Torts Exam Checklist

1. Vicarious Liability: D is responsible for tort committed by someone else a. Respondiat Superior- ER is responsible for torts committed by and EE
while EE was acting within the “course and scope of employment”. i. Control Theory: bases liability on the ER’s right to control and direct the activities of the EE. Looks to what EE was doing and asks if it was part of EE’s job. Acts need to be so connected to justify required that ER bear that loss. EE has control over the physical details of the work. ii. Enterprise/Benefit Theory: bases liability on the benefit to the ER’s enterprise provided by the EE’s conduct. Looks to the purpose of the EE’s activity. Preventative polices by management are no bar to VL.

b. Scope and Course of Employment: RS only applies if EE was acting. c. “Going and Coming Rule”: If accident on the way to work, not in scope
of employment. If returning home after work, courts are divided. Exception if trip involves an incidental benefit to ER (express or implied). Exception if travel to the place of work creates a special hazard or contains special risks. Frolic: when EE departs from course and scope of employment to a significant degrees in pursuit of the EE’s own interests. Bars VL to ER. Detour: less serious deviation from course and scope of employment, esp if deviation was “reasonably foreseeable”. Allows VL to ER. “Borrowed Servant” Doctrine: services of an EE may be loaned to another ER. If that ER is not in control of the EE, EE may be the new ER’s “borrowed servant” Indpt Contractor- ER is NOT VL. Based on extent of control which the boss exercises over details or work OR if the individual is engaged in a distinct occupation or business. RS doesn’t apply b/c principal isn’t in position to control manner in which the indpt contractor performs work. Negligent hiring isn’t VL, it is direct liaiblyt. i. EXCEPTIONS: principal is VL to indpt contractor if—intrinsically dangerous work, principal has a duty by law or K, nuisance, probable injury w/o precaution, illegal act ((think of exceptions as non-delegable duties. Principle can’t avoid liability by contracting out work)) Intentional Torts: ER is VL for intentional torts of EE if: tort is within scope of the employment and in furtherance of the ER’s business and the tort was foreseeable in view of the nature of the employment. If EE commits an intentional tort w/dual purpose of furthering ER’s interest and vending personal anger, RS may lie. If the EE acts purely in his own interests, no RS VL. Test is not EE’s motive but if the act was within scope of the duties of employment. Punitive Damages: only if some form of malice by the D (wrongdoing was intentional and deliberate). Joint Enterprise: are VL for torts committed by other members of group. i. Elements: an agreement among the members of the group; common purpose; community of (pecuniary?) interest in that purpose, equal right of control in the enterprise. Joint ventures: explicitly a business or profit making association; more limited purpose i. Elements: same as joint enterprise

d. e. f. g.


i. j.


breach of warranty. SL is limited to the kind of harm. the efficient result would occur no matter how the law assigned rights and responsibility for damages. social value of the activity Typical examples: nuclear reactor. ii. Public Policy. Recently. If P is a bystander. buyer b. activity is inappropriate in the locality.began with car trips. e. can have a breach of warranty claim. activity is not a matter of common usage. Strict Liability: liability without fault. policy demands responsibility where it would “reduce the hazards to life and heath in defective products that reach the market” Breach of Warranty: an express or implied representation about the quality or attributes of a product. Negligence.the nature of a thing is such that it is reasonable certain to place life and limb in peril when negligently made. land or chattels of another resulting from the activity. “Social Joint Enterprises”. Products Liability: 3 theories of recovery. airplane accidents 3. Coase theorem: if assignments were clear and parties could costlessly negotiate. Thing of danger. Contributory negligence by P will not bar SL recover. negligence in advertising or sale of product (failure to warn) who negligent manufactures a product is liable for any PI proximately caused by his neg.negligence. Exception is dogs & cats. limiting doctrine by requiring a shared pecuniary interest. i. Domesticated Animals: possessor is not SL for harm (other than for trespass) UNLESS possessor knew the animal had a dangerous propensity (if the owner knew or should have know—actual knowledge isn’t required) and that dangerous propensity was the cause of the harm. 2. animal’s on other’s property. he can recover if he was a “foreseeable P” i. even if all possible care is used a. strict products liability a. Usually occurs through: negligence in manufacturing the product. Factors to consider: high dress of risk. even if he exercised utmost care to prevent the injury.l. Animals-possessors of animals are SL for harm caused by the trespass of their b. c.even w/no negligence. likelihood harm will be great. negligence in inspecting or testing the product. g. If the product doesn’t live up to these representations and loss results. use or storage of explosives. inability to eliminate risk using due care. crop dusting. d. Wild Animals (not customarily domesticated in the region): possessors are SL for all harm done by the animal as a result of the dangerous characteristic of the animal Abnormally Dangerous Activities: one who carries on an abnormally dangerous activity is subject to SL for harm to the person. . f. Assumption of risk is a defense to SL if P knowingly and voluntarily subjects herself to danger h. Limitations include the UCC requirement of prompt notice of the breach.

