MBE Torts - Other Torts

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

Government (common), or

Individual (must show that she is suffering from a different and distinct harm than the public at large)

Substantial and unreasonable interference of P’s use or enjoyment of their land

Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person

Unreasonable: Injury outweighs utility of behavior

Injunctions;

Damages

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

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

Libel (written)

Slander (spoken)

Those that diminish respect or goodwill towards P or deter 3rd parties from dealing with them

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

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

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)

No

Defamatory statement that is written, published, or expressed in physical form

Yes

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

General damages are presumed, P doesn’t need to prove special damages

Defamatory statement made orally

Special damages, i.e. calculable damages

⚠️ Note: Special damages do not need to be proved for slander per se

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

Statement was false; and either:

Actual malice (public figure) or negligence (private figure)

Relates to the political, social, or other concerns of the community; or

Newsworthy issue that is of general concern to the public

Household names, those who have widely known fame

Knowing the published information was false; or

Recklessly disregarding the truth or falsity of the statement

Truth (absolute defense);

Consent; or

Privilege: absolute (complete defense) & qualified (can be revoked)

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

Involving the public interest;

Made to defend one's reputation; or

Made to promote truthfulness

Exceeding scope of privilege; or

Acting with malice or reckless disregard for the truth

No, unless she was negligent

False light;

Appropriation;

Disclosure; and

Intrusion upon seclusion

Acronym: FADI

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)

⚠️ Note: Public places generally do not have an expectation of privacy

Unauthorized use of P's identity or likeness for a commercial purpose that causes harm

D gave publicity to a matter concerning the private life of another;

On a matter that is highly offensive to a reasonable person; and

Not of legitimate concern to the public

⚠️ Note: Activities done in public are not private matters

Disseminating private information widely enough that it becomes public knowledge

Publication of;

False information about P;

That is highly offensive to a reasonable person

⚠️ Note: Many jurisdictions also require proof that D acted with actual malice

Yes, still liable

No, not liable

No, not liable

Yes, still liable

Privilege (absolute or qualified);

Consent

⚠️ Truth is not a valid defense

D commences proceedings;

For an improper purpose;

Without probable cause;

Proceeding terminated in favor of P; and

P suffered damages (job loss, reputational damage, etc)

No, they have absolute immunity

D uses the legal process;

For an ulterior purpose; and

Willfully acts or threatens P to accomplish the ulterior purpose; and

P sustains damages

D mispresents a past or present material fact;

That D knows or should know to be false;

With the intent to mislead P;

P justifiably relied upon the fact; and

P suffered actual economic damages

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

D negligently prepared business or professional materials;

That misrepresented past or presents facts;

D knew P would rely on misrepresentation;

D breached duty of care owed to P;

P did rely on D's misrepresentation; and

P suffered actual economic damages

(e.g. D is an accountant and negligently prepares an accounting report for his client, P)

D knew there was an existing K between P and third party;

D intentionally interfered with K;

Interference resulted in breach; and

P suffered damages

⚠️ Note: Does not apply to K's that are terminable at-will

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)

Holds a third party is liable for the tortious acts of another

Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment

Acts that:

Employee was hired to do or are part of her official duties; or

Benefit the employer

Detour: a minor deviation from the scope of employment (employer is liable)

Frolic: unauthorized and significant deviation (employer is not liable)

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

No, unless:

Act is inherently dangerous;

Act arises from a non-delegable duty (e.g. duty of shopkeeper to keep premises safe)

Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee

Yes, if the acts are committed within the scope of the partnership

No, unless the parents:

Authorized, facilitated, or encouraged the tort; or

Knew or had reason to know of child's propensity for such 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

Seller of alcoholic beverages who provides alcohol to intoxicated guests can be held liable for injuries they cause to third parties

Each D is fully and independently liable for the full amount of damages owed

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

If held jointly and severally liable, D can seek contribution from the other D's for their share of the damages

Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.

More info: Contribution

Shifts entire loss from one D to another

Ex. Supplier can indemnify all previous suppliers in a supply chain

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

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