Torts II Outline

Damages - The sum of money the law imposes for the breach of some duty or the violation of some right. P has the burden of proving damagesthat are reasonably calculated, reasonably certain, reasonably necessary, related to the D (caused by D͛s conduct), and provable by a preponderance of evidence

1. Nominal Damages ʹ a small sum of money awarded to the plaintiff to vindicate rights, make the judgment available as a matter of record in order to prevent the defendant from acquiring prescriptive rights, and carry a part of the costs of the action. Amount is unimportant so long as it is trivial. If the statute allows, you can get attorney fees with nominal damages. Not awarded very often. 2. Compensatory Damages ʹ Intended to represent the closest possible financial equivalent of the loss or harm suffered by the plaintiff, to attempt to make the plaintiff whole again. Not taxed. 3. Punitive Damages ʹ An additional sum, over and above the compensation to the plaintiff, awarded in order to punish the defendant, to make an example of the defendant and to deter defendant and others from engaging in similar tortious conduct.

Types of Compensatory Damages

- Past ʹ those suffered between the time of the accident and litigation. - Present ʹ suffered from the start of litigation to the judgment - Future - those suffered from the judgment until the damages end

Economic Damages

- Lost Wages - Medical Expenses ʹ past, present, and future - Replacement Services ʹ money P must spend to have somebody do for them what they used to do for themselves

Non- economic Damages

- Pain and Suffering ʹ mental, emotional, and psychological suffering caused by D͛s actions. Must be some substantial moment of consciousness to get this. 2 exceptions in some jurisdictions: o Plane crash victims ʹ for the terror as the plane is falling o Catastrophic situations ʹ 9/11 - Permanent Disability and Disfigurement ʹ doesn͛t actually have to be permanent. o Disability ʹ not being able to do the things you did before the accident o Disfigurement ʹ scarring, loss of an appendage, etc.

Future Damages ʹ MUST have an expert witness to prove these

- Future Economic ʹ must be discounted back to present value. Determined by: o Life expectancy ʹ can͛t be changed by the accident itself o Work expectancy ʹ how long P would have worked before the accident - Future Non-economic ʹ not discounted back

Physical Harm to Property

- If a chattel is completely destroyed or converted ʹ damages are entire value at the time and place of the tort. - If chattel is damaged but not destroyed or converted ʹ damages are measured by the difference in value before and after the injury - If there is merely a deprivation of use ʹ damages are measured by the value of the use of which P has been deprived

Standards for review for if an award is excessive

- Shocks the judicial conscious - An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience - Maximum recovery rule - Damages are excessive if they exceed the maximum amount a jury could reasonably find.

Punitive Damages ʹ used to punish intentional conduct. NEVER awarded for negligence. Not the property of P, can be reduced or eliminated by states according to statute.

- Standard of proof is clear and convincing evidence - Wealth of D is relevant for punitive damages - Look at three things: State farm v. Campbell 1. Degree of reprehensibility of D͛s conduct 2. Ratio between compensatory and punitive damages (under 9:1 usually upheld, greater is subject to great judicial scrutiny) 3. Difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in similar cases. - Respondeat Superior in Punitive Damage cases ʹ employer can be subject to punitive damages for an employee͛s tortious act if: o Principal authorized or ratified the act ʹ Principal knew the employee͛s intentional act would take place. o If you are reckless in employing or retaining the agent o Agent committing the intentional tort is in the managerial position and acting within the scope of their employment. o Most insurance policies exclude intentional torts and punitive damages

Statutes of Limitationsʹ prescribes the time within which the action must be commenced. Acts as a complete bar to recovery if case is brought outside the period. Affirmative defense, must be pled in first response or the defense is lost. Complaint cannot be amended to include it later.

1. Set statute of limitations ʹ set period in which you can recover. Ex. 3 years from the date of the injury. Usually accompanied by a ͞discovery statute͟ that says if the claim is not known or should not have been known there is a 6 month window to discover it. 2. Accrual Statute (Majority Rule) ʹ ͞Discovery Doctrine͟ ʹ statute begins running when a reasonable person knows or should have known there is a cause of action. When under the exercise of reasonable care, P should have discovered D͛s negligence.

