1
Q
Elements for public nuisance claim
A
- D unreasonably interfered with a public right (typically right to health, safety, or property); and
- P suffered a distinct and different harm from the public at large
2
Q
Who has standing to bring a public nuisance claim?
A
- Government (common), or
- Individual (must show that she is suffering from a different and distinct harm than the public at large)
3
Q
Elements of private nuisance claim
A
Substantial and unreasonable interference of P’s use or enjoyment of their land
4
Q
What constitutes substantial and unreasonable interference for a nuisance claim?
A
Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person
Unreasonable: Injury outweighs utility of behavior
5
Q
What are the remedies for nuisance?
A
- Injunctions;
- Damages
6
Q
Differentiate between nuisance and trespass
A
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
7
Q
Elements of defamation
A
- Defamatory statement;
- Concerning P;
- Published to a third party (either intentionally or negligently);
- That damages P’s reputation
** If matter is of public concern or P is a public figure, must also show → - D acted with actual malice
8
Q
2 types of defamation
A
- Libel (written)
- Slander (spoken)
9
Q
What types of statements are considered defamatory?
A
Those that diminish respect or goodwill towards P or deter 3rd parties from dealing with them
10
Q
What type of statements are not considered defamatory?
A
- 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
11
Q
What constitutes publication for defamation?
A
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
12
Q
What is the re-publication rule?
A
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)
13
Q
Can the dead be defamed?
A
No
14
Q
Define
libel
A
Defamatory statement that is written, published, or expressed in physical form
15
Q
Are defamatory TV and radio broadcasts considered libel?
A
Yes
16
Q
Elements of trade libel
A
- Publication;
- Of a disparaging statement about quality of P’s business or service;
- That D knew was false or acted with reckless disregard for its truth; and
- P suffered economic harm
17
Q
What type of damages does P have to prove to recover for libel?
A
General damages are presumed, P doesn’t need to prove special damages
18
Q
Define
slander
A
Defamatory statement made orally
19
Q
What damages need to be proven for slander?
A
Special damages, i.e. calculable damages
⚠️ Note: Special damages do not need to be proved for slander per se
20
Q
Define
slander per se
A
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
21
Q
If defamation involves a matter of public concern, what must P prove?
A
- Statement was false; and either:
- Actual malice (public figure) or negligence (private figure)
22
Q
Define
matter of public concern
A
- Relates to the political, social, or other concerns of the community; or
- Newsworthy issue that is of general concern to the public
23
Q
Who is considered a public figure for defamation?
A
Household names, those who have widely known fame
24
Q
What constitutes actual malice for defamation?
A
- Knowing the published information was false; or
- Recklessly disregarding the truth or falsity of the statement
25
What are the 3 main **defenses** to defamation?
1. **Truth** (absolute defense);
2. **Consent**; or
3. **Privilege:** absolute (complete defense) & qualified (can be revoked)
26
What communications are protected by **absolute privilege**?
* **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**
27
What types of communications are subject to **qualified** **privilege**?
* Involving the **public interest**;
* Made to **defend one's reputation**; or
* Made to **promote truthfulness**
28
When does D **lose** a **qualified privilege** for defamation (thereby exposing himself to liability)?
* **Exceeding scope** of privilege; or
* Acting with **malice** or **reckless disregard** for the truth
29
If D **reasonably but mistakenly** believed statement was true, is she liable for defamation?
No, unless she was negligent
30
4 types of **invasions of privacy**
1. False light;
2. Appropriation;
3. Disclosure; and
4. Intrusion upon seclusion
Acronym: FADI
31
# Define
intrusion upon seclusion
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
32
# Define
misappropriation
**Unauthorized** use of P's identity or likeness for a **commercial purpose** that causes harm
33
Elements of **public disclosure** **of** **private facts**
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
34
What constitutes "**giving publicity**" for a public disclosure tort?
Disseminating **private** information widely enough that it becomes **public knowledge**
35
Elements for **portrayal in a false light**
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**
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?
1. Yes, still liable
2. No, not liable
3. No, not liable
4. Yes, still liable
37
**Defenses** for invasion of privacy torts
1. Privilege (absolute or qualified);
2. Consent
## Footnote
⚠️ **Truth is not a valid defense**
38
Elements of **malicious prosecution**
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)
39
Are **judges and prosecutors** liable for malicious prosecution?
No, they have **absolute immunity**
40
Elements for **abuse of process**
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**
41
Elements of **intentional mispresentation**
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**
42
When does failure to disclose **material facts or opinions** constitute misrepresentation?
* **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
43
Elements for **negligent** **misrepresentation**
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)
44
Elements for **intentional interference with business relations** (tortious interference)
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**
45
When is interference with business relations **justified**?
* 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)
46
# Define
vicarious liability
Holds a **third party** is liable for the tortious acts of **another**
47
# Define
*respondeat superior*
Doctrine that holds an **employer** liable for the **unintentional** tortious acts of an employee committed **within the scope** of their employment
48
For vicarious liability, what acts are considered **within the scope of employment?**
Acts that:
* Employee was **hired to do** or are part of her **official duties**; or
* **Benefit** the employer
49
For vicarious liability, differentiate a **detour** vs. a **frolic**
* Detour: a **minor deviation** from the scope of employment (employer **is** liable)
* Frolic: unauthorized and **significant deviation** (employer is **not** liable)
50
When is an **employer** liable for an employee's **_intentional_ tort**?
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**
51
Is an employer liable for torts committed by an **independent contractor**?
No, unless:
* Act is **inherently dangerous**;
* Act arises from a **non-delegable duty** (e.g. duty of shopkeeper to keep premises safe)
52
# Define
negligent hiring
Holds employers primarily liable for the **negligent hiring, supervision, entrustment, or retention** of an employee
53
Are **business partners** vicariously liable for torts committed by the other partners?
Yes, if the acts are committed within the **scope of the partnership**
54
Are **parents** vicariously liable for the tortious acts of their children?
No, unless the parents:
* **Authorized, facilitated, or encouraged** the tort; or
* **Knew or had reason to know** of child's propensity for such acts
55
When is a parent liable for their **own negligence** with respect to their children's acts?
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**
56
# Define
dram shop rule
Seller of alcoholic beverages who provides alcohol to **intoxicated guests** can be held **liable for injuries** they cause to third parties
57
# Define
joint and several liability
**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)
58
# Define
contribution
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 Paul for his share of the damages.
*More info:* [Contribution](https://www.law.cornell.edu/wex/contribution)
59
# Define
indemnity
Shifts entire loss from **one D to another**
## Footnote
Ex. Supplier can indemnify all previous suppliers in a supply chain
60
Compare **contribution** with **indemnification**
**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
61
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MBE Torts
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