Torts

Question 1

What are the prima facie elements of an intentional tort?

Answer 1

To establish a prima facie case for any intentional tort, the plaintiff must prove (1) an act by the defendant; (2) intent by the defendant; and (3) causation. The act must be a volitional act. The intent must be intent to do the volitional act, not intent to commit a tort. The causation must be a result of the defendant’s act creating the plaintiff’s injury.

Question 2

What is transferred intent and which torts does transferred intent apply to?

Answer 2

Intent can be transferred when the defendant intends to commit an intentional tort against one person but either (1) commits the tort to another, (2) commits a different tort to the person, or (3) commits a different tort to a different person. Intent may only be transferred if the tort resulted in assault, battery, false imprisonment, trespass to land, or trespass to chattels.

Question 3

What is battery?

Answer 3

Battery is an intentional act by the defendant that is harmful or offensive contact with the plaintiff’s person.

The contact is harmful if it causes physical damage. The contact is offensive if it is unpermitted or offends reasonable sense of dignity. The contact can be direct or indirect. The contact can be to anything on one’s person.

Consent is a defense to contact. The plaintiff can recover nominal damages even if actual damages are not proved, or punitive damages for malicious conduct.
This qualifies for transferred intent.

Question 4

What is assault?

Answer 4

Assault is an intentional act by the defendant that creates reasonable apprehension of imminent wrongful contact in the plaintiff.

Apprehension must be reasonable and fear is not required. The plaintiff must be aware of the threat of the wrongful contact. Words are not enough to count as contact, but they might mitigate reasonable apprehension. The apprehension must be of imminent contact. Everyday insults are not sufficient to qualify as assault.

The plaintiff can recover nominal damages even if actual damages are not proved, or punitive damages for malicious conduct.

This qualifies for transferred intent.

Question 5

What is false imprisonment?

Answer 5

False imprisonment is an intentional act by the defendant that confines or restrains the plaintiff to a specific area.

The confinement may be short or long, but the plaintiff must know of it or be harmed by it. An confinement to a specific area means the plaintiff has no reasonable means of escape from that area. Mere inconvenience does not count – there must be loss of freedom or notion of restraint.

The plaintiff can recover nominal damages even if actual damages are not proved, or punitive damages for malicious conduct.

This qualifies for transferred intent.

Question 6

What is intentional infliction of emotional distress?

Answer 6

Intentional infliction of emotional distress is an intentional act by the defendant that is extreme or outrageous and causes severe emotional distress in the plaintiff.

Extreme and outrageous conduct transcends all bounds of decency, and non-outrageous conduct can become outrageous if it is continuous in nature, committed by a certain type of defendant, or directed toward a certain type of plaintiff.

Unlike other intentional torts, this tort requires the defendant’s intent to be reckless.

This tort requires actual damages – so the plaintiff cannot recover nominal damages. Less proof of damages is required the more outrageous the conduct is.

Question 7

How can a bystander allege intentional infliction of emotional distress?

Answer 7

When the defendant’s conduct is directed to a third person, the plaintiff can still suffer severe emotional distress but they must show either the prima facie elements of severe emotional distress or that (1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and (3) the defendant knew these facts.

Question 8

What is trespass to land?

Answer 8

Trespass to land is an intentional act by the defendant that is a physical invasion of the plaintiff’s real property.

Physical invasion may be by a person or object, but not intangible objects (those are nuisances). The trespass claim can only be asserted by the owner of the real property. The defendant only needs intent to enter that property, and they do not need to know that the land belongs to another.

The plaintiff can recover without showing actual injury to the land.

This qualifies for transferred intent.

Question 9

What is conversion?

Answer 9

Conversion requires an intentional act by the defendant that interferes with the plaintiff’s right of possession in a chattel, and for the interference to be serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value.

The defendant only needs intent to do the act of interfering with the plaintiff’s possession, and they do not need to intend conversion. The longer interference and the more extensive the use, the more likely conversion will apply (otherwise it is just trespass to chattels). Conversion also only applies to tangible personal property or intangibles that are reduced to physical form.

