CH 7

negligent tort

A civil wrong that occurs when the defendant acts in a way that subjects other people to an unreasonable risk of harm (i.e., the defendant is careless, to someone else's detriment). Negligence claims are usually used to achieve compensation for accidents and injuries.

nominal damages

Monetary damages awarded to a plaintiff in a very small amount, typically $1 to $5, to signify that the plaintiff has been wronged by the defendant even though the plaintiff suffered no compensable harm.

Compensatory Damages

Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, and so on.

Superseding cause

The defendant in a negligence suit can also avoid liability by establishing a superseding cause. A superseding cause is an unforeseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered. Superseding causes allow the defendant to avoid liability because they are evidence that the defendant's breach of duty was not the proximate cause of the plaintiff's injuries. In other words, superseding causes disprove the causation element necessary to sustain a negligence claim.

Actual Cause

The determination that the defendant's breach of duty resulted directly in the plaintiff's injury. "But for" (Plaintiff would not have been injured but for the actions of the defendant)

Negligence

Negligence is behavior that creates an unreasonable risk of harm to others. Unlike intentional torts, which result from a person willfully taking actions that are likely to cause injury, negligent torts involve the failure to exercise reasonable care to protect another's person or property. To win a negligence case, the plaintiff must prove four elements: (1) duty, (2) breach of duty, (3) causation, and (4) damages. A plaintiff who cannot establish all four of these elements will be denied recovery.

Assault

A civil wrong that occurs when one person intentionally and voluntarily places another in fear or apprehension of an immediate, offensive physical harm. Assault does not require actual contact.

Intrusion on an individual's affairs or seclusion

which occurs when someone invades a person's solitude, seclusion, or personal affairs when the person has the right to expect privacy. Examples include wiretapping, using people's passwords to gain access to their e-mail messages, and installing two-way mirrors in a women's dressing room at a gym.

Intentional Torts Against Persons

- Assault - Battery - Defamation

Business Torts

1. disparagement 2. Intentional interference with contract 3. Unfair competition 4. Misappropriation 5. Fraudulent Misrepresentation

assumption of the risk

A defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk the defendant caused. Two types: Express assumption of the risk occurs when the plaintiff expressly agrees (usually in a written contract) to assume the risk posed by the defendant's behavior. In contrast, implied assumption of the risk means that the plaintiff implicitly assumed a known risk.

causation

Causation is the third element of a successful negligence claim, and it has two elements: actual cause and proximate cause. The plaintiff must prove both elements of causation to be able to recover damages.

actual malice

In defamation, either a person's knowledge that his or her statement or published material is false or the person's reckless disregard for whether it is false.

Conversion

Conversion occurs when a person permanently removes personal property from the owner's possession and control. When conversion occurs, the true owner can no longer regain the property. The owner usually recovers damages for the full value of the converted item plus any additional damages that resulted from the loss. conversion Permanent interference with another's use and enjoyment of his or her personal property.

Damages

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

slander

If the defamation is made orally, it is slander.

libel

If the defamation is published in a permanent form, such as printed in a magazine or newspaper, it is known as libel.

Intentional Interference with Contract

The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract that she or he has with another. To bring a claim of intentional interference with contract successfully, the plaintiff must prove that (1) a valid and enforceable contract between the two 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; and (4) the plaintiff was injured as a result of the breach.

Disparagement

disparagement: A business tort that occurs when a statement is intentionally used to defame a business product or service. slander of quality: A business tort that occurs when false spoken statements criticize a business product or service and result in a loss of sales. trade libel: A business tort that occurs when false printed statements criticize a business product or service and result in a loss of sales. slander of title: A business tort that occurs when false published statements are related to the ownership of the business property. food disparagement: A tort that provides ranchers and farmers with a cause of action when someone spreads false information about the safety of a food product.

False light

is closely related to defamation and occurs when publicity about a person creates an impression about that individual that is not valid. It could involve attributing characteristics or beliefs to a person that she does not possess or creating the impression that an individual has taken certain actions he has not taken.

