Torts II

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Torts II
2010-05-07 22:45:48
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final exam prep
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  1. Natural Conditions Outside the Premises
    No duty to protect

    Exception - trees...liable if knows tree is defective and fails to take reasonable precautions to avoid injury to another
  2. Natural Conditions (outside) there a duty to inspect?
    Majority Rule - Urban = yes; Rural = no

    Minority Rule - must use reasonable care under the circumstances to inspect regardless of the nature of the condition
  3. Artificial Conditions (outside) - general rule
    reasonable care to avoid harming others outside the property
  4. On the premises - What are the issues?
    1. What is the status of the person?

    2. What is the duty of care owed based on that status?
  5. What is the minority rule regarding "on the premises"?
    no longer distinction b/t classes...always reasonable care under the circumstances
  6. what is the NC law regarding "on the premises"?
    no distinction b/t invitees and licensees...still CL for trespassers
  7. definition of tresspasser
    one w/o consent or privilege enters onto the property of another OR exceeds permission given
  8. definition of known trespasser
    owner knows trespasser is there...has been discovered
  9. definition of frequent trespasser
    owner knows trespassers continuously enter land for use
  10. duty owed trespasser
    • majority - NO duty at all (unless known/frequent) BUT owe duty to refrain from harming a trespasser thru intentional or willful/wanton conduct
    • i.e. - spring gun not OK

    no duty to warn about concealed natural conditions
  11. exceptions to "no duty rule" for trespassers
    activities (hunting/driving) - duty of reasonable care to known/frequent trespassers

    conditions - duty to warn known/frequent trespassers of concealed artificial conditions on the premises that may cause serious bodily harm which the landowner knows about and the trespasser couldn't reasonably discover

    RR -
    trespasser AOR when enters the tracks;
    constant/strict care only required when there is a pre-existing duty/obligation
  12. duty owed to children trespasser
    higher standard b/c of public policy

    • Duty to warn if:
    • (1) dangerous thing on premises
    • (2) thing will draw children onto land
    • (3) children will not be able to realize it is dangerous b/c of age

    liability if have all three, B<LP, and failed to exercise reasonable care to eliminate the danger or otherwise protect the children
  13. definition of Licensee
    one enters onto property with the express/implied permission of the owner but on the property for his own benefit (companionship, diversion, entertainment; i.e. - social guest, door-to-door sales person)
  14. duty owed to licensee
    duty to warn of concealed artificial/natural conditions OR any hidden danger on the premises that are actually known/should be known to the owner in which the licensee does not know or could not reasonably discover
  15. how is licensee different from trespasser?
    • 1. Must warn of any condition regardless of nature
    • 2. Doesn't require serious bodily harm, only some bodily harm
  16. definition of invitee
    • one who enters the property with the express/implied permission of the owner:
    • 1) public - on property b/c it is open to the public and by enticement of hte owner (i.e. - arcades, parks, shops)
    • 2) business - on property for some benefit to the owner, can be mutual benefit (UPS, indpt contractor)
  17. duty owed to invitee
    duty of affirmative care in all circumstances!!! - scope is determined by the area included in the invitation

    duty to periodically inspect premises to ensure they are safe...usually warning is sufficient UNLESS condition likely to cause serious bodily injury and is easily curable at which point have duty to fix/make safe (B<LP)
  18. Landlord/Tenant - Common Law Rule
    L has no duty of care toward T or T's guests thereofre no liability for injury to either
  19. Landlord/Tenant - Modern Law Rule
    L must exercise ordinary care toward T and others on premises with permission under the circumstances

    duty of reasonable care to protect against/prevent foreseeable harm from 3rd party criminal activity
  20. 6 Exceptions to L/T CL Rule
    • 1. undisclosed dangerous condition known to L and unknown to T
    • 2. conditions dangerous to persons outside the premises
    • 3. premises leased for admission to public
    • 4. common areas
    • 5. where L contracts to repair
    • 6. negligence by L in making repairs
  21. strict liability - trespassing animals
    CL (and still majority) - owner of animal likely to roam and do damage is SL

