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Intrusion Upon Name or Likeness of Another

Intrusion Upon Name or Likeness of Another

There are two types of claims Nevada (aside from identity theft) for the intrusion upon the name or likeness of another. The first, appropriation, is for unfamous ordinary people. The second, the right of publicity, if for famous or celebrated people. As the Nevada Supreme Court explained

As said, in the case of a private person, the invasion of privacy resulting from misuse or misappropriation of that person’s name or identity is a personal injury, an injury that is redressable by general damages for the mental anguish and embarrassment suffered by reason of the unwanted public use of the private person’s name. When, however, the name of a famous or celebrated person is used unauthorizedly, that person’s main concern is not with bruised feelings, but rather, with the commercial loss inherent in the use by another of the celebrated name or identity. The commercial or property interest that celebrities have in the use of their names and identities is protected under what has been termed the “right of publicity.”
There is a certain reciprocity between the two kinds of interests, personal and proprietary; and, accordingly, the more the aspects of one tort are present, the less likely are the aspects of the other tort to be present. The more obscure the plaintiffs are, the less commercial value their names have and the more such plaintiffs will be seeking to redress personal interests in privacy in a common law appropriation action, and not commercial or property interests in their name or likeness as a claimed violation of a right of publicity. The more famous and celebrated 1284 the plaintiffs, the less injury is likely to be claimed to their privacy interests, their interest in being “left alone,” because their names and likenesses already have wide recognition and are not appropriate subjects for invasions of personal privacy. Generally speaking, a private person will be seeking recovery for the appropriation tort, and a celebrity will be recovering for the right of publicity tort. A celebrity, whose identity, by definition, is well known, will not ordinarily be heard to complain of “indignity,” mental distress, or other personal injury resulting from the public use of his or her name; and consequently, such a person ordinarily will be suing for invasion of the right of publicity and will not likely be able to prosecute a successful claim under the common law privacy tort, appropriation of name or likeness.
People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1278 (Nev. 1995).

Unreasonable Intrusion Upon Seclusion of Another

Unreasonable Intrusion Upon Seclusion of Another

To recover for the tort of intrusion, a plaintiff must prove the following elements:

  1. an intentional intrusion (physical or otherwise);
  2. on the solitude or seclusion of another;
  3. that would be highly offensive to a reasonable person

Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1448 (D.Nev.,1994); People for the Ethical Treatment of Animals (PETA) v. Berosini, 110 Nev. 78, 867 P.2d 1121, 1131 (1994).

Example Cases

Proof

Damages

Defenses

Misc

The Court finds that Kuhn had a reasonable expectation of privacy at her place of work during working hours that arises from a desire to be left alone to perform the duties for which she was hired.
Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1449 (D.Nev.,1994).

The court considering whether a particular action is “highly offensive” should consider the following factors:

  1. the degree of intrusion,
  2. the context,
  3. conduct and circumstances surrounding the intrusion; as well as the intruder’s motives and objectives,
  4. the setting into which he intrudes, and
  5. expectations of those whose privacy is invaded

People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1274 n. 4 (1995)

 

Intentional Interference with Prospective Economic Advantage

Intentional Interference with Prospective Economic Advantage

 

Elements

  • a prospective contractual relationship between the plaintiff and a third party;
  • knowledge by the defendant of the prospective relationship;
  • intent to harm the plaintiff by preventing the relationship;
  • the absence of privilege or justification by the defendant; and
  • actual harm to the plaintiff as a result of the defendant’s conduct.

 Wichinsky v. Mosa, 109 Nev. 84, 88, 847 P.2d 727 (1993).

Leavitt v. Leisure Sports, Inc., 103 Nev. 81, 88, 734 P.2d 1221, 1225 (1987).

Example Cases

Proof

Defenses

[California Case] The tort’s ‘protectionist’ premise, however, is at war with itself. For the person who deserves protection in the acquisition of property is not only the interfered-with party but also the interfering party. Why then should the interfered-with party receive favor, while the interfering party is disfavored, by virtue of their respective status? Why should the interfered-with party’s acquisitive efforts be elevated to a kind of property interest, good against the world, while those of the interfering party are deemed illegitimate? It is ‘often assumed … that interference … should produce liability because it is wrong to interfere. This is, however, very much the same as saying it is wrong because it is wrong.’ (Dobbs,Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at p. 343 [speaking expressly of interference with contract].) In the words Lord Bramwell spoke in the House of Lords inMogul Steamship Company v. McGregor, Gow & Co., supra, [1892] A.C. 25, 47, affirming Mogul Steamship Company v. McGregor, Gow & Co., supra, 23 Q.B.D. 598, ‘[i]t does seem strange’–and more than strange–’that to enforce freedom of trade, of action, the law should punish’ the interfering party ‘who make[s] … perfectly honest’ arrangements ‘with a belief’ that they are ‘fairly required for [his] protection,’ whereas it rewards the interfered-with party who does likewise. (Italics in original.) Reason supports the conclusion that, even when there is a breach of contract, the interfered-with party should not be preferred over the interfering party: the breach may be ‘efficient.’ (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn.L.Rev. at pp. 1119-1120; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at pp. 78-91; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at pp. 360-361.) Reason practically compels the same conclusion when there is no breach because there is no contract. (See Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at pp. 90-91.)
Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 399, 45 Cal. Rptr. 2d 436, 755 (1995) (Mosk, concurring).

Statute of Limitations
“Because we have determined that business interests are personal property, we conclude that intentional interference with these business interests are actions for taking personal property and not actions for injuries to a person. See Clark v. Figge, 181 N.W.2d 211, 216 (Iowa 1970) (concluding that a claim for interference in business relationships was ‘fundamentally proprietary in character although incidental injuries may have been of a different nature’). Thus, we conclude that intentional interference with business interests are subject to the three-year statute of limitations set forth in NRS 11.190(3)(c).” Stalk v. Mushkin, 199 P.3d 838, 842 (Nev. 2009).
Privilege or Justification
[California Case] “[P]rivilege or justification is an affirmative defense, and the lack thereof need not be shown by the original pleader.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 389, 45 Cal. Rptr. 2d 436, 748 (1995) (quoting Buckaloo v. Johnson, 14 Cal.3d 815, 827-28, 122 Cal.Rptr. 745, 537 P.2d 865 (1975)).
Free Competition
“Perhaps the most significant privilege or justification for interference with a prospective business advantage is free competition. Ours is a competitive economy in which business entities vie for economic advantage. In a sense, all vendees are potential buyers of the products and services of all sellers in a given line, and success goes to him who is able to induce potential customers not to deal with a competitor. Thus, as Prosser states: ‘So long as the plaintiff’s contractual relations are merely contemplated or potential, it is considered to be in the interest of the public that any competitor should be free to divert them to himself by all fair and reasonable means.’ (Prosser, Torts (4th ed. 1971) p. 954).” Crockett v. Sahara Realty Corp., 95 Nev. 197, 199, 591 P.2d 1135, 1136 (1979). SeealsoDella Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 389, 45 Cal. Rptr. 2d 436, 748 (1995) (quoting Buckaloo v. Johnson, 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865 (1975)). “Thus, while no particular language should be required, the facts pleaded by a plaintiff must show an intent to do something which takes the defendant’s acts beyond those of a mere competitor securing business for himself.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 390–91, 45 Cal. Rptr. 2d 436, 749 (1995) (quotingA.F. Arnold & Co. v. Pacific Professional Ins., Inc., supra, 27 Cal.App.3d 710, 716, 104 Cal.Rptr. 96 (1972)). “In order to defeat the privilege [of competition] the defendant’s conduct must be unlawful or illegitimate.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 391, 45 Cal. Rptr. 2d 436, 446, 902 P.2d 740, 750 (1995).