Tolling ʹ puts the SOL on hold, clock is stopped for a period of time. Courts allow SOL to be tolled during periods of disability. Clock pauses, doesn͛t restart. Some disabilities include:

- Minors ʹ SOL tolled until adulthood - P is mentally incompetent ʹ usually a limit on this time period. P doesn͛t have to be incompetent the day of the injury. - D fraudulently conceals the accident ʹ clock begins when the concealment is discovered. - Special relationship between P and D that in equity should toll the statute ʹ trust relationships with doctors, lawyers, other professionals. Clock stops while relationship is ongoing.

Statutes of Repose ʹ ͞Super͟ statutes of limitations. A final drop-dead statute, no tolling, no accrual. Usually found in product liability and construction cases.

Immunities ʹ affirmative defense and a complete bar to a cause of action. Doesn͛t have to be in first response, complaint can be amended to include it. Absolute defense to avoid liability so long as it is within the bounds of your immunity.

- Diplomatic Immunity - Spousal Immunity ʹ no longer exists - Parent/Child Immunity ʹnot applied to intentional torts, conduct not related to parental duties, automobile negligence. Limited to negligent supervision. 3 jurisdictions: o New York Rule ʹ child cannot bring claim for negligent supervision against parent in their parental duties. o Wisconsin Rule ʹ Abolished except in cases where it involves parental authority over a child involving discretion over food, clothing, housing, or medical treatment. o California Rule ʹ most liberal. Conduct measured by a ͞reasonable parent͟ standard of care. Consistent with negligence law. Much greater chance for a parent to be sued here. - Charities ʹ no longer immune because they carry liability insurance. Can be held in respondeat superior for employee͛s tortious acts. - Employer Immunity ʹworkers compensation prevents employees for suing their employer for damages. Employees get medical expenses, a percentage of their lost wages, and no non- economic damages. - Governmental Immunity ʹ Federal Tort Claims Act provided a limited waiver of immunity. Most states have followed it. o Municipalities ʹ often government/business hybrids. Immunity in government functions, not in proprietary. o Government Employees ʹDiscretionary function exemption ʹ immune in situations where they are supposed to use their discretion, so long the decision in question is one he has the discretion to make, and it has to do with the social, economic, or political interests of the government. Do not have immunity if they fail to follow the procedures of their department.

Vicarious Liability

Respondeat Superior - employer is generally liable for an employee͛s negligence so long as the negligence occurred within the scope of the employee͛s employment. Negligent employees don͛t transfer all liability to their employers, except in situations with government employees.

- Going-and coming rule ʹ employee is not within the scope of employment during their normal commute to and from work. o Exception (MiniMed)- when the employee endangers others with a risk arising from or related to work.If an employer makes the employee dangerous to society, it is foreseeable that the employer͛s action creates a danger.

Enterprise Theory of Liability ʹ taking employees someplace away from where they normally work and employees are commuting back to their temporary location or temporary job. Employers are vicariously liable for any harm caused by the employee.

Detours/Frolics

- Detour ʹ slight deviation, still within scope of employment (employer is still responsible) - Frolic ʹ employee abandons their job duties, employer not liable. Once frolic is ended, employee is back within the scope of his employment. - Factors to look at: 1. Employee͛s intent, 2. Nature, time, and place of the deviation, 3. Time consumed in the deviation, 4. Work for which the employee was hired, 5. Incidental acts reasonably expected by the employer, 6. Freedom allowed the employee in performing his job responsibilities.

Independent Contractors ʹ Person or business not liable for the actions of an independent contractor, EXCEPT

- Non-delegable duties - Apparent Authority ʹ employer holds the contractor out as an apparent employee, employer is liable for contractors negligence - Inherently dangerous activities ʹ if you hire someone to carry out an inherently dangerous activity, you are responsible for their negligence - Illegal acts ʹ if you hire someone to perform an illegal activity, you are responsible

Joint Enterprise

1. An Agreement ʹ express or implied among members of the group 2. Common Purpose - to be carried out by the group 3. Pecuniary Interest ʹ money interest among the members 4. Equal right ʹ to a voice in the direction of the enterprise, which gives an equal right of control

Strict Liability ʹ D must pay damages even though he neither acted intentionally or failed to live up to the objective standard of reasonable care used in negligence law.

