torts ii outline_bisom-rapp_spring 2012
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Torts Final Outline 6/22/2012 8:42:00 AM
Torts II Outline
Thomas Jefferson School of Law
Professor Bisom-Rapp-Spring 2012
STRICT LIABILITY
When risk is brought unilaterally/unreciprocated risk
2 areas of Strict Liability (S/L)
1). Animals
2). Abnormally Dangerous Activities
Animals
Trespassing livestock
Fencing out Fencing in Strict liability
o No, strict liability where animals are on highway and strayonto adjoining parcel of land (nor if herd of animals like cows
stray out of fenced parcel) So tripping over snake is not strict
liability as it would have to be strangulation or bite etc No liability without fault
Dangerous Animals
Wild: Hold keepers of wild animals strictly liable (although harmmust be result of the specific danger said wild animal presents).
Domestic: Must prove D had scienter (scienter means owner knowsor should have known dangers an animal presents).
o Domestic means by custom animal provides service/benefit tomankind
Abnormally Dangerous Activities
Rylands v. Fletchero Exchequer court (trial court) ruled for Do Exchequer chamber (intermediate court) ruled for P
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o House of Lords ruled for P*Not responsible for first restatement mentioned in supplement
Ryland v Fletcher (cont)Blackburn- If D keeps something on land likely to do mischief if it escapes,
and it escapes, D is liable even if not at fault
Cairns: Where non-natural use of land causes harm, D is strictly liable (like
minx in ryland case)
Rest. of Torts 2nd
Factors Considered for Strict Tort Liability for activities (Judges assess)
Existence of a high degree of risk or harm Likelihood that the harm will be great Inability to eliminate the risk by exercise of reasonable care (most
important)
Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on
extent to which its value to the community is outweighed by its
dangerous attributes
Restatement of Torts 3rdAn activity is abnormally dangerous if:
The activity creates a foreseeable and highly significant risk ofphysical harm even when reasonable care is exercised by all actors
The activity is not one of common usage4 Step approach to Strict Liability Problems
Determine if facts within a class of SL animals or activities Determine if the harm suffered was within the inherent risk Assess proximate cause Defenses
Defenses to strict Liability Claims
Contributory negligence is NOT a defense to SL claims but thefollowing are defenses:
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1). Harm caused by negligence of carefully selected IC ( non-delegable duty
of care)
Repairing dangerous instrumentalities
Precautions required by statute
Inherently dangerous activities2). Harm caused by careful IC engaging in abnormally dangerous activity
3). Illegal activities
Joint Enterprise and Vicarious Liability
Rest. of Torts 2d sec 491 provides 4 factors that establish joint enterprise
An agreement among members of the group
A common purpose to be carried out
A community of pecuniary (money making) interest
Equal right among the parties to control direction of the enterprise
Bailments
Where owner is present
Some jurisdictions assume right of control so there is VL
Other jurix require proof of agency relationship to impose VL
Where owner is not present
Family purpose/car doctrine embraced by the jurisdictions common law
(Malchose case) ORAutomobile consent statute adopted by the legislature
PRODUCTS LIABILITY
1) Negligence
Duty owed to foreseeable plaintiff
Breach- looking for unreasonable conduct/carelessness in design,
manufacturing, packaging, warning, shipping, testing, etc
Causation- factual and proximate
Damages- physical injury and property damage NOT pure economic loss
Defenses: contributory negligence, comparative fault, assumption of risk
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2) Warranties
Express warranty
Is the plaintiff proper (some jurix limit warranty protection to household
while most extend to any natural person)
Is defendant proper (most jurix extend expresse warranty liability to allcommercial sellers)
ELEMENTS:
An assertion of fact -(material representation about productscomposition, durability, performance, safety)
Basis of the bargain - (statement must precede or accompany thesale) presumed by UCC buyers reliance-Did buyer justifiably rely of
assertion of facts
Causation- failure of product to have promised quality caused theharm
Damages personal injury, property damage, pure economic lossExpress Warranty and Implied Warranty Privity Issues
Protected Ps- (horizontal privity issues)
UCC 2-318 provides 3 alternatives indicating who can sue on the warranty
and what kind of damages he can get
Defendants liable(vertical privity issues)
UCC limits liability to merchants but many jurix expand liability to all sellers.
