Torts - Nuisance

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NUISANCE

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There are two types:
1. Private
2. Public

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Public Nuisance

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An unreasonable interference with a right common to the general public.

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Individual Public Nuisance Claims

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P must also show he suffered a harm different from the public.

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Private Nuisance

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A thing or activity that substantially and unreasonably interferes with P's use and enjoyment of his land

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Private Interference - what kind of interference required

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Substantial - as in offensive, inconvenient, or annoying to an average person in the community.

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Private Nuisance: interference unreasonable means

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1. gravity of P's harm o/w the utility of D's conduct; or
2. If intentional - harm caused by D's conduct is substantial and financial burden of compensating for this & other harms does not render unfeasible the continuation of the conduct

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Defenses to Nusiance

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1. Contributoy Neg [not a defense if intentional]
2. AOR
3. Coming to the Nuisance - a afacot considered when balancing
4. Compliance w/ Statute

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Remedies to Nuisance

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1. Private and Pub - remedy is damages
2. Legal Remedy - when money damages are inadequte or unavailable - ct may grant injunction
3. Abate Nuisance but only to a reasonable extent - not excess

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Injunction as to Nuisance

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CT will undertake to balance equities - take into account:
1. Relative economic hardship to the parties for granting or denying the injunction; and
2. Public interest in D's activity continuing

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Injunction

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A court order directed to a person to refrain from doing a particular act

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P who seeks injunction must show

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1. He will suffer/cont to suffer irreparable injury w/c money damages will not cure
2. Bal of hardships b/w P and D supports an equitable remedy; &
3. Pub interest would not be disserved by the grant of injunction

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Courts look to these factors to determine app of injunction

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1.p likely to succeed on merits to underlying claim
2. P entitled to relief either limited or perpetually
3. Denial of injunction would produce waste, etc.
4. Pub interest & bal of hardships favors injunction.

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TRO

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W/o notice effective 10 to 20 days. In federal 14 days

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Permanent injunctions

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1. P must prevail on sub claim & shown need of cont protection
"final and cont in force until dissolved

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Defamation

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Defamatory language; of/concerning P; publication thereof by D to 3rd person; and damage to P's reputation
-if defamation involves matter of pub concern, Const requires P prove: falsity of defam Lang, and fault on part of D.

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Defamation cont - stmt of facts

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Are actionable but stmts of opinion that implies knowledge or existence of such facts can be actionable

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Defamation per se

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Defamation apparent on its face that it will injure P's rep.

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Defamation per quod

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Not apparent & P must plead additional extrinsic facts that render message defamatory

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Defamation per quod cont

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P must plead: Pld and prove inducement; estb def meaning by innuendo; & show that he himself was the intended P by colloquium

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Libel

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Written form of defamation

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Slander

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Spoken defamation

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Slander per se

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Classified as: damages are presumed
1. stmts that impute P committed a crime involving moral turpitude/infamous punishment or death;
2. Allegations P has loathsome disease;
3. Slander that adversely reflect on one's conduct in a bus/prof;
4. One is guilty of a crime involving moral turpitude;
5. A woman is unchaste

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Slander per se damages

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General damages are presumed.

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Slander/ libel

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Damages: general and pecuniary

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Defenses to defamation

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1. Truth
2. Absolute privilege
3. Qualified privilege
4. Consent

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Qualified privilege

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When comm is reasonably necessary to protect or advance D's own legitimate interest.
One who comm defam stmt to one who can protect that interest has immunity.
This defense is lost if: D acted with malice, exceeds scope; does not believe the truth of the defamatory stmt

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Public official/public figure

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Gov official who has substantial responsibility over government operations.
Public figure- person who achieved pervasive fame/notoriety/ voluntarily injected himself in public controversy.

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Malice

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Knowing falsity or recklessness as to truth or falsity. D must have doubts of stmt as truth or knew defam stmt was false.

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Matter of public concern

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Pub fig and pub concern- malice must be proven
Private and not pub concern - malice need not be proven.