[California Case] In San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 50 Cal.Rptr.2d 716 (San Francisco Design Center ), on which the trial court here relied, the court held that to defeat the privilege of competition, the defendant’s conduct ‘must be unlawful or illegitimate. That is, … the … competitor’s conduct [must have] violated a statute or constituted a tort such as fraud or unfair competition. The defendant’s conduct must be independently actionable. [Citations.]’ (San Francisco Design Center, supra, 41 Cal.App.4th at pp. 42-43, 50 Cal.Rptr.2d 716, fns. omitted, citing Conoco Inc. v. Inman Oil Co., Inc. (8th Cir.1985) 774 F.2d 895, 907 [‘ ‘wrongful means’ … refers to means which are intrinsically wrongful-that is, conduct which is itself capable of forming the basis for liability of the actor’]; Doliner v. Brown (1986) 21 Mass.App. 692 [489 N.E.2d 1036, 1039-1040].)
The court reasoned that ‘[r]equiring proof that the competitor’s wrongful conduct is independently actionable will provide a clearer guide to competitors in the conduct of their business affairs. Detached from the concepts of actionable or unlawful, the term ‘wrongful’ provides little assistance in guiding future activities…. The term ‘wrongful’ is far too broad and covers much activity which should not defeat the competition privilege.’ ( San Francisco Design Center, supra, 41 Cal.App.4th at p. 43, 50 Cal.Rptr.2d 716.) In Della Penna, the court cited San Francisco Design Center favorably for the proposition that to defeat the privilege of competition the defendant’s conduct must be ‘ ‘unlawful or illegitimate.’ ‘ (Della Penna, supra, 11 Cal.4th 376, 391, 45 Cal.Rptr.2d 436, 902 P.2d 740.)”

Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc., 116 Cal. Rptr. 2d 358, 365–66, 95 Cal. App. 4th 1249, 1258–259 (2002).

[California Case] “Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 392, 45 Cal. Rptr. 2d 436, 750–51 (1995).

[California Case] “Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant.” Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 392, 45 Cal. Rptr. 2d 436, 751 (1995).

[California Case] Further, liability under the tort may threaten values of greater breadth and higher dignity than those of the tort itself. One is the common law’s policy of freedom of competition. ‘ ‘The policy of the common law has always been in favor of free competition, which proverbially is the life of trade. So long as the plaintiff’s contractual relations are merely contemplated or potential, it is considered to be in the interest of the public that any competitor should be free to divert them to himself by all fair and reasonable means…. In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff’s back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.’ ‘ (A-Mark Coin Co. v. General Mills, Inc. (1983) 148 Cal.App.3d 312, 323-324, 195 Cal.Rptr. 859, quoting, without fns., Prosser, The Law of Torts (4th ed. 1971) Interference With Prospective Advantage, § 130, pp. 954-955; see, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn.L.Rev. at p. 1107.)

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 399–400, 45 Cal. Rptr. 2d 436, 755 (1995) (Mosk, concurring.)

Freedom of Speech

[California Case] Another of these values expresses itself in the guaranty of freedom of speech in the First Amendment to the United States Constitution. [FN2] ‘[S]ociety places a high value on free speech.’ (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at p. 74.) ‘ ‘The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty–and thus a good unto itself–but also is essential to the common quest for truth and the vitality of society as a whole.’ ‘ (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1041, 232 Cal.Rptr. 542, 728 P.2d 1177, quoting Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503-504, 104 S.Ct. 1949, 1960-61, 80 L.Ed.2d 502.) The interfering party, however, often interferes by means of words. It has been said that, ‘so far as tort liability is imposed for the communication of facts, opinions or arguments, that liability is simply inconsistent with the law’s long commitment to free speech.’ (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at p. 361; see generally id. at pp. 361-363.) At the very least, the ‘need for limits is acute….’ (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at p. 74.) It matters not that the words in question may amount only to so-called ‘commercial speech.’ (See Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528, 1544-1545, 1 Cal.Rptr.2d 514.) That is because ‘commercial speech is not ‘wholly outside the protection of the First Amendment [.]’ ‘ (Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 91, 97 S.Ct. 1614, 1617, 52 L.Ed.2d 155, quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council Inc. (1976) 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346.)

FN2. The First Amendment, of course, is made applicable to the states through the due process clause of the Fourteenth Amendment. (New York Times Co. v. Sullivan(1964) 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686.)

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 400–401, 45 Cal. Rptr. 2d 436, 755–56 (1995) (Mosk, concurring).

Freedom of Association

[California Case] A related value is found in the First Amendment’s guaranty of freedom of association. ‘[O]ne of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.’ (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 933, 102 S.Ct. 3409, 3436, 73 L.Ed.2d 1215.) But when individuals join with each other to achieve an objective and undertake to act in the economic sphere, they run the risk that they will collectively be deemed an interfering party. Thus it happened to labor unionists, in the decades before and after the turn of the century, as they engaged in struggle over the terms and conditions of employment. (S’ee, e.g., Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, supra, 93 Harv.L.Rev. at pp. 1529-1537 [dealing with torts including that of intentional interference with prospective economic advantage]; Sayre, Inducing Breach of Contract (1923) 36 Harv.L.Rev. 663, 690-696 [same].) And thus it has happened in the present day as members of minority groups have sought to secure and exercise their political and civil rights. (See, e.g., NAACP v. Claiborne Hardware Co., supra, 458 U.S. at pp. 888-906, 102 S.Ct. at pp. 3413-3421.) It follows that associational freedom, too, calls for the limitation of liability under the tort.

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 401, 45 Cal. Rptr. 2d 436, 756 (1995) (Mosk, concurring).

Right to Petition the Government

[California Case] Still another value inheres in the First Amendment’s guaranty of the people’s right to petition the government for redress of grievances. This protection is one of our ‘great, … indispensable democratic freedoms,’ and occupies a ‘preferred place … in our scheme.’ (Thomas v. Collins (1945) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430.) The interfering party, however, may interfere by raising his voice and expressing his views to governmental authorities. (See Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 135-137, 161 Cal.Rptr. 532; see also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1133, 1135, 270 Cal.Rptr. 1, 791 P.2d 587.) To be sure, the ‘grievances for redress of which the right of petition was insured’ include ‘religious [and] political ones’ and others of that stature. (Thomas v. Collins, supra, 323 U.S. at p. 531, 65 S.Ct. at p. 323.) But they may embrace as well even such as relate merely to ‘business or economic activity.’ (Ibid.) Thus, the right of petition also calls for the limitation of liability under the tort. (Carpenter, Interference With Contract Relations, supra, 41 Harv.L.Rev. at pp. 751- 752.)

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 401–402 n.4, 45 Cal. Rptr. 2d 436, 756–57 n.4 (1995) (Mosk, concurring).

Qualified Governmental Immunity
“under the terms of NRS 41.032(2), political subdivisions are immune from liability resulting from the discretionary acts of their agents or employees”City of Boulder City v. Boulder Excavating, Inc., 191 P.3d 1175, 1178 (2008).

“NRS 41.032(2) provides qualified immunity to state agencies in the performance of discretionary acts.’” City of Boulder City v. Boulder Excavating, Inc., 191 P.3d 1175, 1178 (2008) (quoting University & Community College System v. Sutton, 118 Nev. 609, 55 P.3d 420 (2002)).

Defenses

Misc

Intentional Interference with Contractual Relations

Intentional Interference with Contractual Relations

Elements

A Plaintiff must prove:

  • a valid and existing contract;
  • the defendant’s knowledge of the contract;
  • intentional acts intended or designed to disrupt the contractual relationship;
  • actual disruption of the contract; and
  • resulting damage.

