Business Law Final Exam Hollis.

What is gross negligence?

Gross negligence can be defined as an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another.

What are the types of intentional torts?

-Assault -Battery -False Imprisonment -Intentional infliction of emotional distress -Defamation -Invasion of privacy -Fraudulent Misrepresentation -Abusive or Frivolous Litigation -Wrongful interference - Trespass to personal property -Disparagement of property -Assault: an assault is any intentional and unexcused threat of immediate harmful or offensive contact. Words or acts that create a believable threat. An assault can occur even if there is not actual contact with the plaintiff. -Battery: If the act that created the apprehension is completed and results in harm to the plaintiff, it is a battery or an unexcused and harmful or offensive physical contact intentionally performed. The contact can be harmful or merely offensive (such as an unwelcome kiss). Physical injury need not occur. The contact can involve any part of the body or anything attached to it - hat, purse, jacket etc. And the contact can be made by the defendant or by some force set in motion by the defendant. Whether or not the contact is offensive is determined by the reasonable person standard which evaluates whether the defendant acted as a reasonable person would've acted. If the plaintiff shows that there was contact and the jury or judge agrees that the contact was offensive, then the plaintiff has a right to compensation. He may be compensated for the emotional harm or loss of reputation resulting from battery as well as for physical harm. A defendant may assert self-defense or defense of others in an attempt to justify his conduct. Ex. Ivan threatens Jean with a gun and 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. -False imprisonment: is the intentional confinement or restraint of another person's activities without justification. It interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of force. Moral pressure does not constitute false imprisonment. It is essential that the person being restrained does not wish to be restrained as their consent bars any liability. *Ex. Businesses often face suits for false imprisonment after they have attempted to confine suspected shoplifters for questioning under the "privilege to detain" granted to merchants in most states that allows them to use reasonable force to detain them. Any detention however must be done in a reasonable manner and for a reasonable length of time. -Intentional infliction of emotional distress: this tort involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. To be actionable, the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society Ex. A father attacks a man who has had consensual sexual relations with his daughter and after handcuffing him threatens to kill him unless he leaves town immediately. This may be sufficiently extreme and outrageous to be actionable as intentional infliction of emotional distress. *When this outrageous conduct consists of speech about a public figure, the first amendment's guarantee of freedom of speech limits these claims. -Defamation: The basis of the tort of defamation is the publication of a statement of fact that holds an individual to up to contempt, ridicule, or hatred. Publication constitutes anything from speaking to someone else about it to someone overhearing a conversation. If you repeat a defamatory statement you were told, you are also liable. The freedom of speech guaranteed by the first amendment is not absolute. The courts are required to balance the guarantee of free speech against other pervasive social interests such as society's interest in preventing attacks on reputation. Defamation of character involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others. Breaching this duty in writing or other permanent form (such as digital recording) involves the tort of libel. Breaching it orally involves the tort of slander.Once a defendant's liability for libel is established, general damages are presumed as a matter of law. General damages are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor, humiliation, injured reputation, and emotional distress. (Things that are difficult to measure). To recover damages the plaintiff need not prove that he/she was actually damaged as a result of the libelous statement because the impact is so hard to measure. In contrast to cases alleging libel, in a case alleging slander, the plaintiff must prove special damages to establish the defendant's liability. The plaintiff must show that the slanderous statement caused him to suffer actual economic or monetary losses. Unless this is proven, the suit cannot go forward. This requirement is imposed because of the temporary quality of oral statements contrary to libelous (written) statements which can be circulated widely. Also, libel usually results from some degree of deliberation by the author. Exceptions to the burden of special damages occur in cases alleging slander if a false statement constitutes "slander per se" which are statements that another has a "loathsome" disease (std), that another has committed improprieties whilst engaging in a profession or trade, that another has committed or has been imprisoned for a serious crime, that a person is unchaste or has engaged in serious sexual misconduct. The tort of defamation also arises when a false statement of fact is made about a person's product, business, or legal ownership rights to property. *In order to establish defamation, the following elements must be proven: 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) If the plaintiff is a public figure, she must also prove actual malice which essentially means that it must be made with either knowledge of its falsity or a reckless disregard of the truth. *Defenses to defamation: Truth is normally an absolute defense against a defamation charge. If a defendant proves that what he said was actually true, normally no tort has been committed. Even the presence of minor inaccuracies of expression or detail does not render basically true statements false. Other defenses to defamation may exist if speech is privileged or if it concerns a public figure. Privileged communications are of two types: absolute and qualified. Only in judicial proceedings and certain government ones is an absolute privilege granted. Thus, statements made by attorneys and judges in the courtroom during a trial are privileged as are statements made by government officials during a legislative debate. Qualified privileges are those such as an employer's written evaluations of employees or if statements are made in good faith and the publication is limited to those with legitimate interest.

What types of damages are available in tort actions?

-Compensatory Damages -Punitive Damages

What is 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.

What are possible defenses to torts?

A successful defense releases the defendant from partial or full liability for the tortious act. The defenses available may vary depending on the specific tort involved. A common defense to intentional torts against persons, for instance, is consent. When a person consents to the act that damages her or him, there is generally no liability. The most widely used defense in negligence actions is comparative negligence. In addition, most states have a statute of limitations that established the time limit within which a particular lawsuit can be filed.

What are compensatory damages?

Compensatory damages are awarded to compensate or reimburse the plaintiff for actual losses. Thus, the goal is to make the plaintiff whole and to put him in the same positions he would've been had the tort not occured. They are broken down into: -Special Damages: compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits. (now and in the future). They may also be awarded to compensate for extra costs, the loss of irreplaceable items and the costs of repairing or replacing damaged property. -General Damages: compensate individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering. A court might award general damages for physical or emotional pain and suffering, loss of companionship, loss of the benefits (emotional and physical) of a spousal relationship, loss of reputation, physical capacity, etc.

What are intentional torts?

Intentional torts result from the intentional violation of person or property (fault plus intent). They require intent. The tortfeasor (the one committing the tort) must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law. An evil or harmful motive is not required. In tort law, intent means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act. The law generally assumes that individuals intend the normal consequences of their actions. Thus, forcefully pushing another, even as a joke, is an intentional tort (if injury results) because the object of a strong push can ordinarily be expected to fall down. In addition, intent can be transferred when a defendant intends to harm one individual but unintentionally harms another. This is called transferred intent.

What are unintentional (negligence) torts?

Negligence torts result from the breach of a duty to act reasonably (fault without intent)

What are punitive damages?

Punitive damages are awarded to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are only appropriate when the defendant's conduct was flagrant or blameworthy. Usually this means that punitive damages are available in intentional tort actions and only rarely in negligence lawsuits. They will be awarded in suits involving gross negligence. Punitive damages are subject to limitation under the due process clause of the Constitution.

Can state laws cap damages?

State laws may limit the amount of damages, both punitive and general, that can be awarded to the plaintiff.

What is the purpose of tort law?

The purpose of tort law is to provide remedies for the violation of various protected interests. Tort law aims to protect individuals from having to expect harmful or offensive contact. Ex. Society recognizes an interest in protecting property, and tort law provides remedies for acts that cause destruction or damage to property.

How are torts classified?

There are 2 broad classifications of torts: intentional torts , and unintentional torts (torts involving negligence).

What is the basis of tort law?

Two notions serve as the basis for torts: wrongs and compensation. Tort law is designed to compensate those who have suffered loss or injury due to another person's wrongful act. In tort action, one person or group brings a lawsuit against another person or group to obtain compensation (monetary damages) or any other relief for the harm suffered.

What is comparative negligence?

a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury.