Part Four: Misc. Torts Flashcards
Misrepresentation, Interference w Business Relations; Wrongful Institution of Business Proceedings
What are the torts covered as “Misc. Torts”?
- Misrepresentation (intentional/negligent)
- Interference with Business Relations
- Malicious Prosecution
- Abuse of Process
What is the prima facie case for “Intentional Misrepresentation” (Fraud/Deceit)?
- “Misrepresentation” of a material past or present fact;
- “Scienter” - when D made statement, she KNEW OR BELIEVED it was false OR there was no basis for the statement;
- “Intent” to induce P to act or refrain from acting IN RELIANCE upon misrepresentation
- “causation” = actual reliance
- “justifiable reliance”; and
- “Damages” - actual pecuniary loss
Are there any defenses to “Intentional Misrepresentation” (Fraud/Deceit)?
No.
With regards to “Intentional Misrepresentation”, is there a duty to disclose?
Generally: There is no duty to disclose a material fact, UNLESS D:
- Stands in fiduciary relationship to P;
- is selling REAL PROPERTY and knows P is unaware of, and cannot reasonably discover, material information about the transaction OR
- has spoken and her utterance deceives P
With regards to “Intentional Misrepresentation”, can concealment constitute misrepresentation?
YES.
Physical concealment of a material fact may constitute a misrepresentation.
With regards to “Intentional Misrepresentation,” what is D’s liability to a 3rd party?
If a 3rd party relies on D’s representation, D will be liable IF she could REASONABLY FORESEE that the 3rd party would so rely.
With regards to “Intentional Misrepresentation,” what is the rule regarding reliance on opinion?
Generally: Reliance is justifiable ONLY if it is on representation of fact.
NOTE: P has no duty to investigate.
HOWEVER –> P may rely on opinion IF D has a superior knowledge on the subject matter.
What is the prima facie case for “Negligent Misrepresentation”? (Five Elements)
- “Misrepresentation” in BUSINESS OR PROFESSIONAL capacity;
- “breach of duty” toward particular P
- “Causation”
- “Justifiable Reliance”
- “Damages”
What are the two special issues that arise with “Negligent Misrepresentation”?
- Generally, only good for misrepresentations made in a COMMERCIAL SETTING
- Generally, liability will only attach if reliance by a PARTICULAR P could be contemplated. (ie…for NEGLIGENT misrepresentation, foreseeability that statement will be communicated to a 3rd party DOES NOT make D liable to 3rd party).
What is the prima facie case for “Interference with Business Relations”? (Four Elements)
- Existence of a VALID CONTRACTUAL RELATIONSHIP between P and 3rd party or VALID BUSINESS EXPECTANCY of P;
- D’s KNOWLEDGE of relationship or expectancy;
- INTENTIONAL INTERFERENCE by D inducing a breach or termination of the relationship or expectancy;
- Damages
With regards “Interference with Business Relations”? when may privilege exist?
D’s conduct MAY be privileged where it is a PROPER ATTEMPT to obtain business for itself or protect its interests.
Privilege is more likely to be found if:
- D interfered w/ prospective rather than existing contracts;
- used commercially acceptable means of persuasion;
- Is a competitor of P seeking same customers; OR
- has a financial interest in the 3rd party, or is responding to 3rd parties request for business advice
What is the prima facie case for “Malicious Prosecution” (Five Elements)?
- Institution of criminal proceedings against P
- Termination in P’s favor
- absence of probable cause
- improper purpose
- damages
Does “Malicious Prosecution” extend to civil cases?
Most jurisdictions have extended malicious prosecution to apply to civil cases.
With regards to “Malicious Prosecution” - what is the liability of prosecutors?
Prosecutors are immune from liability
What is the prima facie case for “Abuse of Process”?
- wrongful use of process for an ulterior purpose;
2. definite ACT OR THREAT against P in order to accomplish ulterior purpose
