Quizzes Lecture Exam 1

You are tasked with determining whether someone who unintentionally injured another while using a water balloon launcher in a city park is subject to a negligence or strict liability standard. Which of the following best describes the test you would use to determine whether this activity is an abnormally dangerous activity? -The abnormally dangerous activity created a high risk of substantial injury to an individual or his or her property -The risk could not be removed through the use of reasonable care. -The activity is not commonly undertaken (the common usage principle). -The activity was inappropriately undertaken in the place in which the victim was harmed. -The hazards that the activity creates outweigh the benefits that the activity brings to the community. -A court should consider all of the factors listed in answers A-E and apply a balancing test to determine whether an activity is abnormally dangerous. -All of the above elements, answers A-E, must be present for the activity to be considered abnormally dangerous.

-A court should consider all of the factors listed in answers A-E and apply a balancing test to determine whether an activity is abnormally dangerous. You must have been paying attention to our Mythbusters example.

George is building a rocking chair for his daughter, who is expecting her first baby. He walks into Home Depot bc he needs (1) lumber for the chair that is pretreated and won't expand or shrink after the rocking chair is assembled, (2) a lathe so he can turn the rails of the rocking chair, and (3) some lacquer to give it a shiny finished look and stand up to the toll ordinary use takes on the finish. George approaches a Home Depot employee in the lumbar department and tells them that he needs pretreated lumber that won't expand or shrink. The employee points him to some pretreated redwood, known for its resistance to dimensional shrinkage. He puts some in his cart. He then goes to the tools and purchases a lathe that is on sale. The lathe holds the wood between two points and spins it, so the woodworker can carve wood in a way that is radially symmetrical (like a banister spindle or wooden baseball bat). George heads to the paint dept. and sees a sign above the store brand of lacquer that says "three coats of this lacquer will maintain shine and durability for 30 years." He selects that brand for purchase. Match the product with the warranty: PRODUCTS: 1. pretreated redwood lumber 2. lathe 3. lacquer WARRANTY: A. Express Warranty B. Implied Warranty of Merchantability C. Implied Warranty of Fitness for

1-C 2-B 3-A 1. pretreated redwood lumber 2. lathe 3. lacquer WARRANTY: A. Express Warranty B. Implied Warranty of Merchantability C. Implied Warranty of Fitness for

How far above your property do your rights extend? 1. It used to be all the way to heaven, or the end of the universe, but it now extends to somewhere between 83 and 500 feet above your property. 2. To the end of the atmosphere (the exosphere). 3. Depends on how high the buildings on your property are. It extends 20 feet above the highest structure on your property. 4. 100 feet

1. It used to be all the way to heaven, or the end of the universe, but it now extends to somewhere between 83 and 500 feet above your property.

When a veterinarian commits malpractice against a dog, can its owner recover for emotional distress and loss of society? 1. No. Dogs are chattel, and one cannot recover emotional distress for loss of personal property. 2. No. The dog is the victim, so any emotional distress awarded must be the dog's, not its owner's. 3. Yes. Dogs have evolved to a status beyond mere personal property, and their loss qualifies the owner for emotional damages and loss of society. 4. Yes. The law recognizes an exception for dogs, cats, and certain breeds of mink

1. No. Dogs are chattel, and one cannot recover emotional distress for loss of personal property.

Which of the following does not constitute intent for proving a conversion claim? 1. You accidentally drop your cousin's jacket into a campfire, completely destroying it 2. At your best friends birthday party, you and the guests pick him up and dump him in the pool, and his phone is ruined 3. After your paramour breaks up with you, you burn your roommate's photo album, thinking it was your own. 4. With your lab partners permission, you carve your name into his desk at school 5. You take change from a wishing well at the mall and purchase chewing gum.

