Torts II Outline
4. Vicarious Liability(VL)
B-not negligent
A-negligent
C-injured
 VL result of
General:
Indirect Liability or Imputed Negligence
Def. A person can be directly liable b/c of his negligence or indirectly as a result of the employee
and vicarious liability. (this is as a result of a relationship between the parties; where the person
being held liable for the injury has some control over the individual during the individuals acts
that caused injury to the injured party)
Foundation:
1. Occurs when the tort liability incurred by one party (tortfearsor) is imputed to another
party
a. D is held responsible for the tort committed by someone else even if he did
nothing to aid or encourage it, wasn’t negligent, or even attempted to prevent it
b. D is liable for tortious acts by relationship even if he did not himself commit the
acts
2. VL also called indirect liability or imputed negligence
3. Liability rests on a special relationship between D and the tortfeasor
a. Employee commits a tortious act and P sues the employer
b. Goal is for a plaintiff to be compensated for his injury by monetary damages
4. Not a cause of action itself. A P must first prove that the active tortfeasor committed a
tortious act and then find a special relationship to hold the responsible tortfeaasor VL
 Typically seen between and employee and an employer relationship
o This will occur when the employee is acting within the scope of employment
o The employer did not act nor did he intend to act but the employer is still liable for
the employee negligence (they can also be liable for tortious acts of employees
TERMS:
A. Imputed negligence
 When by some relationship between A and B, B is liable to C although
B played no part in it, has done nothing to aid or encourage it, and in
fact may have done all that he possibly could do to prevent it.
B. Imputed contributory negligence
 B in an action against C for his own injuries is barred from recovery b/c
of A’s negligence to the same extent as if he had been negligent himself.
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ALSO called respondent superior or vicarious liability.
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C. Indirect Liability
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A master/employer will be vicariously liable for tortious acts committed
by her servant/ employee if the tortious acts occur within the scope of
the employment relationship.
When an employer may be directly liable b/c of his negligence or
indirectly as a result of the employee and vicarious liability.
a. Agency
The law of agency allows parties injured by an agent of a corporation to recover more money
from the company and not just the person. It encourages companies to hire the best person and
allows the risk to be spread.
I. Establish a Principle/Agent Relationship
An agency relationship can arise either expressly or impliedly
ExpressAttorney/client there is consent of the principle to have the agent
working for them.
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Implied
FACTORS1. Whether the principle manifested consent (knows or should have
known agent was acting on their behalf.
2. Whether the act provides some degree of benefit to the principle
3. Whether the principle has elemental control over the agent
II. Establish a Master/Servant Relationship
Master/servant determination is determined on a case by case basis.
b. Respondent Superior
RULE: Under the doctrine of respondent superior an employer will be held liable
for the negligence of an employee acting within the scope of his employment.
I. Determine whether employee was acting w/in the
scope of his employment.
(1) He is doing something in furtherance of the duties he woes to his
employer and
(2) Where the employer is or could be exercising some control, directly
or indirectly, over the employer’s activities.
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What were his duties?
Was the activity with the scope of his duties?
Frolic and detour Problem?
Courts very often look at whether employer is engaged in either
a frolic or a detour to determine if he was acting within scope
of employment-
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FROLIC: An employee who is on a delivery or business trip deviates from assigned duties
to handle personal business and negligently injures third party before returning to work.
NO liability. When there is initially a master servant relationship and the servant went
completely outside the scope of his employment.
DETOUR: When he negligently injures a 3rd party while returning to work. Liability. Not
enough to exonerate the employer. When the servant at the time of the injury partially
deviates from his duties but not enough that he is acting outside the scope of his employee.
Vicarious Liability regarding Intentional Torts
General Rule: It is usually held that intentional tortious conduct by employees is not within the
scope of employment.
Exception: Under this doctrine an employer may be held liable for the intentional torts of his
employee when they are reasonably connected w/ the employment and so within the scope.
Vicarious liability (intentional torts and punitive damages)
II. Computing to and from Work
GENERAL RULE: An employee driving to and from work is not acting
within the scope of his employment.
Exception: Does not include employees driving home from a
last business appointment b/c a person is working and under
control of the employer from the times he leaves house in the
morning until he returns at night.
III. Vicarious Liability as a Matter of Law
RULE: Vicarious Liability is a Matter of law if employee is acting
within scope of his employment but there are factual issues that must be
resolved before it is determined that employee is or is not acting w/in
scope of employment.
FACTOR OF DETERMINATION Amount of control of employer
 Whether the actions of the employee were in benefit to
the employer
 His assignment to the place he was going
 Who pays travel expenses
 Company car vs. private car
IV. Restatements Rule (909)
MAJORITY RULE: The principle is liable only if the principle
authorized or ratified the act, was reckless in employing or retaining the
agent, or the agent was employed in a managerial capacity and was
acting within the scope of his employment.
TWO THEORIES FOR IMPOSING LIABILITY-
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“Control Theory”: Liability on the employer is imposed whenever the
act of the employee is committed with the implied authority,
acquiescence or subsequent ratification of the employer.
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“Enterprise Theory”: Liability on the employer is imposed whenever
the enterprise of the employer would have been benefited by the context
of the act of the employee but for the unfortunate injury.
V. Independent Contractors
Independent contractor: One who engaged to perform a certain service
for another according to his own methods and manner, free from control
and direction of his employer in all matters connected with the
performance of the service except as to the result thereof.
GENERAL RULE: One who arranged for work to be done by an
independent contractor is not held vicariously liable for the
contractor’s torts b/c it is regarded as the contractor’s own
enterprise and he, rather than the one who obtained the service is
the proper party to he charged w/ the risk.
General Rule-NO liability for independent contractors.
Exception-When the independent contractor is engaged
in a nondelegable duty, there is vicarious liability.
RULE: When deciding whether a person is an independent contractor or
an employee for the purposes of respondent superior, the decision is
based on the employer’s right to control the physical details of the
person’s work.
 Foster parents are independent contractors
GENERAL RULE: A person who hires an independent contractor will
not be vicariously liable for their torts.
There is no right of control.
VI. Non-Delegable Duties
As a matter of public policy one cannot avoid particular responsibilities
by hiring someone else to discharge them.
RULE: One who carries on an activity which threatens serious injury or
death unless the instrumentality is used correctly is subject to the same
liability for physical harm caused by a contractor maintaining the
instrumentality as if the work was done yourself.
Undelegable duty: A duty on the part of the person which will hold the
person liable for the negligence of his agent whether the agent is an
employee or an independent contractor in order to ensure the injured
party will be compensated by the person who’s activity caused the harm.
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RULE of Apparent Authority: Allows an injured party who
reasonably relies on the representation to hold the party who made the
misrepresentation liable.
 Franchisors
 Independent physicians in ER’s
c. Joint Enterprise/Venture
RULE: In order to impose liability on a defendant for joint enterprise, it
must be proved that there was1. An agreement, express or implied, among the members of the group
2. A common purpose to be carried out by the group
3. A community or pecuniary interest in that purpose, among the members
AND
4. AN equal right to a voice in the direction of the enterprise which gives an
equal right to control
RULE: Joint enterprise to impose liability vicariously upon one person who
engaged in the same activity with another person committing the tortious act.
d. Bailments and other doctrines
Common law RULE: A bailment does not make a bailor vicariously liable for
the acts of the bailee in the use of the chattel.
I. It has been altered by decision and statute w/ respect to automobiles.
Some older cases have held that the mere presence of the owner in the
car establishes his right to control over the driving so that the owner
becomes responsible for the acts of the driver as if the driver were the
agent of the owner.
II. “family purpose doctrine”:
A court created legal fiction by which the owner of an automobile is held
vicariously liable when the car is negligently driven by a member of the
immediate household (The car must be driven w/ the permission of the
owner but this may be inferred from very general circumstances.)
III. “Omnibus Clauses”:
A clause in standard liability insurance policies that provides that
liability insurance for the designated automobile applies to the named
insured, nay member of the insured household, and to anyone using the
car w/ owner’s permission, provided the use was w/in the scope of
permission
The need for automobile consent statutes has been lessened
by these clauses.
IV. Parents:
By statute are liable for the intentional torts of their children, but
not vicariously liable for negligence. GET THEM for their OWN
negligence, and vicariously for the intentional torts of their children.
e. Imputed Contributory Negligence
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BOTH WAYS TEST- If negligence can be imputed then contributory negligence
can be imputed.
An entirely innocent person, seriously injured w/out any fault of their own is barred
from recovery against one person who negligently injured them, b/c they were
charged with the negligence of another who had contributed to the injury.
Result was that, of the three people involved, the entire loss fell upon the only one
who was free from all negligence.
GENERAL RULE developed in many jurisdictions was that contributory negligence
would not be imputed unless negligence could be imputed.
Derivative Claims: Contributory negligence of an injured party will be imputed to the plaintiff.
5. Strict Liability- (look at RS for Wild Animals)
When the court imposes strict liability, the defendant must pay damages although the
defendant neither intentionally acted nor failed to live up to the objective standard of
reasonable care.
STRICT LIABILITYDo not need intent
Do not need negligence
DO NEED CAUSATION.
a. AnimalsLiability can be imposed on anyone who keeps, possesses, harbors, or owns the animal.
RULE: Strict liability is not available against owner of escaped animal once
someone else has taken possession of it.
1. Trespassing Animals: Damages or harms caused by trespassing
animals (Domestic – Negligence; Barn Animals – Strict Liability)
Common Law: The owner of animals of a kind likely to roam and do damage is strictly
liable for their trespasses.
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The animals were mostly limited to barnyard type and cats and dogs were not included
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Exception to the barn yard statute type of animal -Animals straying from highway
that they were lawfully being driven; applied only to land abutted to highway, not other
land. If the livestock is on a farm to mkt roadway then the SL rule does not apply.
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May statutes allow each county to decide its own method for liability of Trespassing
Animals
1. Fencing In
 This depends on whether or not the animal was fenced in properly
 Proper fencing – negligence
 Fencing NOT proper – strict liability applies
2. Fencing Out
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 Strict liability if your fenced properly
 If you didn’t properly fence in the animal then negligence will apply
3. Strict Liability
4. No liability w/out Fault
2. Wild Animals: (can be analyzed through customs and practices of the
place in making the determination)
An animal that is not by custom devoted to the service of mankind at the time and in the
place in which it is kept
 rattlesnakes, alligators, ostriches, or tstes flies; even the fact that a particular animal is
kept for a socially valuable purpose does not prevent it from being a wild animal
Common Law: Wild animals or ferae naturae were subject to strict liability if they injured
anyone, with the customs of the community influencing what was determined to be wild.
This is the majority American Position.
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Some courts apply a negligence standard with regard to liability of people who display
wild animals to the public; although standard of care is usually extreme caution.
Restatements §508: A possessor of a wild animal indigenous to the locality in which it is
kept is not liable for harm done by it after it has gone out of his possession and returned
to it natural state as a wild animal indigenous to the locality
Restatements §510: The possessor of a wild animal is subject to strict liability for the
resulting harm, although it would not have occurred but for the unexpectable innocent,
negligent or reckless conduct of a third person or action of another animal or operation of
a force of nature.
Restatements §511: Not liable to trespassers
Restatements §513: Is liable to licensees and Invitees
DEFENSES- contributory negligence, assumption of risk, animal kept in pursuance
to a public duty [public officer/common carrier]
3. Domesticated Animals:
An animal that is by custom devoted to the service of mankind at the time and in the place
which it is kept
 Look at usefulness-Honeybees are useful and therefore domestic
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GENERAL RULE: If the owner knows or has reason to know that a domestic animal has
vicious propensities this is sufficient to classify the animal with wild ones and strict liability
is imposed.
TEST-“dangerous propensity abnormal to its class…”
RULE: If the plaintiff is unable to prove that the owner knew or should have known of a
domestic animal’s dangerous propensities, then strict liability does not apply and the plaintiff
must prove negligence in order to recover.
RULE: An owner of an animal w/ violent propensities that injures another person cannot use the
defense of contributory negligence [in a jurisdiction which recognizes strict liability of owners]
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unless that party unnecessarily and voluntarily put himself in a way to be hurt knowing the
probable consequences of his act and can be deemed to have brought the injury upon himself.
ORDINANCES and STATUTE [dog leash or muzzles]: constitutes
negligence per se but causation must still be proved.
b. Abnormally Dangerous Activities- (ultra hazardous activities)
