Intentional Torts and Negligence (6)

Defamation of character

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally or accidentally published by a third party. Ex: The statement "My lawyer is lousy" is an opinion and is not defamation. The statement "My lawyer has been disbarred from the practice of law," when she has not been disbarred, is an untrue statement of fact and is actionable as defamation.

Assault

(1) The threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary. Ex: Suppose a 6 ft 5in, 250 pound person makes a fist and threatens to punch a 5 ft, 100 pound person. If the threatened person is afraid that he or she will be physically harmed, that person can sue the threatening person to recover damages for the assault.

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. Ex: Under assumption of the risk, a race-car driver assumes the risk of being injured or killed in a crash.

comparative advantage (comparative fault)

A doctrine under which damages are apportioned according to fault. Ex: When the comparative negligence rule is applied to the previous example in which the pedestrian suffered $1000,000 of injuries, the result is much fairer. The plaintiff-pedestrian, who was 20% at fault for causing his own injuries, can recover 80% of his damages ( or $80,000) from the negligent defendant-driver.

Breach of Duty of Care

A failure to exercise care or to act as a reasonable person would act. Ex: Throwing a lit match on the ground in the forest and causing a fire is a breach of a duty of care. Or A firefighter who refuses to put out a fire when her safety is not at stake breaches her duty of care for failing to act when she has a duty to act.

Libel

A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

Invasion of the right to privacy

The unwarranted and undesired publicity of a private fact about a person. The fact does not have to be untrue. Ex: Secretly taking photos of another person with a cell phone camera in a men's or women's locker room would constitute invasion of the right to privacy. Reading someone else's mail, wiretapping someone's telephone, and reading someone's e-mail without authorization to do so are also examples of invasion of the right to privacy.

Examples of Intentional misrepresentation

(REVISIT PAGE 107 CONCERNING MATT)

The three categories of torts

- Intentional torts - Unintentional torts - Strict liability

The reasons a merchant can may avoid false imprisonment to shoplifters:

- There are reasonable grounds for the suspicion. - Suspects are detained for only a reasonable time. - Investigations are conducted in a reasonable manner.

To prove disparagement (trade libel, product disparagement, and slander of title):

- the plaintiff must show that the defendant made an untrue statement about the plaintiff's products, services, property, or business reputation - published that untrue statement to a third party - knew the statement was not true - made the statement maliciously ( with intent to injure the plaintiff) Ex: If a competitor of John Deere tractors told a prospective customer that "John Deere tractors often break down," when in fact they rarely do, that would be product of disparagement.

In order to succeed in a malicious prosecution lawsuit:

1. The plaintiff in the original lawsuit( now the defendant) instituted or was responsible for instituting the original lawsuit. 2. There was no probable cause for the lawsuit (e.g., it was a frivolous lawsuit). 3. The plaintiff in the original action brought it with malice. (Caution: this is a very difficult element to prove.) 4. The original lawsuit was terminated in favor of the original defendant ( now the plaintiff). 5. The current plaintiff suffered injury as a result of the original lawsuit.

Four elements required to find fraud

1. The wrongdoer made a false representation of a material fact. 2. The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party. 3. The innocent party justifiably relied on the misrepresentation. 4. The innocent party was injured.

Intentional tort

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff's injury.

Malicious prosecution

A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.

Res Ipsa Loquitur

A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone's negligence. The burden switches to the defendant to prove that he or she was not negligent. Ex: Haeran goes in for major surgery and is given anesthesia to put her to sleep during the operation. Sometime after the operation, it is discovered that a surgical instrument was left in Haeran during the operation. She suffers severe injury because of the left-in instrument. Haeran has no way to identify which doctor or nurse carelessly left the instrument in her body. In this case, the court can apply the doctrine of res ipsa loquitur and place the presumption of negligence on the defendants. Any defendant who can prove he or she did not leave the instrument in haeran escapes liability; any defendant who does not disprove his or her negligence is liable. Other examples include commercial airplane crashes, falling elevators, and the like.

Tort

A wrong.

Misappropriation of the right to publicity (tort of appreciation)

An attempt by another person to appropriate a living person's name or identity for commercial purposes. Ex: Megan Fox is a famous movie star. If an advertising agency places Megan Fox's likeness (e.g., photo) on a billboard advertising a product without Megan Fox's permission, it has engaged in the tort of misappropriation of the right to publicity. Megan Fox could sue and recover the profits made by the offending party as well as obtain an injunction to prevent unauthorized use of her likeness by the offending party.

superseding event (intervening event)

An event for which a defendant is not responsible. The defendant is not liable for injuries caused by the superseding or intervening event. Ex: Assume that an avid golfer negligently hits a spectator with a golf ball, knocking the spectator unconscious. While lying on the ground, waiting for an ambulance to come, the spectator is struck by a bolt of lightening and killed. The golfer is liable for the injuries caused by the golf ball. He is not liable for the death of the spectator, however, because the lightening bolt was an unforeseen intervening event.

False imprisonment

The intentional confinement or restraint of another person without authority or justification and without that person's consent. Ex: A person who locks the doors in a house or automobile and does not let another person leave is liable for false imprisonment. Merely locking one door to a building when other exits are not locked is not false imprisonment. However, a person is not obliged to risk danger or an affront to his or her dignity by attempting to escape.

Example of Malicious prosecution lawsuit

One student actor wins a part in a play over another student actor. To get back at the winning student, the rejected student files a lawsuit against the winning student alleging intentional infliction of emotional distress, defamation, and negligence. The lawsuit is unfounded, but the winning student must defend the lawsuit. The jury returns a verdict exonerating the defendant. The defendant now can sue the plaintiff for malicious prosecution and has a very good chance of winning the lawsuit.

