)

A private civil remedy for damaging/stealing your stuff.

Magnitude: slight

Subjective.

Mistake of the item is no defense

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20
Q

Conversion

A

Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)

A private civil remedy for damaging/stealing your stuff.

Magnitude: great

Subjective.

Mistake of the item is no defense

Conversion plaintiffs get special remedy– recovery of FULL market value of item (you break it, you buy it). If you seriously damage it, you bought it.

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21
Q

3 Affirmative Defenses to Intentional Torts

A

(1) Consent
(2) Protective Privileges
(3) Necessity

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22
Q

Consent

A

A defense to all 7 intentional torts.

Did the plaintiff have legal capacity? This is a sliding scale that turns on the nature of the conduct agreed to.

Can be express (stated, written) or implied

All consent has a SCOPE. If plaintiff exceeds the scope, defendant will be held liable.

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23
Q

Express Consent Void

A

If obtained through fraud or duress

Failure to disclose/withholding information can void express consent.

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24
Q

Consent Can be Implied…

A

(1) from custom and usage
(2) Based on the defendant’s reasonable interpretation of the plaintiff’s objective conduct (body language consent). In one on one interactions, you are allowed to read the situation. Always has to be reasonable.

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25
Q

3 Protective Privileges

A

(1) Self Defense
(2) Defense of others
(3) Defense of property

All involve defendants responding to threats coming from plaintiff.

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26
Q

Protective Privileges: Timing

A

Threat must be in progress or imminent

Can’t be preventative; no preemption

Can’t be too late either; no revenge

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27
Q

Protective Privileges: Requirement of Accuracy

A

Defendant must have reasonable belief that the threat is genuine.

Defendant not liable if defendant makes a reasonable mistake

Must limit your response to force necessary under the circumstances

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28
Q

Shopkeeper’s Privilege

A

Permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods

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29
Q

Deadly Force

A

Can be used to defend yourself, yourself in your home, or a third party

Cannot use to defend property. Can’t shoot trespassers

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30
Q

Necessity

A

Only applies to property claims– trespass to chattels, trespass to land, conversion

2 different defenses:

Public necessity

Private necessity

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31
Q

Public Necessity

A

Defendant commits a property tort in an emergency to protect community as a whole or a significant group of people.

Complete and absolute defense

Emergency usually a pretty big catastrophe threatening pretty serious harm

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32
Q

Private Necessity

A

Defendant commits a property tort in an emergency but to protect himself, his possessions

A partial defense with 3 legal consequences

(1) have to pay for any harm you do (compensatory damages)
(2) if you do no harm, your technical tort is excused and therefore no liability for nominal/punitive damages
(3) if you go on someone’s property during an emergency to take refuse, the property owner cannot kick you off their land (“right of sanctuary”

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33
Q

Negligence: 4 Elements

A

Duty

Breach

Causation

Damages

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34
Q

Duty

A

Plaintiff must show defendant owed a duty and specify the nature of the duty

Obligation to take risk reducing precautions as you engage in different activities to avoid injuring others.

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35
Q

Duty

Which others? Who do I need to think about

A

Foreseeable victims– no duty to unforeseeable victims

Unforeseeable victims always lose.

Foreseeable victims are near you; unforeseeable victims are far away

Zone of danger will vary depending on the activity

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36
Q

Breach

A

Plaintiff must show defendant failed to live up to duty of care and must show this in a very specific way

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37
Q

Causation

A

Actual or proximate

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38
Q

Damages

A

Have to show something bad happened to you

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39
Q

Duty: Rescuers

A

Danger invites rescuers. Rescuers are foreseeable, even if they began outside of the scope of danger.

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40
Q

Duty

How much precaution?

A

You must exercise the same degree of precaution as a hypothetical reasonably prudent person acting under similar circumstances.

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41
Q

Reasonably Prudent Person

A

No physical attributes, but a very specific set of behaviors.

Always locks the doors, always waters the plants. Most people to not live up to this standard most of the time.

OBJECTIVE standard of care. No allowances for defendants particular shortcomings.
–> This means we may be asking the defendant to do the impossible

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42
Q

Reasonably Prudent Person: Exceptions

A

(1) if defendant has superior skill or knowledge, the standard of care includes that superior skill or knowledge
(2) where relevant, look at physical characteristics of defendant. has to be relevant to the situation.