Defenses
Lack of reasonable notification Within reasonable time of discovering breach, P must notify seller
or suit barred
Limitations of liability by D- must be reasonably consistent with thewarranty, not unconscionable (D may NOT disclaim an express
warranty)
Comparative negligence Assumption of risk
Implied Warranties
IWs for Merchantability
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A promise that the product is fit for the ordinary purposes for which it is
used
Elements
Merchants Who sell goods not fit for ordinary purposes (breach) Are liable to protected Ps If breach of implied warranty causes Damages (per. Injury, prop damage, pure economic loss)
Implied Warranty of Fitness for Particular Use
All Sellers Who sell goods not fit for a purchasers particular use Where the particular use is communicated to D and purchaser relies
on Ds expertise (reliance)
The breach causes Ps damages (per injury, prop damage, pure ecoloss)
Defenses (for implied warranties)
Lack of reasonable notification Within a reasonable time of discovering breach, P must notify seller
or suit will be barred
Limitations of liability by D- must be reasonably consistent with thewarranty, no unconscionable (D may not disclaim express warranty)
Disclaimers of Liability sell as is Comparative negligence Assumption of risk
Restatement 2d torts 402A
1. Commercial seller (merchant) who sells a product
2. Defective condition that is unreasonably dangerous
A) Manufacturing defects B) Design defects C) Warning and instruction defects
3. Physical injury and property damage to user/consumer
4. Where product reaches user/consumer without substantial
change
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2. Design Defects Defective Condition that is Unreasonably dangerous
Manufacturing Defects of Product Liability in Tort (Rest. 3d sec 2)
Contains a manufacturing defect when:o the product departs from its intended design even though all
possible care was exercised
o Is defective in design when the foreseeable risks ofharmcould have been reduced or avoided by the adoption of
a reasonable alternative designand the omission.renders
the product not reasonably safe
o Is defective because of inadequate warnings or instructionswhen the foreseeable risks of harmcould have been reduced
or avoided by the provision of reasonable warnings or
instructions.
Manufacturing defects (main rule)o Rule: A product has a manufacturing defect when it departs
from its intended design and the departure makes the product
more dangerous
o Defective condition that is unreasonably dangerous)o Applying the rule: Simply compare the products design
against the allegedly non-conforming unit of the product
which injured P.
2. Design Defects (cont) of S/L in Product Liability-
4 Rules
1. Hindsight risk/utility 2. Ordinary risk/utility 3. Consumer expectations 4. Hybrid approach (CA approach) Design defect Rule 1Dean Keetons approach
o Rule: 1. Hindsight risk/utility: Impute knowledge of risksand useful aspects of product to D using knowledge available
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at time of trial (instead of knowledge available at the time the
product was marketed)
Reasons Product Liab is Strict Liability
o 1. In design defect cases, knowledge of product risks is oftenimputed to D even when D didnt have actual knowledge
o 2. Some courts limit or will not apply the defense ofcontributory negligence in products cases so they want to
distinguish b/w products cases and negligence
o 3. Some courts feel negligence is too forgiving of smallmanufacturers
o 4. The liability of non-manufacturing sellers is strict! Design defect Rule 2Dean Wades approach
o Risk utility: Balance 7 factors if the risk of the product asdesigned is greater than the utility of the product as
designed, the product has an unreasonably dangerous design
defect
o Knowledge base is time the product is marketed 7 Risk-utility Factors (same factors for hindsight & ordinary
utility tests)
1. Usefulness and desirability of product 2. Safety aspects of the product (likelihood and severity of injury) 3. Availability of safer substitute product 4. Ability to improve products safety without impairing its
usefulness or making it too expensive
5. Users ability to avoid risk by being careful when using product 6. Awareness of danger due to general knowledge or warnings 7. Feasibility of D spreading loss, getting insurance Design Defect Rule 3-Consumer Expectations
o Consumer expectations is product dangerous beyond that which ordinary
consumer would consider
Design Defect Rule 4- Hybrid approach
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o Hybrid Approacho Product has design defect if:o 1. P shows product failed to perform as safely as an ordinary
consumer would expect
o 2. P shows products design proximately caused injury and Dfails to prove benefits outweigh risk
Warning defects
Rule: P must show that manufacturer knew or should have knownof the risks associated with product.