Types of Defects under R3T: i. Once defect is when. Problems with this test if danger is . Comment G-. Manufacturing defects. must pass trade standard w/o objection under K description. Implied Warranty of Merchantability (UCC § 2-314). seller is liable even if he used all possible care and even though the P did not buy the product form or have any contractual relationship with the seller. or use of a sample or model. 1. even though everything was done to prevent it. prove the flaw caused the harm. Consumer contemplation (Expectation test): if its dangerous to an extent beyond what would be expected by the ordinary consumer. Arises from statement of fact. Seller relies on seller’s judgment and seller knows buyer wants goods for particular purpose. Defenses include disclaimers and limitation of consequential damages. i.product’s very design renders it dangerous and unsafe when the foreseeable risk of harm could have been avoided by an alternative reasonable design by the manufacturer. Two tests: ii. Elements: identify the flaw in the product. Defect must be the actual and proximate cause of the harm to P.a flaw in construction that cases product to depart from its intended design. sellers purpose for which buyer intends to use produce. ii. or to his property. fit for ordinary purpose.implied if the seller is a merchant w/respect to goods of that kind (need facts that suggest buyer is telling the seller of the problem and the seller is saying that one time will be good). 3 types of warranties under the UCC i. description of goods. negate other sources of the flaw Design defects. Implied Warranty of Fitness (UCC § 2-315).must have relied on the warranty. trace existence of flaw to the time of the sale. if: (1) the sellers is engaged in the business of selling such a product and (2) is expected to and does reach the user w/o substantial change in the condition in which it is time of sale. iii. it’s in a condition that is unreasonably dangerous to the ultimate consumer. Strict Products Liability: seller of a product is liable w/o fault for PI caused by product if product is sold in defective condition. R2T 402A: One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer. equal in kind and quality if in different units. Express Warranty (UCC § 2-313). Factors: fair and average quality. buyer relies upon seller’s skill or judgment to selection suitable good.Meaning of Defective Condition: when it leaves the sellers hands. adequate contained and packed and labeled.seller says that her goods have certain qualities and goods don’t have these qualities. Seller must be in that business and regularly sell the kind of goods in question. 1. Goods must be fit for the ordinary purpose that goods are used. 1. c. a.

If the danger is obvious or well known to the public. understandable to the actual user. Warning defects. no duty to warn.iii. Warnings are required for hidden dangers (ie: possible allergic reactions). likelihood and severity of harm. d.Meaning of “Unreasonably Dangerous”: consider the utility of the product and the risk involved in its use. Required where necessary for the safe and proper use of the product. is not reasonably safe due to defective designs. . Necessary for prescription drugs. Factors: utility. or is not reasonably safe due to inadequate instructions or warnings b. Presumption is rebuttable by showing P ignored other warnings. that design is necessary but not sufficient. and the absence of alternative design is fatal to the claim. b. obvious or warning is given or the the overall benefits are huge 2. So. Risk-utility Test: balances dangers and benefits of product design. Comment I-. Triggering the Duty to Warn: just warning will not protect you. 3. the drug contains a manufacturing defect. Adequacy of Warning: must be available to the actual user.failure to inform user of potential dangers that make product dangerously unsafe (no instructions or warnings) 2. manufactures ability to spread the loss.failed to take precautions in marketing the product to warn users or consumers about the hazer. availability of substitute products. 4.Failure to Warn a. Test to use. c. manufacturers ability to design out danger. Must be measured according to whatever knowledge and understanding.Unavoidably unsafe products (prescription drugs) a. Comment K-. user’s awareness of danger. ((but there has to be proper warning to not be SL)) Prescription Drugs under R3T: it is defective if at the time of sale or distribution. Comment J-. sufficiently prominent to attract user’s notice. sufficiently urgent given the gravity of the risk. Failure to Warn Standard: the manufacturer knew or should have known about the hazard –AND. Read and Heed: P is given benefit of a presumption that a proper warning would have been followed and accident would have been avoided. the manufacturer must discover the hazard and the warning must be adequate to inform the public about the danger. user’s ability to avoid harm by using carefully. If products are sold by a seller after being property prepared and marketed and proper warning is given. the seller is not SL b/c he was trying to help public with an apparently useful and desirable product. Must show there was a safer design that could have been used.