    Exception - cats and dogs...requires fault

    • Minority (mainly Western states)
    • 1. fencing out statutes
    • 2. fencing in statutes
  22. definition of strict liability
    liability w/o fault...all that must be shown is that defendant engaged in some certain activity and plaintiff will recover

    not due to negligence but the failure to make something safe
  23. strict liability - wild animals
    owner is SL if animal injures anyone...but the harm suffered must be the harm risked by having that type of animal

    Exception - ppl in the business of displaying these animals to public (i.e. - circus, zoo) at which point fault must be proven...negligence standard
  24. strict liability - domestic animals
    generally no SL and animals are entitled to one bite unless owner knew or had reason to know that the animal had vicious or harmful propensities

    • Test - whether the animal has dangerous propensities abnormal to its class
    • - dangerous as to someone will get hurt but not necessarily that animal will attack

    burden is on the plaintiff...if doesn't prove knowledge than no SL and muse prove negligence to recover
  25. what makes an activity abnormally dangerous?
    • 1. high degree of risk of some harm
    • 2. likelihood that harm will be great
    • 3. inability to eliminate risk by exercise of reasonable care
    • 4. extent to which activity is ont a matter of common usage
    • 5. inappropriateness of the activity to the place where it is carried on
    • 6. value to community < dangerous attributes

    so dangerous that even if exercise reasonable care the harm can't be prevented (i.e. - explosives, toxins, flammables)
  26. Scope of Risk (SL)
    there is SL only for the damage which results from kind of risk made the activity abnormally dangerous

    no liability if harm wouldn't have occurred but for the fact that plaintiff conducts an abnormally sensitive activity (i.e. - Mink case)
  27. is contrib a defense to SL?

    exception - provocation of vicious animal
  28. is comparative negligence a defense?
    jurisdictions will compare the negligence of D who is SL and P who contributed to his own harm...done by comparing the common elements in the cause of fact
  29. is AOR a defense to SL?
    yes when P knowingly and voluntarily subjects himself to danger...P must have subjective/actual knowledge of the danger to AOR
  30. What effect to intervening causes have on SL?
    intentional, criminal, or act of nature then deemed superseding cutting off SL...may still be negligently liable
  31. does SL apply to trespassers?
  32. definition of public nuisance
    D's conduct interferes with the common right of the general public

    must be substantial harm to the public at large
  33. factors in determining if something is public nusiance
    • 1. type of neighborhood
    • 2. frequency/duration
    • 3. degree of damage
    • 4. social value of the activity
  34. can private person sue for public nuisance?
    NO unless he has sustained damage that is different in kind, not just degree, from that suffered by public generally otherwise must be brought by fed or state agency
  35. definition of private nuisance
    unreasonable interference with the P use and enjoyment of his land...P must have an interest in the land that has been affected
  36. definition of nusiance per se
    nuisance at all times under all circumstances...if it is a lawful activity then not nuisance per se
  37. definition of nuisance per accidens
    only a nuisance b/c of its location or manner in which it was constructed, operated, and maintained...not automatically a nusiance
  38. elements of private nuisance
    • 1. interference is substantial
    • 2. D's conduct was either intentional, negligent, abnormally dangerous, or reckless
  39. tests for unreasonabe interference (private nusiance)
    • 1. harm of P outweighs utility of D conduct
    • factors: (1) social value that law attaches to primary purpose of the conduct; (2) suitability of conduct to location; (3) ability to avoid invasion; (4) usefulness/effectiveness of D activity

