Download TORTS(2) - Ole Miss LSSB

Outline
Introduction
Two part test to identify a proper tort Cause of Action
 What interest does cause of action protect?
 What kind of conduct does it protect the interest from?
o
Intentional conduct
o
Negligent conduct
o
Strict liability
I. WRONGFUL DEATH
A. 2 Part Test
1. Interest protected? – Interest of person not to be killed
2. Basis of liability – any culpable conduct (negligence, intentional, SL)
B. Common Law Treatment
1. Felony Merger Doctrine – All crimes involving death were felony and
punishable by death. All property confiscated by crown, therefore nothing to
pursue in tort action
2. Lord Campbell’s Act – Allowed cause of action for ¶ who could show loss of
money
a.
No recovery allowed if no dependents
3. Loss to Survivors Statute - Trier of fact (Judge) determines future monetary
contribution of deceased.
C. Survival
1. Common Law – Tort C/A abated w/ death of party prior to judgment
2. Survival Statutes – All states have statutes that override abatement and allow
C/A whether party is living or dead.
a. Maj. – Party must be survived by statutory beneficiary or no C/A exists
(Lord Campbell’s Act)
b. Min. (MS) – Any time D’s wrongful act causes death, the wrongful death
action appropriate.
 MS § 91-7-233 – death before filed, suit can be brought
o Exceptions: libel, slander
 MS § 91-7-237 – death after filed, suit can continue
3. Cannot prevail in Wrongful Death C/A unless wrongful act of D actually
caused the death.
D. MS § 11-7-13 – Wrongful Death Statute
1. If person does an act and if P would be able to bring suit against D had act
injured P, then if act kills P, P can bring wrongful death action
 Whether intentional, negligent, carried by SL, or breach of warranty
2. Who can bring a wrongful death action
a. Group 1 – spouse and children – all in this group split damages
 If one child already dead, but has 2 kids, then they split his share
b. Group 2 – parents and siblings – if no one in group 1, then all in this group
split damages.
 If no one in group 1 or 2, then goes to estate
c. Half sibling entitled to same share as full sibling (different from intestate
succession)
d. All possible parties must be joined in suit
e. Adopted child killed – new family takes place of natural family
 Stepchildren cannot bring suit
 Illegitimate children can inherit from natural mother and her children
o Different for father – must establish relation w/ suit to determine
heirship
f. Unborn Children – suit can be brought provided it is viable
 Standard is now quickness w/ movement to push back to conception
E. Statute of Limitations – begins when death occurs
1. Depends on underlying cause of action

Intentional act (assault) – 1 yr.

Act caused by malpractice – 2 yrs.

Caused by defective product – 3 yrs.
F. Damages
1. Awarded to estate – to pay off expenses

Medical

Funeral

Damages to personal property

Punitive damages???
2. Awarded to beneficiaries

Pain & Suffering

Loss of society & companionship

Net cash value of decedent’s work life expectancy (reduce to present
value)
o
Call expert economist to determine how much decedent would
spend on others
o
Calculation = amt. earning at time of death + increases would have
received through retirement – reduction to PV

Hedonic Damages (minority) – loss of enjoyment of life (not accepted
by MS)
G. Defenses
1. Wrongful death is a derivative C/A – any defense that could be raised in
original C/A can be brought in wrongful death action
II. INTENTIONAL INTERFERENCE WITH PERSONAL PROPERTY
A. Intent
1. 2 part Restatement test (majority)– Conduct is intentional if:
a. purpose of act was to invade the protected interest -ORb. D knew it was “substantially certain” that the protected interest was going
to be invaded (not absolute certainty)

2.
3.
4.
5.
“Substantially certain” means more than just likely to happen, means
act will happen unless some other force intervenes to stop it.
 Subjective test based on what was substantially certain to the D
Florida Test (minority) – Conduct is intentional if:
a. D’s purpose was to cause the particular harm -ORb. D knew that it was substantially certain to cause that particular harm
Mistake – still liable even if mistaken at to rights towards the person or
property
a. Mistake NOT A DEFENSE
b. Example – trespass to land – if enter land by mistake, still liable even if
thought it was your land
Insanity – not a defense in negligence or intentional tort actions
a. Insane people are liable for their intentional actions (same rules as
negligence)
b. Policy reasons?
 Encourage those with interest in estate to care for insane persons
 Keep insanity determination out of tort law
 Innocent victim should not bear damages caused by insane
 Insane should pay their own way
Transferred Intent – If D intended to injure one person w/o right, but injured
another, D is liable to the person he injures.
a. 2 Part Test – Both conditions must be met:
 D intended to injure someone
 D had no right to injure the person he intended to injure
b. Only applies to the 5 intentional torts
III. BATTERY
A. 2 Part Test (P’s burden or proof)
1. Interest Protected? Right of person to be free from harmful or offensive
contacts with the body or something attached to the body.
2. Basis of Liability? Intentional conduct.
B. In order to make out prima facie case, P must prove:
1. D’s act caused offensive or harmful contact
2. D acted intentionally
3. Act was the proximate cause of injuries

Cause in fact

Legal cause
4. Damages occurred
C. Harmful or offensive conduct
1. Physical contact not required. Battery includes touching of anything attached
to the skin of the person (to such extreme of touching car in which P is sitting)
2. P does not have to be aware of the battery when it occurs
3. Harmful or offensive motive is not required, only a harmful or offensive
contact
4. Absence of consent is required
D. Ordinary Sensibilities Test
1. In order for contact to be held offensive, it must be offensive to a person of
reasonable ordinary sensibilities.
2.
Exception – If the D knows that the P is hypersensitive, acts which would
not e offensive to an ordinary person but are offensive to P are actionable
(requires special knowledge)
E. Damages
1. Eggshell Rule – If the resulting injuries to P are more than a R/ person might
have anticipated, the D will still be liable for those injuries.
2. Emotional Distress – P does not have to prove a physical manifestation of
emotional distress, only some degree of distress from the battery.
IV. ASSAULT
A. 2 Part Test
1. Interest Protected? Right of person to be free from reasonable (well-founded)
fear of imminent battery
2. Basis of Liability? Intentional conduct.
B. Prima Facie Case
1. D’s act caused P to be in reasonable fear of imminent harmful or offensive
conduct
2. D acted intentionally

Intended or Substantially Certain
3. Act was the proximate cause of injuries

Cause in fact

Legal cause
4. Damages occurred – Mental Distress
C. Fear of Imminent Battery
1. Awareness – P must be aware of the conduct for an assault to occur
2. Imminent – In order to be imminent fear, must be overt act that causes P’s fear

Not imminent if D threatens to do in future
3. Reasonable – If it appeared to P that D could carry out a battery, the fear is
reasonable.