Cases:
Ryland v. Fletcher: (case about reservoir construction) (MAJORITY RULE)
 Purpose for Imposing SL: so that people use reasonable
Miller v. Civil Constructors Inc.,
 Inability to eliminate the risk by the exercise of reasonable care
Common Law Rule for abnormally dangerous activities: Where the defendant’s blasting
causes a physical invasion, then there was strict liability; if there was no physical invasion
then the plaintiff must prove an action for nuisance.
ENGLISH COMMON LAW RULE: A person who for his own purposes brings on his land
and keeps there anything likely to cause harm if it escapes, must keep it at his own peril and if he
does not do so, is prima facie answerable for all damage which is the natural consequence of the
escape.
Exception: The rule does not apply where the injury results from an act of God
which owner has no reason to anticipate.
Defenses: act of god, contributory negligence
Court makes distinction between natural and unnatural uses of land- Natural uses are not
liable but unnatural uses are.
 FACTORS:
1. Character of the thing or activity in question
2. The place and manner in which it is maintained
3. The relation to its surroundings.
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Abnormally dangerous: Makes the decision based on the nature of the location where the
activity takes place.
Ultrahazardous: Activity that necessarily involves a risk of serious harm to the person, land, or
chattels of others which cannot be eliminated by the exercise of the utmost care and is not a
matter of common usage.
Restatements §520: FACTORS- (work through these factors)
 existence of a high degree of risk of some harm to the person land or chattels of
others
 likelihood that the harm that results from it will be great
 inability to eliminate the risk by the exercise of reasonable care
 extend to which the activity is not a matter of common usage
 inappropriateness of the activity to the place where it is carried on
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 extend to which its value to the community is outweighed by its dangerous
attributes
--- If you can virtually eliminate the risk. That’s more negligence than SL.
Case:
Indiana Harbor: (chemical spill; asking state for compensation)
 will not allocate the cost but will distribute bc although the company may be small it is
part of a larger
 abnormally dangerous- if bring through a highly populated are and not abnormally
dangerous then negligence lies
RULE: Strict liability is not available when it can be avoided by using reasonable care.
Restatements §520 B and C:
 A possessor of land carrying on abnormally dangerous activities is not
liable to trespassers but is liable to licensees and invitees
 Abnormally dangerous activity additional rulesRestatements § PUBLIC DUTY RULE
 Strict liability does not apply if activity is carried on in pursuance of a
public duty imposed on actor as public officer or common carrier.
Restatements §CONTRIBUTING ACTIONS [3rd person, animals, forces of nature]
 Still subject to liability for harm caused by innocent, negligence, or
reckless conduct of a third person.
Restatements § ASSUMPTION OF RISK
 Is a defense; bars recovery
Restatements § CONTRIBUTORY NEGLIGENCE
 Not a defense unless plaintiff knowingly and unreasonably subjects
himself
Limitations on Strict Liability:
Case:
Foster v. Preston (mink case)
Restatements § PLAINTIFF’S ABNORMALLY SENSITIVE ACTIVITY
 No strict liability for harm caused by abnormally dangerous activities if the harm would
not have resulted but for the abnormally sensitive character of the plaintiff’s activity.
Case:
Golden v. Amory: (hurricane causes a man-made dam to flood surrounding real estate)
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exception to the general rule of SL
act of god will not be held SL
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Sandy v. Bushy (horse kicks P and P sues under SL)
 General Rule: no SL for domesticated animals unless you know of their vicious
propensities.
 Exception: Test if knew or should have known of the vicious propensity then liability will
exist for SL (look at the evidence to demonstrate)
 Defense to SL: ASSUMPTION OF THE RISK and voluntarily encountered it
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6. Products Liability
Products liability is an umbrella term for the liability of a manufacturer, seller, or
other supplier of defective chattels, to whom he is not in privity of contract, who suffers
physical harm caused by the defective chattel.
People who can be held liable: manufacture, seller, or other supplier. Second hand
seller will likely not be held libel
 Will need to look in the RS 2nd and 3rd for
 RS 2nd 402 A Majority rule (Strict Liability)
o Talks about defective product
 RS 3rd (helps inform understanding of what the defects mean)
o Defines defects
MAY BE BASED ONAlways have to prove that manufacturer put a defective product into the stream
of commerce.
1. Supplier’s negligence
Duty
Breach
Causation
Damages
2. Upon a warranty
Express or Implied
Justifiable Reliance
Breach of Warranty
Causation
You suffered Damages
3. Strict Liability in Tort
3 Categories:
Manufacturing Defect
Design Defect
Warning Defect
a. Negligence
Why does negligence still come into play when strict liability or breach of warranty can
be used?
 It is easier to prevail by showing that the defendant did something wrong that that
there is something technically defective about the product.
1. BREACH OF A DUTY OF CONDUCT
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Analyze the CONDUCT of the defendant and determine if he
failed to use reasonable care.
Use burden against the probability times the magnitude
MANUFACTURERS-Almost always
RETAILERS/WHOLESALERS-Almost Never
Unreasonably dangerous activity that caused the injury.
PLAINTIFFS-Anyone in the foreseeable zone of risk including
bystanders
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2. PRIVITY NOT REQUIRED
MAJORITY RULE: Privity of contract is not necessary to
recover under a theory of negligence.
3. NEGLIGENCE IN MANUFACURING
4. NEGLIGENCE IN DESIGN
 Look at conduct in designing the product as it was marketed
 Look at the feasibility of a safer design and the cost against the
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severity of harm. (risk of injury vs. cost of safety)
If product cannot be made safer, should it have been marketed at
all.
5. NEGLIGENCE IN DUTY TO WARN
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If the product was not defective in design, did the defendant have
a duty to warn? Would a reasonable manufacturer known about a
significant danger and should have warned about it?
6. NEGLIGENCE IN DUTY TO INSPECT
RULE: No duty to inspect on retailers or wholesalers unless
he has reason to know product is defective.
7. PROOF
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Res Ipsa Loquitur (NEGLIGENCE ONLY) NO STRICT
LIABILITY
Comes in handy when there is a finger in a can of tuna
Comes in handy with uncertainty of the defendant-Will be able
to assert res ipsa if P can show more likely than not conduct was
under D’s control. (ie-mouse in a bottle of soda)
8. CAUSATION
RULE: Where a product endures substantial post-sale
alterations contrary to the warnings of the manufacturer, the
alteration rises to the level of an intervening or superseding
cause of the injury, breaking the chain of causation or relieving
the manufacturer of liability. (look at- Was alteration
foreseeable?)
RULE: Failure to warn of a known danger is a superseding
cause for manufacturer but retailer’s failure to inspect is not.
Flashcards-427; 429
b. Strict Liability
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Courts have continued to assert that strict liability is not absolute liability
but some decisions come close.
POLICY DECISION-DO NOT TALK ABOUT CONDUCT!
Only a couple of jurisdictions still do not recognize a c/o/a for strict
liability for personal injuries caused by a product.
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 DEFENDANTS: EVERYBODY
***Even though this recovery is under strict liability there must still be fault
proven in a lot of jurisdictions.
RULE: In a strict liability action for products P must prove an unreasonably dangerous condition
which caused the injury:
1. The product was defective
 DESIGN- risk v. utility analysis or consumer expectation test
 MANUFACTURING- comparison to other products in manufacturers line
 WARNING DEFECT
2. The defect existed when the product left the hands of D
3. The defect caused injury to a reasonably foreseeable user
“Inherently Dangerous”-Substantial harm is to be anticipated if the
chattel should be defective.
I. ELEMENTS1. WAS THE PRODUCT DEFECTIVE?
PROXIMITY, REMOTENESS OF RELATIONFORESEEABILITY
1.) Foreseeability that if the product is made defective it will be
harmful.
2.) Foreseeability that the plaintiff will come into contact w/ product.
RULE: If a misuse of a product occurs but the misuse is foreseeable, then the company can still
be held liable.
RULE: The product and the container are now treated as one.
1. Manufacturing Defect
Occurs when a product that injures a person does so b/c there
is a flaw that is not in the general product line. [It is a failure
in quality control].
-Been around for awhile
2. Design Defect
An entire product line is challenged
The foreseeable risk of harm posed by the product could
have been reduced or avoided w/ a reasonable alternative
line and that omission renders the product not reasonably
safe. (defective condition unreasonably dangerous to
consumers)
TWO TESTSI. Risk v. Utility Test
A. WADE FACTORS1. The usefulness and desirability of the product
2. The safety aspects of product
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3.
4.
5.
6.
Availability of substitute product which will not be as unsafe
Ability to eliminate unsafe aspect while still retaining product
User’s ability to avoid danger by using due care
Anticipated awareness of inherent dangers known or existence of
warnings
7. Feasibility of spreading the loss by setting price or carrying
insurance
B. STATE OF THE ART TESTSUB-test in risk v. utility: The existing level of
technological expertise and scientific knowledge
relevant to a particular industry at the time the product is
designed. DID the manufacturer utilize the best
practically feasible?
{however, a product may meet state of art but not risk v. utility}
Most jurisdictions use some form of risk v utility for design defect cases.
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Some jurisdictions use the consumer expectation test
Some use both
MOST jurisdictions require that P prove an alternative feasible design in order to prove
design defect.
A few courts have held that an “open and obvious” or “patent” danger is an absolute
defense to a design defect case.
C. FOREIGN AND NATURAL TEST (FOOD CASES)
If the object is foreign then strict liability is applicable
[wire, piece of glass] If the object is natural [bone shell
or pit] then P must prove negligence in the preparation
of the food in order to recover.
II. Restatements 402 (A) TEST:
Consumer Expectation Test
A plaintiff can recover under the theory of products liability for:
1. Personal Injury
2. Damage to property
3. NOT FOR PURE ECONOMIC LOSS
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:
 The seller is engaged in the business of selling such a product
 It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold
AND THESE RULES APPLY ALTHOUGH The seller has exercised all possible care in the preparation
and sale of his product
AND
The user or consumer has not bought the product from or
entered into any contractual relation with the seller.
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III. Restatements 402 (B) Misrep. of Material Fact
Liability for misrepresentations. (Innocent
misrepresentation-even though manufacturer did not
know of defect, he is still liable. Not fraudulent.) Even
if the manufacturers sellers believes it to be true, they
may still be held liable.
-A manufacturer or seller of chattels who by advertising, labeling or
otherwise misrepresents to the public a material fact concerning the
chattel is subject to liability to an injured consumer who reasonably
relied on the misrepresentation even though:
(1) the product may not be negligently or fraudulently made
(2) and even when there is no privity of contract.
RULE: If you find that 402 A is not able to be used; YOU should
check 402 B to see if you can recover under this.
MAJORITY RULE: A plaintiff must demonstrate reliance upon a
representation in either buying or using the product in order to recover.
Minority RULE: A plaintiff does not have to demonstrate reasonable
reliance on a representation in order to recover.
Puff vs. Fact FACTORS- Specificity and Reasonableness of Reliance
3. Warning Defect
RULE: There is a rebuttable presumption that if you had
provided the warning, then the plaintiff would have followed
the warning.
-When P contends that the product is defectively designed or was
accompanied by inadequate warnings, the test for defect varies
by jurisdiction.
RULE: Knowledge either actual or constructive is a component
of strict liability for failure to warn.
RULE: Rule of strict liability require P to prove that D did not adequately warn of a particular
risk that was known or knowable in light of the generally recognized and prevailing best
scientific and medical knowledge available the time of manufacturer and distribution.
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Most courts still apply a fault based standard by requiring P to show that the
manufacturer knew or should have known of the risks that injured P
Most jurisdictions have found no duty to warn of obvious dangers or of risk that are
generally known.
The determination whether the warning was adequate is usually left to the jury who in
turn rely on expert testimony.
Concerning Pharmaceuticals-Most courts hold that warnings and instructions should be
provided to the doctor who then relays to the patient,
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This is not applied where manufacturer is aware there will be no medical provider to give
advice and patient is required to take active role in selection of product
RULE: §402 (a) is part of PA law but you can’t include language unreasonably
dangerous into the instructions b/c this implies that it should be decided of the
reasonable man negligence standard when really it should not-need to instruct
them s to how to determine what constitutes a defect.
RULE: To impose strict liability for defect it is not necessary
for plaintiff to establish an express warranty under the civil code.
2. The Defect existed when the product left the Hands of D
RULE: There is an inference that the product was defective when it left
each person in the chain of commerce as long it went through the normal
stream of commerce.
3. The Defect caused injury to a reasonable foreseeable user
4. Proof
-If a product has a material defect in construction that causes a personal injury to
the user, strict liability usually will be imposed.
-P’s main problems will be in the area of factual proof.
RULE: The fact that the injury occurred may draw a inference of liability in
strict liability cases but if common experience does not permit an inference of
this then there must be some kind of evidence.
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Most jurisdictions provide that violation of a product safety statute or regulation makes
the product defective as a matter of law and others hold that it is merely evidence of a
defect.
Strictly speaking, res ipsa has no application to a strict liability case but the inferences
that are the core of the doctrine are no less applicable.
Is Res Ipsa Loquitor applicable?
-Circumstantial evidence and the fact that something went wrong can be used to draw
inferences that the product was defective when it left the hands of the manufacturer.
MAJORITY RULE: Most exclude evidence of products improvements to prove a defect.
MINORITY RULE: Some courts will allow evidence of products improvements to prove a
defect.
In negligence, it is never allowed.
II. DEFENSES
1. COMPARATIVE FAULT
Majority Rule-Comparative fault is extended to strict products liability
causes of actions.

