Chapter 11

disclosure

the publicizing of embarrassing private affairs

sovereign immunity

the rule that a citizen cannot sue the government without the government's consent

intrusion

the unjustified intrusion in another's private activities

false light

the use of a picture or some other means to infer a connection between the person and an idea or a statement for which the individual is not responsible

assault

threat or attempt to injure

negligence

tort of careless neglect, often resulting in injury; subject to compensatory but not to punitive damages"

contemporary torts

torts related to the #metoo movement, cyberbullying, and cybertorts

3 negligence theories for product liability claims

(1) a defect in the product caused by failing to use reasonable care in the manufacturing process; (2) a defect in the product caused by negligent design; and (3) negligent failure to warn. "

duty, foreseeability

Courts frequently say that _____ is a question of law to be determined by the judge, while _________________ is a question of fact to be determined by the jury

fraud (intentional misrepresentation)

A false representation of facts or intentional perversion of the truth to induce someone to take some action or give up something of value

special damages

A form of compensatory damages that awards a sum of money for specific, identifiable expenses associated with the injured person's loss, such as medical expenses or lost wages

tort, contract, benefit of the bargain, losses

-In ______ action the legal duties are established by the courts through the common law and more recently also by statutory modifications of the common law. -In contrast, ____________ actions are based on the legal duties the parties established in their contract" -A further difference between a contract action and a tort action lies in the remedy sought. In a contract action the purpose of the lawsuit is to give the injured party the ____________ __ ___ _________. In a tort action the purpose is to compensate the plaintiff for any _________ suffered."

cybertort

-The name given to a host of civil wrongs that can occur on the Internet -While most of the legislation is based on criminal law rather than on modifying tort law, courts are also seeing attorneys using traditional torts, such as defamation and conversion, as a way to combat this tort

theories of comparative negligence

1. A plaintiff can recover when the plaintiff's negligence is slight but may not recover when the plaintiff's negligence is gross. This is difficult to measure and currently only one state follows this approach. 2. Under a "pure" comparative negligence statute a plaintiff can recover actual damages less a percentage, calculated as the amount of negligence attributable to the plaintiff. In the 12 states that follow this approach, a plaintiff can recover something even if 99% responsible for the injuries. 3.Under modified comparative negligence, a plaintiff's recovery is reduced by the percentage of the plaintiff's own negligence if the defendant's negligence is greater than or equal to that of the plaintiff. In the 11 states that require the defendant's negligence to be greater than that of the plaintiff, the plaintiff can recover a percentage of the damages so long as the plaintiff is responsible for no more than 49% of the harm done. In the remaining 22 states, to recover a percentage of the damages, the plaintiff must be no more than 50% responsible."

intent, liability, transferred intent

3 important concepts in cases of battery:

malicious prosecution

A lawsuit that can be brought against someone who unsuccessfully and maliciously brought an action without probable cause

market share theory

A legal theory that allows plaintiffs to recover proportionately from a group of manufacturers when the identity of the specific manufacturer responsible for the harm is unknown.

comparative negligence

A method for measuring the relative negligence of the plaintiff and the defendant, with a decrease in the compensation for the injuries

compensatory damages (actual damages)

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party; broken down into special damages and general damages

tort

A private wrong (other than a breach of contract) in which a person or property is harmed because of another's failure to carry out a legal duty

exculpatory clause

A provision that purports to waive liability

Federal Tort Claims Act (FTCA)

Congressional statute that waives sovereign immunity from liability in tort.

someone enters or causes something to enter/remain, on the land of another, without permission

A trespass occurs whenever what 3 things occur?

intentional tort

A wrongful act knowingly committed; purposeful conduct subject to punitive in addition to compensatory damages"

misfeasance

Acting in an improper or a wrongful way

but for standard (actual cause)

Also known as cause in fact; this is measured by the "but for" standard: But for the defendant's actions, the plaintiff would not have been injured (aka cause in fact)

