Other Torts

Question 1

What are the 5 elements of defamation?

Answer 1

1. publication to 3rd persons
2. which is understood as defamatory to the π
3. contains an allegation of falsity
4. causation by ∆ AND
5. damages

*“actual falsity” may also be required for some types of defamation

Question 2

What is “defamatory language”?

Answer 2

-refers to a statement that has the potential to injure the reputation of the π

-the statement must tend to lower the π’s reputation in the estimation of the community where published

*statements that are not defamatory on their face may still constitute defamatory language

Question 3

What must a π show in order to prove a defamatory statement was considered “of and concerning the π”?

Answer 3

For a statement to be “of and concerning the plaintiff” - π must show that some 3rd person reasonably interpreted it to refer to the π

*where a publication is clearly defamatory of someone - yet on its face does not refer to the π - the π must establish that some persons reasonably interested it as about the π

Question 4

How is the publication element of defamation satisfied?

Answer 4

To satisfy the publication element of defamation, the defamation must be “published” (communicated) to someone other than the π, because the recovery is intended to remedy damage to reputation

*statements uttered by ∆ directly to π and neither seen nor heard by anyone else do NOT satisfy this requirement

Question 5

What is “libel”?

Answer 5

Defamation that appears in some written or printed form (ie, appearing in newspaper or letter)

*generally, representations to the eye are libel
-thus, words, pictures, signs, statues, films, and even certain conduct may be libel

Question 6

What is “slander”?

Answer 6

Is usually oral defamations, i.e., representations to the ear

The principal characteristic of slander is that the defamation is in less permanent and less physical form

*other examples include gestures (nodding one’s head)

Question 7

When a defamatory statement involves a matter of public concern, does π have the burden to prove falsity?

Answer 7

1st amendment requires all plaintiffs to BEAR THE BURDEN of proving that the statement is false

Question 8

What are the 8 defenses to defamation?

Answer 8

1. truth
2. consent
3. common law absolute or qualified privileges
4. fair comment privilege
5. record libel privilege
6. federal preemptive privileges
7. republishers’ defenses
8. SLAPP suits

Question 9

What are the 4 types of “invasion of privacy” torts?

Answer 9

1. misappropriation of π’s name or picture
2. intrusion upon plaintiff’s seclusion or private affairs
3. false light
4. public disclosure of private facts

*each type of “invasion” should be considered its OWN tort

Question 10

What is the “misappropriation of π’s name or picture” form of privacy invasion?

Answer 10

is the unauthorized use of the π’s name or likeness for advertising or other commercial purposes

Question 11

What is the “intrusion on π’s affairs or seclusion” form of privacy invasion?

Answer 11

An intentional or negligent intrusion by a ∆ into a π’s private affairs in a manner that would be highly offensive to a reasonable person

*the π must have been in an area where they reasonably expected privacy

Question 12

What are the 4 elements of the “publicly placing the π in a false light” form of privacy invasion?

Answer 12

Requires proof of:

1. publication by the ∆
2. that places the π in a false light in the public eye
3. the misrepresentation would be highly offensive to a reasonable person
4. causation

*if the π is a public figure or it is a matter of public concern, then ACTUAL MALICE (knowing or reckless falsity) must be shown

Question 13

What is the “public disclosure of private facts” form of privacy invasion?

Answer 13

arises when the ∆ publishes TRUTHFUL private information about the π that would be highly offensive to a reasonable person

The disclosure is made to the public at large or to enough individuals that it is likely to reach the general public

*the publication of private facts is privileged if the facts are “newsworthy”

Question 14

What are the types of misrepresentations by ∆’s?

Answer 14

1. intentional misrepresentation
2. negligent misrepresentation
3. misrepresentation based on strict liability

Question 15

What is “malicious prosecution”?

Answer 15

an action for the wrongful institution of criminal proceedings by one private citizen against another

Question 16

What are the 5 elements of intentional interference w/ business relationships?

Answer 16

1. there was a k or business expectancy;
2. the ∆ knows of the K or expectancy;
3. the ∆ intentionally induces another party to breach or terminate the contractual relationship
4. a breach occurs; AND
5. the π suffers damages

Question 17

What is a “private nuisance”?

Answer 17

a substantial and unreasonable interference w/ the possessory interest of an individual in the use and enjoyment of their land

*a π’s hypersensitivity or abnormal use of the land is NOT considered when determining substantial interference

Question 18

What is a “public nuisance”

Answer 18

An unreasonable interference w/ the health, safety, or property rights of the community

*recovery for public nuisances is limited to π’s w/ particularized, unique damages

Question 19

Who may bring an action for defamation?

Answer 19

Include:

1. living persons;
2. corporations
3. partnerships
4. any other legally recognized entity

*the estate of a deceased person may NOT bring an action for defamation on that person’s behalf

Question 20

May a social club have sufficient status as a legal entity to sue for defamation?

