Mbe Torts (Excluding Negligence)

Front 1

A felony arrest by a private citizen with reasonable grounds to believe that a felony has been committed may constitute an invalid use of legal authority and thus the private person may be liable for false imprisonment if:

Back 1

NO felony was committed.

cf, a felony arrest by a police officer is valid if the officer has reasonable grounds to believe that the person arrested has committed a felony, even if a felony in fact has not been committed or the person arrested did not commit it.

Front 2

prima facie case of Trespass to Chattels

Back 2

(i) An act of the defendant that interferes with the plaintiff’s right of possession in the chattel;

(ii) Intent to perform the act bringing about the interference with the plaintiff’s right of possession;

(iii) Causation; and

(iv) Actual Damages.

*(Nominal damages will not be awarded for this tort. Note, though, if the plaintiff has been dispossessed of the chattel, the loss of possession itself may qualify as actual damages.)

Front 3

A private citizen may make a felony arrest without a warrant:

Back 3

only if a felony has in fact been committed

Front 4

For conversion, the defendant must have the intent to __________ with the plaintiff’s right of possession

Back 4

perform the act that interferes

(The defendant need not intend to commit a serious act of interference, or even to interfere, with the plaintiff’s right of possession.)

Front 5

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that:

Back 5

directly damages a π's chattel

Front 6

Damages for conversion typically are calculated by:

Back 6

fair market value of the chattel when converted

Front 7

What is the key difference between trespass to chattels and conversion?

Back 7

the seriousness of the interference with the π's chattel

Front 8

which branches of invasion of right to privacy require "publicity"?

Back 8

•false light privacy

•public disclosure of private facts

Front 9

What type of consent is a defense to all of the invasion privacy torts?

Back 9

Actual Consent

(implied, custom, and reasonable belief of consent are no defense for this tort)

Front 10

Pleading additional facts to show that a defamatory statement referred to a plaintiff is known as __________.

Back 10

colloquium

Front 11

Pleading additional facts to show the defamatory nature of the statement is known as __________.

Back 11

inducement

Front 12

Pleading additional facts to show the meaning of the alleged defamatory statement is known as _______.

Back 12

innuendo

Front 13

for Fraudulent Misrepresentation, does the P have an obligation to reasonably investigate the defendant’s representations of fact?

Back 13

NO

Front 14

Intentional Misrepresentation vs. Negligent Misrepresenation

(Who ∆ is liable to)

Back 14

For negligent misrepresentation, liability arises only when reliance on the misrepresentation is by the person to whom it was communicated or to specific persons who the defendant knew would rely on it.
In contrast, for intentional misrepresentation, the defendant may be liable to all those who the defendant could reasonably foresee would rely on the representation.

Front 15

“Scienter” is defined as

Back 15

making a false representation with knowledge that it was false or with reckless disregard as to its truth or falsity.

Front 16

At common law, the following elements were required for a prima facie case of defamation:

Back 16

(i) Defamatory language on the part of the defendant;

(ii) “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer);

(iii) Publication of the defamatory language by the defendant to a third person; and

(iv) Damage to the reputation of the plaintiff.

Front 17

Which privacy tort requires malice?

Back 17

false light privacy

Front 18

For a qualified privilege for defamatory statements to apply:

Back 18

•stmt must be related to the policy of the privilege;

•∆ must not have engaged in excessive publication;

•∆ must have acted w/out malice

Front 19

If a newspaper publishes a quotation from an individual and it is defamatory, the newspaper will be known as a:

Back 19

primary pubisher.

*newspaper will not be known as a republisher. A republisher is one who repeats a defamatory statement from a primary publisher (e.g., a TV news show that quotes a defamatory statement from a newspaper).

Front 20

An absolute privilege for a defamatory statement in a JUDICIAL proceeding applies only if the statement:

Back 20

bears a reasonable relationship to the proceeding

Front 21

Absolute privileges to defamation include:

Back 21

• spousal privilege
• judicial privilege
• executive privilege
• legislative privilege

Front 22

The four slander per se categories are:

note: slander per se does NOT require proof of special damages.

Back 22

(i) A defamatory statement reflecting adversely on one’s business or professional abilities;

(ii) A defamatory statement that one is presently suffering from a foul and loathsome disease;

(iii) A defamatory statement that one is or was guilty of a crime involving moral turpitude; and

(iv) A defamatory statement imputing unchaste behavior to a woman.

Front 23

A defendant may be privileged to interfere with the business relationship between the plaintiff and a third party.

Which factors are considered in determining whether a privilege exists?

Back 23

Factors that are considered in determining whether a privilege exists include:
(i) the type of business relationship interfered with,
(ii) the means of persuasion used to trigger the interference,
(iii) the defendant’s relationship with the third party, and
(iv) whether the defendant is a competitor of the plaintiff.

Front 24

In an action for fraud or deceit, with regard to the element of misrepresentation; can ∆ actively conceal a material fact?

Back 24

No

Front 25

in defamation suit by a private person involving a matter of public concern, P is ___ required to prove malice, but P must prove D's statement was ___, and that D at least acted ____.

Back 25

not; false; negligently

Front 26

in order to get punitive damages a private person/public concern π must prove _____.

Back 26

malice

Front 27

a statement that is not defamatory on its face requires both _____ and _____ to be actionable.

