Chapter 6: Tort Law

____ is the civil side of crimes related to theft.

*Conversion* is the civil side of crimes related to theft.

What are the two types of privileged communications?

- Absolute - Qualified

To succeed in a 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*: The defendant's breach caused the plaintiff's injury 4. *Damages*: The plaintiff suffered a legally recognizable injury

The tort of fraudulent misrepresentation (fraud) includes several elements:

1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth 2. An intent to induce another party to rely on the misrepresentation 3. A justifiable reliance on the misrepresentation by the deceived party 4. Damages suffered as a result of that reliance 5. A causal connection between the misrepresentation and the injury suffered

[DEFINE] Torts

A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another.

[DEFINE] Actual malice

A condition that exists when a person makes a statement with either knowledge of its falsity or reckless disregard for the truth. In a defamation suit, a statement made about a public figure normally must be made with actual malice for liability to be incurred.

[DEFINE] 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.

[DEFINE] Transferred Intent

A legal principle under which a person who intends to harm one individual, but unintentionally harms a different individual individual, can be liable to the second victim for an intentional tort.

[DEFINE] Compensatory Damages

A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

Reasonable Duty of Care

A property owner is legally obligated to warn people of danger on their property - deviation from prior common law which stated that a trespasser generally cannot hold the owner liable for injuries that the trespasser sustains on the premises

[DEFINE] Dram Shop Acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication. A social host (person hosting a party) may also be held liable in some states.

[DEFINE] Good Samaritan Statutes

A state statute that provides that persons who rescue or provide emergency services to others in peril--unless they do so recklessly, thus causing further harm--cannot be sued for negligence.

What constitutes "actual malice" in regards to defamation?

A statement made with *either knowledge of its falsity or a reckless disregard of the truth*.

Pure Form Comparative Negligence

Allows the plaintiff to recover, even if the the extent of his or her fault was greater than that of the defendant.

[DEFINE] Causation in Fact

An act or omission without ("but for") which an event would not have occurred. - This test seeks to determine whether there was a cause-and-effect relationship between the act and the injury suffered.

[DEFINE] Disparagement of Property

An economically injurious false statement made about another's product or property. - General term for torts that are more specifically referred to as Slander of Quality or Slander of Title

What's an example of qualified privilege?

An employer's statements in written evaluations of employees are protected by a *qualified privilege* and cannot be construed as defamation.

[DEFINE] Public figures

An individual in the public limelight. Public figures include government officials and politicians, movie stars, well-known business persons, and generally anybody who becomes known to the public because of his or her position or activities. (Ex: politicians, professional athletes, etc.)

[DEFINE] Fraudulent Misrepresentation

Any misrepresentation, either by misstatement or omission of a material fact, knowingly *made with the intention of deceiving* another and on which a reasonable person would and does rely to his or her detriment.

[DEFINE] Defamation

Any published or publicly spoken false statement that causes injury to another's good name, reputation, or character.

[DEFINE] Slander

Defamation in oral form

[DEFINE] Libel

Defamation in writing or in some other form (such as a digital recording) having the quality of permanence.

Fraud exists only when...

Fraud exists only when a person represents as a fact something he or she knows is untrue.

What damages are provided for libel?

General Damages - Designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the community, humiliation, injured reputation, etc.

What type of damages cannot be award to companies?

General damages are not available to companies.

Generally, if the victim or the consequences of a harm done were *unforseeable*, there is no ___.

Generally, if the victim or the consequences of a harm done were unforseeable, there is no *proximate cause*.

Generally, the purpose of tort law is to provide remedies for the violation of ____.

Generally, the purpose of tort law is to provide remedies for the violation of *various protected interests*.

In the context of trespass to personal property, what does harm mean?

Harm means not only destruction of the property, but also anything that diminishes its value, condition, or quality

What is a defense against the trespass to personal property tort?

If it can be shown that trespass to personal property was warranted, then *a complete defense exists*.

When would a statement of opinion involve the tort of fraudulent misrepresentation?

