20) Economic Torts + Misc Concepts Flashcards
economic torts: kinds
1) intentional misrep / fraud
2) neg misrep
3) interference w contractual relations
4) interference w prospective economic advantage
5) injurious falsehood
intentional misrep, aka
fraud
intentional misrep: elements
1) intentional misrep by D
2) of past or present fact
3) made w scienter
4) on which P justifiably relies, to his economic detriment
intentional misrep: intentional misrep element: def
1) affirmative assertion of fact
2) affirmative act of concealment
3) failure to disclose ONLY IF certain circs
intentional misrep: intentional misrep element: when does failure to disclose count?
failure to disclose is NOT a basis unless: (1 of these)
1) fiduciary rship
2) ambiguous or misleading st that causes reliance
3) D makes assertion believing it to be true but later discovers it was false or circs have changed
4) D makes false assertion not intending anyone rely on it but subsequently discovers that P intends to act in reliance on the false assertion
scienter: def
scienter = D makes misrepresentation knowing it’s false OR reckless as to truth or falsity
D must also have mental state of intending that P (or class where P is a member) will rely on the rep
negligent misrep: general rule
D has no duty to avoid the negligent infliction of PURE economic loss
negligent misrep: contrast
if the economic loss accompanies PI or property damages, it’s still recoverable (even tho purely economic–loss of sales where fire licked your building vs it had to be evacuated but did not)
negligent misrep: exception
YES liable for negligent infliction of pure economic loss if SPECIAL RELATIONSHIP (ex. legal malpractice)
negligent misrep: exception: who can recover?
if D knows they are acting for the benefit of a 3rd party and that aim is to benefit 3rd party, and 3rd party relies + suffers economic loss, they can recover
negligent misrep: exception: who can recover?: lawyers
nonparties can only recover in the context of will drafting (intended beneficiary)
interference w contractual relations: elements
1) D knows that there is a k btwn + and 3rd party
2) D acts w purpose of having k breached or made more difficult to perform
interference w prospective economic advantage: purpose
protect “expectancy” interests of future contractual relations of a party
interference w prospective economic advantage: elements
1) D knew of prospective economic advantage
2) D acted to interfere w the prospective economic advantage, for an improper purpose
injurious falsehood: elements
1) false st
2) actual malice [D knew st false or reckless re falsity]
3) made to another or published
4) causing specific economic injury to P
injurious falsehood: remedies
economic damages + punis
respondeat superior: def
ER is liable for injuries caused by negligence or strict liability if the tortious conduct is w/in the scope of employment
respondeat superior: indemnity
ER can seek from EE, but rarely does
respondeat superior: exception
intentional torts committed by ee (even if during working hours–tort is considered outside scope of employment)
respondeat superior: E2E
if ee uses force, even misguidedly, wholly or partly to further an employer’s purpose, then YES w/in scope of employment and respondeat superior applies (bounder)
respondeat superior: exception re status
independent contracter no! bc D has no right to control the activity of contracter
respondeat superior: direct er liability for
negligent hiring
independent contracter vs employee: def
depends on who dictates: 1) means 2) method 3) manner the more control exercised by the hirer, more likely person is an ee
parent liability for child
normally NOT vicariously liable
parent liability: exception
(few courts) give vicarious liability as “principal-agent” where child was running errand for parent
result when P or D dies: CL
death of either V or tortfeasor ABATES the tort action btwn them
survival statute
death of V or tortfeasor now no longer abates the action – claim can be brought by estate of deceased
wrongful death: rule
heirs of deceased v may bring an action against the tortfeasor responsible for V’s death
loss of consortium: def
where spouse is injured, surviving spouse may bring claim for loss of consortium
intangible injuries for loss of comfort, companionship, sexual relations