and proceeds unreasonably anyways to make use of the product and is injured by it. for a manufacturing defect if marketing would lead consumer to expect product was safe as new. Economic. product violates a safety state or regulation applicable to used product Considerations: goal of compensation.damages resulting from product failures are more adequately covered by laws of K and warranty. Under R3T.ii. iii. even though the professional may incidentally make use of products in rendering the service. 4. Types of Loss 1. The unforeseeable misuse leading to injury doesn’t result in SL b/c the product is not defective. Defenses b/c of P’s behavior 1. Liability on Commercial Lessors (Retailers and Wholesalers) 1. where seller remanufactures the product. Seller of Used Product is liable when: negligent. Contributory Negligence is not a defense 2. ability of the innocent seller to obtain indemnity from manufacturer. If the user or consumer discovers the defect and is aware of the danger and nevertheless proceeds unreasonably to make use of the product and is injured by it. 5. .extended to actions founded on strict products liability Unforeseeable Misuse of Product (Comment H of R2T 420A)a product is not defective if it is safe for normal use. A transaction that is essentially the sale of a product with some service component (e. Assumption of Risk is a complete bar. All sellers in direct chain of marketing from manufacture to consumer can be liable for injuries caused by defective products. he is barred from recovery. Comparative Negligence. 2.. not tort.Contributory Negligence isn’t a Defense for P: no defense when such negligence is merely in a failure to 1. Comment N-. A transaction for professional services is not subject to strict liability. Liability for Non-manufactured/Used Goods. iv. installation of the product) will be subject to strict liability if the product is defective. as where the goods are simply put on the shelf and sold without inspection or alteration. ability to pressure manufacturer to improve safety.g. he is barred from recovery. Includes the product of not performance (not lost wages.SL applies to product’s manufacturer and its retailer and any other person in the distributive train who sells products. ability to take steps to assure greater safety. discover the defect in the product or to guard against the possibility of its existence. goal of loss spreading. drs bills v. 2. This is true even if the intermediate sellers had no responsibility for the defect. If the user consumer discovers the defect and is aware of the danger. 3.

Between two private parties. Can’t defame the dead. i. the social value of the activity b. the frequency/duration. the capacity of each party to bear the harm and shift the loss. public comfort/convenience (blocking a public street. Examples: usually the interference is b/c of a non-trespassory invasion (smells. pollution) ii. Can overlap with private nuisance. which activity has priority in time. public safety (vicious dog). Private: some thing or activity that interferes substantially and unreasonably with a possessor’s use and enjoyment of his land. iii. CL Elements: A defamatory statement concerning the P. iii. Proximate cause: was the conduct of P so unforeseeable as to excuse D from liability c. Duty/Breach. P must show: liability producing conduct (intentional interference with P’s rights. or abnormally dangerous activy or other conduct giving rise to strict liability—it’s easy to show intent) resulting in interference with the use and enjoyment of P’s land that is substantial (more than a trifle) and unreasonable. Factors to consider in balancing interests of neighbors : the amount of harm caused by the activity. even if . Nuisance: favored by cts b/c it’s flexible. Defenses: contributory negligence (if claim is based on D’s negligent maintenance of nuisance). mararial swamp). There’s a criminal violation and authorities attempt to get civil relief for the harm caused. Enforced by the DA iv. You don’t necessarily have the right to use your property however you want b/c your neighbor also has rights (balancing act) a. injunction (conduct has to be intentional and continuing) Public: a “catch-all” low grade criminal offense that involves interference with a common public right. permanent damages. i. noise. smoke. Sum it all up: P’s conduct may be relevant to any of the following issues… keep it distinct by a good analysis: a. Affirmative Defenses: Should the lack of care of P reduce or bar recovery 4. fault. publication of the statement to a 3rd party (at least 1 person) who could understand the defamatory meaning. gambling). The manufacturer may have a duty to design the product to avoid harm from the misuse. maintenance of improper business (unlicensed bar) ii. the nature of the clashing land uses. public peace. unreasonable invasion. must be of and concerning P. negligence.was the product defect? b. dust vibrations). Defamation: a cause of action remedy for wrongful injury to a person’s reputation a. unlawful or unreasonable manner of operating business iv. Remedies: temporary damages. manufacturer to protect the user.5. public morals (crack house. light. the degree of damage. Foreseeable Misuse of Product: imposes a duty on the 6. assumption of risk 5. Factors: Cts look at the type of neighborhood. dust. smoke. the nature of the locality. slander and pecuniary harm. Examples of public rights protected from nuisances: public health (pollution of water supply.