The plaintiff can recover damages (fair market value at time of the conversion) or possession (replevin).

Question 10

What are the general defenses in torts?

Answer 10

Defenses include consent, self-defense, defense of others, defense of property, and necessity.

Question 11

How can self-defense be used as a defense to a torts claim?

Answer 11

If the defendant was protecting themselves, then there is no liability for the intentional tort. This is an affirmative defense that the defendant must raise. Self-defense requires reasonable belief to engage in self-defense, and the use of force must be reasonable and proportional to the level of force shown. Reasonable mistake as to the existence of danger is allowed.

Generally, there is no duty to retreat. However, there is usually a duty to retreat before using deadly force unless the actor is in their home.

Self-defense may extend to third-parties’ injuries that are caused while the actor was defending themselves. However, an actor might be liable to a third person if they deliberately injured the third person when trying to protect themselves.

Question 12

How can defense of others be used as a defense to a torts claim?

Answer 12

If the defendant was protecting others, then there is no liability for the intentional tort. This is an affirmative defense that the defendant must raise. Self-defense of others requires reasonable belief that the other person would engage in self-defense. The same considerations as self-defense for oneself apply.

Question 13

How can defense of property be used as a defense to a torts claim?

Answer 13

If the defendant was protecting property, then there is no liability for the intentional tort. This is an affirmative defense that the defendant must raise. Defense of property requires verbal warning before using force proportional to the intruder’s actions unless the verbal warning would be futile or dangerous. Once the property tort has been committed, the defendant may use force in hot pursuit. The use of force must be reasonable and proportional to the level of force shown. Reasonable mistake as to the existence of danger is allowed.

Question 14

What is required for a shopkeeper to detain a suspected shoplifter?

Answer 14

Generally, shopkeepers have the privilege to detain a suspected shoplifter for investigation. This requires (1) reasonable belief as to the fact of theft, (2) detention to be conducted in a reasonable manner with nondeadly force, and (3) detention to be only for a reasonable period of time and only for the purpose of making an investigation.

REASONABLE BELIEF, REASONABLE MANNER, REASONABLE TIME and ONLY for investigation

Question 15

How can necessity be used as a defense to a torts claim?

Answer 15

If the defendant needed to interfere with another’s property, then there is no liability for the intentional tort. This is an affirmative defense that the defendant must raise. Necessity allows interference with another’s property when it is reasonable and apparently necessary in an emergency to avoid injury from a natural or other force. The invasion must be substantially more serious than the invasion that is undertaken to avert it.

Question 16

What are the prima facie elements of negligence?

Answer 16

To establish a prima facie case of negligence, the plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) damages. The level of duty is the nature of the duty the defendant owes the plaintiff. A general duty of reasonable care is owed to and imposed on everyone for reasonably foreseeable plaintiffs, but certain parties are subject to a higher duty of care.

Question 17

How are the special duties of a child determined?

Answer 17

If the defendant is a child, then they will be measured against reasonable children in like circumstances, unless they are engaging in dangerous adult activities or they are under 5.

Question 18

How are the special duties of a professional determined?

Answer 18

If the defendant is a professional, then they will be measured against reasonable professionals in like circumstances, but medical practitioners will be held to the ordinary practitioner standard.

Doctors must disclose the risks of treatment to enable a patient to give informed consent. Doctors can breach this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent upon learning of the risk.

Question 19

How are the special duties of a landowner determined?

Answer 19

If the defendant is an owner of land, then they owe a general duty of care to all individuals on their property, are liable for damages caused by unreasonably dangerous conditions on their land, and must exercise reasonable care for their activities on their land to avoid unreasonable risk of harm to others outside their property.

Question 20

What special duties does a landowner owe undiscovered trespassers, known trespassers, licensees, and invitees?

Answer 20

Undiscovered trespassers are owed no duties. Known trespassers are owed duties of care against artificial, highly dangerous, concealed, or known conditions. Licensees are owed duties of care against concealed and known conditions, but not reasonably discovered conditions. Invitees are owed duties of care against concealed and known conditions, including reasonably discovered conditions.

