Chapter 6 - Torts

attractive Nuisance doctrine

Example: if young children are attracted to a property by some object, such as a swimming pool or a sand pile, and were injured, the land owner may be held liable for their injuries. Professors notes: land owner may be liable, if a child inticred on your lad and was injured by trespassing on your land. Ex: child goes on your land because they see a trampoline.

puffery or sellers talk

For fraud to occur, more than mere puffery or sellers talk must be involved. Professors notes: Ex: you'll look great in this car. This car is Soooo fast.

licensee

is one who is invited (or allowed to enter) onto the property of another for the licensees benefit. Professors notes: temporary permission to enter onto your property. it can be revoked freely.

Trespass to personal property or trespass to chattels or trespass to personalty

Whenever in individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property. Professors notes: (chat-els: personal property) taking or harming another personal property in a way that interferes their right to exclusive posession. It's not to the property it's to the owner's enjoyment of the property. dogs are included.

slander

Breaching this duty orally involves the tort of slander. Professors notes: oral defamation. You have to understand what's being said (language wise).

conversion

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 conversion. Professors notes: taking,using, selling somone's property. it belongs to another without permission. destruction of the property is included. conversion assumes the owner has a superior right of the possession. Ex: if the person stole the water bottle, then you steal it from them that doesn't count. shooting somone's dog on their property is conversion. conversion may be excuse by necessity.

publication

the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party. A third person has to be involved. Professors notes: The speak must have communicated the defamation to someone else besides the person defamed.

false imprisonment

the intentional confinement or restraint of another person's activities without justification. False imprisonment 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. Professors notes: the intentional confinement of another without justification. Can occur through physical barrier (locking you in a room), restraint (handcuffs), threats of physical violence (you get out of that chair and I'll kill you).

foreseeability

questions of proximate cause are linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury. Professors notes: if the connection is not foreseeable then there is no negligence.

absolute privilege

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. Professors notes: statements made and actioons taken in judicial procedings or at the legislature or the floor of the house/senate, things said during a caucus or hearing. These words are prvileaged. Ex: if one senator says another senator commits beasteality, it's okay because it's on the senate floor and it's privileaged.

assault

any intentional and unexcused threat of immediate harmful or offensive contact-words or acts that create a reasonably believable threat. And assault 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 (Battery) in the plaintiff. Professors notes: an intentional act creating a reasonable apprehension or fear of harmful or offensive contact. Ex: pointing a gun, but not shooting.

intentional tort

as it implies, requires intent. the tortfeasor ( the one committing the tort) must intend to commit an act, the consequences of which interfere with another person's personal or business interests in a way not permitted by law. Professors notes: a wrongful act by the tort feasor (attacker) committed knowingly and intent to commit the act. Ex: assault, battery.

trespass to land

trespass to land 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.- air, water, land. Ex: theft. 2. Causes anything to enter onto land owned by another. 3. Remains on land owned by another or permits anything to remain on it. Professors notes:

Defense to defamation

truth is normally an absolute defense against a defamation charge.if a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed. Professors notes: truth is an absolute defense.

proximate cause

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. it was direct enough. Professors notes: when the connection between the act and the injury is direct enough (close enough) to impose liability.

duty of care

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. Professors notes: a person should exercise reasonable care when dealing with others. the degree of care expected by the hypothetical person.

intentional infliction of emotional distress

the tort of intentional infliction of emotional distress involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. Professors notes: Infliction of emotional distress, intentional infliction of emotional distress. Extreme and outrageous act that results in sever emotional distress.

Wrongful interference with a business relationship

negotiating, no contract, but yet if third-party interferes in relationship. (there is no contract in place) Professors notes: prospective business relationship. Ex: negotiating a contract, and someone knows this is happening, so that person will intentionally interferes to deter the contract from happening. (if it's qualified/justified then it's not unlawful, meaning if they're both bidding for the contract it's qualified info, they're both entitled to know about it.) predatory underselling: intentionally trying to undersell another company to put them under/tank.

Defamation

Defamation 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. Professors notes: anything published or publicly spoken that injures another's character, reputation, or good name.

contributory negligence

all individuals are expected to exercise a reasonable degree of care and looking out for themselves. in the past, under the common law doctrine of contributory negligence, a plaintiff who was also negligent (failed to exercise a reasonable degree of care) could not recover anything from the defendant. Professors notes: if the plaintiff contributed in anyway to their injury then the plaintiff gets nothing. contributory or comparative done by jurisdiction. Only about 3 states do it.