accuse P of crime w/serious punishment. Constitutional Limits: deals with the statute of P as a public or private figure i. There is no liability if the publication occurred by mistake and was w/o fault on D’s party (ie: P was eavesdropping and heard something. No liability if based only on negligence (So no damages) ii. need something else Slander: reserved for defamation published by means of the spoken word or transitory gestures. D isn’t liable). e. Limited Purpose Public Figures: only with respect to a particular public controversy. Presumed or punitive damages awarded. General Purpose Public Figures: of such pervasive fame or notoriety that the person is a public figure in all contexts (ie: movies states. damages were presumed. P is not required to prove actual damages.printed defamatory statement attributable to P prima facie ii. or reasonably understood to be talking about P (Can be inferred). Must be of and concerning P: satisfied when P is identified by name. Libel per quod: document itself is not clearly defamatory. c. Print publication/periodicals (US Rule). Public official: must prove the statement was made with “Actual malice”. making a statement with reckless disregard for whether or not it is false . ii. D is usually not responsible for this publication (exception: if D should expect that P will have to repeat the defamation—ex when a discharged EE has to explain why he is fired) 1. P was required to prove special pecuniary damages unless it was “slander per se” (would injury P in his trade. typically communication is limited to a number of people (ie: statement shouted in a crowded auditorium). not every aspect of their life lends them to be treated as a public figure (whistle blower. Trust is a complete defense under rule of publication of a magazine = one cause of action. i. Michael Jordan) 2. anti war protestor).its affecting your current situation. Libel per se. celebrities. i. The general rule concerning group libel is that disparaging words about a large group or class of persons doesn’t give rise to a libel action by any individual members of the group. Libel: defamation published by means of the printed word (ie: statement contained in a written note passed to one person who reads it and destroys it is still libel). d. Private official: only have to show negligence. If P repeats a defamatory statement made by D to P alone. Malice i. But you can bring suit in any state. Only one cause of action for an article. Oprah. D usually has to be given notice to remove a defamatory statement along w/sufficient control to be able to remove the statement. Actual Malice: making a statement knowing it was false. accuse of serious sexual misconduct) b. P has loathsome disease. statement of broadcast. 1. Publication of statement to 3rd party: P has to show that the meaning of the statement was understood by 3rd party it was published to.

this is usually not enough) iii. appropriation. Those who get the published information are not liable for the intrusion (if you just get the tape from the intrusion. Privacy Torts: four types: intrusion. Elements: D makes use of P’s likeness or identity for D’s own use or benefit Public Disclosure: assume the matters published are true. eavesdropping. The intrusion must be highly offensive to a reasonable person. Elements: D must publicize some matter that places P in a false light.f. Distinctions: matter doesn’t have to be defamatory as long as it places the P in a highly offensive false light.must act in reckless disregard of the falsity ii. No separate privilege exists for opinions (its protected by other constitutional limitations). likeness. iii. A deliberate misquotation is in some sense false and meets this requirement if it materially changes the meaning of the quoted statement. must be show by clear and convincing evidence. Distinctions: not necessary that it be published to a 3rd person. or identity for the user’s (financial) benefit. Intrusion: invasion of a person’s private space or affairs. ii. (recklessness requires more than lack of care. you aren’t liable for the intrusion itself). The tort is complete as soon as the offensive intrusion takes place. Opinions get full 1st amdt protection. snooping. recklessness requires proof that the publisher in fact entertained serious doubts about the truth of the statement). 1. c. P may sue if his solitude is intruded upon. Examples: spying. the const protects the right to disclose them) False elements: portrays the P as something that the P is not (not recognized in all states). and this intrusion would be highly offensive to a reasonable person i. There has to be a private place involved (if D takes P’s picture in a public place. Elements: D must publicize some private information about the P. Distinctions: must be publicized to more than one person (widespread disclosure is required) ii. Facts don’t get 1st amdt protection if they are false. public disclosure. The complaint is that what was disclosed was private and had no reason being published and the disclosure of them is SO highly offensive that P should have a COA to recover damages for mental anguish. Concerns w/the 1st amdt b/c of the public’s right to know (if the facts involved a matter a matter of legitimate concern to the public. b. d. the false light must be highly offensive to a reasonable person’ D must have KNOWLEDGE of the falsity of the position that P is placed –OR. It protects a person’s privacy interest in not being portrayed to the public in an objectionable false position. false elements a. i. Elements: some sort of invasion into a private area of P’s life. . breaking and entering into a person’s home or office Appropriation: involves the use of P’s name. Based on the idea that a person’s identify may have a distinct value that should be protected i. such disclosure must be highly offensive to a reasonable person and the information disclosed must not be a matter of legitimate public concern. 6. i.

