mbe torts

Question 1

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Types of Negligence

Answer 1

1. common law
2. negligence per se
3. res ipsa loquitor

Question 2

common law negligence elements

Answer 2

1. duty: obligation to another party (foreseeable plaintiffs)
2. breach: failure to meet that obligation
3. causation: but-for test/ cause in fact (actual cause) and foreseeable/proximate cause (legal cause). You need both.
4. Damages: the loss suffered must be physical harm (not merely psychological)

person is liable for risks that made her conduct negligent and for foreseeable harm

special example: modern trend is to apply negligence law to accidents in which objects falling from the airplane or the airplane itself harms persons or objects on the ground. The owner of the airplane had a duty to keep his airplane in good repair.

Question 3

common law negligence: duty –> standard of care

Answer 3

• reasonable person standard to foreseeable plaintiff
• objective standard with average mental ability and knowledge
• modified standard: particular physical chatacteristics taken into account and def compared with reasonably prudent person with like characteristics
• intoxication: objective, held to standard of sober person unless involuntary intoxication
• for common carriers= utmost care

Question 4

common law negligence: duty –> standard of care –> professional

Answer 4

someone with heightened education/training act like other similar professionals within that community with that training/background

Question 5

common law negligence: duty –> standard of care –> child

Answer 5

• child: act like other children of same age and maturity

• if the child is extra knowledgable/experienced in something, he will be held to that standard and thus if he breaches he is liable not his parent

Question 6

common law negligence: duty –> standard of care –> child exception

Answer 6

when child is engaged in adult activity

Question 7

common law negligence: duty –> standard of care –> parent

Answer 7

parent is not vicariously liable for their children’s torts, but have a duty to prevent child from committing harm if they knew/ should have known child is likely to cause harm

can also be liable for negligence supervision

Question 8

common law negligence: duty –> standard of care –> duty to aid

Answer 8

• under common law, there is no duty to aid/rescue. BUT if you begin to render aid, you owe a duty of reasonable care.

Question 9

common law negligence: duty –> standard of care –> duty to aid exception

Answer 9

• duty to provide care when there is a special relationship like parent/child, innkeeper/guest, common carrier/passenger (traditionally utmost care, but many courts hold liable only for ordinary negligence)
• if you have the ability and actual authority to control another, you have a duty to exercise reasonable care (warden control over prisoner, parent control over child)

VVVVVVVVVVV

A special relationship exists between mental-health professionals and their patients.
* if a patient makes a credible threat of physical violence against an ascertainable victim (DOES NOT HAVE TO BE IMMINENT), the mental-health professional must warn the would-be victim of the risk posed by the patient or take other steps to mitigate that risk.

Question 10

common law negligence: duty –> standard of care –> landowner duty

Answer 10

1. unknown trespasser: no duty
2. known trespasser/ invitee/ licensee (enters with express/implied permission): duty to warn of known hidden, artificial danger and use reasonable care in active operations conducted on the land.
3. invitee (comes onto land for material/business purpose): business/commercial duty to warn, clean up, and make safe; cannot avoid liability by assinging care of property to independent contractor

duty to refrain from wilfull, wanton, intentional, or reckless misconduct; use of trap will result in liability

in some jurisdictions, a “Flagrant trespaser” is owed an even lesser duty of care

Question 11

common law negligence: causation –> intervening cause

Answer 11

seperate act which does not cut off liability.
All neglgience is legally considered foreseeable.
Original defendant pays for those injuries.

Question 12

common law negligence: causation –> superseding cause

Answer 12

this does not apply where the original tortfeaser committed an intentional tort, like battery

separate act so unforeseeable it does cut off liability.
Defendant still liable for original negligence.
unforeseeable:
* act of god
* intentional tort
* criminal act
* anything the fact pattern says in unforeseeable

Question 13

common law negligence: causation –> defenses

Answer 13

1. contributory negligence
2. assumption of risk
3. modified/modern compensation
4. pure comparative
5. joint several liability
6. independent contractor
7. contribution
8. vicarious

Question 14

common law negligence: defenses –> contributory negligence

Answer 14

• if plaintiff is even 1% liable bars recovery
• plaintiff’s own negligence is a complete bar to recovery in a negligence action, but it is no defense to strict liability.

Question 15

common law negligence: defenses –> contributory negligence exception

Answer 15

last clar chance: even if plaintiff is negligent, if defendant had last clear chance to avoid the accident and did not, plaintiff may recover all damages.

scenarios
1. helpless plaintiff: plaintiff due to contributory negligence, is in peril from which plaintiff cannot escape; Defendant is liable if defendant knew or should have known of plaintiff’s peril & harm could have been avoided but for defendant’s negligence
2. inattentive plaintiff: Plaintiff, due to contributory negligence, is in peril from which plaintiff could escape if plaintiff was paying attention; Defendant is liable if defendant had actual knowledge of plaintiff’s inattention

Question 16

common law negligence: defenses –> pure comparative

Answer 16

if plaintiff also committed negligence they will recover, but damages will be reduced by their own % of fault

Question 17

common law negligence: defenses –> modified/modern comparative

Answer 17

if plaintiff is more than 50% liable, they cannot recover anything.
if plaintiff is 0-50% negligent, they will recover but with reduced damages.

Question 18

common law negligence: defenses –> assumption of risk

Answer 18

plaintiff understands and appreciates risk and goes ahead anyway.
knowledge alone is not enough.

under common law jurisdiction, assumption of the risk is a COMPLETE DEFENSE to negligence liability

express assumption of risk
* typically in writing like exculpatory contract
* look for clear and enforceable waiver
* courts may not enforce exculpatory provisions where
1. disclaiming liability for reckless/wanton misconduct,
2. disparity of bargaining power,
3. party seeking to enforce offers important public service (medical),
4. provision subject to contract defenses (duress, fraud)
5. enforcement agaisnt public policy
6. theres a otherwise valid strict product liability claim for personal injury or property damage

implied assumption of risk
* participants and spectators of athletic events: participant/spectator cannot recover because party knew of risks and chose to accept risks
* Determination of whether a defendant-participant in an athletic activity can rely on apparent or presumed (implied) consent typically involves consideration of a variety of factors, such as whether the conduct is a violation of a safety rule of the sport, whether the conduct typically occurs during the activity, and whether the conduct involves significant risks of very serious injury or death
* look to see if game has ended, and whether contact is the type that is routine/common contact (hitting hockey player on arm with hockey stick after game is over is not consented to, even if league is known for rough play)