Question 21

What is the standard of care owed under the attractive nuisance doctrine?

Answer 21

Trespassing children are owed duties of care under the attractive nuisance doctrine. This special duty can be violated when (1) there is a dangerous condition on the land that the owner is or should be aware of, (2) the owner knows or should know that children might trespass on the land, (3) the condition is likely to cause injury, and (4) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 22

What happens when a statute sets a standard of care?

Answer 22

If there is a statutory standard of care, then the plaintiff must be within the protected class and the statute must be designed to prevent the type of harm suffered by the plaintiff. Violation may be excused if compliance would cause more danger, or compliance was beyond the defendant’s control.

Question 23

Can a defendant, who does not originally owe a duty to the plaintiff, create a legal duty to act?

Answer 23

Yes. If the defendant has special relationship with the plaintiff, created peril, or assumed a duty, then the defendant will have a legal duty to act.

Question 24

What special duty of care does a common carrier or innkeeper owe?

Answer 24

If the defendant is a common carrier or innkeeper, then the defendant will be held to a heightened duty of care for passengers and guests.

Question 25

How does a defendant breach their duty?

Answer 25

The defendant breaches their duty when their conduct falls short of the level required by the standard of care owed to the plaintiff. The trier of fact determines whether the duty of care was breached.

Question 26

What effect does custom have on duty and breach?

Answer 26

Custom has more weight than ordinary care and is strong evidence of reasonable care because it reflects the judgment, experience, and conduct of many. Custom is not a replacement for ordinary care, and people still have a duty to avoid wanton, willful, and reckless behavior. It is possible that custom is actually negligent.

Question 27

What effect does a violation of a statute have on duty and breach?

Answer 27

Violation of statute is negligence per se because legislation laid out how a reasonable person would act and what the reasonable duty of care is. However, it does not alleviate common duties of care. Statues only apply when the plaintiff is in the class that is meant to be protected and the harm was one the statute was designed to prevent.

Question 28

What is res ipsa loquitur and what effect does it have on duty and breach?

Answer 28

Res ipsa loquitur is when the occurrence of the event establishes a breach of duty. This requires the plaintiff to show that the accident causing the injury is a type that would not normally happen unless someone was negligent, and the negligence is probably attributable to the defendant. This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant. Establishing res ipsa loquitur establishes prima facie case for negligence (it does not establish a presumption of negligence nor switch the burden of proof to the defendant).

Question 29

What happens when a defendant or plaintiff moves for a directed verdict under res ipsa loquitur?

Answer 29

If the defendant moves for direct verdict, then deny if plaintiff established res ipsa loquitur and grant if plaintiff failed to establish res ipsa loquitur or failed to present other evidence of breach.

Question 30

What is causation?

Answer 30

Causation requires the plaintiff to show that the defendant’s conduct was the actual and proximate cause of their injury. Actual cause can be shown when the injury would not have occurred but for the defendant’s conduct. Proximate cause can be shown when the injury was a foreseeable result of the defendant’s conduct.

A defendant can refute causation by showing the injury would have happened even if the defendant’s conduct did not occur.

Question 31

What happens when there is an intervening, but foreseeable, event after a breach of duty?

Answer 31

A defendant is generally liable for all foreseeable harmful results of their negligent acts. Intervening forces may be considered foreseeable if they are normal responses to the situation caused by the defendant’s negligent act (like medical malpractice, negligent rescuers, protection to the defendant’s conduct, or diseases or accident caused by the original injury).

Question 32

What happens when there is an intervening, but foreseeable, event after a breach of duty?

Answer 32

A defendant is generally liable for all foreseeable harmful results of their negligent acts. Intervening forces may be considered foreseeable if they are normal responses to the situation caused by the defendant’s negligent act (like medical malpractice, negligent rescuers, protection to the defendant’s conduct, or diseases or accident caused by the original injury).

