Annotate with the rule in your language to cover all elements and text book page and commercial

outline page

Torts Outline for Professor Henslees Class Fall 2008- Make Law Review addendum*
*Wrongful Death and Survivorship need to be added. *The few comments written in red should be verified. Intent Torts Intent: 1. An actor desires to cause the consequences of his act, or that he believes the consequences are substantially certain to result from it. Act: Rest. 2 1. An external manifestation of the actors will and it does not include any of its results, even the most direct, immediate, and intended. A. There cant be an act without volition. Duty: Rest. 4 1. The actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by the other.

Battery: Battery is the intentional infliction of harmful or offensive contact without consent. The contact must be unwarranted by the social usages prevalent at the time and place at which it is inflicted. Offensive contact (19): Bodily contact that is offensive if it offends a reasonable sense of personal dignity. Harmful contact: A harmful contact is bodily harm, or any physical impairment of the condition of anothers body or physical pain or illness. bodily harm: (any physical impairment of the condition of anothers body or physical pain or illness. Causation: 1 party D = but for 2 = substantial factor Battery: Elements of prime fascia case: 1. Act: A manifestation of the actors will 2. Intent: Specific intent: A person intends the consequences of their actions General intent: a person intends the consequence if he or she should have know with substantial certainty they should have

known that the consequences would result. 3. Harmful or offensive contact 4. Causation Actual cause: Intentional torts only causation Proximate cause: Involved in negligence Two types of battery Harmful contact battery Harmful to a reasonable person Offensive contact battery Single Actor: But for test: But for THIS, THIS wouldnt happen. But for him pulling out the chair, the injury to the hip wouldnt happen. Defenses: You did it, but have a reason for doing it. Consent

Assault 1. Assault occurs when the actor intentionally inflicts

apprehension of imminent battery in the victim, and the victim suffers such apprehension. OrAssault occurs when the actor intentionally and successfully inflicts apprehension of imminent battery in the victim. A. The intent is to cause apprehension, not contact. B. R apprehension of imminent contact C. Causation D. Defenses False Imprisonment 1. False imprisonment is the intentional unlawful restrain of a victim within boundaries where there is no reasonable means of escape and the victim is either harmed by or aware of the confinement. 1. An act or an omission that confines to a bounded area. 2. Intent to restrain 3. Unlawful restraint 4. Knowledge of or harm by the confinement 5. Causation 6. Defenses (YOU CAN HAVE NEGLIGENT FALSE IMPRI, BUT DAMAGES ARE REQUIRED)

Negligent false imprisonment is the unintentional unlawful confinement of plaintiff within boundaries where there is no reasonable means of escape and the plaintiff is harmed by or aware of the confinement, which causes the plaintiff damages. B. False arrest is an unlawful detention without a warrant. When the crime is a felony, police must have a reasonable belief that the felony occurred. Private citizens must be absolutely certain that a felony occurred. If the crime was a misdemeanor, both the police and the private citizen are privileged if it occurred in their presence, and both can use reasonable force. 1. The shopkeepers privilege holds that if a shopkeeper has a reasonable belief that a theft took place, he/she may detain the suspect in a reasonable manner for a reasonable period of time in order to investigate. False arrest: is an unlawful detention without a warrant. 1. Felony: Police must have R belief that felony occurred If you are a private citizen, there must be an actual felony 2. Misdemeanor: both the police and a private citizen are privileged for a breach of peace committed in their presence, and BOTH MAY USE THE DEGREE OF FORCE NECESSARY. 3. Shop keepers theory A. R belief as to the theft B. Detention must be conducted in a R manner (NON DEADLY FORCE)