    • 2. harm caused to P is greater than P should be required to bear w/o compensation
    • factors: (1) character of neighborhood or social expectations; (2) character/extent of harm; (3) priority in time; (4) social value society attaches to the type of use/enjoyment invaded
  40. damages for private nuisance
    • 1. compensatory damages
    • 2. injunction
  41. defenses to nuisance
    all privileges and defenses work the same way in this tort as they do in others (intentional, negligent, SL)
  42. definition of vicarioius liability
    liability of another for his tort w/o fault of your own
  43. types of vicarious liability
    • 1. ER/EE
    • 2. Independent Contractors
    • 3. Joint Enterprises
    • 4. Bailment/Auto Consent Statutes
  44. 4 requirements for Joint Enterprises
    • 1. agreement
    • 2. common purpose
    • 3. common pecuniary interest
    • 4. equal right to a voice in the enterprise
  45. Exceptions to general rule of no liability for independent contractors
    • 1. nondelegable duty
    • 2. apparent authority
    • 3. inherently/intrinsically dangerous activity
    • 4. Illegal Activity
    • 5. ER's own liability
  46. factors in determining if action of EE is detour or frolic
    • 1. EE intent
    • 2. nature, time, and place of deviation
    • 3. length/duration
    • 4. EE job/work
    • 5. incidental acts reasonably expected by ER
    • 6. freedom allowed EE while performing his job
  47. elements of damages
    requires actual injury

    • 1. direct loss
    • 2. economic loss
    • 3. pain and suffering
    • 4. hedonistic damages - damages for loss of the ability to enjoy one's previous life
  48. definition of nominal damages
    small sum of $ awarded to vindicate P rights..awarded when damage isn't an element of the COA

    NOT recoverable in negligence cases
  49. definition of compensatory damages
    to make the P whole again and focus on the P, accountability, and compensation

    • 1. special damages
    • 2. general damages
  50. what constitutes special damages
    quantifiable, out of pocket losses

    • 1. medical expenses - must be medically necessary, caused by the D, and reasonable in amount
    • 2. lost wages - temporary total disability, temporary partial disability
    • 3. loss or impairment of future earnings

    must take P as you find him!!! - pre-exisiting injury/condition
  51. what constitutes general damages
    not quantifiable or noneconomic

    • 1. pain and suffering/mental anguish
    • 2. loss of enjoyment of life
  52. definition of collateral source rule
    generally D will have to pay even if P has been compensated by collateral source (i.e. - insurance)...can't introduce this evidence
  53. exceptions to collateral source rule
    • 1. rebuttal of P testimony
    • 2. to show that P contributed to his own condition
    • 3. impeach P testimony
    • 4. to show that P actually continued work
  54. definition of avoidable consequences
    if P could have avoided some damage by undertaking treatment/procedure then can't recover for the extra damage
  55. definition of maximum recovery rule
    directs trial judge to determine whether the verdict of the jury exceeds the max amount which the jury could reasonably find

    award of damages will be deemed excessive if it falls outside the range of what is fair/reasonable or shocks the judicial conscience

    (1) permanency of P condition; (2) possibility of future deterioration; (3) extent of P's medical expenses; (4) restrictions imposed on P by the injury
  56. definition of remittitur
    judge feels award is too high and lowers amt; if P refuses to accept the amt then get new trial
  57. definition of additur
    judge feels award is too low and raises it; if D refuses to pay then get new trial
  58. definition of lump sum award
    reduce amount of damages awarded such that with interest it will be the intended amount at the specified time

    principal award plus interest = lump sum after X years
  59. definition of doctrine of avoidable consequences
    if P could have reduced some of those damages thru having a medical procedure and fails to do so, then P not compensated for those damages
  60. test for doctrine of avoidable consequences
    whether P acted as RPP under the circumstances
  61. factors for doctrine of avoidable consequences
    • 1. degree of pain/risk involved
    • 2. degree of success and failure
    • 3. cost
  62. definition of punitive damages
    awarded to penalize a D whose conduct is particularly outrageous

