Other Torts

Question 1

What are the four invasion of privacy torts?

Answer 1

• Intrusion into seclusion
• Commercial appropriation of likeness or identity
• Public disclosure of private true facts
• Portrayal in false light

Question 2

What is the tort of intrusion into seclusion?

Answer 2

• D unreasonably intrudes into P’s seclusion (zone of privacy).
• Intrusion must be highly objectionable to a reasonable person (e.g. wiretapping, stalking).

Question 3

What damages may be awarded for intrusion into seclusion?

Answer 3

• Damages include compensatory damages (e.g. mental distress) and if bad enough, punitive damages

Question 4

What is the tort of commercial appropriation of likeness or identity?

Answer 4

• Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage. Newsworthy purpose of P’s likeness or identity is exempt.
  o EXAMPLE: Duncan is the editor of Sports Today magazine. He wants to publish an article about baseball star Paul and sends a writer to interview him. The writer takes a picture in which Paul is holding a can of Bubbli soda. Bubbli uses the picture to start an ad campaign. Paul sues Sports Today and Bubbli. Paul will lose against Sports Today, but will win his suit against Bubbli for commercial appropriation.

Question 5

What are the elements of the tort of public disclosure of private true facts?

Answer 5

• Disclosure +
• of private facts +
• disclosure is highly offensive to reasonable person +
• not newsworthy.

Question 6

Can D be found liable for the public disclosure of private true facts if D got the info from public records?

Answer 6

• If D gets information from public records, D cannot be liable for sharing that information

Question 7

What is the tort of portrayal in false light?

Answer 7

• D publishes matters portraying P in a false light. Looks like defamation but not quite, like saying someone has cancer or is poor.
• P must show:
  o Publication;
  o False information;
  o Divulging of information is highly offensive to reasonable person; and
  o Some level of fault (parallel to defamation rules - actual malice, etc.).

Question 8

What are the three torts related to wrongful legal proceedings?

Answer 8

• Malicious prosecution
• Wrongful institution of civil proceedings
• Abuse of process

Question 9

What is malicious prosecution?

Answer 9

• Criminal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages. P must prevail on the merits.
• Wrongful Institution of Civil Proceedings: Similar to malicious prosecution.

Question 10

What is abuse of process?

Answer 10

• Exists where D intentionally misuses a judicial process (civil or criminal) for a purpose other than that for which it was intended. Also similar to malicious prosecution.
  o EXAMPLE: Dan attaches a piece of real property that belongs to Pierre. He claims he does it in order to preserve the real property in order to pay off a judgment. However, the real reason is he knows someone else wants to buy it, so he wants to pull it off the market.

Question 11

What are the five economic torts?

Answer 11

• Intentional misrepresentation
• Negligent misrepresentation
• Interference with contractual relations
• Interference with prospective economic advantage
• Injurious falsehood

Question 12

What are the elements to prove intentional misrepresentation?

Answer 12

• P must prove four elements:
  o Intentional material misrepresentation by D;
  o Of past or present fact;
  o Made with knowledge; and
  o On which the P justifiably relies to P’s economic detriment.

Question 13

What two forms can the intentional misrepresentation take?

Answer 13

• Misrepresentation can be a false, affirmative assertion of fact (engine is new) or an active concealment (roll back odometer).

Question 14

Can a failure to disclose a fact constitute intentional misrepresentation?

Answer 14

• Failure to disclose is not enough unless:
  o There is a fiduciary relationship;
  o There is an ambiguous or misleading statement that causes reliance;
  o D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and D fails to disclose;
  o D makes a false assertion not intending reliance but discovers P relied; or
  o P reasonably expects there would be disclosure.

Question 15

What mental state is required for D to commit intentional misrepresentation?

Answer 15

• D must intend P (or class of persons which P belongs) to rely (will act or fail to act in reliance on D’s misrepresentation).
• Scienter present when D knew statement was false or is reckless as to veracity.
  o EXAMPLE: Dinah tells Porter that the corn that she is selling him is Grade A, when it is in fact Grade B. Porter sues for fraud. Clearly, Dinah intended for Porter to rely on her representation, but if Dinah accidentally looked at the wrong invoice, Porter would lose his fraud claim because there was no scienter. However, Dinah might be negligent.

Question 16

When does D commit negligent misrepresentation?

Answer 16

• D generally has no duty to avoid negligent infliction of pure economic loss.
  o EXAMPLE: DunCo deals with dangerous chemicals and starts a chemical fire. To prevent harm to businesses in the area, DunCo notifies plaintiff to evacuate. Plaintiff loses $1M in business because it had to be shut down. Plaintiff sues DunCo and loses. If the fire had damaged Plaintiff’s building, Plaintiff would be entitled to recover for those economic losses.
• However there are two exceptions:
  o Special relationship
  o Acting to benefit a third party

Question 17

When would a special relationship make D liable for negligent misrepresentation?

