BLAW - Chapter 05: Tort Law, Exam #2

Ex Nicholas Mora worked for Welco Electronics, Inc., but had also established his own company, AQM Supplies. Mora used Welco's credit card without permission and deposited more than $375,000 into AQM's account, which he then transferred to his personal account. Welco sued. What did a California court hold?

A California court held that Mora was liable for conversion. The court reasoned that when Mora misappropriated Welco's credit card and used it, he took part of Welco's credit balance with the credit-card company.

Some jurisdictions have adopted a "pure" form of comparative negligence that allows ---

A plaintiff to recover even if the extent of the plaintiff's fault is greater than that of the defendant. For instance, if a plaintiff was 80 percent at fault and the defendant 20 percent at fault, the plaintiff may recover 20 percent of the actual damages.

Contributory Negligence

A rule in tort law, used in only a few states, that completed bars the plaintiff from recovering any damages if the harm suffered is partly the plaintiff's own fault All individuals are expected to exercise a reasonable degree of care in looking out for themselves. Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff was precluded from recovering any damages. Today, only a few jurisdictions still follow this doctrine.

Comparative Negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely Under this standard, both the plaintiff's and the defendant's negligence are computed, and the liability for damages is distributed accordingly. In most states, this replaced the contributory negligence doctrine

Good Samaritan Statutes

A state statue stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless the act recklessly and cause further harm

Dram Shop Acts

A state statue that imposes liability on those who sell or serve alcohol for injuries resulting from accidents caused by intoxicated persons when the sellers or servers contributed to the intoxication

Causation in fact

An act or omission without which an event would not have occured

Disparagement of Property

An economically injurious falsehood about another's product or property (just like defamation just not about another's reputation)

Superseding Cause

An unforeseeable intervening event may break the connection between a wrongful act and an injury to another If so, the event acts as a superseding cause—that is, it relieves a defendant of liability for injuries caused by the intervening event.

Strict Liability

Another category of torts that is also known as a liability without fault. Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods. Liability for injury is imposed for reasons other than fault. Under the doctrine of strict liability, parties may be held liable, regardless of the degree of care exercised, for damages or injuries caused by their products or activities. Strict liability includes liability for harms caused by abnormally dangerous activities, by dangerous animals, and by defective products (product liability).

Ex of Superseding Clause While riding his bicycle, Derrick negligently hits Julie, who is walking on the sidewalk. As a result of the impact, Julie falls and fractures her hip. While she is waiting for help to arrive, a small plane crashes nearby and explodes, and some of the fiery debris hits her, causing her to sustain severe burns. Which injuries will Derrick be liable for?

Derrick will be liable for Julie's fractured hip because the risk of hitting her with his bicycle was foreseeable. Normally, though, Derrick will not be liable for the burns caused by the plane crash, because the risk of a plane's crashing nearby and injuring Julie was not foreseeable.

Ex of Duty to warn business invitees of risks Liz enters a Crown Market, slips on a wet floor, and sustains injuries as a result. If there was no sign warning that the floor was wet when Liz slipped, the owner of Crown Market would be liable for damages. What would a court hold?

A court would hold that the business owner was negligent because the owner failed to exercise a reasonable degree of care in protecting the store's customers against foreseeable risks about which the owner knew or should have known. That a patron might slip on the wet floor and be injured was a foreseeable risk, and the owner should have taken care to avoid this risk or to warn the customer of it (by posting a sign or setting out orange cones, for instance).

Assumption of Risk

A defense to negligence that bars a plaintiff from recovering for injuries or damage suffered as a result of risks that were known and voluntarily assumed

Ex During a trip to a Costco warehouse store in Nevada, Stephen Foster tripped and fell over a wooden pallet and sustained injuries. A Costco employee who was restocking the shelves had placed the pallet in the aisle without any barricades. When Foster sued Costco for negligence, Costco argued that it had not breached its duty by failing to warn customers because the pallet was open and obvious. What did the ultimate ruling end up being?

A lower court agreed and granted a summary judgment in Costco's favor, but the Supreme Court of Nevada reversed. The court held that the open and obvious nature of a dangerous condition does not automatically relieve a business owner from the general duty of reasonable care. Every situation is different. Therefore, Foster was entitled to proceed to trial and argue that Costco should have used barricades or warnings to protect customers.

