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150 Cards in this Set
- Front
- Back
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A tort is an unreasonable conduct committed against a plaintiff’s body, mind, real or personal property, privacy, or reputation. Torts are done IN SIN. Please explain what IN SIN stands for. |
I – intentional harm to a person N – negligent conduct proximately causing personal injury, wrongful death, or property damage S – strict tort liability I – intentional harm to property N – tort of nuisance |
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What does nuisance mean? |
Nuisance means to unreasonably annoy another.
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What is the tort of nuisance (TON)? |
The tort of nuisance (TON) is where the defendant maintains an offensive condition or activity on his land causing an unreasonable and substantial discomfort to a person of ordinary sensibilities on neighboring land. (i.e. Loud noise, smells, bells, smoke, dust, bright lights, or vibrations.) It is an unreasonable non-trespassory invasion of the plaintiff's use and enjoyment of her land.
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Common law did not prescribe any particular conduct by the defendant and simply focused on whether the defendant's use of the land substantially and unreasonably interfered with the plaintiff's enjoyment of her land. What is different today? |
Today Restatement and most jurisdictions require an intentional, negligent, or reckless invasion. A defendant who "knowingly" causes an offensive invasion onto another's property acts "intentionally."
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What’s the difference between a private nuisance and a public nuisance? |
A private nuisance, a noise, one person, or only a few, which is contrasted with a "public nuisance" to the public in general (i.e. water pollution, air pollution, or a dump creating unreasonable smells within the community).
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What is the remedy for a public nuisance?
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The remedy for a public nuisance is government action and generally individuals lack standing to commence a nuisance suit unless the individual has suffered some injury unique and substantially different from the rest of the public. |
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Whether speaking of the torts of nuisance, trespass, or negligence, or waste, property damage is measured by either two things, explain them |
1. the decline in market value of the affected property (real or personal property) (e.g. the difference in the market value of the property immediately before the tort and immediately after) or 2. the reasonable costs to restore the property to its former condition. WHICHEVER AMOUNT IS LESS. |
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The fact that a nuisance (a cement plant or a hog farm) existed when the plaintiff moved into the neighborhood is just 1 factor in determining whether the defendant's activities on its land are unreasonable. What is the defense of “coming the nuisance”? |
This defense of "coming to the nuisance" similar to assumption of risk is asserted against a plaintiff suing for nuisance who moved into the neighborhood where the defendant's activities had ben ongoing. This makes it harder for the plaintiff's claim because her purchase price was probably reduced because it was located near the nuisance.
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What may a subsequent change in the neighborhood do? |
A subsequent change in the neighborhood may alter the equities because an activity that originally was not a nuisance can then become a nuisance because the surrounding area has substantially changed.
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What may a continuing trespass for 10 years cause? |
A continuing trespass for 10 years may ripen into EUNUCH adverse possession or into a PIGS easement by prescription, but this does not apply to a continuing nuisance. However, the NY 3 year s/l (A SOFT RAIN) limits the plaintiff's damages recovery to 3 years preceding commencement of the plaintiff's nuisance action.
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T or F: Passive unsightliness alone IS a nuisance. |
False. Passive unsightliness alone IS NOT a nuisance.
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When does a nuisance not arise? |
A nuisance does not arise from a refusal to alter a natural condition (created by nature). (i.e. a failing to cut weeds, spray for insects, or to remedy a beaver's dam).
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What must the plaintiff have in order to sue for TON? |
In order to sue for TON, the plaintiff must have some interest in the adversely affected realty. (i.e. a fee interest, a life estate, an adverse possessor, a tenant, or a MBE family member). However, employees or guests cannot sue for nuisance because they lack a sufficient interest in the realty. However, NY family members lack standing to sue for TON.
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There are 3 possible remedies for the tort of nuisance, explain them. |
1. Injunction where the court will balance the equities by using the comparative hardship test, but the plaintiff can also collect money damages up to the date the injunction is granted. Alternatively, if a permanent nuisance is allowed to continue, then the court can award the plaintiff money damages for the value of the reduction in the value of her land. 2. Self-help, but it exposes that person seeking to abate the nuisance to possible liability for trespass and property damage. 3. Money damages to compensate the plaintiff for the loss in value to the property plus any discomfort flowing from the nuisance such as illness, discomfort, or inconvenience to the plaintiff and the plaintiff's family. |
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Tortious conduct makes you SING. What does SING stand for? |
S - strict tort liability I - intentional tortious conduct N - negligent conduct and G - gross negligence (aka reckless conduct) |
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What is reckless conduct? |
Reckless conduct is greater risk-taking than ordinary negligence. It is activity intentionally performed with a conscience indifference to known or obvious risks of harm to others. With reckless conduct, the danger ceases to be a "foreseeable risk" (negligence) and becomes "highly likely to happen". Reckless conduct and gross negligence are used interchangeably. It involves a state of mind that is not present in negligent. Usually speeding is ordinary negligence, but speeding on a crowded street or while intoxicated is reckless conduct. |
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If a defendant's conduct is reckless, then 6 rules apply, what are they? |
1. CPLR Article 16's legislative limitation on a Plaintiff's right to assert joint and several liability against multiple co-defendants for non-economic losses does not apply to a "reckless" co-defendant even though he was 50% or less responsible for the plaintiff's injuries. Notwithstanding Article 16's limitation, the reckless defendant remains "fully jointly" liable for 100% of all of the plaintiff's damages. (ARM WIN). 2. A reckless driver does not get the benefit of a guest statute (LARGE CD). 3. An injured trespasser can sue the possessor of land for a possessor's disregard for the trespasser's safety. 4. Drivers of NY hazard or public vehicles (snow plows, tow trucks, or street sweepers) engaged in highway repair construction or maintenance are immune from mere negligence claims and are liable only if their conduct was reckless. The injured plaintiff must prove that the risk was so great under the circumstances that it was “highly probable” that an injury would result to plaintiff from the defendant’s conduct. NYAA pg. 775. 5. The driver of a NY emergency vehicle involved in an emergency is exempt from certain rules of the road, which if violated will not give rise to negligence claims and liability arises only if the injured plaintiff can prove that the driver's conduct was reckless. 6. Punitive damages may be awarded for reckless or intentional conduct that the court finds egregious. |
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How and when are punitive damages awarded and not awarded? |
PDs are not awarded to compensate a plaintiff, but rather to punish the defendant and to deter others in the future. They are awarded not simply because the defendant's tort was fraudulent, intentional, or reckless, but because it was quasi criminal, malicious, or outrageous. For example, a vicious battery, intentional infliction of emotional harm, false imprisonment, or a spiteful defamation. PDs are awarded where a defendant intended to actually harm the plaintiff or where the defendant was reckless or was intentionally indifferent to the rights of the plaintiff. |
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Has a PD award been sustained in NY? |
A PD award has never been sustained in NY on a negligence or medmal case.
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Who are immune from punitive damages? |
The state and its municipalities are immune from punitive damages.
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What’s a DUD? |
PDs are imposed on a manufacturer who for years was aware that its product was a DUD (defective and unreasonably dangerous), but continued to produce it.
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What does due process prohibit? |
Due process prohibits a jury from punishing a defendant for injuries caused to others who are not named in the pending lawsuit. However, the jury may consider injuries to others to determine whether the defendant's conduct was extraordinarily reprehensible.
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What does due process require? |
Due process requires a judicial review of a jury's PD award because a grossly excessive award is a due process violation. Under the "proportionality theory", the ratio of PDs to compensatory damages should almost never exceed single digits and in many cases should not exceed compensatory damages. 4x the amount of compensatory damages may be close to the line of constitutional impropriety unless there existed extremely egregious reprehensible conduct.
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Is there separate cause of action in NY and what does it involve? |
In NY, there is no separate cause of action for punitive damages. A defendant should simply move for a (3211(a)(7)) motion to dismiss for failure to state a cause of action. because PDs are simply requested in the addendum clause at the end of the complaint.
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Can an attorney charge a contingent fee in a personal injury case? |
Yes, although they are prohibited an unethical in matrimonial actions or in criminal cases. They are permitted in all other cases, but the detailed fee arrangement "shall" be in a writing signed by the client. It shall then be filed with the office of court administration within 30 days setting forth who referred the case to the lawyer and the percentage of the attorney's fee and how that fee is to be computed. Failure to do so may result in limiting the attorney's fee to quantum meruit.
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May a lawyer solicit an injured accident victim?
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Face to face or live telephone solicitation is prohibited. Mail or email solicitation is permitted, but out of respect for the victim's privacy, a lawyer must now wait 30 days after the date of injury to solicit personal injury victims by mail or email.
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Can a lawyer charge a non-refundable retainer fee when initially accepting a client's case? |
No, it's unethical because such an arrangement interferes with a client's right to fire the lawyer at any time.
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May a lawyer pay a small sum to a neighbor as a gratuity who is a nurse at the local hospital for referring clients to the lawyer? |
No, a lawyer shall not give anything of value for referral of business to the lawyer.
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How long does defamation have? |
Defamation has a 1 year s/l. |
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What makes up defamation? |
Defamation is made up of the twin torts of libel and slander. It is an attack upon the plaintiff's character and reputation by a defendant's false statement of fact published by a 3rd person that holds the plaintiff up to ridicule, contempt, hatred, or disgrace. This tort cannot be committed against someone who is dead. Corporations, partnerships, or LLCs can be defamed. Defamatory statements do not impose strict tort liability. Thus, the statement must have been intentionally, recklessly, or negligently communicated ("published") to a 3rd party (e.g. someone other than the defamed plaintiff).
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What does a 3rd person who hears a defamation have to do?
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A 3rd person who hears or reads the defamation does not have to believe it. |
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What happens to a person who repeats the defamation? |
A person who repeats the defamation is liable even though the repeater prefaced her statement that she did not believe it.
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In order to plead a prima facie defamation claim in NY, the specific words must be pleaded in detail (e.g. what was said, when, where, and to whom the words were spoken.) It is defamation if the words spoken are in a foreign language if the 3rd person who heard this statement understood that language. Is defamation privileged if it is placed in a will? |
No.
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Who is slander addressed to? |
Slander is addressed to the ear and libel is addressed to the eye. |
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What must happen to establish a slander claim? |
To establish a slander claim, an economic loss must be pleaded in the complaint and proven at the trial. An exception is "slander per se" statements (CLAMS) because CLAMS statements are so patently damaging that they are treated just like libel statements where special damages are presumed and an economic loss does not have to be pleaded or proven.
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What does CLAMS stand for?
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C - falsely accusing the plaintiff of committing a serious crime. L - a false statement that the plaintiff currently has a loathsome communicable disease. (e.g. a sexually communicable disease) A - false statements that specifically reflect adversely on P's ability in his TPB (trade, profession, or business). M - falsely accusing the plaintiff of moral turpitude (i.e. dishonestly, theft, or deceit). For example, falsely accusing the plaintiff of cheating on an exam or plagiarizing a law school paper. S - a false statement of serious sexual misconduct. |
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What is libel? |
Libel is a false unprivileged publication of a statement of fact made in writing, email, or a picture, a cartoon, or on the internet. |
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Proving libel damages is easier than for slander because the defamatory consequences are more severe. When defamation is put in print, it is preserved for a longer period of time. Thus, no economic damages have to be established. They are what? |
They are presumed.
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For the 1 year s/l, NY adheres to the what publication rule? |
To the 1 publication rule permitting a single claim for libel contained in books, newspapers, websites, or other mass publications
However, if the original publication is subsequently put in paperback addition, then a new 1 year s/l arises for that publication. Defamation (libel or slander) is absolutely privileged even if it was motivated by common law malice (spite, ill will, hatred, or meanness) under the following JET LAG (disjunctive) privileges. |
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What does JET LAG stand for?
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J - defamatory statements made in judicial proceedings by judges, jurors, witnesses, parties, or lawyers, in letters, pleadings, depositions, or trial testimony. However, the statement must be relevant to some issue in the litigation. This privilege also applies to arbitration proceedings. The privilege does not protect defamatory statements made to people who are not involved in litigation (the press). E - Spouses are deemed one entity. Thus, confidential defamatory statements between spouses about the plaintiff are privileged because the element of publication to a 3rd person is lacking. However, a 3rd party's defamatory statement made to one spouse about the other spouse is not privileged. T - Truth at common law, good reputation was presumed. Thus, the defendant had the burden of proving the statement was true. Today, this does not apply to statements involving matters of public concern where the plaintiff must prove the statement's falsity. L - statements by legislatures or their aids made in legislative chamber and it extends to aids assisting the legislature. However, if they leave the chamber and hold a press conference out on the steps or the statement was made during an election speech, there is no privilege. A - administrative agency executives and all governmental executives (mayor/governor) who make defamatory statements in furtherance of their official duties. G - false complaints made to bar association grievance committees. |
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A defamatory statement has a qualified privilege under LIP, but the privilege is lost if the plaintiff can prove the defamatory statement was made with what? |
1. common law malice or 2. constitutional malice, which involves a high degree of awareness of the statement's probable falsity.
