Part Four: Misc. Torts Flashcards Preview

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Flashcards in Part Four: Misc. Torts Deck (15)
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1

What are the torts covered as "Misc. Torts"?

1. Misrepresentation (intentional/negligent)
2. Interference with Business Relations
3. Malicious Prosecution
4. Abuse of Process

2

What is the prima facie case for "Intentional Misrepresentation" (Fraud/Deceit)?

1. "Misrepresentation" of a material past or present fact;
2. "Scienter" - when D made statement, she KNEW OR BELIEVED it was false OR there was no basis for the statement;
3. "Intent" to induce P to act or refrain from acting IN RELIANCE upon misrepresentation
4. "causation" = actual reliance
5. "justifiable reliance"; and
6. "Damages" - actual pecuniary loss

3

Are there any defenses to "Intentional Misrepresentation" (Fraud/Deceit)?

No.

4

With regards to "Intentional Misrepresentation", is there a duty to disclose?

Generally: There is no duty to disclose a material fact, UNLESS D:

1. Stands in fiduciary relationship to P;
2. is selling REAL PROPERTY and knows P is unaware of, and cannot reasonably discover, material information about the transaction OR
3. has spoken and her utterance deceives P

5

With regards to "Intentional Misrepresentation", can concealment constitute misrepresentation?

YES.

Physical concealment of a material fact may constitute a misrepresentation.

6

With regards to "Intentional Misrepresentation," what is D's liability to a 3rd party?

If a 3rd party relies on D's representation, D will be liable IF she could REASONABLY FORESEE that the 3rd party would so rely.

7

With regards to "Intentional Misrepresentation," what is the rule regarding reliance on opinion?

Generally: Reliance is justifiable ONLY if it is on representation of fact.

NOTE: P has no duty to investigate.

HOWEVER --> P may rely on opinion IF D has a superior knowledge on the subject matter.

8

What is the prima facie case for "Negligent Misrepresentation"? (Five Elements)

1. "Misrepresentation" in BUSINESS OR PROFESSIONAL capacity;
2. "breach of duty" toward particular P
3. "Causation"
4. "Justifiable Reliance"
5. "Damages"

9

What are the two special issues that arise with "Negligent Misrepresentation"?

1. Generally, only good for misrepresentations made in a COMMERCIAL SETTING

2. Generally, liability will only attach if reliance by a PARTICULAR P could be contemplated. (ie...for NEGLIGENT misrepresentation, foreseeability that statement will be communicated to a 3rd party DOES NOT make D liable to 3rd party).

10

What is the prima facie case for "Interference with Business Relations"? (Four Elements)

1. Existence of a VALID CONTRACTUAL RELATIONSHIP between P and 3rd party or VALID BUSINESS EXPECTANCY of P;

2. D's KNOWLEDGE of relationship or expectancy;

3. INTENTIONAL INTERFERENCE by D inducing a breach or termination of the relationship or expectancy;

4. Damages

11

With regards "Interference with Business Relations"? when may privilege exist?

D's conduct MAY be privileged where it is a PROPER ATTEMPT to obtain business for itself or protect its interests.

Privilege is more likely to be found if:
1. D interfered w/ prospective rather than existing contracts;
2. used commercially acceptable means of persuasion;
3. Is a competitor of P seeking same customers; OR
4. has a financial interest in the 3rd party, or is responding to 3rd parties request for business advice

12

What is the prima facie case for "Malicious Prosecution" (Five Elements)?

1. Institution of criminal proceedings against P
2. Termination in P's favor
3. absence of probable cause
4. improper purpose
5. damages

13

Does "Malicious Prosecution" extend to civil cases?

Most jurisdictions have extended malicious prosecution to apply to civil cases.

14

With regards to "Malicious Prosecution" - what is the liability of prosecutors?

Prosecutors are immune from liability

15

What is the prima facie case for "Abuse of Process"?

1. wrongful use of process for an ulterior purpose;
2. definite ACT OR THREAT against P in order to accomplish ulterior purpose