Misrepresentation, Nuisance, and Other Torts

CHAPTER 10 Misrepresentation, Nuisance, and Other Torts

OVERVIEW QUESTIONS 1. In basic terms, what is misrepresentation? a. How does misrepresentation relate to other torts? b. How is misrepresentation related to the tort of deceit? c. How does misrepresentation differ from deceit? d. What is fraud? 2. What are the three types of misrepresentation? a. b. c. 3. What are the four elements of misrepresentation? a. b. c. d. 4. Other than affirmatively making a false statement, what are the ways in which misrepresentation can be committed? a. b. c. 5. Under modern law, when is nondisclosure of a material fact considered misrepresentation? a. Can actions alone constitute misrepresentation? b. Give an example of a situation in which a seller would be obligated to disclose a material fact to a buyer. 6. Can a defendant be found liable for misrepresentation if she or he presents a half-truth? 7. What kind of obligation is imposed on a defendant as a result of sharing a fiduciary relationship with the plaintiff? 8. When is a court most likely to find nondisclosure of a fact to be misrepresentation? 9. Is a defendant liable only to those persons she or he intended to influence by a misrepresentation? a. In what three situations might a defendant be liable even if she or he did not intend to influence a particular plaintiff? (1) (2) (3) 10. Give an example of a situation in which a plaintiff might rely on the defendant’s misrepresentation because the misrepresentation occurred in the type of transaction the defendant could reasonably expect the plaintiff to engage in as result of her or his reliance on the misrepresentation. a. Give an example of a situation in which plaintiffs could recover for misstatements made in commercial documents.

11. What state of mind is required to prove intentional misrepresentation? a. When can a defendant be liable for making a statement that is merely her or his belief? 12. If a plaintiff makes an independent investigation of the defendant’s representations, can the plaintiff still be deemed to have relied on the defendant’s statements? 13. In what circumstances is a plaintiff justified in relying on a defendant’s opinion? a. b. c. 14. Is “puffing” actionable as misrepresentation? 15. Is a person justified in relying on an opinion offered by a “disinterested” party? a. Give an example of when such reliance might be justified. 16. Is one justified in relying on someone’s opinion if the person offering the opinion implies there are no facts inconsistent with that opinion? 17. Is the line between fact and opinion always a clear one? a. When might a statement regarding value of an object be classified as fact rather than opinion? 18. Are predictions typically regarded as opinions or facts? a. When might a prediction be considered an opinion? 19. Is an individual entitled to rely on another’s statement regarding her or his intentions? a. How might this rule assist a plaintiff who cannot sue on the basis of breach of contract because the defendant has claimed the contract is void on the basis of its nonconformance with the Statute of Frauds? 20. What does a plaintiff have to prove in reference to proximate cause in a suit for misrepresentation? a. When might a plaintiff have difficulty showing proximate cause? 21. Identify and describe the two methods used to compute damages in cases of misrepresentation. a. b. 22. Have the courts always allowed recovery for negligent misrepresentation? a. In what types of cases are the courts most likely to allow a claim for negligent misrepresentation? b. Can a defendant be found liable for negligent misrepresentation if she or he received no direct compensation? c. How does negligent misrepresentation differ from intentional misrepresentation in terms of the class of persons to whom the defendant is potentially liable? d. Is a defendant liable for a negligent misrepresentation if she or he is unaware of the identity of the persons to whom the representation will be made as long as she or he is aware that it will be conveyed to a limited number of people? (1) What if the people intended to be reached are not a limited number? 23. Do the courts always allow recovery for misrepresentations made innocently? a. In what circumstances will the courts hold defendants strictly liable for their misrepresentations? (1) (2) b. How does innocent misrepresentation arise in the context of product liability? 24. How is the term “nuisance” defined? a. Can the term be defined precisely? 25. What is the difference between public and private nuisance? 26. What must a plaintiff prove in a public nuisance claim? a. Must the defendant’s conduct constitute a crime? b. Is it sufficient that the plaintiff suffer the same damages suffered by the rest of the public? (1) Is the government required to prove this “special injury” element? (2) How does this “special injury” requirement affect private plaintiffs bringing claims relating to environmental hazards? c. What is the problem associated with the plaintiff’s having to prove “particular damage”? d. What have some states done to facilitate nuisance claims?