Question 33

What happens when there is an intervening, but unforeseeable, event after a breach of duty?

Answer 33

A defendant is generally not liable for unforeseen harmful results of their negligent acts. Superseding forces are not foreseeable and break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury.

Question 34

What are damages (for negligence)?

Answer 34

Damages is essential for proving negligence. A defendant is liable for all damages, even if the extent of the damages was unforeseeable. Punitive damages are generally not available unless the defendant’s conduct was wanton and willful, reckless, or malicious. A plaintiff is also obligated to take reasonable steps to mitigate damages.

Question 35

What effect does assumption of risk have on a negligence claim?

Answer 35

The plaintiff may be denied recovery if they voluntarily assumed the risk of any damage of the defendant’s act. Knowledge may be implied if an average person would be aware of and understand the risk. There is no implied assumption if the plaintiff has no other alternative, and plaintiffs cannot assume risk when there is strict liability.

Question 36

What effect does contributory negligence have on a negligence claim?

Answer 36

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries. The standard is the same as ordinary negligence.

Under common law, contributory negligence completely barred the plaintiff’s right to recovery – though most jurisdictions now favor a comparative negligence system.

An exception to contributory negligence is the last clear chance rule, which makes the person with the last clear chance to avoid an accident but fails to do so is liable for negligence.

Question 37

What effect does comparative negligence have on a negligence claim?

Answer 37

Comparative negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries. The standard is the same as ordinary negligence. However, unlike contributory negligence, comparative does not bar the plaintiff’s right to recovery. Instead, the trier of fact weighs the plaintiff’s negligence and reduces their damage accordingly.

Question 38

What is partial and pure comparative negligence?

Answer 38

Most states have adopted partial comparative negligence – the plaintiff’s recovery will be completely barred if their negligence was more serious than the defendant’s negligence. Some states have adopted pure comparative negligence – the plaintiff will be able to recover something no matter their negligence.

Question 39

What is strict liability?

Answer 39

Strict liability imposes a higher duty of care on the defendant. Reasonable care will not relieve the defendant of liability in a strict liability situation.

Question 40

How is strict liability applied for cases involving domesticated and wild animals?

Answer 40

If there are domesticated animals, then the owner is not strictly liable for injuries unless the owner has knowledge that the animal has dangerous propensities. The owner will be strictly liable for reasonably foreseeable damage done by trespass of his animals.

If there are wild animals, then the owner is strictly liable to licensees and invitees for injuries but is not strictly liable to trespassers unless the owner was negligent.

Question 41

What is an abnormally dangerous activity and how does it affect strict liability?

Answer 41

If there are abnormally dangerous activities, then there must be (1) a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and (2) the activity is not common in the community. Like with negligence, the defendant’s liability extends only to foreseeable plaintiffs. The harm must result from the kind of danger to be anticipated from the dangerous activity including harm caused by fleeing from the perceived danger. There is no strict liability when the injury is caused by something other than the dangerous aspect of the activity.

Question 42

What is products liability and how can this type of case arise?

Answer 42

Products liability refers to the liability of a supplier of a defective product to someone injured by the product. A products liability case can arise from intent, negligence, strict liability, implied warranties, and express warranties.

Question 43

How can a products liability case arise from strict liability?

Answer 43

If there is a products liability case under strict liability, then the plaintiff must show (1) the defendant is a merchant, (2) the product is defective, (3) the product was not substantially changed since leaving the defendant’s control, and (4) the plaintiff was using the product in a foreseeable way.

A product can be defective via manufacturing, design, or information defect.

Question 44

How can a products liability case arise from negligence?

Answer 44

If there is a products liability case under negligence, then the plaintiff must show (1) duty, (2) breach, (3) causation, and (4) damages.

Res ipsa loquitur may be invoked if the defect is something that would not happen without manufacturer’s negligence. It is hard to hold intermediaries liable for negligence because they only owe reasonable duty of care (like cursory inspection) and their negligent failure does not supersede the original manufacturer’s negligence.