J.J. Indus., LLC v. Bennett, 119 Nev. 269, 274, 71 P.3d 1264, 1267 (2003) Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993) Sutherland v. Gross, 105 Nev. 192, 196, 772 P.2d 1287, 1290 (1989) Wichinsky v. Mosa, 109 Nev. 84, 88, 847 P.2d 727 (1993).

Example Cases

Proof

Knowledge

Intent

  • “[T]here can be no doubt that proof of intentional interference is a sine qua non of the tort.”
    M & R Inv. Co. v. Goldsberry, 707 P.2d 1143 (Nev. 1985).
  • “‘The fact of a general intent to interfere, under a definition that includes imputed knowledge of consequences, does not alone suffice to impose liability. Inquiry into the motive or purpose of the actor is necessary. The inducement of a breach, therefore, does not always vest third or incidental persons with a tort action against the one who interfered. Where the actor’s conduct is not criminal or fraudulent, and absent some other aggravating circumstances, it is necessary to identify those whom the actor had a specific motive or purpose to injure by his interference and to limit liability accordingly.’ Nat. Right to Life P.A. Com., 741 F.Supp. at 814 (emphasis in original) (quoting DeVoto v. Pacific Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.1980)).”
    J.J. Indus., LLC v. Bennett, 119 Nev. 269, 275, 71 P.3d 1264, 1268 (2003).
  • “[B]ecause the action involves an intentional tort, the inquiry usually concerns the defendant’s ultimate purpose or the objective that he or she is seeking to advance.Thus, mere knowledge of the contract is insufficient to establish that the defendant intended or designed to disrupt the plaintiff’s contractual relationship; instead, the plaintiff must demonstrate that the defendant intended to induce the other party to breach the contract with the plaintiff. Accordingly, the plaintiff must inquire into the defendant’s motive.”
    J.J. Indus., LLC v. Bennett, 119 Nev. 269, 275–76, 71 P.3d 1264, 1268 (2003).

Damages

Defenses

[California Case] The tort’s ‘protectionist’ premise, however, is at war with itself. For the person who deserves protection in the acquisition of property is not only the interfered-with party but also the interfering party. Why then should the interfered-with party receive favor, while the interfering party is disfavored, by virtue of their respective status? Why should the interfered-with party’s acquisitive efforts be elevated to a kind of property interest, good against the world, while those of the interfering party are deemed illegitimate? It is ‘often assumed … that interference … should produce liability because it is wrong to interfere. This is, however, very much the same as saying it is wrong because it is wrong.’ (Dobbs,Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at p. 343 [speaking expressly of interference with contract].) In the words Lord Bramwell spoke in the House of Lords inMogul Steamship Company v. McGregor, Gow & Co., supra, [1892] A.C. 25, 47, affirming Mogul Steamship Company v. McGregor, Gow & Co., supra, 23 Q.B.D. 598, ‘[i]t does seem strange’–and more than strange–’that to enforce freedom of trade, of action, the law should punish’ the interfering party ‘who make[s] … perfectly honest’ arrangements ‘with a belief’ that they are ‘fairly required for [his] protection,’ whereas it rewards the interfered-with party who does likewise. (Italics in original.) Reason supports the conclusion that, even when there is a breach of contract, the interfered-with party should not be preferred over the interfering party: the breach may be ‘efficient.’ (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn.L.Rev. at pp. 1119-1120; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at pp. 78-91; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at pp. 360-361.) Reason practically compels the same conclusion when there is no breach because there is no contract. (See Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at pp. 90-91.)
Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 399, 45 Cal. Rptr. 2d 436, 755 (1995) (Mosk, concurring).

Statute of Limitations
“Because we have determined that business interests are personal property, we conclude that intentional interference with these business interests are actions for taking personal property and not actions for injuries to a person. See Clark v. Figge, 181 N.W.2d 211, 216 (Iowa 1970) (concluding that a claim for interference in business relationships was ‘fundamentally proprietary in character although incidental injuries may have been of a different nature’). Thus, we conclude that intentional interference with business interests are subject to the three-year statute of limitations set forth in NRS 11.190(3)(c).”
Stalk v. Mushkin, 199 P.3d 838, 842 (Nev. 2009).

Privilege or Justification
[California Case] “[P]rivilege or justification is an affirmative defense, and the lack thereof need not be shown by the original pleader.”
Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 389, 45 Cal. Rptr. 2d 436, 748 (1995) (quoting Buckaloo v. Johnson, 14 Cal.3d 815, 827-28, 122 Cal.Rptr. 745, 537 P.2d 865 (1975)).

Freedom of Speech

[California Case] Another of these values expresses itself in the guaranty of freedom of speech in the First Amendment to the United States Constitution. [FN2] ‘[S]ociety places a high value on free speech.’ (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at p. 74.) ‘ ‘The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty–and thus a good unto itself–but also is essential to the common quest for truth and the vitality of society as a whole.’ ‘ (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1041, 232 Cal.Rptr. 542, 728 P.2d 1177, quoting Bose Corp. v. Consumers Union of U.S., Inc., (1984) 466 U.S. 485, 503-504, 104 S.Ct. 1949, 1960-61, 80 L.Ed.2d 502.) The interfering party, however, often interferes by means of words. It has been said that, ‘so far as tort liability is imposed for the communication of facts, opinions or arguments, that liability is simply inconsistent with the law’s long commitment to free speech.’ (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark.L.Rev. at p. 361; see generally id. at pp. 361-363.) At the very least, the ‘need for limits is acute….’ (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U.Chi.L.Rev. at p. 74.) It matters not that the words in question may amount only to so-called ‘commercial speech.’ (See Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528, 1544-1545, 1 Cal.Rptr.2d 514.) That is because ‘commercial speech is not ‘wholly outside the protection of the First Amendment [.]’ ‘ (Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 91, 97 S.Ct. 1614, 1617, 52 L.Ed.2d 155, quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council Inc. (1976) 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346.)

FN2. The First Amendment, of course, is made applicable to the states through the due process clause of the Fourteenth Amendment. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686.)

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 400–401, 45 Cal. Rptr. 2d 436, 755–56 (1995) (Mosk, concurring).

Freedom of Association

[California Case] A related value is found in the First Amendment’s guaranty of freedom of association. ‘[O]ne of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.’ (NAACP v. Claiborne Hardware Co.(1982) 458 U.S. 886, 933, 102 S.Ct. 3409, 3436, 73 L.Ed.2d 1215.) But when individuals join with each other to achieve an objective and undertake to act in the economic sphere, they run the risk that they will collectively be deemed an interfering party. Thus it happened to labor unionists, in the decades before and after the turn of the century, as they engaged in struggle over the terms and conditions of employment. (S’ee, e.g., Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, supra, 93 Harv.L.Rev. at pp. 1529-1537 [dealing with torts including that of intentional interference with prospective economic advantage]; Sayre, Inducing Breach of Contract (1923) 36 Harv.L.Rev. 663, 690-696 [same].) And thus it has happened in the present day as members of minority groups have sought to secure and exercise their political and civil rights. (See, e.g., NAACP v. Claiborne Hardware Co., supra, 458 U.S. at pp. 888-906, 102 S.Ct. at pp. 3413-3421.) It follows that associational freedom, too, calls for the limitation of liability under the tort.

Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 401, 45 Cal. Rptr. 2d 436, 756 (1995) (Mosk, concurring).

