Torts

Question 1

What is the level of proof required for intentional tort

Answer 1

preponderance of evidence

Question 2

What 4 elements need to be shown to make out a case for negligence

Answer 2

[in this order - they build on each other]

1) Duty
2) Breach
3) Causation
4) Damages

Question 3

hypo: negligent D causes breaches a DOC and causes harm to P1. P2 is also harmed. when can P2 recover?

Answer 3

P2 can recover ONLY IF they can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances.

Question 4

Res Ipsa Loquitur elements

Answer 4

1) The accident causing the injury is of a type that would not normally occur unless someone was negligent
2) The negligence must be attributable to the defendant; and
3) The plaintiff must be free from fault – the plaintiff must show that the injury was not attributable to her

Question 5

Negligence per se

Answer 5

Established by violation of a statute if plaintiff shows:

• she is in the class intended to be protected by the statute; and
• The statute was designed to prevent the type of harm that she suffered

Establishes duty and breach

exception: can break the law (to an extent) in an emergency situation

Question 6

difference between res ipsa and negligence per se

Answer 6

res ipsa - inference of negligence does not shift the burden of production

negligence per se - presumption of negligence shifts burden of production

Both establish duty and breach ; either is sufficient to overcome directed verdict

Question 7

Tests for Actual Cause (Cause in fact)

Answer 7

“But for” test - several acts, each insufficient to cause injury alone combine to cause injury

Substantial factor test - several causes and any one alone would have been sufficient

Alternative causes approach - several acts, but only one causes P’s injury

Question 8

Proximate Causation

Answer 8

• Typically there is more than one actual cause for plaintiff’s injury
• Proximate cause/legal cause limits the scope of liability
• A defendant is only liable for the harmful results that are the normal and foreseeable consequences of his acts

Question 9

Damage calculation for negligence on exam

Answer 9

Assume pure comparative negligence unless facts tell you otherwise

Pure comparative jurisdiction - P’s recovery is reduced by percentage fo fault attributed to her. P may recover no matter how great her fault

OPTIONALLY if exam tells you…

Modified comparative negligence jurisdiction - P can recover only if she is less than 50% at fault

Question 10

Duty to control conduct of 3rd party when:

Answer 10

• One has the authority and ability to control the conduct of the third party
• One knows or has reason to know of the need to exercise such control

Question 11

Respondeat Superior

Answer 11

• Employer is vicariously liable for any negligent acts of his employees committed within the scope of employment
• Doctrine applies to intentional torts where “force is inherent in the nature of employment”

Question 12

Conversion of Chattels

Answer 12

Conversion consists of (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages

—an interference that is serious enough in nature or consequence to warrant that the defendant pay the full market value of the chattel. Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability.

Even if the conduct is wholly innocent, liability will attach when the interference with the chattel is serious in nature.

Question 13

Res Ipsa Loquitur elements

Answer 13

1. The accident is of a type that normally does not occur in the absence of someone’s negligence; 2. The evidence connects the defendant to the negligence (i.e., this type of accident ordinarily happens because of the negligence of someone in the defendant’s position); and 3. The injury was not attributable to the plaintiff or any third person.

one effect of res ipsa -> No directed verdict may be given for the defendant.

Question 14

Private Nuisance Elements

Answer 14

A substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land

Question 15

Duty owed to trespassers of land

Answer 15

An owner or occupier of land owes no duty to an undiscovered trespasser. However, with regard to a discovered trespasser, the owner or occupier must 1) warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover and 2) use reasonable care in the exercise of “active operations” on the property

Question 16

What are the elements analyzed in a negligence action

Answer 16

Negligence prima facie case:

1) duty of care
2) breach of duty
3) actual and proximate cause
4) damages

Remember, D must act as a reasonably prudent person under the same or similar circumstances would while engaging in that activity

Question 17

Elements of battery

Answer 17

1) harmful or offensive contact
2) to P’s person
3) Intent; and
4) Causation

Question 18

How to show actual cause in product defect case

Answer 18

The basic requirement to show actual cause is that the defect in the product must have existed when the product left the defendant’s control. When a defect is difficult to establish (such as if the product is destroyed), the plaintiff may rely on an inference that such a product failure ordinarily would occur only as a result of a defect (similar to res ipsa loquitur). To show that inadequate warnings were an actual cause of the injury, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).

Question 19

Does the defendant manufacturer have a defense if the retailer discovered the defect during the course of an inspection but failed to warn the buyer?

