BUSINESS LAW CH 6
Causation (negligence)
-Another element necessary to a negligence action -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
Damages Available In Tort Actions
-Compensatory damages -punitive damages -legislative caps on damages
Damage v. Damages
-Note that legal usage distinguishes between the terms damage and damages -Damage refers to harm or injury to persons or property, while damages refers to monetary compensation for such harm or injury
Superseding Cause
-an intervening force or event that breaks the connection between a wrongful act and an injury to another -in negligence law, a defense to liability
Actionable
-capable of serving as the basis of a lawsuit
Tortfeasor
-one who commits a tort
The Purpose of Tort Law
-to compensate the injured party for the damages suffered -Generally, it is to provide remedies for the violation of various protected interests -Society recognizes an interest in personal physical safety -Thus, provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement -Society also recognizes an interest in protecting property, and (blank) provides remedies for acts that cause destruction of or damage to property
Negligence
-the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances -failure to take proper care in doing something
Defenses to Wrongful Interference
-A person will not be liable for the tort of wrongful interference with a contractual or business relationship 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
Liability for harm (trespassing)
-At common law, a trespasser is liable for any damage caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains on the premises -This common law rule is being modified in many jurisdictions, however, in favor of a reasonable duty of care rule that varies depending on the status of the parties -For instance, a landowner may have a duty to post a notice that guard dogs patrol the property -Also, if young children are attracted to the property by some object, such as a swimming pool or a sand pile, and are injured, the landowner may be held liable (under the attractive nuisance doctrine) -Still, an owner can normally use reasonable force to remove a trespasser from the premises or detain the trespasser for a reasonable time without liability damages
Establishing Trespass
-Before a person can be a trespasser, the real property owner (or another person in actual and exclusive possession of the property, such as a renter) must establish that person as a trespasser -For instance, "posted" trespass signs expressly establish as a trespasser a person who ignores these signs and enters onto the property -A guest in your home is not a trespasser, unless he or she has been asked to leave and refuses -Any person who enters onto another's property to commit an illegal act (such as a thief entering a lumberyard at night to steal lumber) is impliedly a trespasser, with or without posted signs
The Duty of Care and its Breach
-Central to the tort of negligence -the duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others -failure to exercise due care, which is normally determined by the "reasonable person standard," constitutes the tort of negligence -The basic principle underlying (blank) is that people are free to act as they please as long as their actions do not infringe on the interests of others -Failure to live up to a standard of care may be an act (accidentally setting fire to a building) or an omission (neglecting to put out a campfire) -It may be a careless act or a carefully performed but nevertheless dangerous act that results in injury In determining whether the (blank) has been breached, courts consider several factors: 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)
Intention (conversion)
-Conversion can occur even when a person mistakenly believed that she or he was entitled to the goods -In other words, good intentions are not a defense against conversion -Someone who buys stolen goods, for instance, may be sued for conversion even if he or she did not know the goods were stolen -If the true owner of the goods sues the buyer, the buyer must either return the property to the owner or pay the owner the full value of the property -Conversion can also occur from an employee's unauthorized use of a credit card
Failure to Return Goods (Conversion)
-Conversion is the civil side of crimes related to theft, but it is not limited to theft -Even when the rightful owner consented to the initial taking of the property, so no theft occurred, a failure to return the property may still be conversion
Defenses to Negligence
-Defendants often defend against negligence claims by asserting that the plaintiffs have failed to prove the existence of one or more of the required elements for negligence Additionally, there are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states): - assumption of risk -superseding cause -contributory negligence -comparative negligence
Defenses
-Even if a plaintiff proves all the elements of a tort, the defendant can raise a number of legally recognized defenses (reasons why the plaintiff should not obtain damages) -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 -When a person consents to the act that damages her or him, there is generally no liability -The most widely used defense in negligence actions is comparative negligence -In addition, most states have a statute of limitations that establishes the time limit (often 2 years from the date discovering the harm) within which a particular type of lawsuit can be filed -After that time period has run, the plaintiff can no longer file a claim
Slander Per Se
-Exceptions to the burden of proving special damages in cases alleging slander are made for certain types of slanderous statements -If a false statement constitutes "(blank)," it is actionable with no proof of special damages required In most states, the following four types of declarations are considered to be (blank): -A statement that another has a "loathsome" disease (such as a sexually transmitted disease) -A statement that another has committed improprieties while engaging in a profession or trade -A statement that another has committed or has been imprisoned for a serious crime -A statement that a person is unchaste or has engaged in serious sexual misconduct (this usually applies only to unmarried persons and sometimes only to women)
The Injury Requirement and Damages (unintentional torts--negligence)
-For tort liability to arise, the plaintiff must have suffered a legally recognizable injury -To recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest -Essentially, the purpose of tort law is to compensate for legally recognized harm and injuries resulting from wrongful acts -if no harm or injury results from a given negligent action, there is nothing to compensate, and no tort exists -For instance, if you carelessly bump into a passerby, who stumbles and falls as a result, you may be liable in tort if the passerby is injured in the fall -If the person is unharmed, however, there normally can be no lawsuit for damages, because no injury was suffered -Compensatory damages are the norm in negligence cases -A court will award punitive damages only if the defendant's conduct was grossly negligent, reflecting an intentional failure to perform a duty with reckless disregard of the consequences to others
The Duty of Landowners
-Landowners are expected to exercise reasonable care to protect individuals coming on to their property from harm -In some jurisdictions, landowners may even have a duty to protect trespassers against certain risks -Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms
Dram Shop Acts
-Many states have also passed (blanks), under which a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar -The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated -Some states' statutes also impose liability on social hosts (persons hosting parties) for injuries caused by guests who became intoxicated at the hosts' home -Under these statutes, it is unnecessary to prove that the bar owner, bartender, or social host was negligent
Statement of Fact vs. Opinion (Fraud)
-Normally, the tort of fraudulent misrepresentation occurs only when there is reliance on a statement of fact -Sometimes, however, reliance on a statement of opinion may involve the tort of fraudulent misrepresentation if the individual making the statement of opinion has superior knowledge of the subject matter -For instance, when a lawyer makes a statement of opinion about the law in a state in which the lawyer is licensed to practice, a court might treat it as a statement of fact
Statement of-Fact Requirement (defamation)
-Often at issue in defamation lawsuits (including online defamation) is whether the defendant made a statement of fact or a statement of opinion -Statements of opinion normally are not actionable, because they are protected under the First Amendment -In other words, making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than a personal opinion
Damages for Libel
-Once a defendant's liability for (blank) is established, general damages are presumed as a matter of law -General damages are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the community, humiliation, injured reputation, and emotional distress—harms that are difficult to measure -In other words, to recover damages, the plaintiff need not prove that he or she was actually harmed in any specific way as a result of the (blankeous) statement
Defenses against 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 had a license to come onto the land -A licensee is one who is invited (or allowed to enter) onto the property of another for the licensee's benefit -A person who enters another's property to read an electric meter, for example, is a licensee -When you purchase a ticket to attend a movie or sporting event, you are licensed to go onto the property of another to view that movie or event -Note that licenses to enter onto another's property are revocable by the property owner -If a property owner asks an electric meter reader to leave and he or she refuses to do so, the meter reader at that point becomes a trespasser
The Duty of Professionals
-Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others -Professionals—including physicians, dentists, architects, engineers, accountants, and lawyers, among others—are required to have a standard minimum level of special knowledge and ability -In determining what constitutes reasonable care in the case of professionals, the law takes their training and expertise into account -Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard -If a professional violates his or her duty of care toward a client, the client may bring a suit against the professional, alleging malpractice, which is essentially professional negligence -examples: medical malpractice or legal malpractice
The Duty to Warn Business Invitees of Risks
-Retailers and other business operators who explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees -The duty normally requires storeowners to warn business invitees of foreseeable risks, such as construction zones or wet floors, about which the owners knew or should have known -A business owner also has a duty to discover and remove any hidden dangers that might injure a customer or other invitee -Hidden dangers might include uneven surfaces or defects in the pavement of a parking lot or a walkway, or merchandise that has fallen off shelves in a store
Wrongful Interference with a Contractual Relationship
-a type of wrongful interference Three elements are necessary for (blank) to occur: 1. A valid, enforceable contract must exist between two parties 2. A third party must know that this contract exists 3. A third party must intentionally induce a party to contract to breach the contract
Negligent Misrepresentation (fraud)
-Sometimes, a tort action can arise form misrepresentations that are made (blankly) rather than intentionally -The key difference between intentional and (blank) misrepresentation is whether the person making the misrepresentation had actual knowledge of its falsity -(blank) requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness -Liability for (blank) usually arises when the defendant who made the misrepresentation owed a duty of care to the plaintiff to supply correct information
Legislative Caps on Damages
-State laws may limit the amount of damages—both punitive and general—that can be awarded to the plaintiff -More than half of the states have placed caps ranging from $250,000 to $750,000 on noneconomic general damages (such as for pain and suffering), especially in medical malpractice suits -More than 30 states have limited punitive damages, with some imposing outright bans
The Publication Requirement (defamation)
-The basis of tort of defamation is the publication of a statement or statements that hold an individual up to contempt, ridicule, or hatred -Publication here means that the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party -The courts have generally held that even dictating a letter to a secretary constitutes publication, although the publication may be privileged (discussed shortly) -Moreover, if a third party merely overhears defamatory statements by chance, the courts usually hold that this also constitutes publication -Defamatory statements made via the Internet are actionable as well -Note also that any individual who repeats or republishes defamatory statements normally is liable even if that person reveals the source of the statements
Establishing Defamation Involves Proving the Following Elements
-The defendant made a false statement of fact -The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation -The statement was published to at least one person other than the plaintiff -If the plaintiff is a public figure, she or he must also prove actual malice
Unintentional Torts--Negligence
-The tort of (blank) occurs when someone suffers injury because of another's failure to live up to a required duty of care -in contrast to intentional torts, in torts involving (blank), the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur -The person's conduct merely creates a risk of such consequences -If no risk is created, there is no (blank) -Moreover, the risk must be foreseeable -In other words, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it -In determining what is reasonable conduct, courts consider the nature of the possible harm -Many of the actions giving rise to the intentional torts discussed earlier in the chapter constitute (blank) if the element of intent is missing (or cannot be proved) To succeed in a (blank) action, the plaintiff must prove each of the following: 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
Wrongful Interference
-The torts known as business torts generally involve wrongful interference with another's business rights -Public policy favors free competition, and these torts protect against tortious interference generally fall into two categories: interference with a contractual relationship and interference with a business relationship
Classification of Torts
-There are two broad classifications of torts: intentional torts and unintentional torts (torts involving negligence) -The classification of a particular tort depends largely on how the tort occurs (intentionally or negligently) and the surrounding circumstances -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)
Intentional Torts Against Property
-These torts are wrongful actions that interfere with individuals' legally recognized rights with regard to their land or personal property The law distinguishes real property from personal property -Real property is land and things permanently attached to the land, such as a house -Personal property consists of all other items, including cash and securities (such as stocks and bonds) includes- -trespass to land -trespass to personal property -conversion -disparagement of property
Defenses to Defamation
-Truth is normally an absolute defense against a defamation charge -In other words, if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed -True statements are not actionable no matter how disparaging -Even the presence of minor inaccuracies of expression or detail does not render basically true false statements other defenses: -privileged communications -if it concerns a public figure
Good Samaritan Statutes
-Under these statutes, someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence -These laws were passed largely to protect physicians and medical personnel who volunteer their services in emergency situations to those in need, such as individuals hurt in car accidents
Actual Malice
-a condition that exists when a person makes a statement with either knowledge of its falsity or reckless disregard for the truth -in a defamation suit, a statement made about a public figure normally must be made with (blank) for liability to be incurred
Privilege
-in tort law, the ability to act contrary to another person's right without that person's having legal redress for such acts -may be raised as a defense to defamation
Privileged Communications
-a defamation defense -In some circumstances, a person will not be liable for defamatory statements because she or he enjoys a privilege, or immunity -two types: absolute and qualified -Only in judicial proceedings and certain government proceedings is an absolute privilege granted -Thus, statements made by attorneys and judges in the courtroom during a trial are absolutely privileged, as are statements made by government officials during legislative debate -In other situations, a person will not be liable for defamatory statements because he or she has a qualified, or conditional privilege -An employee's statements in written evaluations of employees, for instance, are protected by a qualified privilege -Generally, if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication, the statements fall within the area of qualified privilege
Public Figures
-a defamation defense -Politicians, entertainers, professional athletes, and others in the public eye are considered public figures -Public figures are regarded as "fair game" -False and defamatory statements about public figures that are published in the media will not constitute defamation unless the statements are made with actual malice -To be made with actual malice, a statement must be made with either knowledge of its falsity or a reckless disregard of the truth -Statements made about public figures, especially when they are communicated via a public medium, usually relate to matters of general interest -they are made about people who substantially affect all of us -Furthermore, public figures generally have some access to a public medium for answering belittling falsehoods about themselves -For these reasons, public figures have a greater burden of proof in defamation cases—to show actual malice—than do private individuals
Contributory Negligence