27. What must a plaintiff prove in the case of private nuisance? a. Must the plaintiff own the land on which the nuisance allegedly occurred? 28. What is the difference between a nuisance and a trespass? a. Has a nuisance occurred if nothing enters the plaintiff’s property? b. Can a plaintiff recover on the basis of nuisance even if no substantial harm occurs? 29. What constitutes substantial interference? a. Why might an abnormally sensitive plaintiff have difficulty recovering on the basis of nuisance? 30. Must a defendant intend to interfere with the plaintiff’s use and enjoyment of her or his land? 31. How do some courts determine if a defendant’s conduct is unreasonable for purposes of a nuisance claim? a. How does the Restatement (Second) of Torts determine the reasonableness of conduct? 32. What two remedies can a plaintiff recover for nuisance? a. What must the plaintiff prove in order to secure an injunction? 33. What defenses can be raised by the defendant in a nuisance suit? a. What is meant by a plaintiff “coming to the nuisance”? b. Give an example of someone who would be considered to have “come to the nuisance.” c. Is “coming to the nuisance” a complete defense? 34. Why is nuisance law experiencing a resurgence in reference to environmental claims? a. What is CERCLA? (1) Why might plaintiffs pursue nuisance claims rather than filing under CERCLA? (2) Why might defendants prefer to defend a nuisance claim rather than a CERCLA action? (3) Despite the advantages of nuisance claims, why might plaintiffs still opt to file under CERCLA? 35. What three torts constitute interference with business relations? a. b. 36. How does one commit the tort of interference with existing contractual relations? a. What must the plaintiff prove? b. Can the defendant’s interference be passive? c. Can a plaintiff recover if the contract breached is an illegal one? d. Can an at-will employee recover for this tort? e. Can a plaintiff who has entered into a contract that is unenforceable because it violates the Statute of Frauds recover? f. For what types of harm can a plaintiff recover for contractual interference? g. Can a plaintiff recover if the defendant was breaching the contract to protect her or his own existing contractual rights? h. Can a plaintiff recover if the defendant was breaching the contract in order to support some social interest? 37. What is the difference between interference with existing contractual relations and interference with prospective contractual relations? a. Give an example of how this tort can be committed by interfering with a plaintiff’s nonbusiness expectations of financial gain. 38. What are the three torts that fall under the category of misuse of legal process? a. b. c. 39. Who is the plaintiff in a suit involving misuse of legal process? 40. How does one commit malicious prosecution? a. What must the plaintiff prove? b. In what situations would a proceeding be deemed not to have concluded in favor of the plaintiff? c. What is the most difficult thing a plaintiff has to prove when alleging malicious prosecution? d. What types of people are immune from malicious prosecution suit?

41. How does malicious prosecution compare with wrongful institution of civil proceedings? a. Give an example of an act that would be considered wrongful institution of civil proceedings. b. Is it easier to prove lack of probable cause in a malicious prosecution case or in a wrongful institution of civil proceedings case? 42. Define the tort of abuse of process. a. Give an example of abuse of process. b. Is it sufficient for the plaintiff to show that the defendant had some ulterior motive for instigating a proceeding?

REVIEW QUESTIONS 1. What must a plaintiff who alleges intentional misrepresentation prove? 2. What constitutes a misrepresentation? 3. When is an individual justified in relying on another’s misrepresentation? 4. What are the differences between intentional and negligent misrepresentation? 5. What are the two ways a plaintiff might compute her or his damages upon successfully proving misrepresentation? 6. What is the difference between public and private nuisance? What are the elements of each tort? 7. What are the various ways a plaintiff might allege interference with business relations and what would the plaintiff have to prove for each of these torts? 8. What tort claims might a plaintiff bring if she or he wanted to allege misuse of legal process and what would the plaintiff have to prove in each case?

PUTTING IT INTO PRACTICE 1. A real estate agent is a client of the firm for which you work. The agent made some representations to a potential buyer about the value of a house that the buyer eventually bought. The representations later turned out to be wrong, and the buyer has now sued the agent for misrepresentation. The agent swears to you that he had no idea that his statements were erroneous and wants to know what you think the chances of a successful suit against him are. Explain to him what the plaintiff must prove depending on what type of misrepresentation she alleges he committed. What information will you need before you can assess the plaintiff’s chances of prevailing? 2. Suppose a client of your firm complains that her ex-husband, who lives in the same neighborhood as she does, continues to harass her by doing annoying and, in some cases, damaging things. Sometimes he walks back and forth on the sidewalk in front of her house, fully aware that she has clients she is working with. On some occasions, he has cornered her customers as they come out of her house and told them about other vendors that, according to him, are cheaper and more reliable than she is. Furthermore, he repeatedly threatens to call the police and tell them that she stole some expensive jewelry that he claims belongs to him even though, she says, he is fully aware that the jewelry is hers. What advice can you give her in terms of what torts her ex-husband might be committing?

KEY TERMS Define the following: abuse of process at-will employee deceit fiduciary relationship latent defect nuisance patent defect