Rule for other Ds: P must show that retailer knew or had reason toknow of the risks. Considered a lesser standard. Product Liability in
Tort
Warning defects some sub-rules
1. State of the art relevant to know-ability 2. Obvious hazards no need to warn 3. Sophisticated users no need to warn 4. Learned Intermediary rule 5. Post-sale duty to warn
3.Damages-Physical injury and property damage to user/consumerPure economic loss not available
Physical injury damages available
Property damages available (harm to product itself not always considered
property damage)
Economic loss that flows from physical injury or property damages is
available
Rest 3d Sec. 21 Damages
Harm to person or property includes economic loss if such loss is caused by
harm to:
Ps person
The person of another when the harm interferes with Ps interest that is
protected by tor law
The Ps property (missed some of slide here)
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4. Where product reaches user/consumer without substantial
change
The defect indentified in the second element must be the proximate cause of
Ps injuryThe defect must have existed when the product left the Ds control (ex in Rix
case)
Defenses to 402A claims (S/L Produc liability)
Comparative fault is defense in most jurisdictions (reduces recovery)
Assumption of risk may bar suit
Unforeseeable misuse may bar suit
DEFAMATION
(7 elements)- For Exam First Categorize type of plaintiff
Defamatory Statement About the plaintiff False Statement Fact v. Opinion Published Damages State of Mind
1. Defamatory Statement-statement is one that diminished the respect,
good will, confidence or esteem in which the P is held OR excites adverse or
unpleasant feelings about the P. (Ex. Being characterized as a liar, especially
with respect to ones engagement in sexual affairs, would satisfy this
standard)
2. About the Plaintiff-A plaintiff must demonstrate that a reasonable
person would understand defamatory statement was referring to that
plaintiff. If the defamatory statement does not refer explicitly to the plaintiff,
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the plaintiff would likely need to plead colloquium, extrinsic evidence that
connects the plaintiff to the statement.
Inducement- Where statement is not defamatory on its face, Pmust plead extrinsic facts-background info called the inducement.
o Ex. P was Mormon and statement said she drank beer(wouldnt be defamatory for normal person but could be to
Mormon)
Innuendo- where the statement is not defamatory on its face, Pmust explain why the statement, along with the inducement,
injures Ps reputation. This is innuendo
Rule for Groups:
P must establish that a reasonable person would understand thedefamatory statement referred to the P
o Where groups is large, none can sueo Where group is small, each member can sueo Problems occur when statement refers to some of group but
not all
Colloquium: Where statement does not explicitly refer to P, P must
plead extrinsic facts, known as colloquium, to demonstrate that areasonable person would understand the statement as referring to P
3. False Statement-
Rule: statement must be substantially untrue Application: Where details between truth and the statement differ,
ask whether the essential sting or thrust of the defamatory
communication is the same as what actually happened, Where
there is a difference between the statement and what actually
happened, falsity is established.
4. Fact v. Opinion- example: calling someone a liar could be construed as a
statement of opinion. Yet, the Supreme Court in Milkovich held statements
of opinion actionable to the extent they imply an assertion of objective fact.
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A reasonable argument could be made if statement is based on implied
knowledge, which might be deemed actionable
Opinion is actionable in a defamation suit if:
The opinion implies false, defamatory facts; e.g. I think Bob is an
alcoholic is a statement that implies known, false, reputation- harming factsabout me.