Animals

- Wild Animals ʹ owners are strictly liable if their non-domesticated animal injures someone, so long as the injury that occurs is consistent with why that animal is considered wild. (Shark example). You can NEVER domesticate a wild animal to bring them out of this standard. - Domestic Animals (dogs and cats only) ʹ not strictly liable unless you know or have reason to know the animal has dangerous propensities. If it has dangerous propensities it is held to the wild animal standard.

Abnormally Dangerous Activities ʹ general rule is that if an activity is considered abnormally dangerous, and that activity causes damage to person or property, that person can be held strictly liable for that injury. Must prove 2 things:

- D was engaged in an abnormally dangerous activity - That activity was the proximate cause of P͛s injuries o D is only strictly liable for injuries resulting from that which makes the activity ultrahazardous

Foreseeable consequences

- One who brings onto his land something likely to do mischief if it escapes must keep it at his own peril, if he doesn͛t do so he his prima facie answerable for all damage which is the natural consequence of its escape. o Doesn͛t apply to acts of God. o If you see this on exam, mention Ted Nugent.

Contributory negligence is not a defense for strict liability. Comparative negligence is.

Factors used in determining whether an activity is abnormally dangerous

1. Existence of a high degree of risk of some harm to the person, land, or chattels of another 2. Likelihood that the harm that results will be great 3. Inability to eliminate the risk through the exercise of reasonable care 4. Extent to which the activity is not a matter of common usage 5. Inappropriateness of the activity to the place where it is carried on 6. Extent to which its value to the community is outweighed by its dangerous attributes.

Joint Tortfeasors ʹ Joinder is permitted when P͛s claim arises from ͞the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all D͛s will arise in the action. 3 scenarios for joint tortfeasors:

- 2 or more people acting in concert ʹ a person acts in concert when they aid or encourages someone else who then commits a tort. - People acting independently to cause an indivisible harm - Vicarious liability o Respondeat superior o Joint Enterprise o Non-delegable duties o Contracting for illegal or abnormally dangerous activities

Joint and Several Liability ʹ majority rule at common law, not really used anymore.

- Each D is responsible for an equal portion of liability. P can recover the whole amount from one of the D͛s, who then must sue the other D (͚s) for contribution. o Contribution- allows a joint tortfeasor in negligence cases to recover from another negligent tortfeasor any monies he paid the P above his pro rata share  Not allowed for intentional torts  Non-immune tortfeasors may not seek contribution or indemnity from immune tortfeasors  Not necessary in jurisdictions that don͛t have joint and several liability - Existed at common law with contributory negligence

Several Liability ʹ majority rule today with comparative negligence, minority rule at common law.

- Each D only responsible for his share of the damage - P bears the risk of loss for any uncollectable share - Allocation of fault among all parties, including P

Indemnification ʹ gives a joint tortfeasor the right to be fully repaid when he is vicariously liable for another tortfeasor͛s negligence

Satisfaction ʹ satisfaction of a judgment (based on settlement or jury verdict) bars action against other tortfeasors

- An unsatisfied judgment against one of several joint tortfeasors does not bar an action against the others

Release ʹ a release of a tortfeasor merely reduces the claim against the other joint tortfeasors and does not bar action against the others. Settlement - Settling with one D before trial will affect the amount the other D͛s must pay P.

Mary Carter agreements ʹ P would settle with D1 before trial, but leave D1 as a named D so D1 could testify at trial for P against other D͛s. These no longer exist.

Products Liability ʹ enforces liability on everyone in the chain of the sale, even if all possible care was exercised in the preparation and sale of the product.