Question for jury
4. Older courts require actual overt act (pulling out gun), but recent courts
disagree

Not required that D be able to carry out threat, only that it appears that
he can (i.e. pointing an unloaded gun)
V. FALSE IMPRISONMENT
A. 2 Part Test
1. Interest Protected? Right of person to be free from confinement against ones
will
2. Basis of Liability? Intentional conduct.
B. Prima Facie Case
1. D’s act caused P to be confined
2. D acted intentionally

Intended or Substantially Certain
3. Act was the proximate cause of injuries
4. Damages occurred – Mental Distress
C. Confinement – restricting a person from leaving a certain area (does not include
preventing a person from going in a particular direction)
1. P must be aware of confinement
2. Must be against person’s will, cannot be voluntary

Voluntary can change to involuntary if person is not allowed to leave

Refusal of means to leave is False Imprisonment
3. Physical force not required, threats are enough
4. Can restrain someone physically, by threat, or by keeping his or her personal
property
5. False arrest falls under false imprisonment – must be arrested for a valid legal
justification
VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A. 2 Part Test
1. Interest Protected? Right of person to be free from severe emotional distress
2. Basis of Liability? Intentional conduct.
B. Prima Facie Case - § 46 Restatement – 4 elements necessary to impose liability:
1. Conduct must be intentional or reckless

Intentional – Purpose or Substantially Certain
2. Conduct must be extreme and outrageous – “exceeding all bounds which
could be tolerated by society”
3. Causal connection b/w wrongful conduct and emotional distress
4. Distress must be severe
C. Ordinary Sensibilities Rule – Must cause severe emotional distress to a person
of ordinary sensibilities.
1. If D has knowledge of P’s special sensitivity, use subjective test
D. MS Rule – In order to recover, must prove either:
1. D’s conduct outrage or avulsion (intentional)
2. Mental distress resulted in illness requiring medical treatment (intentional or
neg.)
VII.
TRESPASS TO LAND
A. 2 Part Test
1. Interest Protected? Right of person to exclusive use and possession of land
2. Basis of Liability? Intentional conduct.
a. Negligent act causing trespass – cause of action is negligence.
 No such thing as negligence trespass
3. No damage required for trespass action – only nominal damages awarded
B. Environmental Trespass – must be committed by a tangible thing coming onto
land
1. Particles are tangible if they leave residue
2. Can only recover if actual damages are shown
C. Change in status – A person or thing’s status on the land can change (go from
non-trespass to trespass based on time or place)
D. Areas above and below land
1. Airspace – Trespass protects airspace within the “immediate reaches” of the
land (Actual portion that can be made use of)
2. Some states require nuisance action to be brought (if above “immediate
reaches”)
3. Underground protected as well
E. Cutting Timber in MS (most common trespass action)
1. Can recover if:

Your land

Never gave permission
2. Entitled to recover double value + cost of reforestation

If can show willful and wanton, then can recover $55/Tree
VIII.
TRESPASS TO CHATTELS – statutory cause of action
A. 2 Part Test
1. Interests Protected?

Right of person not to have his personal property damaged

Right of person not to be deprived of use or possession of the chattel
for any substantial amount of time
2. Basis of Liability? Intentional conduct.
B. Prima Facie Case – liable for trespass to chattels if:
1. Dispossess other of the chattel
2. Chattel is damaged
3. Deprived of use for substantial amount of time
4. Bodily harm or harm caused to person or thing in which possessor has a
legally protected interest
C. Other Elements
1. P must show actual damages (mere intermeddling is not enough)
2. P authorized to use R/ force to stop intermeddling
3. Few actions are brought for trespass to chattels because the conversion cause
of action is available and damages are more significant for conversion
IX.
CONVERSION
A. Interest Protected? – Freedom from another exercising dominion or control over
property
1. Definition – Exercise of dominion or control over a chattel which so seriously
interferes with the right of another to control it that D may be required to pay
the full value of the chattel
2. Factors in determining Conversion

Extent and duration of control

Intent to assert right of control inconsistent w/ other’s right to control

Good Faith

Extent and duration of resulting interference w/ other’s right to control

Harm done to chattel

Inconvenience and expense caused to the other party
3. Damages – If conversion, we make K pay full value of chattel and D keeps
chattel (forced sale)

Full Value = Full mkt value immediately before conversion
4. Criticism – Bad law b/c it allows the taking of property as long as returned
before P realizes it is gone
5. Conversion of information – information converted when:
 Type of info sold as a commodity
 Literary of scientific work
 Work of commercial competition
6. Ways to convert a chattel
 Acquire possession (steal it)
 Damage or alter (intentionally run over animal and kill)
 Use (bailee seriously violates terms of bailment)
 Receive (obtain possession after purchase from thief)
 Dispose of (bailee wrongfully sells chattel)
 Misdeliver (deliver to wrong person by mistake so that chattel is lost)
 Refuse to surrender (bailee refuses to return chattel)
X.
PRIVILEGES
*
*
Affirmative defenses to P’s cause of action
D has Burden of Proof
A. Consent
1. Reasonable Person standard – Would a RPP in the D’s position under the
circumstances have thought that P consented?
2.
D must prove by POE that P consented
3. Consent obtained by misrepresentation is not valid consent
4. Consent to operation on one part of body not gen. consent to operate on rest of
body
a. Exception – if serious circumstances arise, consent implied
b. If P’s condition is improved, still has cause of action, but will be taken
into account when damages awarded.
5. Consent to illegal activity – 2 views

Maj. – P cannot consent to illegal activity

Min. – P can consent to an illegal act
B. Self-Defense
1. Existence of Privilege – Anyone is privileged to use reasonable force to
defend against threatened battery.
2. Retaliation – When battery no longer threatened, privilege terminates

If person was initially aggressor and has retreated, he does have right
to self-defense against person he initially threatened
3. Reasonable Belief - Privilege exists when D reasonably believes that force is
necessary to protect against threatened battery

Jury question as to whether fear was R/
4. Provocation - Insults, verbal threats alone do not justify use of force in self
defense

If abusive word are accompanied by actual threat of physical harm,
then may be privileged to defend
5. Amount of Force – Privilege limited to use of force that is or reasonably
appears to be necessary for protection against a threatened battery.

To justify use of deadly force, D must have a reasonable apprehension
of loss of life or great bodily injury

Generally, D has BOP the use of force was R/ under the
circumstances, however some jurisdictions shift BOP to P if D is a police
officer
6. Retreat – Maj. says may stand ground and use whatever force necessary, even
deadly force

Min. – Must “retreat to wall” rather than use deadly force or cause
serious injury
7. Mistake Rule – As long as the mistake was R/ (if R/ believed was in physical
danger), D can assert self defense
C. Defense of Others
1. Nature of Privilege – Privilege similar to that of self-defense recognized for
the defense of third persons
2. Reasonable Mistake – 2 views
a. Shoes version – Intervenor steps into the shoes of the person he is
defending, and is privileged only when that person would be privileged to
defend himself
b. Restatement version – D is privileged to use reasonable force to defend
another even when he is mistaken in his belief that intervention is
necessary, so long as his mistake was reasonable
D. Defense of Property
1. Reasonable Force – A person is privileged to use the force reasonably
necessary to prevent the taking of property
2. Deadly Force Rule (Maj.) – Deadly force may not be used to protect property
(even with notice)

Exception – If P breaks into occupied house, treated as self-defense b/c
there is no assurance that the burglar only wants property

Cannot defend property w/ device that would not be able to use if you
were there
3. Minority Rule – If D gives clear notice that deadly force may be used, deadly
force may be allowed
E. Recovery of Property – repossessing taken property (cannot breach the peace)
1. Fresh pursuit rule – Owner can use reasonable force to retake property if the
thief is leaving and the owner can stop him. If the pursuit is no longer fresh,
the owner must use replevin.

