Where the conditions that are used to determine situations of misrepresentation and nondisclosure become somewhat murky lies in the role that is played by the somewhat abstract roles opinion and intention play in tort law and product representation. 

 

Determining intent can play an important role when determining with issues of misrepresentation, because it remains integral to determining whether misrepresentation would have occurred.  To put things very simply, intent, on both sides of representation issue, is the dictation of what on expected to receive from a transaction.  

If the individual entered into a deal, forgetting a key piece of information that either would have proved vital to the injured party’s decision to undertake an agreement, or otherwise simply failed to realize its importance, he could be found less culpable in the situation because the individual entered the transaction with intentions of acting in good faith.

 

Opinion also plays a key role in all elements of tort law, because determination of neglect or responsibility, under the core standard of care on which tort law is based, is centered on finding a unity of opinion in the eyes of the law (or legal body, such as the court). 

 When applied to arguments over misrepresentation or nondisclosure, determinations over whether each occurred in a given situation, are again, formed by achieving a legal unity of opinion, which becomes more tenuous when the conflicts over whether something has been withheld or misrepresented is formed over a difference of opinion.  For example, if one advertised a baseball product that said it would help someone hit a home run, but the complainant argues that because it failed to help him hit a home run, it does not work. 

 

In both instances, intention and opinion can be very difficult to prove and establish under tort law, as their subjective nature can be difficult to quantify, causing situations where issues of plausible denial may prevent the formation of the unity of opinion that lies at the heart of nearly ever tort action.

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law, because any case where false or hidden information plays a significant part essentially implies a standard of care that reflects the negligence addressed by tort. To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. 

This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, because the very idea of the act itself is a negligent action. Misrepresentation and nondisclosure can take many forms, but generally they refer to act or services, usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service). 

There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation. In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation. When a provider fails to disclose all information that could directly influence a tortious (non-contract) agreement for the transaction, then the provider is said to have committed nondisclosure and can be help liable for that action.

The extent by which someone has committed (or not committed) an act of misrepresentation or nondisclosure is determined by their basis of responsibility. The basis of responsibility measures their level and need of disclosure against potential liability in determination of whether actions were legally responsible or not. (https://tort.laws.com/Misrepresentation-Nondisclosure/Responsibilities )  Also key to establishing and proving a case of misrepresentation and nondisclosure is the vital, but difficult to quantify, roles played by opinion and intention, which play a direct role in determining negligence and materiality.

 

 

In tort law, misrepresentation, in most of its forms, represents a core violation to the standard of care, which is used in the determination of culpable negligence. Usually misrepresentation represents a violation of an implied agreement due to one of the parties presenting a product, property, or service in manner or level of quality that is inaccurate to its real conditions or values.

 

 

When a party has been found to be maintaining a policy of nondisclosure, this can lead to charges of misrepresentation, and they can be used as the basis of a tortious action. Usually elements categorized as representing nondisclosure include terms that can directly effect the nature of the agreement, up to and including fraud. Often, cases of representation and nondisclosure enter into situations that specifically entail the transfer of property, products, or services, which are not covered  Instances, where the product are service are not to the level of expectation due to a misleading presentation or the withholding of key information, nondisclosure can be said to have occurred…

 

 

The basis of responsibility in cases of misrepresentation and nondisclosure is based on a comprehensive nexus between disclosure and liability, both of which combine to determine the extent one party has over the services or product they represent in a tort law situation. What the basis of responsibility seeks to ascertain is the level to which an individual can be held accountable in a given a situation, the restitution that must be made if they are found to have committed an act of misrepresentation or nondisclosure, or the level to which their responsibility can be mitigated, up to and including exoneration. Generally, as a rule, the greater one’s level of disclosure, the more diminished one’s level of responsibilities and liabilities are in most transaction of goods or services…

 

 

Justifiable reliance represents the core to any charge of misrepresentation and nondisclosure, as it represents the specific standard to which a representative relationship can be ascertained to the point of legal responsibility. Justifiable reliance, simply put, indicates the extent to which one can be held to have relied on the representations of another. In claims made under tort law, it refers to the extent than one can hold another party liable for their misrepresentations. For justifiable reliance to pertain directly to liability, it must be said to have an acceptable level what is called “materiality”. Materiality constitutes the element of a product that establishes its marketability; usually as the service that a product can provide. Since the offer of service establishes a standard of service, this immediately determines how much one can rely on a product to what its advertised…