The speaker offers an opinion as true when it is not an opinion actually
held by the speaker. In other words, it is a false opinion; e.g. I thought the
food in Restaurant X was disgusting but the speaker loved the food!
Opinion is not absolutely protected by 1st Amendment
Opinion is actionable- when opion implies objective facts
And when its someone elses opinion.
5. Publication
Rule- Statement must be conveyed and understood by at least one person
other than the P or D/ communicated to a third person who reads and
understands it.
Sub-Rule: Primary Publisher: Each entity taking part in making theinitial message is charged as a primary publisher (author, editor,
newspaper, tv station)
o Must take place via an intentional or negligent act. Basically,D must intendfor 3rd person to read/hear it OR be negligentin allowing 3rd person to hear/read
Sub Rule 2: Secondary Publisher: Those who transmit the messagemore passively are secondary publishers and are liable only if they
know or should know of defamatory matter (bookstores, libraries,
magazine stand)
o Those who transmit the message more passively aresecondary publishers and are liable only if they know or
should know of defamatory matter (bookstores, libraries,
magazine stand).
Communications Decency Act of 1996 230(c)(1)- No provider or user of an
interactive computer service shall be treated as the publisher or speaker of
any info provided by another information content provider.
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Act grants immunity to online companies when info is provided bynon-company/another another party (ex. match.com vulgar
German guy posting lady is horny on her profile)
6. Damages General Damages: Presumed by law and need not be proven.
Provides compensation for general injury to reputation (ex.
Humiliation, wounded feelings, loss of friends).
Special Damages: Must be proven. Covers pecuniary loss as aresult of defamation (ex. Lost job, loss of prospective gift,
destruction of advantageous business relationship
Types of Damages
1. Libel per se (defamatory on its face/obvious like Bob packsfudge) and slander per se (crime of moral turpitude, in
business/socially; unchastely- slander that does not require special
damages be proven) could render damagesa (case would be onefor libel if written; communicated by sight (i.e., newspaper
2. Slander- requires special damages (i.e., wounded feelings,humiliation) be proven to get damages (like spoken word/not
written) Gen damages presumed after special damages are proven 3. Libel per quod (not defamatory on its face) courts are split on
whether special damages need be proven. General damages
presumed by 2nd restatement
Private Figures Damages (Gertz)
When no showing of actual malice a private P defamed on a matter of public
concern may NOT recover presumed or punitive damages. Such a P may
only collect for actual injury
Actual Injury: Proven damages not limited to out-of-pocket loss,and covering impairment of reputation, humiliation, mental
anguish.
If not matter of public concern though, no actual malice need be proven to
get damages-Dun Bradstreet v Greenmoss Builders
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Matter of Public Concern: Speech deals with matters of public concern when
it can be fairly considered as relating to any matter of political, social, or
other concern to the community. Snyder v. Phelps
7. State of MindRule: (for public officials, public figures, candidates for public office)
False statement made with actual malice; that is, with
knowledge that the statement was false OR acted with reckless disregard as to its truth or falsity.
o Reckless Disregard- D subjectively entertained serious,serious, doubts about the truth of a statement
o The test is subjective and requires circumstantial evidence(that is clear and convincing-between kinda sure and
beyond reasonable doubt) to show D knew his statement was
bullsh$t. Carelessness isnt enough has to be RECKLESS
Sub Rule: (Actual Malice) Deliberate alteration is not equivalent
to actual malice unless the alteration results in a material change in
the meaning conveyed by the quote (NY magazine case- when
reporter publishes story of interview and put unquoted statements
in quotes. P used tape recording to show none of the quotes were
taped and the court said those quotes materially altered what Pactually said).
Determining who qualifies as Public official
Whether P is government employee who has or appears to havesubstantial responsibility for or control over government affairs. If
yes, P is public official.
All purpose public figures: people who have reached pervasivefame like Tiger Woods, Brad Pitt, Oprah, and even Snookie and Kim
Kardashian.