If the individual making the statement of opinion has superior knowledge of the subject matter. (Ex: lawyer making an opinion about the law in a state in which the lawyer is licensed to practice)

If the plaintiff is a public figure, she or he must prove ____ in a defamation suit. Something not required of the average person.

If the plaintiff is a public figure, she or he must prove *actual malice* in a defamation suit. Something not required of the average person.

[DEFINE] General Damages

In a tort case, an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering; not available to companies.

[DEFINE] 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).

[DEFINE] Privilege

In tort law, the ability to act contrary to another person's right without that person's having legal redress for such acts. Privilege may be raised as a defense to defamation.

Intentional torts result from....

Intentional torts result from *the intentional violation of a person or property*.

[DEFINE] Proximate Cause

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

When does liability for negligent misrepresentation arise?

Liability for negligent misrepresentation usually arises when the defendant who made the misrepresentation *owed a duty of care to the plaintiff* to supply correct information. (Ex: statements or omissions made by attorneys and accountants to their clients)

[DEFINE] Punitive Damages

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

Negligence results from...

Negligence results from *the breach of a duty to act reasonably* (fault without intent).

Normally, the tort of fraudulent misrepresentation occurs only when there is reliance on a ____.

Normally, the tort of fraudulent misrepresentation occurs only when there is reliance on a *statement of fact*.

[DEFINE] Tortfeasor

One who commits a tort

[DEFINE] Licensee

One who receives a license to use, or enter onto, another's property. (Ex: a person who enters another's property to read an electric meter, for instance, has license to enter the property.)

"50 Percent Rule" for Comparative Negligence

Prevents the plaintiff from recovering any damages if she or he was more than 50% at fault.

[DEFINE] Malpractice

Professional misconduct or the failure to exercise the requisite degree of skill as a professional. Negligence--the failure to exercise due care--on the part of a professional , such as a physician or an attorney, is commonly referred to as malpractice.

When are punitive damages appropriate?

Punitive damages are appropriate only when the defendant's conduct was particularly egregious (outrageous) or reprehensible (shameful).

What damages are provided for slander?

Special Damages - The plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses

[DEFINE] Trespass to Land

The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.

The key difference between intentional and negligent misrepresentation is...

The key difference between intentional and negligent misrepresentation is *whether the person making the misrepresentation had actual knowledge of its falsity*.

The original taking of the personal property from the owner was ___. Wrongfully retaining the property is ___.

The original taking of the personal property from the owner was *a trespass*. Wrongfully retaining the property is *conversion*.

To establish trade libel, what must the plaintiff do?

The plaintiff must prove that the improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result

[DEFINE] Slander of Title

The publication of a statement that falsely denies or casts doubt on another's legal ownership of property, causing financial loss to that property owner.

[DEFINE] Intentional Infliction of Emotional Distress

The tort of *intentional infliction of emotional distress* involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

The tort of defamation arises when...

The tort of defamation arises when a false statement of fact is made about: - a person - a person's product - business - legal ownership rights to property

The torts known as ____ generally involve wrongful interference with another's business rights.

The torts known as *business torts* generally involve wrongful interference with another's business rights.

[DEFINE] Trespass to Personal Property

The unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property. - May also be called trespass to chattels or trespass to personalty

[DEFINE] Battery

The unprivileged, intentional touching of another - The *completion* of the act that created the apprehension. - Ex: If assault is threatening to punch someone, battery is landing the actual punch.

[DEFINE] Conversion

The wrongful taking, using, or retaining possession of personal property that belongs to another.

[DEFINE] Business Invitees

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

Tort law is designed to....

Tort law is designed to *compensate those who have suffered a loss or injury due to another person's wrongful act*.

Tort law safeguards privacy rights through the tort of ____.

Tort law safeguards privacy rights through the tort of *invasion of privacy*.

Appropriation of Identity

Using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission is also an invasion of privacy. An individual's right to privacy normally includes the right to the exclusive use of her or his identity.

When is the defense of assumption of risk typically asserted?