Right to Petition the Government

[California Case] Still another value inheres in the First Amendment’s guaranty of the people’s right to petition the government for redress of grievances. This protection is one of our ‘great, … indispensable democratic freedoms,’ and occupies a ‘preferred place … in our scheme.’ (Thomas v. Collins (1945) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430.) The interfering party, however, may interfere by raising his voice and expressing his views to governmental authorities. (See Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 135-137, 161 Cal.Rptr. 532;see also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1133, 1135, 270 Cal.Rptr. 1, 791 P.2d 587.) To be sure, the ‘grievances for redress of which the right of petition was insured’ include ‘religious [and] political ones’ and others of that stature. (Thomas v. Collins, supra, 323 U.S. at p. 531, 65 S.Ct. at p. 323.) But they may embrace as well even such as relate merely to ‘business or economic activity.’ (Ibid.) Thus, the right of petition also calls for the limitation of liability under the tort. (Carpenter, Interference With Contract Relations, supra, 41 Harv.L.Rev. at pp. 751- 752.)

Negligent Infliction of Emotional Distress

 

Negligent Infliction of Emotional Distress

 

Elements

To recover, the witness-plaintiff must prove that he or she:

  1. was located near the scene;
  2. was emotionally injured by the contemporaneous sensory observance of the accident; and
  3. was closely related to the victim.

Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

The “physical impact” requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993).

We therefore hold that any non-family “relationship” fails, as a matter of law, to qualify for NIED standing.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Example Cases

State v. Eaton, 710 P. 2d 1370 (Nev. 1985).

Proof

Because the test we have adopted is calculated to foster predictability and fairness in these matters, we conclude that the question of standing of “in-laws” to bring NIED claims must be left to the fact finder rather than determined as a matter of law. In this, I now retreat somewhat from my concurring position in Hill.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Damages

The actual closeness of the family relationship, whether or not the victim and the bystander are immediate family members, is always an issue of fact with respect to damages.
Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993)

Defenses

Misc

  • Mortuary liable for NEID

Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4 (Nev.,2010).

Also, our historical concern that emotional distress must be demonstrated by some physical manifestation of emotional distress is not implicated in this context. We need not question the trustworthiness of an individual’s emotional anguish in cases involving desecration of a loved one’s remains. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 362 (5th ed. 1984) (“[A group of cases eliminating the physical manifestation requirement] has involved the negligent mishandling of corpses … [because there is] … an especial likelihood of genuine and serious mental distress, … which serves as a guarantee that the claim is not spurious.”); Allen v. Jones, 104 Cal.App.3d 207, 163 Cal.Rptr. 445, 450 (1980) (concluding that “damages are recoverable … without physical injury for negligent mishandling of a corpse”); Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37, 44 (1990) (exempting the physical manifestation of emotional distress requirement in cases involving the negligent handling of a deceased person’s remains).

Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 8 (Nev.,2010).

We now conclude, contrary to the plurality holding in Hill, that standing issues concerning “closeness of relationship” between a victim and a bystander should, as a general proposition, be determined based upon family membership, either by blood or marriage. Immediate family members of the victim qualify for standing to bring NIED claims as a matter of law. SeeHill, 114 Nev. at 820, 963 P.2d at 485 (Maupin, J., concurring). When the family relationship between the victim and the bystander is beyond the immediate family, the fact finder should assess the nature and quality of the relationship and, therefrom, determine as a factual matter whether the relationship is close enough to confer standing. This latter category represents the “few close cases” where standing will be determined as an issue of fact, either by a jury or the trial court sitting without a jury. See id. at 820, 963 P.2d at 485. We therefore hold that any non-family “relationship” fails, as a matter of law, to qualify for NIED standing.

Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999).

Recovery may not be had, under this cause of action, for the “grief that may follow from the death of the related accident victim,” for example.

State v. Eaton, 710 P. 2d 1370 (Nev. 1985).

In addition, because the 51s satisfied their legal duty in this case as a matter of law, we conclude that Mr. Turner’s NIED claim fails and that the district court did not err in granting summary judgment on that claim. See Moon v. Guardian Postacute Services, Inc., 95 Cal.App.4th 1005, 116 Cal.Rptr.2d 218, 220-21 (2002) (explaining that “NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages”).

Turner v. Mandalay Sports Entertainment, LLC, 180 P.3d 1172 (Nev. 2008).

The Dillon Rule [Foreseeability and Zone of Impact]

[TrucCounsel Editor Note: It is important to understand Nevada’s interpretation of the Dillon Rule.  This begins with State v. Eaton.  I recommend that you read it carefully. State v. Eaton, 710 P. 2d 1370 (Nev. 1985).]

We further conclude that persons who may assert such a claim do not need to observe or perceive the negligent conduct, or demonstrate any physical manifestation of emotional distress. Requiring a potential plaintiff to observe or perceive the negligent conduct would essentially grant immunity to persons who negligently handle a deceased’s remains in many instances because the activities of a mortuary mostly occur behind closed doors.

Boorman v. Nevada Mem’l Cremation Society, 236 P.3d 4, 8 (Nev.,2010).

Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court’s test for negligent infliction of emotional distress. Id. at 715, 710 P.2d 1370.

 In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist’s negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.

Crippens v. Sav on Drug Stores, 114 Nev. 760, 762-63, 961 P.2d 761, 763 (1998)

 

 

 

 

Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress

 

Elements

Generally, the elements of this cause of action are

(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress,
(2) the plaintiff’s having suffered severe or extreme emotional distress and
(3) actual or proximate causation.

Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 92 (1981)

Example Cases

Proof

  • Sliding scale on proof of physical manifestation

In the context of intentional infliction of emotional distress, we have stated that “[t]he less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from the emotional distress.”
Nelson v. City of Las Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983).

Damages

Defenses

Liability for emotional distress generally does not extend to ‘mere insults, indignities, threats[,] annoyances, petty oppressions, or other trivialities. ” Burns v. Mayer, 175 F.Supp.2d 1259, 1268 (D.Nev.2001) (quoting Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956, 962 (D.Nev.1990)).

Pleading

The claim for battery alleges that Defendants beat the children, which is sufficient to support a battery claim. The intentional infliction of emotional distress claim consists of a bare-bones recitation of the cause of action; however, when the rest of the complaint is considered as incorporated, the allegations of starving and beating the children support this claim. Fullmer v. Brown, Case. No. No. 2:09-cv-01442-RCJ-PAL

Slip Copy, 2010 WL 3860650, *3 D.Nev.,2010

Misc

  • IIED only in extreme and outrageous circumstances

“[l]iability is only found in extreme cases where the actions of the defendant go beyond all possible bounds of decency, are

atrocious and utterly intolerable.”
Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 (D. Nev. 1993).

 

Fraudulent Conveyance

Fraudulent Conveyance

Elements

Actual Fraudulent Transfer

(1) A debtor made a transfer or incurred an obligation;

(2) With actual intent to hinder, delay, or defraud any creditor of the debtor

  • It does not matter whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.

Nev. Rev. Stat. § 112.180(1)(a); Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 873 (2007).

Constructive Fraudulent Transfer
(1) A debtor made a transfer or incurred an obligation;
(2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation; and
(3) The debtor either
(a) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(b) Intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
*It does not matter whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.

Nev. Rev. Stat. § 112.180(1)(b); Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 873 (2007).

Transfer by Insolvent Debtor
(1) A debtor made a transfer or incurred an obligation;
(2) The creditor’s claim arose before the transfer was made or the obligation was incurred;
(3) The debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation; and
(4) The debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
OR
(1) The debtor makes a transfer;
(2) The creditor’s claim arose before the transfer was made ;
(3) The transfer was made to an insider for an antecedent debt;
(4) The debtor was insolvent at that time; and
(5) The insider had reasonable cause to believe that the debtor was insolvent.

Nev. Rev. Stat. § 112.190; Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 873 (2007).