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43
Q

6 Special Duty Exceptions/Standards

A

(1) Negligence claims against children
(2) Negligence claims against professionals (malpractice)
(3) Unknown trespasser
(4) Known trespasser
(5) Licensees
(6) Invitees

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44
Q

Negligence claims against children

A

Children under 5- zero duty of care

Children over 5- supposed to behave as a child of similar age, experience, and intelligence acting under similar circumstances. A subjective standard that varies from child to child.

This is a pro-defendant standard of care.

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45
Q

Negligence claims against children

Duty Exception

A

If child is engaged in an adult activity, use ordinary reasonable person standard.

Operating a motorized vehicle, agricultural vehicles, watercraft, jet ski, snowmobiles, ATV

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46
Q

Negligence claims against professionals (malpractice)

A

Includes any of the commonly known professions

Standard of care: an average member of the same profession providing similar professional services in good standing.

Distinction between AVERAGE and REASONABLE. AVOID USING WORD “REASONABLE”

Average= real world standard of care. How others actually do it. Empirical standard, compare to peer group. Professional ought to e a conformist.

Plaintiff almost always needs an expert witness to come and tell us what is ordinarily done. Expert need not be from same community as defendant.

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47
Q

Negligence claims against professionals (malpractice)

Doctor’s Duties

A

Doctors owe a duty to disclose risks of treatment to patients before embarking on that treatment (“informed consent doctrine”)

No injury, no claim

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48
Q

Unknown Trespasser

A

Comes on land without possession and possessor does not know that he is there.

Owed ZERO duty of care– ALWAYS loses negligence claim in a premises liability context.

WHY: no sympathy for people who come on property without permission; unforeseeable

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49
Q

Known Trespasser

A

Also includes ANTICIPATED trespassers– those who you should expect.

Signal: a pattern of trespassing in the past.

Possessor must protect only against hazard on the land that meet a 4 part test

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50
Q

Known Trespasser: 4 Part Test

A

(1) ARTIFICIAL: condition in question must be artificial (constructed by human beings). No duty w/r/t naturally occurring conditions
(2) HIGHLY DANGEROUS: condition must be highly dangerous (capable of inflicting severe bodily injury or death). No duty w/r/t moderately dangerous conditions
(3) CONCEALED: condition must be concealed from the trespasser. No duty w/r/t an open and obvious condition
(4) KNOWN: possessor must have prior knowledge that the condition exists.

Essentially: is it a man-made death trap?

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51
Q

Licensees

A

Enter land with known or implied permission, but confer no economic benefit on possessor

Ex: a social guest, a solicitor at the door

Duty defined by 2 part test

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52
Q

Licensees: 2 Part Test

A

(1) Concealed hazards that
(2) are known in advance by the possessor

Eliminates artificiality requirement; eliminates serious/highly dangerous requirement.

Essentially: is it a known trap on your land?

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53
Q

Invitees

A

Enter land with permission and to confer economic benefit on the possessor.

Modern view: also an invitee if you enter property that is open to everyone.

Duty defined by 2 part test

54
Q

Invitees: 2 Part Test

A

(1) Concealed from the invitee
(2) Condition is known by the possessor or could be discovered by reasonable inspection

Inspection conducted by a reasonably prudent person at reasonable intervals

Essentially: is it a reasonably knowable trap?

55
Q

Premises Liability Cases: Methodology

A

(1) identify Q as premises liability
(2) What kind of entrant?
(3) Apply appropriate test to hazard

56
Q

Premises Liability: Firefighters and police officers

A

No recovery for any injury that is an inherent risk of the job

57
Q

Premises Liability: Trespassing Kids

A

A property owner must exercise reasonably prudent care to prevent injury to trespassing kids w/r/t artificial hazards on the land.

Must assess the likelihood of attracting children

“Attractive Nuisance” doctrine

58
Q

If we have a duty owed in premises liability cases (excepting kids) there are 2 ways to satisfy your duty

A

(1) repair or make safe

2) give a warning (provide information
- oral or a sign
- convert hidden danger into an open and obvious one

59
Q

Statutory Standards of Care

A

Plaintiffs will sometimes point to criminal statutes and ask the judge to– in a one time only exception– apply that standard in an “IF–MUST” instruction

60
Q

Statutory Standards of Care: When Can You Invoke?