Replevin is legal remedy for recovery of property
2. Self-Help – If the owner can locate the taken property, he may retake the
property if the can do so without breaching the peace.
3. Mistake – MS 97-23-95 – Privilege for recovery of property in shoplifting
cases
 D is owner or agent
 D had reasonable grounds to believe something was stolen
 D used reasonable conduct to investigate (depends on circumstances)
a.
Many states enacted these types of statutes to protect store owners
from being liable for mistake
F. Necessity – Under certain circumstances, necessity may be a defense to taking
property of another
1. Public – If taking is R/ necessary to protect the welfare of another, individual
rights may give way to the public good

Not really an issue today b/c of eminent domain (Constitutional
guarantee of just compensation for public taking)
2. Private – Sometimes it may be necessary to take private land (trespass). Even
though a R/ person would have done the same thing, D must pay for damage
caused.
G. Authority of Law – If D is duly commanded or authorized by law to do what he
does, he is not liable for doing it.
1. Discretionary – D will not be liable
2. Ministerial – Agent will not be liable but gov’t will be
H. Discipline
1. Corporal punishment by teachers – Paddling is an intentional tort of battery,
but the teacher has a privilege to maintain discipline. In some jurisdictions,
this privilege may be overridden by school district regulations.

Must be reasonable and published procedures followed
2. Parent corporal punishment – In jurisdictions where parent child immunity
has been abolished, the child may have a cause of action (not in MS)

MS – full parent-child immunity unless in car wreck
I. Justification
1. Reasonable prudent person defense – If a person acted reasonably, he may
assert justification as a defense vs. an intentional tort.

Minority view, but modern trend (MS does not allow)
2. Effect – If RPP defense accepted, the only difference in intentional torts and
negligence will be who has the burden of proof.

Negligence – BOP on P

Intentional tort – BOP on D
3. Question will become, “was D’s conduct reasonable?”
4. In MS, introduction of evidence that D acted R/ will be allowed to mitigate
damages
XI.
STRICT LIABILITY
A. Trespassing Animals
1. Majority Rule – There is strict liability for trespassing animals
a. P must prove only that:

Animal belonged to D

Animal caused the type of damage a trespassing
animal would normally cause to P’s property
b. Rule not applicable to dogs and cats
2. MS § 69-13-111 – If animal gets on state or fed. Hwy, & causes injury, then
owner is presumed negligent. BOP shifts to D to prove not negligent.
 If animal on county road, no presumption of negligence.
B. Dangerous/Wild Animals
1. Wild Animals – Owner/Keeper of wild animal is strictly liable for damage
caused by the animal
2. Dangerous Domestic Animals – There is no strict liability per se. P must
prove that D knew or should have known that the animal was dangerous in
order to recover.

Knowledge of propensity to harm subjects an animal to wild animal
treatment (Strict liability)

Person can be liable for violation of leash ordinance
3. Interest Protected – Right of person not to be injured by wild animals kept by
another person
C. Abnormally Dangerous Activities
1. Rylands v. Fletcher – Developed new cause of action for abnormally
dangerous activities based on strict liability

Developed from the reasoning behind SL for animals; D introduced
the element that caused the harm to the land, so D should be liable for
consequences.
2. 1st Restatement – ‘ultrahazardous activity”
a. 2 Part Test (question of law – for judge, not jury)
 Necessarily involves a risk of serious harm to persons, land, or
chattels, which cannot be eliminated by the exercise of utmost
reasonable care.
 Is not a matter of common usage (i.e. a car)
b. Still used by many jurisdictions
3. 2nd Restatement – “Abnormally dangerous activity”
a. 6 Factors:
 Risk (probability) of harm was great
 Likelihood harm would be great if accident occurred
 Inability to eliminate risk by exercise of due care
 Not a matter of common usage
 Inappropriate in place where it took place
 Value to community v. unavoidable risks (balancing test)
b. Theft can be superseding cause that excuses liability of abnormally
dangerous activity
4. Types of activities held to be abnormally dangerous
a. Toxic Chemicals
b. Pile Driving
c. Crop Dusting
d. Poisonous Gases
e. Rockets
f. Fireworks Display
g. Hazardous Waste Disposal Site
h. Oil Wells
i. Water Escape
j. Fumigation
k. Blasting - most common Abn. Dangerous activity
5. Question of whether activity is ultrahazardous/abnormally dangerous is
always matter of law to be decided by judge
a. Decision must be kept w/in manageable bounds
D. Limitations on Strict Liability
1. P’s loss must be w/in the scope of liability

Cause in fact – “but for” test

Legal Cause – Scope of liability test – Is the injury that occurred one
of the types of harm likely to result that makes the activity dangerous?
2. Comparison w/ scope of liability from other causes of action
a. Negligence is larger b/c the scope is foreseeable
b. Intentional tort is even larger b/c of culpability
c. Makes sense, b/c of the degree of fault: SL = no fault; negligence = some
fault; intentional tort = greatest fault
3. Affirmative Defenses
a. Act of God
b. Contributory negligence
 Majority – If cause of action not based on negligence, cannot claim
contributory negligence as a defense
 Minority – Allows contributory negligence as defense
c. Assumption of risk – Generally allowed as a defense in strict liability
cases
XII.
PRODUCTS LIABILITY
** Area of tort law allowing recovery for injuries to a person or property caused by
a manufactured product. (Recovery from manufacturer or maker of product)
A. Development of Theories of Recovery
1. Early law – requirement of privity – could only recover if you purchased
product directly from the manufacturer

