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Flashcards in Torts Deck (164):

Three Elements to Prove an Intentional Tort

Causation of Harm



The actor acts with the purpose of causing the consequence; OR
The actor knows that the consequence is substantially certain to follow


Children and Mentally Incompetent Presons

Can be held liable for intentional torts if they act with the requisite intent


Transferred Intent

A person who intends to commit an intentional tort against one person but instead commits:
- A different intentional tort against the same person;
- The same intentional tort against a different person; OR
- A different intentional tort against a different person.



Defendant causes a harmful or offensive contact with another person; and
Acts with the intent to cause that contact or the apprehension of that contact.

Consent: no battery if consent
Harmful: causes injury, pain, or illness
Offensive: a person of ordinary sensibilities would find the contact offensive (enough that unconsented)


Battery Damages

No proof of actual harm required
Can recover Nominal

Punitive damages available if the defendant acted outrageously or with malice


Eggshell Plaintiff Rule

A defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be



A plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact

Apprehension: Reasonable and Aware
Imminent: without significant delay
Intent: to cause either apprehension of imminent harmful or offensive contact, or the contact itself


Assault Damages

No proof of actual harm required
Can recover nominal

Punitive available

Can also recover damages from physical harm flowing from the assault



Extreme or outrageous conduct causing severe emotional distress

Intent: Defendant must intend to cause severe emotional distress or at least act with recklessness as to the risk of causing severe emotional distress (no transferred intent)


IIED Extreme or Outrageous

Courts are more likely to find conduct or language to be extreme or outrageous if:
- the defendant is in a position of authority or influence over the plaintiff; or
- the plaintiff is a member of a group that has a heightened sensitivity


Third Party IIED

A defendant can also be liable to...

Victim's Family Member: who is present at the time of the conduct, regardless of whether there has been bodily injury; or

Bystander: who is present at the time of the conduct and who suffers distress that results in bodily injury


IIED Causation

The defendant's actions were at least a substantial factor in bringing about the plaintiff's harm


IIED Damages

Physical injury not required (unless a bystander)

Often extreme and outrageous character of the defendant's conduct is evidence of the plaintiff's distress.

If the plaintiff unreasonably experiences severe emotional distress then the defendant is only liable if aware of plaintiff's hypersensitivity.


False Imprisonment

Defendant acts intending to confine or restrain another within boundaries fixed by the defendant;
The actions directly or indirectly result in confinement; and
Plaintiff is aware of the confinement or harmed by it.


FI Bounded Area

The area can be large

The area need not be stationary


FI Methods of Confinement

- Physical Barriers
- Physical Force
- Threats
- Invalid Use of Legal Authority
- Duress
- Refusing to provide a safe means of escape

A court may find false imprisonment when the defendant has refused to perform a duty to help a person escape


Shopkeeper's Privilege

Defense to FI

A shopkeeper can detain a suspected shoplifter for a reasonable time and in a reasonable manner


FI Time of Confinement



FI Intent

Defendant must act:
- With the purpose of confining the plaintiff; or
- Knowing that the plaintiff's confinement is substantially certain to result

Transferred intent does apply


Confinement Due to Defendant's Negligence

Defendant will not be liable under the intentional tort of false imprisonment, but could be liable under negligence


FI Damages

Actual damage not required.

Nominal available.


Defenses to Intentional Torts Involving Personal Injury

1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Parental Discipline
6. Privilege of Arrest


Consent by Mistake

A valid defense unless the defendant cause the mistake or knew of it and took advantage


Consent by Fraud

Invalid if it goes to an essential matter


Implied Consent

Emergencies: consent is unnecessary when immediate action is required to safe the life or health of a patient who is incapable of consenting to treatment

Athletic Contests: Only liable if the conduct is reckless (outside the normal scope of the sport)



A person may use reasonable, proportionate force to defend against an offensive contact or bodily harm

Most jurisdictions have "stand your ground" laws

Initial aggressor cannot claim SD unless the other party has responded to nondeadly force with deadly force.

Actor not liable for injuries to bystanders so long as they were accidental and actor was behaving reasonably


Defense of Others

Allows you to use reasonable force in defense of others, upon a reasonable belief that the party would be entitled to use self-defense


Defense of Property

May use reasonable force if the person reasonably believes it is necessary to prevent tortious harm to the property

May never use deadly force


Recapture of Chattels

May use reasonable force to reclaim personal property that has been wrongfully taken away by another.