Question 19

common law negligence: defenses –> joint and several liability

Answer 19

• if 2+ people caused an accident and not sure how much liability each defendant has, plaintiff can choose one defendant and recover all damages
• but make sure the plaintiff proved each defendant was negligent first

• the wrongdoers, rather than the victim, bear the burden of impossibility of apportionment (basically its not the plaintiff’s burden to prove the defendants % of fault, he just uses joint and several liability)

Question 20

common law negligence: defenses –> contribution

Answer 20

when one co-defendant recoups against another defendant

Question 21

common law negligence: defenses –> vicarious liability

Answer 21

• employer liable for negligence of their employees as long as employee is acting in scope of their employment
• scope: on the clock, doing job
• When the employee’s liability has been discharged by the employer, the employer can seek full compensation (i.e., indemnity) from the employee for its loss.

direct negligence: employer liable for employer’s own negligence
vicarious liability: employer liable for employee action

Question 22

common law negligence: defenses –> vicarious liability exception

Answer 22

independent contractor: not an employee. person who hires them is not directly or vicariously liable for contractor’s negligence (contractor itself will be liable), unless contractor is engaged in abnormally dangerous activity or contractor’s work was non-delegable duty

examples of non-delegable duties
* Businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers (public use or benefit)

a delegable duty is providing emergency medical care

VVVVVVV

Principal (person who hires) is generally not vicariously liable for torts committed by the independent contractor.

BUT a principal who retains control over any part of the independent contractor’s work is directly liable for any failure to exercise reasonable care as to the retained control

Question 23

negligence per se: elements

Answer 23

1. violation of statute
2. plaintiff part of protected class
3. harm caused is type that the statute was designed to prevent

defense (even if plaintiff establishes negligence per se elements, may rebut by showing):
* complying with statute would be even more dangerous than violating statute
* defendant was incapacitated/could not comply with the law (emergency)

Question 24

res ipsa: elements

Answer 24

1. act which would not have occured absent negligence
2. defendant has control of property= inference of negligence
3. the harm was not due to any action on the part of the plaintiff.

• The third requirement is not satisfied if a plaintiff’s own negligence increases the likelihood of the defendant’s negligence, if the plaintiff’s conduct has nothing to do with the defendan’ts negligence (pedestrian walking on sidewalk, construction company drops a brick on him), then the third element IS SATISFIED!

VVVVVVVVVVV
* look for language for directed verdict, summary judgment, or jury

Question 25

strict liability defense

Answer 25

assumption of the risk: you know and appreciate the nature of risk and you proceed anyways, complete bar to recovery
comparative negligence: assumption of the risk is not recognized as a separate defense (you can not plead this as a defense) it has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff’s awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff’s or the defendant’s actions.

Question 26

strict liability: abnormally dangerous activity

Answer 26

Abnormally dangerous activities: (blasting, explosion, chemicals)
* def engaged in abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by activity regardless of attempt to prevent harm
* defendant liable for harm flowing from risk that made activity abnormally dangerous
* Uncommon activity in community that poses foreseeable & highly significant risk of physical harm
* Risk cannot be minimized by reasonable care and
* Physical harm caused by abnormal danger

• look to foreseeability of risk of harm, severity of harm, appropriateness of location for activity, whether it has great value to community

Question 27

products liability theories

Answer 27

1. negligence
2. strict product liability
3. warranty

Question 28

product liability theories : strict liability

Answer 28

1. product defective when it left factory
2. sold by seller engaged in business of selling product
3. sold to foreseeable user (purchaser)
4. who used in intended manner
5. the defect caused the plaintiff PHYSICAL HARM (bodily or to property, mere economic loss due to defective product and consequences of the defective product like lost revenue is NOT ENOUGH FOR STRICT LIABILITY CLAIM)

or failure to warn

• types of defects:
  1. manufacture
  2. design
  3. failure to warn
• Can sue anyone in chain

• can recover personal injury or property damage
• no recovery if defect in product causes damage only to product itself, like couple buys RV and it catches fire spontaneously but nothing/no one inside
• seller could be someone who installls (i think i have seen some say they cannot, but double check)

Question 29

product liability theories : strict liability –> defense

Answer 29

• assumption of risk: total bar to recovery
• comparative fault: plaintiff’s own neglgience will reduce his recovery DOES NOT ABOLISH THE CLAIM, JUST REDUCES
• product misuse, modification, alteration: generally manufacturer (seller) will be liable as long as misuse, modification, or alteration was foreseeable
• substantial change in product: bar to recovery
• compliance with government standard: admissible to show product isnt defective, but not conclusive unless there is a federal preemption where congress has preempted regulation in a particular area
• state of the art defense: some jurisdictions, relevant state of the art at time of manufacture/warning is evidence product isnt defective, in some jurisdcitions compliance with SOA is total bar to recovery

disclaimers, limitations, and waivers generally dont impact strict liability claims

Question 30

product liability theories : negligence

Answer 30

1. The commercial seller owed the plaintiff a duty of care.
2. The commercial seller breached this duty.
3. The breach caused the plaintiff’s injury.
4. The plaintiff’s damages are traceable to that injury.

