Other Torts

Nuisance, Defamation, Invasion of Privacy Torts, Intentional Economic Harms, Wrongful Death, Loss of Consortium

What are the types of nuisance cases?

(1) private nuisance;

(2) public nuisance

How is private nuisance established?

To establish private nuisance, plaintiff must show: (1) a substantial; and (2) unreasonable interference with his use and enjoyment of property.

When is an interference substantial in a nuisance claim?

An interference is substantial if it is offensive, inconvenient, or annoying to the average person in the community.

When is an interference unreasonable in a nuisance claim?

An interference is unreasonable if the severity of the inflicted injury outweighs the utility of the defendant’s conduct.

How is public nuisance established?

A private party may recover for public nuisance if: (1) there is an unreasonable interference with the community’s health, safety, or property rights; and (2) plaintiff has suffered a unique damage not suffered by the public at large.

What is the coming to the nuisance theory?

One can still recover for nuisance if they purchase a property next to an already existing nuisance unless the plaintiff came to the nuisance solely to bring a harassing lawsuit.

When can a loss of consortium or tortious interference with familial relationships be brought?

A spouse/parent may bring an action for indirect interference with consortium and services caused by the defendant’s intention or negligent tortious conduct against the other spouse/child.

What is the survival act?

Survival acts allow one’s cause of action for torts resulting in personal injury and torts against property to survive the death of one or more of the parties.

When can a wrongful death claim be brought?

Surviving spouses and next of kin can bring a wrongful death claim against the tortfeasor for pecuniary injury resulting from the decedent’s death. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived.

What are the elements of a defamation claim?

(1) defamatory statement about the plaintiff;

(2) published to a third person who understands it;

(3) falsity of the statement;

(4) fault of the defendant; and

(5) damage to plaintiff’s reputation.

Can an opinion be a defamatory statement?

An opinion is not ordinarily considered defamatory unless it appears to be based on a specific fact and an express allegation of those facts would be defamatory.

Can you defame a deceased person?

No, the defamed must be living at the time of the defamatory statement.

Can an organization be defamed?

Yes, an organization can be defamed.

What does it mean that the defamatory statement must be about the plaintiff?

The plaintiff must establish that a reasonable recipient would understand that the defamatory statement referred to the plaintiff.

When can a group of people claim defamation?

Generally, only members of small groups may claim defamation. If the statement is made about the small group as a whole, the plaintiff needs only to prove that they are a member of the small group. If the statement is made about some members of the small group, the plaintiff must show that a reasonable recipient would view the statement as referring to the plaintiff.

Can newspapers, TV networks, radio stations, etc. be liable for defamation?

Yes, primary publishers are liable to the same extent as the author or speaker. Secondary publishers (e.g., stores selling the newspaper) is not liable for defamation unless they knew that the content was defamatory.

How is falsity established in a defamation case?

Under traditional common law, the plaintiff did not need to prove falsity in its prima facie case; rather, the defendant needed to prove truth as an affirmative defense. However, in most states, plaintiff not is required to prove falsity.

How is fault of defendant established in a defamation case?

The degree of fault required in a defamation case depends on the status of the plaintiff. Actual malice is required if the plaintiff is a public official or public figure. If plaintiff is a private individual, defendant must have been negligent if the matter is of public concern. If the matter is not of public concern, state laws kick in, which usually require negligence.

What constitutes a public figure?

A public figure is someone who: (1) achieves pervasive fame or notoriety or (2) voluntarily assumes a central role in a particular public controversy.

What is required to show actual malice in defamation claim?

Actual malice requires either: (1) knowledge of the falsity; or (2) reckless disregard to whether it was false.

How is damage to plaintiff’s reputation shown?

The damage that must be proven depends on the type of defamation. Damages are presumed under the law of libel and slander per se. However, special damages must be proven in ordinary slander cases.

What is libel?

Libel is a defamation that is embodied in permanent form.

What is slander?

Slander is spoken defamation.

What is slander per se?

Slander per se is spoken defamation that: (1) adversely reflect on the plaintiff’s business or profession; (2) plaintiff had committed a serious crime; (3) plaintiff engaged in serious misconduct; or (4) plaintiff has a loathsome disease.

What are the possible defenses to defamation?

(1) consent;

(2) truth;

(3) absolute or qualified privilege.

When is defendant absolutely privileged to make a defamatory statement?

A defendant is absolutely privileged to make a defamatory statement: (1) to his spouse; or (2) during judicial proceedings, by legislators during proceedings, by executive officials in compelled broadcasts.

When does defendant have qualified privilege to make a defamatory statement?

A defendant may have qualified privilege to make a defamatory statement on when there is a public interest in encouraging candor. This usually includes, but is not limited to: (1) references and recommendations; (2) reports of public hearings or meetings; (3) statements made to those who are to take official action; or (4) statements made to defend one’s own actions, property, or reputation.

What types of right of privacy claims are there?

(1) appropriation of plaintiff’s likeness;

(2) intrusion on the plaintiff’s affairs or seclusion;

(3) false light; and

(4) public disclosure of private facts.

What must be established for a appropriation of likeliness claim?

Plaintiff must show an unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage, which is generally limited to advertisement or promotions.

What must be established for an intrusion on plaintiff’s seclusion or affairs claim?

Plaintiff must show an act of prying into or intruding upon the plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person.

What must be established for a portrayal in a false light claim?

Plaintiff must show publication of facts about plaintiff putting him in a false light in the public at large in a way that would be highly offensive to a reasonable person. False light exists where one attributes to the plaintiff views they do not hold or actions they did not take. Actual malice must be proved in the matter is in the public interest

What must be established for public disclosure of private facts?

Plaintiff must show a public disclosure of private information such that the disclosure of private information that would be highly offensive to a reasonable person.

What are the defenses to invasion of privacy torts?

(1) consent; and

(2) defamation absolute and qualified privileges.

What must be established for intentional misrepresentation?

(1) misrepresentation of a material fact (or opinion only if the defendant had superior knowledge of the subject matter)

(2) scienter;

(3) intent to induce reliance;

(4) causation (actual reliance);

(5) justifiable reliance; and

(6) damages

What is scienter for purposes of an intentional misrepresentation claim?

Scienter is when the defendant knew of the falsity or had a reckless disregard for the falsity.

What are the defenses to intentional misrepresentation?

There are none.

Is there a duty to disclose with respect to intentional misrepresentation?

Generally, there is no duty to disclose a material fact unless the defendant: (1) stands in a fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (3) has spoken and their utterance deceives the plaintiff.

What must be established for negligent misrepresentation?

(1) misrepresentation by the defendant in a business or professional capacity;

(2) breach of duty to plaintiff;

(3) causation (actual reliance);

(4) justifiable reliance;

(5) damages

What types of economic torts are there?

(1) intentional or negligent misrepresentation;

(2) interference with business relations

What must be established for intentional interference with business relations?

(1) existence of a valid contractual relationship or expectancy between plaintiff and a third party;

(2) knowledge of the relationship or expectancy;

(3) intentional inference inducing a breach or termination of the relationship or expectancy; and

(4) damages

What is a defense to intentional interference with business relationships?

A defendant may be privileged if it was a proper attempt to obtain business or protect the defendant’s interest.