Other Torts

Question 1

Elements for public nuisance claim

Answer 1

1. D unreasonably interfered with a public right (typically right to health, safety, or property); and
2. P suffered a distinct and different harm from the public at large

Question 2

Who has standing to bring a public nuisance claim?

Answer 2

• Government (common), or
• Individual (must show that she is suffering from a different and distinct harm than the public at large)

Question 3

Elements of private nuisance claim

Answer 3

Substantial and unreasonable interference of P’s use or enjoyment of their land

Question 4

What constitutes substantial and unreasonable interference for a nuisance claim?

Answer 4

Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person

Unreasonable: Injury outweighs utility of behavior

Question 5

What are the remedies for nuisance?

Answer 5

1. Injunctions;
2. Damages

Question 6

Differentiate between nuisance and trespass

Answer 6

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

Question 7

Elements of defamation

Answer 7

1. Defamatory statement;
2. Concerning P;
3. Published to a third party (either intentionally or negligently);
4. That damages P’s reputation
   ** If matter is of public concern or P is a public figure, must also show →
5. D acted with actual malice

Question 8

2 types of defamation

Answer 8

1. Libel (written)
2. Slander (spoken)

Question 9

What types of statements are considered defamatory?

Answer 9

Those that diminish respect or goodwill towards P or deter 3rd parties from dealing with them

Question 10

What type of statements are not considered defamatory?

Answer 10

• 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

Question 11

What constitutes publication for defamation?

Answer 11

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

Question 12

What is the re-publication rule?

Answer 12

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)

Question 13

Can the dead be defamed?

Answer 13

No

Question 14

Define

libel

Answer 14

Defamatory statement that is written, published, or expressed in physical form

Question 15

Are defamatory TV and radio broadcasts considered libel?

Answer 15

Yes

Question 16

Elements of trade libel

Answer 16

1. Publication;
2. Of a disparaging statement about quality of P’s business or service;
3. That D knew was false or acted with reckless disregard for its truth; and
4. P suffered economic harm

Question 17

What type of damages does P have to prove to recover for libel?

Answer 17

General damages are presumed, P doesn’t need to prove special damages

Question 18

Define

slander

Answer 18

Defamatory statement made orally

Question 19

What damages need to be proven for slander?

Answer 19

Special damages, i.e. calculable damages

⚠️ Note: Special damages do not need to be proved for slander per se

Question 20

Define

slander per se

Answer 20

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

Question 21

If defamation involves a matter of public concern, what must P prove?

Answer 21

1. Statement was false; and either:
2. Actual malice (public figure) or negligence (private figure)

Question 22

Define

matter of public concern

Answer 22

1. Relates to the political, social, or other concerns of the community; or
2. Newsworthy issue that is of general concern to the public

Question 23

Who is considered a public figure for defamation?

Answer 23

Household names, those who have widely known fame

Question 24

What constitutes actual malice for defamation?

Answer 24

• Knowing the published information was false; or
• Recklessly disregarding the truth or falsity of the statement

Question 25

What are the 3 main **defenses** to defamation?

Answer 25

1. **Truth** (absolute defense); 2. **Consent**; or 3. **Privilege:** absolute (complete defense) & qualified (can be revoked)

Question 26

What communications are protected by **absolute privilege**?

Answer 26

* **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**

Question 27

What types of communications are subject to **qualified** **privilege**?

Answer 27

* Involving the **public interest**; * Made to **defend one's reputation**; or * Made to **promote truthfulness**

Question 28

When does D **lose** a **qualified privilege** for defamation (thereby exposing himself to liability)?

Answer 28

* **Exceeding scope** of privilege; or * Acting with **malice** or **reckless disregard** for the truth

Question 29

If D **reasonably but mistakenly** believed statement was true, is she liable for defamation?

Answer 29

No, unless she was negligent

Question 30

4 types of **invasions of privacy**

Answer 30

1. False light; 2. Appropriation; 3. Disclosure; and 4. Intrusion upon seclusion Acronym: FADI

Question 31

# Define intrusion upon seclusion

Answer 31

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) ## Footnote ⚠️ Note: Public places generally do not have an expectation of privacy

Question 32

# Define misappropriation

Answer 32

**Unauthorized** use of P's identity or likeness for a **commercial purpose** that causes harm

Question 33

Elements of **public disclosure** **of** **private facts**

Answer 33

1. D gave **publicity to a matter concerning the private life** of another; 2. On a matter that is **highly offensive** to a reasonable person; and 3. Not of **legitimate concern** to the public ## Footnote ⚠️ Note: Activities done in public are **not** private matters

Question 34

What constitutes "**giving publicity**" for a public disclosure tort?

Answer 34

Disseminating **private** information widely enough that it becomes **public knowledge**

Question 35

Elements for **portrayal in a false light**

Answer 35

1. **Publication** of; 2. **False information** about P; 3. That is **highly offensive** to a reasonable person ## Footnote ⚠️ Note: Many jurisdictions also require proof that D acted with **actual malice**

Question 36

Does D **still have liability if the private facts are of legitimate public concern** for: 1. Intrusion upon seclusion? 2. Public disclosure? 3. Appropriation? 4. False light?

