Chapter Ten

Question 1

What is the relationship between deceit and misrepresentation?

Answer 1

Misrepresentation as a distinct cause of action arose out of the common law action of deceit. Intentional misrepresentation corresponds to what was known as “deceit” or “fraud” under the common law.

Question 2

What are the basic elements of misrepresentation?

Answer 2

• The defendant misrepresents something with the intent of inducing the plaintiff’s reliance on that misrepresentation.
• The defendant knows that the representation is false or acts with reckless indifference to the truth.
• The plaintiff justifiably relies on the defendant’s misrepresentation.

Question 3

How does intentional misrepresentation differ from negligent and innocent misrepresentation?

Answer 3

The requirements for an action of negligent misrepresentation are essentially the same as those for intentional misrepresentation, with the exception of the intent requirement.

Question 4

Is nondisclosure grounds from misrepresentation? If yes, under what circumstances?

Answer 4

In the modern view nondisclosure may be considered concealment and grounds for misrepresentation when the defect is a latent defect (not visible to the buyer).

Question 5

Is making a statement that is a half-truth grounds for misrepresentation?

Answer 5

Yes.

Question 6

How do the courts treat transactions involving parties having a fiduciary relationship differently than transactions that are done at “arm’s length”?

Answer 6

The law imposes a more demanding obligation to disclose if there is a fiduciary relationship between the parties than if a transaction occurs at “arm’s length” (i.e. no special relationship exists between the parties).

Question 7

To what group of persons is a defendant liable if he makes a misrepresentation?

Answer 7

Presently a plaintiff can recover if he or she is a member of a class that the defendant could reasonably expect to learn of and rely on the misrepresentation.

Question 8

What state of mind is required for intentional misrepresentation?

Answer 8

Proof of intentional misrepresentation also requires showing that the defendant knew of the falsity of the statement or acted with reckless disregard to the truth.

Question 9

Is a defendant liable if a plaintiff relies on the defendant’s misrepresentation but also conducts and investigation of her own?

Answer 9

If the plaintiff relies totally or almost totally on his or her own investigation, the plaintiff will be deemed not to have relied on the seller’s misrepresentation.

Question 10

Under what circumstances is a plaintiff justified in relying on a defendant’s opinion?

Answer 10

such reliance may be justified. If a defendant and plaintiff have a fiduciary relationship, or if the defendant has worked to secure the confidence of the plaintiff, the plaintiff may be justified in relying on the defendant’s opinion.

Question 11

How do courts treat statements by defendants that could be characterized as puffing?

Answer 11

Mere “puffing” is not actionable.

Question 12

How do courts treat statements by defendants that could be characterized as opinion by a disinterested party?

Answer 12

Plaintiff’s reliance is more likely to be considered reasonable if the plaintiff reasonably perceives that the opinion is being expressed by a “disinterested” party, meaning a neutral one, someone who will receive no benefit.

Question 13

How do courts treat statements by defendants that could be characterized as prediction?

Answer 13

A prediction that a certain event is bound to happen will almost always be regarded as an opinion. If, however, the defendant knows of facts inconsistent with the prediction, the defendant may still be found liable for misrepresentation.

Question 14

How do courts treat statements by defendants that could be characterized as statement of limitations?

Answer 14

If a defendant makes a statement as to his her own intentions, a plaintiff’s reliance on that statement will frequently be considered justifiable.

Question 15

What do plaintiffs have to prove in terms of causation?

Answer 15

The plaintiff in a suit for misrepresentation must prove that he or she sustained actual damages that were proximately caused by the defendant’s misrepresentation.

Question 16

What is the difference between a reliance measure of damages and a benefits-of-the-bargain measure?

Answer 16

Damages for misrepresentation may be measured in two ways. The plaintiff may be asked to be put in the position he or she was in before the misrepresentation (referred to as the “reliance measure”). Alternatively, the plaintiff may be asked to be put in the position he or she would have been had the misrepresented facts been true (referred to as the “benefits-of-the-bargain measure”). The majority of courts use the latter measure of damages.

Question 17

In what ways do the courts treat negligent misrepresentation differently than they do intentional misrepresentation?

Answer 17

Other than intent, the requirements for an action of negligent misrepresentation are essentially the same as those for intentional misrepresentation. The courts are most inclined to allow recovery for negligent misrepresentation when the defendant makes false statement during the course of the defendant’s business or profession or has a pecuniary interest in the transaction at hand.

Question 18

Under what circumstances are today’s courts willing to allow recovery for innocent misrepresentation?

Answer 18

If a party involved in a sale, rental, or exchange transaction makes a material misrepresentation to the other in an effort to close a deal, he or she will be liable even if the misrepresentation is innocent

Question 19

Why is nuisance referred to as the “legal garbage can”?