Answer 19

Yes

The same concepts of proximate cause governing general negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of an intermediary to discover the defect does not cut off the supplier’s strict liability. But when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. The manufacturer can argue that the retailer’s failure to take action after discovering a defect was not foreseeable and therefore cuts off the manufacturer’s liability for the defect.

Question 20

In a products liability action based on strict liability, the plaintiff needs to show:

Answer 20

(i) the defendant is a commercial supplier, (ii) the defendant produced or sold a product that was defective when it left the defendant’s control, (iii) the defective product was an actual and proximate cause of the plaintiff’s injury, and (iv) the plaintiff suffered damages to person or property.

Question 21

While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when:

Answer 21

(i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer.

Question 22

A principal will be vicariously liable for the tortious acts of her independent contractor __________.

Answer 22

A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however:

(i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers.

Question 23

What if there are two potential causes of damage in a negligence case? how do we handle the claims?

Answer 23

when two or more persons have been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not the actual cause of the injury

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for the entire damage incurred.

Before a defendant will be liable for a breach of duty to the plaintiff, it must be shown that the breach was the actual and proximate cause of the injury. The general test for determining whether an act or omission is the actual cause of the injury is the “but for” test, i.e., whether the injury would not have occurred but for the act or omission. Under certain circumstances, however, the “but for” test is inadequate to determine actual cause. Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant’s conduct was a substantial factor in causing the injury.

Question 24

Battery elements

Answer 24

1) intent to cause harmful or offensive touching
2) harmful touching occurs

defense would be other person consented

Question 25

What damages are owed in a conversion case?

Answer 25

The fair market value for the chattel that was converted.

remember, conversion is the offensive of serious interference with the owner’s chattel

Question 26

Trespass to land

Answer 26

elements:

1) Physical invasion of plaintiff’s real property
2) Intent; and
3) Causation

Defense: necessity

private -> avoid a greater harm to yourself or family/friends: liable for any damage AND
public -> save member of community: no damage liability

Question 27

Intentional affliction of emotional distress

Answer 27

To establish a prima facie case for intentional infliction of emotional distress, plaintiff must show:

(i) an act by defendant amounting to extreme and outrageous conduct,
(ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct,
(iii) causation, and
(iv) damages-severe emotional distress.

Question 28

Negligent infliction of emotional distress

Answer 28

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.

must show:
1) the plaintiff must be within the “zone of danger”; and 2) the plaintiff must suffer physical symptoms from the distress

exceptions: mishandling of a corpse and false report of a death

Question 29

Evaluating standard of care for a child

Answer 29

When the tortfeasor is a child, the standard of care generally imposed by the courts in negligence actions is that of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors.

exception: when engaging in an activity that is reserved for adults

Question 30

duties owed to invitees on property

Answer 30

Invitees enter onto the land in response to an invitation by the landowner.

duty owed: same duty owed to licensees plus a duty to make reasonable inspections to discover non obvious dangerous conditions and make them safe

[refresh licensee duty: The possessor has a duty to 1) warn of or make safe dangerous conditions (natural or artificial) know to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and 2) exercise reasonable care in the conduct of “active operations” on the property. ]

a person loses his status as an invitee if he exceeds the scope of the invitation-e.g., if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. drops down to duty of anticipated trespasser

Question 31

duty owed to anticipated trespasser

Answer 31

duty to be warned of known dangerous artificial conditions on the property

Question 32

defamation elements

Answer 32

common law:

1) defamatory language
2) “of or concerning” the plaintiff
3) Publication thereof by defendant to a third person; and
4) damage to plaintiff’s reputation

if defamation involves a matter of public concern, the Constitution requires the plaintiff prove additional elements:

5) Falsity of the defamatory language; and
6) Fault on the part of the defendant

If the plaintiff is a public figure (or public official) or a matter of public concern is involved, the plaintiff must also prove falsity and fault on the defendant’s part. The type of fault required when a public figure or public official is involved is “actual malice,” defined as knowledge that the statement was false or reckless disregard as to its truth or falsity.

per se violations: LUMP

Loathsome disease
Unchaste -> imputing woman’s chastity
moral turpitude -> accusing someone of committing crime of moral turpitude
Professional -> impugning someones trade or profession

Question 33

Privacy torts : CLIP

Answer 33

Commercial misappropriation (needs publication)
False Light (needs publication)
Intrusions into ones seclusion or solitude
Public disclosure of private facts (needs publication)

Question 34

Trespass to chattels

Answer 34

Trespass to chattels requires (i) an act of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages.

