COMM LAW FINAL

cause of action

an act; a failure to perform a legal obligation or duty; a violation or invasion of another's rights

types of torts

intentional, negligence, strict liability

intentional tort

where the conduct was willful

negligent tort

where the conduct was accidental

strict liability tort

has nothing to do with fault at all; there are certain situations where the law holds you strictly liable (product liability, injuries caused by animals, injuries caused by ultrahazardous activities)

defenses for strict liability

contributory negligence, assumption of risk, abuse from misuse

abuse from misuse

a defense for strict liability; as in product liability where an injury was obtained from using something the wrong way

facets in a cause of action

facet i (plaintiff's case in chief, all elements must be proven), facet ii (affirmative defense- justifications for someone who admits they did it), facet iii (remedies available)

level of fault for torts

intentional, reckless, negligence, innocent

intentional torts (harm to person)

assault, battery, false imprisonment, infliction of emotional distress

intentional torts (harm to dignity)

defamation, invasion of privacy, misuse of legal procedure

intentional torts (harm to property)

real property (trespassing, nuisance), personal property (conversion)

intentional torts (harm to economic interests)

interference with a contractual relationship, disparagement, fraudulent misrepresentation

assault (facet i)

1. an intentional unlawful threat to cause bodily injury to another by force AND

2. under circumstances which create in the other person a well-founded fear of imminent peril

objective test for "fear of imminent peril)

would a reasonable person be reasonably certain that consequences from his threat would result?

assault (facet ii)

1. self defense

2. consent

3. privilege

assault (facet iii)

1. compensatory

2. punitive

3. equitable remedies

battery (facet i)

1. defendant touched the plaintiff's person

2. with the intent to touch

3. in a manner offensive to a reasonable person

plaintiff's person

includes any extension of the plaintiff's physical person; the object touching does not have to be the defendant's hand; touching does not have to be imminent (any delay between defendant's action and plaintiff's injury is still battery)

intent to touch

intent to do an act, not necessarily the intent to inflict injury

objective test for "offensive to a reasonable person"

not what defendant meant, but what any reasonable person would think

battery (facet ii)

1. consent

2. medical treatment

3. self defense

4. privileges of arrest

5. statute of limitations (2 years)

6. res judicata

objective test for consent

if a reasonable person in the position of the defendant would have assumed that the plaintiff consented to touching (NOT looking for explicit verbal consent; rather, was the plaintiff engaged in an activity that made the defendant think he consented?)

objective test for medical treatment

consent to be touched AND consent must be informed- patient must be informed of the procedure and risks of the procedures (EXCEPTION: immediate emergency)

self defense

defendant must prove that he/she had a reasonable apprehension of imminent bodily harm and used reasonable counterforce to avert that harm

reasonable counterforce

you can't bring a gun to a knife fight; usually subjective/decided by jury on a case to case basis

privileges of arrest (police work)

have to show it was a valid arrest; have to show that the force used was reasonably necessary to bring about the arrest

statute of limitations

the time you have from when the tort was committed to when the plaintiff files the case

res judicata

you can't sue a person twice for the same tort

NOT affirmative defenses for battery

insanity, following orders

battery (facet iii)

compensatory, punitive, equitable

compensatory damages for battery

all medical expenses past and future (you can collect full amount in future, don't have to return money if overshoot), lost wages, pain and suffering

crime of battery vs tort of battery

crime: insanity can be argued as a defense, res judicata is replaced with double jeopardy

tort: encompasses many different types of crimes (crimes are more narrow bc the punishment is more specific)

defamation (facet i-a)

1. defendant made a statement of fact which a reasonable person would find harmful to his or her reputation

2. statement was published to a third party (shared with at least one other)

3. the statement was false

4. plaintiff suffered injury to his or her reputation as a result of the statement

defamation (facet i-a for public figures)

defendant made the statement with actual malice

actual malice

knowing the statement was false and was made with a willful and wanton disregard for the truth

defamation (facet i-b; defamation per se)

only elements 1-3; don't have to show injury; public figures still have to show malice

statements that qualify for defamation per se

1. any statement that attributes the commission of a criminal offense involving moral turpitude

2. any statement that indicates that the plaintiff has a loathsome disease

3. any statement that negatively effects a person's reputation regarding his or her business or profession

defamation (facet ii)

1. truth

2. privilege (absolute and qualified)

3. opinion

4. consent

5. federal statutory protections (ISPs)

absolute privilege

1. any participant in a judicial proceeding

2. government officials doing their duty

3. members of congress while on the floor of congress

qualified privilege

allows people to make statements that might otherwise be defamatory in a different setting

1. the statement was made with the good faith belief in its truth

2. serves a legitimate business interest

3. statement was made on a proper occasion

4. statement was made only to persons with a legitimate common interest in hearing the statement

defamation (facet iii)

1. punitive

2. compensatory

3. equitable

trespassing (facet i)

DO NOT HAVE TO PROVE ALL 3

1. intentionally enter or remain on land in the possession of another

2. caused a thing/3rd party to do so

3. failed to remove a thing which the person is under a duty to remove

trespassing (facet ii)

1. express consent

2. implied consent

3. emergency

3. statute of limitations (5-10 years)

4. res judicata

implied consent

the law imposes it because of the parties' conduct

trespassing (facet iii)

1. compensatory

2. punitive

3. equitable (injunction is common)

nuisance (facet i)

1. defendant intentionally, negligently, or recklessly interfered with the plaintiff's use or enjoyment of his land or continued his conduct after learning of actual harm or substantial risk of future harm to the plaintiff's interest

2. there has been substantial interference with the plaintiff's interest

3. it is unreasonable for the plaintiff to bear it without compensation

substantial interference with the plaintiff's interest

1. interference with physical land

2. interference with simple comfort, convenience, or health of homeowner- hard to prove

3. interference with mental tranquility- hardest to prove

nuisance (facet ii)

1. zoning laws

2. plaintiff came to a nuisance

3. statute of limitations (2 years)

4. res judicata

nuisance (facet iii)

1. compensatory

2. punitives

3. equitable remedies

4. self help/abatement

difference between trespassing and nuisance

in the case of nuisance, defendant is using his own property