torts - barbri Flashcards
1
Q
intentional torts have no ____ defenses
A
incapacity (minors can be held liable for torts, same with disabled people, intoxicated people)
2
Q
7 intentional torts: 5/6 tested
A
1) assault
2) battery
3) false imprisonment
4) IIED
5) trespass to land
6) trespass to chattel
7) conversion
3
Q
intent (2 types)
A
1) Specific—intent to bring about a specific harm
2) General—substantial certainty that tortious conduct will result from D’s act
4
Q
transferred intent doctrine
A
we still hold D liable for an intentional tort even though:
1. different victim
2. different tort against diff person
3. same tort as intended but against diff person
for transferred intent to apply, there needs to be intent of the first tort tho!
5
Q
transferred intent only applies to:
A
- assault
- battery
- false imprisonment
supplies the necessary intent from the first tort to the second.
6
Q
billie Jean and Bobby are playing tennis. Every time Billie Jean is getting ready to serve, Bobby heckles her. After this had gone on for a while, Billie Jean trotted across the court rapidly and began swinging her racket wildly as she approached Bobby, in order to scare him. As she neared Bobby she slipped and the racket struck Bobby forcefully on his arm, breaking a bone. Billie Jean slipped because the owner of the tennis club had carelessly failed to clean some grease off of the court.
Does Bobby have a valid battery claim against Billie Jean? Why or why not?
A
yes because of the doctrine of transferred intent. she meets are the req’s for assault, so her intent can transfer over to Battery.
7
Q
battery elements
A
- harmful or offensive/UNPERMITTED conduct by D
- to P’s person
- intent
- causation
8
Q
question to ask for battery on whether harmful or offensive conduct
A
contact is offensive when it is unpermitted and if it would be considered offensive by a REASONABLE person and P has not consented (stroking hair)
9
Q
for battery: to P’s person includes..
A
anything that plaintifff is touching or holding (even if they dont touch your body, anything that you are connected to)
Can be poison in your mouth too (need not be instantaneous)
10
Q
for a battery, the contact does not need to be
A
instantaneous / there can be a delay. it can be indirect
ex. greasing a floor so that P will slip and fall
11
Q
elements of assault
A
- D places P in reasonable apprehension
- of immediate battery
12
Q
assault: what does apprehension mean
A
P has awareness/knowledge of D’s act and has a reasonable expectation that he is about to face an immediate or harmful/offensive conduct (you have to see it coming, cant be oblivious)
13
Q
you’re sleeping, I walk about with a stick and am about to hit you. Assault?
A
No, you did not have an apprehension/knowledge that the battery was coming your way.
14
Q
assault does not require
A
fear
ex. little guy about to hit the rock, rock is calm. but, apprehension is still met and he can recover under assault.
15
Q
assault: reasonable apprehension requires that plaintiff knows an immediate offensive contact is coming their way. what if they are being threatened with an unloaded gun?
A
take a trip into P’s head and determine whether the apprehension/knowledge was reasonable.
was it reasonable to think that a guy holding a gun is holding a loaded gun? probably yes.
16
Q
what is not enough for second element of assault?
A
- words or threats are not alone bc lack immediacy (words are CHEAP), unless coupled with some overt act (weapon, clenching fists)
- threats of future harm/battery not enough (im gonna beat you up tomorrow, not immediate)
17
Q
raises hand up to slap you, “if you weren’t my best friend, I would slap you.” assault?
A
no, words can destroy immediacy. words negate the conduct
18
Q
false imprisonment elements
A
- act/omission of restraint or confinement
- P is confined to a bounded area
- P is aware of being confined OR harmed by it (!!)
- intent
- causation
19
Q
when can an omission be a restraint for false imprisonment
A
failure to act can be a restraint if there is a legal duty
(ex. airline workers leaving someone in a wheelchair on a flight)
20
Q
roomie locks your door at night while your asleep, but its unlocked when you wake up, false imprisonment?
A
no - you need to be aware of being trapped.
