Business Law 1 // Ch. 6 Tort Law

What are compensatory damages?

A plaintiff is awarded COMPENSATORY DAMAGES to compensate or reimburse the plaintiff for actual losses. Thus, the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred.

An _______________ is an intentional and unexcused threat of immediate harmful or offensive contact -- words or acts -- that create a reasonably believable threat.

ASSUALT - np physical contact is necessary for an assault to occur

What is an intentional tort?

An intentional tort requires INTENT! The TORTFEASOR (the one committing the tort) must intend to commit an act. -He intended the consequences of his act; or - He knew with substantial certainty that certain consequences would result.

The other business tort is Wrongful Interference with a Business relationship what is this?

Businesspersons devise countless schemes to attract customers. They are prohibited, however, from unreasonably interfering with another's business in their attempts to gain a greater share of the market. there is a difference between competitive practices and predatory behavior - actions undertaken with the intention of unlawfully driving competitors completely out of the market.

Any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause can constitute what?

CONVERSION

_______________ involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false statements of fact about others.

DEFAMATION

_________________ refers to monetary compensation for such harm or injury.

Damages

Damages for ____________ are General damages are presumed and the plaintiff does not have to prove actual injury. Damages include compensation for disgrace, dishonor, humiliation, injury to reputation, and emotional distress.

Damages for Libel

__________________ occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation.

Disparagement of Property Two examples of these are: Slander of Quality - publication of false information about another's product. Slander of Title: publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss.

___________________ is under which a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at a bar. The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated.

Dram Shop Acts

______________________ is the intentional confinement or restraint of another person's activities without justification. This confinement may occur through the use of physical barriers, physical restraints, or threats of physical force.

FALSE IMPRISONMENT

Even if the rightful owner consented to the initial taking of the property, a failure to return the property may still be conversion. -- this is known as what?

Failure to Return Goods

Questions of proximate cause are linked to the concept of _________________ because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury. Generally, if the victim of the consequences of a harm done were unforeseeable, there is not proximate cause.

Foreseeability A foreseeable risk is one in which the reasonable person would anticipate and guard against it.

Although persons sometimes make misrepresentations accidentally because they are unaware of the existing facts, the torts of ______________________, involves intentional deceit for personal gain.

Fraudulent Misrepresentation (fraud) -it has several elements

________________ protects someone who renders aid to an injured person from being sued for negligence

Good Samaritan Statute

A person will not be liable for the tort of wrongful interference with a contractual or business relationship if it can be shown what?

If it can be shown that the interference was justified or permissible. Bona fide competitive behavior -- such as marketing and advertising strategies -- is a permissible interference even if it results in the breaking of a contract. THESE are DEFENSES TO WRONGFUL INTERFERENCE

________________ an intentional act that amounts to extreme and outrageous conduct resulting in severe and emotional distress to another. The act must be extreme and so outrageous that is exceeds the bounds of decency accepted by society in order to be actionable

Infliction of Emotional Distress The First Amendment's guarantee of freedom of speech LIMITS the emotional distress claims when the outrageous conduct consists of speech about a public figure

Breaching this duty defamation in writing or other permanent form (such as a digital recording) involves the tort of ______________-

LIBEL

Tort law recognizes that people have a right not to be sued without a legally just and proper reason, and therefore it protects individuals from the misuse of litigation. Torts related abusive litigation include malicious prosecution and abuse of process. If a party initiates a lawsuit to of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for what?

Malicious Prosecution

______________ represents a failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances. Intent is not required, only the creation of risk of the consequences experienced by the plaintiff.

NEGLIGENCE

The classification of a tort depends largely on what?

On how the tort occurs (intentionally and unintentionally) and the surrounding circumstances

What are two defenses to the Trespass to land?

One defense to a claim of trespass is to show that the trespass was warranted, such as when a trespasser enters a building to assist someone in danger. Another defense exists when the trespasser can show that she or he has a LICENSE to come onto the land. (ex: utility service person)

Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals include: physicians, dentists, architects, engineers, accountants, and lawyers, among others -- are required to have a standard minimum level of special knowledge and ability. If a professional violates his or her duty of care toward a client, the client may bring a suit against the professional, alleging what?