Example Cases

Proof

Intent
In determining actual intent under paragraph (a) of subsection 1, consideration may be given, among other factors, to whether:
(a) The transfer or obligation was to an insider;
(b) The debtor retained possession or control of the property transferred after the transfer;
(c) The transfer or obligation was disclosed or concealed;
(d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(e) The transfer was of substantially all the debtor’s assets;
(f) The debtor absconded;
(g) The debtor removed or concealed assets;
(h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(j) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
(k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
Nev. Rev. Stat. § 112.180(2); Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 873-74 (2007).

Insolvency
1. A debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.
2. A debtor who is generally not paying his debts as they become due is presumed to be insolvent.
3. A partnership is insolvent under subsection 1 if the sum of the partnership’s debts is greater than the aggregate, at a fair valuation, of all of the partnership’s assets and the sum of the excess of the value of each general partner’s nonpartnership assets over the partner’s nonpartnership debts.
4. Assets under this section do not include property that has been transferred, concealed or removed with intent to hinder, delay or defraud creditors or that has been transferred in a manner making the transfer voidable under this chapter.
5. Debts under this section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset.

Nev. Rev. Stat. § 112.160; Sportsco Enterprises v. Morris, 112 Nev. 625, 632, 917 P.2d 934, 938 n.4 (1996).

A creditor bears the burden of proof to show insolvency existing at the time or resulting from the conveyance. Sportsco Enterprises v. Morris, 112 Nev. 625, 632, 917 P.2d 934, 938 (1996); Matusik v. Large, 85 Nev. 202, 205, 452 P.2d 457, 458 (1969).

“However, where the creditor establishes the existence of certain indicia or badges of fraud, the burden shifts to the defendant to come forward with rebuttal evidence that a transfer was not made to defraud the creditor.” Sportsco Enterprises v. Morris, 112 Nev. 625, 632, 917 P.2d 934, 938 (1996).

“Generally recognized indicia of fraud include lack of consideration for the conveyance, the transfer of the debtor’s entire estate, relationship between transferor and transferee, the pendency or threat of litigation, secrecy or hurried transaction, insolvency or indebtedness of the transferor, departure from the usual method of business, the retention by the debtor of possession of the property, and the reservation of benefit to the transferor.” Sportsco Enterprises v. Morris, 112 Nev. 625, 632, 917 P.2d 934, 938 (1996).

Reasonably Equivalent Value

A creditor bears the burden of proof to show the absence or inadequacy of the exchange of a reasonably equivalent value. Sportsco Enterprises v. Morris, 112 Nev. 625, 632, 917 P.2d 934, 938 (1996); Matusik v. Large, 85 Nev. 202, 205, 452 P.2d 457, 458 (1969).

On the issue of fair consideration for the transfers, the test to be applied is whether the disparity between the true value of the property transferred and the price paid is so great as to shock the conscience and strike the understanding at once with the conviction that such transfer never could have been made in good faith. Matusik v. Large, 85 Nev. 202, 208, 452 P.2d 457, 460 (1969).

Property
“Property” means anything that may be the subject of ownership. Nev. Rev. Stat. § 112.150(10); Sportsco Enterprises v. Morris, 112 Nev. 625, 631, 917 P.2d 934, 937 (1996).

Insider
“Insider” includes:
(a) If the debtor is a natural person:
(1) A relative of the debtor or of a general partner of the debtor;
(2) A partnership in which the debtor is a general partner;
(3) A general partner in a partnership described in subparagraph (2); and
(4) A corporation of which the debtor is a director, officer or person in control;
(b) If the debtor is a corporation:
(1) A director of the debtor;
(2) An officer of the debtor;
(3) A person in control of the debtor;
(4) A partnership in which the debtor is a general partner;
(5) A general partner in a partnership described in subparagraph (4); and
(6) A relative of a general partner, director, officer or person in control of the debtor;
(c) If the debtor is a partnership:
(1) A general partner in the debtor;
(2) A relative of a general partner in, a general partner of, or a person in control of the debtor;
(3) Another partnership in which the debtor is a general partner;
(4) A general partner in a partnership described in subparagraph (3); and
(5) A person in control of the debtor;
(d) An affiliate, or an insider of an affiliate as if the affiliate were the debtor; and
(e) A managing agent of the debtor.

Nev. Rev. Stat. § 112.150(7).

Damages

Defenses

Good Faith
A transfer or obligation is not voidable under paragraph (a) of subsection 1 of NRS 112.180 against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee. Nev. Rev. Stat. § 112.220(1).

“[I]n order to establish a good faith defense to a fraudulent transfer claim, the transferee must show objectively that he or she did not know or had no reason to know of the transferor’s fraudulent purpose to delay, hinder, or defraud the transferor’s creditors.” Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 876 (2007).

“[A] transferee must prove that he received the transfer in objective good faith. That is, good faith must be determined on a case-by-case basis by examining whether the facts would have caused a reasonable transferee to inquire into whether the transferor’s purpose in effectuating the transfer was to delay, hinder, or defraud the transferor’s creditors. Constructive notice may be inferred from knowledge of facts that impose a duty to inquire. While a transferee’s lack of actual knowledge of the transferor’s fraudulent purpose is relevant to determining whether the transferee received the transferred property in objective good faith, that fact alone is not dispositive.” Herup v. First Boston Financial, LLC, 123 Nev. 27, 162 P.3d 870, 875-76 (2007).

Misc

 

Fraudulent Concealment

Fraudulent Concealment

 

Elements

To establish a prima facie case of fraudulent concealment, a plaintiff must offer proof that satisfies five elements:

  1. the defendant concealed or suppressed a material fact;
  2. the defendant was under a duty to disclose the fact to the plaintiff;
  3. the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; that is, the defendant concealed or suppressed the fact for the purpose of inducing the plaintiff to act differently than she would have if she had known the fact;
  4. the plaintiff was unaware of the fact and would have acted differently if she had known of the concealed or suppressed fact;
  5. and, as a result of the concealment or suppression of the fact, the plaintiff sustained damages.

Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1483-84, 970 P.2d 98, 110 (1998) (citing Nevada Power Co. v. Monsanto Co., 891 F.Supp. 1406, 1415 (D.Nev.1995)).

Example Cases

Proof

Generally, an action in deceit will not lie for nondisclosure. Epperson v. Roloff, 102 Nev. 206, 213, 719 P.2d 799, 803 (1986). For a mere omission to constitute actionable fraud, a plaintiff must first demonstrate that the defendant had a duty to disclose the fact at issue. See Monsanto, 891 F.Supp. at 1417.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1483-84, 970 P.2d 98, 110 (1998).

Damages

Defenses

Misc

Duty to Disclose

With respect to fraudulent concealment, a duty to disclose arises from the relationship of the parties. A fiduciary relationship, for instance, gives rise to a duty of disclosure. See, e.g., Foley v. Morse & Mowbray, 109 Nev. 116, 125-26, 848 P.2d 519, 525 (1993). A duty to disclose may also arise where the parties enjoy a “special relationship,” that is, where a party reasonably imparts special confidence in the defendant and the defendant would reasonably know of this confidence. SeeMackintosh v. Jack Matthews & Co., 109 Nev. 628, 634-35, 855 P.2d 549, 553 (1993) (citing Mancini v. Gorick, 41 Ohio App.3d 373, 536 N.E.2d 8, 10 (Ohio Ct.App.1987)). A party’s superior knowledge thus imposes a duty to speak in certain transactions, depending on the parties’ relationship. “Nondisclosure will become the equivalent of fraudulent concealment when it becomes the duty of a person to speak in order that the party with whom he is dealing may be placed on an equal footing with him.” Mackintosh, 109 Nev. at 634-35, 855 P.2d at 553 (quoting Mancini, 536 N.E.2d at 9-10). Even when the parties are dealing at arm’s length, a duty to disclose may arise from “the existence of material facts peculiarly within the knowledge of the party sought to be charged and not within the fair and reasonable reach of the other party.” Villalon v. Bowen, 70 Nev. 456, 467-68, 273 P.2d 409, 415 (1954) (failure of purported widow to tell the executor of her purported husband’s estate that her prior marriage had not been terminated).
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1483-84, 970 P.2d 98, 110 (1998).