    focuses on the behavior and characteristics of the D rather than P
  63. guidelines for calculating punitive damages
    • 1. wealth of D
    • 2. reprehensibility of D conduct
    • 3. profitability of D misconduct
    • 4. aggregate of all other sanctions against D
    • 5. litigation costs
    • 6. ratio b/t harm caused/potentially caused by D conduct and losses suffered by P
  64. standard of proof in punitive damages
    clear and convincing evidence
  65. NC Rule regarding punitive damages
    • 1. D must have committed fraud, malice, recklessness
    • 2. cap on award depending on which is greater (unless DUI) - 3x compensatory damages OR $250,000
  66. are punitive damages awarded in SL offenses?
    must be authorized by statute or a showing of actual malice or other affirmative misconduct
  67. are punitives available in VL offenses?
    majority - liable only if ER ratified the conduct, negligent in hiring D, or EE was acting as manager

    minority - no recovery
  68. definition of wrongful death
    wrongful act, neglect, or default of another that would have entitled injured party to maintain an action and recover damages but caused death

    governs the right of the victim's survivors (typically spouse and children) to recover
  69. CL Rule regarding wrongful death
    death of either tortfeasor/victim eliminated all tort claims...if either party died the COA died with them
  70. who has privilige to bring claim of wrongful death?
    general rule - personal rep of deceased, dictated by statute

    minority rule - some states allow beneficiaries to bring claim by statute
  71. who gets the benefit of a successful wrongful death action?
    general rule - designated beneficiaries dictated by statute (spouse --> children --> parents --> kin)

    stepchildren if financially dependent on decedent

    child out of wedlock if father acknowledges existence of relationship b4 death

    viable unborn child
  72. what damages are recoverable for wrongful death?
    • 1. loss of support
    • 2. $ value of services (nurture, training, education, and guidance)
    • 3. loss of society and comfort (companionship, consoritum, love, affection)
    • 4. funeral expenses
  73. what damages for wrongful death when involves loss of child?
    CL - limited to pecuniary interest or child's earning and services

    ML - loss of benefits (monetary value of contribution and services...reasonable cost of supporting kids)
  74. definition of survival actions
    allows damages up to the time of death of the decedent....these are the elements of damages that victim himself could have sued for had he lived

    damages based on loss to estate rather than loss to dependents or other suvivors...governs whether victim's own recovery continues after his death

    if death is instantaneous then no survival action...must be conscious of pain and suffering from time of injury until death
  75. do all COA survive death? (survival actions)
    CL - replevin actions, injury to person, injury to real/personal property, fraud, against officers/high ranking officials

    majority - COA for injury to all tangible personal property, personal injury actions
  76. why does the law allow survival claims? why do some states limit the claim?
    allow - incomplete recovery if wrongdoer only has to answer for portion of damages caused after death

    limit - windfall of distant relatives not dependent or cared little about deceased
  77. who can bring a survival action?
    general rule - executor or adminstrator of estate

    minority - some states allow representatives, heirs, devisees to bring claim for victim or against these parties of tortfeasors
  78. who benefits from survival action?
    decedent's estate subject to creditors and then net proceeds to heirs under will
  79. what defenses are available for wrongful death/survival actions?
    any defenses that might have been set up against the decedent had he lived are still available to D

    contrib, AOR, consent, defense of property, and self defense can all be used to bar recovery if would have been available to D if victim had lived
  80. when the conduct of the beneficiary gives rise to the claim, the effect of that conduct is:
    WD - beneficiary's own negligence in contributing to the decedent's death is subject to normal contrib or comparative negligence rules at play in the jurisdiction

    SA - the heir's negligence doesn't bar the estate's claim, but the D may seek contribution from a negligent heir recouping the negligent heir's proportionate share of hte inheritance thru the estate

    multiple beneficiaries and one is contrib neg - that beneficiary is barred and rest have diminished recovery
  81. when the decedent sought and obtained a judgment for damages for personal injury prior to death, what is the effect on existence of WD/SA after death?
    majority - operates as bar to any subsequent suit founded upon his death

    minority - still entitled to bring WD action
  82. SoL for WD/SA actions
    generally dictated by statute but when aren't there is a split:

    • majority - SoL runs from time of original injruy and WD action may be lost b4 accrued
    • minority - SoL runse from the date of death
  83. definition of slander
    oral defamation, defamatory statement expressed in transitory form

    necessary to prove special damages (pecuniary loss) unless the words spoken come w/i one of the four classes of slander per se
  84. definition of slander per se
    considered to be so bad and so defamatory that willing to presume P suffered damage to his reputation...4 exceptions which don't require proof of special damages

