Torts - Other Torts Flashcards
(35 cards)
What are the two types of nuisance?
Public and private
What is private nuisance?
Unreasonable AND substantial interference
with use and enjoyment
of another’s property
usually between two private individuals
In terms of mental state of D, the plaintiff in a private nuisance action must show that the defendant’s interference with the plaintiff’s use and enjoyment was either
(a) intentional; (b) negligent; (c) reckless; or (d) stemming from an abnormally dangerous activity. See Rest. 2d Torts, § 822(b).
the word “intentional” is defined quite broadly in this context. It’s not necessary that the defendant act for the purpose of causing the interference. Rather, it’s enough that the defendant knows that the interference is either occurring, or is substantially certain to occur in the future, as a result of the defendant’s conduct.
What is unreasonable interference?
For the interference to be unreasonable, the severity of the inflicted injury must outweigh the utility of the D’s conduct.
eg, is landowner installs bright light for no reason other than to annoy his neighbor, then there is no utility to D’s conducdt, and the annoyance it causes will outweigh the utility and therefore the interference will be unreasonbale.
Must be interference that is unreasonable by objective standard.
eg, if someone is especially sensitive and breaks objective standard, for instance, someone hates a smell, or has an acute allergy, then this would not be a nuisance
eg, if i’m shooting hoops early evening, and couple goes to sleep early, that’s not unreasonable by objective standard
eg, i’m playing heavy metal music at 3am, this is unreasonable by objective standard and a nuisance
What is a public nuisance?
an unreasonable interference
affecting
public at large
EG of public nuisance?
chemicals from power plant; something flowing downstream and infecting the town
Who brings action for public nuisance?
Usually, The government. The district attorney/prosecutor or whoever would bring on behalf of the people.
What if private person brings public nuisance suit?
If private P brings public nuisance suit, must prove some sort of special (usually economic or pecuniary (to do with money)) harm.
What is the challenge with defamation?
All the answer choices look good.
Must distinguish between the answers.
What is the approach to defamation?
- Make sure you know whether statement in question was defamatory. Just bc you don’t like it, may not be defamatory
What makes statement defamatory?
A defamatory statement;
The statement must be false (and negative) and NOT an opinion. It usually contains language that diminishes respect toward the plaintiff or deters others from associating with the plaintiff.
eg, someone says i’m a carolina fan…i take offense, but this does not necessarily diminish my respect, so no defamatory statement.
What are the elements of defamation?
Defamation occurs when the defendant:
- Publishes;
- A defamatory statement;
- Of or concerning the plaintiff;
- Causing damage to the plaintiff’s reputation.
What does “publishes” mean for defamation?
The statement must be communicated to a third party who understands the content of the statement. A person who merely repeats a defamatory statement may still be held liable for defamation.
eg, someone calls me a liar to my face, but no one else around. NOT defamation bc no 3P.
eg, what if someone else around, but they call me a liar in mandarin? NOT defamation unless 3P understood mandarin and heard it.
What does “of or concerning the plaintiff” mean for defamation?
A reasonable person must believe that the defamatory statement referred to this particular plaintiff.
What are the types of defamatory statements?
Written down, printed, or recorded statements = LIBEL
Spoken statements NOT recorded = SLANDER
For libel, P may recover…
…general damages (things like damage to reputation or personal relationships, and mental anguish.) without proving concrete measurable harm. P does not have to prove any special harm or economic damages to prevail on defamation claim
For slander (not slander per se) P MUST PROVE…
… special harm/economic damages (like a lost job, inheritance, gift, customers, and the like), which require more concrete showing of actual economic loss, to prevail
What is slander per se?
Must you prove special damages?
statements so bad that there are Presumed damages not limited to special damages (like a lost job, inheritance, gift, customers, and the like) and cover general damages (things like damage to reputation or personal relationships, and mental anguish.) = SLANDER PER SE
No, not required to prove special damages, can recover general damages.
What are the types of slander per se?
- Slander about someone’s profession;
- Slander about the chastity of a woman;
- Slander about crime of moral turpitude (look for an accusal of committing a felony);
- Slander about a loathsome disease (eg, STD accusation)
Does it matter WHO is being defamed?
Yes, sometimes. Public v private standards are different.
What if person being defamed is private individual?
Cannot act negligently, otherwise liable.
A private individual is any person that is not a public official or public figure. If the plaintiff is a private individual AND the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was false and the speaker was at least negligent.
What if person being defamed is public?
Actual Malice Standard. If the plaintiff is a public official or a public figure, the plaintiff must prove actual malice. This requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.
What if someone publishes false statements about a public official and unreasonably failed to investigate the accusation before publishing it, and caused reputational damage to the public official?
They are not liable for defamation, because they merely acted negligently in unreasonably failing to investigate, and not reckless or intentionally (ie, with actual malice).
Publisher must have “entertained serious doubts” as to whether true and published anyway to be considered reckless. If honestly believe it to be true, however negligent/unreasonable that belief might be, the publisher is not liable for defamation against a public figure. WOULD BE liable for defamation if against PRIVATE individual though.
The Supreme Court has held that the First Amendment requires that a public figure, in order to recover for defamation, must prove that the defendant acted with more than mere negligence with regard to the truth or falsity of the defamatory statement.
Who is considered to be a public official?
A public official is a person who has control over government office (includes political candidates).
