2nd Assessment Flashcards
Abnormally Dangerous Activity factors
(a) existence of a high degree of risk of some harm
(b) likelihood that the harm that results from it will be great;
** (c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent which value to the community is outweighed by its dangerous attributes.
Types of Activities that are Abnormally Dangerous
- Blasting
- Toxic chemical stored in urban areas – but manufacturer not liable for spill during transport –
- Crop dusting – NOT in MS – requires negligence
- Poisonous gases
- Rockets
- Fireworks display
- Hazardous waste disposal
- Oil wells
Dangerous Animals
Domestic Animals - SL for if known or have reason to know that animal has vicious propensities or dangerous propensity abnormal to its breed
Wild Animals - SL if know or should have known of dangerous propensities
(a) wild animals have an inherent risk that can not be eliminated with due care
(b) it is uncustomary to keep wild animal
Fraud / Intentional Misrepresentation Elements
- Knowingly or recklessly (didn’t know it to be true but represented it as so)
- Representation of a material fact
- That’s false
- That Fact is material to the transaction
- Plaintiff relied on that representation
- Reliance was justifiable
Justified b/c
a) falsity not easy for Plaintiff to discover
b) Inequality in knowledge between P + D
c ) Def has expertise that Plaintiff does not - P suffered damages
duty to disclose facts
One party to a business transaction is under a duty to exercise reasonable care to disclose to the other BEFORE the transaction is consummated:
facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them
~ and~
that the other, because of the relationship between them or the customs of the trade would reasonably expect a disclosure of those facts.
Who can bring an action for Fraudulent Misrepresentation ?
*** Person or Limited class who can be foreseen as parties who will , and do, rely upon the statements
Negligent Misrepresentation
1) One who, in the course of his business or any other transaction in which he has a pecuniary interest,
2) supplies false information for the guidance of others in their business transactions,
3) is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information,
4) if he fails to exercise reasonable care in obtaining or communicating the information.
** The liability is limited to loss suffered
- by the person for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it;
~AND~
- through reliance upon it in a transaction that he intends the information to influence.
Intentional Interference w/ Existing Contractual Relations - IIKR - Elements
1) intentionally and improperly interferes with the performance of
2) an existing contract
3) between another and a third person,
4) by preventing the other from performing the contract or causing his performance to be more expensive or burdensome,
***is subject to liability to the other for the pecuniary LOSS resulting to him.
Intentional Interference w/ Prospective Contractual Relations - IIKR - Elements
1) intentionally and improperly interferes with another’s
2) prospective contractual relation
3) is subject to liability to the other for the pecuniary harm resulting from LOSS of the BENEFITS of the relation,
whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation
~ or~
(b) preventing the other from acquiring or continuing the prospective relation.
[Conduct must be either Independently Tortious or Unlawful ]
Puffing is NOT actionable as fraud.***
Puffing = Saying your product is bigger and better than it actually is.
Ex. Papa John pizza
An opinion is generally are NOT actionable as fraud; except when?
- The speaker knows the opinion is not true, or it is reckless AND
- There is “special knowledge”
- You need both.
Int. Misrep.: What is special knowledge = for misrepresentation Opinions
This includes people with training on which they can give an opinion.
-Because of training their opinion can be relied on.
Ex: . An appraiser, Lab tech with lab results, lawyer
doctor, jeweler
Fraud + Misrepresentation: Damages
Purchase Price / Market Value =
damages = purchase price - actual fair market value of the business as it existed at the time of any fraudulent representations
Fraud + Misrepresentation: Damages
Benefit-of-the-bargain measure
damages = amounts [plaintiff] believe[s] the business would have generated in profit had the income and expenses been as represented by Defendants - actual
[PROMISED-RECEIVED]
Three Classes of People on Land
- Invitees
- Licensees
3, Trespassers
Duty Owed Invitee on land
Reasonable Care in keeping the premises reasonably safe for the invitee [Inspect + Correct] / possibly to protect from criminal attacks by third persons
Duty Owed Licensee on land
Take the premises of the host as he finds them [As Is] BUT the owner has to refrain from willful + wanton or reckless conduct which is likely to injure him and duty to warn of any hidden dangers which are unknown to his guest of which he has knowledge
Duty Owed Trespasser on land
No Duty Owed EXCEPT to refrain from injuring him Willful + Wanton conduct which is Likely to injure him BUT Once Discovered (Known or should have known he was on the land), Duty of Ordinary Care/ NO duty to look out for his presence
Definition of Willfull and Wanton
1) Willful = an intent, purpose or design to injure
2) Wanton = failure to exercise any care whatsoever toward those whom he owes a duty of care AND his failure occurs UNDER CIRCUMSTANCES in which there is a GREAT probability of harm
Attractive Nuisance RULE
Liable for physical harm to CHILDREN trespassing caused by and Artificial Condition upon land IF:
1) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass ~ AND ~ 2) The condition is one which the possessor knows or should have reason to know and which he realizes or should realize will involve an Unreasonable Risk of DEATH or SERIOUS BODILY INJURY to such children ~ AND ~ 3) The children b/c of their youth do no discover the condition or Realize the Risk involved in intermeddling with it or coming in contact with the area made dangerous by it ~ AND ~ 4) The Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved ~ AND ~ 5) The Possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
