acct 352 chapter 10

Trespass

-To enter another's land without consent or to remain there after being asked to leave constitutes the tort of trespass -Variations include when something such as pollution is placed on another's land without consent -Usually asks for injunction to prevent trespass can also ask for damages

Defamation and the 1st Amendment

-Because of the First Amendment, special rules regarding defamation apply to the news media -News media are not liable for the defamatory untruths they print about public officials and public figures unless plaintiffs can prove that untruths were published with malice or with reckless disregard for the truth

Assumption of the Risk Cont.

-Branham v Ford Motor Risk-utility test standard for all product design defect cases -Ultrahazardous Activity - Courts impose strict liability in torts for types of ultrahazardous activities, like transporting or using explosive and poisons

Damages

-Compensatory damages are usually awarded in breach of contract cases to pay for a party's losses that are a direct and foreseeable result of the other party's breach -the award of these damages is designed to place the non-breaching party in the same position as if the contract had been performed.

Invasion of Privacy

-Comprises three principal invasions of personal interest: 1. Liability will be imposed on a defendant who appropriates the plaintiff's name or likeness for his or her own use. 2. A defendant's intrusion upon the plaintiff's physical solitude Ehling v. Monmouth-Ocean Hospital Service Corp. Social norms around privacy change and are dependent on what is objectively reasonable and not what plaintiff believes is reasonable No expectation of privacy on non-password protected sites Courts determine what is reasonable on a case by case basis 3. A defendant's public disclosure of highly objectionable, private information about the plaintiff

Duty of Care

-Duty is a legal obligation imposed by the law. -Duty usually arises out of a person's conduct or activity -A person doing something has a duty to use reasonable care and skill around others to avoid injuring them -Usually a person has no duty to avoid injuring others through non-conduct -At the core of negligence is the unreasonable behavior that breaches the duty of care that the defendant owes to the plaintiff

Causation in Fact

-In a negligence suit the plaintiff must prove that the defendant's failure to use reasonable care actually caused the injury, cause in fact -Courts leave questions of cause in fact almost entirely to juries as long as the evidence reveals that a defendant's alleged carelessness could have been a substantial, material factor in bringing about an injury -A particular problem of causation arises where the carelessness of two or more tortfeasors contributes to cause the plaintiff's injury -Tort law handles such cases by making each tortfeasor jointly and severally liable for the entire judgment

comparative responsibility

-In the majority of states, the harsh rule is offset with the doctrine of comparative responsibility (comparative negligence or comparative fault) -Under comparative principles, the plaintiff's contributory negligence does not bar recovery. It compares the plaintiff's fault with the defendant's and reduces the damage award proportionally

Intentional Interference with Contractual Relations

-Intentional interference with contractual relations is the tort of causing another to break a contract -Example: one company raiding another for employees

Fraud

-Intentional misrepresentation of a material fact that is justifiably relied upon by someone to his or her injury -Business frauds often involve the intentional misrepresentation of property or financial status -Can also be proved by giving evidence that another has harmed you by failing to disclose a material hidden fact

Negligence

-Involves unreasonable behavior that causes injury -Elements of Negligence Existence of a duty of care owed by the defendant to the plaintiff Unreasonable behavior by the defendant that breaches the duty Causation in fact/proximate causation Injury

Proximate Causation

-It is not enough that a plaintiff suing for negligence prove that the defendant caused an injury in fact. The plaintiff also must establish proximate causation, or legal cause -Represents the proposition that those engaged in activity are legally liable only for the foreseeable risk that they cause -Foreseeability has come to mean that the plaintiff must have been one whom the defendant could reasonably expect to be injured by a negligent act

Three major types of loss that potentially follow tort injury

-Past and future medical expenses -Past and future economic loss (including property damage and loss of earning power) -Past and future pain and suffering. -May also be awarded for loss of limb, loss of consortium (marriage relationship). And mental distress.

Iannelli v. Burger King

-Restaurant has duty of reasonable care to those who are eating in restaurant -When warning signs indicate that individuals may not be safe, manager has a duty to take action to try to prevent injury -Duty to protect diners from assault might exist if restaurant employees become aware of danger and do not take basic measures to prevent

Injurious Falsehood

-Sometimes called trade disparagement, consists of the publication of untrue statements that disparage the business owner's product or its quality -Similar to defamation, but applies to a product or business rather than character or reputation -While defamatory remarks are presumed false unless the defendant can prove their truth, disparagement cases the plaintiff must establish the falsity of the defendant's statements -Plaintiff must also show actual damages arising from the untrue statements

Strict Liability in Tort

-Strict liability is a catchall phrase for the legal responsibility for injury causing behavior that is neither intentional nor negligent. -Strict Products Liability Strict products liability is the cause of action under which commercial sellers of defective products are held liable without negligence. Retailer, wholesaler, manufacturer, and supplier of defective parts are liable. -Product defects arise when products are not manufactured to a manufacturers own standards. Design defects occur when a product is manufactured according to the manufacturer's standards, but the product injures a user due to its unsafe design. Strict products liability does not protect businesses that have economic losses due to defective products.

Willful and Wanton Negligence

-Willful and wanton negligence is a special type of aggravated negligence; it does not reveal intent, it does show an extreme lack of due care -Example: negligent injuries inflicted by drunk driver -The injured plaintiff can recover punitive damages as well as actual damages

Intentional Infliction of Mental Distress

-a battery to the emotions arises from outrageous, intentional conduct that carries a ---strong probability of causing mental distress to the person at whom it is directed -Usually requires plaintiff to prove mental distress AND physical symptoms

Intentional Torts

-a civil wrong other than a breach of contract -means "wrong" -Intent - desire to bring about certain results; in certain circumstances defined more broadly as substantially likely to occur

Assault & Battery

-assault - the placing of another in immediate apprehension for his or her physical safety -battery - an illegal touching of another Harper v. Winston County Can still claim battery if touched in an offensive or hostile way No legal exception for offensive touching to gain control of an employee (unlike shoplifter)

Conversion

-is the wrongful exercise of dominion (power) and control over the personal resources that belong to another -Conversion deprives owners of their lawful right to exclude others from such resources -Examples: stealing from an employer, buying something that has been stolen, failing to return something properly acquired at the designated time, delivering something to the wrong party, destruction or alteration of what belongs to another

Defamation

-the publication of untrue statements about another that hold up that individual's character or reputation to contempt and ridicule -Must be made known to third parties -If defamation is oral, it is called slander -Written defamation, or defamation published over radio or television is termed libel -Two basic defenses to a claim of defamation. Truth Statement arose from privileged communications

Types of Intentional Torts

Assault and Battery Intentional infliction of emotional distress Invasion of privacy False imprisonment Malicious prosecution Trespass Conversion Defamation Fraud Interference with business relations

Assumption of the Risk

If contributory negligence involves failure to use proper care for one's own safety, the assumption of the risk defense arises from the plaintiff's knowing and willing undertaking of an activity made dangerous by the negligence of another

Defenses to Negligence

Two principal defenses to an allegation of negligence: contributory negligence and assumption of risk, both defenses are an affirmative defense, which means that the defendant must specifically raise thee defenses to take advantage of them

Malicious prosecution

arises from causing someone to be arrested criminally without proper grounds

Punitive Damages

exemplary damages

contributory negligence

the contributory negligence defense absolutely barred the plaintiff from recovery if the plaintiff's own fault contributed to the injury in any degree however slight

False imprisonment

the tort of an intentional unjustified confinement of a non-consenting person who knows of the confinement.