Professional Malpractice

Tort law measures duty by the ___________________________. In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances. It is not necessarily how a particular person WOULD act. It is society's judgment of how an ordinarily prudent person SHOULD act

Reasonable Person Standard Should act: careful, conscientious, even tempered, and honest. Degree of care varies and depends on the defendant's occupation or profession, his or her relationship with the plaintiff, and other factors.

What is the point of punitive damages?

They are designed to punish the tortfeasor and deter others from wrongdoing.

What is the purpose of Tort Law?

Tort law is to provide a remedy (damages) for injury to a protected interest. Tort law is designed to compensate those who have suffered a loss or injury due to another person's wrongful act. In a tort action, one person or group brings a lawsuit against another person or group to obtain compensation ( monetary damages) or other relief for the harm suffered.

A civil wrong, not arising from a breach of contract or other agreement or a breach of a legal duty, proximately causing another person harm or injury.

Torts two notions serve as the basis of all torts: wrongs and compensation.

In addition, intent can be transferred when a defendant intends to harm one individual, but unintentionally harms a second person. This is called what?

Transferred Intent Intent of tortfeasor is transferred when he intends to harm person "A" but unintentionally harms person "B" as well

Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property, __________________ occurs.

Trespass to Personal Property

A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act is known as what?

Unintentional Tort

The tort knowns as business torts generally involve wrongful interference with another's business rights. Public policy favors free competition, and these torts protect against tortious interference with legitimate business. The first business tort is interference with a contractual relationship, three elements are necessary to occur what are they?

1) A valid, enforceable contract must exist between two parties. 2) A third party must know that this contract exists 3) This third party must intentionally induce a party to the contract to breach the contract.

To succeed in a negligence action, the plaintiff must prove each of the four things, what are they?

1) Duty - the defendant owed a duty of care to the plaintiff. 2) Breach - the defendant breached that duty 3) Causation - the defendant's breach caused the plaintiff's injury 4) Damages - the plaintiff suffered a legally recognizable injury.

_____________ can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed

Abuse of process

_______________ is the completion of the assault. It is unexcused and harmful or offensive physical contact intentionally performed. The contact can be made by the defendant or by some force set in motion by the defendant, such as a rock thrown by the defendant. Whether the contact is offensive is determined by the reasonable person standard.

BATTERY

There are two broad classifications of torts?

Intentional and Unintentional torts (those involving negligence)

What are other defenses to defamation?

-Priviledged (or Immune) Speech which have two types: Absolute Privilege Qualified Privilege -Absence of Malice: meaning false and defamatory statements made about PUBLIC FIGURES are privileged unless they are made with ACTUAL MALICE (knowledge OR reckless disregard of the truth or falsity)

Fraudulent Misrepresentation (fraud) it has several elements what are they?

-misrepresentation of material fact -intent to induce another to rely in the misrepresentation -Justifiable reliance by innocent party -Damages suffered as a result of reliance -Casual connection between misrepresentation and the injury suffered.

Society recognizes an interest in personal physical safety. Thus tort law provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement. What are the four damages Available in Tort Actions?

1) Compensatory 2) Special 3) General 4) Punitive

A trespass to land occurs when a person, without permission, does what three things?

1) Enters onto above or below the surface of land that is owned by another. 2) Causes anything to enter onto land owned by another. 3) Remains on land owned by another or permits anything to remain on it.

Tort Law also safeguards these rights through the tort of invasion of privacy. What four acts qualify as an invasion of privacy under common law?

1) Intrusion of individual's affairs or seclusion. (Invading someone's home or searching someone's laptop without authorization.) 2) Publication of information that places a person in false light (Posting ideas about someone that is not true) 3) Public disclosure of private facts (ex: disclosure of sexual affairs or financial position) 4) Appropriation of Identity** - using a person's name, picture, likeness, or there identifiable characteristic for commercial purposes without permission is also an invasion of privacy. (ex: must have right to exclusive use of identity)

Another element necessary to a negligence action is causation. If a person breaches a duty of care and someone suffers injury, the person's act must have caused the harm for it to constitute the tort of negligence. In deciding whether the requirements of causation is met, the court must address two questions what are they?

1) Is there causation in fact?: Did the injury occur because of the defendant's act, or would the injury have occurred anyway? -- This is usually determined by the "but for" test 2) Was the act the proximate (or legal) cause of the injury?: Proximate cause or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability.

To establish defamation, what elements must be proved?

1) The defendant made a false statement of fact 2) The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation. 3) The statement was published to at least one person other than the plaintiff 4) If the plaintiff is a public figure, she or he must also prove actual malice.

