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Torts, Defenses, When P is family member of Ds target, When P is not…

- - - - Written defamatory message
      - Message is about or concerns P
      - Message was published--3rd person received the message and understood it to be about P.
      - Message harms Ps reputation
    - - Defamatory message in non-recorded form
        
        defamatory message= message lowers P in the community's esteem or discourages a 3rd person from associating with them
        
        Slander per se
        
        Message is about the 1) commission of a crime, 2) allegations of a loathsome disease, 3) imputes improper conduct of business or profession, 4) serious sexual misconduct
      - Message is about or concerns P
      - Message was published--3rd person received the message and understood it to be about P.
      - Message harms Ps reputation
    - - General
        
        No proof of actual damages required
      - Pecuniary or special
        
        Quantifiable monetary losses. Must prove to get unless slander per se.
      - Punitive
        
        Must show malice to get
    - - Absolute
        
        Not liable when D has a privilege
        
        D has burden of proof
        
        When the privilege that entitles you to this defense is lost, cannot use this defense. OR when message exceeds privilege cannot use this defense.
        
        Cannot use this defense when motive for the message was malice
        
        Applies to legislators, participants in judicial proceedings, policy making officials and spouses
      - Qualified
        
        Not liable when matter of the message is privileged
        
        D has burden of proof
        
        Applies when the matter is of interest to the recipient
      - Consent
  - - - False affirmative statement of fact
      - Active concealment
      - Omission of fact/failure to disclose
    - - Justifiable reliance (reasonable person standard)
    - - Knowing it was false OR
      - With reckless disregard as to its truth or falsity OR
      - Negligently made (only applies to commercial settings)
  - - - Unauthorized use of Ps identity or likeness for Ds commercial advantage
    - - D unreasonably (highly objectionable to a reasonable person) intrudes (physical or non physical) into Ps seclusion (physical solitude and privacy of personal affairs or concerns that P had a reasonable expectation of privacy over)
    - - D publishes matters that portray P in a false light
        
        Attributing to P views P does not hold or actions P did not take
        
        Reasonable person would find disclosure offensive
        
        Disclosure must have been communicated to a substantial number of people
    - - D unreasonably discloses private facts (highly offensive to a reasonable person and not about legitimate public concern and not newsworthy) about P to public
    - - Truth
      - Consent
      - Privilege
  - - - Unreasonable interference with public rights. Can only recover if you suffered a harm different from the type of harm general public suffered AND prove any social usefulness of the conduct is substantially outweighed by the seriousness of the harm.
    - - The 2) intentional, 2) substantial and unreasonable interference with 3) Ps use and enjoyment of their land (a legal right P has).
- - - - Negligence per se
      - Res ipsa loquitor
    - - No affirmative duty to control unless
        
        Special relationship (ex. parents or masters over their servants)
      - Standard of care
        
        General
        
        To act as a reasonable ordinary prudent person under the same circumstances or situation
        
        Chilren
        
        To act as reasonable child of the same age, education, intelligence, and experience
      - No affirmative duty to act unless
        
        Innkeepers, common carriers, professionals, special relationship, or parents
        
        Must maintain standard of care AND liable for leaving P in a worse condition then before they acted
- - - - ACT: D voluntarily enters Ps property w/o permission
        
        Any part of D, objects D voluntarily places or sets into motion (ex. fire), or other people D's voluntary actions cause to enter
      - INTENT D's purpose to cause entry or knowledge with substantial certainty they would enter
        
        Don't need to know you are trespassing
        
        No intent to cause harm required
        
        Can transfer to assault, battery, false imprisonment, trespass to chattels
      - CAUSATION
      - INJURY: Unlawful entry
      - NO PRIVILEGE/DEFENSE
      - DAMAGES: Actual and nominal
    - - ACT
        
        D dispossesses P of the chattel OR D uses or meddles with the chattel in the possession of P
        
        D bares P's access to the chattel
        
        D obtains possession of chattel via fraud or duress
        
        D takes chattel into the custody of the law
      - INTENT
        
        D's purpose to dispossess or interfere with P's possession or use of their chattel or knowledge with substantial certainty that they will disposes or interfere with P's possession or use of their chattel.
      - CAUSATION
      - HARM
        
        D takes the chattel for a substantial period of time OR impairs the condition, quality, or value of the chattel
        
