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Torts > Torts Greatest Hits > Flashcards

Torts Greatest Hits Flashcards

1
Q

A public nuisance is

A

There is an unreasonable interference with
+
A public right (e.g. safety or public morality)

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2
Q

How is a claim for public nuisance brought?

2

A
  1. Typically brought by a government actor such as an Attorney General.
  2. An individual action for a public nuisance: show that she is suffering harm different and distinct from the public at large
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3
Q

A private nuisance claim arises when

A 
A thing or activity
\+
that substantially or unreasonably
\+
Interferes with a π's use or enjoyment of his land
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4
Q

Mental state required for private nuisance?

A

When notified of interference, continued use creates intent.

Usually intentional, because once the defendant is placed on notice that their activity is interfering with the plaintiff’s use and enjoyment of the land and the defendant doesn’t stop because the defendant knows that their activity is interfering with the plaintiff.

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5
Q

Private nuisance claim, to show interference with a π’s use or enjoyment of his land
(5)

A

Weigh the factors

(1) The value of the ∆’s activity
(2) Alternatives available to both ∆ and the πto minimize the harm
(3) The nature of the locality
(4) Extent of the plaintiff’s injury
(5) Who was there first?

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6
Q

Remedies for nuisance

A

Injunction

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7
Q

What is an injunction

A

A equitable remedy sought by π

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8
Q

To get an injunction, the plaintiff must persuade a judge that
(3)

A 
All the elements of nuisance
\+
1. π is suffering irreparable harm (the continuing nature of nuisance); and,
\+
2. Damages are not an adequate remedy
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9
Q

For a defamation action plaintiff must establish that defendant:

A 
published 
\+
defamatory material
\+
concerning the π
\+
That caused reputation harm
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10
Q

False reputation harming communications are

A

defamations

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11
Q

Checklist for Defamation

6

A
  1. Is the communication defamatory?
  2. Are there pleading issues
  3. Publication
  4. Liable or Slander
  5. Common law privileges
  6. First amendment issues
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12
Q

When is a communication defamatory?

5

A

The statement must be one which can be believed to be truthful and reputation-harming.
+
A communication is defamatory if it subjects the π to:
1. scorn
2. ridicule; or,
3. contempt

Or deters 3rd persons from dealing with them

Does not matter if ∆knows truth value

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13
Q

What statements cannot be defamatory?

2

A
  1. Hyperbole: nobody really could believe it

2. Pure Opinions

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14
Q

Can the tort of defamation survive death?

A

no, can say whatever you want about dead people

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15
Q

When is a communication reputation-harming?

4

A

A communication is defamatory if it subjects the π to:

  1. scorn
  2. ridicule; or,
  3. contempt

Or deters 3rd persons from dealing with them

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16
Q

Pure opinions are statements that

A

cannot be proved to be true or false

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17
Q

How to get defamatory action when the πis not named

A

The π must allege that is of or concerning her.

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18
Q

Defamation actions for groups

2

A

if ≥ 10 people, cannot be defamed

if

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19
Q

Publication in defamation means

2

A

That the ∆
intentionally or negligently
+
Permitted someone other than the π to come into contact with the defamation

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20
Q

To meet publication element of publication, π must show

A

That ∆ intentionally or negligently permitted
+
someone a third party to hear the defamation

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21
Q

What is the republication rule?

2

A

(1) In addition to the defendant who originates the defamatory message, other persons who repeat the defamation will be liable for the defemation
(2) Such republication may also lead to liability even if it is disclaimed “∆ said, {defamatory statement}

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22
Q

What is Liable?

A

a defamatory message embodied in a relatively permanent form (e.g. a writing, photo, media)

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23
Q

What are the types of defamations?

A
  1. Libel

2. Slander

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24
Q

What is needed for a slander claim?