 

 

Where the conditions that are used to determine situations of misrepresentation and nondisclosure can become somewhat murky lie in the roles that are played by the somewhat abstract roles opinion and intention play in tort law and product representation. While both seem very basic, their significance in tort law is vital, especially since they can mitigate circumstances where responsibility, liability, materiality, and information need to be quantified and specified as much as possible when making a determination of fault. In both instances, intention and opinion can be very difficult to prove and establish under tort law, as their subjective nature can be difficult to quantify, causing situations where issues of plausible denial can prevent the formation of the unity of opinion that lies at the heart of nearly ever tort action.

 

 

When suits or legal conflicts over issues of misrepresentation and nondisclosure occur that fall under the auspices of tort law, the forms of compensation and damages to which complainants and plaintiffs are entitled are actually intended to be fairly strict. However, depending on the extent of the damages extended in one of these particular cases, that amount of compensation a plaintiff is entitled can be considerable. Tort cases are centrally designed toward finding a legal basis of responsibility and consensus of opinion upon which determinations of negligence and responsibility are then based. Whether the ultimate determination is made through a legal settlement, jury award, or judge’s decision, it is based on determining negligence or responsibility based on the burden of proof. From there, if the case goes the way of the plaintiff, a determination will be made over the extent of damages to be rewarded based on the plaintiff’s losses…

The term itself, res ipsa loquitur, is Latin for “the thing speaks for itself”. In relation to negligence, the thing would be the negligent act that caused such injury. It is a type of circumstantial evidence, which is evidence that serves as indirect proof for a fact in a case. This evidence may derive from several different tests conducted, to make an assumption that the accident caused was due to a negligent act by the defendant, without showing any direct evidence. 

For example, if a person slipped on ice that was left on the steps of an office building, and fell on their back severely injuring themselves, a witness would corroborate the story. That witness’s account would be a direct evidence toward proving that the owner of the building was negligent for not having the ice removed from the steps. 

However, if no witness was available at the time, and no security cameras to show the fall either, then the plaintiff could turn to circumstantial evidence. Perhaps a person would go over and photograph the steps immediately after the accident, or even a day later. If the ice has melted at this time, a scientist can perhaps prove that there was ice there at a given time through a series of tests. These tests results would serve as circumstantial evidence on behalf of the plaintiff. 

Since negligence is a difficult tort law to prove due to its specifications, such matters are to be resolved in a court of law. The court helps lay out the evidence existing in a negligence case, for a clear determination of fault. The case is presented to a judge and jury, and eventually the jury reaches a verdict based on that evidence. 

Their decision must either proof that the person in question was negligent in the injury or harm sustained by the victim, or that the victim or another entity was at fault. Negligence is a tedious concept of tort law that must meet certain requirements in order to be in effect, this is why the evidence is highly important in such cases. 

The evidence in such cases is referred to as elements, presented by the accuser (plaintiff) in their favor. For example, if a store owner fails to place a ‘wet floor’ sign where a maintenance worker has recently mopped, and a customer slips and falls causing injury to their body, the owner is said to be negligent. Under tort law, he is negligent for not having posted a warning for the customer in an attempt to lower the risk of injury, and prevent them from walking into that area. 

The elements provided could be photos of the area at the time, as well as witness accounts as to the absence of the sign and the incident itself. In this case a jury would review all the details of the incident, take into account any witness descriptions of the condition of the place as well as warning or precaution signs in the vicinity, or lack thereof. 

If the evidence given proves that the owner failed to responsibly warn the customer of a floor that was indeed wet, caused by the store staff, then the owner is found negligent over the injury of that person. This owner could owe a large sum of money to the plaintiff for the damages endured, and such an action can place his business in jeopardy.  

It would be difficult to determine negligence without dealing with such cases in a court. The tort law itself is so broad, that even a failure to disclose a minor detail could affect an entire case. This is why such cases are strictly decided by a jury in court and not in a business related “pow wow” among the victim, and the owner in question. It is evident that the evidence is the crucial part in such trials, and most certainly the deciding factor for plaintiffs and defendants alike. 