Public disclosure of private facts

occurs when someone publicizes a private fact about another that a reasonable person would find highly offensive. The individual must have not waived his or her right to privacy. Publication of information about someone's sex life or failure to pay debts would fall under this tort.

tortfeasor

A person who commits an intentional or through-negligence tort that causes a harm or loss for which a civil remedy may be sought.

The tort of trespass to realty

A tort that occurs when someone goes on another's property without permission or places something on another's property without permission. (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; or (4) refuses to remove something he placed on the property that the landowner asked him to remove.

Proximate Cause

The extent to which, as a matter of policy, a defendant may be held liable for the consequences of his or her actions. In the majority of states, proximate cause requires the plaintiff and the plaintiff's damages to have been foreseeable at the time of the accident. In the minority of states, proximate cause exists if the defendant's actions led to the plaintiff's harm.

Appropriation for commercial gain

occurs when someone uses another person's name, likeness, voice, or other identifying characteristic for commercial gain without that person's permission. Many businesses may choose to use celebrities in their advertisements as a way to appeal to consumers. However, when companies use a celebrity's likeness or image without his or her consent, they open themselves up to potential litigation and liability. For example, Woody Allen believed that American Apparel appropriated his image when they used an image of him from the movie Annie Hall in their billboards. Allen sued for $20 million but ended up settling, the day before the case was to go to trial, for $5 million.

punitive damages

or exemplary damages, Compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future. *usually only awarded when defendant has committed gross negligence

Fraudulent Misrepresentation

(1) The tort that occurs when a misrepresentation is made with the intent to facilitate personal gain and with the knowledge that it is false. (2) In contracts, a false representation of a material fact that is consciously false and is intended to mislead the other party. Also called intentional misrepresentation.), which occurs when one uses intentional deceit to facilitate personal gain. To establish that a fraudulent misrepresentation exists, a party must demonstrate all the following: A party knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions. The party intended to have other parties rely on the misrepresentations. The injured party reasonably relied on the misrepresentations. The injured party suffered damages because of relying on the misrepresentations. A direct link exists between the injuries suffered and a reliance on the misrepresentations.

Unfair competition

(The act of competing with another not to make a profit but for the sole purpose of driving that other out of business.), exists because of American views about the purpose of a business. Americans believe a business is intended to make a profit, and the law protects businesses acting on this profit motive. Therefore, when someone enters a business with the sole intent of driving another firm out of business, the law punishes this act as unfair competition. For example, if there is only one jewelry store in town, Mark cannot come in and set up a store that makes no profits, just to drive the other store out of business so that an acquaintance of his can then move in and open up a legitimate jewelry store once the competition has been eliminated.

3 Purposes of tort law

1. the primary objective of tort law is to provide compensation for injured parties. 2. Tort law also contributes to maintaining order in society because it discourages private retaliation by injured persons and their friends. 3. A third objective of tort law is to give citizens a sense that they live in a just society.

intentional tort

A civil wrong resulting from an intentional act committed on the person, property, or economic interest of another. Intentional torts include assault, battery, conversion, false imprisonment, intentional infliction of emotional distress, trespass to land, and trespass to chattels.

battery

A civil wrong that occurs when one person intentionally and voluntarily brings about a non-consented harmful or offensive contact with a person or something closely associated with him or her. Battery requires an actual contact.

strict-liability tort

A civil wrong that occurs when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. In such situations, a defendant is liable for the plaintiff's damages without any requirement for the plaintiff to prove that the defendant was negligent.

Pure Comparative Negligence

A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff's own negligence (if 70% defendant's fault, pays 70% of damages)

modified comparative negligence

A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff's own negligence if the plaintiff's negligence is responsible for less than 50 percent of the harm; if the defendant establishes that the plaintiff's negligence caused more than 50 percent of the harm, the defendant has no liability.

contributory negligence

A defense to negligence whereby the defendant can escape all liability by proving that the plaintiff failed to act in a way that would protect him or her from an unreasonable risk of harm and that the plaintiff's negligent behavior contributed in some way to the plaintiff's accident. The defendant must prove that (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's injury.

last-clear-chance doctrine

A doctrine used by the plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent.

defamation

A false statement or an action that harms the reputation or character of an individual, business, product, group, government, or nation.