When the plaintiff was injured during a recreational activity that involves known risk, such as skiing or skydiving

Whether the contact is offensive and considered battery is determined by.....

Whether the contact is offensive and considered battery is determined by *the reasonable person standard*.

"Publication" in regards to defamation torts means...

that the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party.

[DEFINE] False Imprisonment

*False Imprisonment is the intentional confinement or restraint of another person's activities without justification - "The civil side of kidnapping"

Slander Per Se

- Actionable with no proof of special damages required

Compensatory damages awards are often broken down into the following categories:

- Special Damages - General Damages

Intentional torts against property include...

- Trespass to land - Trespass to personal property - Conversion - Disparagement of Property

What are some examples of affirmative defenses in negligence cases?

1. Assumption of Risk 2. Superseding Cause 3. Contributory & Comparative Negligence

[DEFINE] Comparative Negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person's proportionate negligence.

Predatory behavior

Actions undertaken with the intention of unlawfully driving competitors completely out of the market

[DEFINE] Assault

Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat - The *apprehension* or *threat* of physical harm - Ex: threatening to punch someone

What are the two elements 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. What are they?

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 right)

____ can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.

*Abuse of process* can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.

Are good intentions (mistakenly taking another's belongings) a defense against conversion?

*NO.*

Is physical injury or bodily harm a requirement of battery?

*No.* - Physical injury need not occur - Contact can involve any part of the body or anything attached to it (hat, purse, jacket, etc.) - Contact can be made by the defendant or by some force set in motion by the defendant (a rock thrown by the defendant)

If no harm or injury results from an action, can a party still make a tort claim?

*No.* If no harm or injury results from a given negligent action, there is nothing to compensate, and no tort exists.

Is it necessary to prove a social host's negligence under the Dram Shop Acts?

*No.* It is unnecessary to prove a social host was negligent.

____ consists of all other items, including cash and securities (such as stocks and bonds).

*Personal property* consists of all other items, including cash and securities (such as stocks and bonds).

____ consists of whatever is NOT personal property or real property, including cash and securities (such as stocks and bonds).

*Personal property* consists of whatever is NOT personal property or real property

____ is land and things permanently attached to the land, such as a house.

*Real property* is land and things permanently attached to the land, such as a house.

What's the best defense against defarmation?

*Truth.* If a defendant in a defamation case can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed.

Can conversion occur without theft or trespass happening first?

*Yes.* Even when the rightful owner consented to the initial taking of the property, so no theft or trespass occurred, a failure to return the property may still be conversion.

What establishes a person as a trespasser?

- "Posted" trespass signs expressly establish as a trespasser a person who ignores these signs and enters onto the property - Any person who enters onto another's property to commit an illegal act is impliedly a trespasser, *with or without posted signs*.

[DEFINE] Puffery

- "Seller's Talk" - A salesperson's exaggerated claims concerning the quality of goods offered for sale. Such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties.

What's the difference between "damage" and "damages"?

- *Damage* refers to harm or injury to persons or property - *Damages* refers to monetary compensation for such harm or injury

When is an absolute privilege granted?

- *Only in judicial proceedings and certain government proceedings* - Statements made by attorneys and judges in the courtroom during a trial are absolutely privileged, as are statements made by government officials during legislative debate

Attractive Nuisance Doctrine

- A doctrine treating a child as a licensee, or guest, rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children (Ex: If children are attracted to a swimming pool or sand pile and are injured, the landowner may be held liable)

What factors are necessary to sue successfully for an invasion of privacy?

- A person must have a reasonable expectation of privacy - The invasion must be highly offensive

What are the different types of privilege?

- Absolute Privilege - Qualified Privilege - Conditional Privilege

Courts exercise great restraint in granting punitive damages to plaintiffs in tort actions. Why?

- Because punitive damages are subject to limitations under the due process clause of the U.S. Constitution - The U.S. Supreme Court has held that, to the extent that an award of punitive damages is grossly excessive, it furthers no legitimate purpose and violates due process requirements

Intrusion into an individual's affairs or seclusion

- Considered an invasion of privacy - Invading someone's home or searching someone's briefcase or laptop without authorization is an invasion of privacy. This tort has been held to extend to eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing, and window peeping.

