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45 Cards in this Set

  • Front
  • Back

Elements of Fraud

1. Misrepresentation

2. Intent

3. Inducement

4. Reliance

5. Damages: for opinions, speaker must have superior skill or knowledge

Summary: D lied to me on purpose with the goal of tricking me. I fell for it and got screwed.

When does fraud come into play?

With the purchase or sale of an item

Economic and Judicial Torts

1. Fraud

2. Malicious Prosecution

3. Prima Facie Tort

4. Inducing a Breach of Contract

Elements of Malicious Prosecution

1. D sued or initiated criminal proceeding

2. Case was terminated

3. There was no probable cause

4. D had an improper motive in bringing the case

5. Damages

Prima Facie Tort

***In New York ONLY***

Definition: intentional infliction of economic harm without justification


1. Disinterested Malevolence: An inent to harm without any self-interest

in the activity

2. Pecuniary/Monetary Harm

Examples: radio station, competitive corner store low prices

Elements of Inducing Breach of Contract


1. Must be a valid contract, not terminable between P and third party.

2. D must know of contract between P and third party.

3. D persuades 3rd party to walk away from contract


- Special Relationships

ex: family, clergy, financial advisor

When does strict liability apply?

- Defective Products

- Abnormally Dangerous Activities

- Injuries Caused by Wild Animals

What different claims can P bring in the case of

defective products?

Many, including negligence, fraud, warranty, and strict liability

Do not assume strict liability

Strict Liability - Defective Products:


1. D is a merchant

- ordinary deals with goods of the type

2. Proof of a defect

- Manufacturing, Design, Informational

3. Product has not been altered since leaving D's hands

- presumption of non alteration (ord com), D must prove alteration

4. P is making a foreseeable use of the product

- misuses may be foreseeable (ex: standing on a chair)

Defective Products:

Types of Defects

Manufacturing Defects

Design Defects

Informational Defects

Manufacturing Defect

The product departs from its intended design

- i.e., product differs from all other products on assembly line in a way that makes it more dangerous than others would expect

- safety precautions are irrelevant

Design Defect

A. The product could have been built differently and in a safer way

- The alternative must be viable: practical in

terms of product cost and function

- risk-utility analysis

B. Cannot escape liability by slapping a warning on

C. Government Regulations

- failure to comply is proof of defectiveness

- compliance does NOT preclude liability

Informational Defect

IF a product has residual risks that cannot be designed away, the product is defective unless it has adequate warnings

- Adequate Warnings: must successfully convey warning

- instructional booklet may not be good enough

- Exception:

- obvious risks (ex: knives)

Defenses to Strict Product Liability

Comparative Responsibility

Strict Liability:

Abnormally Dangerous Activities


1. must create a foreseeable risk of serious harm even when reasonable care is being exercised (i.e., not made safe through ordinary precautions)

2. Must be unusual in the area where it is being conducted

Typical Cases

- Blasting/Explosions

- Hazardous Materials

- Radioactive Materials

Liability for injuries caused by animals

Wild animals

- Strict liability ALWAYS

Domesticated Animals - house pets and livestock

- No strict liability (New York: not even negligence)

- Exception: if prior knowledge, then strict liability even in NY

- no liability to trespassers though

How does no fault insurance work

The injured party received compensation from the insurance rather than damages

In NY, only covers personal injury, not property damage

There is a one vehicle car accident.

Who can recover under no fault insurance?

- Any authorized driver of vehicle

- Any passengers in vehicle

- Any pedestrians hit by vehicle

even if they were negligent! No fault!

There is a two vehicle car accident.

Who can recover from who's no fault insurance?

- Any authorized driver of vehicle 1

- Any passengers in vehicle 1

- Any pedestrians hit by vehicle 1

must look to insurance for vehicle 1, not vehicle 2

No fault insurance:

Who cannot recover?

Bad People

- Drunk Drivers

- Racers

- Car Thieves

- Fleeing Felons

No fault insurance:

What can you collect? Be specific.

1. ALL medical fees

2. Lost wages:

- up to $2000 per month

- maxed out after 3 years

3. Supplemental payments

- up to $25 per day

- NO money for pain and suffering

No fault insurance:

When can you still go to court?

1. P's injuries exceed basic economic loss AND

2. P suffered a serious injury

No fault insurance:

What is Basic Economic Loss?