Winterbottom rule
2. Negligence – usually when something bad happens in manufacturing process
a. In MacPherson, court removed the requirement of privity, holding that the
manufacturer was liable to any foreseeable person who was injured.
b. Imposed usual negligence requirements – Did the manufacturer act as a
reasonable prudent manufacturer under the circumstances?
c. Negligence still difficult for many P’s to prove b/c dad to demonstrate the
particular act of negligence
 Sometimes no negligence
 Hard to prove
d. Ways manufacturer can be negligent
 Faulty design
 Failure to inspect parts
 No warning
 What a Reasonable Prudent Manufacturer would have done
3. Breach of Express Warranty
a. In Baxter v. Ford Motor Co., the court removed the requirement of privity
for express warranties, holding that the manufacturer was liable to any
foreseeable person who was injured.
b. P must prove:
 Manufacturer made untrue representation about the product
 P relied on the representation
 P was injured as a result
c. Strict Liability cause of action b/c do not have to prove they were
negligent
d. Not a significant area of litigation b/c manufacturers are careful about
making such warranties
 Very close to contract law
4. Breach of Implied Warranty – Products that are sold carry certain guarantees
a. Warranty of merchantability (most important) – The product was R/ fit for
use as a product of that type/kind.
b. Warranty of Fitness – The product was R/ fit for a particular purpose
c. Disclaimer – manufacturer cannot disclaim these warranties
d. P’s burden of proof – P must prove the product was not reasonably fit b/c
of the defect & show that the problem was cause of injury
 Since this is a SL cause of action, the P does not have to prove why the
product is unfit or any fault by the manufacturer
e. All of this evolved into the cause of action of strict liability in tort
5. Strict Liability in Tort (not a vehicle for absolute liability)
a. P has an action for strict liability in tort when:
 Person uses a product
 The product is defective – difference b/w breach of implied warranty
(unfit v. defective)
 The defect causes an injury
b. Restatement 402A – Special liability of the seller of a product for physical
harm to the user or consumer
 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, or to his property, if
i.
The seller is engaged in the business of selling such a product,
AND
ii.
It is expected to and does reach the user without substantial
change in the condition in which it was sold
 The rule applies although
i.
Seller has exercised all possible care in the preparation and sale
of the product, AND
ii.
User has not bought the product from or entered into any
contractual relation w/ the seller
B. Product Defects – Products liability has never been a vehicle to impose absolute
liability. Manufacturers are not insurers of their products, injured person must
always show something wrong w/ product (had a defect) in order to recover.
1. Mismanufactured Defect – Exists if the particular product is different from
others – product was not manufactured like it was supposed to be.
a. P’s burden of proof (POE)
 Product was defective
 Defect was proximate cause of injury
 Was defective when left manufacturer (most difficult to prove)
b. In other words, the defect caused damage to a reasonably F/S user
2. Design Defects – P must prove that the product was defectively designed. Has
given courts problems as to what must be proven. (How do you balance 100%
safe design vs. cost?)
a. Ordinary consumer expectations test – Was the design more dangerous
than an ordinary consumer would expect it to be?
 Problems
 Ordinary consumer knows nothing about design of products
 Patent danger rule – If danger was open and obvious, then the
product could not be more dangerous than the ordinary consumer
would expect it to be
o
1) This rule operated against the basic purposes of
products liability b/c it did not encourage manufacturers to
design safer products
 No longer majority test
b. Risk Utility Analysis – Dean Wade
 Weighs utility of product vs. risks and alternatives, If risk outweighs
utility, then product is defective
 7 Factors for judge to consider
 Usefulness and durability of product
 Likelihood that product will cause injury and the probably
seriousness of the injury
 Availability of a safe alternative
 Manufacturer’s ability to eliminate the danger w/o impairing
usefulness or making it too expensive
 User’s ability to avoid danger by the exercise of care in using the
product
 User’s anticipated awareness of dangers and their avoidability b/c
open/obvious or existence of warnings
 Feasibility of spreading the loss by setting the price or carrying
liability insurance
 Actually leads to a negligence standard similar to Judge Hand’s
formula.
 Question ends up being “Would a reasonable prudent manufacturer,
knowing of the danger, have put the product on the market with this
design?”
 Evidence of defect in design
 Reasonable Alternative Design (majority) – Most jurisdictions
require that the P prove an alternative feasible design in order to
prove design defect
 State of the Art – requirement that the best scientific and medical
technology that is practically and economically feasible at the time
the product was made be utilized by the manufacturer
- Majority allow as evidence to consider as factor
 Open and Obvious Danger – Most courts consider it as one factor
in the risk utility balancing test, not as a bar to recovery
 Prescription Drugs and Medical Devices – no Strict Liability b/c
comment k of 402A referring to unavoidably unsafe products
 Applicability to food – Courts will sometimes impose SL when
injury caused by substance that is “foreign” to food (i.e. glass,
metal, etc.)
o
If substance is natural (bone, seed, shell) then P must
prove negligence in preparation to recover.
 Custom & Usage – relevant but not conclusive
 Whether design is defective is a question of fact for jury to decide
 The judge employs the risk utility analysis to determine whether a
reasonable juror could conclude under the circumstances that the
design was probably defective.
 If reasonable minds could differ, the judge submits the question to
the jury
c. Minority risk-utility analysis – a few courts have held that risk utility
analysis is applied to the entire product rather than just the design. If the
product as a whole has more risks than benefits, the D may be liable for
making the product
 Limited by legislatures
d. Inherent Characteristics Rule – (whiskey, tobacco, butter) – product not
defective when injury caused by inherent characteristics of the product if:
 The danger cannot be removed without compromising the product’s
usefulness AND
 The danger is recognized by an ordinary person
e. Unavoidably Unsafe Products – some products which cannot be made
totally safe are so important that the good they do greatly outweighs the
harm (blood, prescription drugs)
 No strict liability, P can recover for negligence in the preparation or
lack of warnings for this type of goods
3. Warning Defect – claim that the product did not contain adequate warnings or
instructions
a. Negligence standard – Is the warning as good as what would have been
given by a reasonable prudent manufacturer?
b. P must prove D knew or should have known of the danger. If D did not
know of the danger, not liable for failure to warn
 If knowledge not required, then would be abs. liability
c. Cannot avoid liability by warning – Warnings are not a substitute for a
reasonably safe design
d. Most jurisdictions find no duty to warn of obvious dangers
e. Allergic Reactions and hypersensitivity – warnings are required
f. Adequacy of warning is jury question
g. Should the extent of expertise of user be taken into account? Most
jurisdictions employ some form of the “sophisticated user” defense in
failure to warn cases
h. Learned Intermediary Rule – when product passes from professional
(doctor) to consumer (patient), the warning must be adequate as to the
professional
i. Read and Heeded – P entitled to presumption that the user would have
read and heeded an adequate warning
j. Post Sale Duty to Warn – some courts impose duty to warn about risks
that develop after the sale (not in MS)
k. Post Sale Duty to Recall – Few courts have extended post sale duty to this
area.
C. Proof
1. P has BOP by POE in strict liability tort cases
a. Mismanufactured Defect – P must provide enough evidence that a
reasonable juror could conclude that there probably was a defect and the
defect probably existed when the product left the manufacturer