Duty of Professionals

Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others Professionals—such as physicians, dentists, architects, engineers, accountants, and lawyers—are required to have a standard minimum level of special knowledge and ability In determining what constitutes reasonable care, the law takes their training and expertise into account

Business invitees

Persons, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.

Who were the Good Samaritan Statues passed largely to protect?

Physicians and medical personnel who volunteer their services in emergency situations to those in need, such as individuals hurt in car accidents

Monica hosts a Super Bowl party at which Brett, a minor, sneaks alcoholic drinks. Monica is ---

Potentially liable for damages resulting from Brett's drunk driving after the party, even if she was not negligent (careless) in serving the alcoholic beverages.

Many states' comparative negligence statutes, however, contain a "50 percent" rule that ---

Prevents a plaintiff who was more than 50 percent at fault from recovering any damages. Under this rule, a plaintiff who is 35 percent at fault could recover 65 percent of the actual damages, but a plaintiff who is 65 percent at fault could recover nothing.

Malpractice

Professional misconduct or the lack of the requisite degree of skill as a professional Negligence on the part of a professional, such as a physician, is commonly referred to as malpractice

What damages will the court award if the defendant's conduct was grossly negligent, reflecting an intentional failure to perform a duty with reckless disregard of the consequences to others?

Punitive damages - Damages exceeding simple compensation and awarded to punish the defendant.

Duty to warn business invitees of risks

Retailers and other firms that explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees The duty normally requires storeowners to warn business invitees of foreseeable risks, such as construction zones and wet floors, about which the owners knew or should have known

In addition to the Dram Shop Acts, who else can be held liable for similar instances?

Social hosts (persons hosting parties) can be held liable for injuries caused by guests who became intoxicated at the hosts' homes

Obvious risks may be an exception

Some risks, are so obvious that the owner need not warn of them EX: A business owner does not need to warn customers to open a door before attempting to walk through it

Strict Liability Applications - Persons who keep wild animals

Strictly liable for any harm inflicted by the animals

True or False? It is the intent to do an act that is important in tort law, not the motive behind the intent.

TRUE

Duty of Care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence

Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances Occurs when someone suffers injury because of another's failure to fulfill a required duty of care The person's conduct merely creates a risk of such consequences Moreover, the risk must be foreseeable—that is, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it

When is the Assumption of Risk defense frequently asserted?

When the plaintiff is injured during recreational activities that involve known risk, such as skiing and skydiving Additionally, participants in sporting events, AND ALSO to spectators and bystanders who are injured while attending those events

When will courts not apply the assumption of risk doctrine in certain situations?

When there are situations involving emergencies

Conversion

Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another Often, when conversion occurs, a trespass to personal property also occurs The original taking of the personal property from the owner was a trespass, and wrongfully retaining the property is conversion

Legally Recognizable Injury

For a tort to have been committed, the plaintiff must have suffered legally recognizable injury - suffered some loss, harm, wrong, or invasion of a protected interest

Ex of Slander of title

For instance, a car dealer would have difficulty attracting customers if competitors publish a notice that the dealer's stock consists of stolen automobiles.

Ex of Dram Shop Acts A bar owner or bartender may be --- for injuries caused by a person who became intoxicated while drinking at the bar. The owner or bartender may also be --- for continuing to serve a person who was already intoxicated.

Held liable, Held responsible

Causation

If a person breaches a duty of care and someone suffers an injury, the wrongful act must have caused the harm for it to constitute the tort of negligence

Ex of Negligence Juan walks up to Maya and intentionally shoves her. Maya falls and breaks an arm as a result. In this situation, has Juan committed an intentional tort?

Juan has committed an intentional tort (assault and battery). If Juan carelessly bumps into Maya, however, and she falls and breaks an arm as a result, Juan's action will constitute negligence. In either situation, Juan has committed a tort.

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm In some jurisdictions, landowners are held to owe a duty to protect even trespassers against certain risks Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms

Proximate cause

Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability

A significant application of strict liability is in the area of Product Liability

Liability of manufacturers and sellers for harmful or defective products Liability here is a matter of social policy. Manufacturers and sellers can better bear the cost of injuries, and because they profit from making and selling the products, they should be responsible for the injuries the products cause.