-a defense against negligence -a theory in tort law under which a complaining party's own negligence contribute to or cause his or her injuries -an absolute bar to recovery in a minority of jurisdictions -In the past, under the common law doctrine of (blank), a plaintiff who was also negligent (who failed to exercise a reasonable degree of care) could not recover anything from the defendant -Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff would be precluded from recovering any damages -Today, only a few jurisdictions still follow this doctrine
Comparative Negligence
-a defense against negligence -a theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person's proportionate negligence -In most states, the doctrine of contributory negligence has been replaced by a (blank) standard -Under this standard, both the plaintiff's and the defendant's negligence are computed, and the liability for damages is distributed accordingly -Some jurisdictions have adopted a "pure" form of comparative negligence that allows the plaintiff to recover, even if the extent of his or her fault is greater than that of the defendant -Under pure comparative negligence, if the plaintiff was 80% at fault and the defendant 20% at fault, the plaintiff can recover 20% of his or her damages -Many states' (blank) statutes, however, contain a "50 percent" rule that prevents the plaintiff from recovering any damages if she or he was more than 50% at fault -Under this rule, a plaintiff who was 35% at fault can recover 65% of his or her damages, but a plaintiff who was 65% (more than 50%) as fault can recover nothing
Assumption of Risk
-a defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger -A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover requires two elements: 1. Knowledge of the risk 2. Voluntary assumption of the risk -frequently asserted when the plaintiff was injured during a recreational activity that involves known risk, such as skiing or skydiving -(courts do not apply the (blank) doctrine in emergency situations) -can apply not only to participants in sporting events, but also to spectators and bystanders who are injured while attending those events
transferred intent
-a legal principle under which a person who intends to harm one individual, but unintentionally harms a different individual, can be liable to the second victim for an intentional tort
Damages
-a monetary reward sought as a remedy for a breach of contract or a tortious act
Compensatory Damages
-a money award equivalent to the actual value of injuries or damages sustained by the aggrieved party -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 -often broken down into special damages and general damages
Puffery
-a salesperson's exaggerated claims concerning the quality of goods offered for sale -such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties
Wrongful Interference with a Business Relationship
-a type of wrongful interference -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 -Attempting to attract customers in general is a legitimate business practice, whereas specifically targeting the customers of a competitor is more likely to be predatory -A plaintiff claiming predatory behavior must show that the defendant used predatory methods to intentionally harm an established business relationship or gain a prospective economic advantage
Intentional Torts Against People
-a wrongful act knowingly committed (requires intent) -An evil or harmful motive is not required—in fact, the person committing the action may even have a beneficial motive for doing what turns out to be a tortious act -In tort law, intent means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act -forcefully pushing another—even if done in jest—is an (blank) (if injury results), because the object of a strong push can ordinarily be expected to fall down -in addition, intent can be transferred when a defendant intends to harm one individual, but unintentionally harms a second person (transferred intent) types- -assault -battery -false imprisonment -intentional infliction of emotional distress -defamation -invasion of privacy -fraudulent misrepresentation -wrongful interference
Causation in Fact
-an act or omission without ("but for") which an event would not have occurred
Gross Negligence
-an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another
Fraudulent Misrepresentation (fraud)
-an intentional tort against people -a false representation made by one party, through misstatement of facts or through conduct, with the intention of deceiving another and on which the other reasonably relies on his or her detriment -involves intentional deceit for personal gain The tort includes several elements: 1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth 2. An intent to induce another party to rely on the misrepresentation 3. A justifiable reliance on the misrepresentation by the deceived party 4. Damages suffered as a result of that reliance 5. A causal connection between the misrepresentation and the injury suffered -For (blank) to occur, more than mere puffery, or seller's talk, must be involved -exists only when a person represents as a fact something he or she knows is untrue -Facts are objectively ascertainable, whereas seller's talk (such as "I am the best accountant in town") is not, because the use of the word best is subjective
Defamation
-an intentional tort against people -a statement of fact, not made under privilege, that is communicated to a third person and that causes damage to a person's reputation -for public figures, the plaintiff must also prove that the statement was made with actual malice -(blank) of character involves wrongfully hurting a person's good reputation -The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others -Breaching this duty in writing or other permanent form (such as a digital recording) involves the tort of libel -Breaching this duty orally involves the tort of slander -this intentional tort also arises when a false statement of fact is made about a person's product, business, or legal ownership rights to property
Invasion of Privacy
-an intentional tort against people -publishing or otherwise making known or using information relating a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval -Generally, to sue successfully for an (blank) a person must have a reasonable expectation of privacy, and the invasion must be highly offensive
