Negligence is defined in common law as the breach of a duty owed to the plaintiff which was the direct and proximate cause of damage to the plaintiff.

Since the intent to cause injury or harm is not extant in negligence actions, a defendant’s unintentional harm to a business interest may nonetheless be actionable, and recovery may be had, where a duty was owed and breached thereby causing damages.

Negligent misrepresentation is a lesser form of fraud and deceit. Generally speaking, six elements are required for satisfaction of the claim.

First, there must be an actual false representation. Second, the false representation must made for business purposes in the course of a business or profession. Third, the false representation must be made without reasonable grounds for believing it to be true. Fourth, the false representation must be made with the intent on inducing reliance. Fifth, the plaintiff must have justifiably relied. Finally, the sixth element requires that there be damage caused thereby.

Where malicious prosecution is recognized, there are generally four elements required in order liability be established. First, there must have been a favorable, though not necessarily final, termination of a (2) prior separate proceeding (either criminal, civil or administrative), (3) prosecuted without probable cause and (4) with malicious intent (ill will or improper purpose).

As with fraud, damages involved in successful malicious prosecution actions include general damages, special damages, as well as, punitive damages.

Abuse of Process is defined as the use of “legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed.”

“Process” includes, but is not limited to, execution, injunction, summons, notice of taking deposition, discovery, and excessive or wrongful attachment.

First, there must be a willful act in the use of the process which is not proper in the regular course of the proceeding. Secondly, there must be an ulterior purpose.

In order to establish a claim for Tortious Interference with Contract, six elements must usually be established:

• A valid existing contract;
• That defendant had knowledge of;
• That defendant intended to induce breach of;
• That the contract was in fact breached or performance was rendered more difficult;
• Causation; and
• Actual damage.

Tortious Interference with Employment Relationship requires four elements:

First, there must be an interference with employment relationship. Secondly, the interference must be intentional or negligent. Third, and Fourth, there must be causation and actual damage.

Generally speaking, there are five elements applicable to this particular tort. First, there must be an economic relationship containing the probability of future economic benefit. Secondly, there must be knowledge by the defendant third party of the existence of that relationship. Third, there must be intentional or negligent acts on the part of the defendant designed to disrupt the relationship. Fourth and Fifth, there must be actual disruption of the relationship and damages caused thereby.

There may be a recognized “Competitor’s Privilege” to interfere, even intentionally, with prospective contractual relations so long as wrongful means are not used. Each jurisdiction varies on this point.

Depending on jurisdiction, Invasion of Privacy may be both a common law claim and statutory tort. At common law, the prima facie case for liability generally involves four elements. The first element is an “invasion” which may consist of eavesdropping, shadowing, trailing, wiretapping, electronic eavesdropping, or the covert use of voice stress analyzers, or commercial or non-commercial use of one’s name or picture. The second element requires that the invasion be non-oral. The third requirement is that the invasion be of the right to live an ordinary, private life without subjection to unwarranted or undesired publicity. Lastly, the invasion must have injured the plaintiff’s feelings. Thus, the injury is not to reputation, as in defamation, but is an injury to one’s peace of mind.

This claim is straightforward in that the elements are: (1) An intentional; (2) interference; with (3) a lawful business, calling, trade, or occupation.

To establish the tort of Misappropriation of Trade Secrets, there must first be in existence a “Trade Secret”. A trade secret is defined generally as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives one a competitive advantage over one’s competitors who do not know it or use it.” Trade secrets need not be so unique as to be patentable, but the competitive advantage element necessarily requires some uniqueness.

Secondly, there must be an appropriation through use, disclosure or non-disclosure.

Third, the appropriation must be wrongful. Generally speaking, wrongful appropriation means a breach of an express or implied contract, or a breach of trust or fiduciary duty.

Slander of Title is defined as the (1) oral or written; (2) intentional; (3) false disparagement of the; (4) title to real or personal property; (5) causing; (6) actual pecuniary damage.

It is not necessary to show that any specific business deal was impaired. The recoverable damages consist of the general impairment of vendability plus costs of litigation or other process necessary to remove doubt cast on title.

Third, the appropriation must be wrongful. Generally speaking, wrongful appropriation means a breach of an express or implied contract, or a breach of trust or fiduciary duty.

Examples of slander of title include the recordation of an abstract of judgment despite a stay of execution, the placing of a sign on a neighbor’s house falsely announcing the cloud on the title, the false announcement by a lessor to a buyer of a lease from the lessee that the lease is invalid; and the filing of a master plan by a developer which falsely implied the right to use plaintiff’s neighbor’s property.

Generally speaking, there are six necessary elements for Trade Libel which are (1) intentional; (2) disparagement [untrue statement of fact]; (3) of the quality; (4) of property; (5) causing; (6) specific pecuniary damage.

The key difference between libel and trade libel is that the essence of libel is non-monetary damage to the reputation of an individual, whereas specific money damage to a business is required for trade liable.

Basically, this tort sounds in common law unfair competition. Most states now proscribe trademark infringement statutorily, and thus reference to appropriate statutes are required.

Generally speaking, this tort also sounds in common law unfair competition, although statutory codification is now taking place in most jurisdictions.

Common law unfair competition is an umbrella for a variety of arguably separate torts, such as trademark and trade name infringement, “palming off”, “passing off”, and “imitation of product”.

The modern trend in both the statutes and common law is to expand the scope of liability (unfair competition), imposing increasingly higher standards of fairness on commercial morality and trade.

The traditional elements of Constructive Eviction are: (1) the landlord commits or omits an act or acts which (2) render the premises or a substantial portion thereof unfit for the purposes for which they were leased.

Because constructive eviction is not a contract action, punitive damages may be available for wrongful eviction obtained with the use of oppression, fraud, or malice.

This tort is a species of the tort of civil conspiracy. Four elements are involved: (1) conspiracy; (2) wrongful inducement or procurement of breach o contract; (3) causation; and (4) actual damages.

The elements of a case for civil conspiracy are as follows: (1) the formation and operation of a conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts.

The wrongful acts may be any civil wrongs; for existence, fraud or inducing breach of contract. A key litigation consideration is the availability of joint and several liability.

Most states now codify (or set forth via statute) the elements of nuisance.

Generally speaking, anything which is injurious to the health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway is a nuisance.

In general, the common law protects a copyright before general publication, and compliance with the Federal Copyright Law, protects it thereafter. There is, however, pre-emption. The laws of each jurisdiction must be closely examined.

Products Liability is, of course, not a tort in itself but rather a generic term covering four distinct theories of recovery, only two of which sound in tort. The other two are contractual in nature. One injured in using the product may sue on contract on the basis of an express contractual warranty where an untrue statement of fact about the quality of the product was made. Other possible contractual actions are based upon implied warranties of merchantability and fitness for a particular purpose.

Negligence is a tort theory of recovery for injuries caused by a defective product. Yet another theory of recovery is strict liability in tort for a defective product. In order to establish such a claim, generally, the plaintiff must establish that (1) the defendant made the product; (2) the product was defective when it left the defendant’s control; and (3) it proximately caused damages.