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2. Strict Liability: liability without fault, even if all possible care is used
a. Animals-possessors of animals are SL for harm caused by the trespass of their
animal’s on other’s property. Exception is dogs & cats.
b. Coase theorem: if assignments were clear and parties could costlessly
negotiate, the efficient result would occur no matter how the law assigned rights
and responsibility for damages.
c. Domesticated Animals: possessor is not SL for harm (other than for
trespass) UNLESS possessor knew the animal had a dangerous propensity (if the
owner knew or should have know—actual knowledge isn’t required) and that
dangerous propensity was the cause of the harm.
d. Wild Animals (not customarily domesticated in the region): possessors are SL
for all harm done by the animal as a result of the dangerous characteristic of the
animal
e. Abnormally Dangerous Activities: one who carries on an abnormally
dangerous activity is subject to SL for harm to the person, land or chattels of
another resulting from the activity, even if he exercised utmost care to prevent
the injury.
f. SL is limited to the kind of harm. Contributory negligence by P will
not bar SL recover.
g. Assumption of risk is a defense to SL if P knowingly and
voluntarily subjects herself to danger
h. Factors to consider: high dress of risk, likelihood harm will be great,
inability to eliminate risk using due care, activity is not a matter of common
usage, activity is inappropriate in the locality, social value of the activity
i. Typical examples: nuclear reactor, use or storage of explosives, crop
dusting, airplane accidents
4. Nuisance: favored by cts b/c it’s flexible. You don’t necessarily have the
right to use your property however you want b/c your neighbor also has
rights (balancing act)
a. Private: some thing or activity that interferes substantially and unreasonably
with a possessor’s use and enjoyment of his land. Between two private parties.
i. Examples: usually the interference is b/c of a non-trespassory invasion
(smells, light, smoke, dust, noise, pollution)
ii. P must show: liability producing conduct (intentional interference with
P’s rights, negligence, or abnormally dangerous activy or other conduct
giving rise to strict liability—it’s easy to show intent) resulting in
interference with the use and enjoyment of P’s land that is substantial
(more than a trifle) and unreasonable.
iii. Factors to consider in balancing interests of neighbors : the
amount of harm caused by the activity, the capacity of each party to bear
the harm and shift the loss, the nature of the clashing land uses, the
nature of the locality, which activity has priority in time, unreasonable
invasion, unlawful or unreasonable manner of operating business
iv. Remedies: temporary damages, permanent damages, injunction
(conduct has to be intentional and continuing)
b. Public: a “catch-all” low grade criminal offense that involves interference with a
common public right. There’s a criminal violation and authorities attempt to get
civil relief for the harm caused. Can overlap with private nuisance.
i. Examples of public rights protected from nuisances: public
health (pollution of water supply, mararial swamp), public safety (vicious
dog), public morals (crack house, gambling), public peace, public
comfort/convenience (blocking a public street, smoke, dust vibrations),
maintenance of improper business (unlicensed bar)
ii. Factors: Cts look at the type of neighborhood, the frequency/duration,
the degree of damage, the social value of the activity
iii. Enforced by the DA
iv. Defenses: contributory negligence (if claim is based on D’s negligent
maintenance of nuisance); assumption of risk
5. Defamation: a cause of action remedy for wrongful injury to a person’s
reputation
a. CL Elements: A defamatory statement concerning the P; must be of
and concerning P; publication of the statement to a 3rd party (at
least 1 person) who could understand the defamatory meaning;
fault; slander and pecuniary harm. Can’t defame the dead, even if
its affecting your current situation. Trust is a complete defense
under CL.
i. Must be of and concerning P: satisfied when P is identified by name;
or reasonably understood to be talking about P (Can be inferred). The
general rule concerning group libel is that disparaging words about a large
group or class of persons doesn’t give rise to a libel action by any
individual members of the group.
ii. Publication of statement to 3rd party: P has to show that the
meaning of the statement was understood by 3rd party it was published to.