Qualified immunity: police officers (civilly liable if no reasonably competent officer would have acted is such”.one who by a consciously wrongful act b.42 USC § 1983. Does include actions that violate state law State of Mind requirements: no state of mind requirement but it may be NECESSARY in order to constitute a violation of a person’s constitutional rights. § 1983 may not apply.Every person acting under “color” of state law who deprives another of rights.doesn’t have to be an action sanction or permitted by state law. county and other local govtal entitles if the deprivation is caused by a custom or policy of the governmental entity.7. vi. When the rights violation is accomplished by a fed official. privileges and immunities secured by the US Const and Fed law is liable to the party injured. Parratt-Daniels-Davidson line: shows the court trying to define the scope of the procedural due process right. viii. (2) if a right does exist. punitive damages allowed but not against govt entities Structural Injunctions: ct orders that fundamentally restructure a state institution that has been found to be engaging in systematic vii.includes individuals. Civil Rights: a. intentionally deprives another of the right to vote in a public election or to hold public office or seriously interferes with either of these rights is subject to liability to the other. will a hearing taking place after the injury be sufficient Bivens Actions: damages may be obtained for injuries following a violating of the 14th amdt by fed officials. Limitations are when the special factors may counsel hesitation Municipal Liability: municipalities may be sued under § 1983 but they are only liable IF the deprivation of fed rts was caused by an official policy of custom. Complete immunity: executive branch officials. Official policy is made by the policymaker designated by state law: “only where a failure to train in a relevant respect demonstrates “deliberate indifference” to the rts of others a such a shortcoming be properly thought of as a city “policy of custom” actionable under § 1983. There are two issues to determine: (1) if P has any right to a hearing at all in the particular situation. no presumed damages. states are immune from § 1983 actions. Statute. Under “color” of state law. 2. Elements: 1. 2. i. Common Law (R2T § 865). Immunities (for §1983 and Bivens actions): 1. . city. P must prove actual injury resulting from deprivation. v. Every person. iii. ii. iv. if an official violated a clearly established right (objective test) Injury and Damages: deprivation of a constitutional right does not entitle P to damages. judges and prosecutors acting in their job.

P had to show they are in fact suffering a deprivation of protected rights and the they have a need for the injunction (by showing a likelihood of future harm) .violations of constitutional rights.

