Advanced Torts

An unreasonable interference with a right common to the general public.

A non-trespassory invasion of another's interest in the private use and enjoyment of land.

An invasion of the plaintiff's interest in the exclusive possession of his land.

Trespass and nuisance are separate torts for the protection of different interests invaded - trespass protecting the possessor's interest in exclussive possession of property and nuisance protecting the interest in use and enjoyment

• One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either
• a) intention and unreasonable, or
• b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if:

• a) the gravity of the harm outweighs the utility of the actor's conduct, or
• b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

In determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

• a) the extent of the harm involved;
• b) the character of the harm involved;
• c) the social value that the law attaches to the type of use or enjoyment invaded;
• d) the suitability of the particular use or enjoyment invaded to the character of the locality; and
• e) the burden on the person harmed of avoiding the harm.

In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

• a) the social value that the law attaches to the primary purpose of the conduct;
• b) the suitability of the conduct to the character of the locality; and
• c) the impracticability of preventing or avoiding the invasion.

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor's conduct is

• a) for the sole purpose of causing harm to the other; or
• b) contrary to common standards of decency.

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.

An intentional invasion of another's interest in the use of enjoyment of land is unreasonable if the harm is significant and it would be practicable for the actor to avoid the harm in whole or in part without undue hardship

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant, and

• a) the particular use or enjoyment interfered with is well suited to the character of the locality; and
• b) the actor's conduct is unsuited to the character of that locality.

If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for

• a) a difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
• b) the lose of use of the land, and
• c) discomfort and annoyance to him as an occupant.

Often framed as a “no duty” rule Has many exceptions - but in tort generally - no recovery for pure economic loss without some accompanying personal or property injuryexample - Attorney MalpracticeMany ELR exceptions involve nonstrangersEven strangers may have some connection

A plaintiff can bring a claim for a tort, even if the recovery sought is purely economic and even if the claim has a contractual nexus - if the plaintiff can establish the elements of an "independent tort"

A fiduciary is one in whom another has justifiably placed trust and confidence to act in the best interest of the other - A special relationship

As a matter of Law:  attorney/client; principal/agent; partner/partner; trustee of a trust; estate executor

As a matter of Fact:  “When the parties had a special relationship under which one party places confidence in the other, giving the other a position of superiority and influence.”

A cause of action arises in such cases if:

• 1) the defendant is engaged in the business of selling chattels
• 2) the defendant misrepresents to the public a material fact relating to the quality or character of the chattel, and
• 3) physical harm is caused by justifiable reliance on the misrepresentation

If a defendant intentionally or negligently gives false information, and if a person suffers physical harm as a result of reasonably relying on this information, then the defendant is liable for full tort damages.

• 1) defendants misrepresented an existing fact which affected the essence of the transaction with the plaintiffs or knowingly allowed another to make such a representation on defendant's behalf
• 2) that defendants did so intentionally
• 3) that the misrepresentation was false when made and known at the time to be false by a defendant, or that the representation was recklessly made as being within the defendant's own knowledge without defendant in fact knowing whether it was true or not.

Requires an analysis of several points:

• 1. at the time of the alleged misconduct, did a fiduciary relationship exist?
• 2.If the answer to the first question is yes, then what was the scope of the fiduciary relationship? and
• 3. Did the fiduciary breach the duties that were within the scope of that relationship?

• Most claims implicate duties of loyalty, confidence and communication:
• self dealing
• acting with conflict of interest
• usurping a business opportunity
• misappropriating funds
• misrepresentation
• misuse of confidential information
• breach of confidentiality

• Proof of a fiduciary relationship
• Scope of the relationship
• Breach
• Cause
• Damages/remedy

• Can be:
• Fraudulent
• Negligent
• These claims may be seen as exceptions to the economic loss rule
• Issues:Defendant’s State of Mind, Reliance, Justified Reliance, materiality and Contributory Negligence
• Who may sue (third parties)

Plaintiff must have relied in fact on the representation,and reliance must be reasonable

• The matter must be material - The matter is material if:a. a reasonable man would attach importance to its existence or non-existence in determining his choice of action in the transaction in question; or
• b. the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or(b) preventing the other from acquiring or continuing the prospective relation.

In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:(a) the nature of the actor's conduct,(b) the actor's motive,(c) the interests of the other with which the actor's conduct interferes,(d) the interests sought to be advanced by the actor,(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,(f) the proximity or remoteness of the actor's conduct to the interference and(g) the relations between the parties.

