Liability for Innocent but Negligent Misrepresentations
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Unity in Tort, Contract, and Property: the Model of Precaution
California Law Review VOL. 73 JANUARY 1985 No. 1 Copyright © 1985 by California Law Review, Inc. Unity in Tort, Contract, and Property: The Model of Precaution Robert Cootert Much of the common law is concerned with allocating the costs of harm, such as the harm caused by accidents, nuisances, breaches of con- tract, or governmental takings of private property. There are at least two distinct goals for adopting allocative cost rules: the equity goal of com- pensating victims and the efficiency goal of minimizing costs to society as a whole.' These goals in turn can be formulated as two principles: the compensation principle and the marginal principle. The compensation principle states that victims should be compensated for harm caused by others. The marginal principle states that social costs should be mini- mized by equating the incremental benefit of each precautionary activity to its incremental cost. Is the common law primarily concerned with the justice of compen- sation or the efficiency of cost minimization? Presented this way, the two principles appear to be rival theories of law.' This Article, however, poses a different question: How does the common law combine the goal of compensation with the goal of minimizing social costs? The two prin- ciples now appear as complementary, rather than rival, explanations. As a result, this Article assumes that there are circumstances in which com- pensation is required for reasons of justice and examines mechanisms t Professor of Law, Boalt Hall School of Law, University of California, Berkeley. B.A. 1967, Swarthmore College; B.A. 1969, Oxford University; Ph.D. -
Elements of Negligence Under the Tort of Negligence, There Are Four Elements a Plaintiff Must Establish to Succeed in Holding a Defendant Liable
Elements of Negligence Under the tort of negligence, there are four elements a plaintiff must establish to succeed in holding a defendant liable. The Court of Appeals of Georgia outlined the elements for a prima facie case of negligence in Johnson v. American National Red Cross as follows: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” Johnson, 569 S.E.2d 242, 247 (Ga. App. 2002). Under the first element, a legal duty to a standard of due care, the plaintiff must prove the defendant had a duty to conform to a standard of conduct for protection of the plaintiff against an unreasonable risk of injury. The duty of care will be determined by the applicable standard of care and several factors can heighten the standard of care depending upon the relationship between the parties, whether the plaintiff was foreseeable, the profession of the defendant, etc. For example, the Red Cross has a duty, when supplying blood donations to hospitals, to make its best efforts to ensure blood supplied is not tainted with any transferable viruses or diseases, such as an undetectable rare strain of HIV. A breach of the duty of care occurs when the defendant’s actions do not meet the required level of applicable standard of care due to the plaintiff. Whether a breach of the duty of the applicable standard of care occurs is a question for the trier of fact. -
Municipal Tort Liability -- "Quasi Judicial" Acts
University of Miami Law Review Volume 14 Number 4 Article 8 7-1-1960 Municipal Tort Liability -- "Quasi Judicial" Acts Edwin C. Ratiner Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Edwin C. Ratiner, Municipal Tort Liability -- "Quasi Judicial" Acts, 14 U. Miami L. Rev. 634 (1960) Available at: https://repository.law.miami.edu/umlr/vol14/iss4/8 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. MUNICIPAL TORT LIABILITY-"QUASI JUDICIAL" ACTS Plaintiff, in an action against a municipality for false imprisonment, alleged that lie was arrested by a municipal police officer pursuant to a warrant known to be void by the arresting officer and the municipal court clerk who acted falsely in issuing the warrant. Held: because the acts alleged were "quasi judicial" in nature, the municipality was not liable under the doctrine of respondeat superior. Middleton Y. City of Fort Walton Beach, 113 So.2d 431 (Fla. App. 1959). The courts uniformly agree that the tortious conduct of a public officer committed in the exercise of a "judicial" or "quasi judicial"' function shall not render either the officer or his municipal employer liable.2 The judiciary of superior and inferior courts are generally accorded immunity from civil liability arising from judicial acts and duties performed within the scope of the court's jurisdiction. -
The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. V. North Carolina
