Understanding the law Ch 7

Civil rights torts

- The Civil Rights Act of 1964 and other similar legislation have been used to establish tort liability for a wide range of civil rights violations

two types of causation which must be proven by the plaintiff:

-(i) Actual cause - Actual causation is determined by the application of the "but-for" test: But for the act or omission of the defendant, the injury to the plaintiff would not have occurred. The negligent act or omission must be in the actual chain of events that caused the injury. -(ii) Proximate cause - For purposes of proximate cause, the injury sustained must be reasonably foreseeable in advance, such that there is closeness or proximity between the unreasonable act and the injury. Injuries that are too remote or attenuated from the actual cause are not deemed to be the foreseeable cause

Punitive damages can be awarded in the following situations:

-intentional torts -product liability -premises liability -bad faith -drunk driving

Res ipsa loquitur

-means the "thing speaks for itself." Generally, the injured plaintiff is required to prove that the defendant has breached a duty of care. -creates a rebuttable presumption that the defendant was negligent -the burden of proof shifts to the defendant, who must prove by a preponderance of the evidence that he was not negligent

Tort

A private civil wrong inflicted upon a person or his property, in violation of a duty imposed on each person, by civil law other than contract law, to protect others from unreasonable risks of harm.

Joint and several liability

If there are joint tortfeasors, the plaintiff can sue and recover all or a portion of the judgment from either tortfeasor, but the plaintiff is entitled to only one recovery.

(1) Product liability

Imposes strict absolute liability on defendants for a defective product even though no wrongful intentional or negligent act can be established (i.e., no fault), simply because defendants are in the chain of distribution for a defective product.

Determination of amount of punitive damages

Judges and juries determine the proper amount of punitive damages by considering the nature and gravity of the offense, the amount of compensatory damages, and the defendant's ability to pay.

McDonald's coffee case

The McDonald's coffee case is an example of a nuisance case that could have been settled for $20,000 before trial, although it later turned out to be a valid tort case that was won by the plaintiff on the merits.

Truth privilege

Truth is an absolute defense to a defamation claim. If a statement is true, it is not defamatory even if it damages the reputation of another.

a. Liability attaches as a matter of law

Unlike contract law, each person is subject to potential liability for torts even though he has not voluntarily agreed to be bound. The obligation to protect others from unreasonable risks of harm under tort law attaches to each citizen simply because he or she is a member of society.

tortfeasor

Wrongdoer who commits a private injury on another person by breaching a duty recognized by law.

Statute of limitations

a law that bars recovery for claims which are brought after a certain time period set by law. The statute generally begins to run when the injury was discovered or should reasonably have been discovered by the plaintiff. The rationale for this statute is that plaintiffs should bring their claims within a reasonable time before memories fade, evidence is lost, or witnesses die.

Strict liability

absolute liability without fault, simply by showing that an injury occurred as a result of an employment activity, a defective product, a dangerous animal or an inherently dangerous activity. -the burden of proof is shifted from the injured buyer, user or bystander to the manufacturer, who must prove by a preponderance of evidence that the product was not defective in order to avoid liability.

Nominal damages

insignificant amount awarded to the plaintiff when the defendant has violated the plaintiff's rights but no monetary loss has been suffered or can be proved. -The purpose of nominal damages is to vindicate the rights of the plaintiff.

Slander per se

is slander as a matter of law. the plaintiff need not prove special damages if the defendant speaks a false statement about: -imprisonment -venereal disease -unfit for office -sexual misconduct

Wrongful death statutes

law that allows the heirs of a deceased person to sue whoever wrongfully caused the decedent's death and collect any damages awarded by the court based on the loss of companionship and financial support resulting from the death.

innocent or negligent misrepresentation

not deemed to be fraud, but does permit the plaintiff to rescind the transaction.

Good Samaritan laws

protects volunteers and rescuers (e.g., doctors, police and firemen) from liability for ordinary negligence (but not intentional wrongdoing, gross negligence or recklessness) committed in the course of providing emergency aid or rescuing a victim from harm.

Compensatory damages

referred to as actual damages, and are awarded to compensate the plaintiff for the actual injury or loss suffered.

Statute of repose

starts to run from the date that the product was originally sold or manufactured or the injury was first inflicted

b. Prima facie case

support a cause of action in tort requires: (1) Legal duty - Existence of a legal duty imposed by statutory or common law. (2) Breach - The defendant's breach of the duty and failure to conform his or her actions to the standard set by law. (3) Causation - The breach of the duty by the defendant is the actual and proximate (foreseeable) cause of the plaintiff's injury or damage. (4) Damage - The injury or damage suffered by the plaintiff must be the result of the defendant's breach of duty.

General damages (non-economic damages)

the amount awarded to pay the plaintiff for his non-monetary losses resulting from the specific circumstances (e.g., pain and suffering, mental distress, loss of consortium, wrongful death losses, etc.).

Special damages (economic damages)

the amount awarded to pay the plaintiff for his or her actual out-of-pocket losses resulting from the specific circumstances (e.g., medical expenses, lost wages, property damage, present value of anticipated future losses, etc.).

Punitive damages (exemplary damages)

the amount awarded to the plaintiff in addition to compensatory damages, in order to punish the defendant and serve as a deterrent to the defendant and others from committing the same type of tort in the future

g. Conversion

the civil theft of another person's personal property

Damages in Torts

the goal of tort law is to make the injured party whole again by putting him back in the position he occupied prior to the

Shopkeeper's privilege

the legal right of a shopkeeper to detain a suspected shoplifter to determine whether a theft has been committed. The shopkeeper's privilege is a defense to false imprisonment.

Contributory negligence

the negligence of the plaintiff that contributed to the cause of the injury is a complete bar to the recovery of damages. -all or nothing doctrine

Comparative negligence

the negligence of the plaintiff will not bar recovery of damages, but instead may reduce the amount of the recovery proportionately based on the relative damage caused by the plaintiff's negligence as compared to the relative damage caused by the defendant's negligence

Negligence per se

the violation of a statute which creates a presumption of negligence without proof

Libel

written defamation