If the original taking was lawful and the current possessor has merely retained possession beyond the time consented to, then only peaceful means may be used


Force to Regain Possession of Land

Common Law: Reasonable force

Modern Rule: Use of force not permitted


Parental Discipline

A parent may use reasonable force as necessary to discipline their child


Privilege of Arrest: Private Citizen

Permitted to use reasonable force to make an arrest in the case of a felony IF:
- the felony has actually been committed; AND
- the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony

Mistake of identity permissible. Mistake of whether felony was committed is not.


Privilege of Arrest: Police

Must reasonably believe a felony has been committed and that the person arrested committed it.

An officer who makes a mistake as to whether a felony has been committed is not subject to tort liability


Privilege of Arrest: Misdemeanor

An arrest by a private person may only be made if there is a "breach of the peace"


Trespass to Chattels

An intentional interference with the plaintiff's right to possession of personal property either by:
- dispossessing the plaintiff; or
- using or meddling with the plaintiff's chattel

Only need intent to do the interfering act.

Mistake about the legality is not a defense.


Trespass to Chattels Damages

Dispossession: actual damages caused and loss of use

Use or Intermeddling: Only actual damages, including diminution in value or cost to repair



A defendant intentionally commits an act depriving the plaintiff of possession of his chattel or interferes with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.

Need only commit the act.

Mistake of fact/law not a defense.

Damages: full value of chattel at time of conversion


Trespass to Chattels vs. Conversion Factors

- Duration and extent of the interference;
- Defendant's intent to assert a right consistent with the rightful possessor;
- Defendant's good faith;
- Expense or inconvenience to the plaintiff; and
- Extent of the Harm


Trespass to Land

A defendant intentionally causes a physical invasion of someones land.

Intent: Need only have the intent to enter the land or cause the physical invasion, not to commit a trespass

Mistake not a defense

Failure to leave the plaintiff's property after lawful right of entry has expired constitutes a physical invasion


Trespass to Land Damages

No proof of actual damages required

Nominal available


Necessity as a Defense to Trespass

Private (qualified):
Landowner may not use force to exclude the person, but defendant must pay for actual damages that he has caused

Public: Not liable for damage when private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities.


Private Nuisance

An activity that substantially and unreasonably interferes with another's use and enjoyment of land

Not a nuisance: blocking sunlight or obstructing a view

Spite fence exception: If a person puts up a fence with no purpose except to block their neighbor's view or sunlight, then courts will sometimes find that to be a nuisance.


Defenses to Private Nuisance

- Compliance with state or local administrative regulation: evidence as to whether the activity is reasonable

- "Coming to the Nuisance": courts are hesitant to allow a person who moves somewhere knowing about a conduct to complain that the conduct unreasonably interferes with the use and enjoyment of land (just a factor considered)


Public Nuisance

1. An unreasonable interference with a right common to the public as a while;
2. The plaintiff has been harmed in a special or unique way, different from the rest of the public


Negligence Elements

- Duty
- Breach
- Actual Cause
- Proximate Cause
- Damages (Harm)


Duty: General

To act as a reasonable person of ordinary prudence would act under the circumstances.

No duty to act affirmatively


Duty: Foreseeability of Harm

If acting affirmatively, the foreseeability of the harm to others is enough to give rise to this general duty of reasonable harm


Duty: Rescuers

A person who comes to the aid of another is a foreseeable victim


Affirmative Duty to Act

In general, there is no affirmative duty to help others

1. Assumption of Duty: a person who voluntarily aids or rescues another is liable for any injury caused by the failure to act with reasonable care in the performance of that aid or rescue
2. Placing another in Danger (then duty to rescue)
3. By Authority: a person with the ability and actual authority to control another has a duty to exercise reasonable control
4. By Relationship: Common carrier-passenger; innkeeper-guest


Negligence Standard of Care

Reasonably prudent person under the circumstances (objective)

Defendant presumed to have average mental abilities and knowledge. Physical characteristics are taken into account.