Question 31

product liability theories : warranty

Answer 31

• there was a label sticker, something was in writing promising how product would work
• can sue anyone in distribution chain
• implied warranties:
  1. merchantability- product suitable for ordinary purposes for which its sold
  2. fitness for particular purpose: seller knows particular purpose for which product is being sold and buyer relies on seller’s skill or judgment
• express warranties: an affirmation of fact or promise by seller that is part of basis for bargain

defenses:
disclaimers
* The commercial seller of the product may generally disclaim or limit the remedies and warranties available in a products liability action.
* But any such disclaimer or limitation does not bar or reduce an injured plaintiff’s recovery for physical harm.
* And in the case of consumer goods, any limitation of consequential damages for personal injuries is unconscionable and therefore invalid.

tort defenses
* assumption of risk
* comparative fault
* contributory neglgience
* product misuse

Question 32

nuisance: public

Answer 32

• ENTIRE community brought by public official, must have special/unique damages (Special injury where child is on navigable water and nearby golf course knows its players land balls there, does nothing, and child is hit)
• unlike a private nuisance, a public nuisance does not require that the plaintiff have possessory rights in real property (can be harmed on public navigable waterway)
• A private plaintiff can sue for public nuisance—i.e., an unreasonable interference with a right common to the general public—only if the plaintiff sustained special damage different from that suffered by the public at large.

unreasonable interference could be limbs and debris fromm trees posing danger to neighboring houses because they blow into them

Question 33

nuisance: private

Answer 33

substantial and unreasonable interference with the use and enjoyment of someone’s property (must be unreasonable to an objective person)
must be individual doing something

An interference is unreasonable if the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct.

blocking sunlight/view is not a nuisance, but a spite wall or fense is

Question 34

self defense: lethal force

Answer 34

• A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that:
  1. the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant
  2. the defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, and
  3. the defendant can safely prevent the peril only by the immediate use of deadly force.

• to justify use of force sufficient to cause death/serious bodily injury, def must have more than subjective suspicion that such force is necessary

Question 35

intentional infliction of emotional distress

Answer 35

• intentional tort= intentional/reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm
• severe emotional/mental distress= suffered mental distress sufficiently severe that she sought medical aid and the conduct would cause a reasonable person such distress
• plaintiff must show defendant
  1. desired to cause plaintiff emotional distress
  2. knew with substantial certainty that the plaintiff would suffer emotional distress or
  3. recklessly disregarded the high probability that emotional distress would occur

• courts more likely to find conduct/language to be extreme and outrageous if the def is in a position of authority/influence over plaintiff or plaintiff is member of group that has heightened sensitivty (elderly/children)
  doctrine of transferred intent generally does not apply to intentional infliction of emotional distress
• yelling mere insults, threats, or indignities at someone does not rise to the level of extreme and outrageous conduct, even when considering the power dynamic of an employer and employee.
• Transferred intent may apply to IIED if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another.

Question 36

contribution under joint several liability

Answer 36

• when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for that injury
• each is liable to the plaintiff for the entire damage incurred
• joint and several liability applies even though each totfeasor acted entirely independently
• where p can recover entire judgement from either d (Contribution), the typical rule for contribution allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess
• contribution is NOT allowed in favor of those who committed intentional torts, even if each tortfeasor was equally culpable

• if negliglent tortfeasor pays full judgment, can be fully indemnified for the entire amount from the friend who was an intentional tortfeasore

Question 37

trespass to chattels

Answer 37

Trespass to chattels: intentional interference with the plaintiff’s right to posess personal property either by
* disposessing the plaintiff of the chattel;
* using or intermeddling with the plaintiff’s chattel; or
* damaging the chattel

can show damages by:
(1) actual harm to the chattel
(2) substantial loss of use of the chattel, or
(3) bodily harm to the plaintiff.

Question 38

invasion of privacy: misappropriation of the right to publicity

Answer 38

Liability arises when a defendant:
(1) uses the plaintiff’s name, likeness, or an item closely associated with the plaintiff without authorization,
(2) obtains a benefit, and
(3) causes the plaintiff an injury.

Question 39

negligent infliction of emotional distress

Answer 39

zone-of-danger:

1. the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm and
2. that danger of the physical impact caused the plaintiff serious emotional distress.

• most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage)

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
Special Situations:

Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently:

(1) delivered an erroneous announcement of death or illness,
(2) mishandled a loved one’s corpse or bodily remains, or
(3) contaminated food with a repulsive foreign object.

• An NIED plaintiff who alleges that the defendant mishandled the corpse or bodily remains of a loved one need not have witnessed the mishandling to prevail

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
Bystander:

• Defendant negligently injured plaintiff’s close relative
• Plaintiff contemporaneously perceived that event
• Event caused plaintiff serious emotional distress

VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
pure economic harm insufficient to recover, must have physical injury and/or property damage

plaintiff may recover damages for mental suffering once he brings an underlying tort claim from which he suffered an original physical impact/injury. like where using asbestos materials, found to be at increased risk of cancer, becomes emotionally distressed. he may tack on damages for mental and emotional suffering to the underlying claim.

Question 40

transferred intent

Answer 40

• same tort; different person: Requisite intent exists if defendant intends to cause relevant tortious consequence to third party & instead causes that consequence to plaintiff (assault, battery, false imprisonment, trespass)
• different tort; same person: Requisite intent exists if defendant intends to commit tort against plaintiff & instead commits different tort against plaintiff (assault, battery, false imprisonment, trespass)

Question 41

intentional misrepresentation (fraud): general

Answer 41

Liability for intentional misrepresentation arises when:
(1) the defendant knowingly or recklessly misrepresents a material fact or conceals a material fact with the intent to induce the plaintiff’s reliance and
(2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary loss as a result.

VVVVVVVV
duty to disclose

Fraud can also occur when a defendant fails to disclose a material fact—but only if the defendant had a duty to disclose it.
There is an affirmative duty to disclose a material fact in three limited circumstances:
* The plaintiff has a fiduciary relationship with the defendant.
* The plaintiff is likely to be misled by the defendant’s prior statements.
* The plaintiff is mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (in a minority of jurisdictions). (BUT remember, people are generally entitled to use their superior knowledge/expertise while bargaining)

Question 42

conversion

Answer 42

intentionally committing an act depriving the plaintiff to possession of his chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel

intent: defendant must only intend to commit the act that interferes and mistake of law or fact is not a defense

damages for conversion are the full market value at the time of conversion

more extreme the interference, more likely its conversion

trespass v chattels consider the duration and extent of the interference, defendant’s intent to assert a right inconsistent with the rightful possessor, defendant’s good faith, expense or inconvenience to the plaintiff and extent of the harm

Question 43

battery

Answer 43

• defendant intentionally inflicted harmful/offensive bodily contact with the plaintiff
• Contact is offensive when a person of ordinary sensibilities (a reasonable person) would find the contact offensive (objective test).
• contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy.
• def liable for direct and indirect contact (Sets in motion force that brings harmful/offensive contact with plaintiff’s person)