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. Professors notes: based on necessity.

public figures

public figures are considered fair game, and false and defamatory statements about them that are published in the media will not constitute defamation unless the statements are made with actual malice. Professors notes: generally lies about public figures are privileged unless made with actual malice. Using reckless disregard of the truth. You do it patently knowing it's false.

Negligence per se

Certain conduct, whether it consists of an action or a failure to act, may be treated as negligence per se (in or of itself). negligence per se may occur if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. Professors notes: violation of a statutory duty. if you violate a law and someone gets injured. we don't have to prove negligence. you just have to prove that you got injured. class of risk (don't park in illegal parking) and class of harm (something might burn).

comparative negligence

In most states, the doctrine of contributory negligence has been replaced by a comparative negligence standard. under this standard both the plaintiffs and the defendant's negligence are computed, and the liability for damages is distributed accordingly. many states comparative negligence statutes, however, contain a 50% rule that prevents the plaintiff from recovering any damages if she or he was more than 50% at fault. Professors notes: how negligent was the defendant compared to the plaintiff? based on a percentage ratio. hybrid comparative (50% caps): majority states use this. the plaintiff will collect even if they are found to be negligent up to 50%. If plaintiff is more than 50% negligent then plaintiff gets nothing.

unintentional torts

involving negligence. Negligence reject results from the breach of the duty to act reasonably (fall without intent). Professors notes: wrongful act committed without knowledge or intention to commit the act. Ex: you fall asleep at the wheel, and hit someone... you didn't mean to.

reasonable person standard

it is not necessarily how a particular person would act. it is society's judgment of how an ordinarily prudent person should act. Professors notes: The hypothetical perfect person. ex: the perfect person should not drop banana peels.

wrongful interference

there has to be a contract in place (there is a contract in place). three elements are necessary for wrongful interference with a contractual relationship to occur: 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. Professors notes: with a contract: presupposes there is a contract, and someone tries to ruin the contract.

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. Professors notes: *

invasion of privacy

a person has a right to solitude and freedom from prying public eyes-in other words to privacy. the following four acts qualify as an 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.- invading someone's usual expectation of privacy. 2. False light. publication of information that places a person in a false light is also an invasion of privacy. for instance, it is an invasions of privacy to Write a story about a person that attributes ideas and opinions not held by that person.- ex: priest walks by adult store, and pic is taken making it look like priest was walking out, pic is being made to look bad and it's not true. 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.- Ex: HIPPA. if my medical records were disclosed and it shows I have HIV, then it's invasion of my privacy. 4. Appropriation of identity. using a person's name, picture, likeness, or other identifiable characteristics for commercial purpose without permission.- Ex: using someone's pic in marketing and not paying the person royalties. Professors notes:

qualified or conditional privilege

a person will not be liable for defamatory statements because he or she has a qualified or conditional privilege. an employer'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. Professors notes: stmts and actions made in good faith, and they have to have an interest in the matter. Ex: in your job, you can make a mistake

compensatory damages

a plaintiff is awarded compensatory damages to compensate or reimburse the plaintiff for actual losses. compensatory damages awards are often broken down into special damages and general damages. Professors notes: reimburse the injured party.

aassumption of risk

a plaintiff who voluntarily enters into a risk situation, knowing the risk involved, will not be allowed to recover. this is the defense of assumption of risk, which requires: 1. Knowledge of the risk. 2. Voluntary assumption of the risk. ex: boxing match. Courts do not apply the assumption of risk doctrine in emergency situations. Professors notes: if you voluntarily enter a risky situation knowing the risk involved we're not going to let you get money. superceeding cause: when you have someone intervening in the chain of events then you have a defense.

libel

breaching this duty in writing or other permanent form (such as a digital recording) involve the tort of libel. Professors notes: written defamation. recording is libel because it is permanent like written form.

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. Professors notes: using legal process in an improper manner.

premises and landowner

expected to excerise reasonable care on your property, even trespassers. trespassers- no permission on land. no man made death traps. licensee- a social guest. no man made death traps and no patent defects (you don't have to inspect, but if you see a missing brick you need to warn them). Invitees- business guests, clients, customers. no death traps, no patent defects, no latent defects (you do have to inspect and look for anything that might be broke like a broken tile).

Punitive damages

the courts also award punitive damages in tort cases to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are appropriate only when the defendant's conduct was particularly egregious. Punitive damages are available in intentional tort actions and only rarely in negligence lawsuits. Professors notes: designed to punish. Ex: McDonald's coffee.