21
Q
false imprisonment: an area is not considered “bounded” if
A
there is a reasonable means of escape that P can reasonably discover
22
Q
false imprisonment: a “reasonable” way out cannot be: 4
A
1) dangerous
2) disgusting (rat infested sewer pip)
3) humilitating (naked only way out is to be in public area)
4) hidden (secret passage way)
23
Q
remember for ALL intentional torts, what is NEVER considered?
A
hypersensitivity of P is always ignored.
24
Q
what constitutes restraint? (special! tested)
A
- threats
- invalid use of legal authority
25
IIED elements
1. extreme and outrageous conduct by D
2. severe emotional distress in P
3. intent/recklessness
4. causation
26
IIED: what does extreme and outrageous conduct mean? (MEMORIZE)
conduct that exceeds the bounds of decency in society
27
what is not considered outrageous for IIED?
Mere insults alone.
28
what are hallmarks of conduct that is/may be outrageous for IIED? (non exhaustive)
1. repetitive conduct (debt collection by harassment/threats that is repetitive AF)
2. defendant is common carrier or innkeeper (flight attendant says your ugly)
3. plaintiff is member of fragile class
4. D target's P's KNOWN sensitivity (fear of kittens)
29
outrageous conduct for IIED: plaintiff is a member of fragile class - what is a fragile class? HEAVILY TESTED
1) young kid
2) old people (elderly)
3) pregnant women (have to know she is pregnant)
30
IIED element 2: severe emotional distress - does the P need to prove the distressed caused in anyway?
no, no physical symptoms necessary. its a jury question
31
"Mary was mildly annoyed, so she sued for IIED." Valid?
No, mild annoyance is not severe emotional distress. the test drafters are stipulating to the fact that an element is not met.
32
3 Intentional Torts to property
1. trespass to land
2. trespass to chattels
3. conversion
33
Trespass to land elements:
1. physical invasion by D
2. of P's property
34
Can you be trespassing to land if you do not know you are trespassing?
Yes, awareness not needed.BUT, a deliberate act is required! (just a deliberate act to enter the land)
35
physical invasion, trespass to land: 2 types that satisfy the first element
1. by person
2. tangible object (cant be music from speakers, needs to be a rock)
36
trespass to land: P's property element, what can this include?
land includes air above/soil below to reasonable distance
37
elements of trespass to chattel and conversion (theft and vandalism)
1) D intentionally interferes with P’s right of possession in tangible personal property (chattel)
2) intent
3) causation
4) damages
38
two big differences between trespass to chattel and conversion
1) the difference is the level of interference with P’s property
2) the damages P can recover
39
difference between trespass to chattel and conversation
difference is the degree of interference with P's property
Trespass—minor interference or damage, small harm
Conversion—significant interference or damage that justifies D paying the chattel’s full value, big harm
40
difference between trespass to chattel and conversation damages
Trespass—P can recover cost of repair or rental value of chattel
Conversion—P can recover full market value at the time of conversion or repossess the chattel (replevin)
41
3 affirmative defenses to intentional torts
1. consent
2. protective privileges
3. necessity defenses
4. recapture of chattels
42
consent is a defense to...
all intentional torts
43
to use the consent defense, you need:
legal capacity (need to consider what the activity is and whether the circumstances allow the person to validly consent)
ex. drunks, mentally impaired, and young children are incapable of consenting to tortious conduct
44
Two types of consent for the defense:
1) express: P gives D verbal or written consent
2) implied: D can reasonably infer P's consent based on custom or P's observable conduct
45
2 types of implied consent for defense:
1) inferred based on custom and usage (ex. customary that ppl will shove you when you're on a subway)
2) body language consent (observable conduct, ex. an extension of your hand for a handshake)
46
for implied body language consent, you need to make sure that the consent is
reasonable. Think of sexual intimacy situations - this is a jury question/close call
47
What makes express consent defense void? testable
fraud/duress - negates the consent
48
Scope of consent - defense
D can be held liable for conduct that exceeds the scope of P's valid consent (express or implied)
ex. you give doctor consent to work on your knee, but then doctor says he gave you a nose job)
49
protective privileges (3)
1. self-defense
2. defense of others
3. defense of property
50
the protective privileges all have the same framework:
1) reasonable belief tort is being or about to be committed
2) proper timing (during the event unfolding or imminent)
3) reasonable force - proportionate to threat of harm (not fist with nuclear weapon)
51
you cannot engage in self-defense...