C. Detention must be for a R period of time, which is only for the purpose of making an investigation. Intentional Infliction of Emotional distress 1. Intentional infliction of emotional distress occurs when defendants extreme and outrageous conduct causes plaintiffs sever mental or emotional distress, which is evidenced by damages. 1. The act is extreme and outrageous conduct 2. The intent is to cause sever emotional intent or the general intent is recklessness as to the effect of the conduct 3. Extreme and outrageous conduct (transcends all bounds of decency tolerated by society 4. Causation 5. Damages (must include severe emotional distress) A.. Bystander liability In order to be liable for causing a bystanders mental or emotional distress, the plaintiff must have been present when the injury occurred to the other person, the plaintiff must be a close relative to the injured person, and the defendant must have known that plaintiff was present and a close relative of the injured person. *No presence or relationship is necessary if D had a design or purpose to cause severe emotional distress to the P. *There is special liability for the mishandling of corpses (statutory and like strict liability)

1. P must be present when the injury occurred to the other person 2. P must be a close relative to the injured person 3. D knew the P was present and a close relative of the injured person. *no presence or relationship is necessary is D had a design or purpose to cause severe emotional distress to the P. *Special liability for the mishandling of corpses (statutory and like strict liability) Trespass to land (tied to adverse possession) 1. Trespass to land involves intentionally entering onto anothers land, remaining on the land without permission, or failing to remove something from the land that defendant has a duty to remove (continuous trespass). 1. In order to have standing, P must have actual and constructive possession of the land. A. Act B. Intent to enter land (MISTAKE IS NO DEFENSE) C. Physical invasion of Ps real property D. Causation E. Defenses Trespass to chattel

1. Trespass to chattel is the intentional interference with Ps right of possession in the chattel by intermeddling or dispossessing, which causes damages to the chattel other than nominal damages. 1. For standing, must have actual possession or the right to immediate possession of the chattel. A. Act B. Intent is to do the act of interference C. Interference with the Ps right of possession in the chattel 1. Intermeddling (denting car) 2. Dispossession (taking of towel) D. Causation E. Damages are required (no nominal damages) F. Defenses Conversion 1. Conversion is an act with the intent to substantially interfere with plaintiffs right to possession of chattel that causes deprivation of the chattels value. A. The act can consist of wrongful acquisition, wrongful transfer, wrongful detention, substantial change, severe destruction or destroying, and misuse of the chattel. A. Act

1) Wrongful acquisition (theft or embezzlement) 2) wrongful transfer (selling, misdelivering, or pledging) 3) wrongful detention (refusal to turn over property to the owner) 4) substantially changing 5) severely damaging or destroying 6) misusing the chattel (borrowing car and using at demolition derby) B. Intent is to perform the act that interferes C. Substantial interference with Ps right to possession of the chattel that rises to a deprivation of the value of the chattel. D. Causation E. Defenses 1. A chattel is personal property, or incapables reduced to physical form 2. Remedies: Damages: 1) fair market value, 2) replevin, return of the thing DEFENSES Defenses: 1. Consent (actual or express) is a willingness to submit A. Mutual mistake equals valid consent

B. Unilateral mistake (you cant take advantage of the person who does not have the knowledge) C. Fraud and duress consent are not valid. D. Implied or apparent consent ARE valid (riding machine after told that you could vomit) 2. Self Defense 63A 3. Defense of others 76 A. A R belief that the victim has a right of self defense. (not actual right) 4. Defense of property 77 A. In FLORIDA you CAN use deadly force 5. Reentry onto land (self help is no longer allowed) 6. Recapture of chattel: a. Hot pursuit is required b. Reclaim chattel from wrong doer c. You can use Reasonable force d. You may enter land e. CAN BE A DEFENSE TO TRESPASS 7. Privilege of Arrest, a mistake = false imprisonment 8. Public necessity (absolute defense) and private necessity (the

actor must pay for the damage caused) 1. 9. Discipline: Reasonable force can be used 10. Emergency 11. Authority of Law a. Arrest b. Discipline - Generally, parent-child c. Justification NEGLIGENCE NEGLIGENCE 1. Negligence occurs when defendant breaches a duty, which is the actual cause and the proximate cause of plaintiffs damages. 2. Duty A. The standard of care is that of a reasonable prudent person in similar circumstances. 1. The defendant only has a duty to foreseeable plaintiffs. B. There is no duty to act unless there is a special relationship. C. Children