Trespass to Personal Property

A person commits trespass to personal property, also called trespass to personalty, by temporarily exerting control over another's personal property or interfering with the true owner's right to use the property.

Private Nuisance

A private nuisance occurs when a person uses her property in an unreasonable manner that harms a neighbor's use or enjoyment of his property. Using one's property in a manner that caused the neighbor to be subjected to flooding, vibrations, excessive noise, or smoke could lead to a nuisance claim.

public figure privilege

A special right, immunity, or permission given to people that allows them to make any statements about public figures, typically politicians and entertainers, without being held liable for defamation for any false statement made without malice.

conditional privilege

A special right, immunity, permission, or benefit given to certain individuals that allows them to make any statements about someone without being held liable for defamation for any false statement made without actual malice.

Good Samaritan Statute

A statute that exempts from liability a person, such as a physician passerby, who voluntarily renders aid to an injured person but negligently, but not unreasonably negligently, causes injury while rendering the aid.

gross negligence

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

Breach of Duty

Once the plaintiff has established that the defendant owes her a duty of care, she must prove that the defendant's conduct violated that duty. This violation is called a breach of duty. For example, the driver of an automobile owes the other passengers in his car a duty of care to obey traffic signs. If he fails to stop at a stop sign, he has violated his duty to follow traffic signs and has therefore breached his duty of care.

slander per se

One exception to the requirement of special damages occurs if the false statements constitute slander per se. Slander per se statements are considered so inherently harmful that general damages are presumed. The kinds of statements considered slander per se are claims that an individual (1) has a loathsome, communicable disease (traditionally, venereal disease or leprosy); (2) has committed a crime for which imprisonment is a possibility; (3) is professionally incompetent; or (4) if a woman, has engaged in sexual misconduct.

strict liability

Strict liability is liability without fault. The law holds an individual liable without fault when the activity in which she engages satisfies three conditions: (1) it involves a risk of serious harm to people or property; (2) it is so inherently dangerous that it cannot ever be safely undertaken; and (3) it is not usually performed in the immediate community. Instead of banning such activities, the law allows people to engage in these activities but holds them liable for all resulting harm.

Privacy Torts (4)

The fact that truth is an absolute defense to a defamation action does not mean people are free to reveal everything they know. Four distinct torts, collectively called invasion of privacy torts, protect the individual's right to keep certain things out of public view even if they are true. The four privacy torts are (1) false light, (2) public disclosure of private facts, (3) appropriation for commercial gain, and (4) intrusion on an individual's affairs or seclusion.

Duty:

The plaintiff must first establish that the defendant owes a duty to the plaintiff. In some particular situations, the law specifies the duty of care one individual owes to another. In most cases, however, the courts use the reasonable person standard to determine the defendant's duty of care.

absolute privilege

A special right, immunity, permission, or benefit given to certain individuals that allows them to make any statements about someone without being held liable for defamation for any false statement made, regardless of intent or knowledge of the falsity of the claim.

reasonable person standard

A measurement of the way members of society expect an individual to act in a given situation. When courts attempt to determine whether a reasonable person would have owed a duty to others, they consider four questions: How likely was it that the harm would occur? How serious was the potential harm? How socially beneficial was the defendant's conduct that posed the risk of harm? What costs would have been necessary to reduce the risk of harm?

tort of intentional infliction of emotional distress

Sometimes called the tort of outrage, intentional infliction of emotional distress occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party. For example, if a person calls his former employer and falsely says her son was just arrested for a double homicide after a botched robbery attempt, most courts would find that behavior outrageous enough to satisfy the first element of the tort. Businesses frequently find themselves sued for this type of tort when they terminate someone's employment or fail to provide a service that a consumer expected. Many of these actions, like the one in Case 7-2, are unsuccessful, primarily because the bar for what is considered outrageous is high, as are the standards for emotional distress. To prevail on this tort, a plaintiff must establish that the defendant's conduct (1) was extreme and outrageous, (2) was intentional or reckless, (3) caused emotional distress, and (4) the distress was severe. Extreme and outrageous conduct is behavior that is "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Furthermore, to hold a party liable in tort for intentional infliction of emotional distress, the emotional distress must be so severe "that no reasonable man could be expected to endure it."