Other Torts Flashcards
(69 cards)
1
Q
What is a public nuisance?
A
An activity that is an unreasonable interference with a public right.
2
Q
How is a claim for public nuisance brought?
A
- Brought by a government actor such as an attorney general
- For an individual action, the individual must show that she is suffering harm different and distinct from the public at large.
* More Info:* Public Nuisance
3
Q
What are the elements of a private nuisance?
A
- A thing or activity
- That substantially or unreasonably
- Interferes with a plaintiff’s use or enjoyment of his land
* More Info:* Private Nuisance
4
Q
What mental state is required for private nuisance?
A
The defendant must be notified of the interference and the defendant’s continued action after being put on notice establishes intent.
5
Q
What factors should be weighed in private nuisance claim?
A
- The value of the defendant’s activity
- Alternatives available to both defendant and the plaintiff to minimize the harm
- The nature of the locality
- Extent of the plaintiff’s injury
And
- Who was there first?
6
Q
What remedy is available for a nuisance?
A
- Injunctions
Or
- Damages
7
Q
What is an injunction?
A
An equitable remedy sought by the plaintiff that mandates a defendant to stop an activity.
8
Q
What must be shown for a plaintiff to obtain an injunction for a private nuisance claim?
A
- There is a nuisance
- Plaintiff is suffering irreparable harm through the continuing nature of the nuisance
And
- Damages are not an adequate remedy.
9
Q
What are the elements of defamation?
A
- Defendant Published
- Defamatory material
- Concerning the plaintiff
- That caused reputation harm
* More Info:* Defamation Elements
10
Q
What are false reputation harming communications?
A
Defamations
11
Q
What is are the steps to analyzing a defamation claim?
A
Step 1: Determine if the communication defamatory
Step 2: Evaluate pleading issues
Step 3: Evidence of publication
Step 4: Determine what the type of defamation is: libel or slander
Step 5: Determine if common law privileges are applicable Step 6: Analyze any first amendment issues
12
Q
What are the elements of a defamatory statement?
A
- The statement can be believed to be truthful
- It subjects the plaintiff to:
a. Scorn
b. Ridicule
c. Contempt
Or
d. Deters 3rd parties from dealing with them
13
Q
What statements cannot be defamatory?
A
- Hyperbole: no reasonable person would believe the statement
And
- Pure opinions
14
Q
Can the tort claim for defamation survive death?
A
No, the dead do not have defamation claims
15
Q
When is a communication reputation-harming?
A
It subjects the plaintiff to:
a. Scorn
b. Ridicule
c. Contempt
Or
d. Deters 3rd parties from dealing with them
16
Q
What are pure opinions?
A
Statements that cannot be proved to be true or false.
17
Q
How can a plaintiff assert defamation when the plaintiff is not named in the published statement?
A
The plaintiff must prove that it is of or concerning her.
18
Q
What is the limit on scope of defamation?
A
It only applies to identifiable persons. If said about a group, generally it is not defamation.
19
Q
What is publication in defamation?
A
When a defendant intentionally or negligently permitted someone other than the plaintiff to come into contact with the defamatory statement.
20
Q
What are the elements of publication?
A
- Defendant intentionally or negligently permitted
- A third party to hear the defamation.
21
Q
What is the republication rule?
A
In addition to the defendant who originates the defamatory message, other persons who repeat the defamation will be liable for the defemation. Republication may lead to liability even if the statement is disclaimed “defendant said, {defamatory statement}.” Multiplying a defamatory statement attaches liability to the multipliers.
22
Q
What is libel?
A
A defamatory message embodied in a relatively permanent form (e.g. a writing, photo, media).
23
Q
What are the types of defamations?
A
- Libel
- Slander
24
Q
What are the elements of slander claim?
A
- Defamation
- Defamation message not in a permanent form (oral)
- Special damages which are specific economic damages flowing from the defamation
* More Info:* Slander Elements
25
What is the **effect** of **slander per se**?
The plaintiff does not have to prove special damages, they are presumed.
26
What are the **types** of **defamations** that trigger **slander per se**?
Do not have to prove special damages if the defamation is about a plaintiff's:
1. Performance in business or trade
2. Commission of a crime involving moral turpitude or infamous punishment (imprisonment or death)
3. Having a loathsome disease (venereal disease or leprosy).
4. Unchastity to a woman or general sexual impropriety.
27
When does a plaintiff **not** need to **prove** **special damages** for a **slander** claim?
