Torts - Other Torts

Question 1

What are the two types of nuisance?

Answer 1

Public and private

Question 2

What is private nuisance?

Answer 2

Unreasonable AND substantial interference
with use and enjoyment
of another’s property

usually between two private individuals

Question 3

In terms of mental state of D, the plaintiff in a private nuisance action must show that the defendant’s interference with the plaintiff’s use and enjoyment was either

Answer 3

(a) intentional; (b) negligent; (c) reckless; or (d) stemming from an abnormally dangerous activity. See Rest. 2d Torts, § 822(b).

the word “intentional” is defined quite broadly in this context. It’s not necessary that the defendant act for the purpose of causing the interference. Rather, it’s enough that the defendant knows that the interference is either occurring, or is substantially certain to occur in the future, as a result of the defendant’s conduct.

Question 4

What is unreasonable interference?

Answer 4

For the interference to be unreasonable, the severity of the inflicted injury must outweigh the utility of the D’s conduct.

eg, is landowner installs bright light for no reason other than to annoy his neighbor, then there is no utility to D’s conducdt, and the annoyance it causes will outweigh the utility and therefore the interference will be unreasonbale.

Must be interference that is unreasonable by objective standard.

eg, if someone is especially sensitive and breaks objective standard, for instance, someone hates a smell, or has an acute allergy, then this would not be a nuisance

eg, if i’m shooting hoops early evening, and couple goes to sleep early, that’s not unreasonable by objective standard

eg, i’m playing heavy metal music at 3am, this is unreasonable by objective standard and a nuisance

Question 5

What is a public nuisance?

Answer 5

an unreasonable interference
affecting
public at large

Question 6

EG of public nuisance?

Answer 6

chemicals from power plant; something flowing downstream and infecting the town

Question 7

Who brings action for public nuisance?

Answer 7

Usually, The government. The district attorney/prosecutor or whoever would bring on behalf of the people.

Question 8

What if private person brings public nuisance suit?

Answer 8

If private P brings public nuisance suit, must prove some sort of special (usually economic or pecuniary (to do with money)) harm.

Question 9

What is the challenge with defamation?

Answer 9

All the answer choices look good.

Must distinguish between the answers.

Question 10

What is the approach to defamation?

Answer 10

1. Make sure you know whether statement in question was defamatory. Just bc you don’t like it, may not be defamatory

Question 11

What makes statement defamatory?

Answer 11

A defamatory statement;
The statement must be false (and negative) and NOT an opinion. It usually contains language that diminishes respect toward the plaintiff or deters others from associating with the plaintiff.

eg, someone says i’m a carolina fan…i take offense, but this does not necessarily diminish my respect, so no defamatory statement.

Question 12

What are the elements of defamation?

Answer 12

Defamation occurs when the defendant:

1. Publishes;
2. A defamatory statement;
3. Of or concerning the plaintiff;
4. Causing damage to the plaintiff’s reputation.

Question 13

What does “publishes” mean for defamation?

Answer 13

The statement must be communicated to a third party who understands the content of the statement. A person who merely repeats a defamatory statement may still be held liable for defamation.

eg, someone calls me a liar to my face, but no one else around. NOT defamation bc no 3P.

eg, what if someone else around, but they call me a liar in mandarin? NOT defamation unless 3P understood mandarin and heard it.

Question 14

What does “of or concerning the plaintiff” mean for defamation?

Answer 14

A reasonable person must believe that the defamatory statement referred to this particular plaintiff.

Question 15

What are the types of defamatory statements?

Answer 15

Written down, printed, or recorded statements = LIBEL

Spoken statements NOT recorded = SLANDER

Question 16

For libel, P may recover…

Answer 16

…general damages (things like damage to reputation or personal relationships, and mental anguish.) without proving concrete measurable harm. P does not have to prove any special harm or economic damages to prevail on defamation claim

Question 17

For slander (not slander per se) P MUST PROVE…

Answer 17

… special harm/economic damages (like a lost job, inheritance, gift, customers, and the like), which require more concrete showing of actual economic loss, to prevail

Question 18

What is slander per se?

Must you prove special damages?

Answer 18

statements so bad that there are Presumed damages not limited to special damages (like a lost job, inheritance, gift, customers, and the like) and cover general damages (things like damage to reputation or personal relationships, and mental anguish.) = SLANDER PER SE

No, not required to prove special damages, can recover general damages.

Question 19

What are the types of slander per se?

