Invasion of Privacy Torts
What are the four invasion of privacy torts? Don't explain, just what are they?
1.) Misappropriation of Name, Image, and Likeness (25 points)
2.) Intrusion Upon Seclusion (25 points)
3.) Public Disclosure of Embarrassing PRIVATE Facts (25 points)
4.) False Light (25 points)
What are the four business torts? Also don't say the elements, just explain how you could use them.
(1) Fraudulent Misrepresentation (Intentional Tort): A claim for fraudulent misrepresentation includes both fraud and deceit. A claim requires a deceptive act or practice, intent that the plaintiff rely on the deception, occurrence in trade or commerce, and damages.
(2) Negligent Misrepresentation: In a business or professional setting, careless misstatements or omissions may be actionable under this tort.
(3) Tortious Interference with a Contract (2 ways):
> 1.) Inducement of Breach of Contract: An action against a defendant who induces a third person to breach contractual obligations to the plaintiff
> 2.) Interference with Performance of a Contract: An action against a defendant who causes a third person to fail to perform under a contract with the plaintiff
(4) Tortious Interference with Prospective Economic Advantage: A tort claim in which a defendant, aware that a plaintiff has a reasonable expectation of economic gain from plaintiff’s business relationship with a third person, interferes with that relationship in violation of law or using other tortious means, causing the plaintiff economic losses.
What are the two types of Legal Process Torts? Don't explain
1.) Abuse of Process
2.) Malicious Prosecution
Which defect involves a particular unit of a product made more dangerous than other units of the product due to a flaw in the production process.
Manufacturing defect
What are the three types of defenses to products liability bc of plaintiffs conduct?
1.) Misuse
2.) Substantial Alteration
3.) Comparative Fault
What are the three elements of Intrusion Upon Seclusion?
1.) An intentional intrusion;
2.) Upon the solitude or seclusion or private affairs or concerns of the plaintiff; and
3.) In a manner highly offensive to a reasonable person.
What Are The Four (4) Elements of Tortious Interference with Prospective Economic Advantage?
1.) The plaintiff had a reasonable expectation of future economic advantage flowing from a business relationship between the plaintiff and a third party;
2.) The defendant was aware of that expectation;
3.) The defendant intentionally and improperly interfered with the plaintiff’s prospective advantage; and
4.) As a result, the plaintiff suffered economic harm (meaning that, but for the tortious interference, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit).
What is abuse of process?
Applies where a defendant uses any form of the legal process, civil or criminal, for an improper purpose, such as depositions, subpoenas, and property attachments.
Which defect involves an entire line of products made more dangerous than it should have been because of a flaw in the design. How can you prove this flaw?
Design DEFECT
> To prove a design flaw, a plaintiff must demonstrate that a safer alternative design was available but not selected.
What is the majority and minority rule for misuse? (Mainly just get the majority rule)
1.) The historical approach (likely still the majority rule) is that misuse bars recovery in strict liability.
2.) Traditional rule (minority rule): As in other areas where strict liability applies, the traditional rule (and the rule in the Restatement (Second) of Torts) with respect to strict products liability is that the plaintiff’s negligence contributing to their injury is irrelevant and is not a defense (though assumption of risk is)
What are the three elements of Public Disclosure of Embarrassing Private Facts?
1.) Defendant publicizes information about the plaintiff;
2.) The publication would be highly offensive to a reasonable person; and
3.) The information is not of legitimate public concern.
What Are The Five (5) Elements of Negligent Misrepresentation
1.) A misrepresentation made in a business or professional setting (such as information provided by an information supplier, such as an accountant or auditor);
2.) Breach of a duty to the plaintiff (meaning the court finds that the defendant owed a duty to this particular plaintiff);
3.) Causation;
4.) Justifiable Reliance; and
5.) Damages.
What is malicious prosecution?
How can we determine if the prosecution IS a malicious prosecution?
> Where a defendant institutes (or is responsible for the initiation of) legal proceedings against the plaintiff in the absence of probable cause and with the primary purpose being something other than securing the proper adjudication of the claim.