Intoxicated people held to ordinary standard (unless involuntary)


Child Standard of Care

Act as a reasonably prudent child of that age.

Children engaged in high-risk adult activities are held to the same standard as an adult would be.


Professional Standard of Care

Expected to exhibit the same skill and knowledge as another practitioner in the same community.

Specialists may be held to a higher standard.


Physician Standard of Care

Traditionally: "same or similar" locality
Modern: National standard

Must provide informed consent
- explain risks of medical procedures
-not required if risks are commonly known, patient is unconscious, patient waives/refuses, patient is incompetent, or would be harmed by disclosure


Negligence Per Se

- A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;
- Defendant violates the statute;
- Plaintiff is in the class of people intended to be protected by the statute;
- The accident is the type of harm that the statute was intended to protect against;
- The harm was caused by a violation of that statute


Negligence Per Se Defenses

Defendant must show that complying with the statute would be even more dangerous than violating the statute

Compliance was impossible or an emergency justified violation of the statute

Violation by plaintiff counts a comparative or contributory negligence


Standard of Care: Common Carriers and Innkeepers

Traditional Rule: Highest duty of care consistent with the practical operation of the business (could be held liable for slight negligence)

Common carriers - higher standard
Innkeepers - liable only for ordinary negligence

*Have a duty to act affirmatively based on the special relationship with passengers and guests


Standard of Care: Automobile Drivers

Some jurisdictions have "guest statutes": limited liability to passengers in the car
- Guests and friends in a car: drivers only liable if they were grossly negligent, wanton, or engaged in willful misconduct

Many jurisdictions have abandoned guest statutes and apply a negligence standard


Standard of Care: Bailors and Bailees

Bailment - a bailee temporarily takes possession of another's property

Standard of care depends on the circumstances


Standard of Care: Emergency Situations

That of a reasonable person in the same situation


Approaches to Standard of Care for Possessors of Land

Half Traditional: Standard of care owed depends on whether the person is an invitee, licensee, or trespassor


Standard of Care: Traditional Trespassors

On land without consent or without privilege

Duty: possessor is obligated to refrain from willful or intentional misconduct, or reckless harm

Must warn discovered or anticipated trespassers of hidden dangers (no duty owed to undiscovered)


Attractive Nuisance Doctrine

A possessor of land may be liable for injuries to children trespassing on the land if:
1. An artificial condition exists in a place where the owner knows or has reason to know children are likely to trespass;
2. The land possessor knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm;
3. The children, because of their age, do not discover or cannot appreciate the danger;
4. The utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and
5. The land possessor fails to exercise reasonable care


Standard of Care: Traditional Invitees

Someone who comes onto the land for your purpose, a mutual or joint purpose.

Land possessor owes a duty of reasonable care.

Cannot avoid the duty by assigning care of your property to an independent contractor


Standard of Care: Traditional Licensees

Enters the land with express or implied permission

Traditional Rule: land possessor has a duty to either correct or warn licensees of concealed dangers
- no duty to inspect for dangers
- must exercise reasonable care in conducting activities on the land


Standard of Care: Landlords and Tenants

Landlord remains liable for:
- injuries in common areas
- injuries from latent defects about which the landlord did not warn the tenant
- injuries from premises that are leased for public use
- injuries from a hazard the landlord has agreed to repair

Tenant continues to be liable for injuries arising from conditions within the tenant's control


Standard of Care: Off-Premises Victimsz

Land possessor is generally not liable for injuries resulting from natural conditions

Must prevent unreasonable risk of harm to person not on the premises


Breach of Duty

Traditional: focuses on a common-sense approach of what a reasonable person would do under the circumstances

Cost-Benefit Analysis: courts specify what precautions should have been taken, and weigh that against the likelihood of harm


Res Ipsa Loquitur

In some cases, circumstantial evidence of negligence is sufficient evidence or negligence

Traditional Elements:
- The accident was the kind that ordinarily does not occur in the absence of negligence;
- It was caused by an agent or instrumentality within the exclusive control of the defendant; and
- It was not due to any action on the part of the plaintiff


Res Ipsa Loquitur Modern Trends

Medical Malpractice: a small number of jurisdictions shift the burden by holding all defendants jointly and severally liable unless they can exonerate themselves

