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Prep for 2nd exam - tort 2 Maatman at Widener spring 2018
Prep for 2nd exam - tort 2 Maatman at Widener spring 2018

Additional Law Flashcards




Factors for determining if activity is Ultrahazardous
  1. Degree of risk of harm to people, chattel, land
  2. Likelihood that harm is severe
  3. Inability to eliminate risk through reasonable care
  4. Is activity is un common (guns vs bungee)
  5. Inappropriateness of where activity is done (gun range)
  6. Activities value to community (gun range)

Gun range not ultrahazardous, hauling gas is - key difference is in magnitude of potential harm - hauling gas more dangerous - not strict L. when other car is negligent

General Rules Re Animals
  • Landlord could "harbor" an animal
  • Strictly liable for medical expenses from animal
  • Strict liable for animals only if known to be vicious or has viscous propensity abnormal to its class
    • Pitbulls may be automatically viscous
    • Anything not normally "domesticated"=dangerous


Rule for domesticated animals
  1. keeper of domesticated animal (horse)
  2. needs to take reasonable steps to
  3. prevent reasonably foreseeable injuries
  4. when the animal belongs to a class of animals that cause such injuries
Negligence vs Strict Liability with animals
  • Strict liability when situation is inherently dangerous - keeping a tiger, demolition subcontractor
  • Can impose liability without finding of fault - only that tort occurred and defendant was responsible
  • For NEGLIGENCE, plaintiff needs to prove that defendant could have prevented the harm through ordinary duty of care
Fraud and Misrepresentation Basic Issues

Normally no cause of action for pure economic loss but Fraud and Misrep is the EXCEPTION


Commercial loss normally addressed in contracts, F&M for non commercial situations


Defendants Actions Defined for F&M
  1. Def provided false information
    1. exsiting fact
    2. affecting essence of transaction
    3. Intentionally provided false information
    4. Info was known to be false or recklessly false
    5. Inequality of knowledge or defendant expertise
  2. To induce reliance of transaction on plaintiff
  3. Plantiff does rely on false information
  4. Plantiffs reliance was justifiable
Variations on False Information
  1. D knows it is false and intent to harm plantiff
  2. Know info is false without intent to harm plantiff
  3. Reckless regarding truth - not sure, did not do due diligence - art forgery for auctioneer
  4. Negligent about truth of statement (accountants, appraisers)
  5. Innocent misrepresentation
Two Ways to Calculate Economic Loss

Horse worth 11K with papers

Worth 7K without papers

Sold for 10K


Out of pocket method - majority rule

Selling price minus real value

$10K - $7K = $3K


Benefit of the bargain:

Purported value minus real value

$11K - $7K =$4K



Restatement of Torts 551 Part 1, 2 and e


Liability for nondisclosure


Part 1: failure to disclose same as lying


Part 2:  duty to exercise reasonable care to disclose necessary information or "basic facts" known before or during transaction that the party may rely upon


Even in caveat emptor case you can still win if there is active misrepresentation and concealment

Four approaches to misrepresentation - who may rely on misrepresentation
  1. negligent act only to those in privity/contractual relationship
  2. to those approaching privity
  3. to a limited class whom the auditor may foreseeably see rely on the information (majority rule)
  4. To all parties who may reasonably foreseeably rely on the information 
Elements required for negligent misrepresentation
  1. false information
  2. negligently supplied (fails to exercise reasonable care)
  3. in the course of professional work
  4. to a 3rd person or limited group of people can reasonably foresee
  5. for a transaction that the accountant intended to influence
  6. with 3rd party justifiably relies upon to his detriment

accountant's actual knowledge at the time of the report should be known


Intentional Interference with Existing KR




 for existing contracts Must show:

  1. valid contract existed
  2. Defendant had knowledge of contract
  3. defendant acted intentionally and improperly
    1. voluntary act for the purpose of interfering with K
    2. Was improper - low bar to overcome
  4. actual breach of contract
  5. plantiff was injured by defendants actions
Elements of Fraud for NY and extra ones for WA
  1. False representation of material fact
  2. Scienter or known to be false or recklessly false
  3. The P relied upon
  4. P was injured by the fraud

WA adds the requirement that D had intent for P to act on false information

Also adds that P had right ro justifiably relied upon information and that P was ignorant of falsity

Diff between II(p)KR and TI(e)KR

Tortious interference with existing contract can be shown even if D was engaged in lawful behavior - normally with existing contractual relations - lower bar to prove interference - just show malice = NOT IMPROPER


II (prospective) KR requires more culpable behavior of the defendant - requires more evidence - threats, trespass, fraud - can be shady but cannot be tortious - TEST IS CLEARLY IMPROPER behavior - requires malice

Factors for "not improper"

Applies to TIeKR

  1. nature of the actors conduct
  2. actors motive
  3. the interference of interests of the other
  4. the interests sought by the actor
  5. the social interests in protecting the freedom of action

Look for malice of conduct to see if "not improper"

Can offer better terms for an at-will employee (no term defined in contract = at will)

Def of invitee, licensee and trespasser for landowner obligations

Invitee - benefits the land owner - shoppers, workers, independent contractors, hospital patient and guest, free museum goers


Licencee: on land for benefit of self or is a social guest - owner gave consent - hunter, fisher, foreseeable trespasser or attractive nuisance


Trespasser: everyone else - no consent of owner

Duty of landowner to invitee, licensee or trespasser

Duty for a invitee: reasonable care to keep reasonably safe - inspect, correct, warn of obvious dangers


