Other Torts Flashcards
(6 cards)
Nuisance and Defenses
Nuisance and Defenses
Nuisance is an invasion of, or unsreasonable interference with, a rightful possessor’s interest in the use and enjoyment of his land. So a nuisance case must establish liability under one of the traditional three bases of recovery: intentional interference with a right, negligence, or strict liability.
Nuisance is not a separate tort. Rather, it is simply a way to describe the torts of harm to property.
Claims Based on Defamation and Invasion of Privacy
Defamation and Defenses
A defamatory statement is a statement that is “of and concerning” the plaintiff which subjects him to ridicule by other members of the community. A prima facie case for defamation is: a defamatory statement, the statement is about the plaintiff, and the statement has been published to persons other than the plainitff. In addition, the plaintiff must prove that the statement was false, and that the defendant was negligent with regard to truth if the plaintiff is a private figure, or with reckless disregard to its truth if plaintiff is a public figure.
Common Law Defamation (Private Concern): Plaintiff does not need to prove the statement was false, it is presumed – the defendant has the burden of proving that the statement is true. Unless it’s defamation per se, the plaintiff must prove specific damages. Libel Per Quod receives special damages, while Slander Per Se and Libel Per Se receives automatic general damages.
Automatic general damages for: loathsome diseases, lying about the plaintiff’s ability to do their job, that the plaintiff was unchaste or adulterous, and lying about a plaintiff’s serious criminal behavior.
First Amendment Defamation (Public Concern): Plaintiff (whether a public or private figure) must prove falsity and neglgience for private figures and actual malice (recklessness) for public figures.
Claims Based on Defamation and Invasion of Privacy
Libel and Slander
Libel is the publication of a defamatory statement which is written or printed, while slander is the publication of a defamatory statement which is spoken (damages are presumed). In slander cases, damages are presumed if the slander is one of the four slander per se categories: committing a crime of moral turpitude, suffering from a loathsome disease, unchastity if the plaintiff is a woman, or something that reflects badly on the plainitff’s business or profession.
Claims Based on Defamation and Invasion of Privacy
Invasion of Privacy
There are four branches of the tort of invasion privacy and they inlcude: appropriation of a plainitff’s name/picture for the defendant’s commercial advantage, intrusion upon the plainitff’s affairs or seclusion, publication of facts placing the defendant in a false light, and public disclosure of private facts about the plaintiff.
Appropriation is using someone’s identity (name, voice, photo, features) for the defendant’s own commerical benefit without their permission (the Newsworthy Exception applies here).
An intentional intrusion upon seclusion upon the solitude or seclusin of another or upon her private affairs is subject to the liability if the intrusion would be highly offensive to a reasonable person.
False Light: The plaintiff must prove that the defendant publicized the matter about the plaintiff to a substantial group of people or to the public, the matter put the plaintiff in a false light, the false light would be highly offensive to a reasonable person, and the defendant knew of the falsity or acted in reckless disregard of whether the matter was false or not.
Disclosure: You can have liability for exposing truthful, private matters that would be highly offensive to a reasonable person and that are not the subject of legitimate public concern (the Newsworthy Exception applies here).
Claims Based on Misrepresentations and Defenses
Misrepresentations and Defenses
Misrepresentation means a false representation, intentionally, negligently, or innocently made, with the intent to substantially influence the plaintiff into relying on the representation which defendant in fact relies upon to their detriment. There are four types: intentional misrepresentation, deceit (concealment), negligent misrepresentation, and a promise made without the intent to perform.
Any form of misrepresentation will be grounds for rescission.
Intentional Misrepresentation: Fraud. If the misrepresentations are false and a plaintiff justifiably relies on them and loses money, they have a claim for damages or rescission.
Fraudulent Misrepresentation: The defendant must knowingly or recklessly make an intentional misrepresentation, intended to induce reliance on the plaintiff, that does induce reasonable reliance on the plaintiff, and causes the plaintiff to suffer a monetary loss.
Negligent Misrepresentation: The defenadnt negligently provides false information and did not exercise reasonable care or competence in obtaining the informaion or communicating it, in a commerical or business setting in which the defendant has a pecuniary interest.
Claims Based on Intentional Interference with Business Relations
Intentional Interference with Business Relations and Defenses
An action for intentional interference with business relations is available when: the plaintiff had a valid contract or business relationship, the defendant knew about the contract/relationship, the defendant deliberately coerced one of the parties to end the contract or caused the relationship to become strained, the contract/relationship ended, and the plaintiff suffered damages.
Tortious interference = allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff’s contractual or business relationships.
