Torts (Part 2 of 2) Flashcards
State the 4 elements.
Malicious Prosecution ----------- I Won on the Merits, now I'm MAD. ----------- (1) Win in court on the merits. (2) Malice (3) Absence of probable cz. (4) Damages
How does FL make MP harder for a PL?
Win on the Merits. Simple dismissal on technical grounds (ex. standing) or settlement is insufficient.
How does FL make Malicious Prosecution easier for a PL?
Need legal malice only, not actual malice.
how remember:
~prosecution is a ‘legal’ action
~legal mal = tort level negligence.
Malicious Prosecution ----------- Define "Legal Malice." ----------- Hint - negligence/fairness
Malicious Prosecution
(1) Knew or shd have known
(2) Done w/o just cause or excuse.
What 3 types of damages are available in Mal. Pro.?
Malicious Prosecution i won on Merits, now i'm MAD in the PEN ----------- (1) Pain & suffering (mental, physical) (2) Expenses (3) comp for dmg to Name + character
State the 2 elements of Abuse of Process.
Abuse of Process ----------- [Abuse is always Intentional & Unlawful] ----------- (1) Willful or intentional misuse of process (2) Wrongful and unlawful purpose.
Name 3 ways Abuse of Process differs from Malicious Prosecution.
Abuse of Process
1) No need to show original proceeding ended.
2) No need to show malice or absence of prob cz.
3) The act takes place during the course of the proceeding (not before).
State the 4 elements of fraudulent concealment.
Fraudulent Concealment
1) Duty to disclose material facts.
2) Did not disclose.
3) To induce EE to take an action.
4) Damage to Applicant or EE.
What must concealing ER’s intent have been?
Deception of EE.
When does ER have a duty to disclose?
When facts are material. No duty to disclose immaterial facts.
What is a ‘material’ fact that triggers a duty to disclose?
One that if the EE had known, would have acted differently.
What are the 4 elements of Intentional Infliction of Emotional Distress?
(1) Intentional or reckless.
(2) Extreme and outrageous conduct.
(3) Causing severe emotional distress or bodily injury.
(4) To PL.
———–
~lots of vowels Intent, Outrag, Emot dmg, to Pl
What is the very difficult standard that prevents most claims from getting to the jury?
Conduct must go beyond all possible bounds of decency, be atrocious, and utterly intolerable in a civilized community.
Who decides whether Def’s conduct was indecent, atrocious & intolerable?
Judge! Not the jury.
How is Def’s conduct viewed - objectively or subjectively?
Intentional Infliction of Emotional Distress ----------- Objectively, not subjectively. --------- ea - is anything subjective?
State the 4 elements of Defamation.
Defamation ----------- Said it + False + No reas care = Damage. ----------- (1) Publication TO A 3RD PARTY of. (2) False and defamatory statement re: PL. (3) W/out reasonable care as to wh/ true or false. (4) Damages to the plaintiff
Must malice be shown?
Yes.
Actual or express UNLESS you’re a public figure, then show express.
If LG’s EE were to defame, would LG be held liable?
No. Entirely on the individual EE.
Why? b/c defamatory statement is inherently malicious in nature.
What are the 3 defenses to defamation?
Defamation
(1) Truth of statement.
(2) Absolute privilege.
(3) Qualified privilege.
What is absolute privilege?
Absolutely immune for statements made in scope of duties.
Made during any official judicial or legislative proceeding and relevant to the proceeding.
Recovery is impossible, regardless of extent of defamation or malice.
What are the 5 elements of qualified privilege?
Defamation ----------- Defamer, listener & medium all qualified. (1) Good faith; (2) A duty to speak; (3) A duty to listen/read. (4) Proper occasion; and (5) Publication in a proper manner.
If a Defamation Def is able to show qualified privilege, what can PL show to win?
Express malice.
How does FL ramp up Defamation in an ER-EE circumstance?
Previous ER called as a reference by prospective ER has qualified privilege to defame you if done in good faith.
What 4 types of damages are recoverable in defamation?
Defamation
(1) Direct or indirect pecuniary loss or special damages;
(2) Physical pain and inconvenience;
(3) Mental suffering; and
(4) Injury to reputation