    • 1. imputation of major crimes
    • 2. loathsome disease
    • 3. business, trade, profession, or office
    • 4. serious sexual misconduct
  85. definition of libel
    written defamation, defamatory statement expressed in a fixed medium (writing, picture, sign, electronic broadcasting, etc)

    presumed damages

    once COA has been established P may recover additional damages for his mental distress, wounded feelings, and humiliation
  86. definition of libel per quod
    if statement wasn't defamatory on its face and is necessary to be aware of certain extrinsic facts in order to appreciate its defamatory implications...required to allege and prove those extrinsic facts in order to have COA

    must prove special damages

    EXCEPTION - if statement is libel per quod but was spoken rather than written and if it would have been deemed slander per se then P may recover presumed damages
  87. elements of defamation
    • 1. false and defamatory statement
    • 2. of/concerning the P
    • 3. published to person other than P
    • 4. damages
    • 5. fault (sometimes)
  88. test regarding defamation
    whether the words are reasonably capable of a particular interpretation and if so; whether they were in fact understood as defamatory

    to be defamatory statement must have a tendency to harm the reputation of the P

    must be read and construed in the sense in which the readers to whom it was addressed would ordinarily understand it - ordinary reader standard
  89. statements which are still defamatory
    • 1. welching on debt
    • 2. calling person a liar
    • 3. calling person a slut
  90. what constitutes a publication?
    • 1. any communication
    • 2. any method
    • 3. to one or more third persons other than P
    • 4. done with intent or negligence
  91. publication is not:
    • 1. communication to P only
    • 2. communication to self only
    • 3. done by mere transmitters or disseminators (i.e. - telephone company) rather than publishers
  92. definition of single publication rule
    one edition is one publication therefore only liable once for defamation even though it may have been printed numerous edition = new COA
  93. are secondary publishers liable for defamation?
    generally aren't liable b/c are distributors with no control over the content they distribute (i.e. - internet dating service, facebook, man at newspaper stand)

    newspaper/book publishing company not considered secondary publisher and subject to SL UNLESS republication of terms received from wire services and: (1) service was reputable; (2) D didn't know of falsity; (3) story itself didn't reveal its falsity; (4) no substantial change was made to the story
  94. repitition of defamatory statements
    one who repeats a defamatory statement made by another is held to have published it and is liable as if he were the first person to make the statement...true even if indicates the source and indicates that he himself doesn't believe the statement

    foreseeability standard - if X could reasonably believe his statement would be repeated then liable for the repitition
  95. what is a defamatory statement?
    statement that if believed hamrs P reputation, lowers her esteem in the community, or deters ppl from associating or dealing with her...need not be believed but need only be understood in its defamatory sense

    statement whose defamatory meaning is understood by the receiver/listener of hte statement
  96. elements which must be pleaded if statement not defamatory on its face
    • 1. defamatory words
    • 2. publication
    • 3. inducement - extrinsic/background facts needed to understand the statement is defamatory
    • 4. colloquium - formal allegation that words were spoken of and concerning the P
    • 5. innuendo - conclusion reached
    • 6. special damages (when nec for the COA)

    both colloquium and innuendo must be reasonable in light of the words spoken and the facts placed in the inducement...if they don't support the defamatory meaning then no COA
  97. what is not a defamatory statement?
    • 1. merely foreseeably harmful statement
    • 2. name calling
    • 3. hyperbole
    • 4. true statement
    • 5. pure opinion
  98. who decides if words at issue are capable of a defamatory meaning?
    judge determines if statement may be defamatory and then jury decides if it is actually defamatory
  99. if reaosnable ppl could find a defamatory meaning, who decides what hte meaning the words conveyed in the particular case?
    jury is the norm....sufficient if only one person understands the defamatory meaning
  100. what is the standard regarding defamation?
    ordinary reader
  101. group defamation
    • large group - generally no claim for either the group as a whole or any individual member (> 25 ppl)
    • small group - each and every memeber is referred to than any individual member can sue
  102. work of fiction and defamation...what is the test?
    whether a reasonable person reading the book would understand that the fictional character was in actual fact, the P acting as described (RPP)

    whether in the mind of the average reader the publication, considered as a whole, could reasonably be considered as defamatory
  103. constituional analysis - public/public
    actual malice standard - D knew statement was false or acted with reckless disregard as to its truth or falsity

    negligence not enough!!!

    must be intentional/reckless

    presumed damages
  104. constitutional analysis - public/private
    SL is Ok for now

    presumed damages w/o having to prvoe actual malice

    has no bearing on P role, capacity, or fitness as a public official/figure
  105. constitutional analysis - private/public
    states can impose whatever standard they want to regarding the falsity of the statement as long as it isn't SL

    actual malice standard -

    negligence - actual damages
  106. constitutional analysis - private/private
    SL is Ok for now

    presumed damages
  107. definition of public official
    person that we care about and have a greater interst in than just the general interest we have in government officials generally (i.e. - elected officials and candidates, high ranking appointed officials, cops)
  108. definition of universal/all purpose public figure
    person who has gained pervasive fame and notoriety...ppl who have some broad, general fame and not just on certain important public matters (i.e. - Pope, Madonna, Michael Jordan)
  109. definition of limited purpose public figure
    someone who has notoriety/recognition just on certain public matters...has voluntarily thrust himself or been dragged into public issue
  110. what are absolute privileges to defamation?
    • 1. judicial proceedings - must have some bearing/relation on the subject matter of the proceeding
    • 2. legislative - must be made during the proceeding
    • 3. executive - as long as occurs during exercise of official duties
    • 4. consent
    • 5. H&W - to each other, not about each other
    • 6. statements required to be published
  111. when do limited privileges to defamation arise?
    • 1. protection of self-interest
    • 2. protection of 3rd party interest
    • 3. protection of mutual interest
    • 4. general public interest
  112. when are limited privileges to defamation lost?
    • 1. manner of publication
    • 2. don't believe statement is true
  113. remedies for defamation
    • 1. monetary damages
    • 2. injunction preventing D from republishing statement
  114. elements for invasion of privacy by appropriation
    • 1. D used P name or likeness
    • 2. use of P name or likeness was for the D's own purpose/benefit...commercial or otherwise
    • 3. P suffered damages
    • 4. D caused those damages

    likeness must be used in such a way that person is identifiable
  115. elements of right of publicity
    • 1. D used P likeness/name
    • 2. use of P name/likeness was for the D's own purpose/benefit
    • 3. P suffered damages
    • 4. D caused those damages

    CL Rule - protection of person's name/likeness from unwarranted intrusion or exploitation (right of privacy with regards to famous ppl)
  116. exception to invasion of privacy torts
    newsworthiness - if used in newsworthy publication
  117. elements for intrusion upon seclusion
    • 1. intrusion into a private place, conversation, or matter
    • 2. in a manner highly offensive to a reasonable person

    proven only if P had an objectively reasonable expectation of seclusion/solitude in the place, conversation, or data source...doesn't have to be absolute privacy and can have privacy around a select number of ppl

    not publication tort!
  118. elements of publication of private facts
    • 1. publication to more than just one or a few individuals
    • 2. private facts not generally known or made available to the public
    • 3. highly offensive to the RPP
    • 4. no legitimate public concern

    deals with truthful publication of private facts!!!