Question 45

How can a products liability case arise from implied warranties?

Answer 45

If there is a products liability case under implied warranties, then the plaintiff must show (1) warranty, (2) breach, (3) causation, and (4) damages.

There is likely a breach of the warranty of merchantability or fitness for a particular purpose. Merchantability requires the goods to be of average acceptable quality and to generally fit the ordinary purpose for which the goods are used. Fitness for a particular purpose requires the seller to use skill and judgment to provide goods to fit the particular purpose the buyer is purchasing the goods for.

Question 46

How can a products liability case arise from express warranties?

Answer 46

If there is a products liability case under express warranties, then the plaintiff must show (1) warranty, (2) breach, (3) causation, and (4) damages.

There is likely to be a breach of express warranty or misrepresentation of fact. Express warranty requires affirmation of fact or promise regarding the goods that become the bases of the bargain. Misrepresentation of fact is usually a statement of material fact concerning quality or uses of goods, or a statement by the seller intended to induce reliance by the buyer.

Question 47

What is a nuisance?

Answer 47

A nuisance is an invasion of property rights by tortious conduct.

Question 48

What is a private nuisance?

Answer 48

A private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

Substantial means offensive, inconvenient, or annoying to the average person in the community. Unreasonable means the severity of the injury outweighs the utility of the defendant’s conduct under the totality of the circumstances.

Self-help abatement is available for private nuisances, but only necessary force may be used.

Question 49

What is a public nuisance?

Answer 49

A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Injunctive relief may be awarded if the legal remedy of damages is unavailable or inadequate.

Injunction and abatement are only available for public authority or a private party who suffered some unique damage.

Question 50

What are some defenses to nuisance?

Answer 50

Legislative authority is not an absolute defense, but it is persuasive. No one actor is liable for all damage caused by concurrence of their acts and others. Contributory negligence is generally not a defense to nuisance unless the plaintiff’s case rests on a negligence theory.

Question 51

What is vicarious liability?

Answer 51

Vicarious liability is liability that is imposed on another – one person (the active tortfeasor) commits a tortious act against a third person and another person (the passive tortfeasor) is held liable to the third party for this act.

Question 52

When is an employer vicariously liable for their employees?

Answer 52

An employer is vicariously liable for tortious acts committed by their employee if the act occurred within the scope of the employment relationship (respondeat superior).

Minor deviations from business are still within the scope of employment, but a substantial deviation is not. Generally, intentional tortious conduct by employees is not within the scope of employment unless (1) the employee is furthering the business of the employer (like removing rowdy customers from premises); (2) force is authorized in the employment (like a bouncer); and (3) friction is generated by the employment (like bill collector).

Question 53

When is an employer vicariously liable for their independent contractors?

Answer 53

A hiring party (the principal) is not vicariously liable for the tortious acts of an independent contractor (the agent), unless (1) the duty is nondelegable due to public police considerations (like duty of business to keep premises safe for customers), or (2) the work is extremely dangerous.

Also, the employer may be liable for their own negligence in selecting or supervising an independent contractor.

Question 54

When are partners/joint venturers vicariously liable for each other?

Answer 54

Each member of a partnership or joint venutre is vicariously liable for the tortious acts committed by another member committed in the scope and course of the affairs of the partnership or joint venture.

Question 55

When is an automobile owner vicariously liable for the driver?

Answer 55

An automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile.

However, some states hold the owner liable for (1) tortious conduct caused by immediate family or household members who are driving with the owner’s express or implied permission; (2) damage caused by anyone driving with the owner’s consent (but rental car companies are not vicariously liable for negligent accidents of their customers); (3) their own negligence in entrusting the car to a driver (this is not vicarious liability though); and (4) drivers acting as the owner’s agent.

Question 56

When is a bailor vicariously liable for a bailee?

Answer 56

The bailor is not vicariously liable for the tortious conduct of their bailee. However, the bailor may be liable for their own negligence in entrusting the bailed object (this is not vicarious liability though).

Question 57

When is a parent vicariously liable for their child?