        MUST prove their was some harm, cannot just be injury. Injury in the absence of harm is not sufficient.
      - NO PRIVILEGE/DEFENSE
        
        Consent
    - - ACT
        
        D exercises dominion or control over a chattel that so seriously interferes with the rights of P’s control of said chattel
        
        D destroys chattel while its in Ps possession
      - INTENT
        
        D's purpose to disposes P of their chattel or interfere with their possession or use of their chattel or D knows with substantially certainty they are interfering with Ps use or possession of the chattel
      - CAUSATION
      - HARM
      - NO PRIVILEGE/DEFENSE
  - - - ACT: Voluntary movement on the part of the D
        
        “A muscular reaction is always an act unless it is purely reflexive reaction in which the mind and will have no share”
        
        Indirect (setting into motion something that contacts P) and direct contact with P
      - INTENT: Purpose/desire or knowledge with substantial certainty to cause harmful or offensive bodily contact
        
        Can transfer to assault, false imprisonment, trespass to land, trespass to chattels, and intent to batter one person transfers to another person
        
        Rational choice not required because non rational choices are still choices
        
        Subjective standard
      - CAUSATION:
      - HARM: Harmful or offensive bodily contact
        
        Whether bodily contact is harmful or offensive is a subjective standard
        
        UNLESS D had knowledge that P was sensitive or had particular susceptibility THEN (subjective test)
      - NO PRIVILEGE/DEFENSE: Defense of self, others, or property, necessity and consent
    - - ACT: Extreme and outrageous
        
        Objective standard
        
        Conduct is beyond the bounds of civilized society
        
        Factors
        
        D in a position of power over P, repeated acts
        
        Not purely reflexive, mind and will must have share
      - INTENT OR RECKLESSNESS: purpose or knowledge with substantial certainty to cause severe emotional distress OR deliberate disregard of a high probability of harm that severe or emotional distress will occur b/c of D's actions
      - CAUSATION:
      - HARM: P suffers from severe emotional distress
        
        Factors
        
        1) Physiological manifestations 2) Sought medical treatment 3) Duration and intensity of symptoms 4) Significant impairment in daily functioning
      - NO PRIVILEGE/DEFENSE: Defense of self, others, or property, necessity and consent
    - - ACT: Touching of the mind
        
        Must be more than words unless coupled with other acts or circumstances that would satisfy test for apprehension
        
        Cannot be conditional threats
        
        Must be present acts
      - INTENT: Purpose/desire or knowledge with substantial certainty to cause apprehension of imminent harm or offensive contact.
        
        Can transfer to battery, false imprisonment, trespass to land, trespass to chattels, and intent to assault one person transfers to another person
        
        any act that causes apprehension of a battery is assault
        
        Subjective standard
      - CAUSATION:
      - HARM: P is in apprehension of imminent harm or offensive contact by D
        
        Apprehension is not fear
        
        Test for apprehension is objective standard
        
        Would D's conduct normally cause apprehension in the mind of a reasonable person?
        
        UNLESS D had knowledge that P was sensitive or had particular susceptibility THEN (subjective test)
      - NO PRIVILEGE/DEFENSE: Defense of self, others, or property, necessity and consent
      - DAMAGES: Actual damages not required, can recover nominal damages
    - - ACT: D confines P within bounds fixed by D with no reasonable means of escape
        
        When D has a legal duty to release P from confinement, an intentional refusal to release P constitutes false imprisonment
        
        Asserting invalid legal authority
        
        Confining by physical barriers
        
        Not confined if you are aware of a means to escape
        
        cannot refuse to utilize a means of escaping if using it would pose as a mere inconvenience
        
        BUT not duty to resit confinement if D makes credible threat to use physical force
      - INTENT: Purpose/desire to confine P or D knows with substantial certainty they will confine P
        
        Can transfer to assault, battery, trespass to land, trespass to chattels
      - CAUSATION:
      - P WAS AWARE OF THE CONFINEMENT (harm)
      - P DID NOT CONSENT (injury)
      - CONFINEMENT WASN'T OTHERWISE PRIVILEGED
        
        Defense of self, others, property, necessity, shop keeper's privilege
        
        Shop keeper's privilege
        
        When do you have it?
        
        store owners
        
        Scope of the privilege
        
        Detention must be 1) in a reasonable manner (must take into account Ps sensibilities and rights) , 2) for a reasonable period of time (temporary), 3) based on a reasonable belief of theft on the premises (probable cause)