Slander per se

if a false statement constitutes slander per se it is actionable with no proof of special damages required. in most states, the following four types of declarations are considered to be slander per se: 1. A statement that another has a particular type of disease (such as a sexually transmitted disease or mental illness). - STD. 2. A statement that another has committed improprieties (corruption) while engaging in a profession or trade.- embezzlement. 3. A statement that another has committed or has been imprisoned for a serious crime.- you're a murder (it's not true). 4. A statement that a person (usually only unmarried persons and sometimes only women) is unchaste or has engaged in serious sexual misconduct. - calling a woman a ho. Professors notes: under common law (mayhem is cutting off a body part and that is a crime against the king, decimate killing every 10th guy).

battery

if the act that created the apprehension is completed and results in harm to the plaintiff, it is battery-an unexcused and harmful or offensive physical contact intentionally performed. Professors notes: intentional harmful contact. Ex: pulling the trigger is battery. If you miss it's called attempted battery.

Privilege

in some circumstances, a person will not be liable for defamatory statements because he or she enjoys a privilege, or immunity. privileged communications are of two types absolute and qualified. Professors notes:

fraudulent miss representation or fraud

intentional deceit for personal gain. The tort includes several elements: 1. A misrepresentation of material facts or conditions with the knowledge that they are false or with reckless disregard for the truth.- you have to have a misstatement or ommision. fake statement. 2. An intent to induce another party to rely on the misrepresentation. intended to deceive. 3. A justifiable reliance on the misrepresentation by the deceived party.- person relied on this statement. 4. Damages suffered as a result of that reliance.- I suffered a loss from the fake statement. 5. A key casual connection between the misrepresentation and the injury suffered. The tort of fraudulent misrepresentation occurs only when there is reliance on a statement of fact. 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. Professors notes: aka fraud. intentional deceit, usually for personal gain. if you lied to me and that lie CAUSED me to loss money, then it's fraud.

professional duties

malpractice- if individual has knowledge skill or expertise superior of the ordinary person, then the individual is held to the standard of care expected that of a reasonable person with similar knowledge skill or expertise. Ex: Dr. has expertise. if Dr. screws up he is compared to other Dr. of his expertise. professional malpractice- failure to perform up to the standard of a reasonable professional.

good Samaritan statutes

most states now have what are called good Samaritan statutes. under these statutes, someone who is aided voluntarily by another cannot turn around and sue the good Samaritan for negligence. Professors notes:

privileged

other defenses of the information may exist if the speech is privileged or concerns a public figure. Professors notes:

negligence

the tort of negligence occurs when someone suffers injury because of another's failure to live up to a required duty of care. To succeed in a negligence action, the plaintiff must prove each of the following (the feasor owed to the plaintiff): 1. Duty.the defendant owned a duty of care to the plaintiff.- Duty 2. Breach.the defendant breached that duty.- Breach 3. Causation.the defendants breach caused the plaintiff's injury.- Causation (forseeability meaning was it forseeable that the guards actions would cause an action?) but for & causation. how many chain of events (what is the remoteness)? 4. Damages. The plaintiff suffered a legally recognizable injury.- damages ex: car accident. you hit someone. PN: failing to exercise the standard of care that a reasonable person would exercise in similar circumstances. it doesn't require intent by the tort feasor, it only requires that the feasor's act or omission created a risk of the consequences. Ex: banana peal. the purpose of tort law is to compensate people who suffered an injury, if no injury was caused, then no tort exists. Professors notes: negligent misrepresentation- under a tort intentional or negligence is treated the same. if you should have and could have known and it caused me a loss then you can sue.

actionable

to be actionable (capable of serving as the ground for a lawsuit), the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society. Professors notes:

Abusive or frivolous litigation

tort law recognizes that people have a right not to be sued without a legally just and proper reason. if the party that initiated a lawsuit did so out of malice and without any legitimate legal reason, and ended up losing that lawsuit, the party can be sued for malicious prosecution. Professors notes: you should not be sued without a legally just and proper reason. malicious- suing with a malicious intent. abusive process- using legal process in an improper manner.

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. Professors notes: but for meaning without this act the plaintiff wouldn't have gotten injured.

Torts

wrongs and compensation. Tort law is designed to compensate those who have suffered a loss or injury due to another person's wrongful act. The purpose of tort law is to provide remedies for the violation of various protected interests, cause physical injury, or interfere with physical security and freedom of movement. Professors notes: a tort is a civil wrong. (Not criminal). if you do this action (tort) you are a tort feasor, and if you do that, you may be responsible too recipient of whatever damage you committed. Torts are alleged wrongs that result in injury to others. You did something wrong you have to pay for it. a civil wrong not arisng from a breach of contract. It is a breach of a legal duty, proximately causing another person harm or injury. It's punishable by compensation. (in a criminal case you pay a fine to the gov or go to jail).