business law bul 2241 fiu ch 4 tort law

comparative negligence

Under this standard, both the plaintiff's and the defendant's negligence are computed, and the liability for damages is distributed accordingly.

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm.

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

frivolous litigation -

can counter sued for tort of malicious prosecution if person sues for malice and without probable cause.

dram shop acts

under which a tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender. ex Selena hosts a Super Bowl party at which Raul, a minor, sneaks alcoholic drinks. Selena is potentially liable for damages resulting from Raul's drunk driving after the party.

assault -

unexcused, intentional act that causes fear on a person ex Ivan threatens Jean with a gun and then shoots her. The pointing of the gun at Jean is an assault. The firing of the gun (if the bullet hits Jean) is a battery.

Defenses to Negligence

(1) assumption of risk, (2) supersed- ing cause, and (3) contributory and comparative negligence. Superseding Cause An unforeseeable intervening event may break the connection between a wrongful act and an injury to another.

res ipsa loquitur

(meaning "the facts speak for themselves"). Then the burden of proof rests on the defendant to prove that she or he was not negligent. ex A kidney donor, Darnell Backus, sustained injuries to his cervical spine and to the muscles on the left side of his body as a result of the surgery to harvest his kidney. He sued the hospital and physicians involved in the transplant operation for damages. Backus asserted res ipsa loquitor because the injury was of the kind that ordinarily does not occur in the absence of someone's negligence. The burden of proof shifted to the defendants, and because they failed to show that they had not been negligent, Backus won.

Compensatory Damages

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party. ex- Seaway Marine Transport operates the Enterprise, a large cargo ship with twenty-two hatches for stor- ing coal. When the Enterprise moved into position to receive a load of coal on the shores of Lake Erie in Ohio, it struck a land-based coal-loading machine operated by Bessemer & Lake Erie Railroad Company. A federal court found Seaway liable for negligence and awarded $522,000 in special damages to compensate Bessemer for the cost of repairing the damage to the loading machine.1

The Duty of Professionals and malpractice

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. Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard. If a professional violates her or his duty of care toward a client, the professional may be sued for malpractice, which is essentially professional negligence. For instance, a patient might sue a physician for medical malpractice. A client might sue an attorney for legal malpractice

battery -

assault that results in physical contact The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss). Physical injury need not occur. The contact can be made by the defendant or by some force set in motion by the defendant, such as a rock thrown by the defendant. Whether the contact is offensive or not is determined by the reasonable person standard. ex Ivan threatens Jean with a gun and then shoots her. The pointing of the gun at Jean is an assault. The firing of the gun (if the bullet hits Jean) is a battery.

abuse of process -

can sue a person who uses legal process improperly or to accomplish something the system wasnt designed for Unlike malicious prosecution, abuse of process is not lim- ited to prior litigation and does not require the plaintiff to prove malice. It can be based on the wrongful use of subpoenas, court orders to attach or seize real property, or other types of formal legal process.

trespass to personal property -

damaging or interfering with someone's right to use/possess/enjoy their personal property ex Kelly takes Ryan's business law book as a practical joke and hides it so that Ryan is unable to find it for several days before the final examination. Here, Kelly has engaged in a trespass to personal property. ex If it can be shown that trespass to personal property was warranted, then a complete defense exists. Most states, for example, allow automobile repair shops to retain a customer's car (under what is called an artisan's lien) when the customer refuses to pay for repairs already completed.

Proximate cause, or legal cause,

exists when the connection between an act and an injury is strong enough to justify imposing liability. ex Ackerman carelessly leaves a campfire burning. The fire not only burns down the forest but also sets off an explosion in a nearby chemical plant that spills chemicals into a river, killing all the fish for a hundred miles downstream and ruining the economy of a tourist resort. Should Ackerman be liable to the resort owners? To the tourists whose vacations were ruined? These are questions of proximate cause that a court must decide. Questions of proximate cause are linked to the concept of foreseeability. It would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury.

The Injury Requirement and Damages

For a tort to have been committed, the plaintiff must have suffered a legally recognizable injury. To recover damages (receive compensation), the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists. ex If you carelessly bump into a passerby, who stumbles and falls as a result, you may be liable in tort if the pass- erby is injured in the fall. If the person is unharmed, however, there normally cannot be a suit for damages because no injury was suffered.

Negligence per se

may occur if an individual violates a statute or ordinance and thereby causes the kind of harm that the statute was intended to prevent. The statute must clearly set out what standard of conduct is expected, when and where it is expected, and of whom it is expected. T ex A Delaware statute states that anyone "who operates a motor vehicle and who fails to give full time and attention to the operation of the vehicle" is guilty of inat- tentive driving. Michael Moore was cited for inattentive driving after he collided with Debra Wright's car when he backed a truck out of a parking space. Moore paid the ticket, which meant that he pleaded guilty to violating the statute. The day after the accident, Wright began having back pain, which eventually required surgery. She sued Moore for damages, alleging negligence per se. The Delaware Supreme Court ruled that the inattentive driving statute set forth a sufficiently specific standard of conduct to warrant application of negligence per se.

conversion -

wrongfully taking/using someone's property without permission ex Chen borrows Mark's iPad to use while traveling home from school for the holidays. When Chen returns to school, Mark asks for his iPad back. Chen tells Mark that she gave it to her little brother for Christmas. In this situation, Mark can sue Chen for conversion, and Chen will have to either return the iPad or pay damages equal to its replacement value.