How is it calculated?


Medical expenses + 1 year of lost wages and miscellaneous expenses

No fault insurance:

What counts as a serious injury?

(exclusive list)

- Death

- Dismemberment

- Serious disfigurement

- A fracture: ANY broken bone

- Loss of fetus

- Permanent loss of use of body part

- Permanent limitation of body part

Can you still get no fault proceeds if you go to court?


Types of Injunctions

- Negative/Prohibitory Injunctions: prohibit action

- Mandatory Injunctions: compel action

- Preliminary Injunctions: request early in case to freeze status quo

- Permanent Injunctions: request as final action in case

What must you show to get

equitable/injunctive relief?

1. No adequate remedy at law.

- Money not good enough

2. Harm suffered to property interest or protectable right

3. Injunction is enforceable

- ex: must incorporate effective anti-pollution technology

4. Balance of hardship tips in favor of requester

Equitable Relief:

When is there no adequate remedy at law?

(NOT exclusive list)

- D has no money/is insolvent

- The harm cannot be mentioned in monetary


- The conduct is continuous

Equitable Relief:


Unclean Hands: P has behaved badly

- ex: D and P always hit each other. Now P wants an injunction to stop D

from hitting her

Laches: Prejudicial Delay

- Triggered when P has waited so long to ask for the injunction, that D

has detrimentally relied on the P’s inaction

1st Amendment: Freedom of Speech

- Media D can use this to prevent prior restraint. "Sue me later."

What is worker's compensation?

a statutory insurance system in which individuals who get hurt on the job get a guaranteed recovery, but the recovery is their exclusive remedy

- employees can recover regardless of fault

Worker's Compensation:

What are employees not entitled to?

Employees CANNOT:

- sue employer

- sue co-workers

- unless acting intentionally of outside the scope of employment

- get pain and suffering damages

Note: can still sue 3rd parties

Worker's Compensation:

Who is excluded?

- Independent Contractors

- New York:

- Teachers

- Non-manual non-profit workers

- Part-time household employees

- Clergy

Worker's Compensation:

What injuries are excluded?

- Injuries caused by worker's intoxication

- If worker intentionally injures himself

- or injures himself trying to intentionally injure someone else

- Voluntary work sports team

- Anything done outside of work

- illegal activities done in the course of work are COVERED

Worker's Compensation:

What can you recover?

- ALL medical expenses

- Lost wages

- up to 2/3 of average equal wage

- special benefit in the case of death

Nuisance: Definition and Test

Definition: Interference with P's ability to use or enjoy real estate to an unreasonable degree


- Court balances interests

- Is the act intolerable, seriously annoying, or definitely offensive

Vicarious Liability: Independent Contractors

- Generally, NO vicarious liability

- Exceptions:

1. IC is working inside a business and injures a customer in the store

2. New York Only: Scaffold Law

- P is injured because of an inadequate scaffold

- no reduction in recovery for part fault of worker

- no vicarious liability if FULL fault of worker

Vicarious Liability: Automobile Owners

- NO vicarious liability for driver's acts

- New York Exception:

- D is liable for anyone driving her car with permission

- permission is presumed

Vicarious Liability: Parents

NO Vicarious Liability

Respondeat Emperior

Employee is liable for employee's torts if the tort is committed within the scope of employment

Respondeat Emperior:

Intentional Torts

- NO vicarious liability

- Exceptions:

- job involves authorized use of force and employee uses excessive

force (ex: nightclub bouncer)

- job predictably leads to tension/argument (ex: debt collector)

- tort committed in misguided effort to serve employer's purposes

(ex: security guard falsely imprisons someone)

What is joint and several liability?

P can fully recover from any D

Joint and several liability:

What rights does paying D have against other co-defendants?

1. Comparative Contribution

2. Indemnification

- Call get ALL the money back. But when?

- when vicariously liable

- in a products case, D retailer can get money back from


Loss of Consortium:

What is it?

Whenever the victim of a tort is married, the

victim's spouse gets this as a separate cause of action

Loss of Consortium:


The defense is derivative:

any defense that could be asserted against the victim can also be asserted against the

consortium spouse

Loss of Consortium:

What can you recover?


1. Loss of services

2. Loss of society

3. Loss of sex