Types of product defects

- Manufacturing ʹ flaw in the production. Did it conform to the manufacturer͛s design? (If no, defective) Did it come off the line the way it was intended to? (If no, defective) Only one test: o Consumer Expectation Test (CET)  Does the product do what I, an ordinary consumer, expected it to?  Is the product more dangerous that what I, an ordinary consumer, would expect it to be? - Warning ʹ seller has an obligation to warn of hazards the seller knew or should have known about at the time of sale. o No duty to warn if it is an open and obvious danger o Must warn if the foreseeable risks of harm could have been avoided by a reasonable warning and the omission of the warning renders the product unreasonably unsafe. o To analyze if there is a need for the warning:  Is there a need for a warning? If latent defects are not readily recognizable, would a reasonable person expect a warning?  Is the warning given sufficient? Must be sufficient to catch the attention of the affected persons, apprise users of the dangers, and advise how to use the product safely. Test:  E=MC^3 y E = Explicitness ʹ does the warning get the message across? How big is the font, coloring, etc. y M = Means of warning ʹ conveyance to the end user. Putting it on the box, directly on the product. Is it foreseeable users would throw away the box? y C = Comprehensibility of the language used y C = Conspicuous ʹ Was a symbol used that was not understandable to a normal user? y Clarity ʹ was the language clear, scientific or simple, straightforward? o Majority rule: adequate warning will cure a defect o Restatement 3rd: Adequate warning does not cure a defect, damages are reduced by comparative negligence because P did not heed the warning. - Design ʹ occurs when the whole product line is challenged. 3 tests: o CET  Does it do what an ordinary consumer would expect it to?  Is it more dangerous than an ordinary consumer would expect?  Doesn͛t work for: y Open and obvious ʹ product does what you would expect y Too complex ʹ defect was too complex for a consumer to have the expectation o Risk-utility (Majority Test) ʹ from O͛Brien. If risk outweighs the utility, product is defective. Balancing test of 7 factors:  Safety aspects of the product ʹ the likelihood it will cause injury, severity, gravity of the risk of harm, probable cause of the injury.  Usefulness or desirability of the product ʹ it͛s utility to the user and the public as a whole.  User͛s ability to avoid danger by the exercise of reasonable care in the use of the product.  User͛s anticipated awareness of the dangers inherent in the product and their avoidability ʹ comes from general public knowledge of the obvious condition of the product, or existence of suitable warnings or instructions.  Manufacturer͛s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility  Availability of a substitute product ʹ would meet the same need and not be as unsafe  Feasibility of the manufacturer of spreading the loss ʹ by 1. Setting the price of the product or 2. Carrying liability insurance o Reasonable Alternative Design - RAD + Risk-utility (Minority view)  Is there an alternative/better design? y Expert testimony on the cost, longevity, aesthetics, and efficiency (expert testimony), would it have made a difference? Would it have reduced the potential harm? y State of the art ʹ relevant existing level of technological expertise and scientific knowledge available and feasible at the time of manufacture.  If there is a RAD, is the product defective to the point that the RAD should have been used?  Could RAD have reduced or avoided the foreseeable risks of harm? If yes, evaluate using risk-utility.  3 EXCEPTIONS where you don͛t have to show RAD y Design violates a governmental rule or regulation y Product is grossly defective y Common experience is such that the product is defective  D͛s want to start with this test, then risk-utility, lastly CET

Breaking down a Products Liability Problem

1. D is a seller or distributor ʹ must be in the chain of commerce, not an individual 2. Product reached the consumer without substantial change 3. Product was defective 4. Product was the proximate cause of the injury o Misuse of the product ʹ D is liable for the foreseeable misuse of the product. The misuse must be foreseeable, not the injury o Read and Heed Presumption (Warnings) ʹ P says if a warning was provided it would have been read and followed. D can rebut this, must show 1. Warning was not needed Or 2. Warning was adequate or 3. P wouldn͛t have read it anyway. 5. The injury caused damages ʹ analyze compensatory damages o Past, present, future medical expenses o Lost earnings/wages and loss of future earning capacity o Permanent disfigurement and disability o Past and present pain and suffering o Future pain and suffering

