Torts --Miscellaneous Concepts Flashcards
Intentional Misrepresentation (Fraud)
1) Mispresentation of a material fact;
Not silence, but an affirmative statement
2) Scienter;
D knew or believed statement was false
3) Intent to induce P to act or refrain from acting in reliance upon misrepresentation;
4) causation (actual reliance);
5) Justifiable reliance; and
6) Damages
P must suffer actual pecuniary loss
Negligent Misrepresentation
1) Misrepresentation by D in a business or professional capacity;
2) Breach of duty towards P;
3) Causation;
4) Justifiable reliance; and
5) Damages
This is typically limited to actions in a commercial setting.
Malicious Prosecution
Elements:
Institution of criminal proceedings against plaintiff; (P was the D in that proceeding)
Termination of proceedings in P’s favor;
Absence of probable cause for prior proceedings (insufficient facts, no reasonable basis)
Improper purpose (was not to seek justice)
Damages Note: prosecutors are immune from liability
Abuse of Process
Elements
1) wrongful use of process for ulterior purpose; and
2) definite act or threat against P in order to accomplish ulterior purpose.
Interference with Business Relations
Elements
1) existence of a valid business contractual relationship with P and third party or valid business expectancy held by P;
2) D’s knowledge of the relationship or expectancy;
3) Intentional interference by D inducing breach/termination of relationship or expectancy; and
4) Damages
Nuisance
Nuisance is not its own tort. It is a type of harm suffered.
There are two kinds of nuisance: public and private.
Private Nuisance
Substantial, unreasonable interference with another person’s use or enjoyment of property that she possesses or that she has a right of immediate possession.
Substantial interference: offensive, inconvenient or annoying to an average member in the community.
Unreasonable: balance test—severity of the inflicted injury must outweight utility of D’s conduct.
Courts consider that people are entitled to use their property in a reasonable way.
Public Nuisance
Act that unreasonably interferes with the health, safety, or property rights of the community.
Party may recover for public nuisance only if she suffered unique harm not suffered by community as a whole.
Trespass to Land vs Nuisance
Trespass to land- physical invasion occurs
Nuisance-interference with use or enjoyment. Can be intangible interference.
Nuisance Remedies
Damages (means monetary award)
Injunction – only if legal remedy (damages) is inadequate or speculative.
Defenses to Nuisance
Legislative authority (zoning laws permit activity)
Contributory negligence
Conduct of others (no one actor is liable for actions committed by he and others)
“Coming to the nuisance” – cannot “come to the nuisance” and then initiate legal action if one’s sole purpose for “coming to the nuisance” was to bring lawsuit.
Generally, one may “come to the nuisance” and bring suit.
Vicarious Liability
Liability that is derivatively imposed.
One person commits a tortious act harming another but we will hold a third person liable.
Respondeat Superior
Applies to employee/employer (also see master/servant)
Employer will be vicariously liable for tortious acts committed by employee of the act was committed in the scope of employment.
Minor frolics/detours – OK, still hold liable.
Major frolics/detors- NO, don’t hold employer liable
Related – Negligent Hiring
This is not vicarious liability but is related because it involves employers/employees.
Employers may be held liable for their own neligence by negligently selecting employees (hiring) or supervising employees.
Independent Contractor
General Rule: Principal will not be vicariously liable for tortious acts of his agent if the agent is an independent contract.
Two exceptions
1) Independent contractor is engaged in inherently dangerous activity;
2) The duty is non-delegable because of public policy considerations.
Ex: the duty to use due care in building a fence around an excavation site.