Question 44

liability for tespassing/wanderings animals (dogs)

Answer 44

• owner of animal can be held responsible for damage caused when animal escapes its owners property
• because dog is domestic animal, damage caused by defendant’s dog will generally create liability for compensation only if owner knew of dog’s “mischievous propensity”

some states impose strict liability for damage caused by wandering/trespassing dogs

Question 45

intentional torts elements

Answer 45

1. an act
2. intent and
3. causation

Question 46

intent

Answer 46

• actor acts with the purpose of causing the consequence OR
• the actor knows the consequence is substnatially certain to follow
• children and mentally incompetent people: can be held liable for intentional torts if they act with requisite intent

Question 47

battery: causation

Answer 47

must result in act of harmful or offensive nature

Question 48

battery: harmful or offensive contact

Answer 48

• harmful: causes an injury, pain, illness
• offensive: a person of ordinary sensibilities would find contact offensive, victim need not be conscious of touching to be offensive, and if victim is hypersensitive and def knows that then the def may still be liable
• contact: can be direct, but does not need to be
• with person of another: includes anything connected to plaintiff’s person

Question 49

battery: intent

Answer 49

• what has to be intended is the contact, not the offense
• the doctrine of transferred intent applies

Question 50

battery: damages

Answer 50

• no proof of actual harm is required; the plaintiff can recover nominal damages
• the plaintiff can also recover damages from physical harm flowing from the battery
• eggshell plaintiff: a def is liable for all harm that flows from battery, even if its much worse than def expected it to be
• many states allow punitive damages if def acted: outrageously or with malice

Question 51

battery: consent defense

Answer 51

there is no battery if there is express or implied consent

VVVVVVVVVV

negation of consent:

lack of capacity:
* Plaintiff’s lack of capacity due to youth, intoxication, or intellectual incompetence may negate validity of consent
* Plaintiff who appreciates nature, extent & potential consequences of defendant’s conduct has capacity to consent to it
* Adult generally is rebuttably presumed to have capacity to consent

duress

• Actual consent given under duress (e.g., physical force, threats) is not valid
• Threat must be of present action, not future action
• Threats of economic duress & moral pressure generally do not render plaintiff’s consent invalid

substantial mistake

Actual consent due to substantial mistake regarding nature of invasion of plaintiff’s interests, extent of expected harm, or defendant’s purpose in engaging in conduct is valid unless defendant:
* caused mistake by affirmative misrepresentation or fraud or knew of mistake

Question 52

trespass: privileges

Answer 52

• A defendant is generally liable for trespass if the defendant intentionally entered the plaintiff’s property without permission.
• However, a trespass may be excused by either of the following privileges:
  1. public necessity – an intrusion that is, or reasonably appears to be, necessary to protect a large number of people from a public disaster (e.g., hurricane, oil spill, spreading fire)
  2. private necessity – an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property
• When a trespass arises from private necessity, the property owner cannot recover nominal or punitive damages from the trespasser.
• But the trespasser remains liable for actual damages caused by the trespass unless the entry was for the property owner’s benefit (e.g., to protect the owner’s property).

when an actor has a privilege to enter the land of another because of a necessity, that privielege supersedes privilege of a landowner has in defense of property

Question 53

negligence: special relationship –> duty of care

Answer 53

At common law, that duty was described as one requiring the highest level of care consistent with the practical operations of the business.

Question 54

intentional interference with a contract

Answer 54

• To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:

1. a valid contract existed between the plaintiff and a third party
2. the defendant knew of that contractual relationship
3. the defendant intentionally and improperly interfered with the contract’s performance and
4. that interference caused the plaintiff pecuniary (monetary) loss.

• The plaintiff’s pecuniary loss need not be substantial for it to prevail on an intentional interference with contract claim.

A showing of any pecuniary loss is sufficient.
Therefore, a defendant’s argument that it did not substantially impact the plaintiff’s overall business—i.e., that its interference caused only a small pecuniary loss—will not absolve the defendant of liability on such claims.

Question 55

negligent misrepresentation

Answer 55

Negligent misrepresentation is based upon a breach of the duty to supply correct information and often arises in the context of accountants and other suppliers of commercial information (e.g., attorneys).
This tort requires proof of the following elements:
1. The defendant negligently provided false information during the course of his/her business or profession.
2. The plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result.
3. The plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied.

• However, a defendant who negligently provides information for a particular purpose is not liable for the plaintiff’s financial loss if the plaintiff used the information for a different purpose.
• defenses: negligence defenses
• damages: plaintiff can recover reliance (out-of-pocket) and consequential damages if the negligent representation is proven with sufficient certainty

Question 56

assault

Answer 56

• defendant engages in an act that
  1. causes reasonable apprehension of an imminent harmful or offensive bodily contact and
  2. the defendant intends to cause apprehension of such contact or to cause such contact itself
• bodily contact is not required
• plaintiff’s apprehension must be reasonable and plaintiff must be aware of the defendants action
• imminent: must be without significant delay, threats of future harm/hypothetical harm are not sufficient
• mere words do not constitute assault, but under certain circumstances if def able to carry out threat imminently and takes actions to put victim in apprheension, there may be assault
• intent: def must inend either to cause an apprehension of imminent harmful or offensive contact OR the contact itself
• no proof of actual damages required; plaintiff can recover nominal damages; plaintiff can recover damages from physical harm flowing from assault, and punitive damages may be available

Question 57

intentional infliction of emotional distress: public figures- constitutional limitations

Answer 57

• public figures and public officials cannot recover unless they can show that the words contain a false statement of fact that was made with actual malice
• actual malice: with knowledge that statement is false or with reckless disrefard of its potential falsity
• supreme court has suffested that even private plaintiffs cannot recover if the conduct at issue is speech on a matter of public concern