1. Children under seven are presumed to be incapable of negligence. 2. Children ages seven to fourteen are presumed incapable, but they can be proved capable. 3. Children fourteen and older are presumed capable, but they may be proved incapable. D. Professionals 1. A professional must have the knowledge and skill of an ordinary member of his/her profession. A. Doctors have a national standard. 2. Breach of Duty A. Did defendant breach her/his/its duty by not acting reasonably? 1. Proof of notice is required where the dangerous condition is out of the ordinary. In such cases, the store owner is allowed reasonable time to discover and correct the condition. B. Negligence Per Se When the defendant violates a duty given by statute, the act constitutes negligence per se if the plaintiff is a member of the class of persons the statute protects and the hazard is one the legislature intended to prevent. D. Res Ipsa Loquitor Pg. 93 Res Ipsa Loquitor exists when the instrumentality causing

the injury is under the exclusive control of defendant and the accident is one that would not have ordinarily occurred without negligence on the part of the controller.
control 1) Instrumentality causing the injury must be under the exclusive of D 2) the accident is one that would not have ordinarily occurred negligence on the part of the controller. 3) Res ipsa applies when you do not know who caused the thing but one person has control

without

only

E. Owners and occupiers of land INVITEE 1. Invitees are business guests or people on land open to the public. Defendant owes them a duty to inspect and make safe. scope of the An invitee can lose his/her status by exceeding the invitation.

LICENSEE 1. Licensees are social guests and people who enter private property with permission. The defendant has a duty to warn and exercise R care. He/she/it cannot ignore a known danger. TRESPASSERS There is no duty to unknown trespassers. Known trespassers are owed a duty to know of known dangers that are readily discoverable. There is no duty to warn about obvious

hazards. A. Exception: According to the attractive nuisance doctrine, the defendant has a duty to exercise reasonable care to avoid reasonably foreseeable risks if he/she/it knows that children are likely to trespass. 3) Trespassers A. No duty owed to unknown trespassers B. Known trespassers are owed the duty to know of known dangers that are not readily discoverable (tiger pit covered by leaves) C. No duty to warn of obvious hazards 1. Exception: the attractive nuisance doctrine (children) A. Duty to exercise R care to avoid R foreseeable risks. 3. Actual Cause (Cause in fact) 1) but for test for one actor 2) substantial factor test for joint actors 4. Proximate cause 1. Is it foreseeable that by engaging in (this activity) that (this harm) will result. 5. Damages

6. Defenses 1. Contributory negligence is a defense that is a complete bar to recovery. A. The Last clear Chance Doctrine shifts the liability to the P if the P had the last clear chance to avoid the accident. (Ex. saw person running red light but crossed the street anyway) 2. Comparative negligence allows the P to recover 1. Partial comparative negligence allows the P to recover if he/she/it is responsible for 49% or less of the damages. 2. Modified comparative negligence allows the P to recover if he/she/it if 50% responsible for the damages. 3. Pure comparative negligence allows P to recover regardless of the percentages. 3. Assumption of the risk A. Express assumption of the risk (signing liability waiver) B. Implied assumption of the risk occurs when plaintiff is aware of the risk and still performs the activity. 1. Knowledge of the risk 2. Voluntary assumption of the known risk * Boxers consent to battery and impliedly assume the

risk or negligence. Vicarious liability A. Respondeat superior holds that the employer will be liable for the tortuous acts of the employee if they occurred within the scope of the employment relationship. 1. Exceptions: A. However, there is no liability if the employee is on a frolic or a detour. B. Intentional torts are generally not within the scope of the employment relationship (exceptions are bouncers, bill collectors - towing car). B. With independent contractors, the principal is not liable for the tortuous acts of her agent if the agent is an independent contractor. 1. Exceptions: A. The principle will be liable if the independent contractor is engaged in an abnormally dangerous activity B. or if there is a duty because of public policy consideration is not delegable (invitee situation) C. Partners or joint ventures 1. Each member of a partnership or joint venture is liable for the tortuous conduct member committed in the scope of partnership or affair of the joint venture. A. Test for joint ventures is the common purpose test

