Mbe Torts

Front 1

What are the elements of common law defamation?

Back 1

1. Defamatory language

2. "Of or concerning" the plaintiff

3. Publication thereof by defendant to a third person

4. Damage to plaintiff's reputation

Front 2

If the defamation involves a "matter of public concern," the Constitution requires plaintiff to prove two additional elements:

Back 2

1. Falsity of the defamatory language.

2. Fault on the part of the defendant,

Front 3

What is the difference between libel and slander?

Back 3

Libel is the written or printed publication of defamatory language. P does not need to prove special damages. General damages are presumed. Radio and television broadcasts are libel.

Slander is spoken defamation. Plaintiff must prove special damages, unless it is slander per se: relates to business or professional conduct, plaintiff has loathsome disease, is guilty of a crime involving moral turpitude, or woman is unchaste.

Front 4

Constitutional defamation

Back 4

Plaintiff has no cause of action if the statement is true (but may have an action for IIED or invasion of privacy).

Plaintiff must prove malice: knowledge that the statement was false or reckless disregard as to whether it was false. This is a subjective test.

Front 5

Common defenses to defamation

Back 5

Truth, consent, privilege (absolute or qualified)

Front 6

What are the four branches of an invasion of privacy tort?

Back 6

1. Appropriation of plaintiff's picture of name
- must show UNAUTHORIZED USE of plaintiff's picture or name for defendant's COMMERCIAL ADVANTAGE. Mere economic benefit to defendant not connected to promoting goods or services is not sufficient.

2. Intrusion upon plaintiff's affairs or seclusion.
- A HIGHLY OFFENSIVE (TO REASONABLE PERSON) act of PRYING OR INTRUDING. Intrusion must be private; photos taken in public places are not actionable.

3. Publication of Facts Placing Plaintiff in a False Light
- "False light" means attributing to the plaintiff views he does not hold or acts he does not take. HIGHLY OFFENSIVE TO A REASONABLE PERSON. There must be publicity for liability.

4. Public Disclosure of Private Facts About Plaintiff
- Disclosure of PRIVATE INFORMATION, HIGHLY OFFENSIVE TO A REASONABLE PERSON of ordinary sensibilities. Liability even if statement is TRUE. First Amendment interest apply if statement a matter of legitimate public interest.

Front 7

Causation and Damages

Back 7

Proximate causation.

Plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient.

Front 8

What are the various types of misrepresentation?

Back 8

1. Intentional misrepresentation (fraud, deceit)
- misrep of a material fact, that defendant knew or believed was false or without basis, intended to induce plaintiff to act or refrain, that caused actual, justifiable reliance on the statement, and actual pecuniary loss to plaintiff.

No defenses

2. Negligent misrepresentation
- misrep by D in a BUSINESS OR PROFESSIONAL CAPACITY; breach of duty to P; causation; justifiable reliance; and damages; generally confined to business or commercial settings.

Front 9

What is the prima facie case for interference with business relations?

Back 9

1. Existence of a valid contractual relationship between P and a 3rd party, or a valid business expectancy of P

2. D's knowledge of the relationship or expectancy

3. Intentional interference by D inducing a breach or termination of the relationship or expectancy

4. Damages

Front 10

What are some privileges to interference with business relations?

Back 10

Maybe if D made a proper attempt to obtain business for himself or protect his interests.

More likely found if interference is with P's prospective business rather than existing relations; used commercially acceptable means of persuasion, not illegal or threatening tactics; P is a competitor seeking the same prospective customers; tD has a financial interest in or responsibility for the 3rd party or is responding to its request for business advice.

Front 11

What are the elements of malicious prosecution?

Back 11

1. Institution of criminal proceedings against P

2. Termination in P's favor

3. Absence of probable cause for prior proceedings

4. Improper purpose (other than bringing P to justice)

5. Damages

Prosecutors are immune from liability.