Question 58

intentional infliction of emotional distress: conduct toward third parties

Answer 58

if defendant directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another party, the doctrine of transferred intent may make him liable for IIED, but only under certain circumstances

immediate family member:
* immediate family member of victim who is present at time of conduct and perceives conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress

bystander: can recover for IIED if present at the time of conduct, perceives the conduct, and suffers distress that results in bodily injury (physical manifestation of the distress)

different intentional tort: if the defendant commits a different intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply

Question 59

intentional infliction of emotional distress: causation

Answer 59

defendant’s actions must be a cause in fact of the plaintiff’s harm

Question 60

intentional infliction of emotional distress: damages

Answer 60

• plaintiff must prove severe emotional distress beyond what a reasonable person should endure
• often outrageous nature of the conduct is evidence of the plaintiff’s distress
• hypersensitivity: if the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if aware of the plaintiff’s hypersensitivity
• physical injury is not required (except for bystander)

Question 61

false imprisonment

Answer 61

1. defendant intends to confine or restrain another within fixed boundaries;
2. the actions directly or indirectly results in confinement; and
3. plaintiff is conscious of the confinement or harmed by it

example: locking a person in a closet

damages: plaintiff can recover norminal damages; actual damages compensable

Question 62

false imprisonment: confined within bounded area

Answer 62

• area can be large
• does not need to be stationary

van is moving, but if person cannot leave the van, that is confinement

Question 63

false imprisonment: methods of confinement

Answer 63

• use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
• a court may find false imprisonment when the defendant has refused to perform a duty to help a person escape
• shopkeeper’s privilege: a shopkeeper can, for a limited time and in a reasonable manner, detain a suspected shoplifter

Question 64

false imprisonment: time of confinement

Answer 64

• immaterial to the tort

Question 65

false imprisonment: intent

Answer 65

• defendant must act with the purpose of confining the plaintiff or knowing that the plaintiff’s confinement is substantially certain to result
• confinement due to defendan’ts negligence: defendant will not be liable under intentional tort of false imprisonment
• transferred intent applies

Question 66

defenses to intentional torts involving personal injury

Answer 66

1. consent
2. self-defense
3. defense of others
4. defense of property
5. parental discipline
6. privilege of arrest

Question 67

defenses to intentional torts involving personal injury: consent

Answer 67

express consent: the plaintiff by words/actions manifests the willingness to submit to the defendant’s conduct
* defendant’s conduct may not exceed the scope of the consent
* consent by mistake: a valid defense unless the defendant caused the mistake or knew of it and took advantage of it
* consent by fraud: invalid if it goes to an essential matter; if the fraud only goes to a collateral matter, consent is still a valid defense

implied consent: the plaintiff is either silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent
* emergencies: its fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent
* injuries arising from athletic contests: contests within scope of the sport; a defendant could be liable if conduct is reckless

mutual consent to combat

capacity: lack of capacity may undermine the validity of consent (youth, intoxication, incompetency)

Question 68

defenses to intentional torts involving personal injury: self-defense

Answer 68

use of reasonable force: force that is proportionate to defend against an offensive contact or bodily harm

duty to retreat:
* traditionally most courts required retreat before one could use deadly force
* most jurisdictions state you need not retreat before using reasonable, proportionate force

initial aggressor: NOT permitted to claim self-defense unless the other party has responded to non-deadly force with deadly force

injuries to bystanders: a person acting in self-defense is not liable for injury to bystanders as long as injury was accidental and actor wasnt negligent toward bystander

there are stand your ground laws

Question 69

defenses to intentional torts involving personal injury: defense of others

Answer 69

• The privilege to use reasonable force in the defense of third parties exists when the defendant reasonably believes that:
  1. the circumstances are such that the third party has a privilege of self-defense and
  2. the defendant’s action is immediately necessary to protect the third party.
• And a defendant may use nondeadly force for the purpose of defending a third party if the defendant reasonably believes that:
  1. the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party,
  2. the force that the defendant is using is proportionate to the plaintiff’s use of force or threat of force, and
  3. the defendant can prevent the plaintiff’s force or threat of force only by the immediate use of the force the defendant is employing.

Question 70

defenses to intentional torts involving personal injury: defense of property

Answer 70

may use reasonable force in defense of others, if the others would be entitled to use self-defense

Question 71

defenses to intentional torts involving personal injury: defense of property

Answer 71

reasonable force: may be used if person reasonably believes its necessary to prevent tortious harm to the property

deadly force: cannot be used; a person may never use deadly mechanical devices to defend property (spring gun)

recapture of chattels (personal property):
* reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile
* if the original taking was lawful (like bailment) then only peaceful means may be used

force to regain posession of land
* common law: reasonable force permitted
* modern rule: use of force is no longer permitted; only legal process

Question 72

defenses to intentional torts involving personal injury: parental discipline

Answer 72

parents may use reasonable force as necessary to discipline children

Question 73

defenses to intentional torts involving personal injury: privilege of arrest

Answer 73

private citizen
* permitted to use reasonable force to make an arrest in the case of a felony IF
1. felony has actually been committed and
2. the arresting party has reaosnable grounds to suspect that the person being arrested has committed the felony
* it is a defense to make a reasonable mistake as to the identity of the felon
* it is not a defense to make a mistake as to whether the felony was actually committed

police
* must reasonably believe a felony has been committed and that the person arrested committed it
* an officer who makes a mistake as to whether a felony has been committed **is not **subject tort liability

misdemeanor
* an arrest by a police officer may only be made if the misdemeanor was committed in the officier’s presence
* an arrest by a private person may only be made if there is a “breach of the peace”

Question 74

tespass to land

Answer 74

• defendant intentionally causes a physical invasion (including causing objects to invade) of someone’s land, intent to commit wrongful trespass is not required
• mistake of fact is not a defense
• anyone in posession of land can bring an action, not just owner

Question 75

defenses to private nuisance

Answer 75

compliance with state/local administrative regulations
* evidence as to whether activity is reasonable
* not a complete defense

coming to the nuisance
* courts hesitant to find nuisance if you moved somewhere knowing about that conduct
* but NOT complete defense- one factor considered by court in determining whether plaintiff can recover

Question 76

negligence: standard of care–> automobile drivers

Answer 76

• guests and friends in a car: drivers traditionally liable only for grossly negligent, wanton, or willful misconduct (often under guest statutes”
• most jurisdictions apply a general duty of reasonable care standard to the driver of a car

