Elements for public nuisance claim
- D unreasonably interfered with a public right (typically right to health, safety, or property); and
- P suffered a distinct and different harm from the public at large
Who has standing to bring a public nuisance claim?
- Government (common), or
- Individual (must show that she is suffering from a different and distinct harm than the public at large)
Elements of private nuisance claim
Substantial and unreasonable interference of P’s use or enjoyment of their land
What constitutes substantial and unreasonable interference for a nuisance claim?
Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person
Unreasonable: Injury outweighs utility of behavior
What are the remedies for nuisance?
- Injunctions;
- Damages
Differentiate between nuisance and trespass
Nuisance:
- No physical invasion required (can be light, smells, etc)
- Continuous
- Substantial interference
Trespass:
- Physical invasion required
- Does not need to be continuous
- Does not need substantial interference
Elements of defamation
- Defamatory statement;
- Concerning P;
- Published to a third party (either intentionally or negligently);
- That damages P’s reputation
** If matter is of public concern or P is a public figure, must also show → - D acted with actual malice
2 types of defamation
- Libel (written)
- Slander (spoken)
What types of statements are considered defamatory?
Those that diminish respect or goodwill towards P or deter 3rd parties from dealing with them
What type of statements are not considered defamatory?
- Hyperbole: no reasonable person would believe the statement
- Pure opinions: cannot be proved true or false
⚠️ Note: Opinions can be defamatory if speaker implies knowledge of facts
What constitutes publication for defamation?
D intentionally or negligently makes statement to a third party (someone other than the person bringing the action)
⚠️ Note: If third party learns of the statement through the grapevine, no defamation claim
What is the re-publication rule?
If someone repeats or re-publishes a defamatory statement, they can be held liable (even if they claim they don’t know whether or not the statement is true)
Can the dead be defamed?
No
Define
libel
Defamatory statement that is written, published, or expressed in physical form
Are defamatory TV and radio broadcasts considered libel?
Yes
Elements of trade libel
- Publication;
- Of a disparaging statement about quality of P’s business or service;
- That D knew was false or acted with reckless disregard for its truth; and
- P suffered economic harm
What type of damages does P have to prove to recover for libel?
General damages are presumed, P doesn’t need to prove special damages
Define
slander
Defamatory statement made orally
What damages need to be proven for slander?
Special damages, i.e. calculable damages
⚠️ Note: Special damages do not need to be proved for slander per se
Define
slander per se
Defamatory statement that doesn’t require proof of special damages.
Accuses P of either:
- Misconduct that reflects poorly on P’s profession;
- Committing a crime involving moral turpitude;
- Having a loathsome disease; or
- Sexual misconduct or impropriety
If defamation involves a matter of public concern, what must P prove?
- Statement was false; and either:
- Actual malice (public figure) or negligence (private figure)
Define
matter of public concern
- Relates to the political, social, or other concerns of the community; or
- Newsworthy issue that is of general concern to the public
Who is considered a public figure for defamation?
Household names, those who have widely known fame
What constitutes actual malice for defamation?
- Knowing the published information was false; or
- Recklessly disregarding the truth or falsity of the statement
What are the 3 main defenses to defamation?
- Truth (absolute defense);
- Consent; or
- Privilege: absolute (complete defense) & qualified (can be revoked)
What communications are protected by absolute privilege?
- Between spouses;
- On the floor of a legislature;
- During judicial proceedings (must be related to proceeding);
- Between high-ranking government officials; and
- Required publications in the media
What types of communications are subject to qualified privilege?
- Involving the public interest;
- Made to defend one’s reputation; or
- Made to promote truthfulness
When does D lose a qualified privilege for defamation (thereby exposing himself to liability)?
- Exceeding scope of privilege; or
- Acting with malice or reckless disregard for the truth
If D reasonably but mistakenly believed statement was true, is she liable for defamation?
No, unless she was negligent
4 types of invasions of privacy
- False light;
- Appropriation;
- Disclosure; and
- Intrusion upon seclusion
Acronym: FADI
Define
intrusion upon seclusion
D intentionally intrudes into P’s sphere of privacy in a way that is offensive to a reasonable person (e.g. recording conversation with a camcorder)
⚠️ Note: Public places generally do not have an expectation of privacy
Define
misappropriation
Unauthorized use of P’s identity or likeness for a commercial purpose that causes harm
Elements of public disclosure of private facts
- D gave publicity to a matter concerning the private life of another;
- On a matter that is highly offensive to a reasonable person; and
- Not of legitimate concern to the public
⚠️ Note: Activities done in public are not private matters
What constitutes “giving publicity” for a public disclosure tort?