The duty to disclose requires, at a minimum, some form of relationship between the parties. SeeMackintosh, 109 Nev. at 634-35, 855 P.2d at 553 (disclosure mandated in context of dealings between parties); Viltalon, 70 Nev. at 467-68, 273 P.2d at 415 (same); see alsoIn re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1497 (8th Cir.1997) [hereinafter TMJ Implants] (without some kind of relationship, there can be no duty to disclose). Absent such a relationship, no duty to disclose arises, and as a result, no liability for fraudulent concealment attaches to the nondisclosing party.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1483-84, 970 P.2d 98, 110-11 (1998).

 

Fraudulent or Intentional Misrepresentation

Fraudulent or Intentional Misrepresentation

 


 


Standard Intentional Misrepresentation

(1) defendant made a false representation,
(2) with knowledge or belief that the representation was false or without a sufficient basis for making the representation,
(3) the defendant intended to induce the plaintiff to act or refrain from acting on the representation,
(4) the plaintiff justifiably relied on the representation, and
(5) the plaintiff was damaged as a result of his reliance.

J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 290–91, 89 P.3d 1009, 1018 (2004)

Fraud By Omission
With respect to the false representation element, the suppression or omission ” ‘of a material fact which a party is bound in good faith to disclose is equivalent to a false representation, since it constitutes an indirect representation that such fact does not exist.’
Nelson v. Heer, 123 Nev. 217, 163 P.3d 420 (Nev. 2007) (quoting Midwest Supply, Inc. v. Waters, 89 Nev. 210, 212-13, 510 P.2d 876, 878 (1973).

Example Cases

Foster v. Dingwall, — P.3d —, 2010 WL 679069, at *8 (Nev. Feb. 25, 2010) (en banc); Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety, 121 Nev. 44, 75, 110 P.3d 30, 51 (2005)J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 290–91, 89 P.3d 1009, 1018 (2004) Chen v. Nev. State Gaming Control Bd.,116 Nev. 282, 284, 994 P.2d 1151, 1152 (2000) Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260, 969 P.2d 949, 957 (1998) Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998); Blanchard v. Blanchard, 108 Nev. 908, 911, 839 P.2d 1320, 1322 (1992) Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110–11, 825 P.2d 588, 592 (1992) Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819, 821 (1987) Epperson v. Roloff, 102 Nev. 206, 211, 719 P.2d 799, 802 (1986) Hartford Acc. & Indem. Co. v. Rogers, 96 Nev. 576, 580 n.1, 613 P.2d 1025, 1027 n.1 (1980) Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975).

Proof

“The intention that is necessary to make the rule stated in this Section applicable is the intention of the promisor when the agreement was entered into. The intention of the promisor not to perform an enforceable or unenforceable agreement cannot be established solely by proof of its nonperformance, nor does his failure to perform the agreement throw upon him the burden of showing that his nonperformance was due to reasons which operated after the agreement was entered into. The intention may be shown by any other evidence that sufficiently indicates its existence, as, for example, the certainty that he would not be in funds to carry out his promise.” REST 2d TORTS § 530, comment d.

A plaintiff has the burden of proving each element of fraud claim by clear and convincing evidence. Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260, 969 P.2d 949, 957 (1998);Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110–11, 825 P.2d 588, 592 (1992); Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975).

“Whether these elements are present in a given case is ordinarily a question of fact.” Epperson v. Roloff, 102 Nev. 206, 211, 719 P.2d 799, 802 (1986).

“Further, ‘[w]here an essential element of a claim for relief is absent, the facts, disputed or otherwise, as to other elements are rendered immaterial and summary judgment is proper.’ Bulbman, 108 Nev. at 111, 825 P.2d at 592.” Barmettler v. Reno Air, Inc., 114 Nev. 441, 447, 956 P.2d 1382, 1386 (1998).

“‘[f]raud is never presumed; it must be clearly and satisfactorily proved.’” J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 291, 89 P.3d 1009, 1018 (2004) (quoting Havas v. Alger, 85 Nev. 627, 631, 461 P.2d 857, 860 (1969)).

“the essence of any misrepresentation claim is a false or misleading statement that harmed [the plaintiff].” Nanopierce Techs., Inc. v. Depository Trust & Clearing Corp., 123 Nev. 362, 168 P.3d 73, 82 (2007).

False Representations

  • Estimates and opinions are not false representations. Commendatory sales talk (puffing) isn’t either.

“Nevada Bell’s representations to Bulbman about the cost of Centrex and the installation time are estimates and opinions based on past experience with the system. As such, these representations are not actionable in fraud. See Clark Sanitation v. Sun Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971). Nevada Bell’s representations as to the reliability and performance of the system constitute mere commendatory sales talk about the product (‘puffing’), also not actionable in fraud. See e.g., Coy v. Starling, 53 Or.App. 76, 630 P.2d 1323 (1981). Furthermore, in his deposition, Gerald Roth, Jr., testified that he did not believe Nevada Bell had intentionally lied to him about its Centrex system. Rather, Roth stated that Nevada Bell might have been ‘more careful’ in making certain representations, particularly with respect to how long it would take to install a Centrex system. Roth’s testimony establishes the absence of fraudulent intent on the part of Nevada Bell.” Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 111, 825 P.2d 588, 592 (1992).

“An estimate is an opinion and an estimate of value is an opinion as to value upon which reasonable and honorable men may hold differing views. This is the basis for the frequently announced rule that a charge of fraud normally may not be based upon representations of value. Frankfurt v. Wilson, 353 S.W.2d 490 (Tex.Civ.App.1961); Burke v. King, 176 Okl. 625, 56 P.2d 1185 (1936).” Clark Sanitation, Inc. v. Sun Valley Disposal Co., 87 Nev. 338, 341, 487 P.2d 337, 339 (1971).

“Story, in his work on contracts, in discussing the various questions presented by the misrepresentations of the vendor, lays down the rule as follows: ‘If the seller fraudulently misrepresents facts, or states facts to exist which he knows not to exist, his fraud would vitiate the contract, provided the misstatements were in respect to a material point.’ (Section 636.) But where a statement is not made as a fact, but only as an opinion, the rule is quite different. Thus a false representation as to a mere matter of opinion * * * does not avoid the contract. * * * Ordinarily, a naked statement of opinion is not a representation on which a buyer is legally entitled to rely, unless, perhaps, in some special cases where peculiar confidence or trust is created between the parties. The ground of this rule is, probably, the impracticability of attempting to discover by means of the rules of law the real opinion of the party making the representation, and also because a mere expression of opinion does not alter facts, though it may bias the judgment. Mere expressions of opinion are not, therefore, considered so tangible a fraud as to form a ground of avoidance of a contract, even though they be falsely stated. * * * Yet, where a representation is made, going to the essence of a contract, the party making it should be careful to state it as an opinion, and not as a fact of which he has knowledge, or he may be liable thereon. The question whether a statement was intended to be given as an opinion, and was so received, is, however, one for a jury to determine, upon the peculiar circumstances of the case. But whenever a belief is asserted, as in a fact, which is material or essential, and which the person asserting knows to be false, and the statement is made with an intention to mislead, it is fraudulent and affords a ground of relief.’” Banta v. Savage, 12 Nev. 151, 0–4 (1877).