Failure to discover the defect-IS NOT A COMPARATIVE NEGLLIGENT DEFENSE.
Can not be comparatively negligent if the alleged negligence is that plaintiff failed to do
what they should have done to discover the defect.
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PA- Is in the minorityWhen P voluntarily confronts a known hazard many courts will bar the claim
Other courts would subject P to the same fault apportionment as in comparative
negligence.
2. MISUSE OF A PRODUCT
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GENERAL RULE: Misuse of a product that causes an injury is
normally a bar to strict liability if such use was not reasonably
foreseeable.
Exception: If the misuse of the product is reasonably foreseeable
then it will not bar a plaintiff from recovering under strict
liability
When P uses a product in a manner unintended by the manufacturer, courts often
treat this as a matter of defense.
Whether regarded as a matter of defect or causation, the manufacturer is not
subject to liability for an unforeseeable abnormal use of his product.
There is a growing willingness to let the jury decide if the misuse was
foreseeable.
IN statutes where congress has made its intent clear, the courts have no choice
and the state law is preempted by the federal law and as a practical matter, the
manufacturer need comply only with the federal statute and the regulations
issued under it.
3. FEDERAL PREEMPTION
RULE: Preemption occurs only where a particular state requirement
threatens to interfere with a specific federal interest.
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4. DEFENDANTS OUTSIDE THE ORIGINAL PRODUCING CHAIN
RULE: A defendant who is outside of the original producing and
marketing chain can not be held strictly liable in strict products liability
cases.
Many courts may decline to impose strict liability on sellers of used products
The rule that commercial lessors of chattels should be subject to strict liability is adopted
in almost every state.
Most courts have extended strict liability to retailers and wholesale distributors
An occasional seller who does not hold himself out as having any knowledge or skill in
the commercial sense will not be subject to strict liability,
The maker of a component part not subject to further processing or substantial change in
the manufacturing process is likely to be subject to strict liability if there is a defect in
that part or material.
GENERAL RULE ON USED PRODUCTS- Strict liability will not be imposed.
RULE: Defendants whose primary purpose is to provide a service will not be held strict liable if
products used in providing that service are defective.