to early (jump the gun) or too late (when no longer in heat of the moment)
52
shopkeeper's privilege
defense of property - merchant can detain a customer if they have a reasonable belief the person shop lifted. but the
1) detention must be in a reasonable manner and
2) suspect can only be detained for a reasonable time
53
is there a duty to retreat for self-defense?
no duty to retreat in majority of states (stand your ground)
54
what type of force is NOT allowed to protect property?
deadly force is not allowed to protect property (property is less valuable than human life)
ex. spring gun case
55
even though someone is in their home, and they used deadly force, what may they try to argue in their defense?
self defense because there is a presumption that someone coming into your home is a deadly threat, unless the circumstances indicate otherwise.
56
for self-defense of property, really question whether..
the person is in their home (is a garage a home?)
57
necessity defenses only apply to
property torts (trespass to land, trespass to chattel, conversion)
58
two types of necessity defenses:
1. public necessity: defendant acts in emergency to protect community
2. private necessity: D acts in emergency to protect own interests
59
public necessity is a ...
private necessity is a....
public- absolute defense (P cannot recover ANY damages)
private - limited or qualified defense (D must still pay compensatory damages, but not nominal/punitive damages) -- only those damages for things actually harmed to D's property
60
Can a trespasser with the private necessity defense recover for being kicked out by the homeowner?
yes they are considered privileged- can remain as long as emergency continues (a right of sanctuary)
Ex. trespassing to someones house for a reason that threatens your life, health, etc - blizzard
61
a landowner must usually do WHAT before defending her property?
Request to desist but not required where circumstances make clear that the request would be dangerous.
62
the only time force may be used to recapture a chattel is when
in hot pursuit of the one who has obtained possession wrongfully
63
recapture of chattels defense
D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable
can use non-deadly force ONLY if in fresh pursuit of the chattel-taker
64
4 elements of negligence
1) duty
2) breach
3) causation (factual and proximate)
4) damages
65
the duty element of negligence is predominantly about...
breach is primarily about...
duty - questions of law
breach - facts
66
what is duty (legally)
legally imposed obligations to take risk reducing precautions for the benefit of others
67
who do you owe a duty to under negligence?
foreseeable victims within the zone of danger!!!!!
68
what is the zone of danger for negligence
the area around Ds activities in which a P could foreseeably be injured
ex. if the question says that someone is super far, but they get hurt, they could be outside the zone of danger and cannot recover
69
where does the rescuer exception apply?
under duty (zone of danger) rule for negligence
70
what is the rescuers exception
rescuers are foreseeable and owed a duty of care (they satisfy duty element) - if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
71
default standard of care for duty element of negligence
D's duty is to behave like a reasonably prudent person acting under similar circumstances
72
the reasonably prudent person is a standard that requires D be compared to a hypothetical person. The RRP is considered to be someone with
D's physical characteristics, but with no allowance for D's shortcomings (objective standard)
73
will a mentally disabled / drunk person be compared to the standard of a RRP?
yes! it does not matter, RPP is an objective standard.
dont let your heart get in the way
74
Exceptions to RPP Standard for duty under negligence
1) Superior skill or knowledge (will be compared to RPP with the same superior skill or knowledge)
2) where RELEVANT incorporate defendant's physical characteristics (blind, deaf, if really tall and it is somehow relevant to the case)
75
the RPP standard is the default for negligence. But, when can this standard be changed?
if a special standard of care applies
76
what are the special standards of care that change the RPP standard
1) children
2) professionals
3) possessors of real estate/land
77
Special standard of care for children
1) under age 5 - no standard
2) age 5-18 - hypo child of similar age/experience/and intelligence acting under circumstances (subjective flexible standard)
78
the special standard of care for children ages 5-18 is...
pro-defendant/pro-kid.
considers age, experience, intelligence
79
But what is the exception to the special standard of care for children?
If the child is engaged in adult activity (then RPP standard)
ex. operating a motorized vehicle, boats, farm equipment, snow mobiles
80
what is the. special standard of care for professionals?
must act with the knowledge and skill of an AVERAGE member of their profession in good standing in similar communities - must conform to what is done by other colleagues/custom
(medical professionals/med mal claim)
81
remember, if in a med Mal situation, a doctor is compared to a...
average doctor, NOT reasonable doctor/RPP. DONT say reasonable.
82
what is the key word difference for the standard of care for professionals vs RPP standard
professionals are compared to the AVERAGE, not "reasonable" RPP.
No longer fictional RPP, we need an average standard for professionals based on fact or research.
83
how do you educate the jury on a professional custom for the special standard for professionals?
Use an expert witness representing the national standard of care
84
For the special standards of care for possessors of real estate/land, the possessor does not always need to be the
owner of the land (like in apartment situation)
85
The special standard of care for possessors of land establishes the rule for duty to protect from
dangerous conditions.
Not activities conducted on land = use ordinary RPP standard of care standard of care
86
duty of care for possessors of land: Unknown or undiscovered trespassers
no duty owed
87
who are anticipated trespassers?
People that you know have trespassed in the past and have a pattern of trespassing! Seriously highly tested
ex. people that have consistently used your land in the past
88
duty of care for possessors of land: known or anticipated trespassers
Duty if:
1) artificial condition (built by humans, not naturally occurring)
2) highly dangerous
3) concealed from trespasser (not open and obvious)
4) prior knowledge of it by possessor
89
duty of care for known/anticipated trespassers: what is an artificial condition vs. naturally occurring condition
Natural - snow/ice
90
licensees
Individuals that enter land with permission but without financial benefit to possessor (social guests)
91
Test for protecting licensee:
duty if:
1) concealed from licensee
2) known by possessor
Must protect from ALL known traps!
92
invitee
individual who enters land with permission for financial benefit on possessor
ex. includes when open to public at large
93
test for duty owed to invitee
Duty if:
1) concealed from invitee
2) known by possessor or could have discovered through reasonable inspection (note: REASONABLE inspection)
94
how to satisfy premises liability duty
1) eliminate the hazardous condition (repair/replace/remove)
2) warn about hazardous condition
95
firefighting and cops are considered to be their own category of entrants. what is the duty owed?
No duty owed for risks inherent to job
96
duty owed to trespassing children
reasonably prudent care under circumstances to protect from artificial hazards on the land
97
licensee or invitee: who is one that gains entry onto the land giving NO financial benefit to possessor
licensee (social guests/EMS)
Invite does enter for financial benefit of possessor (public at large, business guest)
98
What is negligence per se
plaintiff trying to show that an existing statute can establish the standard of care and the standard under the statute can replace common law
99
Req's for negligence per se
1) P is within protected class (patients, customers, etc)
2) Harm suffered is within risks statute is trying to prevent (class of risk)
100
if a statutory standard does not apply under negligence per se, what standard of care do you apply now
apply the RPP standard
101
exceptions when negligence per se will still not work, even when 2 part test is met:
1) compliance is more dangerous than non-compliance
2) compliance is impossible under the circumstances
USE RPP if these exceptions apply
102
generally, there are NO duties to ...
act affirmatively (no duty to undertake an activity/course of conduct). But, if you choose to act, must do so as reasonably prudent person under circumstances
ex. if you drive the car, gotta comply with RPP. But you have no legal duty to drive a car in the first place.
103
if you encounter someone in peril, you do not need to
rescue (no duty to rescue) !!!!!
104
exceptions to where there is a duty to act:
1) relationship between parties (innkeeper/guest, formal relationship)
2) defendant caused peril
105
if you fit within an exception where there is an affirmative duty to act, what duty is owed?