THE UNITED STATES SUPREME COURT ADOPTS A REASONABLE JUVENILE STANDARD IN J.D.B. V NORTH CAROLINA FOR PURPOSES OF THE MIRANDA CUSTODY ANALYSIS: CAN A MORE REASONED JUSTICE SYSTEM FOR JUVENILES BE FAR BEHIND? Marsha L. Levick and Elizabeth-Ann Tierney∗ I. Introduction II. The Reasonable Person Standard a. Background b. The Reasonable Person Standard and Children: Kids Are Different III. Roper v. Simmons and Graham v. Florida: Embedding Developmental Research Into the Court’s Constitutional Analysis IV. From Miranda v. Arizona to J.D.B. v. North Carolina V. J.D.B. v. North Carolina: The Facts and The Analysis VI. Reasonableness Applied: Justifications, Defenses, and Excuses a. Duress Defenses b. Justified Use of Force c. Provocation d. Negligent Homicide e. Felony Murder VII. Conclusion I. Introduction The “reasonable person” in American law is as familiar to us as an old shoe. We slip it on without thinking; we know its shape, style, color, and size without looking. Beginning with our first-year law school classes in torts and criminal law, we understand that the reasonable person provides a measure of liability and responsibility in our legal system.1 She informs our * ∗Marsha L. Levick is the Deputy Director and Chief Counsel for Juvenile Law Center, a national public interest law firm for children, based in Philadelphia, Pa., which Ms. Levick co-founded in 1975. Ms. Levick is a graduate of the University of Pennsylvania and Temple University School of Law. Elizabeth-Ann “LT” Tierney is the 2011 Sol and Helen Zubrow Fellow in Children's Law at the Juvenile Law Center. -
Specific Tort Paper Code: L-4006 Topic : Deceit Or Fraud
LL.M. IV SEMESTER SUBJECT: SPECIFIC TORT PAPER CODE: L-4006 TOPIC : DECEIT OR FRAUD The making of a representation which a partly knows to be untrue and which is intended or calculated to induce another to act on the faith of it so that he may incur damage is fraud in law. Defined in Polhill v. Walter In case of Derry v. Peek, Lord Herschell laid down rules to recognize deceit: First In order to sustain an action of deceit, there must be proof of fraud Second Fraud in proved when it is shown that a false representation has been mad (1) Knowingly (2) Without belief in its truth (3) Recklessly, careless whether it is true or false. Third If fraud is proved the motive of the person guilty of it is immaterial. To create right of action for deceit there must be a fraudulent representation and representation in order to be fraudulent must be: (1) Which is untrue in fact (2) Which defendant knows to be untrue (3) Which was intended or calculated to induce plaintiff as third person (4) Which the plaintiff or the third person acts on and suffers damages. Fraud by Agent- The fraud of an agent acting within scope of his employment is the fraud of the principal. (1) The principal knows that representation to be false. (a) He authorize the making of it. (b) The representation was made in the general course of his employment without specific authorization them principal will be held liable. (2) The Principal thinks the representation to be true. -
Damages for Deceit: a Case Study in the Making of American Common Law
\\jciprod01\productn\N\NYS\71-3\NYS302.txt unknown Seq: 1 3-JAN-17 15:23 DAMAGES FOR DECEIT: A CASE STUDY IN THE MAKING OF AMERICAN COMMON LAW EDWARD J. NORMAND* “We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.” BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS INTRODUCTION .......................................... 334 R I. GROUNDS FOR THIS CASE STUDY . 338 R II. THE INCIPIENT NEW YORK COMMON LAW . 341 R A. The Adoption of English Common Law . 341 R B. The Cases of the Diseased Sheep . 344 R 1. Jeffrey v. Bigelow & Tracy . 344 R 2. Crain v. Petrie ............................... 345 R III. POTENTIAL RECOVERIES—EXAMPLES . 346 R IV. THE BUDDING NEW YORK LAW: 1845–1918 . 348 R V. THE PIVOTAL DECADE: 1919–1928 . 350 R A. Ritzwoller v. Lurie ............................... 350 R B. Wood v. Dudley ................................. 351 R C. Reno v. Bull ..................................... 352 R D. Questions After Reno v. Bull. 353 R VI. THE GROWING UNCERTAINTY: 1930–1982. 356 R A. Forgone Legal Claims . 356 R B. The Nature of Pecuniary Loss . 358 R C. Fading Indignation with Fraud . 360 R 1. Consequential Damages . 360 R 2. Punitive Damages ............................ 361 R 3. The Wrongdoer Rule . 363 R VII. THE CONTINUING QUANDARY: 1980–PRESENT . 365 R * The author is a partner at Boies, Schiller & Flexner LLP in New York. J.D., University of Pennsylvania, 1995; A.B., College of William & Mary, 1992. Law clerk to the Honorable Joseph M. McLaughlin, United States Court of Appeals for the Second Circuit, 1997–98, and the Honorable Marjorie O. -
Misrepresentation: the Pitfalls of Pre-Contract Statements