History:

Negligence used to be a much broader term that referred to any sort of breach of the peace, but has evolved over time to become a separate entity from intentional torts as well as strict liability torts. The concept first appeared in regards to professional community members, such as doctors or blacksmiths, who possessed a certain duty to the community to provide honest service. If this duty was breached, the individual was guilty of negligence. 

Early lawmakers were primarily considered with those wrongdoers who acted in an intentional way to disturb the peace, and were less concerned with those who failed to act. Because of this, negligence law developed relatively slowly and was based on injuries that were considered to be due to indirect causes. During the Industrial Revolution, negligence became a huge part of the legal system due to the introduction of machinery into daily life. There were many cases involving accidental injury that were attributed to negligence. Contact a negligence lawyer to acquire legal advice and assistance.

Unavoidable Accident: 

An unavoidable accident occurs when, despite all exercise of reasonable care, the defendant could not have foreseen or possibly avoided the resulting harm to the plaintiff. In order for an accident to be unavoidable, the situation must in no way be caused by or added to by the defendant. 

Unless some evidence can be found that proves the defendant should have reasonably been aware that this accident would occur, he is not liable for the plaintiff's injuries. It must be proven that there was no wrongful intent on behalf of the defendant. This is only used in unique instances where the circumstances of the case prove that the plaintiff's injuries were absolutely unavoidable. 

Elements of Cause of Action:

There are certain elements that are required to prove that a defendant acted negligently. There is a specific code of conduct which all people are expected to follow and there is a duty of the public to act in a certain way which reduces the risk of harm to others. 

Negligence can only be claimed by an injured plaintiff whose interests have actually been interfered with, meaning that a plaintiff must prove his injuries, and prove that they were caused by the defendant. This proximate cause is the link between the defendant's actions and the plaintiff's injuries. There is a statute of limitations in negligence cases. However there are several rules, such as discovery and continuing negligence, which may excuse a plaintiff from the statute of limitations.

Unreasonable Risk:

Risk is a major factor when deciding negligence liability.

In order for a defendant to be held liable for negligence, the plaintiff must show that the defendant's actions were characterized by an unreasonable amount of risk to the plaintiff's safety. This sometimes arises in cases where an object was left lying around by the defendant and picked up by the plaintiff. 

In these cases, negligence liability is determined by the amount of risk presented by the object. A shot gun, for example, presents unreasonable risk. In determining whether the amount of risk exhibited by the defendant is considered unreasonable, it is measured against what a reasonable person would have done. If a reasonable person in a similar situation would have recognized this risk as greater than most and taken action to prevent this risk, then it is considered gross negligence.

The Reasonable Person:

Negligence law is based on how a reasonable person in the defendant's situation would have acted. A person's age, physical, and mental characteristics are take into account. If a person has a disability for example, he will be held to the standard of how another person with this same disability would act. 

The circumstances of a case of an important part in determining negligence. In the event of an emergency, the reasonable person standard is altered to include the way a reasonable person would act in that emergency situation. In negligence law it is held that a reasonable person should be able to determine the amount of risk associated with an activity, take necessary precautions, and be able to some degree to anticipate the conduct of others.

Application of the Standard:

In negligence cases, the standard of care refers to the amount of precaution and diligence taken by the individual who duty it is to provide care to the plaintiff. The general public is held to the reasonable person standard, while professionals are held to the professional standard of care. 

This means that they must act with the same amount of prudence that a professional in the same area of work would exercise. This is especially important in cases of medical negligence in which medical professionals are held to a medical standard of care that provides the appropriate treatment guidelines for a patient with a specific illness or condition

Degrees of Care- Aggravated Negligence:

The amount of risk associated with a defendant's actions correlate to the amount of precautions that he should take to reduce harm to others. The degree of care taken corresponds to the degree of negligence that a defendant may be charged with. There are generally three degrees of negligence: slight negligence, gross negligence, and reckless negligence. 

Slight negligence is found in cases where a defendant is required to exercise such a high degree of care, that even a slight breach of this care will result in liability. Gross negligence includes a more severe lack of care than ordinary negligence, but not that of blatantly disregarding the law. Reckless negligence is the willful disregard for the safety of others where the defendant's unreasonably risky actions will almost definitely result in injury.

Rules of Law: 

Modern common law is built on a system of precedence. When a court makes a ruling, subsequent cases with the same or similar circumstances will be judged in the same way. If a court finds a defendant guilty of negligence, all other similar cases will also result in negligence. 