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Malice is a question of law for the court and not the jury. What does LIP stand for? |
L - lower officials in the government or in administrative agencies. I - (frequently tested on MBE) false statements from one person to another concerning a subject in which both parties have a common interest in the subject matter of the statement. P - defamatory statements to the police or the district attorney about alleged criminal activity of the plaintiff. |
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What does SLAPP stand for and involve? |
SLAPP (Strategic Lawsuits Against Public Participants) Defamation Suits Against Public Participants Involved in a Controversial Matter.
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In NY to prevent retaliatory defamation suits against citizens who publicly oppose applications for government permits (zoning), the defamed plaintiff must do what? |
Prove by clear and convincing evidence, that the citizens made the statements with knowledge of their falsity or with a reckless disregard of whether the statement was true or false (constitutional malice). Such defamation suits usually are retaliatory in nature to punish or silence opposition for the government permit or to discourage future government opposition to activity.
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If the plaintiff's SLAPP defamation suit is not successful, then the defendant can recover what? |
Attorney's fees and can seek punitive damages. If the defamation suit was commenced with a retaliatory intent to harass, intimidate, or punish a citizen's exercise of free speech.
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Prior to Sullivan v. NY Times, 1st Amendment protection did not extend to defamatory statements. Thus, a defamation defendant was liable in tort unless the false statement of fact was made with an absolute (JET LAG) or qualified (LIP) privilege. Sullivan gave defamatory statements what? And entails what? |
Some 1st Amendment protection. If the defamed person was a "public official" and the statement related to her official conduct.
The 1st Amendment's freedom of speech and freedom of the press protect those defendants who defame a public official unless the defamed official can prove by clear and convincing evidence not only that the factual statement was false (the plaintiff has the burden), but that the defendant either knew it was false or had serious doubts about its truth, but proceeded to publish it with a reckless disregard of its probable falsity. This is called "actual malice" (aka constitutional malice). (i.e. If a newspaper editor thought the statement was true, but published it negligently without investigating its accuracy, then the public official would lose in a defamation suit since he would have to prove more than negligence.) |
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The reckless standard is not measured by what? |
The reckless standard is not measured objectively by whether a reasonable publisher would have published it, but rather it is a subjective test requiring the plaintiff to prove the defendant actually had serious doubts about its truth or possessed a high degree of awareness of its probable falsity. Thus, if a defendant truly believed all the false things that she said about the public figure, there is no malice. Thus, there is no claim.
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The court has extended 1st Amendment protection to where? |
The court has extended 1st Amendment protection beyond public officials to defamation of "public figures" whose name is a household word.
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What happens for defamation of private people who have voluntarily and affirmatively thrust themselves into the public limelight of a single public controversy? |
The Supreme Court has held that states should be given wide latitude in designing a tort remedy for these defamed momentary public figures provided states do not impose strict tort liability for defamation.
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A majority of states (MBE) have adopted a mere negligence standard. This means what? |
Thus, if by the exercise of reasonable care, the defendant should have discovered the statement was false, then the private individual can recover, but NY requires a higher standard because it is a pro-1st Amendment free speech state. It requires the defamed plaintiff to prove that the defendant acted in a grossly irresponsible manner.
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Regardless of what standard a state adopts, a momentary public figure can recover what? |
Only for actual damages that were pleaded and proven at the trial (no presumed damages) and the plaintiff cannot recover punitive damages unless the plaintiff can establish the Sullivan standard of actual malice.
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What is strict tort liability? |
Strict tort liability is imposed even for non-negligent or unintended injury to a plaintiff or the plaintiff's property. Here, there is no need to establish "intent" or "negligence" and the plaintiff only has to establish that the injury was proximately caused by LAAWNS.
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What does the L in LAAWNS stand for?
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L - labor law (sections 240 and 241) imposing strict liability on the realty owner and general contractor for either a gravity related injury or a violation of NY’s industrial code. |
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What does the first A in LAAWNS stand for?
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A - abnormally dangerous activity (ADA) Strict tort liability is imposed on a defendant who knowingly engages in an abnormally dangerous activity that is not commonly pursued in the community, which involves a high degree of risk of serious injury where that risk cannot be eliminated by the exercise of reasonable care or utmost care. By a defendant knowingly exposing others to an abnormal risk of harm, justifies the law in imposing strict tort liability. Under the English law doctrine of Rylands v. Fletcher, a landowner was held liable for the non-negligent escape of impounded water from a constructed pond that flooded a neighbors mine. Here, liability was based on the defendant's earlier foreseeable abnormal risk that the defendant chose to bring onto his property. Today, most American courts do not impose strict tort liability for escaping dammed water and require negligence in order to recover. |
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Under the first A of LAAWNS, BODES stands for what?
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The following factors BODES well for a court finding ADA. B - its benefits to the community are outweighed by its risks of harm. O - the activity is not a common occurrence within the community. D - the degree is very high (dealing in radioactive isotopes or polonium) E - an inability to eliminate that risk through the exercise of reasonable care S - the likelihood of severe harm from the activity (i.e. the transportation, use, manufacturing, or storage of dynamite, hazardous nuclear waste, or toxic waste. Testing for rockets or radioactive vapors escaping from a nuclear power plant.) |
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Under the first A in LAAWNS strict tort liability is imposed how? |
Strict tort liability is imposed even if the harm was caused by an unexpected force of nature such as earthquakes or striking lightning striking dynamite or cutting the chain of a wild tiger. Here, nevertheless liability is nevertheless imposed.
A plaintiff may assume the risk of the non-negligent operation of an ADA, which gives rise to a defense to a strict tort liability claim. Here, NY would use comparative negligence. Strict tort liability is not avoided by hiring an independent contractor to perform it. There is a non-delegable duty that such activity be conducted without causing harm to others. |
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What does the second A in LAAWNS stand for?
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A - animals Tort law imposes strict liability on someone harboring (a) a domestic animal that she knew or should have known was vicious or (b) a wild animal. |
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Define wild animals under the second A in LAAWNS.
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(a) Wild Animals Wild animals are those which as a matter of common knowledge are ferocious or unpredictable. One who harbors a wild animal is strictly liable for personal injury or property damage proximately caused by the animal's vicious propensities. If it escapes, liability continues indefinitely until the wild animal is recaptured either by the owner or by a 3rd person. Absolute liability is imposed from injuries resulting from 1. an attack 2. fear of an attack or 3. fear by other animals who then proximately cause personal injury or property damage because of their reaction to that fear. If the wild animal is under the owner's control (it has not escaped) (circus animals or wild animals in a zoo), then liability for the reactions of humans or other animals resulting in personal injury is based on negligence and the foreseeability of harm. Strict liability is limited to the harmful results of the animal's normal dangerous propensities. Strict tort liability for animals is not imposed for the benefit of trespassers in MBE. However, negligence liability may arise (a) on the basis of how the animal was kept, (b) for failing to control the animal once the trespasser's presence was discovered or (c) if the land was frequently used by trespassers. |
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Define domestic animals under the second A in LAAWNS.