Intentional Misrepresentation (Fraud or deceit)

The intentional defrauding of a person out of money, property, or something else of value.

merchant protection statutes (shopkeeper's privilege)

Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment.

actual cause (causation in fact)

The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven. Ex: Suppose a corporation negligently pollutes the plaintiff's drinking water. The plaintiff dies of a heart attack unrelated to the polluted water. Although the corporation has acted negligently, it is not liable for the plaintiff's death. There were a negligent act and an injury, but there was no cause-and-effect relationship between them. If, instead, the plaintiff had died from the polluted drinking water, there would have been causation in fact, and the polluting corporation would have been liable.

Battery

Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury. Ex: Throwing a rock, shooting an arrow or bullet, knocking off a hat, pulling a chair out from under someone, and poisoning a drink are all instances of actionable battery. The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep).

Transfered Intent Doctrine

Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim of the act.

Unintentional tort (negligence)

a doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions

Contributory Negligence

a doctrine that says a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant. Ex: Suppose a driver who is driving over the speed limit negligently hits and injures a pedestrian who is jaywalking against a red "Don't Walk" sign. Suppose the jury finds that the driver is 80% responsible for the accident and the jaywalker is 20% percent responsible. The pedestrian suffered $100,000 in injuries. Under the doctrine of contributory negligence, the pedestrian cannot recover any damages from the driver.

Injury

a plaintiff's personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant's negligence; breach of duty is not actionable unless the plaintiff suffers injury or injury to his or her property. Ex: Suppose that a man injuries his hand when a train door malfunctions. The train company is found negligent. If the injured man is a star professional basketball player who makes $5 million per year, with an expected seven years of good playing time left, this plaintiff can recover multiple millions of dollars because he can no longer play professional basketball. If the injured man is a college professor with 15 years until retirement who is making only one-fortieth per year of what the basketball player makes, he can recover some money for his injuries. However, because he makes a lot less per year than the professional basketball player and because he can continue working, albeit with more difficulty, the professor can recover mush less for the same injury.

Proximate cause (legal cause)

a point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions. Ex: A person is walking on a public sidewalk. When he finishes smoking a cigarette, which is still lit, he negligently tosses it and it lands close to a house. The cigarette causes a fire that burns down the house. In this instance, the smoker is the proximate cause of the damage because it is reasonably foreseeable that his action could burn down the house. If the fire jumps and burns down the adjacent house, the smoker is still the proximate cause. If the third house in the row burns, he is probably still the proximate cause. However, if the fire spreads and burns down 100 house before it is put out (the smoker is the actual cause of the damage under the "but for" test). the smoker would not be the proximate cause of burning the one hundredth house because it would not be reasonably foreseeable that his action of throwing a lit cigarette would burn down so many houses. Where does one draw the line of liability, at the fourth house, the 20th, the 40th? Where would you draw the line of proximate cause?

Good Samaritan Law

a statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations. Ex: Sam is injured in an automobile accident and is unconscious alongside the road. Doctor Pamela Heathcoat, who is driving by the scene of the accident, stops, pulls Sam from the burning wreckage, and administers first aid. In doing so, Pamela negligently breaks Sam's shoulder. If Pamela's negligence is ordinary negligence, she is not liable to Sam because the Good Samaritan law protects her from liability; if Pamela was grossly negligent or reckless in administering aid to Sam, she is liable to him for injuries she caused. It is a question of fact for the jury to decide whether a doctor's conduct was ordinary negligence or gross negligence or recklessness.

Negligent Infliction of Emotional Distress

a tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct. Ex: A father is walking his young daughter to school when a driver of an automobile negligently runs off the road and onto the sidewalk, hitting the girl but not her father. Suppose that the young daughter dies from her injuries. The father suffers severe emotional distress by seeing his daughter die and manifests his distress by suffering physically. The father can recover damages for negligent infliction of emotional distress for the severe distress he suffered by seeing his daughter die.

Intentional Infliction of Emotional Distress (tort of outrage)

a tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. Ex: Shame, humiliation, embarrassment, anger, fear, and worry constitute severe mental distress.

Negligence

failure to take proper care in doing something

Strict Liability

liability without fault; a participant in a covered activity will be held liable for any injuries caused by the activity., even if he or she was not negligent. Ex: Ellison has owned a dog for years. The dog has shown no dangerous propensities and has never bitten anyone. Ellison goes out of town on a business trip and has his neighbor take care of the dog while he is gone. While Ellison is gone, the neighbor, while watching the dog, lets the dog off of her leash to play with a child who has asked to play with the dog. When the child hits the dog in the eye, the dog bites the child, injuring the child. Here, Ellison is strictly liable for the injuries caused by his dog even though he has committed no negligence himself.

Slander

oral defamation of character

Defamation

the action of damaging the good reputation of someone; slander or libel.

professional malpractice

the liability of a professional who breaches his or her duty of ordinary care. Ex: A doctor who amputates a wrong leg is liable for medical malpractice. A lawyer who fails to file a document with the court on time, causing the client's case to be dismissed, is liable for legal malpractice. An accountant who fails to use reasonable care, knowledge, skill, and judgement in providing auditing and other accounting services to a client is liable for accounting malpractice.

Duty of care

the obligation people owe each other not to cause any unreasonable harm or risk of harm; this must be owed in order for a defendant to be liable for negligence. Ex: Each person owes a duty to drive his or her car carefully, not to push or shove on escalators, not to leave skateboards on the sidewalk, and the like. Businesses owe a duty to make safe products, not to cause accidents, and so on.

Disparage

to degrade, to speak of someone or something in a derogatory manner; belittle