When the defamatory statement is in a slander per se category.
28
What are the common law **privileges** for **defamation**?
1. Truth of statement
2. Absolute privilege
3. Constitutional issues
29
In a **defamation** case, what does the plaintiff have the **burden** to prove?
That the communication was false
30
What is the effect of an absolute privilege on a defamation claim?
The defendant will not be liable for defamation. It is a safe harbor for defamation.
31
When does the **absolute privilege** for **defamation** occur?
1. Communications between spouses
2. Statements made on the floor of a legislature
3. Statements made among high-ranking government officials
4. Statements made during judicial proceedings.
32
When do **qualified** **privileges** for **defamation** apply?
1. Business associates, meaning members of a group with a common interest
And
2. Providing a reference in a job setting
33
When does a defendant **lose** an otherwise available **qualified privilege** for defamation?
1. When defendant excessively publishes
2. When the defendant knows the statement is false
Or
3. When the defendant is reckless as to the truth or falsity of the statement.
34
What are the **constitutional** issues in **defamation** claims?
1. The status of the plaintiff: public official, public figure, or private figure
2. The subject matter of the communication: public concern or private concern
3. What damages does the plaintiff seek: injunction or damages
4. The status of the defendant: Media defendant or non-media defendant
35
What must a claim establish if **defamation** relates to a **public official** in capacity as a public official?
1. Clear and convincing evidence
2. Defendant knew information was false or recklessly disregarded the truth or falsity of the statement.
36
Who are considered **public figures** for **defamation**?
1. All purpose public figures: household names
2. Limited public figures: injects themselves into a controversy trying to have an affect on the outcome.
* More Info:* [Public Figures - Defamation](http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html)
37
What must a claim establish if **defamation** relates to a **public figure** in capacity **as** a **public figure**?
1. Clear and convincing evidence
2. Defendant knew the published information was false or recklessly disregarded the truth or falsity of the statement.
38
What are the **element** of an **intrusion** into **seclusion** claim?
1. Defendant intentionally
2. Unreasonably
3. Intrudes into plaintiff's sphere of privacy (≠ public visible)
4. Invasion is offensive to a reasonable person
39
What types of **damages** are available for **intrusion** into **seclusion** claims?
1. Emotional distress
Or
2. Punitive damages
40
What are the **elements** of a **commercial appropriation** claim?
1. An unauthorized use of
2. plaintiff's identity or likeness
3. For a commercial purpose (≠ newsworthy purpose)
* More Info:* [Commercial Appropriation Elements](http://nationalparalegal.edu/public_documents/courseware_asp_files/torts2/InvasionofPrivacy/AppropriationOfPlaintiffsNameOrLikeness.asp)
41
What are the **elements** for a **public disclosure** of **private** true **facts** claim?
1. Disclosure of private facts (≠ from public record)
2. Disclosure of which would be highly offensive to a reasonable person
3. The facts are newsworthy
42
What are the **types** of **invasions of privacy**?
1. Intrusion into Seclusion damages
2. Commercial Appropriation
3. Public Disclosure of Private True Facts
4. Portrayal in a False Light.
43
Differentiate between portrayal in a false light and defamation.
**False Light**: The claim is offensive but it is not reputation harming.
**Defamation**: The claim is reputation harming.
44
What are the **elements** for **portrayal** in a **false light** claims?
1. Publication of
2. False information
3. With the same level of fault required as in defamation (i.e. public figure/official need actual malice)
45
What is **malicious** **prosecution**?
Malicious prosecution arises when
1. Criminal proceedings are instituted by defendant
2. Plaintiff instituted it for an improper purpose and without probable cause
3. The case terminate favorably to the defendant on the merits and cause defendant damages
46
What are the **elements** of an **intentional misrepresentation**?
1. An intentional misrepresentation by the defendant
2. Of a past or present fact
3. Made with scienter
4. Plaintiff justifiably relied upon the fact
47
What are the **types** of **economic tort** actions?
1. Intentional misrepresentation
2. Negligent misrepresentation
3. Interference with contractual relations
4. Interference with a prospective economic advantage
5. Injurious falsehood (trade disparagement)
48
When is there a **duty** to **disclose** a **fact**?