Question 77

negligence: standard of care–> bailors and bailess

Answer 77

• bailment: a bailee temporarily takes posession of another’s (bailor) property
• common law: complicated rules regarding standard of care in bailment, like:
• bailor must warn a gratuitous bailee of known dangerous conditions
• if bailor receives sole benefit, bailee has lesser duty
• if bailee receives benefit, he has higher duty of care; even slight negligence can result in liability

Question 78

negligence: standard of care–> emergencies

Answer 78

standard of care is that of a reasonable person under the same circumstances

Question 79

negligence: possessors of land –> trespassors (attractive nuisance)

Answer 79

**may be liable for injuries to children trespassing on the land if **
1. an artificial condition exists in a place where the owner knows/has reason to know children are likley to trespass
2. the land posessor knows/has reason to know artificial condition poses an unreasonable risk of death or serious bodily harm
3. the children, because of their age, do not discover or cannot appreciate the danger
4. the utility of maintaining the condition is slight compared to the risk of injury and
5. the land possessor fails to exercise reasonable care

Question 80

landlord duties

Answer 80

• maintain safe common areas
• warn of hidden dangers
• repair hazardous conditions

off-premise victim
* land possessor generally not liable for injuries resulting from natural conditions
* exception: trees in urban areas
* artificial conditions: must prevent unreasonable risk of harm to persons not on the premises
* must exercise reasonable care in conducting activities on the land

as an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant’s control

Question 81

negligence: breach of duty

Answer 81

• custom: majority practice within an industry or profession is generally admissible, but not dispositive
• for professionals- lawyers doctors accountants electricians: custom admissible and disposiitive
• complicance with custom is shield= defensive
• deviation from custom is sword= offensive

physicians:
* same/similar locality
* modern trend: national standard
* informed consent: patients must give informed consent
* doctors must explain risk of medical procedures

**drs not required to inform patient if
**
* risks commonly known
* patient unconscious
* patient waives/refuses information
* patient is incompetent or
* patient would be harmed by disclosure

Question 82

causation: loss of chance (medical misdiagnosis)

Answer 82

• under traditional but-for test analysis, patient with less than 50% chance of survival could not recover for negligent misdiagnosis because they were likely to die anyway
• doctor’s negligence was not “but for” cause of patient’s death
• under loss of chance: if physician negligently reduces plaintiff’s chance of survival, plaintiff cna recover for the lost chance of recovery
• plaintiff cannot recover the entire amount of damages; but can recover the poriton that represents their loss of survival

Question 83

negligence damages: (actual) compensatory

Answer 83

• purpose is to make plaintiff whole again
• sometimes plaintiff can recover for non-economic damages (parasitic damages)

Question 84

negligence damages: mitigation

Answer 84

• plaintiff must take steps to mitigate damages
• can be considered a duty, but its more limitation on recovery

Question 85

negligence damages: personal injury- categories of compensatory damages

Answer 85

• medical expenses, both past and future
• lost income and reduced earning capacity
• pain and suffering, both past and future

Question 86

negligence damages: property damages

Answer 86

• general rule: plaintiff may recover the difference between market value of property before and after the injury
• cost of repair or replacement value of propertry before and after injury

Question 87

negligence damages: collateral-source rule

Answer 87

• traditional rule: benefits/payments to plaintiff form outside sources ARE NOT credited against liability of any tortfeasor
• evidence of such payments isnt admissible at trial
• modern trend: statutes eliminate/substantially modify collateral source rule to avoid double recovery

Question 88

negligence damages: punitive damages

Answer 88

• purpose is to punish and deter future conduct
• may be available if defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved
• availability may be limited by statute
• US Sup Ct held as matter of due process, punitive damages must be within single-digit ratio of any compensatory damages

Question 89

wrongful death and survival actions

Answer 89

1. wrongful death: brought by decedent’s spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent’s death and can include loss of economic support and loss of consortium
2. survival action: brought by rep of decedent’s estate on behalf of decedent for claims decedent would’ve had at time of decedent’s death, claims include damages resulting from personal injury or property damage

Question 90

negligence: recovery for loss arising from injury to family members

Answer 90

family members can claim loss of consortium or companionship

Question 91

wrongful life or wrongful birth claims

Answer 91

wrongful life:
* claimed by a child for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
* a few states permit wrongful life action but they limit the child’s recovery to the disability

wrongful birth
* claim by parents for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
* many states do permit recovery for the medical expenses of labor as well as for pain and suffering
* in case of child with disability, may be able to recover damages for the additional medical expenses of caring for that child, and some states you may recover for emotional distress

Question 92

vicarious liability (respondeat superior): scope of employment–> frolic and detour

Answer 92

• detour: minor deviation from scope of employment, the employer is vicariously liable
• frolic: major deviation from the scope of employment, the employer is not liable

Question 93

vicarious liability (respondeat superior): apparent agency doctrine

Answer 93

• independent contractor will be treated an an employee if:
• injured person accepted ic’s services based on reasonable belief that the ic was an employee, based on manifestations from the putative employer; and
• the ic negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability

Question 94

vicarious liability: business partners

Answer 94

can be liable for torts of other business partners committed within scope of business’s purpose

Question 95

vicarious liability: automobile owners

Answer 95

• negligent entrustment: owner directly liable for negligently entrusting vehicle (or dangerous object) to someone who is not in position to care for it
• family purpose doctrine: owner of automobile may be vicariously liable for tortious act of any fmaily member driving care w/ permission
• owner liability statutes: owener of automobile may be vicariously liable for tortious acts of anyone driving care with permission

Question 96

vicarious liability: dram shop

Answer 96

• holds bar owners and bartenders liable for injuries caused when people drink too much alcohol and injure third parties
• liability is based on statute and varies by state, especially liability for social hosts
• direct liability for the server’s own negligence in serving the peron
• if person goes to multiple bars and each bar on its own serves him enough to get incapacitated, one bar can be liable even though other negligent actors exist; each bar’s actions are a “substantial factor” in causing injury
• drunk driving is a foreseeable continuing consequence of a bar that violates dram shop laws

holds bar or social host liable IN ADDITION to the drunk driver, not INSTEAD OF the drunk driver

