Torts 65-75 Flashcards
What are the elements for
Negligent Misrepresentation?
Plaintiff must show:
A misrepresentation by the defendant;
Supplied for the guidance of others in a business transaction;
The defendant knew that the information was supplied to guide the plaintiff in his business transactions;
The defendant was negligent in obtaining/communicating the false information;
Actual and reasonable reliance by the plaintiff; AND
The false info proximately caused damages.
Pirority: HIGH
When is an action for Abuse of Process available?
When:
One party wrongfully uses the court process;
Against another for improper purpose;
An act or threat is used to accomplish that purpose; AND
Damages result.
Priority: Low
What are the elements of Malicious Prosecution?
Initiation of criminal proceedings against a plaintiff;
Claim was initiated for improper purpose;
The claim was not supported by probable cause;
The claim ended in the plaintiff’s favor; AND
The plaintiff suffered damages.
*Most states have expanded this tort to include wrongful civil proceedings.
Priority: Medium
Public Nuisance
vs.
Private Nuisance
Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.
To recover damages, the injured party must show ACTUAL damages.
Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property. (offensive/inconvenient/annoying)
Priority: HIGH
A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.
What is an Abnormally Dangerous Activity?
An activity that:
Is not of common usage in the community; AND
Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).
Priority: HIGH
What are the elements for Strict Products Liability?
The product was defective (manufacturing defect, design defect, or failure to warn);
The product was not altered when it reached the plaintiff;
The product caused an injury when it was being used in an intended use (or unintended foreseeable use); AND
The defendant is a commercial supplier who routinely deals in goods of this type.
Priority: HIGH
What 3 theories are available to prove Strict Products Liability?
Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.
Failure to Warn: Plaintiff was not warned of the risks regarding use, which are not obvious to an ordinary user.
Design Defect: There was a way to build the product that was safer, more practical, AND at a similar cost.
Priority: HIGH
What is the definition of a Commercial Supplier?
Any person/entity who is engaged in selling goods of the type (routinely sells such goods).
*A strict products liability suit may ONLY be brought against a commercial supplier of goods.
Priority: HIGH
Products Liability – Breach of Warranty
What is the Implied Warranty of Merchantability?
It requires that ALL goods sold by a merchant be fit for their ordinary purpose.
*The only issue to determine is whether the product was merchantable when sold.
Priority: Low
Products Liability – Breach of Warranty
When is an Implied Warranty of Fitness for a Particular Purpose created?
When:
A seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND
The buyer relies on the seller’s skill/judgment to select suitable goods.
Priority: Low
Products Liability – Breach of Warranty
When is an Express Warranty created?
When:
A seller makes an affirmation of fact, promise, or description, OR provides a sample;
Which relates to the goods; AND
It becomes part of the basis of the bargain.
Priority: Low