Good Samaritan Statutes

someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence.

Damages for Slander and 4 slander per se -

the plaintiff must prove special damages (defined earlier) to establish the defendant's liability. In other words, the plaintiff must show that the slanderous statement caused the plaintiff to suffer actual economic or monetary losses. Exceptions to the burden of proving special damages in cases alleging slander are made for certain types of slanderous statements. If a false statement constitutes "slander per se," no proof of special damages is required for it to be actionable. The following four types of false utterances are considered to be slander per se: 1. A statement that another has a loathsome disease (historically, leprosy and sexually transmitted diseases, but now also including allegations of mental illness). 2. A statement that another has committed improprieties while engaging in a business, profession, or trade. 3. A statement that another has committed or has been imprisoned for a serious crime. 4. A statement that a person (usually only unmarried persons and sometimes only women) is unchaste or has engaged in serious sexual misconduct.

Damages

A monetary award sought as a remedy for a breach of contract or a tortious action.

causation in fact.

If an injury would not have occurred without the defendant's act

transferred intent.

Intent can be transferred when a defendant intends to harm one individual, but uninten- tionally harms a different person.

Special Damages

In a tort case, an amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damage, and lost wages and benefits (now and in the future).

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: 1. Duty. That the defendant owed a duty of care to the plaintiff. 2. Breach. That the defendant breached that duty. 3. Causation. That the defendant's breach caused the plaintiff's injury. 4. Damages. That the plaintiff suffered a legally recognizable injury.

invasion of right to privacy

* wrongful intrusion into a person's private activities * publication of info that places a person in false light ex 2 An Arkansas newspaper prints an article with the headline "Special Delivery: World's oldest newspaper carrier, 101, quits because she's pregnant!" Next to the article is a picture of a ninety-six-year-old woman who is not the subject of the article (and not pregnant). If she sues the paper for invasion of privacy, she will probably win. * disclosure of private facts an ordinary person would find objectionable or embarrassing ex A newspaper account about a private citizen's sex life or financial affairs could be an actionable invasion of privacy, even if the information revealed is true, because it should not be a matter of public concern. * appropriation of identity (right to publicity) - using a person's name, likeness, or characteristics without permission for commercial purpose ex An advertising agency asks a singer with a distinctive voice and stage presence to do a marketing campaign for a new automobile. The singer rejects the offer. If the agency then uses someone who imitates the singer's voice and dance moves in the ad, this would be actionable as an appropriation of identity. ex The Naked Cowboy, Robert Burck, was a street entertainer in New York City who had achieved some fame performing for tourists. He performed wearing only a white cowboy hat, white cowboy boots, and white underwear and carrying a guitar strategi- cally placed to give the illusion of nudity. Burck sued Mars, Inc., the maker of M&Ms candy, over a video it showed on billboards in Times Square that depicted a blue M&M dressed exactly like The Naked Cowboy. The court, however, held that the use of Burck's signature costume did not amount to appropriation.

wrongful interference -

3rd party interfering with an enforceable contractual relationship or established business relation with the purpose of advancing their economic interest ex contractual relationship - A landmark case involved an opera singer, Johanna Wagner, who was under contract to sing for a man named Lumley for a specified period of years. A man named Gye, who knew of this contract, nonetheless "enticed" Wagner to refuse to carry out the agreement, and Wagner began to sing for Gye. Gye's action constituted a tort because it wrongfully interfered with the contractual relationship between Wagner and Lumley.14 (Of course, Wagner's refusal to carry out the agreement also entitled Lumley to sue Wagner for breach of contract.) ex business relation - A shopping mall contains two athletic shoe stores: Joe's and Ultimate Sport. Joe's cannot station an employee at the entrance of Ultimate Sport to divert customers by tell- ing them that Joe's will beat Ultimate Sport's prices. This type of activity constitutes the tort of wrongful interference with a business relationship, which is commonly considered to be an unfair trade practice. If this activity were permitted, Joe's would reap the benefits of Ultimate Sport's advertising. ex If Antonio's Meats advertises so effectively that it induces Sam's Restaurant to break its contract with Burke's Meat Company, Burke's will be unable to recover against Antonio's Meats on a wrongful interference theory. After all, the public policy that favors free competition in advertising outweighs any possible instability that such competitive activity might cause in contractual relations.