Answer 19

A precise definition of the term nuisance has eluded the courts for centuries and therefore it is referred to as a sort of “legal garbage can.”

Question 20

What is the difference between private and public nuisance?

Answer 20

The essence of a public nuisance is an interference with “a right common to the general public”. A private nuisance, in contrast, is an unreasonable interference with the plaintiff’s use and enjoyment of his or her land

Question 21

What are the elements of public nuisance?

Answer 21

The plaintiff must show that the public at large was actually injured or was exposed to the possibility of injury. The harm must be substantial.

Question 22

why must the plaintiff prove that he suffered damages peculiar to him?

Answer 22

The rationale for this rule is that wrongs to the community as a whole should be redressed by the community’s representatives, to avoid duplication of legal actions.

Question 23

In what way have the courts struggled with the concept of “particular damage”?

Answer 23

Some have allowed recovery if the plaintiff suffered greater economic loss than others in the community; others have denied recovery in similar cases. If the plaintiff’s pecuniary loss precludes the plaintiff from performing on a contract or causes the plaintiff additional expense in his or her performance, many courts have allowed the plaintiff to recover

Question 24

What are the elements of private nuisance?

Answer 24

The plaintiff must prove that the use and enjoyment of his or her land was substantially interfered with and that the defendant’s conduct was either negligent, intentional, or abnormally dangerous.

Question 25

How does private nuisance differ from trespass?

Answer 25

A trespass consists of interference with the plaintiff’s right to possession of his or her property; a nuisance consists of an interference with the plaintiff’s right to enjoy and use his or her property. A nuisance can occur, therefore, even if nothing physically enters the plaintiff’s property. Furthermore, the fact that the interference must be substantial also differentiates a nuisance from a trespass.

Question 26

What is considered “substantial interference”?

Answer 26

Substantial interference occurs when the plaintiff is injured or the plaintiff’s property is damaged. The interference may also be substantial if the plaintiff is inconvenienced or subjected to unpleasant sensory awareness, such as obnoxious odors or blaring sounds. The plaintiff must show that a person of normal sensitivity would be seriously bothered by the defendant’s conduct.

Question 27

What is considered when determining if a defendant’s conduct is unreasonable?

Answer 27

(1) the plaintiff’s harm outweighs the utility of the defendant’s conduct, or (2) the harm caused by the conduct is substantial and greater than anything any individual should be required to bear without compensation

Question 28

What remedies are available to a plaintiff?

Answer 28

A plaintiff alleging private nuisance may seek either compensatory damages or an injunction. If the nuisance is likely to be permanent, the plaintiff can recover for both past and prospective damages in the same action.

Question 29

Why has nuisance enjoyed a resurgence?

Answer 29

Plaintiffs have found several advantages in pursuing nuisance claims instead of filing actions under CERCLA

Question 30

What is CERCLA?

Answer 30

The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) authorizes the Environmental Protection Agency to clean up sites contaminated by toxic wastes.

Question 31

What advantages over CERCLA does a nuisance claim offer a plaintiff?

Answer 31

Plaintiffs have found several advantages in pursuing nuisance claims instead of filing actions under CERCLA

Question 32

What are the elements of interference with existing contractual relations?

Answer 32

A person commits interference with existing contractual relations by inducing another to breach a contract with the plaintiff. The defendant’s interference must be intentional (negligence is not sufficient) and improper.

Question 33

When is a defendant privileged to induce a breach of contract?

Answer 33

If a defendant merely tried to protect his or her own existing contractual rights, the defendant will be privileged to induce a breach as long as the defendant’s motive is not to gain business for him or herself. If an individual induces a breach for the purpose of promoting social interest, he or she will also be privileged.

Question 34

How does interference with prospective contractual relations differ from the tort of interference with existing contractual relations?

Answer 34

One is for existing contracts and the other is for prospective or future contracts that are anticipated between the parties.

Question 35

What are the elements of malicious prosecution?

Answer 35

A defendant whose motives are for some purpose other than bringing the plaintiff to justice and who, without probable cause, institutes criminal proceedings against another commits malicious prosecution

Question 36

Which is the most difficult element to prove, and why?

Answer 36

The most difficult hurdle for the plaintiffs to overcome in malicious prosecution cases is the probable-cause requirement.

Question 37

Why are prosecutors and police officers rarely sued for this tort?

Answer 37

Prosecutors are almost always immune from malicious prosecution suits. Immunity is also usually given to police officers as long as the mistake is a reasonable one.

Question 38

How does the tort of wrongful institution of civil proceedings differ from malicious prosecution?

Answer 38

The tort of malicious prosecution normally applies to criminal proceedings.

Question 39

Under what circumstances is someone liable for abuse of process?

Answer 39

If an individual initiates a criminal or civil proceeding based on probable cause and on the basis of permissible motives, he or she may still be liable for abuse of process if that individual uses certain litigation devices for improper purposes