A person can usually recover for economic loss that is accompanied by injury but not
economic loss that is not accompanied by injury.
There is not a tort recovery for actions when a product just does not perform as expected.
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
TORT LAW IS NOT THE ANSWER FOR ESSENTIALLY CONTRACTUAL
PRODUCT FAILURE CONTROVERSIES.
Covers damage to property
c. Warranty(hybrid of tort and contract)
I. ORIGIN
Originally in tort (action in trespass on the case) for breach of an
assumed duty.
 Wrong was considered misrepresentation in the form of
deceit.
 17th Century-Established that a tort action would lie for mere
affirmation of fact (express warranty) made without knowledge of its
falsity or negligence.


RESULT-strict liability in tort
FIRST HELD THAT…assumpsit would lie for breach of an express
warranty as part of the contract of sale. (eventually warranties
became part of contract of sale and action on contract was remedy)

Warranty still has its origin in tort. Several jurisdictions allow
recovery for wrongful death arising out of breach of warranty,
when the action would not lie for a pure breach of contract.
II. Elements
1. Warranty- Either Expressed or Implied
RULE: Implied warranties arise out of operation of law and are
not based on the privity so an argument from a manufacturer
stating that there is no warranty b/c of no privity is not valid.
 Manufacturer has the control over the product
 Manufacturer has more money and they can spread the
costs.
 EXPRESS WARRANTY IMPLIED WARRANTYI. Merchantability
merchants in goods of that kind
Average quality and fit for ordinary
purpose
II. Fitness for a Particular Purpose
fit for special use from any seller w/
special knowledge
2. Justifiable Reliance
3. Breach of that Warranty
PROVISIONS of WARRANTIES-in different states:
1. Alternative A:
A seller’s warranty whether express or implied extends
to any natural person who is in the family or house hold
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of his buyer or who is a guest in his home if it is
reasonable to expect that such person may use, consume
or be affected by the goods and who is injured in person
by breach of the warranty. A seller may not exclude or
limit the operation of this section
2. Alternative B:
A seller’s warranty whether express or implied extends
to any natural person who may reasonably be expected
to use, consume or be affected by the goods and who is
injured in person by breach of the warranty. A seller
may not exclude or limit the operation of this section.
3. Alternative C:
A seller’s warranty whether express or implied extends
to any person who may reasonably be expected to use,
consume or be affected by the goods and who is injured
by breach of that warranty. A seller may not exclude or
limit the operation of this section with respect to injury
to the person of an individual to whom the warranty
extends.
4. Causation
5. Damages
RULE: A promise of safety must be a specific one.
RULE: An implied warranty that the product will be suitable for use accompanies automobiles
manufactured and sold to consumers and any disclaimer of that warranty in an agreement
between the parties for purchase is void as against public good.
RULE: The notice requirement is not adopted in actions by injured customers against
manufacturers with whom they have not dealt.
7. Nuisance


Nuisance is a field of liability rather than a particular tort.
COVERS TWO FIELDS OF LIABILITY- [two distinct kind of damages or harm]
1. PUBLIC NUISANCE
2. PRIVATE NUISANCE
MAY BE INTENTIONAL, NEGILGENT or STRICT-
a. Public Nuisance:
An unreasonable interference with a right common to the general public.
 Whether the conduct involves a substantial interference with the public
health, safety, peace, comfort, or convenience.
 Whether the conduct is proscribed by a statute, ordinance or regulation
 Whether the conduct is of a continuing nature or has produced long
lasting effect and to the actor’s knowledge has a substantial detrimental
effect upon the public right.
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A public nuisance is a species of catch-all low grade criminal offenses
consisting of an interference with the rights of the community at large.
Although normally the remedy is at hands of the state, from time to time when a public
nuisance interferes with private land, there can be an action. “Must be particular damage”.

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[obstruction of a highway]
Now largely covered by statute.
COMMON LAW-The traditional view has been that for public nuisance to be a tort
justifying private relief, it must also be a crime-either a recognized crime at common law
or a violation of a legislative provision.
I. STANDING
RULE: In order to recover damages in an individual action for public
nuisance, one must have suffered harm of a kind different from that
suffered by other members of the public exercising the right common to
the general public that was the subject of the interference.

IN order to maintain a proceeding to enjoin to abate a public nuisance one must1. Have the right to recover damages under the reason above
2. Have authority as a public official or public agency to represent the state or a
political subdivision in the matter; or
3. Have standing to sue as a representative of the general public, as a citizen in a
citizen’s action or as a member of a class in a class action.
b. Private Nuisance:
An nontrespassory invasion of another’s interest in the private use and enjoyment of
land and the invasion is either:
1. intentional and unreasonable
2. unintentional and otherwise actionable under the rules controlling liability for
negligent or reckless conduct, or for abnormally dangerous conditions or
activities
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Developed as an unreasonable interference with the use or enjoyment of a property
interest in land.
Essentially a tort to an owner or possessor of land
Does not require physical entry but might accompany a trespass
Conduct may be both private and public
UNLESS THE FACTS SHOW AN INTERFERENCE W/ A PUBLIC RIGHT OR WITH
THE USE AND ENJOYMENT OF LAND, THERE IS NO NUISANCE.
Objective Standard! Is the rest of the neighborhood pissed???
Balance competing interests.
I. STANDING
RULE: A party creating a private nuisance owes only a duty of care to
his neighbors or those unable to protect themselves through inspection
and negotiation and not to the buyer of land under a caveat emptor sale
of land.
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A vendor or lessor of land upon which there is a condition involving a nuisance for which
he would be subject to liability for the continuation of the nuisance after he transfers the
land.
-If the vendor has created the condition or actively concealed it form the vendee
liability continues until the vendee discovers the condition and has reasonable
opportunity to abate it. Otherwise the liability continues only until the vendee
has had reasonable opportunity to discover the condition and abate it.
II. INTENT
RULE: A person can be liable for nuisance whether his conduct is
intentional, negligent, reckless, or ultrahazardous.
RULE: Private nuisance is intentional when the person whose conduct is
a question as a basis for liability acts for the purpose of causing it, or
knows that it is resulting from his conduct, or knows that it is
substantially certain to result from his conduct (restatements §825).
[when D knows that his conduct is interfering w/ P’s rights or
that it is substantially certain to do so]
RULE: Strict liability has been applied when the activity poses extreme
danger to P’s use and enjoyment of his property.
III. NUISANCE PER SE
RULE: Nuisance per se (or at law) is an act, occupation or structure
which is a nuisance at all times and under any circumstances, regardless
of location or surroundings.
IV. NUISANCE PER ACCIDENS
RULE: Nuisance per accidens (or in fact) are those enterprises which
become nuisances by reason of their location, or by reason of the manner
in which they are constructed, maintained or operated.
V. DETERMINING LIABILITY
Utility of Conduct and Community Interests:
RULE: restatements §826 (b) A finding of nuisance can be
made even though the gravity of harm is outweighed by the
utility of the conduct if the harm is serious and the payment of
damages is feasible without forcing the business to discontinued.
Minority Rule: In determining the existence of a nuisance,
if the interests of the community and utility of the conduct
outweigh the harm suffered by the plaintiff, then the plaintiff
cannot recover for damages.
Unusual Susceptibility NO Liability:
RULE: It is generally held that the harm must be of a kind that
would be suffered by a normal person in the community.
Lowered Property Value NOT Determinative:
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RULE: A use of property which does not create a nuisance
cannot be enjoined or a lawful structure abated merely b/c it
renders neighboring property less valuable.
Lawful and Unlawful Operation of Businesses:
RULE: If a lawful business is operated in an unlawful or
unreasonable manner as to produce material injury or great
annoyance to others or unreasonably interferes with the lawful
use and enjoyment of their property, it will constitute a nuisance.
VI. REMEDIES
1. Injunctions
GENERAL RULE: Whenever the damage from a nuisance is
not found unsubstantial an injunction will be granted.
Exception- The assessment of permanent damage
approach can be applied in instances it will grant justice
to both parties and where the nuisance is of such a
permanent and unabatable character that a single
recovery can be had including whole damages for past
and future results.
RULE: A permanently enjoined defendant operating a lawful
business, may indemnify a developer when the developer has,
with foreseeability, brought into a previously agricultural area
the population which makes necessary the granting of an
injunction.
2. Damages
Inverse Condemnation- The impairment of private
property that causes the property to lose much of its
value, for which compensation must be paid to the
owner
VII. COMING TO THE NUISANCE
MAJORITY RULE: A plaintiff is not barred from recovery for
either a public or a private nuisance by the sole fact that he comes to
the nuisance by buying property adjoining it.
Common law doctrine that will preclude recovery under certain
circumstances
RULE IS NOT ABSOLUTE-may be decisive or important.
VIII. DEFENSES
1. Contributory Negligence
RULE: Where there is an intentional private nuisance,
contributory negligence is not a defense, as in other cases of
intentional torts. The defenses available would be the privileges
for intentional torts.
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RULE: Contributory Negligence may eliminate or reduce
recovery for nuisances that arise out of negligence.
o In jurisdictions with comparative negligence it is a
defense as well as assumption of risk.
2. Assumption of Risk
RULE: Assumption of risk may bar recovery, even in cases
where the nuisance is based on strict liability.
o Where nuisance is based on strict liability, contributory
negligence of P in failing to discover the danger is not a
defense; but if he does discover and deliberately
procedes to encounter it, his contributory negligence or
assumption of risk may affect recovery.
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A public nuisance may be abated by a private individual only when it causes or threatens
special damage to himself-apart from the general public.
The abatement of a nuisance does not justify the infliction of personal injury or breach of
the peace.
Ordinarily the actor must notify the wrongdoer of the existence of the nuisance and
demand removal of the condition.
8. Joint TortFeasors
a. Liability and Joinder
I. JOINT AND SEVERAL LIABILITY
Each of the several tortfeasors is liable jointly with the others for the amount of the
judgment against them, and that each is also individually liable for the full amount.
Three Situations:
1. The joint tortfeasor acted in concert to cause P’s injury
2. The joint tortfeasors failed in performance of a common duty to P
3. The separate act of each joint tortfeasor has resulted in an
indivisible harm to P
RULE: Participants in a motor vehicle race on a public highway is an
act of concurrent negligence imposing liability on each participant for
any injury to a non-participant resulting from the race.
RULE: Comparative negligence does not prevent a plaintiff from
collecting the full judgment from a defendant based on joint and several
liability although another defendant may have also contributed to the
injury.
Concert of action: Action which has been planned, arranged, adjusted, agreed upon, and settled
between parties acting together, in pursuance of some design or in accordance with some design
or in accordance with some scheme.
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MODIFICATIONS OF JOINT AND SEVERAL LIABILITY:
1. It does not apply to non-economic damages like pain and suffering or emotional distress.
2. It does not apply to defendants whose percentage of fault is below a certain threshold.
3. It does not apply to certain types of defendants
4. It does not apply to certain types of actions
II. JOINDER
Is now permitted when the defendants acted in concert, when the defendants acted
independently to cause the same harm, and even when the defendants acted
independently to cause different harms.
RULE: Joinder is permitted when the plaintiff’s claim arises from the
same transaction, occurrence, or series of transactions and if any question
of law or fact common to all defendants will arise in the action.
Majority RULE: A plaintiff is permitted but not required to join
multiple defendants in the same action
RULE: D cannot join if P does not {defendant cannot effect cause of
action} BUT can bring interpleader or separate lawsuit for contribution
or indemnity.
b. Satisfaction & Release
DIFFERENCES BETWEEN:
I. SATISFACTIONSatisfaction is receiving full compensation for the injury based
on either the plaintiff’s valuation of the case (settlement) or the
jury’s (verdict).
A plaintiff’s claim is satisfied when the judgment is
actually paid after the trial or when a settlement
reflecting the full amount of plaintiff’s claim is actually
paid.
(Acceptance of full compensation for the injury)
RULE: Partial satisfaction of the claim may be credited to the
other parties who are also liable depending on jurisdiction.
What are partial satisfactions?Insurance Payments
Settlements
If D could not pay the full amount
RULE: A person who has suffered an indivisible harm cause by
the negligence of several parties is not entitled to more than one
satisfaction.
RULE: The plaintiff may bring a series of separate actions
against defendants liable for the same damage, and take each to
judgment.
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II. JUDGMENT
Plaintiff’s may proceed to judgment against as many
tortfeasors as they wish, as long as they are not affected by res
judicata or collateral estoppel.
III. RELEASE
Surrender of the plaintiff’s claim, which may be for only partial
compensation or be for no compensation at all.
RULE: The release of one tortfeasor releases all others who
may have liability.
Exception: Where it is evident that the consideration
paid to the plaintiff was not intended to be full
compensation for his injuries and the agreement was
clearly intended to preserve the liability of those who
were not party to it. [covenant not to sue].
RULE: A Mary Carter settlement which agrees that one of the
defendants will guarantee a minimum payment which may be
offset by an excess judgment recovered at trial is void against
public policy because it allows more culpable defendants to get
away with paying little or nothing and allows the plaintiff to buy
support from certain defendants during her trial.
RULE: In some jurisdictions, a release of a negligent agent also
releases the driver who is vicariously liable for the agent’s
conduct.
IV. COVENANT NOT TO SUE
The theory of the covenant is that plaintiff does not surrender the
cause of action, but contracts not to sue on it. The right is
retained but there is agreement not to enforce it.
Common Law Rule: The release of one tortfeasor releases all
others who may have liability.
Exception- Where it is evident that the consideration
paid to the plaintiff was not intended to be full
compensation for his injuries and the agreement was
clearly intended to preserve the liability of those who
were not party to it.
Where the intent of the parties is not to release
the rights to sue the other tortfeasors.
LANGUAGE MUST BE CLEAR
Collateral Source Rule: Payments made to the plaintiff that are not on behalf on one of the
tortfeasors do not partially satisfy the judgment. They do not off-set the judgment.
Consider the source of the funds. Is the payment on behalf on one of the tortfeasors?
c. Contribution & Indemnity
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I. CONTRIBUTION


