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Nuisance – Elements, Study notes of Communication

'- The nuisance must have arisen from an act that's actionable as an intentional, negligent or strict liability tort! - The actions that give rise to the ...

Typology: Study notes

2021/2022

Uploaded on 09/27/2022

jimihendrix
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Nuisance Elements
Nuisance is the cause of action you use when someone is interfering with your
right to enjoy your property; but trespass is not applicable
Private Nuisance:
Elements:
1) Plaintiff has the right to possess or ownership of land;
2) The defendant undertakes an action that interferes with
the use or enjoyment of that land;
3) In a manner that is substantial and in a manner a
reasonable person would not tolerate (subjective test)
Public Nuisance:
- This occurs when the interference is with public property, not
specifically with anyone’s private property (e.g., a street or a park)
-Such an action can typically only be brought by a governmental
authority because no person has standing to bring an action for
public nuisance. Of course, if the private person suffered specific
economic harm, she may be able to sue for negligence, etc.
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Nuisance – Elements

Nuisance is the cause of action you use when someone is interfering with your right to enjoy your property; but trespass is not applicable Private Nuisance: Elements:

  1. Plaintiff has the right to possess or ownership of land;
  2. The defendant undertakes an action that interferes with the use or enjoyment of that land;
  3. In a manner that is substantial and in a manner a reasonable person would not tolerate (subjective test) Public Nuisance:
  • This occurs when the interference is with public property, not specifically with anyone’s private property (e.g., a street or a park)
  • Such an action can typically only be brought by a governmental authority because no person has standing to bring an action for public nuisance. Of course, if the private person suffered specific economic harm, she may be able to sue for negligence, etc.

Nuisance - Other Factors

  • The nuisance must have arisen from an act that’s actionable as an intentional, negligent or strict liability tort!
  • The actions that give rise to the nuisance must be “unreasonable” under the circumstances. Thus: A “balancing test” must be performed between the harm that the nuisance causes and the benefits of the activities that create the nuisance, taking into account: o The economic and social importance of the activity o The burden on the defendant and on society of forcing the activity to cease o Whether there is a more appropriate place to conduct the activity
  • All the rules regarding causation and damages apply, as with negligence and strict liability
  • The defenses of assumption of risk and contributory negligence apply; as with any other tort.

Defamation – Elements – Part 1 (cont.)

2) Of and concerning the plaintiff

o Any person or entity can be defamed, even one with an

already bad reputation

o A person can be defamed even without specific

reference to him or her if it’s clear from the context who was

means by the statement (“colloquium”)

o A large group cannot be defames (“all men are

unfaithful” is not actionable); but a small group can be (“all

members of the San Francisco Giants use steroids” is actionable)

Defamation – Elements - part 2

3) That is “published to a third party

o This includes any kind of communication to any third party

o Includes a situation where it is overheard b a foreseeable

eavesdropper

o Includes repetition of the same facts as heard from someone

else

o Includes the publishing of a third party’s advertisement in

your newspaper

o “Single publication rule”: publication of defamation in a

periodical or book is one act of defamation by the

publisher; not a separate one each time the book or

periodical is sold; and vendors are not considered

publishers!!

QUIZ TIME!

Slander vs Libel

  • Under the old system, “slander” and “libel” were separate torts: o Libel: defamation that is written or recorded or published to large audience (i.e., on radio or TV) o Slander: oral defamation published to small audiences
  • Today, they’re both lumped into the category called “defamation” but important differences still exist: o For libel, damages are presumed! Proving economic harm is not necessary; “general” damages are enough o For slander, special (specific economic) damages are required to sustain the cause of action, UNLESS the slander is in a subject matter that is considered “slander per se,” which include statements that: - Adversely reflect on the plaintiff’s business or professional abilities - Allege that the plaintiff has a “loathsome disease” - Allege that the plaintiff committed a crime involving “moral turpitude” - Allege unchastity in a woman