Answer 19

1. Slander about someone’s profession;
2. Slander about the chastity of a woman;
3. Slander about crime of moral turpitude (look for an accusal of committing a felony);
4. Slander about a loathsome disease (eg, STD accusation)

Question 20

Does it matter WHO is being defamed?

Answer 20

Yes, sometimes. Public v private standards are different.

Question 21

What if person being defamed is private individual?

Answer 21

Cannot act negligently, otherwise liable.

A private individual is any person that is not a public official or public figure. If the plaintiff is a private individual AND the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was false and the speaker was at least negligent.

Question 22

What if person being defamed is public?

Answer 22

Actual Malice Standard. If the plaintiff is a public official or a public figure, the plaintiff must prove actual malice. This requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.

Question 23

What if someone publishes false statements about a public official and unreasonably failed to investigate the accusation before publishing it, and caused reputational damage to the public official?

Answer 23

They are not liable for defamation, because they merely acted negligently in unreasonably failing to investigate, and not reckless or intentionally (ie, with actual malice).

Publisher must have “entertained serious doubts” as to whether true and published anyway to be considered reckless. If honestly believe it to be true, however negligent/unreasonable that belief might be, the publisher is not liable for defamation against a public figure. WOULD BE liable for defamation if against PRIVATE individual though.

The Supreme Court has held that the First Amendment requires that a public figure, in order to recover for defamation, must prove that the defendant acted with more than mere negligence with regard to the truth or falsity of the defamatory statement.

Question 24

Who is considered to be a public official?

Answer 24

A public official is a person who has control over government office (includes political candidates).

Question 25

Who is considered to be a public figure?

Answer 25

A general purpose public figure is a person of persuasive power and influence in society.
A limited purpose public figure is a person who has injected himself into a public controversy.

Question 26

What damages can public official/figures recover?

Answer 26

If the plaintiff is a public official or public figure, the plaintiff can only recover actual proven damages (no punitive or presumed damages).
If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.

Question 27

What are the defenses to defamation?

Answer 27

Truth is the biggest defense. IF true, it’s an absolute defense.

Privilege is an absolute defense. Any public proceeding/official proceeding, have an absolute privilege and cannot be sued by official/figure for defamation

Question 28

What is the qualified privilege defense?

Answer 28

Matter that appears necessary to protect D’s interest or public interest

EG, you ask me for a referral letter, then I write it but say something honestly that reasonably believed to be true, you cannot sue me because I have qualified privilege bc you asked me for it.
Look for character reference fact pattern, hiring, something of this sort

Question 29

What are the ways you can invade someone’s privacy?

Answer 29

1. Portray someone in a false light
   doesn’t necessarily have to be bad (this would be in category of defamation), just has to be false. Can even be complimentary
   eg, you’re a carolina fan = portraying me in false light
2. Appropriation: unauthorized use of someone’s name/likeness for commercial advantage
   eg, using celebrity in ads
   Watch out for using someone’s name/likeness unauthorized, but no commercial gain
3. Public disclosure of private matter
   eg, must be expectation of privacy. if person puts matter out there in the public (on social media sites, etc.), no expectation of privacy.
   eg, if newsworthy or matter of public record, no exp of privacy
4. intrusion on exclusion
   eg, going through someone’s drawers and taking information

Question 30

As to the media and the publication of public disclosures and private facts…

Answer 30

…A qualified privilege exists for accurate reports of public hearings, meetings, or events of sufficient public interest.

Question 31

for false light v defamation

Answer 31

Look for it being false, but not negative.

Question 32

What is intentional misrepresentation aka fraud/deceit?

Answer 32

Can be intentional:

D misrepresents
intentionally
a material fact
that they knew or should have known
could be false
with intent to induce reliance

then person does rely and
causes damages

This is someone trying to trick you. 3-card montie on the boardwalk.

Question 33

What is negligent misrepresentation?

Answer 33

D misrepresents
negligently (not on purpose)
with false-misleading statement
to someone with special relationship (usually fiduciary relationship)

they relied
caused them damages

eg, broker/client and broker fails to tell you about defect in roof (not on purpose); then they buy house and causes damages

Question 34

What is tortious interference with a contractual relationship?

Answer 34

Contract exists
with D’s knowledge
and D intentionally
induces
to breach that K

causes damage

eg, broker/client and broker knows client represented and tries to get someone to break that K
eg, sports agent induces another sports star to get out of their K with other sports agent.

Question 35

What is malicious prosecution?

Answer 35

Starting a criminal proceeding
without probable cause
for reason other than justice

eg, just want to make someone look bad
eg, revenge, with no PC that they did something bad