Duty to licensee: licensee takes premises as is - landowner duty to warn of hidden dangers - not willful and wanton harm to licensees


Duty to tresspassers: no duty except to refrain from willful and wanton injury

Known tresspassers
If trespasser is known and in peril, treat as an invitee - man falling or train tracks was a tresspasser but when known the railroad had duty to act reasonably to prevent harm.
Willful vs Wanton Definition

Willful - intent and purpose or design to harm


Wanton - failure to exercise ANY care when there is great probability that harm can occur

Rules for Attractive Nuisance
  1. Artificial condition (pool, not a natural pond)
  2. Known that kids are liable to trespass
  3. Unreasonable risk of death or serious bodily harm
  4. Children do not recognize danger
  5. Burden to eliminate danger is small (fence) compared to danger to children
  6. Fails to exercise reasonable care
Pre and post rowland for invitees, etc

Pre rowland = 3 categories - license , invitee and trespasser


Post Rowland - only two - Licensee and invitee the same category - trespasser different duty of care (Majority)


Some combine all three into one with reasonable care standard

Factors for duty in wrongful death (minor issue on test)
  1. Nature of risk / harm - foreseeability and severity
  2. Opportunity and ability to prevent harm
  3. Relationships between the parties
  4. Fairness and social interest



wrongful death vs suvivorship actions

Wrongful death - person dies, payment to family

Survivor action - he lives and suffers - survivor gets paid

Some states do not allow both - unless they are unrelated to the same incident


Pain is actual pain, suffering is emotional - both need to be related to conciousness

Four Privacy Torts

Misappropriation of likeness


Intrusion upon Seclusion


Publicity to Private Facts


False Light

Misappropriation Elements

Defendant is liable for invasion of privacy when they:

  1. Used the name, picture, voice or portrait
  2. For Advertising or trade (not only commercial purposes or $$ benefit - some require commerce )
  3. Without written consent

Look for plaintiff to be shy, not famous = misapprop


If famous person = right of publicity - fame and commercial value of image - they don't get paid for their image

2nd Restatement on Misappropriation
Intrusion upon Seclusion

Plantiff must show:

  1. Intrusion into a private place, conversation, or matter
  2. Intrusion is in a manner that is highly offensive to the reasonable person

Cannot be in completely public place - must be some zone or physical or privacy surroundings


Not recognized in all jurisdictions (NY)

Public Disclosure to Private Facts

One who gives publicity to the private life of another is liable for invasion of privacy if the matter publicized 

  1. Would be highly offensive to a reasonable person
  2. Is not of legitimate concern to the public

Restatement 652d

  1. publicity of private fact
  2. that is highly offensive to reasonable person
  3. Not newsworthy or of legitimate public concern
Elements for false light

Must prove:

  1. Def disclosed to one or more information that was presented as factual which was either actually false or created a false impression about plantiff
  2. Was understood by one or more as stating or implying something highly offensive with the tendency to injure plaintiff's reputation
  3. Acted in malice (hard to prove for public figure)
  4. Plaintiff was damaged by the disclosure
False Light - determining how the disclosure would be understood

Plaintiff must prove with clear and convincing evidence that Def knew the information was false, or was reckless in whether is was truth or false


Look at the totality of content disclosure, type of publication, is it read casually, broad distribution, etc. 


Look at falsity or STING of of defamatory meaning


Lower plaintiffs esteem with sig segment of respectable society

Defamation vs Slander vs Libel

Both are defamation - dignity tort of reputation


Slander is spoken

Libel is written


Can be single statement, single piece of writing


Cannot have defamation against the dead except their kids


Opinions can be actionable if offensive - "in my opinion, jones is a liar"

Publication for Defamation

Each time a defamatory statement is made = publication


Only once is required in majority jurisdictions, others may require multiple publications

Slander per se

A statement that is defamatory on its face - can get without damages shown - categories are


Imputation of serious crime or crime of moral turpitude

Imputation of a loathsome disease (HIV, leprosy)

Imputation of traits or conduct incompatible w business

more than general derogatory statements

Must specifically relate to qualities for vocation

Inmutation of serious sexual misconduct


Diff between defamation and false light

Defamation = harm to reputation, true falsity, loss of income


False light = harm is to self esteem - may be true

Rules for defamation
  1. Publication
  2. of a false statement
  3. of and concerning the plantiff
  4. Capable of damaging reputation
    1. hold plaintiff to scorn, hatred, ridicule,contempt
    2. in the minds of considerable and respectable segment of the community
    3. Question for the courts to decide
  5. resulting in economic loss

Look at totality of context - magazine, etc. 


Special Damages
Pecuniary losses from the defamatory statement directly related to Plantiffs lowered reputation in the community
Nj Conditional Interest Privilege
False Light vs Defamation

Both have publicity, falsity, knowing it was false (or reckless), actual damages, 


False light also requires publicity highly offensive to RP - can be true statement but in false light


Defamation requires defamatory statement, 

Spectrum of Scienter for false statements
  1. known false with intent to harm - fraudulent misrep
  2. known false with no intent to harm - fraudulent misrep
  3. Reckless about truth of statement - fraudulent misrep
  4. negligent about truth of statement - negligent misrep
Fraudulent Misrepresentation
  1. Misrepresentation of MATERIAL fact, opinion, intention or law is made
    1. knows it to be false
    2. Does not have the confidence in accuracy
    3. Knows that he does not know
  2. for the purpose of inducing reliance to act or not to act
  3. The other justifiably relies on on it
  4. To her detriment / harm
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