What is reasonable under the circumstances. NOT a duty to rescue, duty to act reasonably under the circumstances
106
Once you choose to rescue, you need to rescue like
a reasonably prudent person
107
Good Samaritan laws
insulate negligent rescuers from liability
ASSUME THERE IS NO GOOD SAMARITAN LAW UNLESS SAID OTHERWISE!
108
Negligent infliction of emotion distress
P may recover for emotional distress resulting from D’s negligence
109
3 types of cases for negligent infliction of emotional distress where there is no physical harm at all, just emotional
1) near miss - almost died
2) bystander and sad
3) business relationship
110
What is a near miss case
negligent infliction of emotional distress - no injury but you are messed up after
111
Elements for Negligent Infliction of Emotional Distress - near miss cases
1) D’s negligence results in a close risk of bodily harm to P- P was put in "zone of danger"
2) D’s negligence results in P’s severe emotional distress
112
bystander case for negligent infliction of emotional distress
D negligently injures 3rd try causing P emotional damages
113
for both types of cases under Negligent Infliction of ED, what is the difference in emotions:
1) Near miss - scared bc you almost died
2) bystander - sad/grievance bc you saw someone killed before your eyes
114
Elements of Bystander case for Negligent infliction of ED
1) Negligence
2) Plaintiff at 3rd party closely related
3) P was present at the scene and observed event
4) P personally observed or perceived the event
115
Business relationship cases for negligent infliction of emotional distress - what are they
P can recover if highly foreseeable that careless performance by D will produce emotional distress AND need some valid business relationship/some type of relationship
ex. patient/medical lab - false cancer diagnosis
customer/funeral parlor - we lost ur family members remains
116
what is NOT a valid business relationship where the ED is HIGHLY foreseeable (business relations)
Customer / Dry Cleaners - No recovery bc not highly foreesable emotional damagers
even if some weirdo actually freaked out about this
117
Negligence Breach of Duty Element
D breaches his duty when his conducts falls short of standard of care owed under the circumstances
118
Breach for negligence can be
an affirmative act or omission that is UNREASONABLE!
119
res ipsa loquitor is ....
a substitute by plaintiff to prove breach of duty when they dont have enough evidence
A SUBSTITUTE WAY OF PROVING THE BREACH OF DUTY ELEMENT!
120
elements of res ipsa for P to show:
1) accident is normally associated with negligence (would not happen unless someone was negligent)
2) Accident would normally be due to negligence of someone in D's position (often satisfied by showing the conduct was within D's exclusive control)
121
if you satisfy res ipsa, what is the result?
No directed verdict, you dont ultimately win. You just get submitted to the jury!!!!!!! It just gives rise to an inference of negligence
122
violation of a statute will establish a
conclusive presumption of duty and breach of duty
123
negligence: 2 types of causation
actual cause: But for
Proximate: foreseeability
124
but for test for causation
Injury would not have occurred but for act or omission
125
D's rebuttal to cause for negligence will always start with
even if for but for cause
126
2 special scenarios where but for does not apply and a diff test applies
1) merged causes
2) unascertainable causes
Apply substantial factor test for merged causes
unascertainable causes shift the burden of poof to the defendants
127
Merged causes (special case for causation, negligence)
2 D's acting independently each commit a breach combining into single indivisible harm
2 negligently set fires
128
If 2 defendants and 2 breaches, dont apply...... apply.......
no but for test, apply the substantial factor test
Defendant liable if breach contributed in signifcant/substantial way to ultimate injury
129
If breach would have been able to cause entire harm if it had been the only breach.... it is a
substantial factor
130
if merged cause scenario where both breaches found to be substantial fact
defendants held jointly and severally liable
131
What is an unascertainable cause
2 acts, only one in which causes injury, but unknown which one
ex. 2 gun shots fired at the same time
132
Unascertainable cause and burden of proof
shifts burden of proof to defendants
133
proximate cause is primarily concerned with
Whether it is FAIR to hold D responsible for P's injuries
134
Foreseeability test for proximate cause
was outcome a foreseeable risk associated with breach?