There is no liability if the publication occurred by mistake and was w/o
fault on D’s party (ie: P was eavesdropping and heard something, D isn’t
liable). If P repeats a defamatory statement made by D to P alone, D is
usually not responsible for this publication (exception: if D should expect
that P will have to repeat the defamation—ex when a discharged EE has to
explain why he is fired)
1. Print publication/periodicals (US Rule)- one rule of
publication of a magazine = one cause of action. Only one cause of
action for an article, statement of broadcast. But you can bring suit
in any state. D usually has to be given notice to remove a
defamatory statement along w/sufficient control to be able to
remove the statement.
b. Libel: defamation published by means of the printed word (ie: statement
contained in a written note passed to one person who reads it and destroys it is
still libel). P is not required to prove actual damages; damages were presumed.
i. Libel per se- printed defamatory statement attributable to P prima
facie
ii. Libel per quod: document itself is not clearly defamatory; need
something else
c. Slander: reserved for defamation published by means of the spoken word or
transitory gestures; typically communication is limited to a number of people (ie:
statement shouted in a crowded auditorium). P was required to prove special
pecuniary damages unless it was “slander per se” (would injury P in his trade; P
has loathsome disease; accuse P of crime w/serious punishment; accuse of
serious sexual misconduct)
d. Constitutional Limits: deals with the statute of P as a public or
private figure
i. Public official: must prove the statement was made with “Actual
malice”. Presumed or punitive damages awarded.
1. General Purpose Public Figures: of such pervasive fame
or notoriety that the person is a public figure in all contexts (ie:
movies states, celebrities, Oprah, Michael Jordan)
2. Limited Purpose Public Figures: only with respect to a
particular public controversy; not every aspect of their life lends
them to be treated as a public figure (whistle blower, anti war
protestor).
ii. Private official: only have to show negligence. No liability if based only
on negligence (So no damages)
e. Malice
i. Actual Malice: making a statement knowing it was false; making a
statement with reckless disregard for whether or not it is false
(recklessness requires more than lack of care; recklessness requires proof
that the publisher in fact entertained serious doubts about the truth of the
statement); must be show by clear and convincing evidence.
1. A deliberate misquotation is in some sense false and meets this
requirement if it materially changes the meaning of the quoted
statement.
f. Opinions get full 1st amdt protection. No separate privilege exists for
opinions (its protected by other constitutional limitations). Facts don’t get 1st
amdt protection if they are false.
6. Privacy Torts: four types: intrusion, appropriation, public disclosure,
false elements
a. Intrusion: invasion of a person’s private space or affairs. P may sue if his
solitude is intruded upon, and this intrusion would be highly offensive to a
reasonable person
i. Elements: some sort of invasion into a private area of P’s life. The
intrusion must be highly offensive to a reasonable person.
ii. Distinctions: not necessary that it be published to a 3rd person. The tort
is complete as soon as the offensive intrusion takes place. Those who get
the published information are not liable for the intrusion (if you just get the
tape from the intrusion, you aren’t liable for the intrusion itself). There
has to be a private place involved (if D takes P’s picture in a public place,
this is usually not enough)
iii. Examples: spying, eavesdropping, snooping, breaking and entering into
a person’s home or office
b. Appropriation: involves the use of P’s name, likeness, or identity for the
user’s (financial) benefit. Based on the idea that a person’s identify may have a
distinct value that should be protected
i. Elements: D makes use of P’s likeness or identity for D’s own use or
benefit
c. Public Disclosure: assume the matters published are true. The complaint is
that what was disclosed was private and had no reason being published and the
disclosure of them is SO highly offensive that P should have a COA to recover
damages for mental anguish.
i. Distinctions: must be publicized to more than one person (widespread
disclosure is required)
ii. Elements: D must publicize some private information about the P; such
disclosure must be highly offensive to a reasonable person and the
information disclosed must not be a matter of legitimate public concern.
iii. Concerns w/the 1st amdt b/c of the public’s right to know (if the facts
involved a matter a matter of legitimate concern to the public, the const
protects the right to disclose them)
d. False elements: portrays the P as something that the P is not (not
recognized in all states). It protects a person’s privacy interest in not being
portrayed to the public in an objectionable false position.
i. Elements: D must publicize some matter that places P in a false light;
the false light must be highly offensive to a reasonable person’ D must
have KNOWLEDGE of the falsity of the position that P is placed –OR- must
act in reckless disregard of the falsity
ii. Distinctions: matter doesn’t have to be defamatory as long as it places
the P in a highly offensive false light.