Defenses

- Comparative negligence ʹ D can reduce his damages (Majority Rule) - Contributory negligence ʹ minority rule - Assumption of the risk ʹ P knew of the risk, voluntarily faced it - Unforeseeable misuse ʹ unforeseeable use by P, or an unforeseeable user - Compliance with governmental standard ʹ product met minimum standard - Substantial change in product by P - Learned Intermediaries ʹ Manufacturers have a duty to warn pharmacies and MD͛s, they warn the patient. No direct duty to the patient except in mass marketing campaigns to the public. - Design ʹ ͞open and obvious͟ may be an absolute defense, some reject it and use it as a factor in CET

Alternative Theories

1. Negligence ʹ just mention on exam, don͛t analyze 2. Breach of one or more warranties o Express Warranty  Seller representations to the buyer of the quality, performance, safety, construction or durability of a product; can be oral or written. MUST precede or accompany a sale. Cannot disclaim express warranty. y Look out for the disclaimer or ͞puffing͟ especially if it pertains to subjective matters such as aesthetics or opinion o Implied Warranty of Merchantability  Seller warrants that goods sold within the ordinary description of like goods, and are fit to be used safely for their intended purpose. Implies reasonable fitness. Seller must be a merchant; warranty is implied regardless of seller͛s statements but express usually disclaims it. Can also be disclaimed by selling an item ͞as is.͟ 3. Misrepresentation ʹ Restatement 2nd 402B remedy for any person injured due to reliance on the seller͛s misrepresentations of a material fact limited to public representations (advertisements) P must prove actual reliance.

Miscellaneous

- Used products ʹ no liability for design defects of used products unless there has been a rebuilding or remanufacturing ʹ altered or changed before reaching the consumer - Services ʹ no strict liability for service providers, they can be held negligent - Allergic Users ʹ If there are a substantial number of people who might be allergic, manufacturer might be held strictly liable for failure to provide an adequate warning. Must prove 1. A substantial amount of people could be harmed or 2. The injury is significantly dangerous (causing death or serious bodily injury) - Post-sale duty to warn ʹ most courts impose a duty to provide a post-sale warning about risks discovered after the sale. Recalls only imposed if the federal government mandates it. - Pharmaceuticals ʹ not defective if any class of persons can use it safely - Warnings ʹ General Rule is adequate warning will not cure a defect, may possibly reduce the damages because P is comparatively negligent - Food o CET (Majority View) ʹ If you wouldn͛t expect something to be in your food (i.e. a beak in your chicken noodle soup) it is defective o Foreign Natural Test (Minority View) ʹ chicken soup example. Beak is a natural product of the chicken so it͛s not defective. If glass is found in the soup, that is foreign to the chicken and it is defective.

Defamation

- 2 step analysis o Prove common law defamation  Defamatory statement was made y Pure opinion not defamatory unless based on verifiable facts y Must be considered defamatory by a significant number of reasonable people y Falsity was presumed at common law, now burden is on P to prove statement is false  About P  That was published y Can be written or oral  That proximately caused  Damages Truth is a defense. Must prove it is substantially true o Will Supreme Court allow it under the constitution?  NYT Sullivan, Gertz, Dun - Libel ʹ defamation in print. Damage is presumed. Additionally evidence could be introduced to increase damage award. Can also get punitive damages if proved at common law that statement was made intentionally with malice. - Slander o Slander per se ʹ treated like libel. CLUB  Accusing someone of criminal activity  Accusing someone of having a loathsome disease  Accusing someone of being unchaste  Accusing someone of a business wrongdoing o Slander per quod ʹ must prove 2 things  Defamatory statement made  Statement caused special damages y Must prove with specificity pecuniary losses suffered by P resulting from the adverse reaction of others y If you can prove these, you can get to the jury and prove general damages y No punitive damages here - Defamation Tests o Public Persons ʹ NYT v. Sullivan Test ʹ protected by First Amendment unless P can prove:  KRD y D knew the statement was false or made it with reckless disregard that it was false y Standard of proof: convincing clarity y Simple negligence is not KRD  Must prove the statement is false y Clear and convincing evidence  How to prove KRD y Prove D completely fabricated the story y Story is a product of D͛s imagination y Being wholly given in an anonymous call or tip y When statements are so inherently improbable. y When you have reason to doubt the person who is saying it. y The maker of the statement turns a ͞blind-eye͟ to the truth. Has the truth in front of them and ignores it.