Central to the tort of negligence is the concept of a duty of care. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. When someone fails to comply with the duty to exercise reasonable care, a potentially tortious act may have been committed. In determining whether the duty of care has been breached, courts consider several factors what are they?

1) The nature of the act (whether it is outrageous or commonplace) 2) The manner in which the act was performed (cautiously versus heedlessly) 3) The nature of the injury (whether it is serious or slight)

A plaintiff who voluntarily enters into a risky situations, knowing the risk involved, will not be allowed to recover. This is the defense of ASSUMPTION OF RISK, which requires two elements what are they?

1) knowledge of the risk 2) voluntary assumption of the risk

Even if a plaintiff proves all the elements of a tort, the defendant can raise a number of legally recognized DEFENSES. A successful Defense does what?

A successful defense releases the defendant from partial or full liability for the tortious act. The defenses available may vary depending on the specific tort involved. A common defense to intentional torts against persons, for instance, is CONSENT

Occasionally the courts also award Punitive damages in tort cases to punish the wrongdoer and deter others from similar wrongdoing. When are Punitive damages appropriate?

Punitive Damages are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy) Ex: 100 mph in a School Zone -Usually the means that punitive damages are available in INTENTIONAL TORT actions and only rarely in negligence lawsuits.

For tort liability to arise, the plaintiff have suffered a LEGALLY RECOGNIZED injury. To recover damages, the plaintiff must have suffered some loss, harm, or wrong, or invasion of a protected interest. Essentially, what is the purpose of tort law?

Purpose of tort law is to compensate for legally recognized harms and injuries resulting from wrongful acts. If no harm or injury results from a given negligent actions, there is nothing to compensate, and no tort exists.

Breaching defamation orally involves the tort of ____________

SLANDER

In contrast to Damages for Libel, in a case alleging __________________ the plaintiff must prove special damages (actual economic loss).

SLANDER

exceptions to the burden of proving special damages in cases alleging slander are made for certain types of slanderous statements. No proof of damages is necessary when the statement involves a loathsome communicable disease; business improprieties; serious crime; or serious sexual misconduct

Slander Per Se

Compensatory Damages awards are often broken down in two categories Special Damages and General Damages. What are Special Damages and what are General Damages?

Special Damages - compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits. General Damages - compensate individuals (not companies) for the non monetary aspects of the harm suffered, such as PAIN and suffering -- A court might award general damages for physical or emotional pain and suffering, loss of companionship, loss of consortium (losing emotional and physical benefits of a spousal relationship), loss of reputation.

_________________ is an unforeseeable, intervening act that breaks the causal link between defendant's act and plaintiff's injury, relieving defendant of liability

Superseding Clause ex: outlandish events Plane crashed and debris hits you and you suffer serious burns

T/F Intentional torts against property include trespass to land, trespass to personal property, conversion, and disparagement of property. These torts are wrongful actions that interfere with individual's legally recognized rights with regard to their land or personal property

TRUE

T/F Intentional torts result from the intentional violation of person or property (fault plus intent). NEGLIGENCE results from the breach of a duty to act reasonably (fault WITHOUT intent).

TRUE

T/F Landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm. Landowners must exercise reasonable care to protect persons on their property from harm -- even trespassers.

TRUE

T/F Often at issue in defamation lawsuits is whether the defendant made a statement of fact or a statement of opinion. Statements of opinions normally are not actionable, because they are protected under the First Amendment

TRUE

T/F For a fraud to occur, more than puffery, or seller's talk must be involved. Fraud exists only when a person represents a fact something he or she knows it untrue.

TRUE ex: it is fraud to claim that the roof of a building does not leak when one knows it does. example of Puffery is, "the best accountant in town" -- using the word 'best' is subjective and therefore it is not misrepresentation.

T/F More than twenty-five U.S. States have caps on the amount of damages -- both punitive and general -- that can be awarded to the plaintiff.

TRUE They have placed caps ranging from $250,000 to $750,000 on noneconomic general damages, especially in malpractice suits.

T/F A trespasser is generally liable for damage caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains on the premises.

TRUE many jurisdictions use a reasonable duty of care rules that varies depending on the status of the parties. Property owners may be liable for objects that attract children under the attractive nuisance doctrine.

What is an absolute defense against a defamation charge?

TRUTH -if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed.