Legal Environment Test #2
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.
absolute privilege
**an individual cannot be be sued for defamation for any false statements made, regardless of intent or knowledge of the falsity of the claim** -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.
element of causation in a negligence claim: proximate cause
**foreseeability** -exists only when both the plaintiff & the plaintiff's damages were reasonably foreseeable at the time the defendant breached his duty to the plaintiff
what is the theory of strict liability most commonly used for today?
**product liability** -when the plaintiff is claiming to have been **injured by a product that was unreasonably dangerous**
what are some of the most common defenses to a battery charge?
-**consent** (a person cannot commit battery if the contact was consented to & therefore wanted) -**self-defense** (the most common defense to battery; responding to the force of another w/ comparable force to defend oneself; to use this defense you cannot use a greater level of force than is being used against you) -**defense of others** (allows you to defend another by using the same degree of force that you could use to defend yourself) -**defense of property** (allows you to use responsible force to defend your property from an intruder; the use of deadly force in defense of property is rarely, if ever, justified)
public figure privilege
-another conditional privilege individuals in the public eye (**typically politicians & entertainers**) b/c these individuals have a significant impact on our lives, we want to encourage free discussion about them, so we do not hold ppl. liable for making false statements about them **as long as the statements were not made w/ malice**
what is the primary objective of tort law? (3 of them)
1. (main) to provide compensation for injured parties 2. contributes to maintaining order in society b/c it discourages private retaliation by injured persons & their friends 3. give citizens a sense that they live in a just society
what are the 2 elements causation in a negligence claim?
1. actual cause 2. proximate cause
what are the 4 types of statements/claims about an individual that are considered slander per se?
1. an individual has a loathsome, communicable disease (traditionally, venereal disease (an STD) or leprosy) 2. an individual has committed a crime for which imprisonment is a possibility 3. is professionally incompetent 4. if a women has engaged in sexual misconduct
what are the 4 elements the plaintiff must prove to win a negligence case?
1. duty 2. breach of duty 3. causation- actual & proximate 4. damages -a plaintiff who cannot establish all 4 of these elements will be denied recovery
what are the 3 classifications of torts?
1. intentional tort 2. negligent tort 3. strict-liability tort
what 3 things must the plaintiff demonstrate to establish res ipsa loquitur
1. the event was a kind that **ordinarily does not occur in the absence of negligence** 2. **other responsible causes**, including the conduct of third parties & the plaintiff, **have been sufficiently eliminated** 3. the indicated negligence is **w/in the scope of the defendant's duty to the plaintiff**
what are the 3 categories that intentional torts are divided into?
1. torts against persons 2. torts against property 3. torts against economic interest
what are the 2 defenses someone who is accused of defamation can raise?
1. truth 2. privilege
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**
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. -**occurs when the defendant takes an action intending that certain consequences will result or knowing certain consequences are likely to result**
strict-liability tort
A civil wrong that occurs when a defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. The defendant is liable for the plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent. -**occurs when the defendant takes an action that is inherently dangerous & cannot ever be undertaken safely, no matter what precautions the defendant takes**
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. -**occurs when the defendant acts in a way that subjects other ppl. to an unreasonable risk of harm (the defendant is careless to someone else's detriment)**
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** -ex.) a plaintiff involved in a car accident failed to wear his/her seat belt, that failure constitutes contributory negligence
defamation
A false statement or an action that harms the reputation or character of an individual, business, product, group, government, or nation. -has to be an intentional publication **(communication to a third party) has to be said to 1 other person**
Modified Comparative Negligence
In some states, a defense whereby the defendant is not liable for the percentage of harm that he or she proves can be attributed 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.
Strict Liability
Liability without fault -applies to inherently dangerous activities where damages may occur without the intent to do so -ex.) dynamite blasting in a populated area & keeping animals that have not been domesticated
what is one exception to the requirement of special damages with slander?
an exception occurs if the false statement constitutes **slander per se** -these statements are considered so inherently harmful that general damages are presumed
intentional torts against economic interests: disparagement
a business tort that occurs when a statement is intentionally used to defame a business product or service
assumption of the risk
a defense whereby the defendant must prove that the **plaintiff voluntarily assumed the risk the defendant caused**
negligence per se
a doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a **defendant violated a criminal statute that was designed to prevent the type of harm that the plaintiff incurred** -ex.) underage teenage drunk driver kills a pedestrian, the liquor store that sold him the alc.'s violation of the statute prohibiting the sale of alc. to minors establishes negligence per se on the part of the liquor store
conditional privilege
a party will not be held liable for defamation unless the false statement was made w/ **actual malice**
tort
a wrong or injury to another, other than a breach of contract -most of the actions that give rise to criminal prosecutions also provide the basis for a tort claim by the victim of the crime -primarily state law (so states have slightly diff. definitions of each tort)
last-clear-chance doctrine
allows the plaintiff to recover damages despite proof of contributory negligence **as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff**
battery
almost any intentional, unwanted, offensive bodily contact -an assault is often, but not always followed by a battery -even contacts that are harmless, if unwanted, are batteries -& even if a touch is intended as a joke, if the reasonable person would be offended, the contact is deemed offensive
trespass to personal property
also called trespass to personalty -**temporarily exerting control over another's personal property** or interfering w/ the true owner's right to use the property -the trespasser is responsible for damages caused to the property as well as for damages caused to the owner related to trespasser's wrongful possession of the property
tort of trespass to realty - occurs when a person intentionally does what 4 things?
