Business Law Ch 6

5 rules of fraudulent misrepresentation

1. A misrepresentation of material facts or condition with knowledge that they are false or with reckless disregard for the truth. 2. An intent to induce another party to rely on the misrepresentation. 3. A justifiable reliance on the misrepresentation by the deceived party. 4. Damages suffered as a result of that reliance. 5. A causal connection between the misrepresentation and the injury suffered.

four types of declarations considered to be slander per se

1. A statement that another has a "loathsome" disease (such as a sexually transmitted disease). 2. A statement that another has committed improprieties while engaging in a profession or trade. 3. A statement that another has committed or has been imprisoned for a serious crime. 4. A statement that a person is unchaste or has engaged in serious sexual misconduct. (This usually applies only to unmarried persons and sometimes only to women.)

Wrongful interference with a contractual relationship

1. A valid, enforceable contract must exist between two parties. 2. Defendant must know the contract exists 3. This third party must intentionally induce a party to the contract to breach the contract.

To succeed in a negligence action, the plaintiff must prove each of the following

1. Duty. The defendant owed a duty of care to the plaintiff. 2. Breach. The defendant breached that duty. 3. Causation. The defendant's breach caused the plaintiff 's injury. 4. Damages. The plaintiff suffered a legally recognizable injury.

Invasion of Privacy under Common Law:

1. Invading someones home or searching someone's briefcase, or laptop without authorization, including wiretap, unauthorized scanning of a bank account. 2. Publication of information that places a person in false light, like writing a story that attributes to a person ideas and opinions not held by that person 3. When a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing 4. Using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes with out permission

Establishing defamation

1. The defendant made a false statement of fact. 2. The statement was understood as being about the plaintiff and tended to harm the plaintiff 's reputation. 3. The statement was published to at least one person other than the plaintiff. 4. If the plaintiff is a public figure, she or he must also prove actual malice.

Conversion

Any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause, often, when conversion occurs, a trespass to personal property also occurs. The original taking of the personal property from the owner was a trespass. Wrongfully retaining the property is conversion.

Wrongful interference with a business relationship

Businesspersons devise countless schemes to attract customers. They are prohibited, however, from unreasonably interfering with another's business in their attempts to gain a greater share of the market.

Disparagement of property

Disparagement of property occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation

Invasion of Privacy

Generally, to sue successfully for an invasion of privacy, a person must have a reasonable expectation of privacy, and the invasion must be highly offensive.

Blake v. Giustibelli

Giustibellie represented Blake when she was trying to get a divorce. After a breakdown in the attorney-client relationship, Blake wrote bad reviews about Giustibellie on the internet. Giustibellie sued them. The evidence showed that whatever they said on their reviews weren't true and the court judged in favor of Giustibelli and awarded punitive damages of $350,000. Blake tried to argue that their reviews were statements of opinion and were protected by the first amendment. But the court disagreed. An action for libel will lie for a false and unprivileged publication by letter or otherwise, which exposes a person to distrust, hatred, contempt, or anything that causes a person to be avoided. Each review was a lie regarding the attorney's performance.

Revell v. Guido

Guido bought land in New York that contained nine rental houses. The houses shared a defective waste disposal system. Guido had a new septic system installed. When town officials disovered sewage on the property, Guido had the system partially replaced. Prospective buyers, like Revell, were given information that stated the septic system was totally new. When questioned by the buyer's bank, Guido denied any knowledge of environmental problems. A month later after Revell bought the houses, the septic system failed and needed repairs. Revell sued against Guido and his firm, alleging fraud. A jury found fraud and awarded damages.

Slander Per Se

If a false statement constitutes "slander per se," it is actionable with no proof of special damages required.

Malicious prosecution

If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued

Causation

If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence.

Damages for Slander:

The plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses. Usually results from some degree of deliberation by the author.

Taylor v. Baseball Club of Seattle

The plaintiff was struck in the mouth by a ball and sued the Mariners. The trial court granted the defendant's motion for summary judgement. Plaintiff appealed. There is no duty from one participant in a sports activity to another to prevent injury resulting from an inherent risk of the sport. There is no evidence that the circumstances leading to Taylor's injury constituted an unusual danger. The risk of injuries such as Taylor's are within the normal comprehension of a spectator who is familiar with the game.

Negligence

The tort of negligence occurs when someone suffers injury because of another's failure to live up to a required duty of care. The tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The person's conduct merely creates a risk of such consequences. If no risk is created, there is no negligence.

