Elements of Fraud
- The D knowingly or recklessly misrepresented a material fact with the intent to induce the P’s reliance.
- The P justifiably relied on the misrepresentation and suffered pecuniary (ie, financial) loss as a result.
Elements of Defamation Liability for Slander
- The D knowingly made a false statement about the P. (Or neg. failed to determine its falsity).
- The statement was defamatory, meaning the type of statement would tend to harm the P’s reputation.
- The D intentionally or neg. communicated the statement to a 3rd party who understood it.
- the statement caused the P’s special damage (usually monetary loss) or was slanderous per se.
Note Exception: defamation of a deceased person is not actionable.
Mnemonic FEAR for Extreme and Outrageous Conduct
F - Flagrant indecency
E - Exploiting know & special vulnerability
A - Abusing authority
R - repeated harassment
Can a P recover Compensatory Damages in an IIED Claim?
In an IIED claim a P can recover Comp. damages for emotional
distress with out proof of bodily harm if the D was:
- engaged in extreme or outrageous conduct (see FEAR)
and - intentionally or recklessly caused the P severe emo distress.
Elements of a Libel claim
Libel is defamation in words, written, printed or otherwise recorded in permanent form. (Most courts say this includes emails).
Libel claim requires proof that:
- The D knowingly made a false statement about the P or Neg. failed to determine it’s falsity
- The statement was defamatory, meaning the statement would have a general tendency to harm the P’s reputation.
- The D intentionally or negligently communicated the statement to a 3rd party
Damages for Libel
Once proved with the elements, a P can recover general damages, which are any damages that compensate the P for harm to the P’s reputation. Repetitional harm can be presumed for libel because it is more permanent and more easily spread than slander (ie spoken defamation).
Contibutory negligence at common law
General rule: P’s negligence is a complete bar to recovery
Exception: LAST CLEAR CHANCE RULE, like VA, recovery is permitted if D:
- had last clear chance to avoid P’s injury
and
- failed to use reasonable care to do so
Traditonal Land Posseser Duty to Warn
A land Possessor traditionally owes licensees a duty to warn about latent dangers of which the land possessor is, or should be, aware
Elements of Attractive nuisance doctrine
Land possessors have a duty to exercise reasonable care to protect child trespassers from artificial (ie man made) conditions on their land when:
(Need all 4)
- the condition is located where the land possessor knows or should know that children are likely to trespass
- the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
- children of the trespassers age cannot reasonable discover or appreciate the risk
and
- the risk outweighs the conditions utility and the burden of eliminating the risk
What type of compensatory damages can a plaintiff recover ?
Can recover damages for:
- the initial physical harm (ie personal injury, property damages)
**and **
- any subsequent harm - physical, economic, or emotional - that occurs as a normal consequence of that initial harm
Who does a land possessor owe a duty of reasonable care too?
Foreseeable land entrants. no such duty is owed to unforeseeable land entrants (eg undiscovered or unanticipated trespassers)
When is an employer vicariously liable under the doctrine of respondant superior?
An employer is vicariously liable for torts committed by its employees while acting within the scope of employment - ie performing assigned work or engaging in conduct subject to the employers control.
When does strict products liability apply to a commercial seller?
When its defective product causes the plaintiffs harm.
This can be due to a
1. manufacturing defect
2. design defect
3. or inadequate warning.
Elements of defective design for a strict product liability
A product is defective by design when:
- the design creates a foreseeable risk of physical harm
and
- the risk could have been mitigated by a reasonable alternative design (eg a modification that reduces the risk for a reasonable cost).