Answer 57

A parent is not vicariously liable, but can be liable for the willful and intentional torts of their minor children for up to a certain dollar amount. Courts may impose vicarious liability if the child committed a tort as the parent’s agent. A parent may also be liable for their own negligence in allowing the child to do something, particularly if they know of the child’s tendency to injury others.

Question 58

When is a tavern vicariously liable to their patron?

Answer 58

A tavernkeeper is not vicarious liable in the absence of the Dramshop Act (which creates a cause of action in favor of any third person injured by an intoxicated patron). Some states do impose liability in the absence of the Dramshop Act based on ordinary negligence principles (so not vicarious liability).

Question 59

What are the prima facie elements for defamation?

Answer 59

Defamation is (1) a defamatory statement that specifically identifies the plaintiff, (2) published to a third party, (3) that is known to be false, (4) fault on the part of the defendant, and (5) damage to the plaintiff’s reputation.

When defamation refers to a public figure or a matter of public concern, the plaintiff also needs to prove actual malice.

Defamation that is spoken is slander, which requires special damages unless it is slander per se.

Question 60

What is a defamatory statement?

Answer 60

A defamatory statement is one that adversely affects one’s reputation. An opinion is not necessarily a defamatory statement unless it is based on specific facts and expresses allegations of those facts would be defamatory. Only living people may be defamed.

Question 61

What does it mean when a defamatory statement specifically identifies the plaintiff?

Answer 61

A reasonable person must understand the statement refers to the plaintiff. A statement that refers to all members of a small group allows each member to allege defamation. A statement that only refers to some members of a small group allows only those who are reasonably referred to allege defamation. A statement that refers to a large group does not allow any member to allege defamation.

Question 62

What does it mean for a defamatory statement to be publicized?

Answer 62

There must be intent to publish, not intent to defame. The statement can be published intentionally or negligently. Primary publishers are liable to the same extent as the author or speaker, and a secondary publisher is only liable if they know of the defamatory content.

However, internet service providers are not considered publishers.

Question 63

What does it mean for a defamatory statement to be false?

Answer 63

Under common law, plaintiffs did not have to prove that the statement was false. Currently, plaintiffs must prove that the statement was false. This means, if the statement is true, then it is not defamatory.

Question 64

What does it mean for a defamatory statement to be fault of the defendant?

Answer 64

The defendant must be at fault, but there may be constitutional limitations depending on whether the plaintiff is a public official/figure and whether the matter is public/private.

Question 65

What must be shown when defamation includes a public official or figure?

Answer 65

If the plaintiff is a public official or public figure, then the plaintiff must show actual malice. Actual malice is knowledge that the statement was false or reckless disregard as to whether it was false. The defendant’s ill will is not enough to constitute actual malice, but deliberately altering a quote might be actual malice if the alteration causes a material change in the meaning.

Question 66

What must be shown when defamation includes a private person but involves a matter of public concern?

Answer 66

If the plaintiff is a private person and the matter is of public concern, then the plaintiff must show negligence and only actual injury damages are recoverable. Public concern requires consideration of the totality of the circumstances. Actual injury includes economic damages, and damages for impairment to reputation and personal humiliation (as long as there is evidence of such damages). However, if actual malice is found, then damages may be presumed and punitive damages are allowed.

Question 67

What kind of damages must the plaintiff prove for defamation?

Answer 67

The type of damages the plaintiff must prove depends on the type of defamation involved. Damages are generally presumed under libel. Damages are not generally presumed under slander – the plaintiff must prove they suffered special damages (pecuniary loss) in order to recover general damages.

Question 68

What is libel?

Answer 68

Libel is a defamation that is embodied in permanent form, like written, printed, radio, or television. The plaintiff does not need to prove special damages to recover and general damages are presumed.

If the plaintiff does not need to prove special damages, then the plaintiff does not need to prove anything beyond the actual defamation.

Question 69

What is slander?