The act of interference may be either dispossession of or damage to the chattel.

Question 35

Assault

Answer 35

1) An act by defendant creating a reasonable apprehension in plaintiff
2) of immediate harmful or offensive contact to plaintiff’s person
3) Intent; and
4) Causation

Question 36

duty owed to licensees

Answer 36

A licensee is one who enters onto the land with the possessor’s permission for her OWN PURPOSE OR BUSINESS, rather than for the possessor’s benefit.

The possessor has a duty to 1) warn of or make safe dangerous conditions (natural or artificial) know to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and 2) exercise reasonable care in the conduct of “active operations” on the property. Possessor has no duty to inspect or repair

On public policy grounds, firefighters and police officers are considered licensees when they enter a premises in discharge of their duties.

Question 37

when may violation of a statute be excused in a negligence action?

Answer 37

violation of the statute may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control.

Question 38

False imprisonment elements

Answer 38

1) An act or omission on the part of defendant that confines or restrains plaintiff a bounded area
2) Intent; and
3) Causation

[future threats or moral pressure are not enough for restraint]

Question 39

Duty of lessor and lessee of realty

Answer 39

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable fo unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently he is liable.

Question 40

Common Law Defamation

Answer 40

1) defamatory language
2) “of or concerning” the plaintiff
3) Publication thereof by defendant to a third person; and
4) damage to plaintiff’s reputation

Question 41

Invasion of the right to privacy

Answer 41

four kinds of wrongs:

1) Appropriation of Plaintiff’s Picture or Name: must show unauthorized use of P’s picture or name for D’s commercial advantage.
2) Intrusion on Plaintiff’s Affairs or Seclusion: The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be “private”. Photographs in public places are not acceptable
3) Publication of Facts Placing Plaintiff in a False Light: exists where one attributes to P views he does not hold or actions he did not take. the false light must be something highly offensive to a reasonable person. Requires publication. note: if the matter is of public interest, actual malice on defendant’s part must be proven
4) Public Disclosure of Private Facts About Plaintiff: involves public disclosure of private information about plaintiff. Public disclosure must be highly offensive to a reasonable person. Liability may attach even if actual statement is true.

Question 42

Evaluating a rescuer as a foreseeable plaintiff in a negligence case:

Answer 42

All of the circumstances will be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct.

Question 43

A golfer and her instructor were playing golf in a foursome when the golfer became very annoyed with critical comments made by the instructor. To show the other golfers in the group how annoyed she was with her instructor, the golfer stood a few yards behind him while the instructor was teeing off and swung a club at him. The instructor, who was focusing on his shot, was not within range of the club but unfortunately the club slipped out of the golfer’s hands and struck the instructor in the head, injuring him.

If the instructor brings a battery action against the golfer, will he recover?

Answer 43

The golfer will not be liable because she did not intend to cause harmful or offensive contact. The prima facie case for battery has the following elements: (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and (iii) causation. Here, the golfer did not have the intent to cause harmful or offensive contact.

The facts do not support an intent to cause an assault. Under the transferred intent doctrine, an intent to cause an assault (intent to cause apprehension of imminent harmful or offensive contact) will satisfy the intent requirement for battery when the other elements of battery are present. Here, however, the golfer was standing behind the instructor and was intending only to show the other golfers how annoyed she was. No intent to commit assault is apparent here

Question 44

A college student borrowed his roommate’s notebook computer without permission because he needed to write a term paper that was due the next day. While the computer was sitting open on the student’s desk overnight, a water pipe in the ceiling began leaking and water dripped down on the computer, rendering it inoperable. A computer repair service estimated that it would cost $500 to repair all the damaged components. At the time it was damaged, the computer was worth $700.

If the roommate sues the student for the damage caused to the computer, what will be the extent of his recovery?

Answer 44

The roommate can recover $700 in damages from the student for conversion. To establish a prima facie case of conversion, the following elements must be proved: (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages-an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature. Accordingly, accidentally causing damage to another’s chattel may constitute a conversion when the damage occurred while the defendant was using the chattel without permission. Here, the student interfered with the roommate’s right of possession in the computer by taking it without permission, and it sustained damages of over 70% of its value while in the student’s possession. Hence, the student has committed a conversion. The plaintiff in a conversion case is entitled to damages for the fair market value of the chattel at the time and place of the conversion, which in this case was $700.