135
Foreseeability guidelines:
1) passage of time
2) geographic distance
3) prior occurence
These are rough guidelines!
136
common foreseeable intervening forces:
MEMORIZE
1) medical malpractice/medical negligence
2) negligence of rescuers
3) protection or reaction forces
4) subsequent disaease or accident
137
Eggshell Skull Doctrine
One P has established all other elements of a claim, P receives ALL damages suffered even if suprisingly great in scope
(you take your plaintiff as you find them)
138
Eggshell skull rule applies to...
every tort claim (not limited to just negligence, also battery)
139
one defense to negligence
comparative negligence
140
what is comparative negligence
D shows P failed to exercise proper care for her own safety
141
under comparative fault, jury will..
Jury will instructed to assign percentage of fault
142
for comparative fault, P's recovery will be reduced based on
P's percentage of fault
143
Generally, no strict liability for domesticated animals unless
you have knowledge of animal's dangerous propensities UNLESS a trespasser on your land
ex. dogs biting humans
144
at what point does your domesticated animal have dangerous propensities
first time, no strict liability.
Anytime after this, your dog likely has dangerous propensities
145
You will never be strictly liable for a domesticated animal if..
there is trespasser on your land
146
strict liability for wild animals
strict liability if possessed
147
Abnormally dangerous activities
1) cant be made reasonably safe even with ordinary care
2) uncommon in area where conducted
148
common areas of abnormally dangerous activities
1) explosives
2) dangerous chemical/biological materials
3) nuclear energy/high dose radiation
149
Products liability claims can vary:
1) negligence claim
2) UCC - warranties
3) misrepresentation/fraud
4) strict liability
150
just because you see a product, does not mean...
it is a strict liability claim. it can be negligence, UCC, etc.
151
elements for strict liability for products
1) D is a merchant (not a casual seller/service provider)
2) product is defective (manufacturing defect, design defect)
3) product was not substantially altered since leaving D's control
4) P was making a foreseeable use of product at time of injury
152
element 3 to the strict liability for products test tends to drop out/not be tested because
there is a presumption that product moved in ordinary channels of distribution has no alteration
153
A foreseeable use does NOT mean
intended or appropriate
(ex. standing on chair, vs sitting. the question is whether it is foreseeable that ppl will stand up on chairs - yes it is foreseeable)
154
who is NOT a merchant for strict liability
who IS
NOT a merchant:
1) casual sellers
2) service providers
Is a merchant:
1) commercial lessor
2) everyone in distribution chain (retailer/wholesaler/manufacturer)
155
manufacturing defect
product emerges from manufacturing different from others and more dangerous than consumers would expect
156
design defect
risks associated with product's design outweigh utility of design
157
for design. defects, P must show:
alternative design
1) would have been safer
2) was practical
3) was economically feasible
158
information defect:
hidden risks without adequate warnings/instructions - NOTE: adequate
159
when is a warning adequate:
1) prominent
2) comprehensible
3) providing info about mitigating risk)
160
affirmative defenses for strict liability torts
If Q says case is litigated in a jdx that applies traditional rules
Traditional rule is knowingly encountering dangerous situation bars recovery
161
Unless question mentions traditional rules, what rule will apply for affirmative defenses for SL torts (not a traditional jdx)
Jury assigns percentages of comparative responsibility
162
nuisance - what must be shown
SUBSTANTIAL/UNREASONABLE interference with use/enjoyment of property
A minor interference is not actionable
163
vicarious liability
arises when D commits a tort against P and a third person is held liable due to his relationship with D
164
vicarious liability for employer/employee
respondeat superior -- employer can be held liable if employee acting within scope of employment at time of accident
165
frolic or detour
if minor departure from work: detour and employer is still liable
If major departure: outside scope of employment and employer not vicariously liable
166
intentional torts and vicarious liability
intentional torts are generally outside scope of employment
except when:
1) The job requires use of force (e.g., bouncer),
2) The job entails creating friction (e.g., bail bondsman), or
3) The intentional tort is done to further the employer’s goals (e.g., physically breaking up a fight in a store)
167
if you are a bouncer, or an occupation that involves authorizations to use physical force, misuse of that force is
within the scope of employment and employer is vicariously liable.