If a professional violates the duty of care toward a client, the professional may be sued for ---, which is essentially professional negligence

Malpractice For instance, a patient might sue a physician for medical malpractice A client might sue an attorney for legal malpractice

Strict Liability Applications - Persons who keep domestic animals

May be strictly liable for harm caused by those animals if the owner knew, or should have known, that the animals were dangerous or had a propensity to harm others

Under statutes such as the social host and Dram Shop Act statutes, do you have to prove that the bar owner, bartender, or social host was negligent?

No, it is unnecessary to prove

To recover damages (receive compensation), the plaintiff must have suffered a ---

legally recognizable injury

Three Basic Affirmative Defenses in Negligence Cases

1. Assumption of risk, 2. Superseding cause, and 3. Contributory or comparative negligence

To succeed in negligence action, the plaintiff must prove each of the following:

1. Duty - The defendant owed a duty of care to the plaintiff 2. Breach - The defendant breached that duty 3. Causation in fact - The plaintiff's injury would not have occurred without the defendant's breach 4. Proximate causation - The connection between the defendant's breach and the plaintiffs injury is foreseeable and therefore justifies imposing liability 5. Damages - The plaintiff suffered a legally recognizable injury

In deciding whether there is causation, the court must address two questions:

1. Is there causation in fact? - Did the injury occur because of the defendant's act, or would it have occurred anyway? If an injury would not have occurred without the defendant's act, then there is causation in fact 2. Was the act the proximate 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. Courts use proximate cause to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions

Two elements required for the defense of assumption of risk

1. Knowledge of the risk 2. Voluntary assumption of the risk

In determining whether the duty of care has been breached, courts consider several factors:

1. The nature of the act (whether it is outrageous or commonplace). 2. The manner in which the act was performed (cautiously versus heedlessly). 3. The nature of the injury (whether it is serious or slight).

Palsgraf v. Long Island Railroad Co. (1928) In 1928, the New York Court of Appeals (that state's highest court) issued its decision in Palsgraf v. Long Island Railroad Co., a case that has become a landmark in negligence law and proximate cause. The plaintiff, Helen Palsgraf, was waiting for a train on a station platform. A man carrying a small package wrapped in newspaper was rushing to catch a train that had begun to move away from the platform. As the man attempted to jump aboard the movi

At the trial, the jury found that the railroad guards were negligent in their conduct. On appeal, the question before the New York Court of Appeals was whether the conduct of the railroad guards was the proximate cause of Palsgraf's injuries. In other words, did the guards' duty of care extend to Palsgraf, who was outside the zone of danger and whose injury could not reasonably have been foreseen? The court stated that the question of whether the guards were negligent with respect to Palsgraf depended on whether her injury was reasonably foreseeable by the railroad guards. Although the guards may have acted negligently with respect to the man boarding the train, this had no bearing on the question of their negligence with respect to Palsgraf. This was not a situation in which a person committed an act so potentially harmful (for example, firing a gun at a building) that there would automatically be liability for any harm that resulted. The court stated that here "there was nothi

What type of damages are the norm in negligence cases?

Compensatory damages - Money awarded to an injured party that compensate for damages, injury, or another incurred loss. It compensates by providing damages that put the injured party back in the position that they were in before the negligent tort occurred.

Intention

Conversion can occur even when people who possess the goods of others mistakenly believe that they are entitled to the goods Good intentions are not a defense against conversion

Abnormally Dangerous Activities

Courts apply the doctrine of strict liability in such cases because of the extreme risk of the activity. For instance, even if blasting with dynamite is performed with all reasonable care, there is still a risk of injury. Because of the potential for harm, the person who is engaged in an abnormally dangerous activity—and benefits from it—is responsible for paying for any injuries caused by that activity. Although there is no fault, there is still responsibility because of the dangerous nature of the undertaking.