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(b) Domestic Animals Domestic animals are those customarily devoted to serving people. Tort law imposes strict liability for personal injuries caused by domestic animals if the owner knew or should have known of its vicious propensities. Vicious propensities are an animal's inclination to act in a manner that might endanger another's person or property. A dog is not necessarily entitled to one bite before strict liability is imposed. The court looks to see whether it had demonstrated vicious propensities. If not, then the animal is entitled to 1 bite of the injured plaintiff. B.G.s. Animal strict liability is imposed even though the plaintiff's injuries would not have occurred but for the unexpected 1. innocent, negligent, or reckless conduct of a 3rd person. (i.e. teasing or tormenting the animal, or letting the lion out of its cage). 2. actions of another animal or 3. the forces of nature (i.e. a tornado overturned a circus truck allowing the animals to escape. In MBE and NJ, but not in NY someone injured by a non-vicious domestic animal may assert a negligence claim based on how that animal was kept and supervised in light of its foreseeable danger to 3rd persons. Where the NY tort claim against the animal owner was not caused by the animal's aggressive behavior, but rather from its owner's negligence that turned the animal into an instrumentality of harm, then negligence liability arises against the owner. In this situation, the animal's conduct is not an issue, but rather it is the actions of the owner that turn the animal into an instrumentality of harm. Here, the dog was not the cause, but actions that turned animal into instrumentality of harm (e.g. 1. a cow in the road struck by plaintiff’s car or 2. Calling a dog across a busy road in central Park causing plaintiff on bike in injury). |
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Can a court take judicial notice that a pit bull or German Shepard has vicious propensities? |
No, the court said no, there must be proof that a domestic animal previously demonstrated vicious propensities.
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What does the W in LAAWNS stand for? |
W - worker's compensation for job related accidents imposing strict liability on employer for worker’s job related injury, but exchange for that protection, the employer or fellow employee who negligently causes worker’s injury is immune from liability for that tortious conduct. (ARM WIN and DEBTS PAID).
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What does the N in LAAWNS stand for? |
N - negligence per se
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What does the S in LAAWNS stand for?
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S - strict products liability |
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ITs consist of 2 major categories, which are what? |
1. intentional tortious conduct committed against the plaintiff's person (i.e. assault, battery, false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress). 2. Intentional tortious conduct to property (i.e. conversion, trespass, or TIC (tortious interference with a contract)). |
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Intent is what? |
"Intent" is different than negligence. It is where a defendant desires to bring about a physical or mental impact upon another's person or property.
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Whereas in DIP negligence, plaintiff’s injury is what? |
Is a necessary element of a negligence claim.
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Intent can be implied where? |
Where the consequences of the defendant's conduct were substantially certain to occur implying that the defendant intended the natural and probable consequences of his intended act.
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Is proof of damage required to establish prima facie IT? |
Proof of damages is not required to establish a prima facie IT case because economic and non-economic damages are presumed from an intentional tort. |
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What happens when 2 or more people agree to commit an intentional tort?
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When 2 or more people agree to commit an intentional tort, then in NY and MBE, there is no civil tort of conspiracy. The cause of action arises only when the tort is committed, but not where parties agree to commit a tort. |
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What will sleep walking do?
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Sleep walking will not give rise to an intentional tort claim and likewise a reflex movement, or a convulsive movement is not considered intentional tortious conduct. |
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What is a tort of assault? |
As assault is 1. an attempted battery (attempt means to try, but not to succeed) or 2. an intent to cause apprehension of an immediate battery by the defendant's threatening gesture. Here, it is the defendant's intent to frighten the plaintiff, but it requires some overt act or aggressive gesture. An assault is a mental invasion whereas a battery is physical contact with a plaintiff. An assault results in a plaintiff's apprehension of immediate harmful or offensive contact rather than the contact itself. Merely abusive, angry, or insulting language is not an assault. However, just angry words may be an assault if accompanied by circumstances that place the plaintiff in reasonable apprehension of an immediate battery. Fear is not a required element of an assault provided the plaintiff believes that she will be subjected to immediate harmful or offensive contact. The plaintiff must be aware of the assault (e.g. she cannot be unconscious or asleep). The plaintiff must experience the apprehension for her own safety and not because of a possible battery to a third person. It doesn't matter if the assault was only a joke just as long as the plaintiff experienced apprehension for her own safety. The defendant must have been in a position to immediately carry out the threat (e.g. to immediately commit the battery on the plaintiff). Thus, a threat on the telephone is not the tort of assault. Future threats or conditional threats are not assaults. (“If you don’t pay me by next Tuesday, I will break your legs.”) Essay 4, February 2011. A conditional threat can be an assault of accompanied by a display of an excessive threat of force. "I will throw this brick through your car window unless you get out of the car." Reasonable force, but not excessive force can be used by the possessor of realty to expel a trespasser. Likewise, the threat of force can be used and it is not the tort of assault. |
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What is a tort of battery? |
A defendant commits a battery when he intentionally causes harmful or offensive bodily contact with a plaintiff and accidental touching or social contact touching is not a battery. An accidental touching may be negligence. The intent required for a battery is the contact and not the intended or unintended harm to the plaintiff. |
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A battery can be either or (2 things) |
1. the defendant intentionally inflicting harmful offensive contact on the plaintiff. "Offensive" is disagreeable, disgusting, or nauseating contact that would offend a reasonable person or 2. A defendant's "assault" (an intent to cause apprehension), which set in motion a force that accidentally and unintentionally caused offensive or harmful contact with a plaintiff. |
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What occurs under the tort doctrine “extended liability”? |
Under the tort doctrine of "extended liability" (transferred intent), whenever a defendant intends to commit a battery, an assault, or false imprisonment, the defendant is liable for any of these 3 torts either to the intended victim or to others nearby regardless of whether they were foreseeable, intended, or not.
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Transferred intent in criminal law is much narrower in scope why? |
Because an intent to commit one type of crime cannot be transferred to another type of resulting crime.
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What does a battery defendant have? |
A battery defendant does not have to directly strike the plaintiff. It is enough that the defendant intentionally set in motion a force that produced the harmful or offensive results.
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What must occur to the plaintiff if transferred intent happened? |
There must be some contact with a plaintiff, his clothing, or something he is holding, but the contact can be direct or indirect (i.e. slamming a door in someone's face, snatching an object out of the plaintiff's hand, or kicking a crutch out from underneath the plaintiff).