    Not in NC
  119. elements of false light
    • 1. publication to substantial number of ppl
    • 2. placing P in false light
    • 3. highly offensive to RPP
    • 4. actual malice

    test - material and substantial fabrication

    Not in NC!!

    doesn't have to be defamatory as long as is false and highly offensive to RPP; may arise when info is truthful but used to put P in false light
  120. elements of malicious prosecution
    • 1. institution of criminal proceedings
    • 2. termination in favor of D
    • 3. absence of probable cause
    • 4. improper purpose
    • 5. damages
  121. defenses to malicious prosecution
    D actually guilty - no liability if can prove the D actually committed crime charged with
  122. elements of wrongful civil proceedings
    • 1. institution of civil proceedings
    • 2. termination in favor of D on the merits
    • 3. absence of probable cause
    • 4. improper purpose
    • 5. damages
  123. elements of absence of process
    • 1. use of legal process
    • 2. for a purpose other than that for which it is intended (to harass, humiliate, embarrass)

    i.e. - go to law school married and fall in love with classmate, wife finds out and decides to sue for alienation of affection but waits to have the gf served until night before her bar exam
  124. elements of injurious falsehood
    • 1. false statement of kind calculated to damage a pecuniary interst of the P
    • 2. publication to 3rd person
    • 3. malice in the prosecution
    • 4. damages (must always be proven)
  125. definition of puffing privilege
    competitor's are permitted to make comparative statements even though D is fully aware that what he says is false and the publication is made for the purpose of injuring the P by taking business away from him

    when gets very fact specific is no longer privileged
  126. what is the qualified privilege allowed for injurious falsehood?
    D has right to protect his own interests by assertion of bona fide claim to any kind of property

    defeated if: (1) desire to do harm; (2) didn't honestly believe the assertion was true
  127. elements of interfering with existing K
    • 1. valid K
    • 2. D knew of K
    • 3. D interfered with K
    • 4. causation
    • 5. damages
  128. elements of interfering with prospective K
    • 1. existence of prospective K relation
    • 2. knowledge of prospective K relationship
    • 3. interference with the prospective K or relationship
    • 4. wrongful act
    • 5. causation
    • 6. damages
  129. privileges for interference with advantageous relationships
    • 1. truthful or honest advice given in response to a request
    • 2. interference with an illegal K
    • 3. interference by person responsible for welfare of another
    • 4. interference to protect your own legal interest
    • 5. protection of public interest
  130. remedies for interference with advantageous relationships
    • 1. punitive
    • 2. consequential - mental anguish/distress
    • 3. monetary damages
    • 4. injunction
  131. definition of misrepresentation
    false statement of fact in any manner (oral, written, gesture, etc)
  132. definition of concealment
    D actively hides a condition from P...doesn't make any statement about it but covers it up such that P can't discover it on his own

    normally treated as intentional misrepresentation
  133. elements for intentional misrepresentation
    • 1. material misrepresentation - has some bearing on the X, some meaning or importance to it
    • 2. scienter - state of mind; must know statement is false
    • 3. D intended to induce P relinace on the misrepresentation - motive is irrelevant
    • 4. P justifiably relied on the misrepresentation - P subjectively and honestly believed in the statement

    contrib is not a defense!!!
  134. statements which aren't actionable as intentional misrepresentation
    • 1. statements about future facts
    • 2. opinion by non-expert
    • 3. generalized statements of sales talk (puffing)
    • 4. statement of law by layperson
  135. nondisclosure
    general rule - no liability; no duty to disclose even material facts in X
  136. exceptions to general rule for non-diclosure
    • 1. statutes
    • 2. confidential/fiduciary relationship
    • 3. prior truthful representation that subsequently becomes false
    • 4. half-truths/ambiguous statements given by D
    • 5. D knows P is relying on false information and one would reasonably expect disclosure
  137. elements of negligent misrepresentation
    • 1. D had a duty
    • 2. material misrepresentation
    • 3. negligence
    • 4. D intended P rely
    • 5. P justifiably relied
    • 6. damages
  138. what is not justifiable reliance on a representation?
    • 1. statements made in jest as a joke
    • 2. nonmaterial statement
    • 3. statements of opinions by non-experts
    • 4. statements of legal opinions by lay person
    • 5. puffing
    • 6. statement promising something in the future
  139. innocent misrepresentation
    generally statutory therefore varies from jurisdiction to jurisdiction...if liable for this than is SL