Products Liability: many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package's wrapping or seal

Comparative-fault jurisdictions: many loosely apply the third element (that the harm was not caused by an action by the plaintiff)


Res Ipsa Loquitur: Third Restatment

Applies elements generously

- the accident is the type of accident that ordinarily happens as a result of negligence of a class of actors; and
- the defendant is a member of that class


Res Ipsa Loquitur: Procedural Effect

Does not result in a directed plaintiff

Court allows the case to go to the jury


Cause in Fact

The plaintiff must show that the injury would not have occurred "but for" the defendant's negligence


Cause in Fact: Multiple/Indeterminate Tortfeasors

1. Ash whether negligence was a "substantial factor" in causing the harm;
2. Treat contributing tortfeasors jointly and severally; or
3. Shift the burden of proof on the defendant to show which one of them caused the harm


Loss of Chance of Recovery

If a physician reduces the plaintiff's chance of survival, then that plaintiff can recover.

Many jurisdictions allow recovery for the lost chance of survival , but discount damages awarded to plaintiff


Proximate Cause

Foreseeability of harm

Extent of damages never needs to be foreseeable. The defendant is liable for the full extent of the plaintiff's injuries, even if the extent is unusual or unforeseeable


Actual (Compensatory) Damages

Purpose is to make the plaintiff whole again

Parasitic damages: damages for emotional distress that accompanies a physical injury


Economic-Loss Rule

A plaintiff who suffers only economic loss without any related personal injury or property damages cannot recover in negligence


Mitigation of Damages

Plaintiff must take steps to mitigate damages

Not really a "duty," but rather a limitation on damages


Personal Injury: Categories of Damages

- Medical expenses, both past and future
- Pain and suffering
- Lost income and reduced earning capacity


Property Damage

Generally: The plaintiff may recover the difference between the market value of the property before and after the injury

Most courts allow recovery of the cost of repairs as an alternative measure

Courts often use replacement value as a measure of damages to household items


Collateral-Source Rule

Traditionally: Benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor

Modern: Payments made to the plaintiff by the defendant's insurer are credited against the defendant's liability


Punitive Damages

Recoverable if the plaintiff can show by clear and convincing evidence that the defendant acted willfully, wantonly, recklessly, or with malice


Negligent Infliction of Emotional Distress

Generally, plaintiff cannot recover, unless:

1. Zone of Danger
- Plaintiff was in the zone of danger of the threatened physical impact; and
- the threat of physical impact caused emotional distress
2. Bystander Recovery
- closely related to the person injured by the defendant;
- was present at the scene of the injury; and
- personally observed the injury
3. Special Relationship
- mishandling of corpse
- negligent medical information


Wrongful Death

A decedent's representative brings suit to recover losses suffered by the representative as a result of the decedent's death

- Damages include loss of support and loss of companionship and society


Survival Actions

Brought by a representative of the decedent's estate on behalf of the decedent for claims the decedent would have had at the time of the decedent's death

- Claims include damages resulting from personal injury or property damages


Wrongful Life and Wrongful Birth Claims

Wrongful Life: not permitted in most states

Wrongful Birth: may states do permit recovery


Vicarious Liability

When one person is liable for another person's negligence


Respondeat Superior

The employer is held vicariously liable for the employee if it occurred within the scope of employment

Employers are generally not liable for the intentional torts of employees except when force is within the scope of the employee's work

Detour: Minor deviation, employer is liable
Frolic: Major deviation, nott liable


Respondeat Superior and Independent Contractors

An employer is generally not liable for torts committed by independent contractors unless:

- inherently dangerous activities;
- non-delegable duties
- duty of an operator of premises to keep the premises safe for the public; and
- duty to comply with safety statutes


Business Partner Liability

Can be liable for the torts of other business partners committed within the scope of the business's purposes


Automobile Owner Liability

Negligent Entrustment: an owner can be directly liable for negligently entrusting a vehicle (or any other dangerous object) to someone who is not in the position to care for it

Family-Purpose Doctrine: the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission

Owner Liability Statutes: the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission


Liability: Parents and Children

Parents generally are not liable for their minor children's torts

Parents can be liable for their own negligence with respect to their children's conduct