Abusive or Frivolous Litigation
-an intentional tort against people -the filing of a lawsuit without legitimate grounds and with malice -alternatively, the use of a legal process in an improper manner -Torts related to abusive litigation include malicious prosecution and abuse of process -If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for malicious prosecution -Abuse of process 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 -The key difference between the torts of abuse of process and malicious prosecution is the level of proof -Unlike malicious prosecution, abuse of process is not limited to prior litigation and does not require the plaintiff to prove malice -It can be based on the wrongful use of subpoenas, court orders to attach or seize real property, or other types of formal legal process
False Imprisonment
-an intentional tort against people -the intentional confinement or restraint of another person's activities without justification -interferes with the freedom to move without restraint -The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force -Moral pressure does not constitute (blank) -It is essential that the person being restrained does not wish to be restrained (the plaintiff's consent to the restraint bars any liability) -Businesspersons often face suits for (blank) after they have attempted to confine a suspected shoplifter for questioning
Battery
-an intentional tort against people -the unprivileged, intentional touching of another -an unexcused and harmful or offensive physical contact intentionally performed -The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss) -Physical injury need not occur -The contact can involve any part of the body or anything attached to it—for instance, a hat, a purse, or a jacket -The contact can be made by the defendant or by some force set in motion by the defendant -Whether the contact is offensive is determined by the reasonable person standard -If the plaintiff shows that there was contact, and the jury (or judge, if there is no jury) agrees that the contact was offensive, then the plaintiff has a right to compensation -A plaintiff may be compensated for the emotional harm or loss of reputation resulting from a (blank), as well as for physical harm
Assault
-an intentional tort against people -any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat -can occur even if there is no actual contact with the plaintiff, provided that the defendant's conduct creates a reasonable apprehension of imminent harm in the plaintiff
Intentional Infliction of Emotional Distress
-an intentional tort against people -involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another -To be actionable (capable of serving as the ground of a lawsuit), the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society Outrageous Conduct- -Courts in most jurisdictions are wary of emotional distress claims and confine them to situations involving truly outrageous behavior -Generally, repeated annoyances (such as those experienced by a person who is being stalked), coupled with threats, are enough -Acts that cause indignity or annoyance alone usually are not sufficient Limited by the First Amendment -When the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech also limits emotional distress claims
Disparagement of Property
-an intentional tort against property -any economically injurious falsehood that is made about another's product or property -a general term for torts that can be more specifically referred to as slander of quality or slander of title
Conversion
-an intentional tort against property -the wrongful possession or use of another person's personal property without just cause -Any act that deprives an owner of personal property or the use of that property without the owner's permission and without just cause can constitute (blank) -Even the taking of electronic records and data may form the basis of a (blank) claim -Often, when (blank) occurs, a trespass to personal property also occurs -The original taking of the personal property from the owner was a trespass -Wrongfully retaining the property is (blank)
Trespass to Personal Property
-an intentional tort against property -the intentional interference with an owner's right to use, possess, or enjoy his or her personal property without the owner's consent -occurs whenever any individual takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property -In this context, harm means not only destruction of the property, but also anything that diminishes its value, condition, or quality -involves intentional meddling with a processor interest (one arising from possession), including barring an owner's access to personal property -If it can be shown that (blank) was warranted, then a complete defense exists
Trespass to Land
-an intentional tort against property -the invasion of another's real property without consent or privilege -once a person is expressly or impliedly established as a trespasser, the property owner has specific rights occurs when a person, without permission, does any of the following: 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. Remain on land owned by another or permits anything to remain on it -Actual harm of the (blank) is not an essential element of this tort, because the tort is designed to protect the right of an owner to exclusive possession -Common types include walking or driving on another's land, shooting a gun over another's land, and throwing rocks at a building that belongs to someone else -Another common form involves constructing a building so that part of it extends onto an adjoining landowner's property
General Damages
-compensate individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering -A court might award (blank) for physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of mental or physical capacity
Special Damages
-compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits (now and in the future) -one of the two compensatory damages
Slander
-defamation in oral form
Libel
-defamation in writing or in some other form (such as in a digital recording) having the quality of performance
Damages for Slander