Defenses to Defamation

Truth is normally an absolute defense against a defamation charge. In other words, if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed.

Trespass to personal property

Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property.

Dram shop acts

a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar

Consent

a common defense to intentional torts against persons. When a person consents to the act that damages her or him, there is generally no liability.

Qualified privilege

a person will not be liable for defamatory statements because she has a qualified privilege. Employer's satements in written evaluations of employees are protected by qualified privilege. Generally if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication fall under qualified privilege.

Privileged Communications

a person will not be liable for defamatory statements because she or he enjoys a privilege, or immunity. Privileged communications are of two types: absolute and qualified.

Defenses to wrongful interference

a person won't be liable for the tort of wrongful interference with a contractual or business relationship if that interference was justified or permissible. Marketing and advertising strategies is a permissible interference even if it results in the breaking of a contract

Assumption of risk

a plaintiff who voluntarily enters into a risky situation knowing the risk involved, will not be allowed to recover; requires two elements: knowledge of the risk and voluntary assumption of the risk

Battery

an unexcused and harmful or offensive physical contact intentionally performed.

Assault

any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat. An assault can occur even if there is no actual contact with the plaintiff, provided that the defendant's conduct creates a reasonable apprehension of imminent harm in the plaintiff.

Punitive damages

are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy).

Compensatory damages awards

are often bro- ken down into special damages and general damages

Competitive practices

attract customers in general

Abuse of process

can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed. - The key difference between the torts of abuse of process and malicious prosecution is the level of proof. Unlike malicious prosecution, abuse of process is not limited to prior litigation and does not require the plaintiff to prove malice. It can be based on the wrongful use of subpoenas, court orders to attach or seize real property, or other types of formal legal process.

Actionable

capable of serving as the ground for a lawsuit

General damages

compensate individuals (not companies) for the non-monetary aspects of the harm suffered, such as pain and suffering. A court might award general damages for physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of mental or physical capacity.

Special damages

compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits (now and in the future). Special dam- ages might also be awarded to compensate for extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property.

Statute of limitations

establishes the time limit (often two years from the date of discovering the harm) within which a particular type of lawsuit can be filed. After that time period has run, the plaintiff can no longer file a claim.

Business torts

generally involve wrongful interference with another's business rights. Public pol- icy favors free competition, and these torts protect against tortious interference with legitimate business. Business torts involving wrongful interference generally fall into two categories: interference with a contractual relationship and interference with a business relationship.

Fraudulent Misrepresentation

intentional deceit for personal gain. Fraud exists only when a person represents as a fact something he or she knows is untrue. Seller's Talk is different because it uses subjective facts like "I am the best agent in town". Sometimes, however, reliance on a statement of opinion may involve the tort of fraudulent misrepresentation if the individual making the statement of opinion has superior knowledge of the subject matter.

Defamation of character

involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others. Breaching this duty in writing or other permanent form (such as a digital recording) involves the tort of libel. Breaching this duty orally involves the tort of slander.

Tort law

is designed to compensate those who have suffered a loss or injury due to another person's wrongful act.

False imprisonment

is the intentional confinement or restraint of another person's activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force.

Tort of intentional infliction of emotional distress

nvolves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. To be actionable, the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society.

Trespass to land

occurs when a person, with out permission enters onto, above, or below the surface of land that is owned by another, causes anything to enter onto land owned by another, remains on land owned by another or permits anything to remain on it.

Tort action

one person or group brings a lawsuit against another person or group to obtain compensation (monetary damages) or other relief for the harm suffered.

Damage

refers to harm or injury to persons or property

Damages

refers to monetary compensation for such harm or injury.

Intentional tort

requires intent. The tortfeasor must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law. An evil or harmful motive is not required—in fact, the person committing the action may even have a beneficial motive for doing what turns out to be a tortious act.

Predatory behavior

solicit only customers who have already shown an interest in the similar product or service of a specific competitor. Plaintiff claiming predatory behavior must show that the defendant used predatory methods to intentionally harm an established business relationship or gain a prospective economic advantage

Absolute privilege

statements made by attorneys and judges in the courtroom during a trial are privileged, as are statements made by government officials during legislative debate.

Tortfeasor

the one committing the tort)

Damages for Libel

to recover damages, the plaintiff need not prove that he or she was actually harmed in any specific way as a result of the libelous statement.

transferred intent

when intent can be transferred when a defendant intends to harm one individual, but unintentionally harms a second person .

torts

wrongs and compensation.