Chapter 7: Tort Law

where does negligence per se apply to in cases?

in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs

torts against persons

intentional acts that harm an individual's physical or mental integrity

what are torts most commonly classified as?

intentional, negligent, or strict-liability torts

pure comparative negligence

court determines the percentage of fault of the defendant

trade libel

(if in printed form) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product

slander of title

(if related to ownership of business property) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product

slander of quality

(if spoken) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product

special damages

(plaintiff must show specific monetary use that resulted from the defamatory statement)

how does a party establish fraudulent misrepresentation?

1) a party knowingly or with reckless disregard for the truth, misrepresented material facts and conditions 2) the party intended to have other parties rely on the misrepresentation 3) the injured party intended to have other parties rely on the misrepresentation 4) the injured party suffered damages because of relying on the misrepresentation 5) a direct link exists between the injuries suffered and a reliance on the misrepresentations

what elements must be proved in a negligence case?

1) duty 2) breach of duty 3) causation 4) damages

what four questions determine whether a reasonable person would have owed a duty to others?

1) how likely was it that the harm would occur? 2) how serious was the potential harm? 3) how socially beneficial was the defendant's conduct that posed the list of harm? 4) what costs would have been necessary to reduce the risk of harm?

slander per se statements exception to special damages

1) individual has a loathsome, communicable disease, 2) has committed a crime for which imprisonment is a possibility, 3) is professionally incompetent, 4) if a woman has engaged in sexual conduct

what are the three conditions that strict liability must satisfy?

1) involves a risk of serious harm to people or property 2) it's so inherently dangerous that it cannot ever be safely undertaken 3) it's not usually performed in the immediate community

what must plantiff's demonstrate in res ipsa loquitur?

1) the event was a kind that ordinarily doesn't occur in the absence of negligence 2) other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated 3) the indicated negligence is within the scope of the defendant's duty to the plaintiff

what must the defense must prove in contributory negligence?

1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and 2) the plaintiff's failure was a contributing cause of the plaintiff it's injury

what are the three categories of intentional torts?

1) torts against persons, 2) torts against property, 3) torts against economic interests

Good Samaritan statutes

attempt to encourage selfless and courage behavior by removing the threat to liability

contributory negligence

a defense once available in all states but replaced today in some states by the defense of comparative negligence

reasonable person standard

a measurement of the way members of society expect an individual to act in a given situation

absolute privilege

a special right, or immunity or benefit given to certain individuals that allows them to make any statements about someone being held liable; one cannot be sued for defamation

tort

a wrong or injury to another, other than a breach of contract

privilige

affirmative defense in a defamation action; this occurs when the defendant admits to the accusation but argues that there is a reason he should not be held liable; either absolute or conditional

last clear chance doctrine

allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff

gross negligence

an action committed with extreme reckless disregard for the property or life of another person

battery

an intentional, unwanted, offensive bodily contact (consent, self-defense, defense of others, defense of property)

negligence per se

another doctrine that helps plaintiff's succeed in negligence cases

negligence

behavior that cradles an unreasonable risk of harm to others ; involve the failure to exercise reasonable care to protect another's person or property

defenses to negligence

contributory negligence, comparative negligence, and assumption of risk

what are the three types of damages available in tort cases?

compensatory, nominal, and punitive

what are the different objectives of tort law?

contribute to maintaining order in society because it discourages private retaliation by injured persons and their friends; to give citizens a sense that they live in a just society; primarily state law

compensatory damages

damages intended to reimburse a plaintiff for their losses; damages designed to compensate victims for all the harm caused by the person who committed the tort (tortfeasor)

slander

defamation made orally

libel

defamation published in a permanent form

assumption of the risk

defendant must prove that the plaintiff must voluntarily and unreasonably encountered the risk of the actual harm the defendant caused

what is the difference between each of the categories generally?

differs in terms of the elements needed to prove the tort, the available damages, the available defenses, and the defense of willfullness of the actor

what are the five most common types of intentional torts against economic interests?

disparagement, intentional interference with contract, unfair competition, misappropriation, and fraudulent misrepresentation

public figure privilege

don't hold people liable for making false statements about politicians as long as the statements were made not with malice

where do absolute privileges arise?

in judicial proceedings and the speech and debate clause

comparative negligence

in which an extremely careless defendant can cause a great deal of harm to plaintiff who is barred from recovery due to minimal contributory negligence

unfair competition

exists because of American views about the purpose of a business

what are the two types of defense in assumption of risk?

express assumption and implied assumption of the risk

what are the four distinct torts?