Limited public officials (3 factor test)o Must be a public controversy/issue publicly debated that is
serious
o Typically P must thrust himself into the controversy or publicissue (aka assumption of risk)
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o The defamatory communication must concern the issuesrelated to the public issue they are/were involved in
Public P defamed on matter of public concern must prove actual malice
for state of mindPrivate P defamed on matter of public concern must prove at least
negligence for state of mind
Falsity
Rule: the statement must be substantially untrue
Private plaintiff must prove falsity at least where a private P is defamed on a
matter of public concern (P must prove falsity too).
Private P concerning matter of Private concern Supreme Court has not ruled
yet. Almost all states require negligence be proven.
Private on Private still open issue
US Constitution 1st Amendment relation to Defamation
Rule (from 1st Amendment): Congress shall make no law abridging the
freedom of speech, or of the press.
Sub-rule:Through the operation of the 14th Amendment, the FirstAmendment binds not only the federal government but also the
states
Sub-rule 2:1st Amendment claims require state action; privateactors not subject to restrictions.
For States: So long as they do not impose liability without fault, the states
may define for themselves the appropriate standard of liability for a
publisher.of defamatoryfalsehood injurious to a private individual.
Timeline info of Defamation
1600s- no fault for defamatory statements
1700s- only if it was done with malice/out of spite
1900s- malice as matter of law (implied the hateful intent) malice in fact-
(proved by defeating defense)
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1964- Back to no fault (no need to prove carelessness or intent)
Defamation defenses
Two important defenses:
1. Consent: An absolute defense so long as it is not exceeded. 2. Truth: Even though public Ps andprivate Ps defamed on a matter
of public concern must prove falsity, substantial truth, if proven by
the D, is an absolute defense.
Absolute Privileges
Participation in government processeso Judicial proceedingso Legislative proceedingso Executive proceedings
Compelled broadcasts TV and radio stations protected whereelectoral equal access laws mandate broadcast of a candidates
response
Communications between spouses Third party cannot sue wherepublication is b/w spouses
Conditional/Qualified Privileges 3 Types
1. The interest privileges 2. Reports of public proceedings 3. The privilege of fair comment
The Interest Privileges
1. Protection of publishers own interests 2. Protection of a third partys interests 3. Protection of common interests 4. Public interest Ways of losing the interest privileges
o 1. Where D has no reasonable basis for believing thestatement is true (P proves D acted with reckless disregard
due to Const. standards);
o 2. Where Ds statement was not solicited;
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o 3. Where Ds statement was not made to a proper person;o 4. Where D excessively published the statement;o 5. Where D used inflammatory words;o 6. Where D had improper state of mind
Reports of public proceedings
There is a qualified/conditional privilege to report on publicproceedings, public records, official acts but the report must be
verbatim OR an accurate and fair (disinterested) summary.
To defeat the privilege, P must show fault by D in failing to makethe report accurate and fair.
Privilege of fair comment
D may offer criticism on matters of public concern, including theactivities of public officials/figures and on subjects scientific,
artistic, literary, and dramatic.
The criticism must be comment or opinion not a misstatement offact. It must be fair and based on true facts.
Interpret the privilege by referencing Milkovich
MISREPRESENTATION
Three causes of action (intentional, negligent, strict liability)
Five Elements
1) Ds misrepresentation of a material fact
2) State of mind (various among 3 causes of action)
3) Ds intent to induce Ps reliance (varies among cas)
4) Ps justifiable reliance on the misrepresentation
5) Damages
Sub-Rules
Material: 2 ways to prove
Info is material if RPP would attach importance to it when making a decision
to enter transaction
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Info is material if D knows or should know this particular P considers the info
to be important
Fact: The info must be a fact not opinion
Misrepresentation: Words or actions that create a false impression, cover up
the truth, or remove an opportunity to discover the truth (active, failure todisclose, half truths).