Disseminating private information widely enough that it becomes public knowledge
Elements for portrayal in a false light
- Publication of;
- False information about P;
- That is highly offensive to a reasonable person
⚠️ Note: Many jurisdictions also require proof that D acted with actual malice
Does D still have liability if the private facts are of legitimate public concern for:
- Intrusion upon seclusion?
- Public disclosure?
- Appropriation?
- False light?
- Yes, still liable
- No, not liable
- No, not liable
- Yes, still liable
Defenses for invasion of privacy torts
- Privilege (absolute or qualified);
- Consent
⚠️ Truth is not a valid defense
Elements of malicious prosecution
- D commences proceedings;
- For an improper purpose;
- Without probable cause;
- Proceeding terminated in favor of P; and
- P suffered damages (job loss, reputational damage, etc)
Are judges and prosecutors liable for malicious prosecution?
No, they have absolute immunity
Elements for abuse of process
- D uses the legal process;
- For an ulterior purpose; and
- Willfully acts or threatens P to accomplish the ulterior purpose; and
- P sustains damages
Elements of intentional mispresentation
- D mispresents a past or present material fact;
- That D knows or should know to be false;
- With the intent to mislead P;
- P justifiably relied upon the fact; and
- P suffered actual economic damages
When does failure to disclose material facts or opinions constitute misrepresentation?
- Fiduciary relationship exists;
- Ambiguous or misleading statement causes reliance and needs clarification;
- Circumstances have changed and the original assertions are no longer true; or
- P reasonably expects disclosure
Elements for negligent misrepresentation
- D negligently prepared business or professional materials;
- That misrepresented past or presents facts;
- D knew P would rely on misrepresentation;
- D breached duty of care owed to P;
- P did rely on D’s misrepresentation; and
- P suffered actual economic damages
(e.g. D is an accountant and negligently prepares an accounting report for his client, P)
Elements for intentional interference with business relations (tortious interference)
- D knew there was an existing K between P and third party;
- D intentionally interfered with K;
- Interference resulted in breach; and
- P suffered damages
⚠️ Note: Does not apply to K’s that are terminable at-will
When is interference with business relations justified?
- Motivated by morality or health & safety
- To protect financial business interests (e.g. cell phone company providing incentives for customers to abandon their current cell provider or cable company offering discounts to switch)
Define
vicarious liability
Holds a third party is liable for the tortious acts of another
Define
respondeat superior
Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment
For vicarious liability, what acts are considered within the scope of employment?
Acts that:
- Employee was hired to do or are part of her official duties; or
- Benefit the employer
For vicarious liability, differentiate a detour vs. a frolic
- Detour: a minor deviation from the scope of employment (employer is liable)
- Frolic: unauthorized and significant deviation (employer is not liable)
When is an employer liable for an employee’s intentional tort?
When the tort falls within the scope of employment. Can fall within the scope of employment if:
- Force is inherent in the job (e.g. bouncer);
- Employer authorizes force; or
- Force is necessary to achieve employer’s goals
Is an employer liable for torts committed by an independent contractor?
No, unless:
- Act is inherently dangerous;
- Act arises from a non-delegable duty (e.g. duty of shopkeeper to keep premises safe)
Define
negligent hiring
Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee
Are business partners vicariously liable for torts committed by the other partners?
Yes, if the acts are committed within the scope of the partnership
Are parents vicariously liable for the tortious acts of their children?
No, unless the parents:
- Authorized, facilitated, or encouraged the tort; or
- Knew or had reason to know of child’s propensity for such acts
When is a parent liable for their own negligence with respect to their children’s acts?
Can be liable for negligent supervision or negligent entrustment if:
- Parent had power to control the child;
- Knew or should have known such control was necessary; and
- Failed to exercise such control
Define
dram shop rule
Seller of alcoholic beverages who provides alcohol to intoxicated guests can be held liable for injuries they cause to third parties
Define
joint and several liability
Each D is fully and independently liable for the full amount of damages owed
Ex. (comparative fault jurisdiction) Both Max and Mat are jointly and severally liable for Brianne’s injuries. Brianne’s damages are $100,000. Brianne can collect $100,000 from Max or $100,000 from Mat, or $50,000 from Max and $50,000 from Mat (or another amount from each as long as the total doesn’t exceed $100,000).
More info: Joint and Several Liability
Define
contribution
If held jointly and severally liable, D can seek contribution from the other D’s for their share of the damages
Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.
More info: Contribution
Define
indemnity
Shifts entire loss from one D to another
Ex. Supplier can indemnify all previous suppliers in a supply chain
Compare contribution with indemnification
Contribution: Equitable apportionment, or sharing, among D’s
Indemnification: Shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm
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