false light, appropriation for commercial gain, and public disclosure of private facts

damages

final required element of negligence action; plaintiff must have sustained compensable injury as a result of the defendant's actions

privacy torts

four distinct torts collectively called invasion of privacy torts (to keep certain things out of public view)

truth

frequently considered an absolute defense one cannot beheld liable for defamation regardless of whether damages result

punitive damages

imposed to punish the offended and defer others from committing similar offenses (exemplary damages); awarded to punsih the defendant and when conduct is extremely outrageous

res ipsa loquitur

literally means "the thing speaks for itself"; uses this doctrine to allow the judge or jury to infer that the defendant's negligence was the cause of the plaintiff's harm; proof of these elements permits a finding of negligence and the burden is shifted to the defendant

what is the basis of intentional torts?

most willful of torts and predicated on the common element of intent; one doesn't need to establish a motive when proving liability

negligent torts

occur when the defendant acts in a way that subjects other people to unreasonable risk of harm

intentional torts

occur when the defendant takes an action intending that certain consequences will result or knowing certain consequences are likely to result

strict-liability torts

occur when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely

disparagement

similar to defamation, but it is a business' or product's reputation that has been tarnished

trespass to realty

occurs when a person intentionally 1) enters the land of another without permission, 2) causes an object to be placed on the land of another without the landowner's permission, 3) stays on the land of another when the owner tells him to depart, 4) refuses to remove something he placed on the property that the landowner asked him to remove

conversion

occurs when a person permanently removes personal property from the owner's possession and control (true owner can no longer regain the property)

private nuisance

occurs when a person uses their property in an unreasonable manner that harms a neighbor's use or enjoyment of his property; occurs when a party acts in a way that endangers the property, health, safety, or welfare of the community

assault

occurs when one person places another in fear or apprehension of an immediate, offensive, bodily contact

fraudulent misrepresentation

occurs when one uses intentional deceit to facilitated personal gain

false light

occurs when publicity about a person creates an impression about that individual that is not valid (similar to defamation)

tort of intentional infliction of emotional distress

occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party

intrusion on individual's affairs or seclusion

occurs when someone invades a person's solitude, seclusion or personell affairs when the person has the right to privacy

public disclosure of private facts

occurs when someone publicizes a private fact about another tha a reasonable person would find offensive

appropriation for commercial gain

occurs when someone uses another person's home, likeness, voice, etc., for commercial gain without person's permission

express assumption

occurs when the plaintiff expressly agrees to assume the risk posed by plaintiff the risk posed by the defendant's behavior

breach of duty

once plaintiff establishes the defendant's duty in the case, they must prove that the defendant's conduct violated that duty (breach of duty)

conditional privilege

party will not be held liable for defamation unless the false statement was made with actual malice

plaintiff's doctrines

plaintiff has the burden of proving all four elements of a negligence case

duty

plaintiff must establish that a defendant owes a "duty

causation

plaintiff must prove actual cause ad proximate cause to be able to recover damages

what are the two forms of comparative negligence?

pure and modified

proximate cause

refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions (legal cause)

what are the two doctrines that have been adopted by courts to aid plaintiffs in establishing negligence claims?

res ipsa loquitur and negligence per se

modified comparative negligence

same manner but the defendant must be more than 90% at fault before plaintiff can recover

nominal damages

small amount of money given to recognize that a defendant did indeed commit a tort in a case in which no compensable damages were suffered by the plaintiff

defense

special damages

actual cause

the determination that the defendant's breach of duty resulted directly in the plaintiff's injury; courts commonly determine whether a breach of duty actually caused the plaintiff's injury by asking whether the plaintiff would have been injured if the defendant had fulfilled his or her duty

defamation

the intentional publication (communication to a 3rd party) of a false statement harmful to another's reputation

implied assumption

the plaintiff implicitly assumed a known risk

if defendant successfully proves contributory negligence...

the plaintiff will will be denied any recovery of damages

intentional interference with contract

to bring a claim of this to success the plaintiff must prove that a 1) valid and enforceable contract between parties existed, 2) the defendant party knew of the existence of the contract and its terms, 3) the defendant intentionally undertook steps to cause one of the parties to breach the contract, 4) the plaintiff was innjured as a result of the breach

intent

to engage in a specific act that results in injury, physical, or economic, to another

what is the primary objective of tort law?

to provide compensation for injured parties

what are the most common torts of intentional torts against property?

trespass to reality, nuisance, trespass to personality, and conversion

trespasser to personal property

trespasser is responsible for damages caused to property as well as for damages caused to the owner related to trespasser's wrongful possession

who is liable for damages in trespass to realty

tresspasser; cannot hold an owner of property liable for damages the trespasser sustains under common law

what are two defenses for someone accused of defamation?

truth and privilege

superseding cause

unforseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered; can avoid liability