Except for ordinary social contact, no matter how trivial the incident, a battery claim can be asserted. Unlike an assault, a plaintiff does not have to be aware of a battery. For example, kissing, slapping or fondling an unconscious or sleeping person. |
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The 2 most frequently used defenses in claims of assault or battery are what? |
1. the plaintiff consented to the touching or 2. the defense of justification where the force used was in self defense or defense of others. |
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Where does consent exist? |
There is implied consent to ordinary social contact such as tapping someone on the shoulder to move or brushing by someone in grocery store aisle. Thus, when the plaintiff participates in a sporting activity or she enters a crowded room or subway, then there arises implied consent to reasonable contact. However, if the plaintiff has indicated to the defendant that she does not want to be subjected to ordinary touching, then thereafter, such touching may be a battery. |
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What happens if consent were obtained by fraud or mistake? |
If consent to the contact was obtained by fraud or mistake, then it voids the consent, but only if the mistake went to a material (essential) aspect of the touching thereby rendering it harmful or offensive. Thus, a plaintiff's mistake must go to the nature and quality of the intended touching rending the contact harmful or offensive and the defendant must be aware of the plaintiff's mistake.
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What constitutes provoking? |
Outrageous insults provoking a defendant's immediate MBE battery do not justify the battery, but may be considered by the jury in mitigating punitive damages. However, in NY, the jury also may consider the plaintiff's provocation to mitigate compensatory damages.
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What are the rules for justification (self-defense)? |
The rules for justification are the same for tort and criminal law.
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The defense of justification is based on what? |
On the reasonable use of force that a defendant reasonably believed necessary to protect himself or to protect another from an imminent threat of assault, battery, or false imprisonment even if the defendant was mistaken. If a reasonable person in the defendant's circumstances would have believed that force was necessary, then the defendant's use of force was justified provided the force used was reasonable and not excessive.
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Self-defense also can be used to protect against another's negligent conduct, but the defendant should do what? |
Avoid inflicting harm if possible.
Self-defense is generally not available to the initial aggressor who provoked the altercation. |
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There is no justification for the use of force unless the threat of force is immediate. Thus, justification cannot be based on a threat of a future battery. When can deadly force be given? |
DEADLY FORCE can be used only to prevent another's use or threatened use of deadly force.
In a majority of states (NY and Restatement of Torts), there is a duty to retreat when faced with DEADLY force provided the defendant could do so with complete safety unless the defendant was in his own home where there is no duty to retreat. However, in a majority of states today, they have adopted “stand your ground” in which there is no duty to retreat before using deadly force. Deadly force is force that is capable of killing or causing serious injury. There is never a duty to retreat before using physical force in self-defense. |
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What happens if a defendant is justified in using force, but in doing so unintentionally injures or kills a bystander?
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If a defendant is justified in using force, but in doing so unintentionally injures or kills a bystander, that defendant's force is nevertheless privileged and the defendant will not be liable to the injured bystander unless he used the force NEGLIGENTLY, but the defendant's conduct must be determined under the circumstances of the emergency doctrine (US mnemonic). |
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In a minority of states, when protecting a 3rd person from a battery or from some other violent act, a defendant can assert justification only to the extent of what? |
That the person he aided could have justifiably used force. Thus, a person coming to the rescue of a third person steps into the 3rd person's shoes and assumes the risk that the person being aided could not have asserted the justification defense under the circumstances.
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A majority of states (NJ, NY, MBE) a defendant is allowed to use force to protect a 3rd person when? |
If it reasonably appeared necessary even though the defendant was mistaken.
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Is DEADLY FORCE for the protection of personal property or to expel a trespasser justifiable? |
It is not justifiable, but NY allows deadly physical force when there is reasonable though mistaken grounds to believe that the person that was killed was about to commit or was committing a burglary, robbery, arson, kidnapping or a forceable rape or sexual act.
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What about mistakes? |
A mistake, even a reasonable mistake in using force for the protection of personal property or real property is not a justifiable defense.
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When is the use of reasonable force justifiable when recovering stolen property? |
The use of reasonable force is justifiable to immediately recover stolen property IF DONE IN HOT PURSUIT. A demand first must be made and only reasonable force can be used. If a lapse of time occurs after the property is stolen, then the justification for the use of force lapses as well. |
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If there was a bailment and the bailee wrongfully refuses to return the chattel, then the bailor can or cannot do what? |
Cannot resort to force to reclaim the bailed property.
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When is a custodian of children (a teacher, a parent, a school bus driver, or a guardian) privileged to use reasonable force? |
To prevent a 3rd person from injuring the children or to prevent the children from injuring 3rd parties or their property.
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What is false imprisonment (FI)? |
FI is an intentional and unprivileged confinement or restraint of another against her will for any period of time. The restraint can be a lock or a threat of immediate violence to the plaintiff's person or property. It can be blocking the plaintiff's car or taking her car keys where the vehicle was the only reasonable mode to depart. Future threats are not sufficient for a false imprisonment. (i.e. "I'll call the police and have you arrested if you try to leave.") The plaintiff must 1. know of the confinement or 2. unaware of the confinement, but the plaintiff suffers actual harm because of it (i.e. hunger, thirst, or a resulting illness). For example, a sleeping child is locked in the back of a truck and suffers injury. A plaintiff must have no known (to her) reasonable avenues of escape (a subjective test). An FI invites an escape, but the plaintiff must use reasonable care in attempting to escape, but she isn’t required to subject herself to harm or liability to escape even if there was an avenue of escape (e.g. an exist tunnel with rats or raw sewage). Plaintiff doesn’t have to use it if it would offend a reasonable person’s sense of decency or dignity. |
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Is the honest mistake in the identity of the person confined justified in defense of false imprisonment?
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A mistake in the identity of the person confined or a good faith mistake that the confinement was justified is not a defense to false imprisonment. |
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Where do damages exist in FI?
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Damages are presumed in an FI. |
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The one year s/l for intentional torts doesn’t begin to run for FI until when? |
The plaintiff is released from confinement.
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What may occur to an intoxicated or deranged person? |
There is a privilege to detain an intoxicated or deranged person to prevent her from harming herself or others.
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Merchants are privileged to what? |
Merchants are privileged to detain suspected shoplifters for a reasonable time and in a reasonable manner if they have probable cause to believe the shopper is a thief. The merchant does not have to wait until the shopper attempts to leave the store, but can detain (imprison) the shopper as soon as she exercises control over the stolen goods in some manner that is inconsistent with a merchant's right.
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What is a false arrest? |
A false arrest is a false imprisonment by someone asserting legal authority to do so. The existence of probable cause to arrest is a complete defense to a false arrest claim. |
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Where are damages measured in false arrests? |
Damages are measured from the time of the false arrest to the time of the arrested person's arraignment in court where that person pleads not guilty and the charges are read to that party. Thereafter, the confinement is no longer false, but is supported by some judicial authority. Any damages thereafter (attorney's fees, lost wages, or humiliation and embarrassment) can be pursued in a claim for malicious prosecution if that claim exists.