> The action must have terminated in a way favorable to the malicious prosecution plaintiff.
Which defect involves a failure to communicate to a consumer the dangers of a product in a procedurally and substantively adequate fashion.
Warning Defect
What is the crashworthiness doctrine?
Rule Statement: The Crashworthiness Doctrine imposes a duty on manufactures to design products that do not pose unreasonable risk of injury in foreseeable actions.
Bigger Explanation:
What are the three elements of a misappropriation claim (name image likeness)
1.) The defendant must have used the plaintiff’s name, image, or likeness for commercial advantage;
2.) The use must have been unpermitted (without plaintiff’s permission); and
3.) The plaintiff must have suffered an injury—This could include the lost ability to profit off the licensing of his or her name, image, or likeness.
What are the Five (5) Elements of Tortious Interference with a Contract?
1.) Existence of a valid contract between the plaintiff and a third party;
2.) The defendant’s awareness of the contract;
3.) The defendant intended to interfere with the contract (i.e., induce its breach or interfere with its performance);
4.) Interference was caused (i.e., the defendant induced a breach or interfered with its performance); and
5.) Economic damages to the plaintiff.
What duty do you have to avoid causing a purely economic loss?
There is no duty in tort to avoid causing purely economic loss to another.
This limit on duty is known as the “economic loss rule” or the Robins Dry Dock Rule
What are the two tests used the dealing with a design defect?
1.) Consumer Expectation Test: Under the Restatement (Second), a product is defectively designed if, as designed, it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.
> The problem with the consumer expectations test is that it is not always easy to know when the ordinary consumer would consider a product’s design to be unreasonably dangerous.
2.) Reasonable Alternative Design: Under the RAD test, a product cannot be deemed defective simply because it is dangerous, such as tobacco, firearms, or alcohol. Problem with the RAD test is that it essentially requires the plaintiff to prove that the designer was negligent.
What is substantial alteration? (200 points)
What happens if the alteration is foreseeable? (200 points)
Rule: If the product was altered or modified after sale in a way that was not reasonably foreseeable, and the alteration or modification caused the plaintiff’s injury rather than any defective condition of the product prior to the alteration or modification, then the seller is not liable.
> If alteration of a product is considered foreseeable, then the alteration will not relieve a product seller of liability
What are the FOUR elements of false light? What is the fifth element when dealing with a public official?
1.) The defendant made public a matter of a kind
2.) That place the plaintiff in a false light;
3.) The false light would be highly offensive to a reasonable person; and
4.) Knowledge or recklessness on the defendant’s part as to whether the publication would place the plaintiff in a false light.
5.) Public Official Element: ACTUAL MALICE (Goes for false light AND defamation)
What Are The Six (6) Elements of Fraudulent Misrepresentation?
1.) False statement or omission of material fact (if there is a duty to speak);
2.) Scienter (knowledge of falsity or reckless disregard of its truth);
3.) Intent to induce reliance;
4.) Causation (reliance) (i.e., the plaintiff acted differently because of the misrepresentation);
5.) Reliance was “justified” (reliance is generally unjustified only when the falsity is obvious); and
6.) Special damages (i.e., economic loss).
Can you convince a buyer to buy your product intimated of your competitor's product?
YES! While it is improper to induce someone to stop doing business with a competitor by making false statements about the competitor’s products or services, it is not improper to simply convince them to buy your products or services instead.
What are the two types of warnings in warning defects?
1.) Substantively Adequate Warnings: Warning that describe the dangers posed by a product with clarity as to their severity.
2.) Procedurally Adequate Warnings: A warning reasonably calculated to attract consumers’ attention.
What is the majority rule for comparative fault? (250 points)
Can you form a rule statement for it? (250 points)
Majority Rule: Comparative negligence can be a defense to a strict products liability claim and used to reduce the plaintiff’s recovery.
Rule Statement: A court will consider a consumer’s comparative negligence in a design defects case only when the consumer’s negligence is unrelated to the deign defect.