Restatement of the Law of Torts, Second

An authoritative secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be; courts frequent this document in torts

interference with a contractural relationship

An intentional tort that occurs if someone induces a party to breach a contract or interferes with the performance of a contract

drug dealer liability act

Anyone who distributes an illegal drug can be sued by anyone harmed by that type of drug, must be in the same geographic area and time period as the person who took the drugs

truth

Because one of the elements of defamation is that the statement is false, _______ is an absolute defense

private necessity, public necessity, rightfully retaining property

Common defenses to torts against property

strict liability

Courts use these 6 factors to determine ________ ________________ , but not all 6 have to be present. (a)existence of a high degree of risk of some harm to the person, land or chattels of others; (b)likelihood that the harm that results from it will be great; p. 376 p. 377 (c)inability to eliminate the risk by the exercise of reasonable care; (d)extent to which the activity is not a matter of common usage; (e)inappropriateness of the activity to the place where it is carried on; and (f)extent to which its value to the community is outweighed by its dangerous attributes. (Emphasis added.)"

comparative, contributory, assumption of the risk

Defenses to negligence

recklessness (gross negligence)

Disregarding a substantial and unjustifiable risk that harm will result; area of liability in between intentional torts and negligence

immunity

For policy reasons, protection from being sued for negligent acts

general damages

In a tort case, an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering; not available to companies.

malice

In addition to the 3 elements of defamation plaintiffs must prove, if the plaintiff is a public official or public figure, he/she must prove a fourth element, __________.

true

In cases involving invasion of privacy, truth is not considered to be a valid defense: true or false

intent, motive

In cases of battery, courts care more about ________, the desire to act, than they do ________ motive, the reason for the act

superseding cause

In negligence, an intervening cause that relieves the defendant of liability

what a reasonable person would've done

In order to determine if someone has breached the duty of due care, what do the courts determine?

intentional act, confinement or restraint, force or the threat of force

In order to prove false imprisonment, the plaintiff must show the following 3 elements:

design defect

In torts of strict liability, if misuse of a product is foreseeable, the manufacturer can be liable for a what?

conscious choice

Unlike negligence, which requires merely unreasonable behavior, recklessness requires a "_________ ______ of a course of action, with knowledge or reason to know that it will create a serious danger to others

absolute privilege, qualified immunity

Judicial and legislative officials have an _________________ ______________ against being held liable for any actions performed as part of their official duties. The reasoning behind this absolute bar is that such officials must be able to perform their daily work without constant fear of being sued. Other administrative personnel receive only a __________________ ________________. In order to recover damages under these terms, the plaintiff must prove that the defendant acted in bad faith

strict liability

Liability without having to prove fault; the courts have applied this doctrine in two situations: those involving ultrahazardous activities and products liability

assault and battery, false imprisonment, defamation, invasion of privacy, and intentional infliction of emotional distress

List the types of torts that cause harm to a person's body, reputation, or emotional well-being

trespass, trespass to personal property, and conversion

List the types of torts that cause harm to a person's property

abuse of process

Misusing the criminal or civil court process

contributory negligence

Negligence by the plaintiff that contributed to his or her injury. Normally, any finding of contributory negligence acts as a complete bar to the plaintiff's recovery

true

No matter how damaging the information, a tort of defamation has not been committed if the statement was ______. Note, however, that the plaintiff may still be able to recover damages by suing under the theory of invasion of privacy or intentional infliction of emotional distress"

trespass to personal property

Occurs when someone harms or interferes with the owner's exclusive possession of the property but has no intention of keeping the property.

proximate cause

Once actual cause is found, as a policy matter, the court must also find that the act and the resulting harm were so foreseeably related as to justify a finding of liability (second prong that defendant's actions must cause the plaintiff harm)

false arrest, malicious prosecution, abuse of process, fraud, business torts

Other types of torts

lack of duty (unforeseeable plaintiff), lack of proximate cause (unforeseeable injury)

Phrases for causes in court

consent, self-defense, defense of third party, types of privilege

Primary defesnes in intentional torts

real, personal

Property can be classified as ____ (land and anything permanently attached to land) or _______________.