Judge must ask question: Could a RPJ conclude that the product was
probably defective and the product probably contained the defect
when it left the manufacturer.
b. Design Defects – P must go through risk utility analysis and show that
there was a feasible design alternative (negligence cases?)
c. Warning Defect – Must prove that reasonable, prudent manufacturer
probably would have given better warning (negligence?)
2. Products liability cases are battleground for experts
3. Subsequent Remedial Measures – Evidence inadmissible
a. Don’t want evidence of manufacturer changing design – courts want
manufacturer to improve products w/o worrying about P bringing it up as
proof of culpable conduct
4. Violation of Safety Statute or Regulation – most jurisdictions provide that
violation of a product safety regulations makes the product defective as a
matter of law (parallel of negligence per se)
D. Defenses
1. Contributory negligence – Negligence of P was also a cause of the injury
a. Traditional – Contributory negligence was not a defense in product
liability law (no longer the law)
b. Majority – Contributory negligence is a partial defense to strict liability in
tort cause of action. Comparative negligence rules apply
 MS has never stated that contributory negligence applies in strict
liability tort actions, but most jurisdictions have, and MS would
probably follow if faced with the question.
c. P’s negligence in failing to discover a defect or guarding against the
possibility of a defect is not a defense
 Most jurisdictions do not impose duty to inspect, however, if open &
obvious then P should see it.
2. Assumption of Risk – most courts allow assumption of risk as a complete
defense to products liability action (not merged with contributory negligence)
a. MS – Assumption of risk a complete defense to products liability action
(merged w/ contributory negligence)
3. Misuse of Product – often treated as a matter of defense
a. Misuse must be unforeseeable to be complete defense
b. A foreseeable misuse can be considered contributory negligence (partial
defense)
c. Misuse not common as a defense b/c comes up at other points in trial)
4. Federal Preemption – Where congress has completely regulated an area (such
as cigarette manufacturers), the states are preempted from imposing liability
under their own state product liability law.
a. Where Congress has not made its intent clear, some claims may be
preempted while others may not be.
 Ex. – Cippolone v. Liggett Group, Inc. – state tort law claims for
failure to warn preempted, but claims for breach of express warranty
would not be
b. Governmental Standards – Evidence of compliance with a governmental
standard is allowed for jury to consider, but is in no way conclusive
E. Defendants Other than Principal Manufacturer
1. Retailers/wholesalers – P may recover from anyone in original chain of
distribution
a. Reasoning:
o
Retailer should bear loss b/c he gains profit
o
Least cost avoider (seller bears loss easier than consumer)
o
Exert pressure on manufacturer
o
Manufacturer chooses not to sell product
b. A retailer is entitled to indemnity from the manufacturer and can 3rd party
the manufacturer into the lawsuit (In MS, indemnification includes
damages, cost of litigation, reasonable expenses, and attorney’s fees)
2. Used dealers – no strict liability b/c outside the original chain of production,
marketing, and distribution
3. Occasional seller who does not hold himself to have any knowledge or skill in
the commercial sense will not be subject to strict liability in tort
4. Lessors and Bailors of Chattels are liable for strict liability in tort (rental car)
5. A manufacturer of Component Parts or Raw Materials is subject to strict
liability in tort b/c he is in the original chain
6. Builders of Real Property – subject to strict liability in two categories
a. Builder puts product in the house – in original chain and is liable
b. Builder builds defective house – strictly liable under breach of implied
warranty of habitability
o
Subject to Statute of Repose Defense – Suit must be brought
within 6 years of completion of house
7. Lessors of Real Property – Majority does not impose strict liability
a.
Minority impose SL on landlords for injuries
caused by latent defects in the premises
E. Services – no strict liability for services, must show negligence
1. Courts will not apply strict liability if the transaction is basically a service,
with only an incidental transfer of goods.
2. Licensors/Franchisors – Strict liability extends to these if the
licensor/franchiser retains the right to control the quality of the product
3. Endorsers – no strict liability
4. Blood, blood products, and human tissue – no strict liability (usually
exempted by statute)
5. Charts/Maps – maker subject to strict liability if defective
6. Books and Games – strict liability does not extend to ideas and expressions in
a book or game
7. Hybrid Situation? – Look to predominant factor (transfer of goods vs. service)
F. Harm Other than Personal Injury
1. No Recovery for pure pecuniary loss – products liability developed to provide
compensation to plaintiffs who suffered personal injury
G. Miss. Code Ann. § 11-1-63 Products Liability Suits
1. Applies to “any action for damages caused by a product” no matter what name
you give action (no recovery for damage to product itself)
a. Manufacture is liable if P proves by Preponderance of Evidence that at
time product left control of manufacturer:
(i) 1 – Deviated in material way from the manufacturer’s specs, or
2 – Failed to contain adequate warnings, or
3 – Designed in defective manner, or
4 – Breached an express warranty, AND
(ii) Unreasonably dangerous to the consumer AND
(iii)Unreasonably dangerous condition proximately caused injury
b. Product not defective if harm caused by inherent characteristic of
product
c. (i) In actions of inadequate warnings, manufacturer not liable if P
does not prove by POE that manufacturer knew or should have known
about the danger that caused the injury
(ii) An adequate warning is one that a RPP in similar circumstances
would have provided.
d. In any action alleging that a product is defective, the manufacturer will
not be liable if the P:
(i) had knowledge of an unsafe condition
(ii) appreciated the danger
(iii)deliberately and voluntarily chose to expose himself to the danger
e. In warning cases, manufacturer not liable if danger is open and
obvious
f. In design defect cases, manufacturer not liable if P does not prove by
POE that at time product left manufacturer:
(i) Manufacturer knew or should have known about danger that
caused injury
(ii) Product failed to function and there existed a feasible design
alternative
g. (i) A manufacturer who is found liable for defective product shall
indemnify a seller for litigation costs, any reasonable expenses,
reasonable attorney’s fees, and any damages awarded.
h. This section does not eliminate any common law defense to an action
for damages caused by a product
XIII. NUISANCE
A. Public Nuisance – An unreasonable interference with a right common to the
general public
1. Unreasonable means substantial/significant (more than the public should have
to put up with)
a. Anything hazardous to public health is a public nuisance
2. Factors (most states have statutes enumerating specific public nuisances)
a. Does the conduct substantially interfere with the public health, safety,
peace, comfort, or convenience?
b. Is the conduct prohibited by statute, ordinance, or regulation?
c. Is the conduct of a continuing nature or has it produced a long lasting
detrimental effect on a public right?
3. Recovery for Public Nuisance – In order for a private person to recover
personal damages or get injunction for a public nuisance, the private person
must show that they suffered damages different in kind from the general
public
B. Private Nuisance – An act that causes an unreasonable substantial impairment in
an owner’s right to use and enjoy the land
1. Interest Protected? – Right of individual not to have property substantially
impaired
2. Who can bring the action? – Restricted to contemporaneous neighbors
a. Not allowed b/w buyer and seller b/c buyer had opportunity for inspection
and discounted price
3. Basis of Liability – A private nuisance action must have a basis of liability
a. Negligence – D failed to exercise reasonable care to avoid the interference
b. Strict Liability – The activity poses extreme danger to P’s use and
enjoyment of his property.
c. Intentional – D’s conduct is intentional if:
o
D meant to invade the protected interest (rare)
o
D knew it was substantially certain that the protected interest
would be invaded (knew of probability)

Upon notice of interference, if the D continues with the
activity, his conduct becomes substantially certain to invade the
interest
4. Value of the D’s activity to the community
a. Majority view – the jury can find a nuisance and require payment of
damages even when the utility outweighs the harm if:
o
Harm is serious
o
Payment of damages will not force the D out of business
b. Minority view – If jury finds utility outweighs the harm, cannot find
nuisance
5. Hypersensitivity – General rule is that harm must be of a kind that would be
suffered by a normal person in the community
6. Interference with support of Land – Removal of “naturally necessary support”
from P’s property causing subsidence of land in its natural condition gets strict
liability, no showing of fault required
a. No subsidence b/c of artificial addition but would have without – liability
may still exist, but requires showing of negligence
7. Zoning – When city had designated area for operation of particular type of
business, then normal operation of that business is not a nuisance
8. Coming to the Nuisance – Majority rule is that the P is not barred from
recovery for public or private nuisance simply b/c he “comes to the nuisance”
by buying property adjoining it.
a. If injunction is granted to D b/c P came to nuisance, P may have to
indemnify D for cost of relocating
b. Not an absolute defense, only factor to be considered (should balance
equities)
9. Damages
a. Injunction – court order commanding or preventing an action
o Old rule – If P could show that D’s conduct caused a private nuisance
and substantial damage, an injunction was granted.
o Boomer Rule – An injunction will not be granted if the economic
benefit of the business outweighs the damage (will award permanent
$$ damages)
o Modern trend – “balancing the equities” – most courts today do not
take a categorical position on whether to grant an injunction, instead,
they look to an equitable solution
b. Money Damages
o Normal – If court determines P has suffered substantial damages, will
award damages for decreased enjoyment of property up to present time
i.
Damage is ‘substantial’ if:
1.
Offensive to a person of ordinary sensibilities
2.
Any property damage is considered offensive
o Permanent damages – Damage for decreased value of property, both
present and future, when injunction is not awarded b/c utility
outweighs harm
i.
Creates an easement for the right to use P’s property (i.e. –
easement to pollute) inverse condemnation
C. Defenses
1. Contributory Negligence – Is a defense if basis of liability is negligence, but
not if basis is intentional
2. MS § 95-3-29 – Agricultural Nuisance
a. Applicable to crops, livestock, poultry, and forestry
b. Applies to public and private nuisance, however, Weems thinks court
would overturn public portion to allow suits v. parties endangering the
public interest
c. If nuisance has existed for 1 year or more, there is an absolute defense to a
nuisance claim
o Effect is to create a 1 year right of prescription for agricultural
operations
3. No difference in kind defense for private nuisance
XIV. DEFAMATION
A. 2 Part Test
1. Interest Protected? Right of person not to have his/her reputation damaged by
false statements
a. No cause of action if damage someone’s reputation by telling truth
2. Basis of Liability?
a. Common Law – strict liability
b. Modern (defined by Supreme Court) - ???????
B. Common Law
1. 2 Causes of Action
a.
Slander – spoken
b.
Libel – written – considered more important and serious b/c has
potential to reach far more people
2. Prima Facie Case (what P must prove) – Publication of false and defamatory
statement of fact that caused damages
a. Publication – Communication of defamatory words to some 3rd party
o No cause of action if P is responsible for publication
b. False – P must prove that comments are false (change from CL to present)
o If statement is substantially true (only some details wrong), no cause
of action
o P must prove the specific charges are false, D cannot counter with
proof of general bad character
c. Defamatory
o Traditionally, defamatory if publication exposed the person to distrust,
hatred, contempt, or ridicule
o Modern view – statement is defamatory if it damages a person’s
reputation
o Who can be defamed?

