Quiz 8 Content (Test 2) Flashcards
(39 cards)
Tort of Defamation: Facet 1
1) Δ made a statement of fact which a reasonable person would find harmful to their reputation
2) statement was published to a 3rd party (shared with at least 1 other)
3) the statement was false (the truth is NOT defamatory)
4) π’s reputation suffered as a result of the statement (NOT opinions)
5) if π is a public figure: Δ made the statement with “actual malice” (harder to prove because they put themselves out there and can easily counter false statements with press since they have more power)
- defamation per se (by itself): don’t always have to prove all, automatically defamation in these statutes: a) crime of moral turpitude/despicable crimes (rape, steal), b) indicating “loathsome disease” (STD) c) any statement that is negative about a person’s job functions/abilities to do the job
Tort of Defamation: Facet 2
1) truth (thought it was true, made in good faith)
2) privilege (immune from liability if you have: absolute, qualified, constitutional)
3) opinion
4) consent (give 3rd party permission to investigate you)
5) fed statutory protections (Communications Decency Act = grants immunity to internet service providers for contributory defamation)
absolute privilege (immune from liability of defamation)
- protects Δ regardless of their intent/motive
- judicial proceedings
- members of congress on the floor (want them to speak freely for their job)
- certain executive officers while performing governmental duties
- between spouses (“pillow talk”)
- political ads
qualified privilege (immune from liability of defamation)
- allows people to make certain statements when might be considered defamatory in other situations, but because of the unique nature of the situation, immune under these conditions (have to prove ALL 4 to claim):
1) made w/ good faith
2) serves a legitimate biz interest
3) made only in a proper occasion
4) it’s made only to persons w/ legitimate common interest in hearing the statement - ex: doctor sharing wrong patient’s chart with residents saying they have STD
constitutional privilege (immune from liability of defamation)
- your 1stA right to free speech
- what most news co’s argue
Tort of Defamation: Facet 3
CPE
Tort of Trespass: Facet 1
- only tort where you do NOT have to prove all, only need 1
1) intentionally enters/remains on land in the possession of another (doesn’t matter if you know it’s trespassing, mistake is NOT a defense, staying after being asked to leave, committing an unauthorized act after entry)
2) causes a thing/3rd person to do so (ex: throwing a ball and your dog runs after it into neighbors yard, pushing friend off sidewalk into someone’s yard)
3) fails to remove from the land a thing that he is under a duty to remove (ex: leaving something in your apt after lease ends)
Tort of Trespass: Facet 2
1) express consent
2) implied consent (law presumes from landowner’s conduct/circumstances that there was consent)
3) emergency (always a defense)
4) SoL = 5-15 years (depends on state)
5) ResJ
Tort of Trespass: Facet 3
CPE
Nuisance
a non-possessory invasion, use on one’s own land that affects the rights of other landowners to the quiet enjoyment of their property
- not just an annoyance, must be severe
- determining what is a nuisance: an interference w/ a physical condition, comfort/convenience/health of a landowner, interference w/ mental tranquility
Tort of Nuisance: Facet 1
1) Δ intentionally, negligently, or recklessly interfered with π’s use and enjoyment of their land or continued her conduct after learning of actual harm/substantial risk of future harm to π’s interest
2) there has been a substantial interference with π’s interest
3) it is unreasonable for π to bear it or to bear it without compensation
Tort of Nuisance: Facet 2
- zoning laws = have the right to do it bc you’re living on the property that has that right (if you live in a certain zone, can’t sue for nuisance), ex: living in a town’s agricultural zone & can’t sue for pig smell
- π “came to nuisance” (not fair to move to nuisance then stop it if you knew of it before, ex: can’t move to a college town & complain of noise)
Tort of Nuisance: Facet 3
- CPE
- self help: abatement = privilege requiring notice the Δ that there is a nuisance which is actually on your property, and Δ fails to act, don’t have to wait for them to do it, can do it yourself then make them pay as long as you notify them 1st (exception: emergency)
trespass v nuisance
- trespass: Δ physically goes onto π property
- nuisance: Δ never goes onto π property, about what Δ does on their own property that affects π
Tort of Conversion: Facet 1
- have to prove injury (where possession was wrongful, or became wrongful) & that you asked for it back
1) the π owns/has the right to possess the personal property in question at the time of the interference
2) the Δ intentionally interfered with the π’s personal property
3) the interference deprived the π of possession or use of the personal property in question
4) the interference caused damages to the π
Tort of Conversion: Facet 2
consent
Tort of Conversion: Facet 3
CPE
real property
- land & anything attached to it permanently
- torts: trespass & nuisance
personal property
- movable, any other property that’s not real
- tort: conversion (stealing)
Tort of Fraud: Facet 1
- has its OWN standard proof (“by clear & convincing evidence” ~80%)
1) misrepresentation of a material fact (exceptions: OPINION, NONDISCLOSURE [can’t be silent when: statutory duty to disclose, i.e. selling home… fiduciary duty, i.e. couple not disclosing finances… half-truths], PROMISES [unless it’s made knowing it’s false, misdemeanor so it IS fraud)
2) scienter = knowledge of the falsity by the Δ, Δ made it w/ intent to deceive (exception: easier to prove fraud for accountants, State St Bank v Ernest NYC = judge reduced level of fault from intent to reckless)
3) reasonable reliance by the π (on the statements made by the Δ): would a reasonable person have relied on the statement? did π know of the misrepresentation? (but if victim not directly involved, they won’t know, so court made exception: 3rd party beneficiary)
4) injury to the π (financially), must show it
5) causation of injury (have to make a connection)
Tort of Fraud: Facet 2
- ResJ
- SoL = 2 years
Tort of Fraud: Facet 3
CPE
what are the 4 Torts of Invasion of Privacy?
- intrusion upon seclusion/solitude, or into private affairs
- public disclosure of embarrassing private facts
- false light
- appropriation of name/likeliness
*for all 4: ResJ & SoL = 2 years
Intrusion (Tort of Invasion): Facet 1
1) Δ intentionally intruded/invaded, physically or otherwise, upon the solitude or seclusion of the π or his private affairs or concerns
2) the intrusion would be highly offensive to a reasonable person
- not about what you do w/ the info, all that matters is that they looked at it/the act (doesn’t matter if they didn’t show others)