Question 97

immunities: federal and state governments

Answer 97

• traditionally, state and fed govts immune from tort liability
• immunity has been waived by statutes

Question 98

immunities: federal and state governments (federal tort claims act)

Answer 98

• expressly waives immunity and allows the federal government to be sued for certain kinds of torts
• exceptions (fed govt maintains immunity), including enumerated torts, discretionary functions, and traditional governmental activities

Question 99

immunities: federal and state governments (state governments and municipalities)

Answer 99

• most states have waived immunity to some extent
• municipalities generally governed by state tort claims statute
• governmental v. proprietary functions
• governmental functions (police, courts): immunity applies
• proprietary functions (performed by private company, utilities parking) immunity does not apply

Question 100

immunities: federal and state governments (government officials)

Answer 100

• discretionary functions: immunity applies
• ministerial functions: no immunity
• westfall act: precludes any personal liability on the part of fed employee under state tort law

Question 101

immunities: intra-family immunities

Answer 101

• largely eliminated; family can be sued for negligently injuring another family member
• core parenting activities- immunity still applies

Question 102

immunities: charities

Answer 102

eliminated in most states, though some states still limit recovery

Question 103

negligence defenses: comparative fault

Answer 103

• plaintiff’s negligence does not completely bar recovery; it limits the plaintiff’s ability to recover
• most jurisdictions apply this approach

not a defense to intentional torts
will reduce plaintiff’s recovery even if defendant’s conduct is wilful, wanton, reckless

Question 104

imputed contributory negligenc

Answer 104

• ones party’s negligence imputed to another party
• generally disfavored
• doesn’t apply:
  1. child plaintiff whose parent’s negligence was contributing cause of her harm, in a suit against 3rd party
  2. married plaintiff whose spouse contributorily negligent in causing harm, in suit against 3rd party

Question 105

strict liability: intrusion by livestock

Answer 105

Intrusion by livestock
* Foreseeable intrusion of livestock onto land of another and
* Intrusion causes physical harm typical of livestock (eg, consumption of grass)

The owner of an animal—other than a dog or cat—that intrudes upon another’s land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion (e.g., consumption of vegetation).
However, strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals.
The exception to this rule for dogs and cats does not apply if the owner knows or has reason to know that the dog or cat is intruding on another’s property in a way that has a tendency to cause substantial harm.
animals on public road: negligence standard

Question 106

strict liability: wild animals

Answer 106

Wild animals
* animals that, as a species or class, are not customarily kept in service of humankind
* owner’s strictly liable for harm arising from animal’s dangerous propensity (where person trips over porcupine because he does not see it, no strict liability, this does not stem from dangerous propensity of animal)
* if domestic animal, and known to be dangerous and owner knows/has reason to know of dangerous propensity, strict liability
* Category of typically undomesticated animal likely to cause personal injury unless restrained (eg, poisonous snake) and
* Physical harm caused by animal’s abnormal danger (or harm caused from fear of animal; even if animal is restrained)
* injuries to licensee/invitee: strictly liable

in some jurisdictions viscious watchdog injuries count

conflicting restrained animal from different sources…some restrainign it protects from liability…others no

Question 107

strict liability: abnormally dangerous animals

Answer 107

Abnormally dangerous animals
* Animal with dangerous tendencies other animals in that category typically lack (eg, rabid dog)
* Owner/possessor knows or should know of danger and
* Physical harm results from that danger (or fear from animal)

Question 108

strict liability: products

Answer 108

Strict products liability
1. product was defective (in manufacture, design, or failure to warn)
2. Defect existed when product left commercial supplier’s control and
3. defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way

Question 109

strict product liability: defective product–> manufacturing defect

Answer 109

• product deviated from its intended design
• the product does not conform to the manufacturer’s own specification

Question 110

strict product liability: defective product–> design defect

Answer 110

1. consumer expectation test: product defective if its less than safe than ordinary user would expect
2. risk-utility test: product defective in design if the risks outweight the benefits; must show reasonable alternative design

Question 111

strict product liability: defective product–> failure to warn

Answer 111

• failure to warn of foreseeable risk that is not obvious to an ordinary user
• NOT REQUIRED TO WARN OF OBVIOUS RISK (person cleaning furnace on ladder, manufacturer of furnace does not need to warn of danger in cleaning it)
• learned intermediary rule (often prescription drugs): manufacturer of prescription drugs must warn prescribing physician except if drugs marketed directly to consumers

Question 112

strict product liability: defective product–> inference of defect

Answer 112

courts may allow proof of defect by circumstantial evidence, especially when defect causes product to be destroyed

Question 113

defamation

Answer 113

in defamation action, plaintiff must prove defendant:
1. made a defamatory statement
2. that is of or concerning the plainitff
3. the statement was published to a third party who understoods its defamatory nature and
4. damages to plaintiff’s reputation results
* damages not required where statement was about plaintiff’s Commission of a serious crime, Unfitness for a trade or profession, Having a loathsome disease, Severe sexual misconduct (SUCH)
* A deceased person cannot legally be defamed; if defamatory statement made after person died, the deceased’s estate not have defamation claim

Question 114

defamation: defamatory language

Answer 114

• Language that diminishes respect, esteem, or good will toward the plaintiff, ordeters others from associating with the plaintiff
• Falsity—defamatory statements must be false in order to be actionable
• An opinion is not actionable as defamation. An opinion that implies a
  basis in fact is.

Question 115

defamation: of or concerning the plaintiff

Answer 115

A reasonable person must believe that the defamatory language referred to this particular plaintiff.
* Statements referring to a group—a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonablt be understood to refer to that member.

Question 116

defamation: publication

Answer 116

• The statement must be communicated to a third party.
• A person who repeats a defamatory statement may be liable for defamation.
• Federal statute provides that internet service providers and platforms are not publishers for the purposes of defamation.