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An arrest made with an arrest warrant is what? |
It’s privileged even though the warrant was erroneously issued by a judge (there was no probable cause) or even if the officer making the arrest arrested the wrong person provided his mistake was objectively reasonable and he exercised reasonable care to determine that the person he was arresting was the person named in the warrant.
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A Warrantless False Arrest Claim is defeated how? |
A warrantless arrest false arrest claim can be defeated by showing that there existed probable cause to arrest or where the person alleging false arrest is subsequently found guilty. If the officer unreasonably arrested the wrong person, then the privilege is waived and the officer is subject to the false arrest claim. |
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What happens if the arrested person is subsequently indicated by a grand jury? |
If the arrested person is subsequently indicted by a grand jury, this is admissible evidence of some probable cause to make the warrantless arrest. A subsequent conviction is conclusive evidence of probable cause, but evidence that the criminal charges were dismissed or that the criminal jury acquitted the arrested person is admissible in the civil case to show an absence of probable cause, but it is not conclusive on the probable cause issue.
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Is the person that calls the police or initiates the criminal complaint liable?
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A person who calls the police or initiates the criminal complaint resulting in an arrest by the police is not liable for a false arrest claim. However, if the information supplied to the police was false, then a malicious prosecution claim may arise. |
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Who may make a warrantless probable cause arrest? |
A police officer (for any offense including a traffic offense) or a private citizen (for a felony) may make a warrantless probable cause arrest for a crime that was committed or reasonably appeared to have been committed IN HIS PRESENCE (he sees it happen) and he is not relying on 3rd party hearsay that it happened.
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What must occur in order to make a warrantless arrest for a prior felony? |
To make a warrantless arrest for a prior felony (he did not see it happen and he relies on someone's hearsay statement that it did happen), then a police officer must reasonably believe (even mistakenly) 1. a felony was committed and 2. he was arresting the felon.
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What is a hearsay warrantless arrest?
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NY permits a police officer to make a (hearsay) warrantless arrest for any crime (felony or misdemeanor), but not for a petty offense based on probable cause even though the crime was not committed in the officer's presence. |
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When can a citizen’s arrest for a PRIOR felony that the citizen did not see happen occur?
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A citizen's arrest for a PRIOR felony the citizen did not see happen (he is relying on someone's hearsay that it did happen) is privileged from a false arrest claim only if in fact the felony was committed and there is reasonable belief (even mistakenly) that the citizen is arresting the felon. In NY, the person arrested must have in fact committed the felony. Otherwise the citizen making the citizen's arrest is liable for the tort of false arrest. |
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What does malicious prosecution entail?
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This involves a defendant's spiteful commencement or continuation of litigation without any probable cause to believe it can succeed and is motivated to maliciously cause harm to the prosecuted person. Just as with false arrest, the existence of probable cause to prosecute is a complete defense to the malicious prosecution claim. |
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The elements of malicious prosecution are MAT. What does MAT stand for? |
M - the defendant commenced or continued the criminal prosecution out of malice A - the absence of probable cause to believe that P could be successfully prosecuted (e.g. there is no reasonable chance of prevailing). If the criminal complaint is sustained after a preliminary felony hearing or the grand jury indicts the defendant, then the presumption of probable cause can be overcome only by showing fraud, perjury or that evidence was withheld from the court or the grand jury. A party's conviction either by a plea of guilty or a jury verdict conclusively establishes probable cause thereby defeating the tort claim. T - termination of the malicious prosecution in favor of the accused either 1. on the merits (an acquittal) or 2. a dismissal of that claim that is not inconsistent with the accused innocence. |
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What can NY minority view do with malicious prosecution? |
In NY (minority view), there can be no malicious prosecution of a civil claim that was merely commenced with a summons and complaint even though the grounds were groundless (no probable cause). NY requires a "special injury" (i.e. seizure of the plaintiff's property by the use of a LIAR provisional remedy).
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If the criminal proceeding was dismissed because 1. the defendant agreed to ACD (adjournment in contemplation of dismissal or 2. the DA advised the court that even if there was probable cause for arrest, the people backed sufficient evidence to convict the defendant. Then what would be required to defeat a malicious prosecution claim? |
These 2 dismissals would defeat a malicious prosecution claim. |
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The abuse of process tort has 3 elements, what are they? |
1. regular issued legal process either civil or criminal 2. an intent to cause harm without justification and 3. the legal process was used in a perverted manner to gain an advantage in a court proceeding (bad faith litigation tactic). |
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Abuse of process is similar to malicious prosecution - why? |
Because both torts require an improper spiteful process for using the litigation process but the tort of abuse of process does not require that the proceeding be favorably terminated for the party asserting the tort claim.
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What does or doesn’t occur from maliciously commencing a civil action?
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Maliciously commencing a civil action by filing and serving a summons and complaint does not give rise to a claim in NY for abuse of process since a summons and complaint are not considered to be the type of process capable of being abused. |
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What is Intentional Infliction of Emotional Harm (aka the tort of outrage)? |
This tort requires proof that the defendant intended to inflict serious emotional distress on the plaintiff or knew that it was substantially certain to happen and the plaintiff must suffer severe and debilitating emotional harm. Emotional harm includes all highly unpleasant mental reactions such as fright, horror, grief, shame, depression, loss of sleep, loss of sexual interest, or increased levels of anxiety. |
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How long is it governed for?
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It is governed by a 1 year s/l (A DIMPLE FIB). |
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This tort has 2 elements: SAD CEO. Define what these elements are. |
1. The defendant's intentional or reckless CEO (conduct that was extreme and outrageous). This requirement seeks to prevent trivial complaints and assures that the plaintiff's emotional injury claim is genuine. The defendant's conduct must consist of more than ethnic, racial, or religious slurs, insults, profanity, indignities, or annoyance that arise whenever tempers flare. 2. The plaintiff's emotional suffering must be SAD (severe and debilitating). A physical injury is not necessary to recover for this tort. |
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Does NY recognize the tort claim of tort of outrage? |
NY does not recognize this tort claim when it is asserted against a governmental entity or when it asserted by one spouse against the other.