Any living person

Group
a) Large – no member can bring suit even if comment is inclusive
b) Small – Any member can bring suit if all are referred to

Corporation – May maintain cause of action for
defamation that casts an aspersion upon its honesty, credit,
efficiency, or other business character (even true for charitable
organization not operated for profit)
d. Statement of Fact – Look to substance over form when determining
whether fact or opinion
o Does the statement state or imply the existence of a defamatory fact to
a reasonable reader?

Yes – cause of action exists

No – no cause of action
e. Special Damages – SLANDER ONLY – some sort of pecuniary loss
o Slander per se – 4 categories where no proof of special damages req’d:

Imputation of a major crime – crime involving moral
turpitude


Loathsome disease (AIDS?)
Business, Trade, Profession, or Office – will affect
business

Serious sexual misconduct
3. Broadcast defamation – libel or slander?
a. Courts have treated as libel b/c of potential to reach so many people
b. Many states have statutes that make this sort of defamation slander
4. Extent of D’s Liability
a. Original Rule – D was only liable for damages due to his own publication
and was not liable for repetition by others
b. Expanded Rule – Some courts also hold the original publisher liable for
damages due to a repetition that might reasonably have been anticipated
5. Statute of Limitations
a. Single Publication Rule (maj) – The publication of a book, periodical, or
newspaper containing defamatory matter gives rise to only one cause of
action. The cause of action accrues at the time of the original publication
b. Discovery Rule (MS) – One year statute of limitations based on the rule
that the cause of action accrues when D discovered or reasonable should
have discovered the publication
6. Privileges – (affirmative defenses)
a. Absolute Privilege – Some activities are deemed so important to society
that they are free from liability for defamation
o Judicial proceedings – What is said in court, pleadings, etc., as long as
relevant to the case, is privileged (reporters have privilege to report
this info)
o Legislative proceedings – Everything said in course of legislative
proceedings is privileged
o Public officials

Federal – Privileged as long as w/in the scope of
official’s duties

State – Same as federal, but usually limited to higher
ranking officials (lower ranking officials get qualified privilege)
b. No privilege – P must prove publication of false or defamatory statement
of fact
c. Qualified privilege
o When does qualified privilege exist?

D had a legitimate reason for making the
communication

D was acting in the discharge of a public or private duty
o If D can assert qualified privilege, P must prove abuse of privilege

Majority applies a negligence standard for abuse
a)
Consider such factors as belief in the statement,
whether the information was volunteered, who the info was
communicated to, and the nature of the statement

Minority rule for abuse
a)
D had actual knowledge that the statement was
false
b)
D acted with reckless disregard for the truth of
the statement
c. Whether a privilege exists is decided by the judge, whether it is abused is
decided by the jury
C. Supreme Court’s involvement in Defamation
1. New York Times v. Sullivan
a. Created new qualified privilege for anyone who publishes a defamatory
statement about a public official in the performance of a public duty
o In order to prove abuse of this privilege, P must prove “Times Malice”

Knowledge of falsity, OR

Reckless disregard for the truth
o Negligence not enough
b. Why did the SC create new qualified privilege? To protect against self –
censorship of the media
c. What does reckless disregard mean? – must prove that D had serious
doubts as to the truth of the publication, in fact entertained serious doubts
o Very hard to prove
d. When will D have this privilege, other than when writing about public
officials? – extended to public figures and any matter of public interest
2. Gertz v. Welch
a. Created dichotomy, dividing people in to public and private persons
o Why? B/c unlike private persons, public persons become public
voluntarily and have a better opportunity to respond in kind
b. Who is pubic? (question of law – judge decides)
o Public official – occupy some office (elected or appointed)
o Public figure – 2 groups:

Universal public figure – Henry Kissinger e.g. (not very
many)

Vortex public figure – someone known to the public
with regard to particular issue – must be controversy and person
must have voluntarily become involved
o In determining whether P is voluntary public figure, 5 elements D
must prove:

P has access to channels of effective communication

P voluntarily assumed role of prominence in the public
controversy

P sought to influence the resolution of controversy

Controversy existed prior to publication of defamatory
statement

P retained public-figure status at time of alleged
information
c. Burden of proof – private person does not have to prove Times Malice
3.
4.
5.
6.
XV.
o BOP left up states, majority impose a negligence standard (including
MS)
Punitive Damages
a. Private person in a public interest – Only get actual damages (pecuniary +
injury to reputation and emotional distress) can recover punitive damages
if can prove Times Malice (Gertz)
b. Private person in private matter – P can recover punitive damages without
proving Times Malice, but will probably still have to prove gross
negligence (Dun & Bradstreet)
Burden of Proof of Falsity
a. At CL, D had burden of proof when asserting truth as an affirmative
defense, SC decisions have shifted burden of proving falsity to P
o Why? If truth cannot be proven, then should err on side of free speech
in order to avoid self-censorship (allow unprovable but true things to
be published)
Opinion
a. Court has adopted analysis to determine whether statement is fact or
opinion
o Specific language
o Whether statement is verifiable
o General context of the statement
o Broader context in which statement appeared
b. Constitution doesn’t require an artificial definition of opinion
o Statement is actionable if it is SOF of can be reasonably implied as
fact
Privilege
a. Absolute Privilege – same as CL
b. Qualified Privilege
o Public – Proof of ‘Times Malice’ will destroy any qualified privilege
o Private – dependent upon jurisdiction