The common law rule prohibiting contribution among joint tortfeasors has been changed.
Majority of states now permit contribution by statute or judicial decision
MAJORITY RULE: Contribution among joint tortfeasors is permitted.
 Contribution is neither necessary nor permitted in jurisdictions that have eliminated joint
and several liability.
 The common law rule that contribution is not permitted among intentional wrongdoers
has persisted and is specifically enacted by statute in several jurisdictions.
RULE: A tortfeasor will not be able to seek contribution from a joint
tortfeasor, if the second tortfeasor would have immunity from a cause of
action from the plaintiff.
MAJORITY RULE: Non-Immune tortfeasors may not seek
contribution or indemnity from those who are immune.
STATUTE OF LIMITATIONS RULE: If the statutes of limitations
has run and a plaintiff has served the one tortfeasor but not the other, the
statute of limitations will not effect the liability of the second tortfeasor
in a contribution action.
Contribution- Not all jurisdictions protect a settling defendant from contribution, some
permit the non-settling defendant to seek contribution from the settling defendant.
II. INDEMNITY
Available to shift the entire cost of the judgment or settlement from a tortfeasor whose
liability to the plaintiff was not based on its own wrongful conduct, but imposed on it by
law b/c of the relationship with the tortfeasor whose wrongful conduct caused the injury.
RULE: An original tortfeasor is not liable for separate subsequent
injuries even when the damage cannot be apportioned among the first
tortfeasor and the second.
It is argued that the pre-existing duty would create some sort of exception. A pre-exisiting
condition from a separate and independent cause.
9. MisrepresentationWords or conduct that amounts to an assertion not in accordance with the truth.
Identified with the common law action of deceit. The law of misrepresentation is broader
than the action for deceit.
A false statement that leads another to enter into an agreement or contract.
Liability in damages falls into three familiar divisions1. Intent to deceive
2. Negligence
3. Strict liability
Courts have limited deceit to those cases where there is an intent to mislead.
NUMBER OF ALTERNATIVE REMEDIES:
1. Tort action of deceit
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2. Action for breach of contract
3. Negligence action for negligent misrepresentation or misstatement (recognized by most
jurisdictions where the only damage is financial loss)
4. A suit in equity to rescind the transaction
5. An action at law for restitution
TYPES OF MISREPRESENTATION:
1. Negligent
Must more limited group of potential P’s! ONLY liable to those D intended
to reach, or who he knows or should know the recipient intends to reach.
Negligent or Recklessly failing to provide accurate information; one will be
liable when there is privity and they are asserting a pecuniary interest.
2. Fraudulent
All those who are likely to rely on one’s statement are potential P’s!
A representation made without belief in its truth or recklessly, careless of
whether it is true or not. Intent to fraud or deceive someone; broader anyone who
is foreseeable or not foreseeable
3. Innocent
Mistake; Liability will ensue when the innocent misrepresentation was in
reference to a material fact. (minority position)
a. Misrepresentation by Concealment & Nondisclosure
I. NO SPECIAL RELATIONSHIP
RULE: There is no liability for fraudulent misrepresentation when there is a
mere nondisclosure or concealment of material facts.
RULE: Mere nondisclosure of material facts form no ground for an action in the
nature of an action for misrepresentation. There must be some active
misstatement of fact or at all events such a partial and fragmentary statement of
fact.
1. More liberal attitude concerning rescission of contract or other equitable
relief.
2. An active concealment may constitute an act sufficient to base liability.
3. The defendant may be held liable for nonsdisclosure if the parties were in
some confidential or fiduciary relationship to one another.
II. SPECIAL RELATIONSHIP
RULE: An action for fraudulent concealment can be maintained if the following
three elements are present1. Nondisclosure or silence as to a material fact known to the seller
2. This material fact could not be discovered by the due diligence of the
buyer
3. Buyers are in privity or were within a class of persons seller intended to
reach
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RULE: An action for fraudulent concealment can be maintained when a vendor
fails to disclose a material fact known the him but not discoverable by due
diligence from the vendee and the seller is in privity with the buyer or the buyer
is intended to be reached by the vendor.
Material Fact-it is one to which a reasonable man would attach
importance in determining his choice of action in the
transaction in question.
b. Fraudulent Misrepresentation
1. ELEMENTS
I. Misrepresentation of a material fact past or present
II. Scienter (knowledge of falsity or reckless disregard of truth)
III. Intent to Induce P’s reliance
IV. P’s actual reliance (causation element of misrepresentation)
V. Reliance is justifiable
VI. Damages