-in a case alleging (blank), the plaintiff must prove special damages to establish the defendant's liability -The plaintiff must show that the (blankerous) statement caused her or him to suffer actual economic or monetary losses -Unless the initial hurdle of proving special damages is overcome, a plaintiff alleging (blank) normally cannot go forward with the suit and recover any damages -This requirement is imposed in (blank) cases because oral statements have a temporary quality -In contrast, a libelous (written) statement has the quality of permanence and can be circulated widely, especially through tweets and blogs
Proximate Cause
-legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability
Punitive Damages
-money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct -appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy) -Usually, this means that (blanks) are available in intentional tort actions and only rarely in negligence lawsuits -They may be awarded, however, in suits involving gross negligence -Courts exercise great restraint in granting (blanks) to plaintiffs in tort actions because (blanks) are subject to limitations under the due process clause of the US Constitution
Licensee
-one who receives a license to use, or enter onto, another's property
Malpractice
-professional misconduct or the failure to exercise the requisite degree of skill as a professional -negligence--the failure to exercise due care--on the part of a professional, such as a physical or an attorney, is commonly referred to as (blank)
Slander of Title
-the publication of a statement that denies or casts doubt on another's legal ownership of any property causing financial loss to that property's owner -Usually, this is an intentional tort in which someone knowingly publishes an untrue statement about another's ownership of certain property with the intent of discouraging a third person from dealing with the person slandered -For instance, it would be difficult for a car dealer to attract customers after competitors published a notice that the dealer's stock consisted of stolen automobiles
Slander of Quality (or Trade Libel)
-the publication of information about another's product, alleging that it is not what its seller claims -to establish (blank), the plaintiff must prove that the improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost of profits) as a result -An improper publication may be both a (blank) and defamation of character
Reasonable Person Standard
-the standard against which negligence is measured and that must be observed to avoid liability for negligence -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 said to be objective -It is not necessarily how a particular person would act -It is society's judgement of how an ordinarily person should act -If the so-called reasonable person existed, he or she would be careful, conscientious, even-tempered, and honest -The degree of care to be exercised varies, depending on the defendant's occupation or profession, her or his relationship with the plaintiff, and other factors -Generally, whether an action constitutes a breach of the duty of care is determined on a case-by-case basis -The outcome depends on how the judge (or jury) decides that a reasonable person in the position of the defendant would have acted in the particular circumstances
Business Invitees
-those people, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes
Tort
-two notions serve as the basis of all (blanks): wrongs and compensation -designed to compensate those who have suffered a loss or injury due to another person's wrongful act -In a (blank) 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
Invasion of Privacy under the Common Law
1. Intrusion into an individual's affairs or seclusion -Invading someone's home or searching someone's briefcase or laptop without authorization is an invasion of privacy -This tort has been held to extend to eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing, and window peeping 2. False light -Publication of information that places a person in a false light is also an invasion of privacy -For instance, writing a story that attributes to a person ideas and opinions not held by that person is an invasion of privacy -(publishing such a story could involve the tort of defamation as well) 3. Public disclosure of private facts -This type of invasion of privacy occurs when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing -A newspaper account of a private citizen's sex life or financial affairs could be an actionable invasion of privacy -This is so even if the information revealed is true, because it should not be a matter of public concern 4. Appropriation of identity (appropriation means taking something for one's own use, typically without the owner's permission) -Using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission is also an invasion of privacy -An individual's right to privacy normally includes the right to the exclusive use of her or his identity
Two Questions Courts Ask to Determine if the Causation Requirement is Met
1. Is there causation in fact? -Did the injury occur because of the defendant's act, or would it have occurred anyway? -If the injury would not have occurred without the defendant's act, then there is causation in fact -Causation in fact usually can be determined by use of the but for test: "but for" the wrongful act, the injury would not have occurred -This test seeks to determine whether there was a cause-and-effect relationship between the act and the injury suffered -In theory, causation in fact is limitless -One could claim, for example, that "but for" the creation of the world, a particular injury would not have occurred -Thus, as a practical matter, the law has to establish limits, and it does so through the concept of proximate cause 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 -Proximate cause asks whether the injuries sustained were foreseeable or were too remotely connected to the incident to trigger liability -Judges use proximate cause to limit scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions -Both of these causation questions must be answered in the affirmative for liability in tort to arise -If there is causation in fact but a court decides that the defendant's action is not the proximate cause of the plaintiff's injury, the causation requirement has not been met -Therefore, the defendant normally will not be liable to the plaintiff