(1) clear and specific reference to the disparaged party or product,
(2) knowledge the statement was false, or reckless disregard for the truth,
(3) communicated to a third party.
Fraudulent Misrepresentation
(1) the misrepresentation was a material fact known to be false by the tortfeasor (or reckless disregard for the truth);
(2) the tortfeasor intended to persuade the innocent party to rely on the statement and the innocent party did, in fact, rely on it; and
(3) damages were suffered by the innocent party.
False Imprisionment
In the business context, a merchant most commonly encounters these circumstances in cases of suspected retail theft.
While the merchant has the right to briefly detain a suspected shoplifter-must be cautious about giving rise to a false imprisonment claim when detaining an individual.
Business Competition Torts
Tortious Interference with Existing Contractual Relationship
(1) had specific knowledge of the contract,
(2) actively interfered with the contract,
(3) caused some identifiable damages
Negligence
When party fails to act reasonably,
Even though that party does not intend for harm to occur,
The party is still liable for any injuries or damages suffered by another party as a result of the unreasonable conduct.
Elements of Negligence
Duty: Did the tortfeasor owe a duty of care to the injured party?
Breach of duty: Did the tortfeasor fail to exercise reasonable care?
Cause in fact: Except for the breach of duty by the tortfeasor, would the injured party have suffered damages?
Proximate (legal) cause: Was there a link between the breach of duty and the damages suffered by the injured party?
Actual damages: Did the injured party suffer harm?
Strict Liability Torts
concept rooted in the notion that the general public benefits when liability is imposed on those who engaged in certain activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence)
Products Liability
In a products liability case, the injured party may pursue a legal remedy against the seller under one of three theories:
(1) negligence,
(2) warranty, or
(3) strict liability.
Objectively reasonable
a fact finder (such as a jury) at trial could conclude that a reasonably prudent person in the same circumstances should have realized that certain conduct would be risky or harmful to another person.
Misfeasance
act by one party that harms or endangers another party
nonfeasance
the failure to act or intervene in a certain situation
injured parties may not hold a defendant liable for failing to act unless the parties had a
special relationship
ex: bus company to its passengers, innkeeper to guests, employer to employees
Breach of duty
failing to meet obligations when there is a special relationship involved
duties include: general obligations to act in a responsible manner so as to not put another in harms way, and special duties to certain parties including the duty to inspect or duty to warn of defects
negligence per se
is the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation).
In order to prove negligence per se, the plaintiff must show that
the defendant violated the statute,
the statute provides for a criminal penalty (i.e., fines or imprisonment) but not by civil penalties,[1]
the act caused the kind of harm the statute was designed to prevent, and
the plaintiff was a member of the statute's protected class
dram shop laws
impose liability on the owners and employees of a public establishment where alcohol is being served. These laws allow a third party who has been injured or harmed by an intoxicated tortfeasor to recover damages against the owner or employee who served an obviously intoxicated patron/
Res Ipsa Loquiter- the thing or matter that speaks for itself
doctrine allows an injured party to create a presumption that the tortfeasor was negligent by pointing to certain facts that infer negligent conduct without showing of exactly how the tortfeasor behaved
ex: barrel fell off a roof and hit a pedestrian (the plaintiff did not need to prove how the barrel fell off the roof)
after establishing that a breach of duty has occurred, the injured party must also prove that the tortfeasor's conduct was the
cause in fact of the damanges suffered by the injured party
there must be a link between the breach of duty and the damages
cause in fact
what test is used to test the cause in fact?
the but for (except for) the breach of duty by the tortfeasor, would the injured party have suffered damages?