7. Civil Rights:
a. Common Law (R2T § 865)- one who by a consciously wrongful act
intentionally deprives another of the right to vote in a public election or to hold
public office or seriously interferes with either of these rights is subject to liability
to the other.
b. Statute- 42 USC § 1983- Every person acting under “color” of state law who
deprives another of rights, privileges and immunities secured by the US Const
and Fed law is liable to the party injured.
i. Elements:
1. Every person- includes individuals; city, county and other local
govtal entitles if the deprivation is caused by a custom or policy of
the governmental entity.
2. Under “color” of state law- doesn’t have to be an action
sanction or permitted by state law. Does include actions that
violate state law
ii. State of Mind requirements: no state of mind requirement but it
may be NECESSARY in order to constitute a violation of a person’s
constitutional rights.
iii. Parratt-Daniels-Davidson line: shows the court trying to define the
scope of the procedural due process right. There are two issues to
determine: (1) if P has any right to a hearing at all in the particular
situation; (2) if a right does exist, will a hearing taking place after the
injury be sufficient
iv. Bivens Actions: damages may be obtained for injuries following a
violating of the 14th amdt by fed officials. When the rights violation is
accomplished by a fed official, § 1983 may not apply. Limitations are
when the special factors may counsel hesitation
v. Municipal Liability: municipalities may be sued under § 1983 but they
are only liable IF the deprivation of fed rts was caused by an official policy
of custom. Official policy is made by the policymaker designated by state
law: “only where a failure to train in a relevant respect demonstrates
“deliberate indifference” to the rts of others a such a shortcoming be
properly thought of as a city “policy of custom” actionable under § 1983.
vi. Immunities (for §1983 and Bivens actions):
1. Complete immunity: executive branch officials, judges and
prosecutors acting in their job, states are immune from § 1983
actions.
2. Qualified immunity: police officers (civilly liable if no reasonably
competent officer would have acted is such”, if an official violated a
clearly established right (objective test)
vii. Injury and Damages: deprivation of a constitutional right does not
entitle P to damages; P must prove actual injury resulting from
deprivation; no presumed damages; punitive damages allowed but not
against govt entities
viii. Structural Injunctions: ct orders that fundamentally restructure a
state institution that has been found to be engaging in systematic
violations of constitutional rights. P had to show they are in fact suffering
a deprivation of protected rights and the they have a need for the
injunction (by showing a likelihood of future harm)
8. Misuse of Legal Process: includes malicious prosecution, wrongful civil
proceedings and abuse of process
a. Malicious Prosecution: Institution of criminal proceedings, lack of
probable cause to initial the proceedings, malice, termination of the proceedings
in favor of the accused, damages
i. Elements:
1. Institution of criminal proceedings- D must be actively
involved; any formal institution of criminal proceeds satisfies this
element
2. Lack of probable cause to initial the proceedings- D must
have lacked reasonable or honest belief in the truth of the charge
3. Malice- D must have improve motive for bringing the action.
Three types: actual malice, legal malice and malice in law. May be
inferred from D’s conduct.
4. Termination of the proceedings in favor of the accused-
the criminal proceeding can’t be revived; termination for something
that P was not guilty of
5. Damages- damages for loss of reputation; damages for emotional
distress and humiliation; damages to the cost of defending against
the criminal charges
ii. Defenses: D can prove that P was in fact guilty of the crime charge
(affirmative defense) by proof of preponderance of the evidence; P’s guilty
is established to the jury’s satisfaction; advice of counsel (if you told attys
everything)
b. Wrongful Civil Proceedings: same as malicious prosecution but only
applies to civil cases; hard to prevail on
i. Elements: same as malicious prosecution (initial criminal proceedings,
lack of probable cause, malice, damages, termination in favor of D). Some
cts add the requirement of special injury (injury caused by the seizure of
P’s person or property)
c. Abuse of Process: occurs when a person involved in criminal or civil
proceedings uses various litigation devises for improper purposes (ie: P seeks to
harass through lawsuit)
i. Elements: D must make use of the processes of the court and the use
must be for the purpose for which the process was not designed.
1. Process- almost any enforceable order of the court.
ii. Distinction: Lack of Probable cause to bring the suit is not an element.
Favorable termination of the underlying suit is not an element.