Usual Defenses to Negligence

Defendants often defend against negligence claims by asserting that the plaintiffs failed to prove the existence of one of more of the required elements for negligence

Ex of Conversion Chen borrows Mark's iPad Pro to use while traveling home from school for the holidays. When Chen returns to school, Mark asks for his iPad Pro back. Chen tells Mark that she gave it to her little brother for Christmas. Can Mark sue Chen for Conversion?

In this situation, Mark can sue Chen for conversion, and Chen will have to either return the iPad Pro or pay damages equal to its replacement value.

Slander of title

The publication of a statement that denies or casts doubt on another's legal ownership of property, causing financial loss to that property's owner Usually, this is an intentional tort that occurs when someone knowingly publishes an untrue statement about property with the intent of discouraging a third party from dealing with the property's owner

Slander of quality (trade libel)

The publication of false information about another's product, alleging that it is not what its seller claims To establish trade libel, the plaintiff must prove that the improper publication caused a third party to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result An improper publication may be both a slander of quality and a defamation of character

Reasonable person standard

The standard of behavior expected of a hypothetic "reasonable person." It is the standard against which negligence is measured and that must be observed to avoid liability for negligence The reasonable person standard is said to be (though in an absolute sense it cannot be) objective Generally, whether an action constitutes a breach of the duty of care is determined on a case-by-case basis The outcome depends on how the judge (or jury, in a jury trial) decides that a reasonable person in the position of the defendant would act in the particular circumstances of the case

If no harm or injury results from a given negligent action then ---

There is nothing to compensate - and no tort exists

The purpose of tort law ---

To compensate for legally recognized injuries resulting from wrongful acts

Ex of Duty of Care - Bogenberger v. Pi Kappa Alpha Corporation, Inc. David Bogenberger attended a pledge event at the Pi Kappa Alpha fraternity house at Northern Illinois University (NIU). The NIU Chapter officers planned an evening of hazing, during which the pledges were required to consume vodka provided by the members. By the end of the night, David's blood alcohol level was more than five times the legal limit. He lost consciousness. The NIU Chapter officers failed to seek medical attent

YESSSS - The Illinois Supreme Court affirmed the intermediate appellate court's reversal of the trial court's dismissal. The plaintiff's "complaint ... may proceed against the NIU Chapter [and] its officers." Each of us owes a duty of care to others to guard against injuries that are reasonably foreseeable consequences of our acts. The court reasoned that an injury due to hazing is reasonably foreseeable. This is indicated by the existence of the state's hazing statute, the university's rules, and the national Pi Kappa Alpha organization's policy against hazing. At hazing events involving the consumption of large amounts of alcohol, injuries are likely to occur. The magnitude of the burden of guarding against such injuries is small. In this case, then, it is reasonable to require the NIU Chapter and its officers to comply with the law and with the university's and fraternity's rules. It is further reasonable to place the consequences of that burden on the same part

Ex of Assumption of Risk - Taylor v. Baseball Club of Seattle, L.P. Delinda Middleton Taylor went to a Mariners baseball game at Safeco Field with heterm-24r boyfriend and two minor sons. Their seats were four rows up from the field along the right field foul line. They arrived more than an hour before the game began so that they could see the players warm up and get their autographs. When she walked in, Taylor saw that Mariners pitcher Freddy Garcia term-24was throwing a ball back and forth wi

YESSSSS - The state intermediate appellate court affirmed the lower court's judgment. Taylor, as a spectator in an unprotected area of seats, voluntarily undertook the risk associated with being hit by an errant baseball thrown during warm-ups before the start of the game. The court observed that there was substantial evidence that Taylor was familiar with the game. She was a seasoned Mariners fan, and both of her sons had played baseball for at least six years. "She attended many of her sons' baseball games, she witnessed balls entering the stands, she had watched Mariners' games both at the Kingdome [the Mariners' former stadium] and on television, and she knew that there was no screen protecting her seats, which were close to the field. In fact, as she walked to her seat she saw the players warming up and was excited about being in an unscreened area where her party might get autographs from the players and catch balls." It was not legally relevant that the injury occurred during

If you carelessly bump into a passerby, who stumbles and falls as a result will you be liable?

You may be liable in tort if the passerby is injured in the fall. If the person is unharmed, however, there normally cannot be a suit for damages because no injury was suffered.