defamation per se

Remarks considered to be so harmful that they are automatically viewed as defamatory

dramshop laws

Statutes making bar owners responsible if intoxicated patrons negligently injure third parties

due care

The law imposes a duty to act with "____ ________."; defined in terms of how a "reasonably prudent person" would act in the same situation."

artisan's lien

The right to retain an interest in property until a worker has been paid for his or her labor; commonly used as a defense to torts against property

reputation, free marketplace

The right to sue for defamation requires a balancing of the right to preserve one's ______________ with the public's interest in maintaining a "____ _______________" of ideas"

conversion

The taking of someone else's property with the intent of permanently depriving the owner; the civil side of theft.

products liability

The theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous.

Res Ipsa Loquitur

The thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent

trespass

The tort of _____________ is when someone invades your rights to real property

outrage

The tort of intentional infliction of emotional distress is sometimes referred to as the tort of _____________

disclosure, intrusion, appropriation, false light

The tort of invasion of privacy covers a variety of different situations. They include:

intentional act, harmful or offensive physical contact

To prove a battery, the plaintiff must show that the following 2 elements occurred:

intentional act, reasonable apprehension, immediate harmful or offensive physical contact

To prove an assault, the plaintiff must show that the following 3 elements occurred:

intentional act, that is extreme and outrageous, and causes, severe emotional distress

To prove the intentional infliction of emotional distress, a plaintiff must show these 4 elements:

true

Tort law is not a rigid doctrine but rather is ever changing to meet society's needs: true or false

assumption of the risk

Voluntarily and knowingly subjecting oneself to danger

assumption of the risk, product misuses

What are 2 common defenses in torts of strict liability?

causation in fact, forseeability

What are the 2 elements of proximate cause?

defendant owes a duty to the plaintiff to act reasonably, the defendant breached that duty, thereby causing, the plaintiff harm

What are the 4 elements of negligence courts look for?

probable cause

What is the most common defense of false imprisonment?

product misuse

When the product was not being used for its intended purpose or was being used in a dangerous manner; it is a defense to a products liability claim so long as the misuse was not foreseeable

publication, false statements, harm to reputation

Whether it is oral or written, defamation consists of the following elements:

newsworthiness

______________________, if the information is of legitimate public interest, is a valid defense in the tort of invasion of privacy; it is considered privileged information

battered spouse syndrome

an extension of assault and battery. The result of a continuing pattern of abuse and violence. Typically, the cycle consists of three stages. The first stage involves minor physical or verbal abuse that escalates while the victim tries to mollify his or her abuser by remaining passive. Stage two is when the actual battering occurs. During the third stage, the abuser asks for forgiveness and promises never to abuse again. This period of relative calm then leads to the cycle beginning again. Victims often remain trapped in this cycle because they are ashamed or because they have the very realistic fear that reporting the behavior will only cause it to escalate. Only a few states recognize this tort

nominal damages

awarded when the plaintiff has been violated but cannot prove any monetary harm

nonfeasance

failing to act

battery

intentional infliction of harmful or offensive bodily contact

Types of Torts

intentional, negligence, strict liability

substantial factor

liability is imposed if the defendant's action is shown to be a substantial factor in causing the injury

Strict Liability Tort

occurs when the defendant takes an action that is inherently dangerous to the plaintiff and cannot be undertaken safely, even though he/she did not act intentionally or negligently

tortfeasor

person who commits a tort

oral defamation

slander

defamation

the action of damaging the good reputation of someone; slander or libel; to be considered defamatory, the material must tend to injure a person's reputation, to hold a person up to ridicule, or to excite adverse, derogatory, or unpleasant feelings or opinions about that person

appropriation

unauthorized exploitive use of a personality, name, or picture for the defendant's benefit

False Imprisonment

unlawful restraint or restriction of a person's freedom of movement

transfered intent

when a defendant intends to harm one individual, but unintentionally harms a second person

false arrest

when a person is arrested without probable cause and when not covered by special privilege