o Private Person, Public Concern ʹ Gertz Test ʹ state has the choice between  Negligence standard and only give compensatory damages y No presumed damages  KRD standard and get punitive damages as well o Private Person, Private Concern ʹ Dun Test ʹ Supreme Court won͛t get involved  Most states use negligence standard  Could use common law if they wanted to  No punitive damages unless you show KRD. - Privileges o Absolute  Governmental figures in governmental proceedings ʹjudges, legislators, lawyers, etc. Applies during the proceedings, not outside of them. o Qualified ʹ must believe what you͛re saying is true, just so happens you͛re wrong  Statement to protect your own interests ʹ must honestly believe the statement is true, must be related to the other person͛s original motivation for defamation, must be measured (can͛t bring a gun to a fistfight)  Statement to protect third parties ʹ Courts asks 1. Is there a relationship that would give rise to the person wanting you to defend them? Is the defense requested?  Statement to protect common interests ʹ must be made in good faith, on a subject he has interest in that is important to the group. o Fair and accurate reporting privilege  For people reporting on governmental proceedings if the statements are fair and accurate of what was said - Remedies o Damages  General Damages  Special Damages o Retractions ʹ usually governed by statute. You can limit damages to actual compensatory damages with an appropriate retraction. Retraction must be 1. Timely, and 2. Complete. - Group libel ʹ group must be 25 people or less. Look at: o Size of the group o Is the statement false?

Common law defamation terms

- Defamation on its face ʹ it is obvious. ͞Sutton likes hookers.͟ - Inducement ʹ extra facts needed to put in the petition to explain why the statement is defamatory - Innuendo ʹ The explanation that the meaning is defamatory. - Colloquium ʹ Need extra facts to identify who the statement is about (P), try to spell this right on the final - Group libel ʹ Need extra facts to establish the group necessary for group libel

Privacy ʹ not an economic tort like defamation, deals with hurt feelings

- Intrusion upon seclusion ʹ one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns is subject to liability if: o The intrusion is highly offensive to a reasonable person  Courts look at reasonableness, ͞zone of privacy͟ for public people is much smaller o Appropriation of P͛s name or Likeness ʹ one who appropriates to his own use or benefit the name or likeness of another is liable to the other for the invasion of his privacy. One of the hardest torts to prove. This tort dies when the person dies.  Exception ʹ Newsworthy ʹ if you write an unauthorized biography, and say it is unauthorized, no tort.  Violation of the right of publicity ʹ economic side of this tort. For something a person would have been paid for. The right to this transfers to the estate when a person dies. y If they don͛t have a recognizable, valuable name it is usually not a tort. o Placing P in a false light before the public ʹ ͞watered down defamation.͟ Include this in a defamation analysis.  D must publicize false facts about P that a reasonable person would object to. y If it is a matter of public concern, must prove KRD. y Publication must be to a significant number of people o Public disclosure of private facts  Publicity ʹ to a significant number of people  Private facts ʹ true or false. Really must be private  That are highly offensive to a reasonable person  Not of a legitimate public interest

Breach of Confidence ʹ gives rise to our ethical obligations as attorneys. You have a duty to keep things told to you in your profession in confidence if you are a professional: lawyer, doctor, accountant, priest, etc.

- But, you have a right to protect the public if you obtain information that the person may cause harm to themselves or a third party.

Misrepresentation

- Fraudulent Misrepresentation ʹ maker: o Knows or has reason to knowthe matter is not as he represents it to be, o Does not have the confidence in the accuracy of his representation that he states or implies, or o Knows that he does not have the basis for his representation that he states or implies o Damages: The benefit of the bargain - Negligent Misrepresentation ʹ One who negligently gives false information to another is subject to liability for physical harm caused by action by the other in reasonable reliance upon such information, where such harm results o To the other, or o To such third persons as the actor should expect to be put in peril by the action taken.