A

(1) is the statute designed to protect a class of people of whom this plaintiff is a member?
(2) the injury that occurred is the kind of injury that this statute was meant to prevent

[class of person/class of injury (risk) test]

Where plaintiff cannot satisfy 2- part test, plaintiff proceeds under regular negligence (reasonably prudent person) analysis.

61
Q

Negligence Per Se

A

Often used w/r/t traffic code.

Designed to protect pedestrians and other motorists.

Designed to protect against motor vehicle accidents

62
Q

Statutory Standards of Care: Exceptions

A

(1) if statutory compliance would be more dangerous than violence– DON’T BORROW STATUTE
(2) if statutory compliance is impossible, don’t use statutory standard

63
Q

Special Standards: Duties to Act Affirmatively

A

No duty to act affirmatively

No duty to undertake a course of action

No duty to rescue

64
Q

Special Standards: Duties to Act Affirmatively

EXCEPTIONS

A

(1) a pre-existing (legal) relationship between 2 parties
- employer and employee
- common carrier-passenger
- innkeeper-guest

(2) defendant caused peril that put plaintiff in danger

Triggers a duty to act reasonably under the circumstances.

Never obligated to put own life in danger/jeopardy
Rescue may not be feasible under the circumstances; duty is to ACT, not rescue

65
Q

Gratuitous Helpers

A

If you opt into rescue, and you perform the rescue negligently, you are liable.

This is a deterrent to voluntary rescue.

66
Q

Good Samaritan laws

A

Assume no Good Samaritan laws unless stated

67
Q

Special Standards: Negligent Infliction of Emotional Distress

A

Negligence established under one of the other standards + no physical trauma + factors

3 subcategories

68
Q

Special Standards: Negligent Infliction of Emotional Distress

3 Subcategories

A

(1) Near Miss/Close Call Cases
(2) Bystander Case
(3) Business Relationship Cases

69
Q

Special Standards: Negligent Infliction of Emotional Distress

Near Miss/Close Call Cases

A

Negligent defendant almost hurt plaintiff

Plaintiff must show he was in the zone of physical danger

As a result of the emotional distress, plaintiff suffered subsequent physical manifestations– something that could be objectively measured that gives us confidence that you aren’t faking.

70
Q

Special Standards: Negligent Infliction of Emotional Distress

Bystander Case

A

Negligent defendant causes serious injury or death or someone who is NOT a party to the current lawsuit

Plaintiff is emotionally sad due to injury to X (grief/sadness/melancholy/mourning)

Plaintiff and victim must be closely related (family).

Plaintiff witnessed injury to X in real time (close in time/space/relationship)

71
Q

Special Standards: Negligent Infliction of Emotional Distress

Business Relationship Cases

A

Plaintiff and defendant are in a preexisting business relationship where careless performance is highly likely to cause emotional distress.

72
Q

Breach of Duty

A

Plaintiff must demonstrate exactly what defendant did wrong and must give a reason why it’s wrong.

Particularizing conduct and explaining

FACT + CONDUCT

Act or omission AND this was unreasonable BECAUSE

Factual basis of breach will be right there in the problem.

Cost/benefit analysis is usually not the right type of analysis unless there are numbers involved.

73
Q

Breach of Duty: Res Ipsa Loquitur

A

Plaintiff lacks information about how breach occurred. Have to show:

(1) Accident is of a type normally associated with negligence
(2) Accident of this type would normally be due to negligence of someone in the defendant’s position.

Have to establish the likelihood that you are suing the right person.
Have to show defendant’s control over injury causing item

74
Q

Factual Causation

A

Always do factual causation before proximate causation

Plaintiff establishes a link/connection between breach and injury suffered.

Standard mechanism: but-for test.

Breach was essential in causing the injury.

A is free to counter-argue. Argument will usually begin with EVEN IF. Jury will have to resolve argument

75
Q

Factual Causation: Merged-Cause

A

Often 2 or more plaintiffs.