Question 117

defamation: constitutional requirements

Answer 117

constitutional limitations will depend on the type of plaintiff and the content of the statement.
Types of plaintiffs

Public official:
a person who has substantial responsibility or control over a government office, including a political candidate

Public figure:

General purpose public figure—a person of persuasive power and influence in society
Limited purpose public figure—a person who thrusts himself into a particular public controversy

Private individuals

Constitutional limitations

Public official/public figure—the plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth

Also called the “actual malice” standard

Private individual

Matter of public concern—plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood (should have known the statement was false)

Not a matter of public concern—it is unclear whether constitutional limitations apply; a state need not require a plaintiff to prove negligence

Question 118

libel or slander

Answer 118

• Libel—a written, published, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications)
• Slander—a statement that is false
• Damages:
• Libel—plaintiff may recover general damages
• Slander—the plaintiff must prove special damages (requires a showing of economic loss); exceptions include statements communicating slander per se:
  1. Commission of a serious crime
  2. Unfitness for a trade or profession
  3. Having a loathsome disease
  4. Severe sexual misconduct

Question 119

defamation: constitutional limitations on damages

Answer 119

1. Private individual and matter of public concern—plaintiff can recover only actual damages unless she shows actual malice
2. Private individual but NOT a matter of public concern—plaintiff may recover general damages, including presumed damages, without proving actual malice.

Question 120

defenses to defamation

Answer 120

1. Truth—absolute defense; a truthful statement cannot be actionable as defamation.
2. Consent—if you consent to the defamation, you cannot sue.
3. Privileges
   * Absolute privileges—the speaker is completely shielded from liability for defamation; includes statements made:
   * In the course of judicial proceedings;
   * In the course of legislative proceedings;
   * Between spouses; and
   * In required publications by radio and TV (e.g., statements by a political candidate that a station must carry and may not censor)
   * Conditional privilege—the statement is made in good faith pursuant to some duty or responsibility; includes statements made:
   * In the interest of the defendant (e.g., defending your reputation);
   * In the interest of the recipient of the statement; or
   * Affecting some important public interest

Question 121

invasion of privacy

Answer 121

Right of privacy applies to people, not corporations
* Typically terminates upon the death of the plaintiff
* Invasion of privacy includes four separate causes of action: I FLAP (Intrusion, False Light, Appropriation, Private facts)
1. Intrusion Upon Seclusion—defendant intrudes upon the plaintiff’s private affairs, in a manner that is objectionable to a reasonable person (Phone tapping; hacking into medical records; peeping Toms, hidden camera on public sidewalk to record under skirts)
2. False Light—defendant
* (1) makes public facts about the plaintiff,
* (2) that place the plaintiff in a false light,
* (3) which would be highly offensive to a reasonable person
* (4) publication made with actual malice (reckless disregard of truthfulness)
(Writing a story about one person and including a mug shot of someone else.)
3. Appropriation of the Right to Publicity—a property-like cause of action when someone
* (1) appropriates another’s name or likeness
* (2) for the defendant’s advantage
* (3) without consent, and
* (4) causes injury
(must be exploitative, but it need not be commercial, like Utilizing someone’s voice in a commercial)
4. Public Disclosure of Private Facts
* (1) Defendant publicizes a matter concerning the private life of another; and
* (2) The matter publicized:
* Is highly offensive to a reasonable person; and
* Is not of legitimate concern to the public.
* remmeber, here the disclosure is about TRUTHFUL information

5. Damages—plaintiff need not prove special damages; emotional or mental distress is sufficient
6. Defenses
   * Qualified and absolute privilege—applicable to “false light” and “public disclosure” claims o Consent—applicable to invasion of privacy torts

• Truth—NOT a defense to privacy torts, as opposed to defamation

Question 122

intentional misrepresentation elements

Answer 122

1. False Representation
   * Must be about a material fact
   * Can involve deceptive or misleading statements
   * Can arise through concealing a material fact
   * Generally, no duty to disclose material facts to other parties; may be an affirmative duty if:
   - There is a fiduciary relationship;
   - The other party is likely to be misled by statements the defendant made earlier; or
   - The defendant is aware that the other party is mistaken about the
   basic facts of the transaction, and custom suggests that disclosure should be made.
2. Scienter—defendant has to know that the representation is false or acted with reckless disregard for its falsehood
3. Intent—defendant must intend to induce the plaintiff to act in reliance on the misrepresentation
4. Causation—the misrepresentation must have caused the plaintiff to act or refrain from acting
5. Justifiable Reliance—reliance is NOT justifiable if the facts are obviously false or it is clear that the defendant was stating an opinion.
6. Damages
   * Plaintiff must prove actual, economic, pecuniary loss
   * pecuniary damages are NOT available.
   * Most jurisdictions—recovery is the “benefit of the bargain”: the
   difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true (contract-like damages)
   * Some jurisdictions—allow only out-of-pocket losses (tort-like damages) or the cost of conforming

Question 123

intentional interference with business relations: interference with a prospective economic advantage

Answer 123

• Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a contract
• The elements are the same as for intentional interference with a contract (without the contract), but the conduct must be wrongful.

Question 124

intentional interference with business relations: misappropriation of trade secrets

Answer 124

• Plaintiff owns information that is a valid trade secret
• Plaintiff has taken reasonable precautions to protect it; and
• Defendant acquires the secret by improper means

Question 125

injurious falsehoods: trade libel

Answer 125

Trade Libel—need not necessarily damage the business’s reputation
* Publication;
* Of a false or derogatory statement;
* With malice;
* Relating to the plaintiff’s title to his business, the quality of his business, or the quality of its
products; and
* Causing special damages as a result of interference with or damage
to business relationships

Question 126

injurious falsehoods: slander of title

Answer 126

• Publication;
• Of a false statement;
• Derogatory to the plaintiff’s title;
• With malice;
• Causing special damages; and
• Diminishes value in the eyes of third parties.

Question 127

wrongful use of the legal system: malicious prosecution

Answer 127

A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought.

Question 128

wrongful use of the legal system: abuse of process

Answer 128

• The defendant sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive.
• Some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding
• The conduct must also cause damages.

Example A local board of education sued a teachers’ union and subpoenaed 87 teachers for a hearing in order to prevent the teachers from walking a picket line during a labor dispute between the union and the board.

Question 129

pure several liability

Answer 129

each tortfeasor is liable only for his proportionate share of the plaintiff’s damages