Answer 69

Slander is spoken defamation. The plaintiff must prove special damages, unless it is slander per se. Slander per se includes defamatory statements that (1) adversely reflect on the plaintiff’s business or profession; (2) state the plaintiff has committed a serious crime; (3) impute the plaintiff has engaged in serious sexual misconduct; and (4) state that the plaintiff has a loathsome disease.

Question 70

What is the right to privacy and what are the four privacy torts?

Answer 70

The right of privacy is a personal right. The invasion of the plaintiff’s right of privacy must have been proximately caused by the defendant’s conduct. The plaintiff need not plead or prove special damages. Emotional distress and mental anguish are sufficient damages.

There are four privacy torts: (1) appropriation of the plaintiff’s picture or name; (2) intrusion on the plaintiff’s affairs or seclusion; (3) publication of facts placing the plaintiff in a false light; and (4) public disclosure of private facts about the plaintiff.

Question 71

What is appropriation of the plaintiff’s likeness?

Answer 71

Appropriation of the plaintiff’s likeness requires the defendant to take commercial advantage of the likeness without consent. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 72

What is intrusion upon seclusion?

Answer 72

Intrusion upon seclusion requires an intentional intrusion of another’s privacy and for the intrusion to be highly offensive to a reasonable person. This does not require disclosure of information. It often involves some kind of spying. Privacy means the person has reasonable expectations of privacy (physically or mentally). Highly offensive means a reasonable person would be offended, and it considers the depth and justification for the intrusion.

Question 73

What is false light?

Answer 73

Publication of facts placing the plaintiff in a false light is the dissemination of material falsehood about the plaintiff that would be highly offensive to a reasonable person. The false information does not need to be negative. Limited publication is not sufficient to trigger liability. If the matter is of public interest, then the plaintiff must prove actual malice.

Question 74

What is public disclosure of private facts?

Answer 74

Public disclosure of private facts requires the publicizing of private facts of another that is either (1) highly offensive to a reasonable person, or (2) not of legitimate concern to the public. Publicity considers whether it was made available to an extended audience, the mechanism used to publicize the information, and if the publicity was sufficient. Private life requires the subject to have been in a private location. Highly offensive requires a reasonable person to be offended, and considers who the intrusion offended, why it offends, and whether it was highly offensive. Legitimate concern requires the subject to be newsworthy.

Question 75

What is misrepresentation?

Answer 75

Intentional misrepresentation (fraud or deceit) requires (1) misrepresentation of a material fact, (2) scienter or knowledge that the fact was false, (3) intent to induce the plaintiff to act or refrain from acting in reliance on the misrepresentation, (4) causation, (5) justifiable reliance, and (6) damages of actual pecuniary loss. There is no defense to intentional misrepresentation.

Question 76

Do people have a general duty to disclose a material fact?

Answer 76

There is no general duty to disclose a material fact unless the defendant (1) has a fiduciary relationship with the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (3) has spoken and their statement deceives the plaintiff. Physical concealment can also count.

Question 77

What happens when a third party relies on the defendant’s representation?

Answer 77

If a third party relies on the defendant’s representation, then the defendant will be liable if they could reasonably foresee that the third party would so rely.

Reliance generally is justifiable only on representations of fact. Reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter

Question 78

What is negligent misrepresentation?

Answer 78

Negligent misrepresentation requires (1) misrepresentation by the defendant in a business or professional capacity, (2) breach of duty toward a particular plaintiff, (3) causation, (4) justifiable reliance, and (5) damages. These are generally confined to misrepresentations in a commercial setting and liability only attaches if the reliance by the particular plaintiff could be contemplated.

Question 79

What is interference with business relations?

Answer 79

Interference with business relations requires (1) existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff, (2) the defendant’s knowledge of the relationship or expectancy, (3) intentional interference by the defendant inducing a breach of termination of the relationship or expectancy, and (4) damages. The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) interfered only with the plaintiff’s prospective business rather than with existing contracts; (2) used commercially acceptable means of persuasion rather than illegal or threatening tactics; (3) is a competitor of the plaintiff seeking the same prospective customers; or (4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.