Substantial factor test. If a breach, as the only breach, would be capable of causing all the damage– treat that as a factual cause.

If both breaches were substantial factors, jointly liable

76
Q

Factual Causation: Unascertainable Cause

A

Burden of proof SHIFTS to defendant to explain why they aren’t liable

77
Q

Proximate Cause

A

“Fairness”

Plaintiff must convince us that liability would be fair.

Fairness is judged by foreseeability.

Fair to make people pay for the foreseeable consequences of their careless acts.

78
Q

Proximate Cause: 4 Scenarios Where Injury Foreseeable

A

(1) Intervening Negligent Medical Care
(2) Intervening Negligent Rescue
(3) Intervening Protection or Reaction Forces
(4) Subsequent Disease or Accident

79
Q

Proximate Cause: Intervening Negligent Medical Care

A

When you hurt someone and drive them to the medical system, doctors occasionally make things worse rather than better.

Doctor is also liable for medical malpractice

80
Q

Proximate Cause: Intervening Negligent Rescue

A

Defendant is liable for injuries resulting from negligent rescue

81
Q

Proximate Cause: Intervening Protection or Reaction Forces

A

Liable

82
Q

Proximate Cause: Subsequent Disease or Accident

A

Defendant liable

83
Q

Damages: Eggshell Skull Doctrine

A

Once the other elements have been satisfied, plaintiff will recover for all harm suffered, even if it is surprisingly great in scope.

You take your plaintiff as you find her.

84
Q

Negligence: Defenses

Comparative Negligence

A

Defendant must show that plaintiff failed to exercise proper care for his own safety. Proper care normally means “reasonable prudence.” Can also mean a self-protective statute (e.g. a jaywalking statute)

Jury instructed to weight the carelessness of each litigant, compare, assign each a number, and then reduce plaintiff’s recovery by plaintiff’s number. This is entirely subjective.

85
Q

Negligence: Defenses

Pure Comparative

A

Strictly by the numbers.

90% at fault plaintiff still recovers 10% of recovery where defendant is assigned 10%

86
Q

Negligence: Defenses

Modified/Partial Comparative

A

Plaintiff’s fault of 50% or less reduces recovery

Plaintiff’s fault of 50% or more eliminates recovery

87
Q

Strict Liability: Animals

A

Distinguish 2 broad groups of animals

Domesticated Animals v. Wild Animals

88
Q

Strict Liability: Animals

Domesticated Animals

A

Domesticated: house pets AND LIVESTOCK
NOT strictly liable, would have to establish plaintiff’s negligence
EXCEPTION: If your animal has vicious propensities and these are known to you. Vicious propensities have to be specific to this individual animal.
Ex: a dog that has previously bitten. First bite puts you on notice.
Rule does not apply to trespassers on your land

89
Q

Strict Liability: Animals

Wild Animals

A

Strict liability. Safety precautions are irrelevant

90
Q

Strict Liability: Abnormally Dangerous Activities

A

(1) Activity creates a foreseeable risk of serious harm even when reasonable care is exercised

(2) Activity is uncommon in the community where it is being conducted
- Anything involving explosives
- Anything involving highly toxic chemical or biological materials
- Anything involving radiation of nuclear energy

Safety precautions are irrelevant

91
Q

Strict Liability: Products

A

Products means BOTH consumer products and industrial products

If someone gets hurt by a product, they will almost certainly have multiple possible causes of action (negligence, breach of warranty of merchantability, fraud, strict liability)

***Look at the call of the question– if plaintiff sues for negligence, NOT STRICT LIABILITY!

92
Q

Strict Liability: Products

4 Elements

A

(1) Defendant is a merchant
(2) Product must be defective
(3) Plaintiff must show product has not been altered since it left the defendant’s hands
(4) At the time of the injury, plaintiff was making a foreseeable use of the product

93
Q

Strict Liability: Products

Defendant is a merchant

A

Someone who routinely deals in goods of this type

A casual seller selling used goods is NOT a merchant

Service providers who make products available incidental to a service are NOT a merchant

Commercial lessors ARE merchants

Parties up the distribution chain with whom you did not deal directly ARE merchants– no requirement of privity of contract

94
Q

Strict Liability: Products

Product must be defective (3 Types)

A

3 different kinds of defect, any one is sufficient

(1) Manufacturing defect
(2) Design defect
(3) Information defect

95
Q

Manufacturing Defect

A

product differs from all of the others than came off the assembly line such that it is more dangerous than consumers would expect.
Safety precautions do not matter

96
Q

Design Defect

A

products costs outweigh the benefits of the design such that a reasonable person would not have put it on the market.
Cost-it’s tendency to hurt you

How does plaintiff establish costs outweigh the benefits?
By offering proof of a reasonable alternative design, that normally meets three tests:
(i) safer
(ii) economically feasible
(iii) practical– doesn’t make product difficult to use

97
Q

Information Defect

A

product has some risk that can’t be designed away and that isn’t obvious. Need adequate warning.

Adequacy of warning considerations:

(1) placement
(2) comprehensibility/language
(3) pictures?
(4) risk mitigation information

98
Q

Strict Liability: Products

Plaintiff must show product has not been altered since it left the defendant’s hands

A

Presumption: if product moved in ordinary channels of distribution, presumption, it has not been altered.

*does not apply to items that are purchased used

99
Q

Strict Liability: Products

At the time of the injury, plaintiff was making a foreseeable use of the product

A

NOTE: a foreseeable use IS NOT necessarily an appropriate use

100
Q

Defenses to the Strict Liability Torts

A
  • Comparative responsibility
  • If defendant can prove plaintiff was careless/foolish/negligent, jury can assign percentage of responsibility to plaintiff and reduce plaintiff’s award
101
Q

Nuisance

A

the unreasonable interference with plaintiff’s ability to use and enjoy property

Unreasonable: the amount of interference

Making a neighbor miserable

Inconsistent land uses
Spite
Inconsideration

Key question: balancing of interests

We are all obligated to put up with minor inconveniences– a nuisance must make life intolerable

102
Q

Vicarious Liability

A

Holding secondary tortfeasor liable based on relationship to primary tortfeasor

(1) Employer-Employee
(2) Hiring Party-Independent Contractor
(3) Automobile Owner and Automobile Driver
(4) Parent and Child

103
Q

Vicarious Liability

Employer-Employee

A

VL if tort within the scope of employment

Intentional torts are usually outside scope, unless

a) job involves a use of force: misuse of force is within scope
b) if job leads to friction/tension
c) any intentional tort done to serve the boss’s purpose: within the scope

104
Q

Vicarious Liability

Hiring Party-Independent Contractor

A

No VL

If you hire an independent contractor to work on property, VL if they hurt a customer, non-delegable duty of care to customers

105
Q

Vicarious Liability

Automobile Owner and Automobile Driver

A

No VL

Rule is the other way if I ask you to take my car to do an errand for me– turns us into principal-agent

106
Q

Vicarious Liability

Parent and Child

A

No VL

107
Q

Multiple Defendant Issues: Right of Contribution

A

Yes.

Determined by percentage assigned by jury

Plaintiff collects all from defendant 1, defendant 1 can recover from defendants 2 and 3

108
Q

Multiple Defendant Issues: Indemnification

A

You have been held VL– can get full indemnification from active tortfeasor

Non-manufacturer can get full manufacturer in strict liability claim– shifts loss up the chain

109
Q

Loss of Consortium

A

Where a married person is injured, injured spouse gets an independent derivative claim.

110
Q

Loss of Consortium: 3 Types of Damages

A

(1) loss of household services
(2) loss of society (companionship)
(3) loss of sex

111
Q

Defamation: 3 Elements

A

Common law course of action

(1) Defendant made a defamatory statement that specifically identifies plaintiff
(2) Statement must be published
(3) Damages

112
Q

Defamation: Defendant made a defamatory statement that specifically identifies plaintiff

A

Defamatory statement: a statement which tends to adversely affect reputation; lower subject in the estimation of community; deter association.

Reputation is an economically valuable asset that can be monetized. Plaintiff must be alive when statement is made. Once you’re dead, you no longer have economic interest in your name.

Usually involves a factual representation that reflects adversely on some trait of character

Can be assessed for truth/falsehood

Statement of opinion is usually not defamatory (not susceptible to empirical test), UNLESS as an opinion, fact is implied

Mere name calling is NOT defamatory

Statement must specifically identify plaintiff (but does not have to use plaintiffs name)

113
Q

Defamation: Statement must be published

A

PUBLIC

Damage to reputation depends on what others think of you; statement must be shared with others (at least one other person). More people, more reputational harm to be reflected in damage award

If statement made only to plaintiff, NOT published, no cause of action

Negligent publication is sufficient to satisfy this rule.

114
Q

Defamation: Statement must be published

Republishers

A

People who repeat a defamatory statement are open for liability as “republishers”

115
Q

Defamation: Damages

A

Not always a required proof element. Sometimes presumed

116
Q

Defamation: Damages

Libel

A

Defamation embodied in permanent form (recorded)

Damages presumed. More you prove, more you get!

117
Q

Defamation: Damages

Slander

A

Defamation that is spoken/oral.

118
Q

Defamation: Damages

Slander Per Se

A

Same presumed damage treatment as libel (damages presumed, more you prove, more you get!)

119
Q

4 Types of Slander Per Se

A

(1) statement relating to business or profession
(2) statement that plaintiff has committed a serious crime (subjective distinction)
(3) statement that imputes unchastity to a woman (statement that an unmarried woman is sexually active)– only applies to women
(4) statement that plaintiff suffers from a loathsome disease (leprosy, venereal disease)

120
Q

Defamation: Damages

Slander Not Per Se

A

Need to prove damages.

Must offer evidence of damages (economic harm)

  • Lost a job
  • revenue is down
  • hurt feelings do not count!
  • fact that there have been social harms, DO NOT COUNT
121
Q

Defamation and Slander: Affirmative Defenses

A

(1) Consent: express or implied
(2) Truth: defendant can show statement is factually accurate (burden on defendant)
(3) Privilege: absolute or qualified

122
Q

Absolute Privilege

A

Based on identity of defendant

  • Communication between spouses
  • Officers of the 3 branches of government in the course of their official work
123
Q

Qualified Privilege

A

Arises when there is a public interest in encouraging candor

Case by case basis analysis.

References and recommendations

Person invoking privilege must have reasonable and good faith basis for making the statement– no privilege for deliberately telling lies– has to be an honest mistake.

Must confine yourself to matters relevant to the matter at hand.

124
Q

Matter of Public Concern

A

Something newsworthy with widespread public interest

Add 2 Additional Elements:
(1) plaintiff must prove falsity of statement: proving a negative is difficult
(2) plaintiff must show some degree of fault
fault=statement was made in a bad faith (degrees/gradations depending on who you are)

125
Q

Public Figure

A

They knew it was false or reckless disregard of falsity (MALICE)

126
Q

Private Figure

A

Statement made negligently; failure to take reasonable effort to confirm truth or falsity.

127
Q

Privacy Torts (4)

A

(1) Appropriation
(2) Intrusion
(3) False Light
(4) Disclosure

128
Q

Appropriation

A

Defendant uses plaintiff’s name or image for a commercial purpose

Newsworthiness exception: not a tort to put an image of an athlete on front page of the sports section

Applies to everyone in the world

129
Q

Intrusion

A

An invasion of the plaintiff’s seclusion in a way that would be highly offensive to the reasonable person

Ex: eavesdropping, wiretapping, peeping tom

Must be in a place with a reasonable expectation of privacy

Same conduct can be defamatory, AND false light or intrusion

130
Q

False Light

A

Widespread dissemination of a material falsehood about plaintiff that would be highly offensive to the average person

“Running all over town telling a big lie about the plaintiff”

Same conduct can be defamatory, AND false light or intrusion

Recovery is for emotional/dignitary damages
-Many false light claims arise out of accidental rather than deliberate behavior– still a valid cause of action

131
Q

Disclosure

A

Widespread disclosure of confidential information, about plaintiff, that would be offensive to the reasonable person

Newsworthiness exception

Fact in question must be truly confidential

132
Q

Defenses to Privacy Torts

A

(1) Consent is a defense to all four claims

(2) Defamation privileges are available to defeat false light and disclosure claims

Bar Exam (15 decks)

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