Answer 36

1. Yes, still liable 2. No, not liable 3. No, not liable 4. Yes, still liable

Question 37

**Defenses** for invasion of privacy torts

Answer 37

1. Privilege (absolute or qualified); 2. Consent ## Footnote ⚠️ **Truth is not a valid defense**

Question 38

Elements of **malicious prosecution**

Answer 38

1. D **commences proceedings**; 2. For an **improper purpose**; 3. **Without probable cause**; 4. Proceeding terminated **in favor of P**; and 5. **P suffered damages** (job loss, reputational damage, etc)

Question 39

Are **judges and prosecutors** liable for malicious prosecution?

Answer 39

No, they have **absolute immunity**

Question 40

Elements for **abuse of process**

Answer 40

1. D **uses the legal process**; 2. For an **ulterior purpose**; and 3. **Willfully acts or threatens** P to accomplish the ulterior purpose; and 4. P sustains **damages**

Question 41

Elements of **intentional mispresentation**

Answer 41

1. D **mispresents** a **past or present material fact;** 2. That D **knows** or **should know** to be false; 3. With the **intent to mislead** P; 4. P **justifiably relied** upon the fact; and 5. P suffered **actual economic damages**

Question 42

When does failure to disclose **material facts or opinions** constitute misrepresentation?

Answer 42

* **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

Question 43

Elements for **negligent** **misrepresentation**

Answer 43

1. D **negligently** prepared business or professional materials; 2. That **misrepresented past or presents facts**; 3. D **knew P would rely** on misrepresentation; 4. D **breached duty** of care owed to P; 5. **P did rely** on D's misrepresentation; and 6. P suffered **actual economic damages** ## Footnote (e.g. D is an accountant and negligently prepares an accounting report for his client, P)

Question 44

Elements for **intentional interference with business relations** (tortious interference)

Answer 44

1. D **knew** there was an existing K between P and third party; 2. D **intentionally** interfered with K; 3. Interference resulted in **breach**; and 4. P suffered **damages** ## Footnote **⚠️** Note: Does not apply to K's that are terminable **at-will**

Question 45

When is interference with business relations **justified**?

Answer 45

* 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)

Question 46

# Define vicarious liability

Answer 46

Holds a **third party** is liable for the tortious acts of **another**

Question 47

# Define *respondeat superior*

Answer 47

Doctrine that holds an **employer** liable for the **unintentional** tortious acts of an employee committed **within the scope** of their employment

Question 48

For vicarious liability, what acts are considered **within the scope of employment?**

Answer 48

Acts that: * Employee was **hired to do** or are part of her **official duties**; or * **Benefit** the employer

Question 49

For vicarious liability, differentiate a **detour** vs. a **frolic**

Answer 49

* Detour: a **minor deviation** from the scope of employment (employer **is** liable) * Frolic: unauthorized and **significant deviation** (employer is **not** liable)

Question 50

When is an **employer** liable for an employee's **_intentional_ tort**?

Answer 50

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**

Question 51

Is an employer liable for torts committed by an **independent contractor**?

Answer 51

No, unless: * Act is **inherently dangerous**; * Act arises from a **non-delegable duty** (e.g. duty of shopkeeper to keep premises safe)

Question 52

# Define negligent hiring

Answer 52

Holds employers primarily liable for the **negligent hiring, supervision, entrustment, or retention** of an employee

Question 53

Are **business partners** vicariously liable for torts committed by the other partners?

Answer 53

Yes, if the acts are committed within the **scope of the partnership**

Question 54

Are **parents** vicariously liable for the tortious acts of their children?

Answer 54

No, unless the parents: * **Authorized, facilitated, or encouraged** the tort; or * **Knew or had reason to know** of child's propensity for such acts

Question 55

When is a parent liable for their **own negligence** with respect to their children's acts?

Answer 55

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**

Question 56

# Define dram shop rule

Answer 56

Seller of alcoholic beverages who provides alcohol to **intoxicated guests** can be held **liable for injuries** they cause to third parties

Question 57

# Define joint and several liability

Answer 57

**Each D is fully and independently liable** for the full amount of damages owed ## Footnote 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](https://www.law.cornell.edu/wex/joint_and_several_liability)

Question 58

# Define contribution

Answer 58

If held jointly and severally liable, D can seek **contribution from the other D's for their share** of the damages ## Footnote Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages. *More info:* [Contribution](https://www.law.cornell.edu/wex/contribution)

Question 59

# Define indemnity

Answer 59

Shifts entire loss from **one D to another** ## Footnote Ex. Supplier can indemnify all previous suppliers in a supply chain

Question 60

Compare **contribution** with **indemnification**

Answer 60

**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

Question 61

Would you like to give us **feedback** on this class? ## Footnote *There might be a gift involved.*

Answer 61

# Fill out [**this survey**](http://bit.ly/3IpZFQv) for a chance at winning a $50 Amazon gift card. Thank you! We appreciate you helping us create even better flashcards.