Some states require showing of ‘Times Malice’, while
others only require showing of negligence
PRIVACY – (4 separate causes of action)
A. Appropriation of Name or Likeness
1. The use of someone’s name or likeness for commercial purpose without
person’s consent
2. Damages – nominal damages and injunction
3. Exemption – pictures in public places or newspaper pictures
B. Intrusion upon Solitude or Seclusion
1. A highly offensive intentional invasion of another person’s seclusion or
private life
a. Ex. – eavesdropping, wiretapping, bugging, persistent tele. calls, peeping
tom, searching woman’s purse
C. Public Disclosure of Private Facts
1. 4 Elements:
a. Public disclosure
b. Fact was private and not generally known prior to disclosure
o As matter of law, facts contained in public records are not deemed as
private for this cause of action
c. Disclosure must be highly offensive to person of ordinary sensibilities
d. Disclosure is not something of legitimate public interest or concern
2. Breach of Confidence – Person entrusted by another with confidential info
may owe an obligation not to disclose
3. Constitutional Question – Court has not ruled whether truthful publications
(although embarrassing) are automatically protected.
a. Media has argued that 1st amendment does not permit recovery for
disclosure of truth.
b. Publication of truth v. disclosure of true fact (emabarrasing)
D. False Light
1. Published false statement of fact that only causes embarrassment, not damage
to reputation, bring false light cause of action instead of defamation.
2. Burden of Proof (same as defamation)
a. Public Figure – knowledge of falsity or reckless disregard (“Times
Malice”)
b. Private Figure – negligence is general rule – apply standard of state
XVI. MISUSE OF LEGAL PROCESS
A. Malicious Prosecution (criminal)
1. Interest protected? Right of person not to be maliciously prosecuted
2. Conduct? Intentional and negligent
3. 5 Elements:
a. D instituted criminal proceedings or caused them to continue against P
o Focus on what happened prior to proceedings issued
b. Termination of the proceedings in favor of P
o Ex. - acquittal, abandonment of proceedings by prosecution, thrown
out for lack of probably cause
c. D had no probable cause to have P prosecuted
o Negligence question – would a RPP knowing what D knew have
concluded that P was guilty of crime
d. Malice in instituting the criminal process
o Can infer from lack of probably cause
o Motive other than to bring wrongdoer to justice
e. Damages (minority)
o Humiliation, damage to P’s reputation, financial expenses
o Can amount to a lot, large damage awards not uncommon
4. Suit cannot be filed until criminal proceedings have ended
5. Law permits D to raise issue that P was guilty of crime even though trial
ended in P’s favor
B. Malicious Civil Prosecution
1. Elements (same as criminal)
a. D instituted suit against P
b. Suit terminated in favor of P
c. Lack of probable caused
o Difficult to prove b/c civil matters arise from CL and case law, not
statutes
d. Malice – bring suit for another reason than collecting from someone who
was negligent
2. Minority of jurisdictions add another element to both malicious prosecution
causes of action: had to have an injury to reputation, deprived of liberty, or
property must have been damaged.
a. Not a problem for malicious prosecution, but sometimes hard for civil
prosecution
b. Majority (MS) do not require this element
C. Abuse of Process
1. Available when a person has had process issued and attempted to use it to
ceoerce or blackmail someone.
2. Focus on what happened after to proceedings issued (MS)
3. Must prove that D
a. ulterior motive in having process instituted
b. an improper act in use of process
XVII. MISREPRESENTATIONS
A. In General
1. Most cases involve D saying or writing something that is not true that causes
P to sustain some loss after hearing or reading it
2. Many misrepresentation cases are brought under other tort causes of action:
a. Ex. – malpractice (“you do not have cancer”); negligence (signal car to
pass when another is coming)
b. Usually involve personal injury or traumatic property damage
3. True misrepresentation cases involve business deals with pure pecuniary
loss
4. The law provides other remedies – breach of contract action, suit in equity to
rescind the transaction, action for restitution or unjust enrichment
B. Concealment and Nondisclosure
1. Not separate causes of action; they are ways in which fraud can be committed
2. Bare nondisclosure – no liability as long as do not actively conceal or prevent
P from acquiring information
3. If D actively conceals a defect, P can sustain a cause of action
4. Vendor is liable for pecuniary loss to the person whom he intends or has
reason to expect to act or to refrain from action in reliance upon the
misrepresentation or concealment (no privity of contract required)
5. Elements of concealment: (modern trend)
a. Vendor knows of defect AND
b. Purchaser could not discover defect through the use of reasonable care
AND
c. Defect is material (substantial and significant) AND
d. Vendor does not disclose
C. Basis of Liability (causes of action)
1. Fraud/Deceit – Interest protected is person’s right not to be cheated in a
business transaction; protects against intentional conduct
a. If P can prove fraud, he is entitled to the benefit of the bargain
b. P must prove that D did not honestly believe what he said
o Scienter – state of speakers mind – absence of honest belief and intent
to mislead
o Hardest element to prove
o One can infer from gross negligence that there was no honest belief
o Must prove by clear and convincing evidence
c. Restatement § 526 – Misrepresentation is fraudulent if maker:
o Knows or believes that the matter is not as he represents it to be, OR
o Does not have confidence in the accuracy of his representation, OR
o Knows that he does not have the basis for his representation
d. Once scienter is established, D’s motive does not matter
2. Negligent Misrepresentation
a. Did D have a duty to use reasonable care when giving the information to
P?
b. 4-Part Test:
o Knowledge that the info desired for a serious purpose
o Knowledge that P intends to rely and act upon it
o Knowledge that if false, P will be injured in person or property
o There must be a special relationship b/w parties (one has right to rely
upon the other for info and the other owes a duty to give with care)
c. If duty found, then case is like any other negligence case
3. False information given in book
a. Products liability does not apply to intangible products (info in book)
b. No strict liability for information in book
c. Does publisher have duty to investigate accuracy? No, but author does
o Under § 311, author would be liable – one who negligently gives false
info to another is subject to liability for physical harm caused by action
in reasonable reliance upon the info
4. D is liable where there is a duty to use reasonable care, would a RPP rely on
the opinion?
5. Minority of jurisdictions recognize strict liability misrepresentation, most
courts require proving fraud (i.e. negligence)
a. Damages recoverable under SL are limited to “out of pocket” damages
D. Third Parties – Negligent Misrepresentation
1. In order for P to recover, must be relationship so close as to approach privity
2. Elements for D to be held liable:
a. D must be aware that the info was for a particular purpose
b. in furtherance of which a known party was intended to rely
c. there must have been some conduct on the part of D linking them to that
party, which evinces D’s understanding of that party’s reliance
3. D is liable to any foreseeable P (no knowledge required)
a. Policy reasons: incentive for potential D to be careful, D can obtain
liability insurance
b. No liability if there is a strong public policy against finding liability
o Injury too remote from the negligence
o Injury too wholly out of proportion to culpability of D
o Highly extraordinary that the negligence would have brought about the
harm
o Recovery would place an unreasonable burden on D
o Recovery is too likely to pone the way for fraudulent claims
o Recovery would enter a field that has no sensible or just stopping point
E. Third Parties – Fraud
1. Third party can recover if they can prove fraud in regard to basis of belief
(what D intended)
2. Scope of liability is larger than for negligent misrepresentation b/c of moral
culpability
3. Some jurisdictions refuse to apply doctrine of transferred intent to the cause of
action, which results in a smaller scope of liability
F. Reliance (Fraud & Negligent Misrepresentation)
1. To recover, P must prove he relied upon the misrepresentation in entering the
deal (pure reliance)
2. Reliance is the proximate cause of misrepresentation cases
a. Cause in fact – P would not have entered into deal “but for” D’s
misrepresentation
b. Legal Cause – Reliance must have been justifiable/reasonable
3. P cannot rely on misrepresentation that P ought to know was untrue,
obviously false – not reasonable
4. P always required to act reasonably
5. P not justified in relying on: opinion, prediction, law
G. Opinion
1. CL rule for fraud, misrepresentation must be a statement of existing fact,
cannot be a statement of opinion
a. Indefiniteness and vagueness in statement should alert P that it is an
opinion
b. Not reasonable for P to rely on statements of prediction or future
2. Modern View – Sometimes it is reasonable to rely on statements that are, at
least in part, statements of opinion
a. Key factor in deciding whether reliance is reasonable is equality of parties
b. When parties do not stand on equal positions, it can be reasonable to rely
on a statement of opinion
c. Ways to be unequal in position:
o D knows more about the subject matter of the bargain
o P may be in a worse position to get information
o P may be less experienced in the business
d. Where D holds himself out have superior knowledge, it may be reasonable
for P to rely
e. “Puffing” will not sustain a cause of action for fraud or neg.
misrepresentation b/c R/ people do not rely on this type of language.
H. Law
1. Statements of law by non-lawyers are not actionable as misrepresentations
2. Policy reasons: everyone is assumed to know the law, but no one does
3. Restatement – When two persons know facts, if one makes statement of law,
then it is not reasonable for the other to rely. However, when facts are only
known by one person and that person makes a statement of law, that
misrepresentation is actionable (other person justified in relying)
a. Policy reason – inequality of position
I. Prediction and Intention
1. Statements of prediction of future events are not reasonable for P to rely on
and are therefore not actionable as misrepresentations.
2. If P can show D made a statement of present intent but did not intend to do the
act when the statement was made, then statement becomes a statement of
existing fact
a. P must prove D said it and never intended to follow through with the
action
3. P can get around statute of frauds if can prove fraud:
a. D said it
b. D knew it was a lie at time of saying it
c. D never intended to do what he said
d. Note: hard to prove, but not impossible
J. Damages
1. If P can prove fraud, has better chance of getting punitive damages than any
other tort cause of action
a. Also can get more compensatory damages in states that follow “benefit of
bargain rule”
2. Benefit of Bargain Damages – Difference b/w actual value and represented
value
a. 2/3 of states follow (including MS)
b. Ex.: Actual value of property (AV) = $10,000
Price Paid (PP) = $15,000
Represented Value (RV) = $18,000
BOB = RV – AV  $18,000 - $10,000 = $8,000 in damages
3. Out of Pocket Damages – What P actually lost, difference b/w actual value
and price paid
a. Ex.: AV = $10,000
PP = $15,000
RV = $18,000
OP = PP – AV  $15,000 - $10,000 = $5,000 in damages
XVIII. INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIPS
A. Injurious Falsehood
1.
Close association to defamation
a. Publication to third person of false statement of fact that damages P’s
financial interests (business, property, or other pecuniary interest)
b. Does not damage P’s reputation – difference from defamation
b. AKA – Slander of Title, Trade Libel, & Disparagement
2.
Elements:
a. False statement calculated to damage pecuniary interest of P
b. Publication to third person
c. “Malice” in the publication
o Liberal view – show falsehood was published (close to SL)
o Ill-will or knowledge
o Restatement – (same as defamation)