3

A

Defamation
+
Defamation message not in a permanent form (e.g. oral)
+
Special damages which are specific economic damages flowing from the defamation

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25
Q

Slander Per Se

A

Do not have to prove special damages in the following
CLUB

1) Slander which imputes to plaintiff behavior or characteristics that are incompatible with π’s performance of business or trade
2) A slander that imputed to plaintiff the commission of a crime involving moral turpitude or infamous punishment (imprisonment or death) is slander per se.
3) Allegations of plaintiff having a loathsome disease are slander per se. Historically, a loathsome disease was one that was incurable and persisted over time, such as venereal disease or leprosy.
4) It was slander per se to falsely impute unchastity to a woman; general sexual impropriety

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26
Q

When does a π not need to prove special damages for a slander claim

A

When the defamatory statement is in a slander per se category.

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27
Q

Common law privileges for defamation

3

A
  1. Truth of statement
  2. Absolute Privilege
  3. Constitutional issues
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28
Q

In a defamation case, the πhas the burden to prove

A

that the communication was false

29
Q

When an Absolute Privilege applies to defamation

A

the ∆will not be liable defamation — safe harbor for defamation

30
Q

Absolute Privilege for defamation occurs in what contexts?

4

A
  1. communications between spouses
  2. statements made on the floor of a legislature
  3. statements made among high-ranking gov’t officials
  4. Statements made during judicial proceedings
31
Q

Qualified privileges for defamation apply for:

2

A
  1. members of a group + a common interest (business associates)
  2. Providing a reference in a job setting
32
Q

Defendant loses an otherwise available qualified privilege for defamation if
(3)

A
  1. excessive publication;
  2. where the ∆knows the statement is false;
  3. Where the ∆is reckless as to truth or falsity;
33
Q

Constitutional Issues in Defamation

4

A
  1. What is the status of the π: public official, public figure, or private figure?
  2. What is the subject matter of the communication? Public concern or private concern?
  3. What damages does the π seek?
  4. What is the status of ∆?
    Media ∆ or non-media ∆
34
Q

If defamation relates to a public official in capacity as a public official, to recover, π must establish

A

clear and convincing evidence
+
Defendant knew information was false or: recklessly disregarded truth or falsity

35
Q

Types of public figures

2

A
  1. all purpose public futures: household names

2. limited public figures: injects themselves into a controversy trying to have an effect on the outcome

36
Q

If defamation relates to a public figure, to recover, π must establish

A

clear and convincing evidence
+
Defendant knew information was false or: recklessly disregarded truth or falsity

37
Q

Intrusion into seclusion claim elements?

4

A

This form of invasion of privacy is present when defendant
intentionally
+
Unreasonably
+
Intrudes into π’s sphere of privacy (≠public visible)
+
Invasion is offensive to a reasonable person

38
Q

Intrusion into seclusion damages?

A
  1. Emotional distress

2. punitive damages

39
Q

Commercial Appropriation claim elements?

3

A 
An unauthorized use of
\+
π's identity or likeness
\+
For a commercial purpose (≠ news worthy purpose)
40
Q

Public Disclosure of Private True Facts claim elements?

4

A
  1. Disclosure
  2. Private Facts (≠ from public record)
  3. Disclosure of which would be highly offensive to a reasonable person
  4. Not newsworthy
41
Q

Actions available for invasion of privacy?

A
  1. Intrusion into seclusion damages
  2. Commercial Appropriation
  3. Public Disclosure of Private True Facts
  4. Portrayal in a false light
42
Q

Portrayal in a False Light v. Defamation

A

The claim is offensive but it is not reputation harming

43
Q

Portrayal in a False light action elements

4

A
  1. Publication
  2. False information
  3. Divulging of information
  4. Same level of fault required in defamation (public figure/official need actual malice)
44
Q

Malicious Prosecution arises when

3

A

Malicious prosecution arises when criminal proceedings are instituted by X against Y
+
X instituted it for an improper purpose and without probable cause
+
The case terminate favorably to Y on the merits and cause plaintiff damages.

45
Q 
Intentional Misrepresentation (fraud/deciet) elements
(4)
A 
An intentional misrepresentation by ∆
\+
Of a past or present fact
\+
Made with scienter 
\+
π justifiably relied
46
Q

Economic Tort Actions

5

A
  1. Intentional Misrepresentation (fraud)
  2. Negligent Misrepresentation
  3. Interference with Contractual Relations
  4. Interference with Prospective Economic Advantage
  5. Injurious Falsehood (trade disparagement)
47
Q

When is there a duty to disclose a fact?