NY's Court of Appeals has rejected every SAD CEO case that has gone up on appeal because it did not find the defendant's conduct was sufficiently extreme and outrageous. |
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Historically, courts have been reluctant to allow claims seeking to recover for just emotional harm that was negligently inflicted because emotional harm is easy to pretend and it is difficult to prove or disprove. A plaintiff asserting this claim must prove what? (three things) |
1. that she was within the Palsgraf "zone of danger" (zone of impact) caused by the defendant's negligent conduct (e.g. the plaintiff's safety was threatened by the defendant's negligent conduct. (A near miss). 2. A reasonable person would have been severely distressed by the defendant's negligent conduct and 3. the plaintiff suffered a physical injury as well as an emotional harm/suffering (conjunctive). A mere impact (i.e. a car bumping into the plaintiff's car) is not sufficient if the plaintiff suffers only emotional distress because tort law requires a physical manifestation of the emotional distress. On a case-by-case basis, NY and MBE allow a recovery solely for emotional injury negligently caused where there is no physical injury where there are facts sufficient to guarantee the genuineness of the plaintiff's emotional trauma. |
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Problem: P went to Dr. X who advised P that she had Herpes and vanerial disease. When P got home, Dr. X called and said 1. "Haha, it's a joke." This CEO conduct was extreme and outrageous amounting to the tort of intentional infliction of emotional distress provided P's emotional suffering was SAD. or 2. "I'm sorry, I made a mistake," which would be the negligent infliction of emotional distress which usually requires a physical injury, but NY's Appellate Division held that even without a physical injury, these facts assured that the emotional suffering was sufficiently genuine allowing P to recover without a physical injury. NYAA pg. 807. When P went home and told H, her spouse what Dr. X had said, H thought that P was being unfaithful and beat her up (a battery). Can P sue Dr. X for H's beatings? |
No because a negligent tortfeasor is not liable for the criminal acts of 3rd persons that were made possible by the negligent acts unless the 3rd party's conduct was foreseeable at the time Dr. X negligently told P of her alleged condition.
A plaintiff was negligently exposed to large quantities of asbestos while working on a federal government project. Even though plaintiff had no signs or asbestosis, he alleged emotional suffering because of his fear of developing the disease. The US Supreme Court affirmed dismissal of his claim since the emotional injuries were not accompanied by a physical injury. |
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What is covered in regards to the bystanders emotional suffering? |
Mental distress suffered by a bystander who was present and witnessed an INTENTIONAL TORT (a battery) committed on the victim can recover if the tortious defendant was aware of the bystander's presence so that the mental impact on the bystander was foreseeable. Thus, when a defendant acts intentionally, he intends not only the desired results, but also those results he knows are substantially certain to happen. However, bystanders who are not immediate family members cannot recover for emotional distress unless accompanied by a physical injury. |
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Can parents of sexually abused children assert the claim of bystanders emotional suffering tort?
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Parents of a sexually abused child cannot assert this tort because they were not present at the time of the intentional tort. |
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In NY can bystanders recover from emotional injury from witnessing a victim’s injury?
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In NY, bystanders cannot recover for emotional injury from witnessing a victim's injury NEGLIGENTLY inflicted unless the defendant's negligence also threatened harm to the bystander. (e.g. The plaintiff was also involved in the car accident or was within the zone of danger and thus the defendant owed a DIP duty to that plaintiff and (a) P suffered some physical harm or (b) P was an immediate member of the injured person's family (not an aunt, uncle, step-father, or fiancé (NJ allows a fiancé).) Most states (NJ), but not NY have replaced the zone of danger requirement for family members by allowing a close family member to recover purely for emotional harm provided the family member perceived the event contemporaneously even though she was not within the zone of danger. |
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What is conversion? |
Conversion is an intentional tort committed against another's personal property. Realty cannot be converted. Conversion substantially interferes with another's use, possession, or ownership of personal property. (i.e. where defendant intentionally destroyed the property or stole it). A mistake as to who owned the property is not a defense in a conversion action, but it is a defense to the crime of larceny. |
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What happens when conversion occurs?
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When conversion occurs, a plaintiff cannot be compelled to take back the stolen goods and is entitled to sue and recover for the market value of the chattel on the date of the conversion where its value fluctuates (i.e. stolen commodities or stolen shares of stock), then P can recover the highest value between the date of conversion and the date of trial. NY only allows recovery for its highest value between the conversion date and a reasonable time to replace the stolen chattel (to cover). CID'S WAR. Alternatively, a plaintiff may commence a replevin action to recover back the stolen chattel where she can seek an order to seize the chattel pending final judgment, but under CPLR Article 71, she must post a bond for 2x the value of the chattel. Where there is an intention unauthorized physical possession and interference with the plaintiff's possessory interest by the defendant briefly moving, borrowing, or using another's personal property without permission, this is not the tort of conversion, but is a "trespass to chattel", which is a brief dominion and control coupled with a good a faith (no intent to steal). |
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What occurs under trespass to chattel?
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Under trespass to chattel, liability for conversion damages arises if that property is substantially damaged while in D's possession regardless of D's fault. There then arises a forced sale of the chattel. If a bailee who was authorized to move plaintiff’s car in a parking lot decides to take the car out for a test run, this would be a trespass to chattel. But, if the car was damaged through no fault of the bailee on the test run, then the bailee is liable for conversion damages. A person is privileged to commit an act, which otherwise would be trespass to chattel in order to protect himself or her property or to protect a 3rd person, but is subject to conversion if the chattel is substantially harmed. If possession of the chattel was originally lawful (it was borrowed with permission), then conversion occurs when the one possessing the property refuses to return it on a demand or sooner if he disposes of the property prior to a demand. If a bailee loses bailed goods or drops it on the floor and it smashes, is B liable for the tort of conversion? No because he did not intentionally assert wrongful dominion over the chattel, but instead failed to exercise reasonable care, which is negligence and not conversion. However, if that bailee mistakenly sells the property to a 3rd person, then he has intentionally exercised dominion (he desired to transfer title) that was inconsistent with the owner's property right and a tort of conversion arises. Mistake is no defense to a conversion action. See entrusting rule, lecture 12 where goods are entrusted to a merchant who deals in goods of that kind and sells those goods to a customer in the ordinary course of business. |
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Problem: A forest fire was raging near D's oceanfront property. The police advised D that he did not have to leave his home because they did not believe the fire would reach his home. However, they were wrong and D had to escape, and took his neighbor's boat, which capsized and did substantial damage ($7,000) to the $20,000 vessel. How much is D liable for? |
$20,000.
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What is the tort of trespass? |
A trespass is a physical entry onto another's land without justification, a privilege, or the owner's express or implied permission (express or implied). An entry can be either intentional, reckless, or negligent. |
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An MBE possessor owes no duty (but in NY she does) of reasonable care to a trespasser to what 2 things? |
1. inspect, warn, or to keep the land in a reasonably safe condition or 2. carry on activities so as not to endanger a trespasser |
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What is the MBE duty to a known trespasser? |
The MBE duty to a known trespasser is to refrain from inflicting wanton injury as well as to warn the trespasser of latent dangerous conditions on the land if the trespasser was unlikely to appreciate the danger. While conducting activities on her land, the landowner can ignore the possibility of a trespasser coming onto the land. For example, O had a large piece of wooded land. O knew people occasionally trespassed during the hunting season. O placed traps in his woods to kill rats. T, a trespasser, while hunting on O's land had his foot hurt by O's trap. O is not liable.