168
Independent Contractors liability and hiring party
Hiring party generally not liable for torts committed by IC
But business owner can be held liable if:
1. for acts that are inherently dangerous or duties that are non-delegable
2. Businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers
169
Joint and several liability
plaintiff can recover full damages from any D
170
comparative contribution
defendant seeks compensation from co-defendants, in proportion to their % fault
171
indemnification situations
Full reimbursement to out of pocket defendant
available when:
1) vicarious liability
2) strict liability if not a manufacturer
172
loss of consortium
claim by spouse of injured party, derivative of injured party's claim
(loss of household services, loss of society/companionship/ loss of sex)
173
elements of defamation
1a) defamatory statement made
1b) that references P (any identifying info is ok)
2) publication (statement must be intentionally or negligently made to a third person)
3) falsity
4) fault (diff standards based on who P is)
5) damages
174
what is a defamatory statement
statement that adversely affects reputation - must be based on specific facts
175
can a statement of opinion be defamatory?
not generally. can only be defamatory if they IMPLY specific facts or a factual representation
176
is name calling defamatory
no because it is not subject to a T/F test, not based on fact
177
what if the person being defamesd is dead
not actionable then, you need to be alive at the time the statement is made
178
private convos are
not defamation. they are hurtful, but not a valid publication for defamation
179
fault required depends on plaintiff: (DEFAMATION)
1) private person: negligence
2) public figure: knowledge of falsity or reckless disregard of falsity (malice)
180
libel and damages
defamation embodied in permanent form/writing/print (newspapers) (damages are presumed)
181
slander per se and damages
words so clearly defamatory that ordinary person would understand injury (damages presumed) - spoken words
Common categories of slander per se: (if in these categories, damages are presumed)
1) business/profession
2) serious crime
3) serious sexual misconduct
4) P suffers from loathsome disease (venereal disease)
If you dont fall into these categories, you need to prove economic harm for slander other than slander per se.
182
affirmative defenses to defamation
1) consent
2) privileges (absolute or qualified)
183
absolute privilege defense to defamation
1) between spouses
2) officers of government in connection with official work
184
qualified privilege
D’s liability for defamatory statements is limited where:
1) D invites the statement and/or recipient has an interest — e.g., employment reference, credit report, letter of recommendation
2) Statement is in the public interest — e.g., book reviews, statement to a parole board
185
qualified privilege only applies to
statements made in good faith and relevant in scope
186
Common interest privilege
qualified privilege for statements made to colleagues within the same org
187
appropriation privacy tort and exception
Defendant uses P's name/image for commercial purpose (applies to normal ppl too)
Exception: newsworthiness - no liability for use of Ps name or likeness for the purpose of reporting news
188
intrusion privacy tort
invasion of P's seclusion in way that would be highly offensive to reasonable person (peeping Tom)
*need to be in a place of seclusion/private where you have a REP*
189
false light privacy tort
widespread dissemination of material falsehood about P that would be highly offensive to reasonable person (often a mischaracterization of P's views or conduct)
*not recognized in all states*
190
difference between damages between false light and defamation
false light: emotional damages
Defamation: economic damages
191
disclosure privacy tort
widespread dessimination of confidential info about P not of legitimate concern to public and highly offensive to reasonable person (must be a truly confidential fact, cannot share with anyone)
(ex. if dan park sent your tax returns to a bunch of ppl, also NO disclosure claim when your out to all your friends but not your work)
newsworthiness exception: if matter of public concern, then it is not actionable
192
affirmative defenses to privacy torts
1) consent to all 4 claims
2) absolute/qualified privilege for false light/disclosure claims
