Chapter 6: Torts

Defenses to Negligence

*Contributory/Comparative Negligence* *Assumption of risk*: knowledge of the risk, voluntary assumption of the risk (Children and Employees can't assume the risk) *Superseding Cause*: unforeseeable intervening event may break the casual connection b/n wrongful act and an injury to another *Res Ispa Loquiter*: the thing speaks for itself Plaintiff wouldnt' have been injured if it had not been caused by that instrumentality. Plaintiff must show the defendant has exclusive control over that instrumentality

The Duty of Care and it's Breach The reasonable person standard Duty of Landowners Duty of Professionals

-people are free to act as they please so long as their actions do not infringe on the interest of others. how would a reasonable person have acted expected to exercise reasonable care to protect individuals coming onto their property from harm Professionals are required to have a standard minimum level of special knowledge. Professionals conduct must be consistent with that status i.e doctors, engineers, architects. Malpractice: essentially professional negligence

Tort Reforms

Measures to reduce the number of tort cases

Trespass to land

a person without permission does any of the following... 1) Enters onto landed owned by another 2) Causes anything to enter land owned by another 3) Remains on land owned by another or permits anything to remain on it Establishing Trespass: Property owner must establish a person as a trespasser. Guest in house isn't trespassing unless he or she has been asked to leave and refuses.

Conversion

any act that deprives an owner of a personal property or of the use of that property without the owner's permission and without just cause.

Assault

any intentional and unexcused *threat* of immediate harmful or offensive contact

Comparative

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

Intervening Force

can cancel out your negligence... if a tornado comes through

Compensatory Damages

compensate or reimburse the plaintiff for *actual* losses. Special Damages: quantifiable monetary losses General Damages: nonmonetary aspects (pain and suffering)

Strict Liability

defendant is responsible without regard to negligence. Engages in ultra hazardous or abnormally dangerous activities (blasting company, keeping a vicious animal, product liability)

Disparagement of Property

economically injurious falsehoods are made about another's product or property rather than about another's reputation

Negligence Per Se

if an individual violates a statute or an ordinance providing for criminal penalty and that violation causes another to be injured.

Intentional Infliction of emotional distress

intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

False Imprisonment

intentional confinement or restraint of another person's activities without justification.

Defamation Libel Slander Establishing Defamation Statement of Fact Requirement Publication of Fact Damages for Libel Defenses to Defamation

involves wrongfully hurting a person's good reputation. breaching this duty in *writing or other permanent form* breaching this duty *orally* 1) Defendant made a false statement of fact 2) Statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation 3) Statement was published to at least one person other than the plaintiff 4) If the plaintiff is a public figure they must prove *Actual Malace*: statement must be made with either knowledge of its falsity or a reckless disregard of the truth Making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than personal opinion. the statement is communicated to persons other than the defamed party General Damages Truth is normally an absolute defense against defamation.

Absolute (Contributory)

plaintiff who was also negligent can't recover any damages from defendant The Last Clear Chance Doctrine: if there are two parties that are both negligent, but one has the last clear chance to avoid the injury, then they are responsible even though the contributory negligence.

Punitive Damages

punish the wrongdoes and deter others from similar wrong doings. Punitive damages are appropriate only when the defendant's conduct was particularly reprehensible

Intentional Torts

requires intent

Causation Causation in Fact Proximate Cause Foreseeability

the person's act must have caused the harm for it to constitute the tort of negligence "but for" the wrongful act, the injury would not have occured. when the connection between an act and an injury is strong enough to justify imposing liability. Asks whether the injuries sustained were foreseeable or were too remotely connected to the incident to trigger liability. it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury

Battery

unexcused and harmful or offensive physical contact intentionally performed

*Negligence*

when someone suffers injury because of another's failure to live up to a required *duty of care* 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.

Trespass to personal property

whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property