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 about which the owners knew or should have known ex Liz enters a supermarket, 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 the supermarket would be liable for damages. 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 example). Obvious Risks Are an Exception

reasonable duty of care

a landowner may have a duty to post a notice that guard dogs patrol the property. if not he might be labial for injuries of trespassers.

"Danger Invites Rescue" Doctrine

a person who is trying to avoid harm—such as an individual who swerves to avoid a head-on collision with a drunk driver—ends up caus- ing harm to another (such as a cyclist riding in the bike lane) as a result. In those situations, the original wrongdoer (the drunk driver in this scenario) is liable to anyone who is injured, even if the injury actually resulted from another person's attempt to escape harm.

intentional infliction of emotional distress -

extreme/outrages outside normal behavior that causes sever emotional distress ex A father attacks a man who has had consensual sexual relations with the father's nineteen-year-old daughter. The father handcuffs the man to a steel pole and threat- ens to kill him unless he leaves town immediately. The father's conduct may be sufficiently extreme and outrageous to be actionable as an intentional infliction of emotional distress. When the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech limits emotional distress claims. ex Hustler magazine once printed a fake advertisement that showed a picture of the Reverend Jerry Falwell and described him as having lost his virginity to his mother in an outhouse while he was drunk. Falwell sued the magazine for intentional inflic- tion of emotional distress and won, but the United States Supreme Court overturned the deci- sion. The Court held that creators of parodies of public figures are protected under the First Amendment from claims of intentional infliction of emotional distress. (The Court applied the same standards that apply to public figures in defamation lawsuits, discussed next.)

disparagement of property (slander of quality/title) -

false statement about a product or property improper publication caused a third party to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) When a publication denies or casts doubt on another's legal ownership of property, and the property's owner suffers financial loss as a result, the tort of slander of title

defamation (libel = printed or slander = oral) -

false statement of fact that isnt made under privilege that a 3rd person heard that causes damage to a person's reputation. public figures must prove malice under privilege = juris, job references ex If Thompson writes Andrews a private letter or text falsely accusing him of embezzling funds, the action does not constitute libel. If Peters falsely states that Gordon is dishonest and incompetent when no one else is around, the action does not constitute slander. In neither instance was the message communicated to a third party. To establish defamation, a plaintiff normally must prove the following: 1. The defendant made a false statement of fact. 2. The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation. 3. The statement was published to at least one person other than the plaintiff. 4. In addition, if the plaintiff is a public figure, she or he must prove actual malice (a statement must be made with either knowledge of its falsity or a reckless disregard of the truth) ex In Touch magazine published a story about a former call girl who claimed to have slept with legendary soccer player David Beckham more than once. Beckham sued In Touch magazine for libel, seeking $25 million in damages. He said that he had never met the woman, had not cheated on his wife with her, and had not paid her for sex. After months of litigation, a federal district court dismissed the case because Beckham could not show that the magazine had acted with actual malice. Whether or not the statements in the article were accurate, there was no evidence that the defendants had made the statements with knowledge of their falsity or reckless disregard for the truth.12 Statements of opinion normally are not actionable because they are protected under the First Amendment. Truth is normally an absolute defense against a defamation charge. In other words, if the defendant in a defamation suit can prove that his or her allegedly defam- atory statements were true, normally no tort has been committed.

Damages for Libel —

harms that are difficult to measure. In other words, to recover general damages in a libel case, the plaintiff need not prove that she or he was actually harmed in any specific way as a result of the libelous statement.

false imprisonment -

intentional confinement/restraint without justification ex Police arrested Adetokunbo Shoyoye for an unpaid sub- way ticket and for a theft that had been committed by someone who had stolen his identity. A court ordered that he be released, but a county employee mistakenly confused Shoyoye's paperwork with that of another person, who was scheduled to be sent to state prison. As a result, instead of being released, Shoyoye was held in county jail for more than two weeks. Shoyoye later sued the county for false imprisonment and won.

trespass to land -

invasion of another person's real property without consent Before a person can be a trespasser, the real property owner (or other person in actual and exclusive possession of the property) must establish that person as a trespasser. For instance, "posted" trespass signs expressly establish as a trespasser a person

misrepresentation (fraud) -

misstatement of fact or through conduct with intent to deceive and causes injury. negligent fraud happens when a person supplies info without a reasonable basis for its truthfulness 1. The misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth. 2. An intent to induce another to rely on the misrepresentation. 3. Justifiable reliance by the deceived party. 4. Damage suffered as a result of the reliance. 5. A causal connection between the misrepresentation and the injury suffered. For fraud to occur, more than mere puffery, or seller's talk, must be involved. Fraud exists only when a person represents as a fact something she or he knows is untrue. For example, it is fraud to claim that a roof does not leak when one knows it does. Facts are objectively ascer- tainable, whereas seller's talk is not. "I am the best accountant in town" is seller's talk because best is subjective. In the following case, the court considered each of the elements of fraud. Negligent misrepresentation requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness.