Torts Flashcards
Torts
Battery
A prima facie case for battery consists of
(1) a voluntary act by the defendant,
(2) defendant’s intent or substantial certainty that harmful or offensive contact will occur,
(3) objectively harmful or offensive contact to the plaintiff, and
(4) direct or indirect causation. No proof of harm is required.
[Remember doctrine of transferred intent for trespass torts (battery, assault, false imprisonment, trespass to land, trespass to chattels). If D has intent to commit tort X against person A and accidentally commits tort Y against person B, intent transfers and D will be liable to B.]
Torts
Assault
A prima facie case for assault consists of
(1) defendant’s conduct beyond mere words,
(2) plaintiff’s reasonable apprehension and awareness of defendant’s act,
(3) imminent threat of harm, and
(4) plaintiff’s intent. No proof of harm is required.
Torts
Defamation
Common law defamation requires a showing of
(1) a defamatory statement,
(2) of or concerning plaintiff,
(3) publication, and
(4) damages.
Torts
Defamation - Constitutional Defamation
When the defamation involves a matter of public concern, the plaintiff must prove tow additional elements:
(1) falsity, and
(2) fault.
Torts
Defamation - Constitutional Defamation - Falsity
[Was the matter true or false. Beliefs don’t matter here.]
Torts
Defamation - Constitutional Defamation - Fault
The type of fault plaintiff must prove depends on whether the plaintiff is a public or private figure. If the plaintiff is a private figure, negligence must be shown. If plaintiff is a public figure, malice must be shown. Whether a plaintiff is a public figure turns on whether he voluntarily and intentionally put himself in the public eye.
Torts
Defamation - Constitutional Defamation - Fault - Malice
Malice is defined as knowledge that the defamatory statement was false or reckless disregard as to the statement’s truth.
Torts
Defamation - Damages - Libel
[Libel]
Libel is defamation that is written. When libel occurs, general damages are presumed. However, the plaintiff may offer actual evidence of damages to increase his reward.
Torts
Defamation - Damages - Libel Per Se versus Libel Per Quod
[Libel Per Se versus Libel Per Quod]
In a minority of jurisdictions, courts distinguish between libel per se (libel that is defamatory on its face) and libel per quod (not defamatory on its face). For libel per quod, extrinsic evidence is required to prove its injurious nature.
Torts
Defamation - Damages
The type of damages the plaintiff must prove depends on the type of defamation. Here, the type of defamation is (libel/slander) because the defamatory statement was (written/spoken).ONLY DISCUSS WHAT APPLIES
Torts
Defamation - Damages - Slander
[Slander]
Slander is defamation that is spoken. In cases of slander, plaintiff must prove damages unless the defamation is slander per se.
Torts
Defamation - Constitutional Defamation - Matter of Public Concern
[Usually debatable, use all of the facts. Analyze even if end up concluding that matter is not of public concern. If that’s the case, skip falsity and fault.]
Torts
Defamation - Constitutional Defamation - Fault - Negligence
A defendant acts negligently if they act carelessly or fail to act reasonably with respect to ascertaining the truth of the statement.
Torts
Defamation - Damages - Slander Per Se
[Slander Per Se]
Slander per se exists when the defamatory statement:
(1) adversely reflects one’s conduct in a business or profession;
(2) accuses one of having a loathsome disease;
(3) accuses one of a guilt involving a crime of moral turpitude, or
(4) suggests a woman is unchaste.
Torts
Defamation - Defenses to Defamation - Absolute Privilege
Defendant may assert an absolute privilege for remarks made
(1) during judicial proceedings,
(2) by legislators in debate,
(3) by federal executive officials,
(4) in compelled broadcasts, and
(5) in between spouses.
Torts
Defamation - Defamatory Statement
A defamatory statement is one that injures a plaintiff’s reputation and tends to subject plaintiff to hatred, contempt, ridicule, or financial injury. Opinions generally are not considered defamatory, but could be if they imply a fact (i.e., something that could be proven true or false).
Torts
Defamation - Defenses to Defamation - Qualified Privilege
Defendant may assert a qualified privilege for
(1) reports of official proceedings,
(2) statements in the interest of publisher,
(3) statements in the interest of the recipient, and (4) statements in the common interest of the publisher and recipient.
[Scope of Qualified Privilege]
Qualified privileges do not protect statements that are made to more parties than the interested recipient, give details outside the scope of the defined interest, or are made with malice or lack of good-faith.
Torts
Defamation - Defenses to Defamation - Truth
Truth is an absolute defense to defamation.
[Does not apply to constitutional defamation, as plaintiff already had the burden of proving falsity.]
Torts
Defamation - Of or Concerning Plaintiff
The plaintiff must establish that a reasonable recipient of the information would understand that the statement referred to plaintiff.
[Colloquium]
Even if the statement does not explicitly name the plaintiff, he can still establish colloquium if extrinsic evidence relates the statement to the plaintiff.
