Torts _ Other Torts Flashcards
Private Nuisance
- Unreasonable Interference with use/ enjoyment
- Objective Standard
A defendant commits private nuisance when he creates a (1) substantial and (2)
unreasonable interference with plaintiff’s use or enjoyment of property that he (3) actually possesses or to which plaintiff has a right of immediate possession.
Private Nuisance (BarMD Overview)
Private Nuisance Overview:
-
Substantial Interference
- Offensive, inconvenient, or annoying to average person.
- Not substantial if due to plaintiff’s hypersensitivity or specialized property use.
-
Unreasonable Interference
- Injury severity outweighs utility of defendant’s conduct.
- Cout Considerations:
- Plaintiff’s reasonable land use.
- Neighborhood context.
- Land values.
- Alternative actions available to defendant.
-
Plaintiff’s Possession or Immediate Possession Right
- Includes ownership, leasing, occupying, or controlling the property.
Public Nuisance:
- Unreasonable Interference to public * Brought by Government Official
- Private plaintiffs must prove SPECIAL
damages
Examples:
o Contaminated water
o Electric lines that are emanating nuclear power
A public nuisance occurs when the defendant unreasonably interferes with the health, safety, or property rights of the community. Recovery is available only if a private party suffers some unique damage not suffered by the general public.
Nuisance Remedies (3)
Damages
The general measure of recovery when someone has suffered a private or public
nuisance is damages.
Injunction
Where damages are unavailable or inadequate, a court may grant an injunction. A court will find damages inadequate when the nuisance is continuing or it will cause irreparable
injury. In this instance, a court will balance the hardships associated with granting an
injunction.
Wrongful Death
Wrongful death statutes allow the surviving next of kin (typically, a spouse, child, or parent) to recover against the tortfeasor for losses associated with the decedent’s death, including loss of support, funeral costs, and loss of consortium.
Defamation
1) False Statement
2) About Plaintiff
3) Hurts Reputation
4) Publication
5) Damages
Publication
Defamation Element
- HEARD & UNDERSTOOD by third person to be about the plaintiff
Libel
Defamation - False Statement Element
Written or Printed
* No Special/Pecuniary Damages
Slander
Defamation - False Statement Element
- Spoken
- Must prove Special Damages
Slander Per Se:
Defamation - Damages Element
Damages presumed:
1) Profession/Business
2) Chastity of a Woman
3) Crime of Moral Turpitude
4) Loathsome Disease
Defamation – Private Individual:
First Amendment Defamation
Standard of Proof: Negligence
If the plaintiff is a private figure related to a matter of public concern, the plaintiff must prove the defendant acted negligently regarding the falsity of the statement.
Defamation – Public Figure:
(Also Define What Public Figure)
- Standard of Proof: Actual Malice
- Knowledge or “Reckless disregard of the
truth”
Public Figure
A public figure is a person who has achieved pervasive fame or notoriety or voluntarily assumes a central role in a particular public controversy.
Actual Malice
A defendant acted with actual malice when the defendant knew the statement was false or acted with reckless disregard as to the statement’s falsity.
DEFENSES TO DEFAMATION
1) TRUTH is an absolute defense to Defamation
2) Privileges
3) Consent to publication
Absolute Privileges
Defense to Defamation - Privilege
Absolute Privilege:
* Statements made in the course of Official Proceedings are protected
Examples:
o Court Appearances
o Government officials yelling at each other
Qualified Privilege:
Defense to Defamation - Privilege
Qualified Privilege:
* Statement appears necessary to protect Defendant/Public’s Interest
* Honest & Reasonable Belief
Examples:
o Request to make a statement on your
behalf
o Letter of Recommendation/Character Reference
False Light:
INVASION OF PRIVACY
- Portray someone in false light
Appropriation
INVASION OF PRIVACY
- Unauthorized use of likeness or image for profit
Public Disclosure:
INVASION OF PRIVACY
Public Disclosure:
* Public disclosure of a Private Matter * Not “Newsworthy”
Examples:
* Things you put out there yourself
* Kardashian’s TV show
Intrusion upon Seclusion:
INVASION OF PRIVACY
- Physical invasion of a private space
MISREPRESENTATION - TYPES (2)
MISREPRESENTATION
Intentional Misrepresentation
&
Negligent Misrepresentation
Misrepresentation = FRAUD (please do not think of Shyamyy when you think of this <3 Love ya, byeeeeeeeee HAHAHA)
Intentional Misrepresentation (5):
MISREPRESENTATION
1) Misrepresentation of Material Fact
2) Scienter (knowledge = which he knew or believed was false or the statement lacked a basis in truth)
3) Intent to induce reliance
4) Reliance
5) Damages
Negligent Misrepresentation (4):
MISREPRESENTATION
1) Negligence
2) Special Relationship
3) Detrimental Reliance
4) Damages
A defendant commits negligent misrepresentation when he misrepresents a fact in a business or professional capacity, owes a duty toward a particular plaintiff, causation,
justifiable reliance, and damages.
Tortious Interference with Contractual Relationship (4):
1) Contract exists
2) Defendant has knowledge
3) Intentional Interference
4) Damages
Example:
o Agency in sports or movie business
Malicious Prosecution (4):
1) Criminal Proceeding
2) No Probable Cause
3) Improper Purpose
4) Dismissed in favor of Accused