The but for test requires a further step to establish liability, known as
proximate (legal) cause
the tortfeasors conduct was also the closest in proximity cause of the damages and the torfeasors liability wasnt cancelled due to a superseding cause
superseding causes
some (but not all) of these intervening acts may be the basis for limiting the tortfeasor's liability
loss of consortium
loss of companionship or marital relations
if the injured party dies, her estate may sue for those damages that the injured party would have received if he had survived
True or false
True
Spouses and children may also recover damages for losses sustained by virtue of the dealth of an injured party
true or false
true
the two primary claims of negligence are
comparative negligence and assumption of the risk
comparative negligence
where the injured party's conduct played a factor in the harm suffered
contributory negligence
whereby even 1% of negligence on the part of the plaintiff was a complete bar to any plaintiff recovery
assumption of risk
when the injured party knows that a substantial and apparent risk was associated with certain conduct, and the party went ahead with the dangerous activity anyway
assumption of risk factors
1. the injured party/plaintiff knew or should have known (by virtue of the circumstances or warning signs, etc.) that a risk of harm was inherent in the activity
2. the injured party/plaintiff voluntarily participated in the activity
Negligence Analysis
Duty- did the tortfeasor owe a futy to the injured party
Breach- did the tortfeasor breach the reasonably prudent person standard
Causation- Except for the tortfeasor's breach of duty, would the plaintiff have suffered the injury
Proximate (legal) cause- was the breach the closest in proximity? Were there any superseding causes? Was the harm foreseeable?
Damages- Did the injury to the person pr property result in losses?
Defenses- Did the injured party contribute to the injury (comparative negligence)? Was the injured party aware of the risk, but went ahead anyway (assumption of the risk)?
Strict Liability Torts (Absolute Liability)
neither intent nor negligence need to be proven
primarily for abnormally dangerous activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence)
the 6 factor test- abnormal dangerous activity
1. does the activity involve a high degree of risk of some harm
2. Is there a liklihood that the harm that results will be great
3. Is it possible to eliminate the risk by exercising reasonable care
4. Is the activity relatively common?
5. Is the location of the activity appropriate to the risk?
6. is ther any community value that outweighs the dangeruos attributes?
Products Liability
refers to the liability of any seller (including the manufacturer, retailer, and any intermediary seller such as a wholesaler) of a product that, because of a defect, causes harm to a consumer
modern products liability law protects not only the actual purchaser, but also any ultimate users that were harmed by the products defect.
True or false
True
In a products liability case, the injured party may pursue a legal remedy against the seller under one of three theories:
1. Negligence
2. Warranty
or
3. Strict Liability
One who negligently manufactures a product is liable for any injuries to persons (and in some limited cases, property) proximately caused by the negligence
the person who goes into the contact does not have to be the only person that can prove negligence.
ex: a father buys a son a motorcycle and the son is injures and sues based on negligence (even though he wasnt the one who entered into the purchase agreement with the motorcycle company)
Manufacturers have the duty of care regarding proper design, manufacturing, testing, inspecting and shipping
true or false
true
express warranty
when the seller makes a representation of fact about a product
implied warranty
if the seller has not made a specific representation about the product, the buyer still may be protected un the UCC (uniform commercial code)
Strict Liability
the injured party need not prove the elements of negligence
strict liability on the seller so long as the injured party can show the product was in a defective condition and that the defect rendered the product unreasonably dangerous. Liability is only triggered when:
the seller is engaged in the business of selling such a product, and
the product is expected to and does reach the user or consumer without a substantial change in the condition in which it is sold
strict liability is imposed on the seller even though:
the seller has exercised all possible care inte preparation and sale of the product, and
the user or consumer has not bought the product from or entered into any contractual relationship with the seller
in order to recover for an injury caused by a product, it must have been defective and have created a danger that is outside of the reasonably dangerous expectations
true or false
true
theories of dangerous defects:
Design or manufacturing defect
inadequate warning
improper packaging
unavoidably unsafe
causation and damages- product liability
once it has been established that the product was unreasonably dangerous, the injured party need now prove only that the defective product was the cause of the injuries and that the product caused an actual injury that resulted in damages
Sellers defenses
Substantial change- draw aline of liability based on the condition of the product at the time it leaves the seller's control. the seller may still be liable, but not strictly liable, only negligent.
Assumption of risk- injured party has assumed the risk if the party knew or should have known about the risk and disregarded the risk by continuing with the activity at issue for her own benefit
misuse of product- the injured party may have NOT known of a certain risk, but failed to use the product in a manner that an ordinarily prudent person would, then the seller may use misuse of the product as a defense