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General damages

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Presumed in cases where malice is proven; and where private person and not a matter of pub concern.

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Intrusion into seclusion

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D unreasonably intrudes into P's seclusion. Intrusion must be highly objectionable to a reasonable person.
Damages: compensatory

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Appropriation of P's name/likeness

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Unauth use of P's identity/likeness for D's advantage.
Compensatory damages as to reasonable value of the use of P's likeness.

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Public disclosure of private facts

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When D unreasonably discloses private facts about P to public.
Must be: offensive to reasonable person and not a legitimate public concern. Compensatory and mental distress w/o injury damages

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False light

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Attributing to P views he does not hold or attributing actions he did not take. A reasonable person must find it highly offensive.

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Malicious prosecution

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1. Institution of criminal proceedings,
2. Done for an improper purpose,
3. W/o probable cause
4. Terminate favorably for P,
5. Causes P damages

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Wrongful institution of civil proceedings

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Person who takes an active part in initiation, continuation, or procurement of civil proceedings against another

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Abuse of process

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1. Wrongful use of process
2. For an ulterior purpose
3. Definite act or threat against P in order to accomplish an ulterior purpose.

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Intentional misrepresentation

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Prima facie case:
1. Misrep of a material fact
2. Scienter (knew/believed to be false
3. Intent to induce P to act or refrain from acting in reliance upon misrep
4. Causation (actual reliance)
5. Justifiable reliance; and
6. Damages
There are no defenses to this claim

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Negligent misrepresentation

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Prima facie case:
1. Misrepresentation by D in a bus/prof capacity
2. Breach of duty toward particular P
3. Causation
4. Justifiable reliance, and
5. Damages
Only in commercial settings and liability will only attach if particular P could be contemplated.

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Interference with contractual relations

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1. Valid contractual relationship b/w P and 3rd party/valid bus expectancy of P
2. D's knowledge of relationship or expectancy
3. Intentional interference by D in inducing breach/termination of relationship/expectancy
4. Damages

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Vicarious liability

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Liability imposed on D because of his relationship w/ actual wrongdoer

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Respondent superior

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Employer liable for acts of his employee- neg/SL
Frolic- major deviation; outside scope.
Detour- small deviation and w/in scope.
Intentional tort is not covered by this claim, unless force is normally part of employment or used to further purpose of employer's bus

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Independent contractor

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Usually no liability unless- in respondent superior situations, unless non-delegate duty

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IC- non-delegate duty

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A duty the law does not permit to be delegated; or contractor engages in inherently dangerous activities - activity that has a high degree of risk in relation to particular surroundings, recognizable in advance as requiring special precautions.

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Joint enterprise

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Partners or joint venturers are responsible for eakchother's motors when committed in scope of partnership or joint venutre

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Joint venture

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When two or more people engage in concerted activity for a common business purpose and each person has a mutual right to control the activity.

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Joint and several liability

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When two or more D's act in concert to injure P (or acting independently) and resulting damages cannot be allocated to particular D, all D's are liable for the entirety of P's injury. P can execute against any D for entire damage.

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Contribution

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Allows D who pays more than his share to have a claim against other jointly liable parties for the excess. Apportions responsibility amongst those at fault

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Indemnity

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Shifts entire loss to another. Available: by contract, vicarious liability, under strict products liability, and in some jurisdictions where there has been identifiable difference in fault.

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Qualified privilege

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Defeated by spite, ill-will, knowledge of falsity/reckless disregard of truth and negligence.
1. Stmts in D's interest; 2. Stmts in interest of 3rd persons; 3. Stmts in interest of public; 4. Reports of pub proceeding; and 5. Fair comment opinions.

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Absolute privilege

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Not defeated by spite/knowledge of falsity.
1. Legis proceeding; 2. Judicial proceeding; 3. Other official stmts of governmental officials; 4. Equal time broadcasts; & 5. Comm b/w spouses.