1. There is a fiduciary relationship
2. There is ambiguous or misleading statement that causes reliance and needs clarification
3. Defendant makes an assertion believing it to be true, subsequently discovers that it was false or that circumstances have changed, and fails to disclose the truth or changed circumstances
4. When defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers that plaintiff intends to rely upon it
5. Where plaintiff reasonably expects disclosure
49
What is the **mental** **state** requirement for **intentional misrepresentation**?
1. Defendant must intend for the plaintiff to rely upon a statement
2. Defendant must know the statement is false or is reckless as to truth or falsity
50
When can a π recover for **negligent** **misrepresentation**?
Generally, the defendant has no duty to avoid the negligent infliction of pure economic loss; however, the defendant is liable when there is a special relationship (fiduciary relationship).
*More Info:* [Negligent Misrepresentation](http://nationalparalegal.edu/public_documents/courseware_asp_files/torts2/EconomicTorts/Misrepresentation.asp)
51
When can a plaintiff **recover** for **pure economic loss** in torts?
Never; however, they can add in their economic loss when there is property damage or other injuries.
52
What are the **elements** for **interference** with **contractual relations**?
1. Defendant knows that there is an existing contract between the plaintiff and a third party
And
2. Defendant acts with the purpose of impairing the contract
53
Who can sue a **lawyer** for **legal malpractice**?
1. A client
2. An intended beneficiary under a will
54
What does the claim of **intentional interference** with a prospective economic advantage **protect**?
This tort protects the probable expectancy interests of future contractual relations of a party.
*More Info:* [Intentional Interference with Contractual Relations](https://www.law.cornell.edu/wex/intentional_interference_with_contractual_relations)
55
What are the **elements** of an **intentional interference** with a prospective **economic advantage** claim?
1. Defendant knew of the prospective economic advantage of the plaintiff
2. Defendant acted solely to interfere with the economic advantage for an improper purpose
56
What are the **elements** of an **injurious falsehood/**trade disparagement claim?
1. A false statement
2. Which the defendant knows is false or is reckless as to truth or falsity
3. Made to another or published
4. Causes specific economic injury to the plaintiff
* More Info:* [Injurious Falsehood/Trade Disparagement Claim](http://nationalparalegal.edu/public_documents/courseware_asp_files/torts2/EconomicTorts/InjuriousFalsehood.asp)
57
What **vicarious liability** does an **employer** have for the **torts** of an **employee**?
An employer is liable for injuries caused by the negligence or strict liability of an employee if the tortious act occurred in the scope of employment.
58
If an **employer** is held **liable** for the actions of an **employee,** then who can an employer **recover** from?
He can seek indemnity from the employee.
59
How is an **employer directly liable** for their employees?
They are liable for negligent hiring.
60
When is an **employer liable** for an employee's **intentional tort**?
When done pursuant to business purposes/when done to benefit the employer
61
When is an **employer liable** for an **independent contractor's** actions?
When it's not an independent contractor, and it is an employee. The more the employer controls:
1. Means
2. Method
And
3. Manner of Work
The more likely they are an employee.
62
What **claims** can be brought against **parents** for the **torts** of their **children**?
1. Negligent supervision
2. Negligent entrustment
63
What is the **effect** of a **survival statute**?
The death of the victim or tortfeasor no longer abates the tort action and the claim survives the death of the victim. The claim becomes an asset of the estate.
64
What is the **effect** of a **wrongful death** **statute**?
An action by which either heirs of a deceased victim or the personal representative of the victim's estate may bring a claim for their loss due to death.
65
What is a **loss** of **consortium claim**?
When a spouse is killed, the surviving spouse may bring a claim for loss of consortium for the loss of the
1. Relationship
And
2. Sex
* More Info:* [Loss of Consortium](http://www.alllaw.com/articles/nolo/personal-injury/compensation-spouse-family-loss-consortium-claim.html)
66
In a **private nuisance**, the **harm** to the **plaintiff** should be evaluated from whose **standpoint**?
The subjective point of view of the plaintiff; how much is it harming them particularly?
67
If a defendant's **wild animal** wanders onto **another's property**, what's the **liability** to the defendant?
They are strictly liable for trespass.
68
When will **assumption** of the **risk** of **animal attacks** be a defense for a defendant?
When the victim does something voluntarily to cause the animal to injure him.
69
When are defendant's **animals excused** from **injuring** others?
The injuries cause injuries to a plaintiff trespassing on defendant's land