"Dram Shop" Liability

Holds bars, bartenders, and even social hosts liable for injuries caused when people drink too much alcohol and injure third parties

Recognized by many states in statutes or by case law


Federal and State Government Immunities

Traditionally, state and federal governments were immune from tort liability

Immunity has to be waived by statute


Federal Tort Claims Act

The federal government expressly waives immunity and allows itself to be sued for certain kinds of torts

- Certain enumerated torts
- Discretionary functions
- Traditional governmental activities


State Government and Municipality Immunity

Most states have waived immunity to some extent.
Municipalities are generally governed by the state tort claim statute

Governmental functions: immunity applies
Proprietary functions: immunity has been waived


Government Official Immunity

Discretionary Functions: Immunity applies
Ministerial Functions: no immunity

Westfall Act - Precludes any personal liability on the part of a federal employee under state tort law


Joint and Several Liability

Each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability for the entire harm

Plaintiff can recover from any negligent party all of his damages



Allows a defendant who pays more than his share of the total liability to recover from other liable defendants



A complete reimbursement from one party to a party who was forced to pay the damages


Defenses to Negligence

1. Contributory Negligence
2. Comparative Fault
3. Imputed Contributory Negligence
4. Assumption of Risk


Contributory Negligence

If the plaintiff was negligent in some way, that negligence completely precludes the plaintiff's recovery


"Last Clear Chance" Doctrine

Allows a plaintiff to mitigate the consequences of her own contributory negligence by showing the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.


Comparative Fault

A plaintiff's negligence does not completely bar recovery but instead limits the plaintiff's ability to recover (most jurisdictions)


Pure Comparative Fault

A plaintiff's recovery is diminished by whatever percentage of fault the jury attributes to the plaintiff's own negligence.


Modified Comparative Negligence

If the plaintiff is more at fault than the defendant, the plaintiff's recovery is entirely barred

Some Jurisdictions: if the plaintiff and defendant are equally at fault then the plaintiff's recovery is barred


Assumption of Risk

Applies when a party knowingly and willingly embraces a risk for some purpose of his own

Analogous to the defense of consent in intentional torts


Exculpatory Clauses in Contracts

In general, parties can contract to disclaim liability on negligence and courts will enforce those disclaimers.

Courts will hesitate to enforce if:
- disclaim liability for reckless or wanton misconduct
- there is a gross disparity of bargaining power between the two parties
- the party seeking to enforce the provision offers services of great importance to the public
- the provision is subject to contract defenses
- enforcement would be against public policy


Strict Liability

A defendant will be liable no matter how careful they were.

Three general categories:
- Abnormally dangerous activities;
- Wild animals;
- Defective products


Abnormally Dangerous Activities

Basic Rule: A defendant engaged in an abnormally dangerous activity will be held strictly liable (without any proof of negligence) for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm.

A defendant is only liable for the harm that flows from the risk that made the activity abnormally dangerous


"Abnormally Dangerous" Factors

- Whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care;
- The severity of the harm resulting from the activity;
- The appropriateness of the location for the activity;
- Whether it has great value to the community


Wild Animals

Animals that, as a species or class, are not customarily kept in the service of mankind

- Strictly liable for harm arising from the animal's dangerous propensities.
- Strictly liable for injuries caused to invitees or licensees

- NOT strictly liable for injuries caused to trespassers (EXCEPTION: injuries caused by vicious watchdog)


Domestic Animals

Owners are strictly liable if the owner knows or has reason to know of the animal's dangerous propensities.

Dog-Bite Statutes: Many states hold dog owners strictly liable for injuries caused by dogs


Trespassing Animals

The owner of any animal is strictly liable for any reasonably foreseeable damage caused by his animal while trespassing on another's land

- Household pets (unless owner knows or has reason to know that the pet is intruding on the other's property in a harmful way)
- Animals on public roads (reasonableness standard)


Defenses to Strict Liability

1. Contributory Negligence
2. Comparative Negligence
3. Assumption of Risk


Products Liability

A product may be defective due to its manufacture, design, or lack of a warning


Strict Products Liability

Plaintiff must show:

- The product was defective (in manufacture, design, or failure to warn);
- The defect existed when the product left the defendant's control; and
- The defect caused the plaintiff's injury when the product was used in a foreseeable way