inbrief Misrepresentation: the pitfalls of pre-contract statements Inside What makes a misrepresentation actionable? Causes of action Remedies Risk management Practical tips inbrief Introduction Prior to the conclusion of a contract What makes a misrepresentation complete the work in the stated timescale. parties will often make statements actionable? However, the statement of opinion carries with it an implied representation of fact, namely that to each other - during negotiations, There are various conditions that must be satisfied the supplier in fact held such an opinion. In an in tender documents and in a variety to make a misrepresentation actionable: appropriate context, it also carries with it an of other ways. Most pre-contract implied representation of fact that the supplier 1. There must be a statement by the statements are carefully considered. had reasonable grounds for holding that representor or his agent. The statement But sometimes statements are made opinion and perhaps also the further implied can be oral, written or by conduct. which are false or misleading. When representation that it had carried out a proper false statements induce an innocent 2. The statement must be a statement of fact analysis of the amount of time needed to (as opposed to a statement of opinion or complete the work. Proving that those implied party to enter into a contract the future intention). representations of fact were false would in consequences can be serious. principle lead to liability in misrepresentation. 3. The representation must be made to the The purpose of this guide is to representee or to a class of which the The key point is that actionable consider the litigation risks generated representee is a member. -
The Neutral Reportage Privilege in Theory and Practice
UCLA UCLA Entertainment Law Review Title When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Permalink https://escholarship.org/uc/item/0d65t53k Journal UCLA Entertainment Law Review, 17(1) ISSN 1073-2896 Author Laidman, Dan Publication Date 2010 DOI 10.5070/LR8171027133 Peer reviewed eScholarship.org Powered by the California Digital Library University of California When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Dan Laidman* I. INTRODUCTION It is an angry time in American politics. Members of Congress have disputed the President's citizenship and accused him of promoting "Nazi" policies,' an ex-President has called a Congressman racist,2 and a member of the House of Representatives publicly questioned the sanity of a constituent who compared the President to Adolph Hitler.3 Traditional media outlets have chronicled the comments and then countless websites have republished them, leading some to find a causal connection between the explosions in new media and political rhetoric.' On the local level, municipal politics continue to generate fierce disputes which often lead to allegations of slander involving public officials.5 Only now, with the collapse of the * J.D., UCLA School of Law, 2010. Many thanks to Professor Gia Lee at UCLA Law School and to Joseph Doherty, director of the school's Empirical Research Group. 1 See Andie Coller, G.O.P. 'Cranks' Dominating Debate, POLITICO, Sept. 10, 2009, http://www.politico.com/news/stories/0909/27015.html. 2 See Jeff Zeleny & Jim Rutenberg, White House is Sitting Out Race Debate, N.Y. -
The Tort/Crime Distinction As It Has Developed First at Common Law and Today in the Mass of Statutes That Regulate Virtually Every Area of Human Endeavor
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1996 The orT t/Crime Distinction: A Generation Later Richard A. Epstein Follow this and additional works at: http://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Epstein, "The orT t/Crime Distinction: A Generation Later," 76 Boston University Law Review 1 (1996). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. SYMPOSIUM THE TORTICRIME DISTINCTION: A GENERATION LATER RICHARD A. EPSTEIN* I. A CHANGE IN WORLD VIEW This Paper marks the second occasion-both in Boston, but a genera- tion apart-that I have grappled with the tort/crime distinction as it has developed first at common law and today in the mass of statutes that regulate virtually every area of human endeavor. When I first wrote about this subject in my paper Crime and Tort: Old Wine in Old Bottles,' my philosophical outlook was both deontological and libertarian. I un- derstand the first of these terms less well today than I thought I did then, but its basic import is that certain inherent qualities of actions and mental states brand them as wrongful, regardless of the consequences they bring about. As this one sentence summary indicates, the deontological ap- proach typically defines its field negatively. In general it is an- ticonsequentialist, that is, opposed to any theory that looks to the aggre- gate consequences of certain actions to determine their moral worth.2 More specifically, this approach is also antiutilitarian, that is, opposed to any theory where the consequences that count go to the gain or loss (or perhaps only the pleasure and pain) of the various individuals governed by the legal rule. -
In the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia
JOBNAME: No Job Name PAGE: 57 SESS: 1 OUTPUT: Fri Nov 18 15:05:08 2016 /journals/journal/tlj/vol23pt2/part_2 In the age of statutes, why do we still turn to the common law torts?: Lessons from the statutory prohibitions on misleading conduct in Australia Jeannie Marie Paterson* and Elise Bant† One unique feature of Australian Consumer Law is that the protection afforded by the statutory prohibition on misleading conduct is not limited to individual consumers but extends to all parties in ‘trade or commerce’. Liability under the statutory regime does not require any element of fault and offers a broad range of remedies to successful plaintiffs. One might expect a diminished role for common law torts in this context. However, while this is perhaps true of the torts of passing off and deceit, the tort of negligent misrepresentation continues to influence commercial litigation. This article explores this trend and the possible reasons for it. What has happened in Australia in regard to the statutory prohibition on misleading conduct may provide lessons in other contexts and for other jurisdictions about the relationship between the common law and overlapping statutory claims. Introduction Australia is unique among many developed economies in containing in its statutory consumer protection law, a broad and categorical prohibition on misleading conduct,1 which extends beyond protecting individual consumers to all transactions in trade or commerce and which is repeated, with some variation, in numerous accompanying statutes.2 The statutory prohibition typically applies in a wider range of circumstances than torts operating in a similar field because liability is not premised on any element of fault and does not require proof of loss or damage. -
The Expansion of Fraud, Negligence, and Strict Tort Liability
Michigan Law Review Volume 64 Issue 7 1966 Products Liability--The Expansion of Fraud, Negligence, and Strict Tort Liability John A. Sebert Jr. University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Consumer Protection Law Commons, and the Torts Commons Recommended Citation John A. Sebert Jr., Products Liability--The Expansion of Fraud, Negligence, and Strict Tort Liability, 64 MICH. L. REV. 1350 (1966). Available at: https://repository.law.umich.edu/mlr/vol64/iss7/10 This Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. COMMENTS Products Liability-The Expansion of Fraud, Negligence, and Strict Tort Liability The advances in recent years in the field of products liability have probably outshone, in both number a~d significance, the prog ress during the same period in most other areas of the law. These rapid developments in the law of consumer protection have been marked by a consistent tendency to expand the liability· of manu facturers, retailers, and other members of the distributive chain for physical and economic harm caused by defective merchandise made available to the public. Some of the most notable progress has been made in the law of tort liability. A number of courts have adopted the principle that a manufacturer, retailer, or other seller1 of goods is answerable in tort to any user of his product who suffers injuries attributable to a defect in the merchandise, despite the seller's exer cise of reasonable care in dealing with the product and irrespective of the fact that no contractual relationship has ever existed between the seller and the victim.2 This doctrine of strict tort liability, orig inally enunciated by the California Supreme Court in Greenman v. -
With Malice Toward None: a New Look at Defamatory Republication and Neutral Reportage James E
Hastings Communications and Entertainment Law Journal Volume 13 | Number 3 Article 3 1-1-1991 With Malice toward None: A New Look at Defamatory Republication and Neutral Reportage James E. Boasberg Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation James E. Boasberg, With Malice toward None: A New Look at Defamatory Republication and Neutral Reportage, 13 Hastings Comm. & Ent. L.J. 455 (1991). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol13/iss3/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. With Malice Toward None: A New Look at Defamatory Republication and Neutral Reportage by JAMES E. BOASBERG* Table of Contents I. Unknowing Republication of Falsehood .................... 457 A . Background .......................................... 457 B. Origins of the Wire Service Defense ................... 458 C. The Wire Service Defense Since Sullivan .............. 459 D. Beyond Wire Services ................................ 462 II. Knowing Republication of Falsehood ...................... 465 A. Introduction of the Neutral Reportage