1. You accidentally drop your cousin's jacket into a campfire, completely destroying it 1. is correct bc you did not intend to drop the jacket in the fire. Your cousin may have an action for negligence, but not for conversion. 2. incorrect bc you intended to put your friend in the pool, even if you did not intend the destruction of the phone or know that he had a phone in his pocket. 3. incorrect bc you intended to burn the album, even if you did not know you were burning the wrong album 4. incorrect bc you intended the destruction. whether this is an actual conversion is irrelevant (ie: whether your lab partner's permission is a defense) bc the question was about intent. further, the lab partner does not own the desk and cannot give you permission to vandalize it 5. wrong - you stole money and that is prototypical conversion

What is cybersquatting? 1. creating domain names similar to famous ones for the purpose of turning a profit based on the similarities 2. when an avatar will not leave 3. demanding a ransom to a website owner with a threat that if the ransom is not paid, the website will be shut down through DOS attacks 4. sending emails that imitate legitimate businesses, like PayPal, and asking for a user's private information

1. creating domain names similar to famous ones for the purpose of turning a profit based on the similarities

Which of the following is NOT a kind of commercial disparagement? 1. disparagement of customers 2. disparagement of business 3. disparagement of goods 4. disparagement of services

1. disparagement of customers

Under what circumstances might an employer be liable for the torts of its employees? 1. if the employee commits the tort within the course and scope of her employment 2. if the employee is actually an independent contractor 3. only if the tort is an intentional tort 4. only if the employee is at least 18 5. none of the above

1. if the employee commits the tort within the course and scope of her employment

The difference between negligence and negligence per se is best described as what? 1. in negligence cases, you must prove duty and breach; in negligence per se cases, duty and breach are presumed 2. negligence is civil, and negligence per se is criminal 3. in negligence per se cases, you get more time for discovery 4. in negligence cases, you must prove causation; in negligence per se cases, causation is presumed 5. in negligence cases, you must prove damages; in negligence per se cases, damages are presumed

1. in negligence cases, you must prove duty and breach; in negligence per se cases, duty and breach are presumed You didn't let the red herring answers fool you (or you guessed well).

when it comes to self defense of others, what is a good way to remember how much force you can use? 1. may only reasonable force be with you 2. force = mass x acceleration 3. love is a force unto itself 4. you can force the people to obey; you cannot force them to understand

1. may only reasonable force be with you

Which of the following relationships does NOT include a special duty of care for negligence purposes? 1. neighbor - neighbor 2. father-son 3. airline-passenger 4. hotel-guest 5. employer-employee

1. neighbor - neighbor

When drafting a complaint in Nevada, which of the following describes the minimum pleading standard? 1. plaintiff must allege enough to put defendant on notice of what claims are being brought against him 2. plaintiff must allege both the legal theories and the facts upon which her claims are based 3. it does not matter what allegations the plaintiff makes as long as the name of the legal theory they're based on is included in the complaint 4. plaintiff must allege only the legal theories without including facts specific to the case 5. plaintiff cannot allege legal theories, but must allege the facts upon which her claims are based

1. plaintiff must allege enough to put defendant on notice of what claims are being brought against him Nevada is a notice-pleading state.

What is the most important consideration when determining proximate/legal cause in a negligence case? 1. the foreseeability of the injury 2. the innocence of the plaintiff 3. the foreseeability of a lawsuit 4. the culpability of the defendant 5. whether there were any defenses

1. the foreseeability of the injury

Who bears the burden of proof in a lawsuit? 1. the plaintiff 2. the judge 3. the attorneys 4. the defendant 5. the paralegals

1. the plaintiff The plaintiff bears the burden of proof—meaning the plaintiff must tip the scales in his or her own favor. The defendant bears the burden of proving the affirmative defenses, though.

What is the statute of limitations for negligence for personal injury in Nevada? 1. two years from the date of injury 2. one year from the date of injury 3. one year from the date the lawsuit is filed 4. two years from the date the lawsuit is filed 5. none of the above

1. two years from the date of injury It's two years from the date of injury.

Mick Dundee is in New York City, when he witnesses a purse-snatcher take a lady's purse and start running away through the busy New York Streets. He pulls out his Bowie knife and flings it at the fleeing man, where it lodges in the man's back, stopping him cold, and injuring him severely. Which element of rightful repossession is NOT met in this scenario? 1. use of reasonable force 2. in prompt repossession 3. to retake possession of personal property 4. of which the owner has been wrongfully dispossessed

1. use of reasonable force

Which of the following is relevant at trial in a negligence case? 1. whether the defendant's actions were reasonable 2. whether the plaintiff knew the defendant's actions would cause harm 3. whether the defendant knew his actions (or inactions) would harm the plaintiff 4. whether the defendant has insurance 5. the feelings of the defendant

1. whether the defendant's actions were reasonable Whether a defendant has breached a duty depends on whether he or she has acted as a reasonably prudent person would act (i.e. whether he or she acted reasonably). The defendant's feelings have nothing to do with anything in a negligence case (though if the defendant does not feel remorse, the jury may award higher damages). Whether the defendant had insurance is not only irrelevant, but if mentioned, is grounds for a mistrial. And the defendant does not need to know his actions are going to cause harm—the harm just has to be foreseeable.