False Light

- Considered an invasion of privacy - Publication of information that places a person in a false light is also an invasion of privacy. (Publishing such a story could involve the tort of defamation as well.)

Public Disclosure of Private Facts

- Considered an invasion of privacy - When a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing. This could be an actionable invasion of privacy even if the information revealed is true, because it should not be a matter of public concern. (Ex: a newspaper account of a private citizen's sex life or financial affairs)

What is generally sufficient for an Intentional Infliction of Emotional Distress tort?

- Generally, repeated annoyances (such as those experienced by a person who is being stalked), coupled with threats, are enough. - Acts that cause indignity or annoyance alone usually are NOT sufficient.

There are two broad classifications of torts. What are they?

- Intentional Torts - Unintentional Torts

Punitive damages can be awarded in....

- Intentional tort actions - Gross Negligence cases - Only rarely are they awarded in regular negligence lawsuits

Business torts involving wrongful interference generally fall into two categories. What are they?

- Interference with a contractual relationship - Interference with a business relationship

Under what circumstances does a license to enter another's property no longer apply?

- Licenses to enter onto another's property are *revocable* by the property owner. (Ex: if a property owner asks a meter reader to leave and she or he refuses to do so, the meter reader at that point becomes a trespasser.)

What must occur before a person can be a trespasser?

- The real property owner (or another person in actual and exclusive possession of the property, such as a renter) must establish that person as a trespasser

Common types of trespass to land include...

- Walking or driving on another's land - Shooting a gun over another's land - Throwing rocks at a building that belongs to someone else - Constructing a building so that part of it extends onto an adjoining landowner's property

Defenses against Trespass to Land

- the trespass was warranted (Ex: a trespasser enters a building to assist someone in danger) - the trespasser can show that she or he had a license to come onto the land

What false statements are considered "slander per se"?

1. A statement that another has a "loathsome" disease (Ex: an STD) 2. A statement that another has committed improprieties while engaging in a profession or trade 3. A statement that another has committed or has been imprisoned for a serious crime 4. A statement that a person in unchaste or has engaged in serious sexual misconduct. (This usually applies only to unmarried persons and sometimes only to women.)

Three elements are necessary for wrongful interference with a contractual relationship to occur. What are they?

1. A valid, enforceable contract must exist between two parties 2. A third party must know that this contract exists 3. This third party must intentionally induce a party to the contract to breach the contract

A trespass to land occurs when a person, without permission, does any of the following:

1. Enters onto, above, or below the surface of land that is owned by another. 2. Causes anything to enter onto land owned by another 3. Remains on land owned by another or permits anything to remain on it

What acts qualify as invasions of privacy under the common law?

1. Intrusion into an individual's affairs or seclusion 2. False light 3. Public disclosure of private facts 4. Appropriation of identity

In deciding whether a negligence tort meets the requirement of causation, the court must address two questions. What are they?

1. Is there causation in fact? 2. Was the act the proximate, or legal, cause of the injury.

Establishing defamation involves proving the following elements:

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 a least one person other than the plaintiff 4. If the plaintiff is a public figure, she or he must also prove *actual malice*

[DEFINE] Contributory Negligence

A theory in tort law under which a complaining party's own negligence contributed to or caused his or her injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.

[DEFINE] Intentional Tort

A wrongful act knowingly committed.

[DEFINE] Gross Negligence

An intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life of property of another

[DEFINE] Superseding Cause

An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability.

If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for ____.

If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for *malicious prosecution*.

[DEFINE] 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.

[DEFINE] Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances. - Failure to live up to a *required duty*

[DEFINE] Reasonable Person Standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measure and that must be observed to avoid liability for negligence.

[DEFINE] Slander of Quality

The publication of false information about another's product, alleging that it is not what its seller claims, also called trade libel.