Question 45

A small cruise ship struck a whale swimming underwater, causing the ship to suddenly lurch sideways. A passenger on the ship who was walking down a corridor lost his balance and bumped his head on the edge of a doorway. Because of a previously existing medical condition that made him susceptible to bleeding on the brain, he suffered a cerebral hemorrhage and permanent mental impairment, despite prompt medical attention on the ship.

The passenger brought suit against the cruise ship owner for his damages. At trial, the passenger presented evidence of how he was injured as he walked down the hallway, his previous medical condition, and his medical expenses and other damages. The cruise ship owner presented evidence that the cruise ship was following its approved route and that the whale could not have been detected before impact, and that the bump would not have injured someone in ordinary health. At the close of the evidence, the cruise ship owner moved for a directed verdict.

How should the court rule?

Answer 45

The court should grant the cruise ship owner’s motion because the passenger has not established a prima facie case of negligence against the cruise ship. To establish a prima facie case for negligence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. As a common carrier and/or an innkeeper, the cruise ship owed its passengers a high duty of care, and therefore would be liable for slight negligence. However, the passenger has offered no evidence to establish that the cruise ship employees breached that duty, and res ipsa loquitur is not applicable here because the collision with the whale swimming underwater is not the type of event that would occur only as a result of negligence. Because the passenger failed to establish breach of duty, the court should grant the cruise ship owner a directed verdict.

Question 46

In the course of repainting an apartment, the landlord of a small apartment building used a professional strength, stain-killing primer manufactured by a paint company for professional painters. The building’s common ventilation system was running as the landlord applied the primer, and some fumes from the primer went through the ventilation system into the apartment of the upstairs tenant, who suffered injuries to her eyes as a result. The warning label on the can, which the landlord read, stated: “Danger. This material is extremely hazardous and volatile. Do not use near open flame. Use only with adequate ventilation.” The product contained a chemical known to be harmful to people’s eyes, but in the 15 years that the product has been on the market, there were no reported cases of anyone suffering an eye injury from the product. However, professional painters routinely close off or shut down any common ventilation systems in buildings before using the product.

If the tenant brings an action against the paint company on a theory of strict liability, will she recover?

Answer 46

The tenant will likely prevail because the lack of a warning about eye injuries made the product unreasonably dangerous. A products liability action based on strict liability requires the following: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a product that was defective when it left the defendant’s control; (iii) the defective product was the actual and proximate cause of the plaintiff’s injury; and (iv) the plaintiff suffered damage to person or property. Here, the paint company is a commercial supplier of a “defective” product. Although the primer was not actually defective in that it apparently performed as it was meant to do, it is legally defective if it was unreasonably dangerous and could be made safer by adequate warnings. Here, the paint company knew of the danger and could easily have placed a specific warning on the label. Even though professional users may have known of the danger, it was not obvious, and it could have been avoided at minimal cost by including a specific warning. That would have alerted the landlord to the danger, making it more likely that he would take precautions that would have prevented the tenant from being injured. To prove actual cause where the plaintiff’s claim is that the product is defective because of lack of an adequate warning, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded. Thus, the tenant can likely establish liability on her cause of action.

Question 47

A hot-air balloon touring company operated near a golf course. The company’s property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing.

A golfer on the golf course hit an errant shot onto the company’s property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company’s balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her.

The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity.

In an action by the golfer against the company, does the company have any affirmative defenses?

Answer 47

Yes, because the golfer assumed the risk by coming onto the company’s property.

A plaintiff who knowingly and voluntarily assumes the risk of injury caused by the defendant’s conduct may be subject to the defense of assumption of risk. In a strict liability action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff’s recovery under comparative fault principles. Here, the golfer ignored the signs warning of the dangers of balloons landing and jumped over the fence to retrieve her golf ball. Accordingly, even though the company’s activity is deemed abnormally dangerous and subject to strict liability, the company can defend on the basis that the golfer assumed the risk by coming onto the company’s property.

While the company was engaged in an abnormally dangerous activity for which it will be strictly liable, it has an assumption of risk defense based on the golfer’s conduct.

Question 48

A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill.

In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail?

Answer 48

No, because the mother was neither the direct victim of the doctor’s conduct nor a contemporaneous witness.

When the defendant intentionally causes severe, physical harm to a third person and the plaintiff suffers severe emotional distress because of her relationship to the injured person, the elements of intent and causation in an action for intentional infliction of emotional distress may be harder to prove. To establish these elements in such cases, the plaintiff is generally required to show the following: (1) the plaintiff was present when the injury occurred to the other person; (2) the plaintiff was a close relative of the injured person; and (3) the defendant knew that the plaintiff was present and a close relative of the injured person. Here, the mother was not present when the doctor molested her child, so she cannot recover under these criteria. Note that the plaintiff does not need to establish presence or a family relationship if she shows that the defendant had a design or purpose to cause severe distress to the plaintiff, but there is no evidence of that in the facts.

Question 49

A homeowner resides downhill from a metal fabrication facility. She has sued both the owner of the facility and the supplier of a solvent used at the facility. She contends that contaminants, consisting mostly of the solvent, were released into the ground at the facility and have migrated and continue to migrate to her property, contaminating the soil, the groundwater, and her well. She alleges various acts of negligence on the part of the facility owner in causing the release of the contaminants into the ground. She also alleges that employees of the solvent supplier were negligent in frequently spilling some of the solvent onto the ground while filling a rooftop tank at the facility.

The solvent supplier has moved for summary judgment, arguing that if there was any contamination, the facility owner and the supplier independently contributed indeterminate amounts to the contamination and that therefore the homeowner cannot show how much damage each has inflicted on her.

There is no evidence that the facility owner and the solvent supplier acted in concert.

Should the court grant the summary judgment motion?

Answer 49

No, because concurrent tortfeasors are jointly and severally liable for an indivisible injury.

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. Hence, the homeowner need not show how much damage each tortfeasor has inflicted on her; each of them may be liable to her for the entire amount of the damage. Accordingly, the summary judgment motion should be denied.

Question 50

The owner of a small fleet of taxicabs had his cabs serviced by a national chain of auto service centers. One of his cabs went through a stop sign when its brakes failed without warning. The ensuing collision seriously injured the passenger. An investigation revealed that brake repairs had been made on the cab a week before, but the service center’s mechanic had used the wrong parts and had made numerous errors in reassembling the brakes.

If the passenger sues the cab company owner for her injuries, who should prevail?

Answer 50

The passenger should prevail, because the owner breached his duty to her to provide a safe vehicle in which to ride.

The passenger will recover against the owner for her injuries because the owner, a common carrier, owed her a nondelegable duty to provide a safe vehicle in which to ride. The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable. In these cases, the principal is vicariously liable for the agent’s negligence despite the principal’s own exercise of due care. A common example of these types of duties is the duty of a business to keep its premises and instrumentalities safe for its customers. This includes the duty of a common carrier, such as a taxi company, to keep its vehicles in safe working order. Thus, the owner’s duty to the passenger, a passenger in his cab, was nondelegable. The negligent conduct of the mechanic is deemed to be that of the owner. The negligent conduct was the actual and proximate cause of the passenger’s injuries. Thus, the owner is vicariously liable to the passenger for those injuries.

Question 51

An investor who owned several thriving shopping malls was negotiating to purchase a local mall from the company that currently owned it. A staff attorney for the state transportation department who shopped at the mall regularly learned of the negotiations and contacted the investor. The mall had deteriorated noticeably during the time the current company had owned it and the attorney believed that new ownership would revitalize the mall considerably. Although the attorney had no information to support this, she told the investor that the state was currently planning to construct a new interchange for the turnpike only three blocks from the mall. The investor went ahead with the purchase, believing that the new interchange would boost sales. In fact, no interchange was being considered by the state at that time, and nothing that the investor did after he purchased the mall could stem the decline in sales. He ended up selling the property at a substantial loss several years after the purchase.

Does the investor have a cause of action against the attorney for his losses?

Answer 51

Yes, for intentional misrepresentation, because the attorney was aware that she did not know whether the state was planning an interchange.

The attorney acted with scienter for purposes of an intentional misrepresentation action because she was aware that she did not know whether the state was planning an interchange. To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff’s reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages. The element of scienter, which involves defendant’s state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity. Because the attorney made her statement even though she had no information that the state was planning an interchange, she acted with scienter. The other elements of intentional misrepresentation are established by the facts. Thus, the investor has a cause of action against the attorney under the condition stated in (B)

note -> not negligent misrepresentation. An action for negligent misrepresentation is not supported by these facts. Negligent misrepresentation requires (i) a misrepresentation made by defendant in a business or professional capacity, (ii) breach of duty toward that particular plaintiff, (iii) causation, (iv) justifiable reliance, and (v) damages. Here, even though the investor was involved in a business transaction, the attorney was not. She was not acting in a business capacity but rather for her own personal interests.