Torts
Defamation - Defenses to Defamation - Consent
Defendant is not liable for defamation if the plaintiff consented to dissemination of the statement.
Torts
Defenses to Intentional Torts
(1) Consent (Express or Implied)
(2) Self-Defense
(3) Defense of Others
(4) Defense of Property - No deadly force allowed; reasonable force to prevent intrusion on own land or reclaim wrongfully taken property is OK
(5) Parental Discipline
(6) Privilege of Arrest
(7) Private or Public Necessity
Torts
Defenses to Intentional Torts - Defense of Others
Requires
(1) reasonable belief that that other person has right to use force to defend himself, and
(2) reasonable force in proportion to anticipated harm to the other.
(A) Mistake as to third-party danger OK if reasonable.
Torts
Defenses to Intentional Torts - Private or Public Necessity
Private necessity is a qualified privilege that lets a person to enter another’s land or use another’s property to protect his own person or property from harm. If a person has the privilege of private necessity, they are not liable for trespass but are responsible for actual damages to the other’s property.
Public necessity is an absolute privilege to avert imminent public disaster (i.e., risk to the safety of many people). If a person has the privilege of public necessity, they are not liable for damages caused by actions reasonably taken under a reasonable belief of public necessity, even if the actions taken are ultimately not necessary.
Torts
Defenses to Intentional Torts - Privilege of Arrest
Felony - Private Actor
Requires that
(1) a felony was actually committed, and
(2) reasonable suspicion that the person arrested committed the felony.
Felony - Police
Requires
(1) reasonable belief that felony was committed and (2) reasonable suspicion that the person arrested committed the believed felony.
Misdemeanor
Requires that a misdemeanor be committed in front of arresting party (police or private).
Torts
Defenses to Intentional Torts - Self Defense
This defense requires
(1) reasonable anticipation of harm
(2) and reasonable force in proportion to the anticipated harm.
(A) Reasonable mistake does not invalidate defense.
(B) Deadly force only proportional if anticipated harm is serious bodily injury or death.
(C) Majority of jurisdictions do not impose a duty to retreat.
(D) Initial aggressors are generally not entitled to claim self-defense (but might be if victim responded with disproportionate force).
Torts
False Imprisonment
A prima facie case for false imprisonment consists of
(1) an act or failure to act by defendant, with
(2) intent to confine or restrain another within boundaries,
(3) actual confinement of the plaintiff,
(4) plaintiff’s awareness of or injury by the confinement, and
(5) a causal link between defendant’s act and plaintiff’s confinement.
Torts
Defamation - Publication
Publication requires that the statement be communicated to a third party who understands the defamatory meaning and its application to plaintiff.
Torts
False Imprisonment - Shopkeeper’s Privilege
Shopkeepers have the right to detain suspected shoplifters
(1) on or near the premises,
(2) for a reasonable duration,
(3) using reasonable force, and
(4) based on reasonable suspicion.
Torts
Injurious Falsehoods
Injurious falsehoods are actionable if they are either
(1) trade libel resulting in special damages, or
(2) malicious publication of false statements derogatory to P’s title in real property resulting in special damages due to diminished value by third parties.
Torts
Intentional Infliction of Emotional Distress
A prima facie case for assault consists of
(1) intent or recklessness,
(2) extreme and outrageous conduct by defendant that is beyond human decency,
(3) causation, and
(4) severe emotional distress.
[3rd-Party Relative of Victim]
If plaintiff is a third-party relative of the victim, he must establish two additional elements:
(1) a relationship of immediate family to the victim targeted by the defendant, and
(2) defendant’s knowledge that plaintiff was present and aware of defendant’s conduct towards the victim.
[3rd-Party Non-Relative of Victim]
If plaintiff is a third-party non-relative of the victim, he must establish that:
(1) he was present and aware of at the time of defendant’s conduct towards the victim, and
(2) he suffered bodily harm as a consequence of witnessing defendant’s conduct.
Torts
Invasion of Privacy
There are four different torts that comprise the tort of invasion of privacy.
To sue successfully for invasion of privacy, the plaintiff only has to prove one of the four torts. They are:
(1) intrusion upon seclusion or private affairs,
(2) misappropriation,
(3) false light, or
(4) publication of private facts.
Torts
Invasion of Privacy - Common Elements
In order for a plaintiff to have a claim for any invasion of privacy, he or she must establish
(1) causation, and
(2) damages.
[Focus on proximate causation only, as no time to talk about cause in fact.]
Torts
Intentional Interference with Business Relations
IIBR can be established by
(1) intentional interference with contract causing breach and harm to plaintiff,
(2) interference with prospective economic advantage through egregious conduct, or
(3) theft of trade secrets.
Torts
Invasion of Privacy - Defenses - Absolute Privilege
Defendant may assert an absolute privilege for remarks made
(1) during judicial proceedings,
(2) by legislators in debate,
(3) by federal executive officials,
(4) in compelled broadcasts, and
(5) in between spouses.