D. Automobile owner 1. The general rule is that the automobile driver is not vicariously liable for the tortuous conduct of another driving his automobile A. Exceptions the tortuous household 1. Family Car Doctrine makes the owner liable for conduct of an immediate member of family or 2. Negligent entrustment E. Parent and child A. Common law does not hold parents liable for childrens tortuous conduct. 1. Most states make parents liable for the tortuous conduct up to a certain dollar amount. 2. Courts will assume liability when the child is acting as an agent. F. Joint and several liability A. applies when there are two or more tortfeasors who are found liable for the whole. (Why you sue manufacturer as well as everyone else because they have to pay if no one else can). B. Contribution (Parceling of damages) 1. Contribution allows the tortfeasors who have to pay more than their share of the damages to have a claim against

the other jointly liable parties for the excess. In order to be liable, you must be originally liable to plaintiff. a. Minority view - Equal shares when paying liability among tortfeasors. a. Does NOT apply to intentional torts C. Indemnity (shifts more than the excess) 1. Is the shifting of the entire loss b/w or among tortfeasors 2. Typically require a K of some kind (vicarious liability based on employer/employee relationship) a. By contract indemnify other party for any loss. You must ask for a mutual/reciprocal indemnity clause. b. Vicarious liability Liability based on a relationship. Indemnify from the relationship that is affected. c. Strict Liability Everyone in the food chain is liable. d. Joint tortfeasors Everyone is liable for the whole. Direct Liability A. Negligence in hiring individual (go through negligence cause of action). B. Negligent entrustment (go through cause of actionnot vicariously liable) Tort immunities A. Traditional family immunity: under the common law

tradition, one member of a family unit could not sue another in tort for personal injury. 1. Most states have abolished inter spouse immunity so that either spouse may now maintain a torts action against the other. 2. Parent/child: States generally grant parents broad discretion in their exercise of parental authority or supervision (child suing parent) A. Some states allow children to recover damages from their parents for intentional torts or automobile accidents. 3. Governmental tort immunities A. Under the doctrine of sovereign immunity, governmental units where typically not subject to tort actions against them unless they consented to the suit (statutory permission- common in violation of civil rights cases) 1. Exceptions A. Federal Torts Claims Act (waives immunity for certain tortuous acts) 1. Discretionary acts are immune (takes place at the planning or decision making level), but ministerial acts are not immune (performed at the operational level of government, fed agent using excessive force 2. Federal. A. gov gives immunity Assault, battery, false imprisonment, false arrest, malicious prosecution, liable, and slander misrepresentation.

3. State sovereignty is covered under the 11th amendment Difference between employees and independent contractors Instructions Training Integration Services rendered personally [employee] Hiring Continuing relationship Set hours Full-time Work done on the premises Reports Pay Expenses Tools and materials Investment Profit/Loss Can work Services offered to the general public Right to fire Right to quit Products Liability 1. Duty 2. Breach 3. Causation (but for, foreseeable) 4. Damages 5. Defenses Restatement 2nd Section 402(a)= (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the

ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Strict liability 1) Strict liability creates an absolute duty on the part of the defendant to make safe for foreseeable plaintiffs. A. Wild animals or abnormally dangerous activities create an absolute duty. 1. Abnormally dangerous activities (ex. Creosote, which is poisonous) B. 3 part test 1. An activity is abnormally dangerous if it involves a serious risk of harm to persons or property, if it cannot be performed without risk of serious harm no matter how much care is taken, and if the activity is not of common usage in the activity.
1. Activity must involve a serious risk of harm to persons

or property 2. Activity must be one that cannot be performed without risk of serious harm no matter how much care is taken 3. It is a not commonly engaged activity by persons in the community

2) Breach of duty only applies to normal propensities or anticipated dangers 3) actual cause 4) proximate cause 5) damages 6) defenses A. Comparative may apply B. Assumption of the risk (trespassing into land where they put a warning sign blasting- though they could still be negligent) Products Liability Products liability concerns a manufacturers liability for a products manufacturing or design defect. Plaintiff can sue for damages caused by the defect through six theories: 1) strict liability, 2) negligence, 3) breach of implied warranty, 4) breach of express warranty, 5) misrepresentation, 5) intentional tort. A. Category of products liability 1. Manufacturing defects

A manufacturing defect exists when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. 2. Design defects A defective design exists when the foreseeable risks of harm posed by a product could have been avoided by an alternative design. B. 6 Theories 1. Strict Liability 1) A defective product 2) Use of the product in the manner it was intended to be used 3) Injury as a result 4) Knowledge by the manufacturer that the product was to be used without inspection for defects 1. Manufacturers are strictly liable for injuries caused by defective products when they know that the product is to be used without inspection for defects. longer If you alter the product, the manufacturer is no responsible. 5) restatement says 1) the seller is liable even though he exercises all possible care in the preparation and sales of the product.

user and the

2) there is no requirement for privity between the seller.

2. Intentional Torts 3. Implied warrant of merchantability and fitness for a particular purpose 1. Seller knows of the particular purpose for which the goods are required 2. Buyer relies on the sellers skill or judgment to supply or furnish the suitable material 3. The warranty means that the thing sold must be reasonably fit for the general purpose for which it is manufactured and sold. the product, seller. A. The warranty extends to all foreseeable uses of not merely those in privity of contract with the

4. Express warranty (a K) 1. When there is an element of probable danger to a product, the manufacturer has a duty to make it safely. 2. If the original delivery was defective, transfer of that product to a third party does not absolve the manufacturer of liability if a reasonable and prudent purchaser would not have discovered the defect, regardless of lack of privity of contract between the manufacturer and the third party. 5. Negligence

6. Misrepresentation Nuisance A private nuisance is an intentional non tresspassory invasion of plaintiffs land that causes an unreasonable and substantial interference with plaintiffs use and enjoyment of the land. The substantiality is determined by the harm to the land or the people on it. The unreasonableness is determined by a balancing test, which considers 1) the neighborhoods character, and the interferences 2)nature and wrongful conduct, 3) proximity to plaintiffs property, and its 4) frequency, duration, and continuity. It also considers 5) the resulting injurys nature and extent, 6) the utility of defendants conduct, and 7) whether defendant came to the nuisance.
1) An intentional act (specific or general/substantial certainty) 2) non tresspassory invasion 3) that is an unreasonable interference 1) the character of the neighborhood. 2) the interferences nature and wrongful conduct (ex. Gas is obnoxious) 3) proximity to plaintiffs property (properties are right next to each other) 4) Frequency, continuity, and duration of the interference (? often does it happen) 5) the nature and extent of the resulting injury (there is measurable

economic

injury when the restaurant cannot operate)

6) the utility of defendants conduct (ex. Everybody works for the factory) 7) whether plaintiff came to the nuisance. 4) frequency, continuity, and duration 5) substantial interference (ex. Insect infestation) with the use and enjoyment of the Ps land A. harm to land and people on the land

A public nuisance is a continuing or permanent conduct that is prohibited by statute, ordinance, or regulation and seriously interferes with the publics health, safety, welfare, or convenience. 1) Conduct involves a serious interference with the publics health, safety, peace, or convenience. 2) Conduct is prohibited by statute, ordinance, or regulation 3) Conduct is continuing or permanent A. As a public nuisance, it must be brought by the government B. A private person would have to have injury that is different than the injury suffered by the general public C. Remedies: damages and/or an injunction (if you want an injunction, it is better to sue under public nuisance because the state is more likely to eliminate a problem that affects many people than a single party)

Defamation Defamation involves (1) defamatory language (2) concerning the plaintiff that is (3) published to a third party (either negligently or intentionally) and (4) damages plaintiffs reputation with (5) false language, all of which is the (6) defendants fault. Slander is defamatory assertion expressed in a transitory form, especially speech. Libel is a defamatory statement expressed in a permanent, physical embodiment, such as a news paper. 1) Defamatory Language Defamation Per Se defames plaintiff by publishing false facts about plaintiffs business or profession, loathsome disease, crime involving moral turpitude, or serious sexual misconduct. Damages are presumed. Defamation Per Quod occurs when the language is not defamatory on its face and inducement or innuendo must be proved by using extrinsic facts that prove the languages defamatory meaning. Special Damages must be proven. Opinions are only defamatory if they are based on specific facts and an express allegation of those facts would be defamatory. 2) Concerning the P The language concerns a plaintiff if a reasonable reader would understand that the defamatory statement referred to the plaintiff. When the persons name is not plain on its face, colloquium

(facts that show P was intended ) must be used. Groups A. All members of a small group may sue. B. No members of a large group may sue. C. Some members of a small group may sue individually if they can be identified. 3) Publication to a third party Publication to a third party can either happen through an intent to publish or negligent publication (such as talking about someone outside and you do not know that they are there). 4) Damage to the plaintiffs reputation Damages are presumed with defamation per se. Special damages are required for defamation per quod. 5) The material language must be false. 6) In order to prove fault on the part of a defendant, a public figure plaintiff must show actual malice. Actual malice is knowledge of the languages falsity or a substantial disregard for the truth. A private figure must prove negligence. Know the Sullivan and Gertz cases. They establish the difference between Public and Private Figures. 7) Defenses There are four types of defenses: consent, truth, absolute privilege, and qualified privilege.

Absolute privileges consist of judicial proceedings, executive proceedings, legislative proceedings, compelled broadcasts, and communication between spouses. Qualified privileges consist of reports of public proceedings, (would have to check or quote), public interest, interest of the publisher (if D is defending his/her action), interest of the listener (legitimate interestnot in gossip...referring for job), and common interest of publisher and recipient/neutral reportage (a bunch of people in a group discussion).
1) consent 2) truth 3) absolute 1. judicial proceedings 2. Executive proceedings 3. Legislative proceedings 4. Compelled broadcast (CSPAN would be compelled to broadcast anything that goes on, station is taken hostage) 5. Communication b/w spouses 4) qualified 1. Reports of public proceedings (would have to check or quote) 2. Public interest 3. Interest of the publisher (if D is defending his/her action)

4. Interest of the listener (legitimate interestnot in gossip) A. boss has interest in knowing who stole, so a lot of people could be defamed in the process of figuring out who did it) 5. Common interest of publisher and recipient/neutral reportage. (a bunch of people in a group discussing)

Right to privacy A. four different torts 1) misappropriation of name or likeness for commercial purposes Misappropriation of identity is the unauthorized use of Ps name or likeness in advertisements for products or services that cause Ds commercial gain.
1) unauthorized use of Ps name or likeness (statutes have expanded to voice, or item associated with that person such as a car, robot depiction) 2) for defendants commercial gain 3) limited to advertisements or promotion of products or services

2) Intrusion upon seclusion Intrusion upon seclusion is the act of prying or intruding into plaintiffs affairs or seclusion, where the intrusion is into plaintiffs private matter or space, and it is objectionable to a reasonable person. Why do you not have to prove malice?
1) the act of prying or intruding on the affairs or the seclusion of the P by the D

2) intrusion is objectionable to a R person 3) Intrusion into a private matter or place

3) false light (unlike defamation, the facts do not have to false) False light requires that defendant use malice to publish facts that place plaintiff in a false light in the public eye, which are objectionable to a reasonable person.
1) publication of facts by the D that places in a false light in a public eye. 2) the false light would be objectionable to a R person (views he does not hold or actions he did not take -Jerry Fallwell) 3) malice on the part of the D where the published matter is in the public interest

4) public disclosure of private facts (SUE FOR WHEN IT IS TRUE) Public disclosure of private facts requires intentional, negligent, or strictly liable publication or disclosure of private information about plaintiff that the reasonable person would find objective. There is a constitutional privilege if the matter is of legitimate public interest.
1) publication or public disclosure of private information about the P 2) objectionable to a R person 3) intentional negligence or strict liability

A. defense 1) Constitutional privilege if the matter is of legitimate public interest

Misrepresentation Intentional misrepresentation involves misrepresentation of past or present material fact with scienter and the intent to induce plaintiffs reliance on the misrepresentation, which causes plaintiffs justifiable reliance. Scienter is knowledge of the statements falsity or reckless disregard as to its truth. As for damages, there must be actual pecuniary loss or benefit of the bargain. If plaintiff is a third party, defendant must have known that the misrepresentation was going to be used for a particular purpose, and there must be some conduct on defendants part linking him/her/it to the plaintiff, which evinces defendants understanding of that partys reliance.
A. Intentional misrepresentation 1) misrepresentation by D of a material past or present fact 2) scienter (knowledge or falsity or reckless disreguard as to its truth) 3) intent to induce the Ps reliance on the misrepresentation A. If it is for third party (CB pg. 1036) 1) must be aware that misrepresentation is going to be used for a particular purpose

2) Must be some conduct on the part of the D linking them to that party or parties, which evinces Ds understanding of that party or parties reliance. 4) causation A. There must be actual reliance (can use substantial factor) 5) justifiable reliance by the P on the misrepresentation 6) Damages: there must be actual pecuniary loss or benefit of the bargain. 1. Benefit of the bargain A. kid has 500 dollar card and only gets 5 dollars for it. Sues for 495.

Negligent misrepresentation occurs when defendant breaches his/her/its duty to not misrepresent in a business or professional capacity and causes the plaintiffs justifiable reliance and damages. Plaintiff must prove actual and proximate cause, and pecuniary or benefit of the bargain damages. Defendant misrepresents if he/she/it has knowledge of the person who will rely, the purpose to which the information will be used, a serious business relationship with plaintiff, and defendant had a particular advantage in ascertaining the veracity of the information.
1) duty to not misrepresent by the D in a business or professional capacity 1. Knowledge of the person who will rely 2. Knowledge of the purpose to which the information will be used (mushroom case)

3. Serious business relationship 4. Maker had a particular advantage in ascertaining the veracity the information 2) breach of duty 3) causation 1. Actual reliance on the part of the P 2. Proximate cause (is it foreseeable that this activity---which is a misrepresentation would 4) Justifiable reliance 5) Damages (pecuniary or benefit of the bargain)

(truth) of

Malicious Prosecution Malicious prosecution involves the institution of criminal proceedings against plaintiff, where the outcome favored plaintiff, there was no probable cause for the prosecution, and the defendant had an improper purpose, all of which caused plaintiffs damages.
i. Institution of criminal proceedings against current P. ii. Outcome favorable to current P. iii. Absence of PC for prosecution. iv. Improper purpose of current D. (harassment) v. Damages must be proved, but they include all expenses for the original defense, and punitive damages are available. a. Note information given to DA who prosecutes, does not create liability for

person supplying him the information.

Interference with Business Relationship (intentional, not negligent) construction, entertainment, sports Interference with a business relationship exists when there is a valid contractual relationship or business expectancy between plaintiff and a third party, defendant knows of and intentionally induces the breach or termination of that relationship or expectancy, and plaintiff is caused damages.
1) Existence of a valid contractual relationship between P and a 3rd party or a valid business expectancy of P 2) Ds knowledge of the relationship or the expectancy 3) intentional interference by D that induces the breach or termination of the relationship or expectancy 4. Damage to P

Trade libel (Business defamation) (could be slanderous) Trade libel occurs when a false statement calculated to damage the pecuniary interest of plaintiff is published to a third party with malice and creates special damage to the plaintiff in the form of pecuniary loss.
1) false statement calculated to damage the pecuniary interest of the P 2) publication to a third party 3) malice 4) special damage to the P in the form of pecuniary loss