Such negligence may consist of failure to exercise reasonable care

o In ascertaining the information, or o In the manner in which it is communicated Damages: compensatory

- Innocent Misrepresentation o May be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. o Damages: rescission of the K, minority jurisdictions get compensatory

Accountants Liability to third parties

- Ultramares o Accountants must have been aware that the financial reports were to be used for a particular purpose or purposes, o In the furtherance of which a known party or parties was intended to rely, o There must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants͛ understanding of that party or parties͛ reliance. - Restatement ʹ third persons who can sue accountants limited to people: o Person or persons for whose benefit and guidance the accountant intends to supply the information or knows the recipient intends to supply it, and o Through reliance upon it in a transaction that the accountant intends the information to influence or knows the recipient so intends so in a similar transaction - Credit Alliance - very limited cause of action that banks or creditors has against accountant. Most narrow, can only recover if the accountant specifically knows of the bank or creditor. - Citizens Bank -expanded, doesn͛t have to know of them specifically, just has to know they are there.All foreseeable P͛s can recover, on a case by case basis. Negligence standard. Purchasers or buyers ʹ no duty to disclose unless they are in a confidential or fiduciary relationship

Puffing ʹ sales talk. Not misrepresentation because nobody could reasonably believe it.

Fraud in the Inducement ʹ If D never intended to honor the K. Two remedies:

- Damages - Rescission

No fault automobile insurance

- Before 1972 in MI, if I was injured in an automobile accident I would have to sue the other party and prove that she is at fault. o Problem with this is you wouldn͛t be able to get their medical expenses paid for - Michigan No fault act o First party benefits ʹ must carry so much insurance for yourself to cover your own hospital bills and a percentage of your wage loss. You͛re protected even if you͛re negligent.  Pay wage loss for 3 years, and the medical expenses for a reasonable period after the accident o Third party benefits ʹ pays most of your economic damages. Must have a serious impairment of a bodily function to recover non-economic damages or wage loss for over 3 years. Reduces the amount of third party litigation. - Uninsured motorist coverage ʹ if you are hit by someone uninsured, your policy will cover your economic damages. - Under-insured coverage ʹ if you get in an accident and the other persons insurance isn͛t enough to cover your injuries, you make a claim to your own company for coverage under your under- insurance policy.

Workers Comp.

- If you are injured in the course of your employment, you receive benefits from your employer under their workers comp. policy. Even if you are negligent or your employers is not negligent. o Percentage of wage loss, medical expenses form the work-related injury, rehabilitation costs, for as long as you need them o Can͛t get non-economic damages from your employer. (Pain and suffering, permanent disability) o Intentional torts are not covered by workers comp. But the only type of intentional tort you could sue the employer for is and OCEA violation, where the employer failed to comply with a safety regulation. o Courts are very willing to find coverage

Wrongful death and survival

- England: felony merger doctrine. If you killed somebody you were put to death, so there was no wrongful death case. - Now we have 2 different cases filed by a dead persons estate (governed by statute) - Claims are brought by the administrator of the estate, usually in the same action. - Statute of limitations is set forth in the statute. Generally short, usually 6 months to a year. - When somebody dies, all their claims go into the estate o Wrongful death claim  Beneficiaries ʹ almost always are the children, the spouse, sometimes parents and dependents. Varies based on the statute in that jurisdiction.  Can recover the damages suffered by the beneficiaries for the loss of the deceased͛s life.  What damages? Varies on jurisdiction. In every jurisdiction, the economic loss suffered as a result of the death. Some courts allow loss of consortium or companionship (can be recovered by spouse or child). Some allow recovery for grief (your own pain and suffering).  Any damages recovered DOES NOT go through the estate, it goes directly to the statutory beneficiaries and is not subject to the creditors claim.  In probate situations, court must approve the settlement. Problem arises when you have different beneficiaries under the two causes, and the administrator must represent both sides. o Survival action  A case started by a P who dies during the course of that claim ʹ deceased͛s estate can be substituted in as the P and continue on the deceased͛s behalf  An action by the estate for the damages caused to the deceased ʹ must be some conscious pain and suffering to recover y Can recover the damages the dead guy suffered up until their death. y Beneficiaries ʹ money goes into the dead guy͛s estate, subject to all creditor claims, the rest is distributed out either through the deceased͛s will or if he͛s intestate through probate.