1) Misrep of Material fact (varies by cause of action)
3 Ways Misrepresentation Occurs (of Material Fact)
Active Misrepresentation- Can be oral written, or based on specific actions
Failure to disclose when duty to disclose
Old Common law: caveat emptor- no duty
Exception- special relationship between P and D
Modern Trend: duty to disclose defects that seriously affect land use and
which buyer could not reasonably discover
Half-Truths
Partial disclosure that is misleading is a misrepresentation
Old Common Law- no duty to speak but once D does, must make full, fair
disclosure
2) State of mind (varies by cause of action)
Intentional Misrepresentation (aka fraud or deceit)D knew misrepresentation was false
D acted with reckless disregard as to truth or falsity
D consciously aware of lack of knowledge
Negligent Misrepresentation
Duty- look for special relationship or implicit agreement to exercisecare in investigation or communication info
Breach- failure to be careful in providing info Strict Liability (rare) Applies to sale, rental, or exchange Theory reserved for parties in unequal positions often a contract is
involved.
3) Intent to Induce Ps reliance (varies by cause of action)
Rule: D must intent to rely on misrepresentation as true
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1). Face-to-face transaction: easy to demonstrate intent to induce for fraud,
negligent misrep., or Strict liability misrep
2). Where P encounters misrep indirectly, however, rules for the three
causes of action vary.
1)Intentional Misrep (fraud/deceit)RULE: D intended to induce reliance on the part of any member of the
expected affected class the class D has reason to expect will rely at the
time the misrep was made
2) Negligent Misrepresentation
Quasi-Privity (NY) ruleo D must be aware report will be used for a particular purposeo D must know that a specific party intends to rely on reporto There must be linking conduct between D and P
Foreseeability (WISC) ruleo D intended to induce Ps reliance if Ps reliance is a
foreseeable consequence of Ds negligence
Restatement 2d sec 552- D intends to induce Ps reliance to aknown, intended, and foreseen class of beneficiaries
o Where: P is a person or limited group of persons for whose
benefit D intends to supply info OR knows his/her client
intends to supply it P relies on the info in a transaction D intends to
influence or knows his clients intention or in a
substantially similar transaction
4) Justifiable Reliance
General Rule: Two intertwined concepts
P must prove he/she relied P must prove that the RPP would have relied
Exceptions:
No need to prove RPP would rely where D knows P is gullible,superstitious, ignorant, etc
P may be held to standard higher than RPP if P has specialknowledge or expertise
Related to general rule/sub-rules
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Ps duty to investigateo P has NO duty to make inquiry or investigate the truth of an
apparently reliable statement made by D
o P has a duty to investigate IF circumstances would put a RPPon notice that he is being deceived
Exception: Where the P is not held to the RPP standard b/c he is afool, likely no duty to investigate if circumstances are
fishy/questionable
Fact/Opinion Reliance
Rule: The RPP may justifiably rely on statements of fact but not of opinion
Test for determining fact or opinion:
For Facts: Ask how the statement would reasonably be understood.Typically factual statements are objective and subject to being
proven true or false.
Opinions are subjective (i.e., Beauty is in the eye of the beholder)Exceptions to the rule of Fact/opinion
A RPP may justifiably rely on opinion when:
D possesses superior knowledge unavailable to P D is in a special relationship with P D has special expertise D appears to be an independent authority but actually has an
interest in the transaction
Where statement about law is fact-based, P may justifiablyrely upon it
o Ex. The 18thamendment was repealed yesterday, is treatedas a fact-based statement
The plumbing in the house complies with the city code is also treated as
fact statement if the actual state of the plumbing is not disclosed to P
Where statement of law is opinion-based, treat it like other
statement of opinion.
Ex. your actions violate the 7thamendment is treated as an opinion- a
legal conclusion based on facts known to P and D
1. Prediction is an opinion-like statement of belief about what will
happen in the future.
In general, one may not justifiably rely on Ds prediction of future events.
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2. Intention is a fact-like statement regarding
someones current state of mind or present plan to take action in the
future.