  • Misrepresentations may be implied

“a defendant may be found liable for misrepresentation even when the defendant does not make an express misrepresentation, but instead makes a representation which is misleading because it partially suppresses or conceals information. See American Trust Co. v. California W. States Life Ins. Co., 15 Cal.2d 42, 98 P.2d 497, 508 (1940). See also Northern Nev. Mobile Home v. Penrod, 96 Nev. 394, 610 P.2d 724 (1980); Holland Rlty. v. Nev. Real Est. Comm’n, 84 Nev. 91, 436 P.2d 422 (1968).” Epperson v. Roloff, 102 Nev. 206, 212–13, 719 P.2d 799, 803 (1986).

  • False statement may be conveyed through an agent

“a party may be held liable for misrepresentation where he communicates misinformation to his agent, intending or having reason to believe that the agent would communicate the misinformation to a third party. See generally W. Prosser, supra, § 107 at 703; Restatement (Second) of Torts, § 533 (1977).” Epperson v. Roloff, 102 Nev. 206, 212, 719 P.2d 799, 803 (1986).

  • There is a duty to disclose where the defendant alone has knowledge of material facts not accessible ot the plaintiff

“Finally, with regard to the leakage problem, respondents argue that no affirmative representation was ever made that the house was free of leaks. At least implicitly, they argue that an action in deceit will not lie for nondisclosure. This has, indeed, been described as the general rule. Seediscussion, W. Prosser, supra, § 106, at 695-97. An exception to the rule exists, however, where the defendant alone has knowledge of material facts which are not accessible to the plaintiff. Under such circumstances, there is a duty of disclosure. Thus, in Herzog v. Capital Co., supra, the court upheld a jury’s award of damages to the purchaser of a leaky house, holding under the circumstances of that case, that the jury correctly found that the vendor had a duty to reveal ‘the hidden and material facts’ pertaining to the leakage problem. Id. at 10. In numerous other cases, involving analogous facts, a jury’s finding of a duty of disclosure has been upheld. See, e.g., Barder v. McClung, 93 Cal.App.2d 692, 209 P.2d 808 (1949) (vendor failed to disclose fact that part of house violated city zoning ordinances); Rothstein v. Janss Inv. Corporation, 45 Cal.App.2d 64, 113 P.2d 465 (1941) (vendor failed to disclose fact that land was filled ground).” Epperson v. Roloff, 102 Nev. 206, 213, 719 P.2d 799, 803–804 (1986).

Intent to Induce the Plaintiff to Act or Refrain from Acting

  • The intent to defraud must exist at the time the promise is made.

“The mere failure to fulfill a promise or perform in the future, however, will not give rise to a fraud claim absent evidence that the promisor had no intention to perform at the time the promise was made. Webb v. Clark, 274 Or. 387, 546 P.2d 1078 (1976).” Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 112, 825 P.2d 588, 592 (1992).

“Intent must be specifically alleged.” Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety, 121 Nev. 44, 75, 110 P.3d 30, 51 (2005); seealsoTahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 663, 799 P.2d 556, 558 (1990) (upholding the dismissal of an intentional tort complaint that failed to allege intent).

‘[F]raud is not established by showing parol agreements at variance with a written instrument and there is no inference of a fraudulent intent not to perform from the mere fact that a promise made is subsequently not performed. 24 Am.Jur. 107; 23 Am.Jur. 888.” Tallman v. First Nat’l Bank of Nev., 66 Nev. 248, 259, 208 P.2d 302, 307 (1949).

“It is only when independent facts constituting fraud are first proven that parol evidence is admissible. ‘Our conception of the rule which permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument, or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing. We find apt language in Towner v. Lucas’ Ex’r, 54 Va. (13 Grat.) 705, 716, in which to express our conviction: ‘It is reasoning in a circle, to argue that fraud is made out, when it is shown by oral testimony that the obligee contemporaneously with the execution of a bond promised not to enforce it. Such a principle would nullify the rule: for conceding that such an agreement is proved, or any other contradicting the written instrument, the party seeking to enforce the written agreement according to its terms, would always be guilty of fraud. The true question is, Was there any such agreement? And this can only be established by legitimate testimony. For reasons founded in wisdom and to prevent frauds and perjuries, the rules of the common law exclude such oral testimony of the alleged agreement; and as it cannot be proved by legal evidence, the agreement itself in legal contemplation cannot be regarded as existing in fact. Neither a court of law or of equity can act upon the hypothesis of fraud where there is no legal proof of it.’’ Bank of America Nat. Trust & Savings Ass’s v. Pendergrass, 4 Cal.2d 258, 48 P.2d 659, 661.” Tallman v. First Nat’l Bank of Nev., 66 Nev. 248, 258–59, 208 P.2d 302, 307 (1949).

Justifiable Reliance

The false representation must have played a material and substantial role in the plaintiff’s decisionmaking, and made him make a decision he would not otherwise have made.

“In order to establish justifiable reliance, the plaintiff is required to show the following:’The false representation must have played a material and substantial part in leading the plaintiff to adopt his particular course; and when he was unaware of it at the time that he acted, or it is clear that he was not in any way influenced by it, and would have done the same thing without it for other reasons, his loss is not attributed to the defendant.’ Lubbe v. Barba, 91 Nev. 596, 600, 540 P.2d 115, 118 (1975) (quoting Prosser, Law of Torts, 714 (4th ed. 1971)) (emphasis added).” Blanchard v. Blanchard, 108 Nev. 908, 911, 839 P.2d 1320, 1322 (1992).

If the plaintiff made independent investigations and discovered facts that he is now claiming the defendant disclosed, he cannot be said to have justifiably relied on any of the defendant’s statements.

“Generally, a plaintiff making ‘an independent investigation will be charged with knowledge of facts which reasonable diligence would have disclosed. Such a plaintiff is deemed to have relied on his own judgment and not on the defendant’s representations.’ Id. at 211, 719 P.2d at 803 (citingFreeman v. Soukup, 70 Nev. 198, 265 P.2d 207 (1953)). However, we also recognize that ‘an independent investigation will not preclude reliance where the falsity of the defendant’s statements is not apparent from the inspection, where the plaintiff is not competent to judge the facts without expert assistance, or where the defendant has superior knowledge about the matter in issue.Id. 102 Nev. at 211-12, 719 P.2d at 803 (emphasis added) (citations omitted).” Blanchard v. Blanchard, 108 Nev. 908, 912, 839 P.2d 1320, 1323 (1992).

Where falsity of defendant’s statements is not apparent from the inspection, the plaintiff will not be charged with this knowledge.

“We have previously held that a plaintiff who makes an independent investigation will be charged with knowledge of facts which reasonable diligence would have disclosed. Such a plaintiff is deemed to have relied on his own judgment and not on the defendant’s representations. See Freeman v. Soukup, 70 Nev. 198, 265 P.2d 207 (1953). Nevertheless, an independent investigation will not preclude reliance where the falsity of the defendant’s statements is not apparent from the inspection, where the plaintiff is not competent to judge the facts without expert assistance, or where the defendant has superior knowledge about the matter in issue. See Stanley v. Limberys, 74 Nev. 109, 323 P.2d 925 (1958); Bagdasarian v. Gragnon, 31 Cal.2d 744, 192 P.2d 935 (1948).” Epperson v. Roloff, 102 Nev. 206, 211–12, 719 P.2d 799, 803 (1986).

There is only a duty to investigate where there are red flags–where the hidden information is patent and obvious, and when the buyer and seller have equal opportunities of knowledge.