Answer 17

• When there is a special relationship, like a fiduciary duty, or if D knows that they are acting for the benefit of a third party, and they rely and suffer economic loss.
  o EXAMPLE: A lawyer prepares a contract for a client and drafts it negligently so that the client loses $1M. The client sues for malpractice. The lawyer cannot avoid liability because the loss is purely economic. There is a fiduciary duty.
  o EXAMPLE: Accounting firm does its job negligently and misstates the value of the company that hires the accounting firm. If the hiring company suffers harm as a result, they can recover from the firm.

Question 18

When would acting to benefit a third party make D liable for negligent misrepresentation?

Answer 18

• If D knows that they are acting for the benefit of a third party and the third party relies and suffers economic loss.
  o EXAMPLE: Widget Company hires a well-known consulting firm to do an audit because Widget wants to get a $10M loan to fund a new product line. The consulting firm is negligent and overstates the value of Widget. National Bank, who lends Widget $10M, wants to sue the firm when Widget goes bankrupt. Because the consulting firm knew it was auditing to benefit the bank in town and it knew the bank would rely on that audit, the firm owed a duty and breached it.

Question 19

What must P show to prove interference with contractual relations?

Answer 19

• D knew that there is a contract between P and a third party; and
• D acted with the purpose of having the contract breached or making it harder to perform.
  o EXAMPLE: DinCo approaches Xavier Co. and says that they want a kind of widget. They knew that Xavier has a contract with Port Co. to sell all of their widgets. DinCo says they will pay Xavier 3 times the amount Port is paying and Xavier agrees. Port will win if they sue DinCo.

Question 20

What must P show to prove interference with prospective economic advantage?

Answer 20

• Protects “expectancy” interests of future contract relations of a party.
• P can prevail only by showing that D:
  o Knew of prospective economic advantage; and
  o Acted to interfere with it for improper motives.
• D can act to protect their own competitive interests.

Question 21

What must P show to prove injurious falsehood?

Answer 21

• False statement;
• Actual malice or D knew statement was false or recklessly disregarded veracity;
• Made to another or published; and
• Causing specific economic injury to P.
• NOTE: Not about reputational harm but about economic loss.
  o EXAMPLE: Connie approaches Owen, the owner of Music Company, and asks if the store has a rare album of duets. Owen says no, and Connie asks if Parker Records does. Owen knows that they do, but does not want to give them business and says no. If Parker Records finds out, it could recover for injurious falsehood.

Question 22

What is the respondeat superior doctrine?

Answer 22

• Employer is liable for injuries caused by the negligence or strict liability of the employee if it occurred within the scope of employment

Question 23

Can an employer be liable for negligent hiring?

Answer 23

• Employer can be directly liable if negligent hiring.

Question 24

Can an employer be liable for intentional torts of employees?

Answer 24

• Intentional torts by employees are generally outside the scope of employment, except when the employee uses force to further the employer’s purposes (e.g. bouncer at a bar commits battery when ejecting an unruly patron). Such use of force may fall within the scope of employment, resulting in vicarious liability for the employer.

Question 25

Can an employer be held liable by torts committed by an independent contractor?

Answer 25

• D is not liable for torts committed by ICs because D has no right to control the performance of the ICs.

Question 26

What is the difference between an employee and independent contractor?

Answer 26

• Employee vs. IC status depends on whether the employer who hired dictates the means, method, and manner of the ICs work. The more control exercised, the more likely the person is an employee and not an IC.

Question 27

Are parents liable for the torts of their children?

Answer 27

• Parents are not generally vicariously liable for torts of the child absent a statute saying otherwise.
• Parents can be liable for their own negligence, negligent supervision, or entrustment.

Question 28

What are survival statutes?

Answer 28

• They state that the death of the victim or tortfeasor does not abate tort action (like it used to in the past). Instead, a claim can be brought by estate of decedent.

Question 29

What are wrongful death statutes?

Answer 29

• All jurisdictions statutorily provide for an action by which either heirs of a deceased victim or personal representative of victim’s estate may bring action for wrongful death for their own losses resulting from victim’s death (e.g. wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses).

Question 30

What is loss of consortium?

Answer 30

• Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc.
  o EXAMPLE: Deirdre is driving negligently and she hits and severely injures Preston. Preston is in great pain, is in the hospital for six months, and then dies from the injuries. Preston has a wife and minor child. Once Preston has died, the estate can continue his claim through a survival statute. His wife can bring an action for loss of consortium for the six months he was in the hospital. Once he dies, his wife and child can both bring a claim for wrongful death, suing for their own injuries suffered due to Preston’s injury and death.