Which of the following best describes Nevada's comparative negligence statute? 1. The plaintiff's recovery is reduced by her own negligence no matter how negligent she is compared to the defendants. (So even if she is 99% negligent, she still gets 1% of the damages awarded.) 2. The plaintiff's recovery is reduced by the percentage of her own negligence as long as the combined negligence of all defendants is at least 50%. (So if she is over 50% negligent, she gets nothing, but if she is 50% negligent, she gets half her damages.) 3. The plaintiff's recovery is reduced by the percentage of her own negligence as long as the combined negligence of all defendants is at least 51%. (So if she is over 49% negligent, she gets nothing, but if she is 49% negligent, she gets 51% of her damages.) 4. The plaintiff's recovery is reduced by the percentage of her own negligence as long as the combined negligence of all defendants is at least 75%. (So if she is over 25% negligent, she gets nothing, but if she is 20% negligent, she gets 80% of her damages.) 5. The plaintiff's recovery is never reduced, no matter how negligent she is. (So if she is 99% negligent, she still gets 100% of her damages.)

2. The plaintiff's recovery is reduced by the percentage of her own negligence as long as the combined negligence of all defendants is at least 50%. (So if she is over 50% negligent, she gets nothing, but if she is 50% negligent, she gets half her damages.)

In what cases might punitive damages be available in Nevada? (See NRS 42.005) 1. negligence cases 2. intentional tort cases 3. negligence per se cases 4. all of the above 5. just b and c

2. intentional tort cases There must be some form of intent. Nevada's punitive damage statute, NRS 42.005, allows them in cases of "oppression, fraud or malice, express or implied." In negligence, there is no oppression, fraud, or malice. There is no intent. 4. all of the above is WRONG: There must be some form of intent. Nevada's punitive damage statute, NRS 42.005, allows them in cases of "oppression, fraud or malice, express or implied." In negligence, there is no oppression, fraud, or malice. There is no intent.

What is the difference between assault and battery? 1. Assault is when someone is attacked; battery is when someone is beaten. 2. Assault occurs when someone attempts a battery, but does not actually make contact, instead making the victim apprehensive for his or her safety. Battery occurs when the attempted contact is made. 3. Assault is committed by one person. Battery is committed by a group. 4. Assault is unintentional harm caused by offensive contact. Battery is intentional harm caused by offensive contact

2.Assault occurs when someone attempts a battery, but does not actually make contact, instead making the victim apprehensive for his or her safety. Battery occurs when the attempted contact is made.

Megatron and Optimus are doing battle inside an abandoned warehouse. Megatron injures Optimus, rendering him unable to move due to the loss of energon. Wounded, Megatron abandons Optimus to save himself, leaving Optimus unable to leave the warehouse until Ratchet and Jazz show up to fix him. Has Megatron committed the tort of false imprisonment? 1. Yes, because Optimus was confined by Megatron against his will. 2. Yes, because Optimus was aware of the confinement 3. No, because although Megatron intended to harm Optimus, he did not intend to confine him 4. No, because Optimus was able to leave as soon as his buddies arrived.

3. No, because although Megatron intended to harm Optimus, he did not intend to confine him

look up the article, When Gossip Becomes Slander: Defamation in Nevada. According to the author, when does a false statement not constitute defamation? 1. when the defendant didn't;t know what he or she said was not true. 2. when the defendant is really sorry afterwards 3. when the defendant had a good faith reason for believing the statement was true 4. when the defendant is a minor

3. good faith reason We don't hold you accountable for false things you say when you really believe they're true and you have a good reason for believing that

A visitor to a softball field parks his car in the parking lot just beyond the outfield fence. During the game, a super macho batter hits a home run and demolishes the windshield of the visitor's car. In the softball league, there is a rule that a ball hit over the fence is an out. Is the super macho batter liable in negligence? 1. Yes, because he has a duty to act reasonably, he breached that duty by hitting the ball over the fence, and the home-run hit caused damages to the visitor. 2. Yes, because the batter violated the league home-run rule, he is per se negligent. 3. No, the visitor assumed a known risk that balls get hit over fences at ball fields, which acts as a complete bar to recovery because it negates the duty element of negligence. 4. No, because the batter could not control where the ball was hit and did not break the windshield intentionally. 5. No, because the visitor did not see it happen and cannot prove which batter hit the ball.