MAJORITY RULE: Benefit of the Bargain (what he would
have received if representation was true)
MINORITY RULE: Out of Pocket Loss (difference between
what P paid and what he actually got)
Also: Consequencial damages & punitive
NO- Nominal must be some actual
When defendant’s conduct is not only reckless but also intended
to deceive, there is a broader scope of liability.
The central requirement of intent in fraudulent misrepresentation
or deceit avoids the expansiveness of reasonable foreseeability.
RULE: Accountants who are so negligent as to justify a finding that they had no
genuine belief in its adequacy can be liable for fraud.
 However, when there has been less: Reckless misstatement or insincere
opinionThen the action is negligence bounded by contract AND therefore is to be
enforced when there is a contract.
RULE: Intentional misrepresentation must usually address something about the
past or present.
Exception: When the misrepresentation is about a future intention; NOT
prediction.
c. Negligent Misrepresentation
RULE: Liability arising out of a negligent misrepresentation is based on four
factors1. Whether the defendant has knowledge that the information is being used
for a serious purpose
2. If P is going to act on it.
3. If the information is false, will P be hurt
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4. The relationship between the parties is one where reliance is reasonable
MAJORITY RULE: A plaintiff injured by intangible ideas or opinions placed
in a book cannot recover under a theory of products liability or negligent
misrepresentation b/c there is no duty placed upon the publisher to guarantee the
accuracy of the information.
MINORITY RULE: (restatements) There is liability regardless of the first
amendment.
RULE: IF a person endorses a product by implying to the public that they
possess superior knowledge and special information concerning the product and
the product is defective then the person can be liable for negligent
misrepresentation.
-Duty to Test or Inspect!
ACCOUNTANTS- RULE: In order for a third party, not in privity, to recover
against an accountant for negligent misrepresentation three elements must be
satisfied:
1. The accountants must have been aware that the financial reports were to be
used for a particular purpose or purposes
2. In the furtherance of which a known party or parties was intended to rely
AND
3. There must have been some conduct on the part of the accountants linking
them to that party or parties, which envinces the accountants understanding
of that parties reliance
d. Innocent Misrepresentation
MINORITY- Recovery for innocent misrepresentation in a tort action is
allowed under the minority position.
RULE: Actual knowledge of the falsity or fraud or bad faith of a
representation is not necessary for an action of false representation.
RULE: One can not justifiably rely upon an obviously false statement.
I. OPINION vs. FACT
RULE: A misrepresentation must be of existing fact and not the mere
expression of an opinion.
-Such statements are not fraudulent in law b/c they do not
ordinarily deceive or mislead.
-Speculative assertions about the future are not actionable.
Opinion- An assertion of a belief. An opinion may be a fact.
Fact- Ascertainable
RULE: If it is a fact that is not ascertainable then the court has to look
at the relationship between the plaintiff and defendant. Are they on
equal footing to make the plaintiff justifiable in relying on the
defendant’s respresentation.
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GENERAL RULE: Rarely will statements of opinion in relation to a
sale will give rise to misrepresentation.
-statements of mere puffery.
Exception: Opinions ascertainable as facts can be actionable.
II. LAW
GENERAL RULE: Fraud cannot be predicated upon
misrepresentations of law or misrepresentations as to matters of law
thus misrepresentations concerning the legal effects of an instrument
have been held to be not actionable.
Exception: Both facts and opinions of the law can be actionable
but it depends if it falls within the category of 542 543
Restatements View(1) If a representation as to a matter of law in a business transaction is a representation of
fact the recipient is justified in relying upon it to the same extent as though it were a
representation of any other fact.
(2) If the representation as to a matter of law in a business transaction is a representation
of opinion as to the legal consequences of facts known to the maker and the recipient or
assumed by both to exist, the recipient is justified in relying upon it to the same extent as
though it were a representation of any other opinion as stated in 542 543.
III. PREDICTION & INTENTION
GENERAL RULE: Generally assurances or predictions as to future
events are not actionable.
Exception: If defendant intended to create in plaintiffs the belief
that it was a fact and understood by the plaintiff as a fact, then
there can be a cause of action.
When the speaker knows certain facts which would prevent the event from
occurring and intentionally creates a false belief in the plaintiff.
State of Mind is a FACT. Is evidence as to what the defendant intended to do. Whether
defendant knew what he was saying was false. A misrepresentation as to the state of a man’s
mind is a misstatement of fact.
One of the things you have to look at whether reliance is reasonable.
IV. DAMAGES
MAJORITY RULE: “Benefit of the bargain”- Compensate the plaintiff
as though the transaction has been carried out as represented.


Minority Rule: “Out of pocket expenses”- Recoupment of actual losses
but not expected gain. (12 jurisdictions)
Plaintiff can recover for consequential damages resulting from the misrepresentation.
The measure of damages depends on the (1) scope of the duty and (2) rules of causation.
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10. Defamation
Encompasses the twin torts of libel, for a published defamatory statement and
slander for the spoken defamatory statement.
ELEMENTS1. Defamatory statement
2. About Plaintiff
3. Publication-communication to a third person (someone other than the plaintiff) capable
of understanding;
4. Special harm (injury)
5. ***CONSITUTIONAL*** Falsity
6. ***CONSITUTIONAL*** Fault
Injury is presumed for any liable and slander per se.
FOR LIABLE PLEAD IT AND YOU GOT IT!
Common Law: Defamation was strict liability.
 17th Century: Rule developed that malice must be proven
1825-Malice is necessary but implied if statement is false, defamatory and made intentionally.
Factual Malice was not necessary.
a. Slander
Common Law RULE: Must prove special damages unless the words spoken come
within one of the 4 classes of slander per se.
SLANDER PER SE1. Imputations of Major Crime
2. Loathsome Disease
3. Business, Trade, Profession, or Office
4. Serious Sexual Misconduct
RULE: A defamatory remark on a televised program can constitute the publication of libel.
 Most statutes provide that any broadcast defamation is to be treated as slander where
there is a script or not.
RULE: In an action for slander, the plaintiff must prove special damages that were the
immediate consequence of the words, such as an injury to reputation that prevents the plaintiff
from receiving that which would otherwise be conferred upon him.
 Loss of character must be a substantive loss, one which actually takes place and sickness
must be attributed to apprehension of loss of character or fear of harm to character.
 PECUNIARY CHARACTER!!!!
b. Libel
Libel Per Se: Any publication which exposes a person to distrust, hatred, attempt,
ridicule, obloquy. Libelous on its face.
Libel Per Quod: Not defamatory on its face, further facts must be established to
show the defamatory meaning by innuendo.
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
Colloquium- Reference to the plaintiff need not be to him by name if it is reasonably
understood as referring to him. (NOT LIABLE PER QUOD) Libel per quod is when the
statement is not defamatory in its face, NOT that the person is not specifically named.

When P is not expressly identified, the issue is whether a reader with knowledge of the
surrounding circumstances could have reasonably understood that the words referred to
the plaintiff.
Elements:
1. False
2. Unprivileged
3. Exposes a person to distrust, hatred, ridicule, or obloguy OR
4. Which has a tendency to injure such a person in his office, occupation, business, or
employment.
 If a plaintiff satisfies element (3) then element (4) is presumed and implied.
1. STANDING
A. Liable Proof
RULE: When plaintiff is liable proof or slander proof it means
that nothing can be said about a plaintiff’s reputation that could
possibility tarnish it any more than it already is.
B. Libeled Groups



RULE: Where a publication libels some but not all people in a
designated small group, a c/o/a exists in individual members of
the group on the basis that the defamation of the class infects the
individual.
Even where the group is large, a member of the group may have a c/o/a if some particular
circumstances point to the plaintiff as the person defamed.
Although size alone is not determinative, it is an important factor in determining whether
“intensity of the suspicion” cast upon the plaintiff was sufficient to give him a right to
maintain a personal action.
A coroporation can maintain an action for defamation that casts an aspersion upon its
honesty, credibility, efficiency, or other business character.
RULE: Plaintiff must be ascertainable or identifiable.
Suggestion is not the same as identification.
C. The Deceased
Classic Bar Exam Question-Everybody knows you must be a
living person to have a c/o/a.
RULE: But that statement of defamation may give rise to a
defamation suit when that defamatory remark also defames
another person.
D. Fictional Characters based on Real People
RULE: A fictional publication may be libelous if a reasonable
person, reading the book, would understand that the fictional
character was in fact a real person acting as described.
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2. NATURE OF THE DEFAMATORY COMMUNICATION
RULE: If reasonable minds can differ then the question of whether a
publication is defamatory is a question of fact for the jury.
RULE: Only when a statement is clearly unambiguous and capable to
one reasonable interpretation should a jury be denied the opportunity to
decide if the statement was defamatory.
Such Publication is then actionable per se.
Trying to decide if a statement is capable of a defamatory
meaning look whether it was reasonably capable of being
interpreting defamatory.
3. Common Law Defense
Substantial Truth as a Defense:
RULE: At common law, the defendant has the burden of proving the
absolute defense of truth or substantial truth but is there is no evidence to
support this defense they the jury should not be instructed as such.
-Common Law had the presumption that all defamatory statements were false.
-Therefore, truth was an affirmative defense to be raised and proven by the defendant.
4. Publication
RULE: A statement must be published; communicated to someone
other than the person defamed in order to be considered defamatory.
PUBLICATION (term of art): Communication of the defamatory remark to
someone other than the person defamed that must be done intentionally or by a
negligent act.
-Overheard by a snooper-no publication
5. Cause of Action
SINGLE PUBLICATION RULE: The publication of a book gives rise
to only one cause of action for libel which accures at the time of the
original publication.
Another edition is a new cause of action.
A news service that releases information to a number of outlets is liable
for multiple causes of action depending on how many sources it supplies
it to.
RULE: (exception) A vendor or distributor of a publication is called a
secondary publisher and not liable if he had no knowledge of libelous
matter in the publication and had no reason to be put on guard.
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RULE: A newspaper or book publishing company does not qualify as a
secondary publisher and is subject to strict liability even though it
innocently took the defamatory material from someone else without any
reason to be put on guard.
WIRE SERVICES:
No liability if1. The service was reputable
2. The defendant did not know of the falsity
3. The story itself does not reveal its falsity AND
4. No substantial change was made to the story
Restatements §581(2)
A broadcasting station should be treated as an original publisher.
6. Public Figure/Public Concern
I. DEFINITION PUBLIC FIGUREPublic Official Test: Whether the position in government has
such apparent importance that the public has an independent
interest in the qualifications and performance of the person who
holds it, beyond the general public interest in the qualifications
and performance of all governmental employees.
Deciding if a Person is a Limited Public Figure…
1. Is this a matter of public concern? IOW Did a public controversy exist?
Public Interest is not enough. The issue must be one publicly debated with
foreseeable and substantial ramifications for non-participants.
2. Whether the plaintiff’s role was such that he is a limited public figure in the context of
that controversy? [IS THIS INDIVIDUAL A LIMITED OR UNIVERSAL PUBLIC
FIGURE?] - 1033-1034
Assumption of risk was the more important.
In determining the status as a voluntary public figure the court applied 5 necessary
elements for defendant to prove:
1. P has access to channels of effective communication
2. P voluntarily assumed a role of special prominence in the public controversy
3. P sought to influence to resolution or outcome of the controversy
4. Controversy existed prior to the publication of the defamatory statement
5. P retained public-figure status at the time of the alleged information
Involuntary Public Figure:
As a person who has pursued a course of conduct from which it was reasonably
foreseeable at the time of conduct that public interest would arise. The person must have
been recognized as a central figure during the debate over the public controversy.
Public OfficialThey are persons who have or appear to the public to have substantial responsibility for
or control over the conduct of governmental affairs.
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Although classification is intensely factual the courts regard it as a question of law.
II. PROOF OF FAULT
RULE: A false statement about the official conduct of public
officials is defamatory only if made with actual malice.
ACTUAL MALICE (term of art)-Knowledge that a statement
was false, or reckless disregard of the truthfulness of a statement.
Deliberate or Reckless falsification.
Does it relate to intent or motive?- Motive of
malice is not necessary nor is it dispositive but it
can be used as evidence to prove a reckless
disregard.
RULE: The same test of actual malice is used when the
defendant is a media company or whether the plaintiff is suing
individual’s defendant’s.