also called trespass to real property **has to be intentional** 1. enters the land of another w/out permission 2. causes an object to be placed on the land of another w/out the landowner's permission 3. stays on the land of another when the owner tells him to depart 4. refuses to remove something he placed on the property that the landowner asked him to remove
what is one of the most important elements of a defamatory statement?
it must be damaging to someone's reputation
Punitive Damages
are awarded to punish the defendant & designed to deter behavior of similar conduct & punish the wrongdoer
negligence
behavior that creates an unreasonable risk of harm to others
what is an example of trespass to personal property?
borrowing someone's car w/out permission
what is the primary type of damages sought from tort law?
compensatory damages -b/c the primary objective of tort law is to compensate victims, the primary type of damages are compensatory damages (**damages designed to compensate the victim for all the harm caused by the person who committed the tort** ,often referred to as the tortfeasor)
slander
defamation that is made orally **spoken** -to recover damages in a case of slander, the plaintiff must prove special damages (the plaintiff must show specific monetary loss that resulted from the defamatory statements) -it is the lack of permanence (b/c orally spoken) that gives way to the special damages involved with slander)
libel
defamation that is published in a permanent form, such as printed in a magazine or newspaper **written** -defamation through TV & radio broadcasts is also considered libel b/c the broadcasts are permanently recorded -general damages are presumed
when is a statement considered to be made w/ actual malice?
if it is made with **either** knowledge of its falsity or reckless disregard for whether it is false
torts against persons
intentional acts that harm an individual's physical or mental integrity -**assault & battery are 2 of the most common**
assault
occurs when one person places another in fear or apprehension of an immediate, offensive bodily contact -fear of being hurt -**does not require actual contact**
res ipsa loquitur
literally means "the thing speaks for itself" -a doctrine that allows the judge or jury to **infer** that, more likely than not, the defendant's negligence was the cause of the plaintiff's harm, even though there is **no direct evidence of the defendant's lack of due care**
can an individual use the fact that they THOUGHT a statement was true as a DEFENSE to defamation?
no -under ordinary circumstances, the fact that you THOUGHT a statement was true is NOT a defense
what happens if the defendant successfully proves contributory negligence?
no matter how slight the plaintiff's negligence, the plaintiff will be denied any recovery damages ~b/c this defense seems unfair, many states have adopted the last-clear-chance doctrine
private nuisance
occurs when a person uses their property in an **unreasonable manner that harms a neighbor's use or enjoyment of his property** -causing the neighbor to be subjected to flooding, vibrations, excessive noise, or smoke could lead to a nuisance claim
what is an affirmative defense?
occurs when the defendant admits to the accusation but argues that there is a reason he should not be held liable
what kind of circumstances do absolute privileges arise in?
only arise in a limited # of circumstances -given to individuals speaking on the House & Senate floors during congressional debate -during judicial proceedings ~we don't want ppl. to be afraid to testify in court so we prohibit them from being sued for whatever occurs w/in the courtroom
what kind of statements are generally considered actionable for suing for defamation?
only statements of fact are considered actionable for defamation -opinions, especially subjective ones that cannot be proven are generally not actionable
what is an affirmative defense in a defamation action?
privilege -a privilege is either absolute or conditional
Good Samaritan Statute
protects someone who renders aid to an injured person from being sued for negligence if further injury is caused on accident in their attempt to help
nominal damages
small amount of money given to recognize that a defendant did indeed commit a tort in a case where the plaintiff suffered no compensable damages -a plaintiff may receive nominal damages by simply failing to prove actual damages
what must the plaintiff in a disparagement case prove?
that the defendant published a false statement of a material fact about the plaintiff's product or service that resulted in a loss of sales
Pure Comparative Negligence
the court determines the percentage of fault of the defendant & the defendant is then liable for that percentage of the plaintiff's damages
element of causation in a negligence claim: actual cause
the determination that the defendant's breach of duty resulted directly in the plaintiff's injury -courts commonly determine this by asking whether the plaintiff would have been injured if the defendant had fulfilled his/her duty
what happens if the defendant (in a negligence claim) could not reasonably foresee the damages that plaintiff suffered as a result of his action?
the plaintiff's negligence claim will not be sustained b/c it lacks the element of proximate causation
what serves to deter the commission of tort law?
the recognition that one will have to pay for the personal injuries she or he causes
what is frequently considered an absolute defense to defamation?
truth -one cannot be held liable for defamation regardless of whether damages result, if the statement made was the truth
Intrusion on Seclusion (4 elements)
when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another 1. **intentionally invaded the private affairs** of the plaintiff 2. the invasion must be **offensive to a reasonable person** 3. the matter the defendant intruded upon must involve a **private matter** 4. the intrusion must have **caused mental anguish or suffering** to the plaintiff
unfair competition
when someone starts a business just to drive someone else out of business (not to make profit)