3.No, the visitor assumed a known risk that balls get hit over fences at ball fields, which acts as a complete bar to recovery because it negates the duty element of negligence.

When did products liability become its own distinct tort theory? 1. In England at common law, before the American Revolution 2. Right after the US declared its independence 3. 1860, the same year as the Emancipation Proclamation 4. 1962, the same year as the Cuban Missile Crisis, and the year Spider Man was born

4. 1962 - in a case out of California

Which of the following is NOT recognized as a category of strict liability? 1. owning wild animals 2. owning domesticated animals with vicious propensities 3. ultra hazardous activities 4. reckless driving

4. reckless driving ...would be gross negligence, or in some cases, even provide grounds for punitive damages, but it is not strict liability

You dig a big hole in your front yard to put in a septic tank. You do not put up any barriers or warnings, and the night after you dig the hole, a neighbor is walking by and falls into it, injuring himself. If he brings a negligence case against you based on premises liability, which of the following will your neighbor NOT have to prove? 1. that the hole in your front yard is dangerous 2. that you either dug the hole, hired someone else to dig it, knew it was there, or at the very least should have known it was there 3. that the hole caused his injuries 4. that he was not trespassing when he fell in the hole 5. that he was hurt

4. that he was not trespassing when he fell in the hole As a landowner, you have a duty to keep your premises free of dangerous conditions and are liable to your guests if there is a dangerous condition on your land, you caused, knew about, or should have known about the dangerous condition, and it causes injury. The injured party does not have to prove that she was not trespassing. To the extent her status as a trespassor (or nontrespassor) becomes relevant, that would be something the defendant (you) would have to prove—it's not in the elements, so it isn't the plaintiff's burden of proof. 5. that he was hurt is WRONG: Not quite. As a landowner, you have a duty to keep your premises free of dangerous conditions and are liable to your guests if there is a dangerous condition on your land, you caused, knew about, or should have known about the dangerous condition, and it causes injury. The injured party does not have to prove that she was not trespassing. To the extent her status as a trespassor (or nontrespassor) becomes relevant, that would be something the defendant (you) would have to prove—it's not in the elements, so it isn't the plaintiff's burden of proof.)

Which of the following is not included in the bundle of property rights? 1. control 2. enjoyment 3. possession 4. exclusion 5. courtesy 6. disposition

5. courtesy when it comes to property, we do not give you the right to demand courtesy of others and don't require you to be polite, either.

In Sweeney v. Aurora Casket Company (p. 332-33), at Sherroll Sweeney's funeral, the bottom of the casket fell open while the pallbearers were carrying Sweeney's corpse to the gravesite. The surviving family members sued the casket company and the manufacturer, Victoriaville Caskets. Sweeney's family members prevailed for which one of the following claims against the defendants? 1. negligence 2. strict liability 3. breach of warranty 4. wrongful mishandling of a corpse 5. none of these

5. none The Sweeney's did not prevail in any of their claims. They did not even bring a claim for wrongful mishandling of a corpse.

You work for pizza but as a delivery person. While making a delivery, Joe, a man driving a cement truck for Las Vegas Paving, also making a delivery for work, rear-ends you, causing injuries. He admits fault. You claim workers' compensation benefits, but they are not enough to fully compensate you for your injuries. Against whom do you have a viable causes of action? 1. Pizza hut 2. Joe 3. LV Paving 4. a and b only 5. a and c only 6. b and c only 7. all of the above

6. b and c only You cannot make a claim against Pizza Hut. They are immune from suit bc they provided workers' compensation benefits. You can sue Joe for his negligence and his employer for vicarious liability (he was making a delivery, so he was within the course and scope of his employment).