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What is the legal remedy against someone’s repeated trespass onto land?
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The legal remedy against someone's repeated trespass onto land is to sue for damages. If that trespasser persists in wrongfully entering P's land, the remedy is an injunction. |
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If the defendant's original entry was with P's express or implied consent, but P revoked the consent, then if D does not promptly depart, then what arises? |
The tort of trespass arises.
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What is “extended liability”? |
"Extended liability" is imposed on trespassers for their unintended, even non-negligent property damage for personal injury even though this same liability would not be imposed on a non-trespasser.
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Is an honest mistake to whose land they were entering a defense? |
An honest good faith mistake as to whose land the defendant thought he was entering is not a defense if D intended to enter that land.
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At common law, even though a trespasser inflicted no damage to the property (a surveyor or a hiker) mistakenly entered P's land or where D's car negligently went off the road onto the plaintiff's land, nominal damages could be awarded. However, the modern MBE view is that nominal damages are available, but only for an intentional (even mistaken) trespass. Thus, under the modern view, in order to plead a prima facie trespass claim, a plaintiff must allege damages in the complaint for an RAN trespass. What does RAN stand for? |
R - reckless A - as a result of an abnormally dangerous activity or N - negligently entered the plaintiff's land or negligently cause an object or 3rd person to enter P's land. Thus, damages must be pleaded and proven to recover against an RAN trespasser. |
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Is a non-negligent unintentional entry onto P's land trespassing? |
Is not a trespass even if the entry causes damage to the property unless D was engaging in an abnormally dangerous activity.
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When can “reasonable” force be used to expel a trespasser? |
"Reasonable" force can be used to expel a trespasser and because the force is privileged, it does not give rise to the tort of battery. However, this privilege does not allow the landowner to eject someone from the land if it would place the trespasser in unreasonable danger. If the person entering the land had a privilege to do so, but the owner used physical force to expel her, then that force is not privileged and a battery arises. There is a privilege (no trespass) to enter another's property for a private necessity to "SIT" on the land to protect persons or property from SIT, but liability is imposed for the privileged entry for any resulting actual damage on the land because of a serious and immediate threat outside the property. If the chattel entered another's land with the consent of or through the fault of the chattel owner, there is no privilege to enter the land, and the sole remedy is to resort to legal process (replevin) to reclaim the property. |
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What is Tortious Interference with a Contract (TIC)? |
Someone who has knowledge of an existing executory contract and who intentionally interferes with a contract by inducing one of the parties to breach it, then she is liable to the other contracting party for the resulting consequential damages. |
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There is no TIC liability for inducing the breach of what 2 things? |
1. an illegal contract or 2. a contract where the person urging the breach of contract had either an economic interest or a fiduciary relationship with the breaching party unless that conduct was motivated by fraud or illegality (i.e. a shareholder or a director urging the corporation to breach an executory contract or a lawyer advising a client to breach a contract).
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Who can be sued for TIC?
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Only a KID can be sued for TIC. |
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What does KID stand for?
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K - the defendant had knowledge of P's contract I - D intentionally induced its breach. In NY a simultaneous breach of contract claim must arise for a TIC claim, but in MBE, a TIC claim arises even for avoidable contract (a contract where there was no required signed writing to satisfy the S/F) or in a contract at will that was terminable by either party. D - damages resulting from the breach. |
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Tortious interference of a contract tort liability is imposed how? |
Only against the non-contracting KID party. The contracting party who breached the contract is not liable in tort, but only liable for breach of contract. A plaintiff cannot recover twice for same damages.
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Invasion of Privacy (IP) involves what? |
IP involves a person's right to be left alone from highly offensive invasions of privacy. It requires conduct that a reasonable person would consider outrageous and damages are assumed. |
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An MBE IP can occur in 1 of 4 ways: CLIP. What does the C from CLIP stand for? |
C - The commercial misappropriation of the plaintiff's name, likeness, or voice without the plaintiff's written permission when used for advertising purposes where the defendant takes commercial advantage of another person's reputation, prestige, or other value associated with a plaintiff's name or likeness without paying for it. This is referred to as “the right to publicity”. By statute, this is the only IP claim that NY recognizes, but in NY and a majority of states, this right terminates on the celebrity's death (but NJ recognizes a claim after death). Only 16 states allow the invasion of privacy claim to be asserted after celebrity’s death. There are 2 1st Amendment exceptions applied for news publications. 1. The "fair use" to illustrate a newsworthy event even if the plaintiff's photograph is used in a fictionalized way. Problem: P performed as a human cannonball at a state fair. That night, a local TV station broadcast his entire 15 second act. This nonconsensual broadcast of the entire act violated P's commercial right of publicity. 2. A right to reprint the plaintiff's photograph that previously appeared in that publication to illustrate the publication's newsworthy content even though it was placed in an advertisement and had a profit motive. |
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An MBE IP can occur in 1 of 4 ways: CLIP. What does the L from CLIP stand for?
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L - publicity placing a plaintiff in a highly offensive false light before the public. Many states reject this tort claim since it duplicates the tort of defamation. To be liable for this tort, the defendant must have had knowledge of the false light or must have acted in a reckless disregard of its falsity and false light. |
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An MBE IP can occur in 1 of 4 ways: CLIP. What does the I from CLIP stand for?
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I - An intentional highly offensive intrusion into the plaintiff's "seclusion or solitude" of privacy such as 1. repeated phone calls by a debt collector 2. repeated entry into the plaintiff's home or hospital room 3. illegal wire tapping 4. opening the plaintiff's mail or 5. inserting a peephole into a motel room or restroom. NY now recognizes video voyeurism as a civil claim and criminal claim into a location where there is a reasonable expectation of privacy (i.e. a bedroom, a changing room, a bathroom, or in a hotel, motel, or holiday inn). |
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An MBE IP can occur in 1 of 4 ways: CLIP. What does the P from CLIP stand for?
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P - Public disclosure of highly offensive (deeply shocking) private facts involving a plaintiff. The disclosure must be made to many people and not just a few and it must concern the plaintiff's private life, which facts are not contained in a public record and are not newsworthy and of any concern to the public. |
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Prima Facie Tort (PFT) has 5 elements, what are they? |
3. D's sole intent was to maliciously inflict harm on the plaintiff 4. P must have suffered economic loss 5. There was no excuse or justification for D's conduct 6. D's intentional acts were otherwise lawful and 7. The injured plaintiff has no other available tort remedy. |