Can you use the fact that a media outlet did not agree to offer a retraction as
evidence of actual malice? --- Sullivan does not allow it but is it ever a basis and
if so, is it dispositive? ---ASK SOMEONE???
NOT OBJECTIVE STANDARD!
The finder of fact must determine whether the publication was indeed
made in good faith.

Reckless Disregard-Prove that the defendant in fact entertained serious doubts
as to the truth of the publication.
RULE: Reckless disregard, for the purpose of proving actual malice in a suit for
libel, requires a high degree of actual awareness of the probable falsity of a
statement and a subjective standard is used.
RULE: A deliberate alteration of quoted words constitutes actual malice only if
the alteration results in a material change in the meaning conveyed by the
statement and has a different effect on the mind of the reader from that which the
pleaded truth would have produced.
“Fair Index Rule”- If the headline is not a fair index of the substance then the
headline must be examined independently to determine its actionability in libel.
Republication RULE: Except as to those who only deliver or transmit
defamation published by a third person, one who repeats or otherwise republishes
defamatory matter is subject to liability as if he had originally published it.
7. Private Figure/Private Concern
I. DEFINITION
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
To determine if a person is a private or a public figure the courts should look in
the context by examining the nature and extent of an individual’s participation in
the particular controversy giving rise to the defamation.
II. PROOF OF FAULT
So long as they do not impose liability without fault, the states may define for
themselves the appropriate standard of liability for a publisher of defamatory
falsehoods injurious to a private individual.
III. DAMAGES


Damages-countervailing state interest exceeds no further than recovery for actual
damages.
The states could not permit recovery of presumed or punitive damages absent a
showing of knowledge of falsity or reckless disregard for the truth.
RULE: Defamatory statements regarding purely private issues are subject to
punitive damages without the requirement of proving actual malice.
SPECIAL DAMAGES- Require Pecuniary Loss
ACTUAL DAMAGES- May include injury to reputation or emotional distress,
without showing pecuniary loss but the injury must be proved.
8. Private Figure/PUBLIC Concern
RULE: The 1st amendment restricts the damages that a private
individual can obtain from a publisher for libel that involves a matter of
public concern to actual damages.
Public Concern- Speech that, based on its content form, and
context, is of general interest to the public at large.
RULE: Where a public figure publishes defamatory statements of public
concern, a defamed private party must prove that the statements are false.
9. Opinion
RULE: Where a statement of opinion reasonably implies false and
defamatory facts, liability may be imposed.
Restatements §566: An expression of opinion can be libelous in certain
circumstances.

Privilege of “Fair Comment”- Affords legal immunity for the honest expression
of opinion on matters of legitimate public interest when based upon a true or
privileged statement of fact.
-Applies ONLY to an expression of opinion and not to a false statement
of fact whether it was expressly stated or implied form an expression of
opinion.
Must the opinion be based upon fact?-- Does not have to be based on fact as long
as it was made in good faith.
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10. Privileges
I. Truth
II. Consent
III. The Reporter’s Privilege
Information in a pleading has not been proven and therefore is an
allegation and therefore is not given the same protection as other official
court records.
-Public Reports
-Official Record
IV. Absolute Privilege – attaches under the circs, no liability
even if it is defamatory.
1. Judicial Privilege – anything said in a judicial proceeding is
protected, so long as it relates to that proceeding –no defamation
claim available. Even if you can prove that they are lying and they
are . Lawyers, judges, witnesses, juries –anyone connected w that
proceeding.
a. You can be held liable for perjury but not def.
2. Legislative Proceedings—
Have to be relative to the proceedings.
3. Public Officials (federal and state)
V. Qualified Privilege
 Self interest
 Mutual interest
 Public interest

RULE: Qualified privileges protect persons speaking in their
own self interest but the communications must be published in a
reasonable manner and for a proper purpose. Restricted to
specific type of communication.
-conditional or qualified upon certain factors:
1. Presence of malice
2. If the information is true (falsity)
3. Was the information volunteered or requested?
4. Tone
IF they make a statement that they are not sure is true or not, that would
be actual malice and therefore it would not be protected.
There are multiple levels of falsity and the one at issue is the one that
relates to the defamatory statement itself.
REMEDIES-Pay attention to the statutory remedies and retractions and what do you mean
in order to have a valid retraction.
1. Presumed Damages
Slander per se and Libel at Common Law
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2.
3.
4.
5.
6.
7.
8.
9.
ALLOWED for Private Concern
Special Damages
Pecuniary or out of pocket loss; humiliation; reputation
Punitive Damages
Not allowed w/ no malice
Allowed in Private Figure/Private Speech
Nominal
Gertz held no but SC has not ruled
Declaratory Relief
Judicial determination that the statement about him is false and thus
vindicate his reputation
Self-Help
First Step-using available opportunities to contradict the lie or correct the
error and thereby to minimize its adverse impact or reputation.
Right of Response Statutes
Requires a public communication medium to give a right of response to a
person who claims that he has been defamed by it.
Retraction Statutes
A retraction to be effective must be: Unequivocal and not partial or
hesitant
Injunctive Relief
Presumed
Damages
YES
Punitive Damages
YES
Falsity/Media
Defendant
Plaintiff’s Burden
YES
Private Figure
Public Concern
--Gertz-Anything but strict
liability-must have at
least:
NEGLIGENCE
YES
Only if Malice is
shown otherwise only
ACTUAL DAMAGES
shown by competent
evidence
YES
Only if Malice is
shown
Plaintiff’s Burden
YES
Falsity/Non-Media
Defendant
Plaintiff’s Burden
YES
Plaintiff’s Burden
YES
Proof of Fault
Public OfficialPublic Figure
--NY Times-ACTUAL
MALICE
Private Figure
Private Concern
--Dunn Bradstreet-More like common law
action-per se-Up to the
state to decide: Can haveSTRICT LIABILITY
YES
May be recoverable even
without showing Malice
NO
YES
May be recoverable even
without showing Malice
NO
Intentional Infliction of Emotional Distress:
RULE: Public Figures and Public Officials may not recover for the tort of
intentional infliction of emotional distress by reason of the publication of
offensive material without showing that the publication contains a false statement
of fact which was made with actual malice.
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11. Right to Privacy
There are four distinct torts under the label invasion of privacy
Conduct would be objective to a reasonable person.
A. Placing One in a False Light
 One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for
invasion of his privacy ifo The false light in which the other was placed would be highly
offensive to a reasonable person AND
o There is publicity that must be highly offensive and false
o PUBLIC figures must prove actual malice
B. Commercial Appropriations of Likeness


One who appropriates to his own use or benefit the name or likeness of
another is subject to liability to the other for invasion of his privacy.
Requires the use of P’s name or picture in connection w/ the
promotion or advertisements of a product or service for commercial
advantage.
RULE: The unauthorized use of one’s photograph in connection with an advertisement or other
commercial enterprise gives rise to a cause of action which would entitle the plaintiff, without
proving special damages, to a judgment of nominal damages, and to injunctive relief if and when
the wrong is persisted in by the offending parties.



Some courts have allowed the recovery for appropriations for the plaintiff’s name
for non-commercial purposes.
RIGHT TO PRIVACY- The right of common law protects a persons’s name and
likeness from unwarranted intrusion or exploitation.
Newsworthiness is a defense
C. Intrusion upon Seclusion
The invasion has two elements1. The intrusion must be into a private place, conversation, or matter AND
2. Must be highly offensive to a reasonable person.


One who intentionally intrudes, physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns, is subject to
liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.
Unlike all other forms of privacy, NO publication in an intrusion
upon seclusion action
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RULE: The extension of the tort of invasion of privacy is extended to instances of intrusion
where an ordinary man in the plaintiff’s position could reasonably expect that the particular
defendant should be excluded.
However, no liability for merely succumbing to temptation.
D. Publication of Private Facts


One who gives publicity to a matter concerning the private life of another
is subject to liability to the other for invasion of privacy, if the matter is
publicized is of a kind that
1. Would be highly offensive to a reasonable person AND
2. Is not of legitimate concern to the public
Public disclosure of private facts is not actionable where the publication is
newsworthy. This broad defense can apply to pictures published in
newspapers as well as magazine articles on former celebrities and public
figures. Private matters contained in public records are absolutely
privileged.
Remedies:


Proof of special damages is not required in privacy actions
Recover: Harm to privacy interest; Emotional Distress and Special
damages but don’t HAVE to prove special.
Injunctions are generally available in cases of intrusion upon seclusion
Defenses:




Defamation defenses of absolute and qualified privilege are applicable to privacy
actions based on public disclosure of private facts and false light
Consent is a valid defense. Mistake as to consent is not.
Truth is no defense
Newsworthiness
RULE: Publication in invasion of privacy cases means publicizing, not merely transmitting it to
one other person. Wide dissemination of the material.
RULE: The states may not impose sanctions for the publication of truthful information
contained in official court records open for public inspection.
Courts look at OFFENSIVENESS and NEWSWORTHINESS
12. Misuse of the Legal ProcedureThree Types:
I. Malicious Prosecution
II. Wrongful Institution of civil proceeding
III. Abuse of Process
I. Cause of Action for Malicious ProsecutionElements-
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1. A criminal prosecution instituted or continued by the defendant against plaintiff
 May be met by (1) indictment or information (2) issuance of a criminal
proceeding or (3) arrest on a criminal charge
2. Termination of the proceedings in favor of the accused
 the abandonment of the proceedings b/c a conviction has become
impossible is a sufficient termination in favor of the accused. (grand jury refusal
to indict; dismissal; quashing; acquittal)
3. Absence of probable cause for the proceeding
4. Malice
 Lack of probable cause may give rise to an inference of malice sufficient to carry
the question to the jury.
 Purpose in initiating a prosecution other than that of bringing a criminal to justice
5. Damages
 Harm to reputation; humiliation and mental suffering; discomfort or injury to
health; legal expenses, lost work time; loss of reputation; attorney’s fees (1st suit)
Three Common Law Actions
For Malicious Prosecution:
1. Injury to one’s person or liberty
2. Injury to one’s fame
3. Injury to one’s property
Malicious Prosecution RulesEnglish Rule: In the absence of an arrest, seizure, or special damage,
the successful civil defendant has no remedy.
American Rule: Permits actions for malicious prosecution
of civil proceedings without requiring the plaintiff to show
special injury.
II. Recovery Under the Theory of Abuse of Process
Abuse of process unlike malicious prosecution does not involve the 5
elements b/c it does not involve the merits of the action in question.
Only requires the use of any form of process (injunction, attachment) civil or
criminal for a result other than that for which the form of process was intended:
1. An ulterior purpose
2. An act in the use of process which is improper in the regular prosecution of the
proceedings.
RULE: Abuse of process is intended to compensate one for misuse of the legal
process and thus the resolution of the prior action is irrelevant.
A lawyer owes no duty of care to his client’s advesaries.
 Seriously hamper attorney’s effectiveness
 Create a conflict of interest
 Undermine the adversarial system
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13. Interference w/ Advantageous Relations
1. Business Relations(a) injurious falsehoods
Injurious Falsehoods: (Trade Libel)
A broad general principle of liability for any false and
malicious statement resulting in pecuniary loss to
another.
Elements:
1. A false statement of a kind calculated to damage a pecuniary interest of the plaintiff
2. Publication to a 3rd person
3. Malice in the publication (intent to disparage with scienter [knowing falsehoods or
reckless disregard for truth]) P can p[rove ACTUAL or COMMON LAW malice
4. Resulting special damage to the plaintiff in the form of pecuniary loss




General damages are admissible and sufficient to maintain an action.
The damage must consit of pecuniary loss and person elements such as mental
distress are not sufficient to maintain an action
COMMON LAW-P must identify the particular customers who have refrained
from dealing w/ him and specify the transactions of which he claims to have been
deprived
MODERN RULE-The Plaintiff only has to be specific when it is reasonable to
expect him to do so and to allow recovery for a general decline in business if all
other reasonably possible causes are excluded.
-P must always prove falsity
-Statement does not have to be defamatory
Privileges:
Any absolute or qualified privilege that applies to defamation under the
common law applies also to injurious falsehoodsConditional Privilege RULE: IF D has a present existing economic interest to
protect, he is privileged to prevent performance of the contract of anther which
threatens it and assert an honest claim or bring or threaten suit in good faith.
(matter of law)
--D has a qualified privilege to protect his own interest by the assertion
of a bona fide claim to any kind of property.
Conditional Privilege can only be overcome by the Plaintiff by provingConstitutional Malice: Reckless disregard for truth or falsity or knowing falsehood or by
proof of common law malice in the form of spite or ill-will. (question of fact)
What constitutes Malice:
1. When D acts with spite motive and desires to do harm
2. When D acts w/ the purpose of doing harm to the interest of P in a manner in which he is
not privileged so to interfere
3. When D knows what he says is false, regardless of ill motive
RULE: Mere failure to investigate, in and of itself, is not sufficient evidence.
42
DEFAMATION AND INJURIOUS FALSEHOODS MAY OVERLAP-Since the same statement may both defame a person and disparage the goods he sells.
 If the statement made reflects only upon the quality of what the plaintiff has to sell, or the
character of his business it is merely injurious falsehood and special damages must be
proved.
 If the statement imputes to the plaintiff reprehensible personal characteristics or
misconduct, it is regarded as defamation.
 However, many statements do both!
CompetitorsCompetition for business does not justify intentional false statements of fact concerning
the competitor’s business or product when they are not confined to comparing the product or
conduct of the competitor with that of the plaintiff, and this unfair competition is not privileged.
(b) Interference w/ Existing or
Prospective contractual relationsThe interference must cause P to lose a right under a contract or make
contract rights more costly or less valuable.
Elements:
1.
2.
3.
4.
An act by the defendant
With knowledge of the contract
For the purpose of interference (INTENT) w/
The contractual rights of the plaintiff (or in prospective cases) the possibility of
attaining a future economic advantage
Interference with Contract- That intentionally to do that which is calculated in
the ordinary course of events to damage, and which does damage is actionable if
done without just cause or excuse.
RULE: D’s tortious conduct is not confined to inducing the 3rd person to break the contract; it
may apply to other means of preventing the 3rd person from performing.
RULE: The plaintiff must prove that D knew of the contract.
RULE: A defendant can be liable for wrongful interference with contractual relations when the
plaintiff is employed and the defendant wrongfully, unlawfully, or willfully prevents plaintiff
from carrying out his occupation.
RULE: A plaintiff seeking to recover for alleged interference with prospective economic
relations has the burden of pleading and proving that the defendant’s interference was wrongful
by some measure beyond the fact of the interference itself.
There is a distinction between interference w/ an existing contract and
economic relationships short of contractualRestatements Second: 766B-Requires defendant’s conduct to be improper and adopts a
multifactor balancing approach in determining liability.
43
Restatements Rule-
Intentional Interference with Performance of Contract by Third Person:
One who intentionally and improperly interferes with the performance of a contract
between another and a third person by inducing or otherwise causing the 3rd person not to perform
the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the
3rd person’s failure to perform the contract.
FACTORS-To determine if conduct is improper1. Nature of conduct
2. Motive
3. The interest of the other w/ which the actor’s conduct interferes
4. Interests sought to be advanced by actor
5. Social interest in protecting freedom of action of the actor and contractual interest of the
others
6. Proximity or remoteness of the actor’s conduct to the interference
7. Relations between the parties
RULE: Unless otherwise agreed, after the termination of the agency the agent has a duty to the
principal not to take advantage of a still subsisting confidential relation created during the prior
agency relation.
Knowing interference with a valid enforceable contract is usually itself improper.
Concerted Action RULE: Persons who cause harm to another by a concerted refusal in their
business to enter into or to continue business relations with him are liable to him for that harm,
even though they would not be liable for similar conduct without concert, if their concerted
refusal is not justified under the circumstances.
Disinterested Advice:
Several cases hold that there is a privilege to give disinterested advice to withdraw from a
contractual relations.
 It is limited to cases where the advice is requested, or otherwise called for by the
circumstances, as distinguished from officious intermeddling in matters which
are not the defendant’s concern.
Remedies:




PUNITIVE DAMAGES- Are available; on the basis that the defendant’s action
is intentional and without justification.
The interference must cause a loss to the plaintiff.
The loss is compensable in damages
In the cases where there is a continuing threat of interference, the court may grant
an injunction—DISCRETIONARY.
RULE: Where a person can prove that but for the tortious interference of another, he would in
all likelihood have received a gift or a specific profit from a transaction, he is entitled to recover
for the damages thereby done to him.
RULE: A party who has been injured by duress is entitled to the same remedies which are
available in cases of deceit.
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1. He may keep what he received under the contract and bring action for recover
sustained damages as a result of the duress
2. He may rescind contract and sue at law for what he partied with by reason of the
duress
3. He may sue in equity for a rescission of the contract by the court and recover
what he parted w/ upon such conditions as the court may deem equitable.
RULE: In cases of tortious interference with contractual relations, contracts which are
voidable be/c of lack of mutuality of assent are treated as terminable at will contracts.
A contract which violates public policy is
45