In general, one may justifiably rely on Ds statement of intention.
5. Damages
Out of pocket: P is given the difference between the value of whats/he has parted with and the value of what s/he has received.
[PAID- RECEIVED] (English rule and Minority in US)
Benefit of the bargain: P is given the difference between thevalue of what s/he was promised and the value of what s/he has
received. [PROMISED RECEIVED] (Majority in US)
Defenses for Misrep
1. Fraud
Assumption of the risk will bar suit2. Negligent misrepresentation
Assumption of the risk will bar suit Contributory negligence will bar suit Comparative fault will reduce damages
3.Strict liability misrepresentation
Assumption of the risk will bar suit Comparative fault will reduce damages
NUISANCE
Public v Private Nuisance
State of mind: Both can be based on any state of mind (intent,negligence, S/L) and state of mind is only relevant to determine
damages and defenses
Both involve a substantial, unreasonable interferencePublic Nuisance
Rule:A public nuisance is a substantial unreasonable interference with a
right common to the general public.
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Examples: right to health, right to safety, right to peace, right tocomfort (subjecting public to loud parties, keeping explosives in
house, etc)
3 ways to demonstrate unreasonable interference P can show substantial interference with public right P can show Ds conduct violates a statute or regulation P can show Ds conduct is likely to produce permanent or long
lasting effect and is substantial determent to the public.
Standing to bring suit
Government officials clearly have standing to bring suit to vindicateunreasonable interference with public rights.
A private party, in order to have standing to sue, must suffer harmof a kind different from that suffered by other members of the
public.
Private nuisance
Rule: A private nuisance is an interference with the Ps right to useor enjoy her/his property.
o Examples of interference: a physical condition; the health ofthe P; Ps comfort or convenience; Ps peace of mind; threatof future injury.
o Unlike trespass, nuisance does not involve interference withPs possessory interest. Nuisance does not involve any sort of
physical entry onto real property.
Permanent v. Continuing Private Nuisances
(italic part here not relevant to EXAM)
o Permanent nuisance cannot be abated (ended) because it hassocial value or it has caused irreparable damage. (No
injunction available.)
o Continuing nuisance can be abated (ended). (Both injunctionand damages are available. P can bring successive suits until
it is abated.)
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Private Nuisance: Elements
1. An intentional, negligent or strict liability act The act causes a substantial and unreasonable interference with Ps
use or enjoyment of property
o Substantial = a RP would take offense (beware of sensitiveuses of land)
o Unreasonable = For damages: balance equities OR more than a P should
bear without compensation
For injunction: balance the equitiesFactors for determining unreasonableness
Is the interference more than P should bear without compensation?
Factors to Examine:o Extent & duration of the interferenceo Nature of the interferenceo Social value of use to which P puts her/his propertyo Suitability of Ps use of property to that localeo The burden on P compared to D to bear the loss of shift it to
others
Relationship between zoning and determining unreasonablenessWhere D complies with zoning rules:
o Some courts treat as proof that Ds interference is notunreasonable (in location or operation)
o Some courts treat zoning as relevant but not dispositive andmay nevertheless find Ds interference unreasonable (in
location or operation)
o Some courts treat as proof Ds interference is notunreasonable in location but allow consideration of the claim
on operation (see e.g. Winn-Dixie)
Unreasonableness: Factors for balancing the equities
To determine the equities examine:
Character & extent of damage inflicted or threatened Good faith or intentional misconduct of D
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Ds efforts to avoid harming P Financial investment of P as compared with D Economic hardship resulting if judicial relief is granted or denied Publics interest inhaving Ds activity continue Who, P or D, was there first (aka coming to the nuisance theory)
Defenses for public or private nuisance
Intentional nuisance: Assumption of the risk (sometimes calledconsent)
Negligent nuisance: Assumption of the risk; contributorynegligence; comparative fault
Strict liability nuisance: Assumption of the risk; comparative fault(to reduce damages)
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