• One who, having a financial interest in the business of a third person intentionally causes that person not to enter into a prospective contractual relation with another, does not interfere improperly with the other's relation if he
• a. does not employ wrongful means and
• b. acts to protect his interest from being prejudiced by the relation.

• One who intentionally causes a third person not to enter into a prospective contractual relation with another in order to influence the other's policy in the conduct of his business does not interfere improperly with the other's relation if
• a. the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other and
• b. the desired policy does not unlawfully restrain trade or otherwise violate an established public policy and
• c. the means employed are not wrongful.

One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third persona. truthful information, orb. honest advice within the scope of a request for the advice.

The "substantial-factor" test as the routine standard for factual cause originated in the Restatement of Torts and was replicated in [the second Restatement]. Its primary function was to permit the factfinder to decide that factual cause existed when there were overdetermined causes—each of two separate causal chains sufficient to bring about the plaintiff's harm, thereby rendering neither a but-for cause. The substantial- factor test has not, however, withstood the test of time, proving confusing and being misused. The "substantial factor" rubric has been employed alternately both to impose a more rigorous standard for factual cause and to provide a more lenient standard. Thus, for example, in a jurisdiction that employs comparative responsibility, the substantial-factor test has been improperly employed to suggest to a jury that it should find the plaintiff's "substantial" contributory negligence to be "the" cause of harm rather than the defendant's tortious conduct. these decisions . . .

"evidence to establish profits must not be uncertain or speculative." *** However, the requirement that damages be based on more than speculation "is intended to be flexible enough to accommodate the myriad circumstances in which claims for lost profits arise." *** "[I]t is not necessary that recovery for future profits should be established by exact calculation, as it is enough to have data from which these profits may be ascertained with a reasonable degree of certainty and exactness." ***

A basic fact is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by custom or otherwise the other party has no duty of disclosure.

• 1. A sells to B a dwelling house, without disclosing to B the fact that the house is riddled with termites. This is a fact basic to the transaction.
• 2. A sells to B a dwelling house, knowing that B is acting in the mistaken belief that a highway is planned that will pass near the land and enhance its value. A does not disclose to B the fact that no highway is actually planned. This is not a fact basic to the transaction.
• 3. Having purchased a certain tract of land for $25,000, A hears that B may have a claim to it. He goes to B and offers to purchase B's interest. B does not believe he has a valid legal claim but agrees to give A a quit-claim deed for $250. B's lack of a valid legal claim is not a fact that he is under a duty to disclose.

• negligence
• breach of warranty
• strict liability

One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.

• One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though
• (a) it is not made fraudulently or negligently, and
• (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.

• Express Warranties
• Implied Warranties
• Fitness for a particular purpose
• Warranty of Merchantability

• (1) Express warranties by the seller are created as follows:
• (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
• (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
• (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

• (2) Goods to be merchantable must be at least such as
• (a) pass without objection in the trade under the contract description; and
• (b) in the case of fungible goods, are of fair average quality within the description; and
• (c) are fit for the ordinary purposes for which such goods are used; and
• (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
• (e) are adequately contained, packaged, and labeled as the agreement may require; and
• (f) conform to the promise or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

• (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
• (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."(3) Notwithstanding subsection (2)(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
• (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
• (4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 22-718 and 2-719).

Must still prove other usual torts elements see page 190. 402A did not abolish the duty requirement - manufacturers are not responsible for all injuries caused by products.

• (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.

The rule stated in this Section applies to any person engaged in the business of selling products for use or consumption. It therefore applies to any manufacturer of such a product, to any wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not necessary that the seller be engaged solely in the business of selling such products. Thus the rule applies to the owner of a motion picture theatre who sells popcorn or ice cream, either for consumption on the premises or in packages to be taken home.The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars, and this even though he is fully aware that the dealer plans to resell it. The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person, or even to his buyer, in the absence of his negligence. An analogy may be found in the provision of the Uniform Sales Act, § 15, which limits the implied warranty of merchantable quality to sellers who deal in such goods; and in the similar limitation of the Uniform Commercial Code, § 2-314, to a seller who is a merchant. This Section is also not intended to apply to sales of the stock of merchants out of the usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like.

The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.

The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

• A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
• (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
• (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
• (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:(a) Was of a kind that ordinarily occurs as a result of product defect; and(b) Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

One engaged in the business of selling r otherwise distributing food products who sells or distributes a food product that is defective * * * is subject to liability for harm to persons or property caused by the defect. Under § 2(a), a harm-causing ingredient of the food product constitutes a defect if a reasonable customer would not expect the food product to contain that ingredient.

• A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
• (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product