damage to P b/c of the reliance. Defenses: D can prove that P was in fact guilty of the crime charge (affirmative defense) by proof of preponderance of the evidence. Elements: D must make use of the processes of the court and the use must be for the purpose for which the process was not designed. Misrepresentation: includes fraud/deceit.almost any enforceable order of the court. damage to the P from reliance on the misrepresentation. Elements: same as malicious prosecution (initial criminal proceedings. Some cts add the requirement of special injury (injury caused by the seizure of P’s person or property) Abuse of Process: occurs when a person involved in criminal or civil proceedings uses various litigation devises for improper purposes (ie: P seeks to harass through lawsuit) i. advice of counsel (if you told attys everything) Wrongful Civil Proceedings: same as malicious prosecution but only applies to civil cases. Elements: A false representation of material fact by the D. termination in favor of D). scienter. Process. damages for emotional distress and humiliation. malice. justifiable reliance by the P. any formal institution of criminal proceeds satisfies this element Lack of probable cause to initial the proceedings. P’s guilty is established to the jury’s satisfaction.8. termination for something that P was not guilty of 5. Three types: actual malice. damages to the cost of defending against the criminal charges ii. Elements: 1. intent by the D to induce the P to act in reliance on the representation. damages. 3. 1. hard to prevail on i. i. 1. Favorable termination of the underlying suit is not an element. an intent to induce the P’s reliance on the misrepresentation. 4. unilateral mistake a. Damages.D must have lacked reasonable or honest belief in the truth of the charge Malice. mutual mistake. legal malice and malice in law. lack of probable cause. b. 9. Malicious Prosecution: Institution of criminal proceedings. knowledge or belief by the D that the representation in untrue. Distinction: Lack of Probable cause to bring the suit is not an element. Deceit/falsity (intentional misrepresentation): P must establish a misrepresentation by D. involved. termination of the proceedings in favor of the accused. May be inferred from D’s conduct.damages for loss of reputation. False representation of material fact by the D: . Termination of the proceedings in favor of the accusedthe criminal proceeding can’t be revived. ii. damages i. malice. justifiable reliance on the misrepresentation by the P. innocent misrepresentation. Misuse of Legal Process: includes malicious prosecution. c. negligent misrepresentation. wrongful civil proceedings and abuse of process a.D must have improve motive for bringing the action. Institution of criminal proceedings. lack of probable cause to initial the proceedings.D must be actively 2.

a type of culpable state of mind. of misrepresentation: affirmative misrepresentation of fact.a. Out of Pocket Measure: alternative measure. Justifiable reliance on opinions—in general. Newly acquired information that would make a previous statement misleading iv. Proverbial “half truth”. Knowledge or belief by the D that the representation in untrue: a. Damage to the P from reliance on the misrepresentation: a. a. Types b. actions by the D (during back odemeter on car) Not type of misrepresentation: D simply remains silent but no effort was made to stop P from discovering the matter. (2) did P in fact rely upon the statement to his or her detriment— causation). making the misrepresentation with knowledge that it is untrue (or recklessness with regard to if it’s true) and with intent to deceive the other party. This allows one party to take advantage of the other’s ignorance. . This is the more generous method & more common. Justifiable reliance on the misrepresentation by the P: the misrepresentation must in fact cause P to take some action and P must be justified in taking this action. Works well when the buyer is misrepresenting to the seller. The more the thing is represented as being worth. unless P is on notice of circumstances indicating that future investigation is required. 5. Exceptions when you have a duty to speak in certain situations: 2. 3. the more damages you will get. cts do not impose on P’s the duty to investigate statements of fact to determine the truth. Exception if it’s is implied that there is a factional basis for them b. Uses the net economic damages by the net loss. D actively conceals facts and prevents P from learning them. Two aspects: (1) was the representation one that a reasonable person would rely on. Scienter and the intent to deceive. i.misleading impression by omitting impt info iii. Calculates the difference between the value of what gave and the value of what P received. concealment of material fact. Generally. b. D owes a fiduciary duty to P ii. Benefit of the Bargain: difference between the actual value of what the P received and the value it would have had if it had been as represented. Intent by the D to induce the P to act in reliance on the representation: treated as statements of fact 4. Parties who have access to basic info about a transaction that the other party is unlikely to be able to obtain c. cts don’t regard opinions are reliance (ie: prediction of the future).

resulting in economic damage ii. Liability to Third Parties: three rules dealing w/accounting and when they are liable for negligence 1. also recover additional consequential damages proximately cause by the fraud. with regard to a transaction that the accountant intents the info to influence 3. employment. not intentional deceptive. some conduct by the accountant links them to the third party who will rely on the statements 2. Competitive Torts: . or employment. Restatement rule: liability to the limited group of persons that the accountant knows will rely on the information. Negligent misrepresentation: D is only negligent. economic interest) where D should understand that the matter is impt and that care in providing information is essential. by a particular known party. P can 10. Foreseeability Rule: some cts go even further and say that you’re liable to any foreseeable party. the misrepresentation results from the negligence of the D (failure to use reasonable care) in obtaining the info and communicating it to the P. the misrepresentation is made in the course of the D’s business. Usually applies to business relationships. Consequential Damages: under either measure. justifiable reliance (By a P to whom D owes the duty of care). i. liability is limited to situations (business. profession. Elements: Misrepresentation of a fact by D.b. NY rules (Credit Alliance): liable when they are aware that statements are to be sued for a particular purpose. c. or in the course of a transaction in which the D has an economic interest. profession.

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