5

A

(1) there is some sort of fiduciary relationship
(2) there is an ambiguous or misleading statement that causes reliance and needs clarification
(3) defendant makes an assertion believing it to be true, subsequently discovers that it was false or that circumstances have changed, and fails to disclose the truth or changed circumstances
(4) where defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers that plaintiff intends to rely upon it
(5) where plaintiff reasonably expects disclosure

48
Q

What is the mental state requirement for intentional misrepresentation?

A
  1. ∆intends for π to rely upon statement

2. ∆ knows the statement is false or is reckless as to truth or falsity

49
Q

When can a π recover for negligent misrepresentation?

A

Generally, ∆has no duty to avoid the negligent infliction of pure economic loss

Is liable when there is a special relationship (fiduciary relationship)

50
Q

When can a π recover for pure economic loss in torts?

A

Never, but can add when there is property damage or injuries

51
Q

Interference with Contractual Relations elements?

2

A

a. Defendant knows that there is an existing contract between the πand a third party
+
b. Defendant acts with the purpose of impairing the contract

52
Q

Who can sue a lawyer for legal malpractice?

A

1) client

2) intended beneficiary under a will

53
Q

What does the claim of Intentional Interference with Prospective Economic Advantage protect?

A

This tort protects the probable “expectancy” interests of future contractual relations of a party.

54
Q

To prove Interference with Prospective Economic Advantage, the πmust show

A
  1. ∆ knew of the prospective economic advantage of the π

2. ∆ acted solely to interfere with the economic advantage for an improper purpose

55
Q 
Injurious Falsehood (Trade Disparagement) requires π to prove
(4)
A
  1. A false statement,
  2. Which ∆ knows is false or is reckless as to truth or falsity;
  3. Made to another or published
  4. Causes specific economic injury to the π

E.g.: Lying about a competitors supply to with-hold economic advantage

56
Q

Vicarious Liability in Torts for employer of employee, if

2

A

An employer is liable for injuries caused by the negligence or strict liability of an employee if the tortious act occurred:
+
In the scope of employment

57
Q

If respondeat superior is invoked, who can an employer recover from

A

Can seek indemnity from the employee

58
Q

How is an employer directly liable for their employees?

A

They are liable for negligent hiring.

59
Q

Employer is liable for an employee’s intentional tort when?

A

When done pursuant to business purposes/when done to benefit the employer

60
Q

Employer is liable for an independent contractor’s acts when?

A

When it’s not an independent contractor, and it is an employee. The more the employer controls

  1. Means,
  2. Method,
  3. Manner

of Work

61
Q

When is a parent liable for the torts of their children?

2

A
  1. negligent supervision

2. negligent entrustment

62
Q

What is the effect of a survival statute?

A

The death of the victim or tortfeasor no longer abates the tort action and the claim survives the death of the victim

Lawsuit becomes an asset of the estate

63
Q

What is the effect of a wrongful death statu

A

an action by which either heirs of a deceased victim or the personal representative of the victim’s estate may bring a claim for

Their loss due to death

64
Q

What is the effect of loss of consortium

A

Where a spouse is killed, the surviving spouse may bring a claim for loss of consortium for the loss of the

  1. relationship,
  2. sex
65
Q

What are the derivative actions from an underlying negligence action?

A
  1. wrongful death

2. loss of consortium

66
Q

In a private nuisance, the harm to the π should be evaluated from

A

the subjective POV of π, how much is it harming them particularly?

67
Q

If a ∆’s wild animal wanders onto another’s property, what’s the liability

A

Strictly liable for trespass

68
Q

When will assumption of risk of animal attacks be a defense for ∆?

A

When the victim does something voluntarily to cause the animal to injure him

69
Q

Where are ∆’s animals excused from injuring others?

A

Trespassers on ∆’s land

Torts (5 decks)

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