Manufacturing Defect

The product deviated from its intended design

The product does not conform to the manufacturer's own specifications


Design Defect

Consumer Expectation Test: the product is defective in design if it is less safe than the consumer would expect

Risk-Utility Test: the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design


Failure to Warn

of a foreseeable risk that is not obvious to an ordinary

"Learned Intermediary" Rule
- Manufacturers of prescription drugs must warn the doctor of risks
- EXCEPTION: drugs marketed directly to consumers


Inference of Defect

Courts may allow proof of a defect by circumstantial evidence, especially when the defect causes the product to be destroyed


Strict Products Liability: Plaintiffs and Defendants

Plaintiff: anyone foreseeably injured by a defective product, including purchasers, other users, and bystanders

Defendants: Anyone in the chain of distribution who sells the product when it is defective (seller may seek indemnification from another party)

Casual Sellers: Not strictly liable but may be liable for negligence


Products Liability Damages

Personal Injury or Property Damage

Purely economic loss is generally not permissible under a strict liability theory, but may be brought as a breach of warranty claim


Products Liability Defenses

1. Comparative Fault
2. Contributory Negligence
3. Assumption of Risk
4. Product misuse, modification, or alteration (if foreseeable then comparative negligence)
5. Substantial Change In the Product
6. Compliance With Governmental Standards
7. "State of the Art" Defense
8. Disclaimers, Limitations, and Waivers


Compliance with Governmental Standards

Evidence, but not conclusive evidence, that product is not defective

Exception: Federal Preemption - if Congress has preempted regulation in a particular area, then tort claims may be preempted


"State of the Art" Defense

In some jurisdictions, the relevant state of the art at the time of manufacture or warning is some evidence that the product is not defective

In others, compliance with the state of the art is a complete bar to recovery


Disclaimers, Limitations, and Waivers

Generally do not bar strict liability claims for defective products


Implied Warranties

Merchantability: the product is suitable for the ordinary purposes for which it is sold

Fitness for a Particular Purpose: the seller knows the particular purpose for which the product is being sold and the buyer relies on the seller's skill or judgment



A plaintiff may bring an action for defamation if the defendant:
- Made a defamatory statement;
- That is of or concerning the plaintiff;
- The statement is published to a third party who understands its defamatory nature; and
- It damages the plaintiff's reputation

Must also be false


Defamatory Language

Language that diminishes respect, esteem, or goodwill towards the plaintiff, or deters others from associating with the plaintiff

An opinion is not actionable as defamation


Defamation "Of or Concerning" the Plaintiff

A reasonable person must believe the defamatory language referred to this particular plaintiff

A member of a group can bring an action if the group is so small that the matter can reasonably be understood to refer to that member


Defamation Publication

The statement must be communicated to a third-party who understood the content

A person who repeats a defamatory statement may be liable for defamation

Federal statute provides that internet service providers are not publishers for purposes of defamation


Public Official

A person who has substantial responsibility or control over government office, including political officials


Public Figure

General Purpose Public Figure: a person of persuasive power and influence in society

Limited Purpose Public Figure: a person who thrusts themselves into a particular controversey


Defamation: Private Individual fault

Matter of Concern: Plaintiff must prove the statement is false and that the person who made the statement was at least negligent with respect to the falsehood


Defamation: Public Official/Figure Fault

Plaintiff must prove that the person who made the statement either knew it was false or acted with reckless disregard for the falsehood of the statement



A written, printed, or recorded statement

Plaintiff may recover General damages (recovery without concrete, measurable harm)



Spoken Statement

Plaintiff may recover special damages (requires a more concrete showing of economic loss)

Exception: Slander per se
- Commission of a serious crime
- Unfit for a trade or profession
- Having a loathsome disease
- Severe sexual misconduct


Constitutional Limitations on Defamation Damages

Public Official/Figure: only actual damages

Private Individual and Matter of Public Concern: Actual damages unless can show actual malice

Private Individual (Not a matter of public concern): plaintiff may recover general damages, including presumed damages, without proving actual malice


Defenses to Defamation

1. Truth (absolute defense)
2. Consent
3. Privileges (absolute or conditional)


Defenses to Defamation: Absolute Privilege

The speaker is completely immune for defamation:

- in the course of judicial proceedings;
- in the course of legislative proceedings;
- Between spouses; and
- In required publications by radio and tv


Defenses to Defamation: Conditional Privilege

Statements made in good faith pursuant to some duty or responsibility. Includes statements made:

- In the interest of the defendant (defending your reputation)
- In the interest of the recipient of the statement; or
- Affecting some important public interest


Invasion of Privacy Torts

1. Misappropriation of the Right to Publicity
2. Intrusion Upon Seclusion
3. False Light
4. Public Disclosure of Private Facts


Misappropriation of the Right of Publicity

A property-like cause of action when someone misappropriates another's name or likeness for commercial advantage without consent and causing injury


Intrusion Upon Seclusion

A defendant's intrusion upon the plaintiff's private affairs in a manner that is objectionable to a reasonable person


False Light

When the defendant makes public facts about the plaintiff that place the plaintiff in a false light, which would be highly offensive to a reasonable person


Public Disclosure of Private Facts

Defendant gives publicity to a matter concerning the private life of another and the matter publicized is highly offensive to a reasonable person and not of legitimate concern to the public

(hard to prove because courts broadly define "legitimate public concern")


Invasion of Privacy Defenses

1. Qualified and Absolute Privilege
2. Consent


Intentional Misrepresentation

1. False Representation
2. Scienter
3. Intent
4. Justifiable Reliance
5. Causation


Intentional Misrepresentation: False Representation

Deceptive or misleading statements about a material fact

No duty to disclose unless:
- fiduciary relationship;
- the other party is likely to be mislead by statements the defendant made earlier; or
- the defendant is aware the other party is mistake about the basic facts of the transaction and custom suggests that disclosure should be made


Intentional Misrepresentation: Scienter

The defendant knew the representation is false or acted with disregard for its falsehood


Intentional Misrepresentation: Intent

Defendant must intend to induce the plaintiff to act in reliance on the misrepresentation


Intentional Misrepresentation: Justifiable Reliance

Reliance is not justifiable if the facts are obviously false or it is clear that the defendant was stating an opinion


Intentional Misrepresentation: Damages

Plaintiff must prove actual, economic, pecuniary loss

NOT nominal damages

Most jurisdictions: recovery is "benefit of the bargain"

Some jurisdictions: only out-of-pocket losses


Negligent Misrepresentation

- The defendant provided false information to the plaintiff;
- As a result of the defendant's negligence in preparing the information;
- During the course of a business or profession;
- Causing justifiable reliance; and
- Plaintiff is either in a contractual relationship with the defendant or the plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied

[Negligence Defenses]


Negligent Misrepresentation: Damages

Reliance (out-of-pocket)

Consequential if negligent representation is proven with reasonable certainty


Intentional Interference With Contract

- A valid contract existed between the plaintiff and a third party;
- Defendant knew of the contractual relationship;
- Defendant intentionally interfered with the contract, resulting in a breach; and
- The breach caused damages to the plaintiff


Interference With a Prospective Economic Advantage

The defendant intentionally Interferes with a prospective business relationship or benefit between the plaintiff and a third party, even in the absence of a contract.

The elements are the same as for intentional interference with a contract, but without the contract

Conduct must be wrongful


Misappropriation of Trade Secrets

When defendant has taken by improper means plaintiff's valid trade secret that is not generally known and that plaintiff has taken reasonable precautions to protect.


Trade Libel

- Publication;
- Of a false or derogatory statement;
- With malice;
- Relating to the plaintiff's title to his business property, the quality of his business, or the quality of its products; and
- Special damages as a result of the interference or damage to business relationships


Slander of Title

- Publication;
- Of a false statement;
- Derogatory to the plaintiff's title;
- With malice;
- Causing special damages; and
- Diminishes value in the eyes of third parties


Malicious Prosecution

A person intentionally and maliciously institutes or pursues a legal action, without probable cause, and the action is dismissed in favor of the person against whom it was brought.


Abuse of Process

The defendant has set in motion a legal procedure in proper form, but has abused it to achieve some ulterior motive.

Some willful act perpetrated in the use of the process which is not proper in the regular conduct of that proceeding and that conduct caused damages.