Which of the following constitutes libel? 1. A false written statement about a person to a third party that harms the victim's reputation 2. A false oral statement about a person to a third party that harms the victim's reputation 3. A false oral or written statement about a person to a third party that harms the victim's reputation 4. A false statement about someone's profession where damages are presumed. 5. gossip

A false written statement about a person to a third party that harms the victim's reputation

Which of the following is a difference between fraud and other intentional torts? 1. Fraud has a stricter pleading standard. 2. Fraud judgments are not dischargeable in bankruptcy 3. Fraud has a higher burden of proof. 4. ALL OF THE ABOVE

ALL OF THE ABOVE

You borrow your friend's time machine to escape the wrath of some angry Libyan terrorists. During your escape, you accidentally send yourself thirty years into the past. When you try to return to the present, you realize that the flux capacitor—the device that makes time travel possible—is not working because it requires a tremendous amount of power (1.21 gigawatts) to function, and plutonium is not readily available in the past. Assume for this question that the flux capacitor was ordered from ACME products, a manufacturer that produces flux capacitors and other hard-to-find time-travel related products. To prove liability for an inadequate warning, you would have to prove what? -That the time machine is inherently dangerous, which danger was known by its manufacturer, that the danger was present when the time machine is used in an expected manner, and that the danger is not obvious or well known to its user. -That you were a foreseeable user of the product. -That the label was either not clear, not conspicuously placed, or not easily understood. -That your injury was caused by the dangerous nature of the product. -That the seller did not exercise reasonable care. -That you bought the product from either the manufacturer, a distributor, or seller. -Answers A, B, and C only -Answers A, B, C, and D only -Answers A, B, C, D, and E only -Answers A through F

CORRECT?: Answers A, B, and C only WRONG: -Answers A through F Remember, for a strict liability case, degree of care is irrelevant. Fault doesn't matter.

Which of the following is NOT a distinction between a crime and a tort? 1. If someone is charged with a crime, they cannot be sued in tort 2. A crime is a legal action brought by the government; a tort is a legal action brought by the victim 3. A crime is a wrong against society; a tort is a wrong against a victim 4. The burden of proof is higher to prove a crime than a tort

If someone is charged with a crime, they cannot be sued in tort That's right. In fact, if you commit a crime, you can also be sued. Remember OJ Simpson. He won his criminal trial but lost civilly for the same actions.

Which of the following best characterizes Nevada's laws on dog bites? - If you have a dangerous breed, like a Pit Bull or a Rottweiler, you can be held strictly liable for any injuries caused by your dog. -Nevada treats dog bites the same as any other negligence case. -Nevada has adopted the one-bite rule, which says that if your dog has bitten or harmed someone in the past, the duty and breach elements of negligence are presumed. -Nevada has adopted strict liability for dog bites.

Nevada treats dog bites the same as any other negligence case. You must have a dog. Or been bitten by one. Or have studied. Or gotten lucky. Nevada treats dog bites like any other negligence case. Other states, like Utah, have strict liability laws. Some states have the one-bite rule. There is a guy online who proclaims himself the dog-bite expert, who says Nevada has a one-bite rule. But he is wrong.

You go to the superhero factory outlet and tell the shopkeeper you need a cape that is bullet-proof, fire resistant, and can be washed in cold or hot water without the color fading. The shopkeeper, an expert in these things, tells you he has just the thing, and in colors that complement the rest of your outfit. A week after buying the cape, you are rescuing a child from a burning building. You are pleased as you run through the building that the cape is not melting, igniting, or even getting very warm. However, as you exit the building, the cape gets caught under your boots, and you trip. Luckily, you are able to think fast and cushion your fall to protect the child cradled in your arms. Unfortunately, however, you bang your head and now have an unsightly scar on your face that makes you look more like a villain than a superhero. Do you have a claim against the shopkeeper for breach of implied warranty of fitness for a particular purpose? -No, because of the Superhero Merchants Liability Shield Act. -Yes, because he specifically selected the cape based on the specifications you gave him. -No, because the type of harm you suffered was not caused by any failure in the cape specific to the characteristics of the cape as represented by the shopkeeper. -No, because he disclaimed all warranties before he sold it. -Yes, because your injuries were caused by the cape.

No, because the type of harm you suffered was not caused by any failure in the cape specific to the characteristics of the cape as represented by the shopkeeper.