Answer 20

NO

Clubs, frats, and other unincorporated associations do NOT possess sufficient status as an entity to sue for defamation

*HOWEVER - individual members may sue if the matter clearly defames them

Question 21

What are the two types of publishers under defamation law?

Answer 21

1. original publishers
2. republishers

Question 22

What is “slander per se”?

Answer 22

Slander that is actionable even w/out a showing of special damages

*there are 4 slander per se categories

Question 23

What are “absolute privileges” in the context of defamation cases?

Answer 23

Are complete defenses against claims based on defamation and privacy regardless of malice or abuse

*absolute privilege extends to judicial officers, attorneys, jurors, witnesses in legislative proceedings, legally required publications, and statements made by a party during a trial or in a pleading

Question 24

What are the 4 elements of qualified privilege under defamation law?

Answer 24

1. reasonable belief that an important interest is threatened
2. the statement heard is reasonably relevant to the interest protected
3. a reasonable belief that the person to whom the statement is published can protect the interest; AND
4. some relationship between the publisher and the person to whom the statement is published

Question 25

What are the 6 elements of negligent misrepresentation?

Answer 25

1. a misrepresentation by the ∆ 2. supplied for the guidance of others in a biz transaction 3. the ∆ knew that the info was supplied to guide the π in their biz transactions 4. the ∆ was negligent in obtaining or communicating the false info 5. actual and reasonable reliance by the π 6. the false info proximately cause the damages *negligent misrepresentation is an action limited to COMMERCIAL TRANSACTIONS

Question 26

When may a private citizen recover for a public nuisance?

Answer 26

Only if they suffered an injury "peculiar in kind" *the lawful sale of lawful products does NOT give rise to a public nuisance claim

Question 27

What is "intentional alienation of affections"?

Answer 27

A tort by which a husband could sue a 3rd party who had intentionally alienated the affections of his wife *MOST states have abolished the action by either judicial or legislative action

Question 28

When must a π show actual malice in a defamation case?

Answer 28

A π must show actual malice when the defamatory statement concerns: 1. public officials 2. all-purpose public figures 3. limited-purpose public figures *private individuals do NOT need to make a showing of malice to prevail

Question 29

When is a statement considered "defamatory"?

Answer 29

a statement is considered "defamatory" if it has the tendency to harm the reputation of the π

Question 30

What are the categories of slander per se?

Answer 30

Requires a defamatory statement that: 1. adversely reflects the business reputation of the π 2. is about the unchastity of an unmarried woman 3. states that the π has or had a loathsome disease ; OR 4. attributes a crime of moral turpitude to the π

Question 31

Under a defamation action, how do the standards of proof differ for private versus public figures?

Answer 31

π Public Official/Figure - actual malice must be shown π Private - the standard differs based on whether the statement involves a matter of public or private concern -for matters of public concern --> negligence is required -for matters of private concern --> publication only suffices

Question 32

Define the publication element of defamation

Answer 32

A ∆'s message must be intentionally or negligently communicated to a 3rd person, who receives and understands it *it is not actionable to utter a defamatory message to the π alone

Question 33

What are the common law defenses to defamation?

Answer 33

1. consent 2. truth 3. privilege including absolute and qualified privilege

Question 34

Define actual malice

Answer 34

Occurs when a statement was made w/ knowledge of its falsity or w/ reckless disregard of whether it was false or not *for defamation matters involving private persons and private matters, there is a "no-fault" standard -HOWEVER, where the π is a public official/figure, the π MUST establish that the ∆ acted w/ actual malice

Question 35

What must a π prove to recover when they are portrayed in a false light as to a matter of public interest?

Answer 35

They must prove that the ∆ acted w/ actual malice

Question 36

Which invasion of privacy torts does the newsworthiness exception apply to?

Answer 36

1. misappropriation of a π's name or picture AND 2. public disclosure of private facts

Question 37

Are consent and privilege defenses to invasion of privacy torts?

Answer 37

YES Are a viable defense to ALL invasion of privacy torts

Question 38

Define defamation

Answer 38

arises when a statement concerning the π is made by the ∆ to a 3rd person that is harmful to the π's reputation

Question 39

What types of damages are available for defamation?

Answer 39

general damages are presumed by law Special damages - meaning π suffered a special economic loss due to the defamatory statement -must be shown for slander, but are not required to recover for libel and slander per se

Question 40

Define Intentional interference w/ business relations

Answer 40

arises when a 3rd party interferes w/ a business K or expectancy

Question 41

What are the 5 elements of an intentional misrepresentation (fraud)?

Answer 41

1. a misrepresentation of material facts by the ∆ 2. the defendant knew the statement was false 3. intent of the ∆ to induce the π 4. actual and reasonable reliance by the π 5. damages *π must prove actual pecuniary loss to recover