Public person - knowledge of falsity, reckless disregard
(“Times Malice”)

Private person – knowledge of falsity, reckless
disregard, or possibly negligence
d. Special damages, in form of pecuniary loss
o Old Rule – P had to be specific, name people he lost business from
o Modern tendency to allow showing of loss by general evidence
3.
Slander of Title – casting doubt to whether P has good
title to piece of property (Ex. – filing a bunch of deeds on someone’s title)
B. Intentional Interference w/ Existing Contract
1. ¶ must prove interference was intentional and improper, either by motive or
means
a. Competition is not a proper motive
1.
2.
3.
4.
5.
6.
b. if ¶ can prove that interference was intentional and competition was
motive, they will win
A third party intentionally causes someone to breach an existing K
Policy reasons for this cause of action
a. Discourage people from interfering with contracts
b. Person breaching may not be able to pay damages
Burden of Proof – P must prove
a. D had knowledge of P’s contract
b. D intentionally caused other party not to perform
c. P suffered damages
o Possible to recover punitive damages
No cause of action for negligent interference with contract
Privileges – Some activities are deemed so important to society that they are
free from liability
a. Achieving political ends or rights
b. Protecting D’s own interest
c. Protecting D’s property interests
Competition to better D’s position is not a justifiable reason (privilege) to
induce someone to breach a K
C. Intentional Interference w/ Prospective Advantage
1. A third party intentionally causes P not to be able to do business with
someone in the future
a. Contracts terminable at will included in this cause of action
b. Competition is a proper motive
2. Burden of Proof Analysis (both causes of action) – P must prove
a. Intentional interference w/ prospective advantage that caused damages
o D had knowledge of P’s contract
b. Improper interference – two ways
o Improper Motive (most important) – desire to injure financially, OR
 Competition is proper motive for prospective advantage
o Improper Means – violence, threats or intimidation, deceit, fraud, or
misrepresentation, bribery, unfounded litigation, defamation or
disparaging falsehoods
 Possibly violation of rules of ethics for particular profession
 Motive can be proper even though means are not, and vice versa
 Securing Constitutional right is proper motive for both causes of
action
3. Restatement – focuses on factors to consider whether conduct is “improper”;
groups motive and means together
a. TEST Factors to consider whether conduct is improper
o Nature of actor’s conduct
o Actor’s motive
o Interests of other with which actor’s conduct interferes
o Interests sought to be advanced by the actor
o Social interests in protecting the freedom of action of actor and
contractual interests of others
o Proximity of actor’s conduct to interference
o Relationship b/w parties
D. Alienation of Affection
1. Cause of action whereby P (usually spouse) contends that third person
intentionally destroyed/alienated another’s affections toward the P
a. Third party can be lover, in-law, friend
b. Interest protected – right of person no to have his/her relationships w/
spouse intentionally destroyed by someone else
2. Burden of proof analysis
a. Alienation was intentional
b. Improper interference – split of authority concerning this element
o Marriage is existing K – competition is improper motive
o Marriage is K terminable at will (more progressive states) –
competition is proper motive
3. Many jurisdictions have abolished this cause of action – not MS
4. Cause of action does not exist for children
5. Difficult for P to prove cause in fact (“but for”) element
E. Criminal Conversation
1. CL cause of action against third person who commits adultery w/ your spouse
2. Abolished in vast majority of states (including MS)
a.
Rationale – P has remedy under alienation of affection
F. Loss of Consortium
1. Derivative cause of action whereby one’s spouse can recover for loss of
companionship, sexual relations, affection, etc. when D has intentionally
injured that person
2. Interest protected? – right of person not to be denied of companionship and
services of his/her spouse
a. Damages can be diminished by amount of contributory negligence of
injured person
b. Can bring any defense that you would bring against injured party
3. Collateral Estoppel – Do not have to prove liability of D if already found in
spouses tort action
a. Evidence of D winning suit against injured party is admissible in spouse’s
suit
G. Bad Faith – Refusal to Pay Insurance Claim
1. If P can show that D insurance company refused in bad faith to pay insurance
claim, P could get the contract damages and also punitive damages
2. P’s burden of proof
a. D refused to pay claim, AND
b. Bad Faith
o At first – meant insurance company did not have legitimate or
arguable reason for refusing to pay
 This meant that D had to possible pay punitive damages even if
they were only negligent (not willful or wanton conduct)
o Present Law – Bad faith means that D’s conduct was malicious, gross
negligence, willful and wanton, reckless disregard for rights of others
3. Damages
a. Contract Damages - $$ under policy
b. Punitive Damages – if bad faith
c. Actual Damages – more than contract, but less than punitive
o Recoverable when damages are foreseeable in case where policy is not
paid as should have been (emotional distress, incidental damages,
attorney fees (only those assoc. w/ this cause of action)