Back 27

inducement; innuendo

Front 28

If a plaintiff is a member of a group, and a defamatory statement is made against the group, the individual P may recover if:

Back 28

the group is small

Front 29

Whose statements are absolutely privileged in judicial proceedings?

Back 29

judges, attys, witnesses, jurors, and parties

Front 30

true/false
If a defendant subjectively entertained serious doubts as to the truthfulness of his publication, this constitutes “reckless disregard as to truth or falsity” for purposes of malice in the law of defamation.

Back 30

true

Front 31

Does the right of privacy extend to family members?

Back 31

no.

invasion of privacy is an unreasonable intrusion in the plaintiff's private affairs or seclusion.

Front 32

When a defamatory statement does not involve a public figure but does involve a matter of public concern, the plaintiff may have to show “actual injury.” (over for explanation)

Back 32

Actual injury may include damages for humiliation and mental distress. The Supreme Court has stated that actual injury is NOT limited to out-of-pocket or economic loss. It may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering (i.e., an injury to reputation not resulting in special damages may still be actionable). The important point is that there must be competent evidence of “actual” injury (no presumed damages), although there need be no evidence that assigns an actual dollar value to the injury.

Actual injury must be proven where the defendant acted negligently in ascertaining the truth of the statement; conversely, if the defendant acted with reckless disregard as to its truth or falsity (i.e., actual malice), proof of actual injury need not be shown; presumed damages are permitted.

Front 33

An invasion of privacy may be shown even without highly offensive conduct through __________

Back 33

appropriation of a person's picture or name for commercial purpose

Front 34

With regard to defamation, “actual injury” includes:

Back 34

economic dmgs, mental distress or humiliation dmgs, and reputation dmgs

Front 35

Slander requires proof of _____ damages. This type of damages means _____ damages.

Back 35

special; economic

ex: loss of job

remember slander is purely spoken

Front 36

If a private figure plaintiff cannot prove “actual injury” from a defamation involving a matter of public concern:

Back 36

he cannot recover unless he proves malice

Front 37

Legislative Privilege is an __ privilege to defamation.

Back 37

absolute

Front 38

an absolute privilege to a defamation action is not affected by showing __.

Back 38

malice.


*however a QUALIFIED privilege is defeated by a showing of malice.

Front 39

PRIVATE NUISNACE
- is a __, unreasonable interference with another’s use and enjoyment of their property.

Back 39

substantial

Front 40

Re: PRIVATE NUISNACE
- substantial interference means offensive, inconvenient, or annoying to:

Back 40

the average person in the community.

*NOT substantial interference if merely interferes with a specialized use of the land.

Front 41

Public Plaintiff must prove ∆ acted with “Actual Malice” to recover for Defamation.

Actual Malice is __ falsity or __ disregard as to truth or falsity.

Back 41

knowing; reckless

Front 42

Re: Defamation of Public Figure

Which choice shows Actual Malice?
(a) ∆ subjectively entertained serious doubts as to the veracity of his publication, or
(b) a reasonable person would have investigated the the truth

Back 42

(a) is correct.

Front 43

is physical injury required for IIED?

Back 43

no.

-but, negligent infliction of emo distress may require physical injury.

Front 44

the INTENT element of false imprisonment requires that the ∆ intended to __ the π.

Back 44

confine.

-∆ must have INTENDED to confine π

Front 45

if ∆ lacked "substantial certainty" regarding the consequences of his action, is he liable for the tort of battery?

Back 45

NO, b/c ∆ lacked sufficient intent for this tort.

Front 46

Defense of Recapture of Chattels:

-when must peaceful means be used to recover chattel?

Back 46

if other's possession began lawfully (i.e., with permission) the chattel owner may only use peaceful means to recover his chattel.

*no force allowed if other originally had permission to possess the chattel.

Front 47

Defense of Recapture of Chattels:

-when is reasonable force permitted to recapture a chattel?

Back 47

reasonable force is permitted if the chattel was unlawfully taken and the owner is in "hot pursuit" of the thief.

Front 48

Can a trespasser recover for false imprisonment?

Back 48

Yes, if the ∆ intentionally confined him.

Front 49

Voluntary assumption of the risk [is] or [is not] a defense to strict liability?

Back 49

IS

*voluntary assumption of the risk is a defense to strict liability.

Front 50

for Assumption of Risk to be a defense, the π must be __ of the risk and the __ assume the risk.

Back 50

aware; voluntarily

*whether P was aware of the risk, ask whether the facts show that P actually "appreciated" the danger of his conduct.

Front 51

What is the "Avoidable Consequences Rule" regarding personal injury cases?

Back 51

it refers to a preclusion of recovery for extra or aggravated injuries that occur as a result of π failure to mitigate.

Front 52

in personal injury cases, the π has a duty to seek appropriate treatment to effect healing and to prevent aggravation. The failure to mitigate will preclude recovery of to the extent of any aggravation of the injury that occurred. This is known as the "avoidable __ rule."

Back 52

concequences

Front 53

for private person to recover in defamation, he need only show __ on part of ∆.

Back 53

negligence

Front 54

Whether the activity was "unreasonably dangerous" or ultrahazardous is question of __ for the __.

Back 54

law; judge

*whether something is unreasonably dangerous is a question of LAW for the JUDGE.