Which of the following is not a kind of product liability? -Removal of a safety device -Manufacturing defect -Failure to warn -Design defect -Breach of warranty

Removal of a safety device You probably have a heavily modded driveable lawn mower at home.

you do not have to prove damages in a trespass case. TRUE FALSE

TRUE it is not one of the elements

Which of the following is an intentional entry upon land? 1. Malcolm Reynolds walks onto his neighbor's yard with permission 2. Amy Pond walks across unmarked land that, unbeknownst to her, belongs to Rose Tyler 3. The Lone Ranger is bucked from his horse, thrown in the air past no trespassing signs, and lands in the middle of property be knows belongs to someone else. 4. Scott Smalls, while playing baseball in the neighborhood cul-de-sac, hits a baseball into his neighbor's back yard. 5. 1 and 2 only 6. 1, 2, and 3 only 7. all of the above

The correct answer is 5. 1. is intentional bc Malcolm is walking, so we know he intended to be where he was. The fact that he was there with permission is irrelevant bc the question asked about intent, not about trespass. 2. is intentional bc there is no requirement that the person know they are trespassing, or intend to trespass, only that they intend to be where they are 3. is not correct bc even though the Lone Ranger knows the land is off limits, he was not there on his own accord. 4. is incorrect, though there is at least an argument to be made that it should have been included in the answer bc it would be intentional if when he was swinging the bat, he was aiming for the neighbor's yard (unlikely). However since there was no option for A, B and D only, there should have been no confusion.

Which of the following is not a valid defense to a strict liability claim? -The defendant exercised reasonable care. -Plaintiff did not suffer any damages. -The defendant's actions were not an actual cause of plaintiff's injuries. -The defendant's actions were not a proximate cause of plaintiff's injuries. -Defendant did not engage in any activity that would qualify for strict liability.

The defendant exercised reasonable care.

What is the difference between a defense and an affirmative defense? 1. a defense only applies in criminal cases; an affirmative defense applies in civil cases 2. a defense must be stated in the negative; an affirmative defense is alleged positively 3. a defense negates one of the elements of the claim; an affirmative defense applies even if all elements are proven 4. a defense is hard to prove; an affirmative defense is easy to prove

a defense negates one of the elements of the claim; an affirmative defense applies even if all elements are proven That's right. This is one I will be pounding into you all semester. A defense is just a negation of one of the elements of the claim. An affirmative defense, like the statute of limitations running, applies regardless of whether the plaintiff can prove all the elements.

Under Nevada law, which of the following would NOT be considered conversion? 1. Slashing all four tires of your cheating ex's pickup truck 2. Punching your cheating ex's new flame in the face 3. Taking a Louisville slugger to both headlights of your cheating ex's pickup truck 4. carving your name into the leather seats of your cheating ex's pickup track

b. punching Punching someone in the face is not conversion. It is battery. and probably assault too. Of course, if you punch them int he face and break their dentures, ruin their nose piercing, or otherwise damage property attached to their body, that is not only battery, but also conversion of whatever you broke.

According to Shoshone Coca-Cola Bottling Co. v. Dolinski (82 Nev. 439, 442, 420 P.2d 855, 857 (1966), what foreign object was in the bottle of soda?

decomposed mouse

In Nevada, only general ___ is required, meaning you just have to prove that the action that constituted conversion was intentional, not that the actual conversion was intentional. Lack of knowledge is not a defense.

intent

What is the principle difference between negligence and intentional torts? 1. recklessness 2. wanton destruction 3. carelessness 4. intent

intent That's right. Intentional torts, as the name implies, requires intent. Negligence is a tort that requires only carelessness. In other words, through negligence, we hold people legally accountable for something they did not mean to do.

Look up the case Bader v. Cerri, 609 P.2d 314 (Nev. 1980). According to this case, "a conversion occurs whenever there is serious ___ to a party's rights in his ___."

interference property

Which of the following is NOT an element of intentional misrepresentation in Nevada? 1. intent to induce plaintiff to act or refrain from acting 2. false representation by defendant 3. plaintiff's justifiable reliance on the false representation 4. use of wires or mails in conjunction with the fraud 5. defendant's knowledge or belief that the statement made is false

use of wires or mails in conjunction with the fraud That's right. Use of wires or mails is an element of mail or wire fraud, but not common-law fraud. The elements of common law fraud in Nevada are limited to the following: (1) defendant made a false representation, (2) with knowledge or belief that the representation was false or without a sufficient basis for making the representation, (3) the defendant intended to induce the plaintiff to act or refrain from acting on the representation, (4) the plaintiff justifiably relied on the representation, and (5) the plaintiff was damaged as a result of his reliance.