However, because negligence law is based on the moral attitude of a society and the behavior of people, which is subject to change over time, precedents are not always effective in negligence law. Situations can greatly affect a person's actions, and situations are, for the most part, always different. Therefore, the rules of law can only be applied in negligence cases when the case is characteristic of a typical situation. 

Violation of statute:

Some negligence cases are left to the discretion of the judge or jury, while other cases are based on violation of statute. Failure to abide by the code of conduct established by legislature may result in the defendant being liable for harm to the plaintiff caused by negligence. 

In order for this to occur, the defendant must be found to have violated some specific statute, the plaintiff must be within the class of persons the statute is meant to protect, and the result of the defendant's actions must be the type of accident that the statute is designed to prevent. 

It must be shown by the plaintiff that he did not contribute in any way to the defendant's violation of statute. However, some courts may still permit the plaintiff to collect damages even if the plaintiff himself is also guilty of some tortious act.

In order to determine whether a nuisance has occurred, and ultimately, whether the plaintiff should receive relief, there are several factors which must be considered. By definition, nuisance is a tort that interferes with a person's right to enjoy his property and maintain a comfortable lifestyle. 

 

 

Therefore, the most important determining factor is, if the defendant's actions actually constitute an interference. Also important, is the degree to which this interference effects the plaintiff. All property owners have a right to certain comforts. If the defendant's conduct interferes with basic comforts, such as the ability to sleep through the night, it is more likely that the defendant has committed a tort. 

 

 

For example, if the nuisance is a noise complaint, the time of day will be taken into consideration. If the defendant's dog barks incessantly all night long, the plaintiff is more likely to collect than if the barking occurs during the day while the plaintiff is at work. Nuisance law also weighs the interests of the defendant. If the alleged nuisance occurs when the defendant is attempting to perform normal, daily tasks, then it is not likely to be considered a nuisance at all.

 

 

In order to be considered a nuisance, the defendant's actions must be continuous. If the behavior occurs very infrequently, such as a one-time party, the behavior is not a tort; if it occurs one a week, then the plaintiff is more likely to be compensated. Situation is very important in determining nuisance. 

 

 

For example, if a plaintiff complains of loud noises by the defendant, it is more likely to be considered a nuisance if it occurs in a rural area where that type of noise is very uncommon. In a heavily populated, urban area, the plaintiff's complaint may not constitute a nuisance.

 

 

Nuisance law also factors in any sort of attempts by the defendant to minimize the complained of behavior. If the nuisance is connected to a business, the courts will consider if the business has the necessary means to remove the nuisance, or if removal of this behavior would prove detrimental to the business. In this case, the courts may impose monetary compensation by the defendant as opposed to an injunction.

 

The meaning of the term nuisance has taken many different forms over the years and is often very vague in its definition. In general, the term is characterized by a simple annoyance or hurt caused by some person or thing. Historically, nuisance referred to the denial of someones rights to use land. 

In the thirteenth century, the writ of nuisance was available to plaintiffs to take action against those injuries which were committed wholly on the land of the defendant, but interfered with the rights of the plaintiff. This was the beginnings of the modern day private nuisance. An extension of private nuisance eventually gave rise to public nuisance as well. Any interference on the rights of the public, or the rights of the crown, was considered to be a crime. 

These crimes first developed from wrongdoings on the property of a public highway, or other public property. Because of the similarity between crimes against private property and public property, these wrongdoings were also labeled as nuisances. The term became so widely used that it began to describe all types of crime against the crown or against private citizens.

A private nuisance is primarily based on a civil wrong in which the rights of a private individual, in which a wrongdoing has interfered with the plaintiff’s land. A public nuisance refers instead to a crime which effects the rights of the public at large. It is a very broad term that encompasses many different offenses. 

A public and private nuisance actually have very little comparison, except in name. The nature of the offenses are actually very different, but they both include some kind of interference by the wrongdoer that disturbs the plaintiff, or the public. In order for a defendant to be guilty of a private nuisance, he must have substantially interfered with the right of a plaintiff’s enjoyment of land. A public nuisance must effect the community in general. 

Absolute nuisances are nuisances for which the defendant is strictly liable. Certain activities are so sure to cause a nuisance that they are labeled this way. Setting off fireworks in public, storing flammable substances on one’s property, or even such things as extremely bad odors, will qualify as absolute nuisances.