“Lack of justifiable reliance bars recovery in an action at law for damages for the tort of deceit. Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 870, 619 P.2d 816, 818 (1980). However, this principle does not impose a duty to investigate absent any facts to alert the defrauded party his reliance is unreasonable. Sippy v. Cristich, 4 Kan.App.2d 511, 609 P.2d 204, 208 (1980). The test is whether the recipient has information which would serve as a danger signal and a red light to any normal person of his intelligence and experience. Id. It has long been the rule in this jurisdiction that the maxim of caveat emptor only applies when the defect is patent and obvious, and when the buyer and seller have equal opportunities of knowledge. Fishback v. Miller, 15 Nev. 428, 440 (1880). Otherwise, a contracting party has a right to rely on an express statement of existing fact, the truth of which is known to the party making the representation and unknown to the other party. Id. The recipient of the statement is under no obligation to investigate and verify the statement. Id.” Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819, 821 (1987).

[edit]Pleading Standards

  • Standard

In actions involving fraud, the circumstances of the fraud are required by Nev.R.Civ.P. 9(b) to be stated with particularity. The circumstances that must be detailed include averments to the time, the place, the identity of the parties involved, and the nature of the fraud or mistake.”
Brown v. Kellar, 97 Nev. 582, 583-84, 636 P.2d 874, 874 (Nev. 1981).

  • Allegations of fraud upon “information or belief” must be backed up with reasons for the belief

[i]t is not sufficient to charge a fraud upon information and belief…without giving the ground upon which the belief rests or stating some fact from which the court can infer that the belief is well founded.
Tallman v. First Nat. Bank of Nev., 66 Nev. 248, 259, 208 P.2d 302, 307 (Nev. 1949).

  • Requirements for pleading fraud generally: The “Relaxed Standard”

The federal district court found that the plaintiffs’ allegations did not meet the strict requirement of FRCP 9(b), but it also found that “[w]here a plaintiff is claiming . . . to have been injured as the result of a fraud perpetrated on a third party, the circumstances surrounding the transaction are peculiarly within the defendant’s knowledge.”[22] Therefore, the court applied the relaxed standard and, pointing to the above facts, allowed the plaintiffs to conduct discovery and to amend their complaint to meet FRCP 9(b)’s pleading requirements.[23]

This exception strikes a reasonable balance between NRCP 9(b)’s stringent requirements for pleading fraud and a plaintiff’s inability to allege the full factual basis concerning fraud because information and documents are solely in the defendant’s possession and cannot be secured without formal, legal discovery. Therefore, we adopt this relaxed standard in situations where the facts necessary for pleading with particularity “are peculiarly within the defendant’s knowledge or are readily obtainable by him.”[24]

In addition to requiring that the plaintiff state facts supporting a strong inference of fraud, we add the additional requirements that the plaintiff must aver that this relaxed standard is appropriate and show in his complaint that he cannot plead with more particularity because the required information is in the defendant’s possession. If the district court finds that the relaxed standard is appropriate, it should allow the plaintiff time to conduct the necessary discovery.[25] Thereafter, the plaintiff can move to amend his complaint to plead allegations of fraud with particularity in compliance with NRCP 9(b).[26] Correspondingly, the defendant may renew its motion to dismiss under NRCP 9(b) if the plaintiff’s amended complaint still does not meet NRCP 9(b)’s particularity requirements.
Rocker v. KMPG LLP, 122 Nev. 1185, 148 P.3d 703, (2006) (overruled on other grounds Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670 (Nev.2008)).(emphasis added).

  • Particular pleading

NRCP 9(b) requires that special matters (fraud, mistake, or condition of the mind), be pleaded with particularity in order to *473 afford adequate notice to the opposing party.
Ivory Ranch, Inc. v. Quinn River Ranch, Inc., 101 Nev. 471, 73, 705 P.2d 673 (Nev. 1985).

  • Particular pleading

NRCP 8(a) requires that a pleading contain only a short and plain statement showing that the pleader is entitled to relief. In actions involving fraud, the circumstances of the fraud are required by NRCP 9(b) to be stated with particularity. The circumstances that must be detailed include averments to the time, the place, the identity of the parties involved, and the *584 nature of the fraud or mistake. 5 Wright and Miller, Federal Practice and Procedure s 1297 at p. 403 (1969). Malice, intent, knowledge and other conditions of the mind of a person may be averred generally. NRCP 9(b); see Occhiuto v. Occhiuto, 97 Nev. 143, 625 P.2d 568 (1981).

Brown v. Kellar, 97 Nev. 582, 584, 636 P.2d 874 (Nev. 1981).

[edit]Damages

Damages must have been proximately caused by the reliance and must be reasonably foreseeable

“with respect to the damage element, this court has concluded that the damages alleged must be proximately caused by reliance on the original misrepresentation or omission. Collins, 103 Nev. at 399, 741 P.2d at 822 (determining that an award of damages for intentional misrepresentation based on losses suffered solely due to a recession was inappropriate). Proximate cause limits liability to foreseeable consequences that are reasonably connected to both the defendant’s misrepresentation or omission and the harm that the misrepresentation or omission created. SeeGoodrich & Pennington v. J.R. Woolard, 120 Nev. 777, 784, 101 P.3d 792, 797 (2004); Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1481, 970 P.2d 98, 107 (1998).” Nelson v. Heer, 123 Nev. 26, 426, 163 P.3d 420 (2007).

“Chen’s skill in playing blackjack, rather than his misrepresentation of identity, was the proximate cause of his winnings. The false identification allowed Chen to receive $44,000 in chips, but it did not cause Chen to win. Thus, we hold that the Gaming Control Board’s determination that Chen committed fraud is contrary to law because the Monte Carlo did not establish all of the elements of fraud.” Chen v. Nev. State Gaming Control Bd., 116 Nev. 282, 285, 994 P.2d 1151, 1152 (2000).

“Appellants contend they should recover all their losses throughout the life of the business. We cannot agree. The district court found subsequent operating losses were solely due to a recession that devastated the Carson City area in the early 1980’s. The trial court’s determination of a question of fact will not be disturbed unless clearly erroneous or not based on substantial evidence. Ivory Ranch v. Quinn River Ranch, 101 Nev. 471, 472, 705 P.2d 673, 675 (1985)NRCP 52(a). Since there is substantial evidence in the record indicating a severe economic recession in the period following the sale of the store, we will not disturb the district court’s finding that the economic climate caused subsequent losses.”Collins v. Burns, 103 Nev. 394, 399, 741 P.2d 819, 822 (1987).

[edit]Defenses

‘As a general rule, it is not sufficient to charge a fraud upon information and belief (and here there is not even an allegation of ‘information’) without giving the ground upon which the belief rests or stating some fact from which the court can infer that the belief is well founded.’ Bancroft Code Pleading, Vol. 1, page 79. See also-Dowling v. Spring Valley Water Co., 174 Cal. 218, 162 P. 894.
Tallman v. First Nat. Bank of Nev., 66 Nev. 248, 259, 208 P.2d 302, 307 (Nev. 1949).

[edit]Misc

 

False Imprisonment

False Imprisonment

Elements

In Hernandez v. City of Reno, we held that “an actor is subject to liability to another for false imprisonment ‘if

  1. he acts intending to confine the other or a third person within boundaries fixed by the actor, and
  2. his act directly or indirectly results in such a confinement of the other, and
  3. the other is conscious of the confinement or is harmed by it.’ “

Jordan v. State ex rel. Dept. of Motor Vehicles and Public Safety, 121 Nev. 44, 110 P.3d 30 (Nev. 2005) (abrogated on other grounds by Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008)(quoting Hernandez v. City of Reno, 97 Nev. at 433, 634 P.2d at 671.Nev. 2005) (abrogated on other grounds by Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008).

Example Cases

Proof

Damages

Defenses

Misc

 

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