ch. 2 - tort law and product liability

defenses include

1. improper equipment installation 2. improper modification c. use of the product for unforeseeable purposes d. failure to use the product in accordance with instructions (this is apart of the product liability)

3 elements to assumption of risk must be established

1. the risk must be inherent to the sport 2. the participant must voluntarily consent to be exposed to the risk 3. the participant must know, understand, and appreciate the inherent risks of the activity

strict liability

2nd theory of product liability. a concept of liability regardless of fault, this cannot be used in all cases

breach of warranty

3rd theory that can be used by plaintiffs, this theory is not a tort theory of liability but instead a contractual remedy, is a remedy most commonly used by those who are simply dissatisfied with their product and wish to have it repaired or replaced. this theory is used every time a product breaks or fails to work properly and the consumer returns it to the store or distributor

public disclosure of private facts

4th type of intentional tort with privacy implications, this tort would arise when facts about a person's private life, which an ordinary person would find objectionable, are made public. (ex. if a newspaper article published a story about a star high school athlete that dealt with the athlete's sex life or finances this action might give rise to the tort

cause in fact

but for the act (or failure to act), the injury would not have occurred

causation

cause in fact and proximate cause or a part of which element?

voluntary consent

certain aspects of a sport, such as physical contact, are accepted (consented to) as part of the sport. examples to contact and potential injury are legal tackles in football and legal checking in hockey, setting picks in basketball

personal property

consists of things that can be moved, such as sports equipment like soccer goals or smaller items like bats, helmets, and gloves

implied warranties

exist as a matter of law whenever consumer goods are sold

manufacturing defect

exists when a product is manufactured incorrectly

implied assumption of risk

exists when the participant's conduct or actions show that he voluntarily assumed the risks by taking part in the activity

implied warranty of fitness

exists when the retailer, distributor, or manufacturer knows of a certain purpose for which the goods are required and further that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, that the goods are fit for the purpose

appropriation

first category of intentional tort involving privacy. when someone uses, without permission and for her own benefit, the name, likeness or other identifying characteristic of another person

injury

for any cause of action based on negligence some actual harm or injury must exist, some real (actual) physical or emotional harm must exist

two main categories for intentional tort

harm to persons and harm to property

tort

is a category of law that encompasses situations in which a civil wrong has been committed, involves conduct that is either careless or intentional that results in harm or injury to a person or property

assumption of risk

is a legal defense by which plaintiffs may not recover for injuries in negligence when they have voluntarily exposed themselves to known and appreciated dangers

forseeability

jurisdictions that incorporate into their proximate cause determination require plaintiffs to prove that the injury was foreseen by the defendant, or reasonably should have been foreseen, and was the natural and probable result of the negligence

product liability

known as liability of harm caused by a consumer product

examples of negligence

lawsuits against fast-food chains for claims that fast food made a person overweight or obese and the famous case of the woman who sued McDonald's after she spilled hot coffee in her lap

type of torts

negligence and intentional torts

first 2 theories

negligence and strict liability are found in tort law

standard of care

negligent conduct occurs when a defendant fails to meet his duty or responsibility for the protection of others and as a result causes another to be injured or harmed, is the duty or responsibility owed by a defendant (this could be a person or an organization) to another, first element of negligence

slander of title

occurs when someone makes false statements about the ownership or title of someone's property, a type of disparagement

negligence

occurs when someone sustains personal injury but there is no intent to cause injury. The injured person (the plaintiff) may initiate this lawsuit in which she seeks money for the injury

trespass to personal property

occurs when someone takes the personal (movable) property of another without the permission of that person

express assumption of risks

occurs when the participant uses language to evidence that he has assumed the risks of an activity (in sports usually sign an agreement stating you understand the risks)

slander defamation

oral form of defamation

knowledge

part of the aspect of assumption of risk. the defendant to show that the plaintiff knew the nature of the activity and the risks associated with that activity. Plaintiffs need to understand the activity in terms of their own condition and skill.

proximate causation

requirement that the act (or failure to act) and the injury be strongly or directly linked

breach of duty

second element of negligence, the plaintiff must establish that the defendant failed to conform to the duty of care owed to the plaintiff

implied warranty of merchantability

states that the goods will do what they are generally supposed to do

gross negligence

the defendant's responsibility is magnified so that it is at a higher degree than that found in ordinary negligence. To require a showing of willful, wanton, or reckless misconduct

elements

these are rules that must be proved, there are 4 which is standard of care, breach of duty, causation, and injury (damages)

design defect

these defects exist when a product is unreasonably designed, this exists before the product is manufactured, and thus the entire product line is defective

causation

third element of negligence, must be proved in a negligence case, refers to the claim in a negligence case that the acts or inaction of the defendant brought about injury to the plaintiff

false light

third type of intentional tort relevant to privacy, similar to defamation and may be brought in tandem with a defamation lawsuit. this involves putting a person in the public spotlight over information that is untrue

invasion of the right to privacy

this concept encompasses several types of intentional torts, all of which are relevant to sport. interference with a private citizen's right to privacy in her personal life

trespass to real property

this occurs when a person intentionally enters the land of another, or causes another person or object to enter the land of another, without permission or necessity

third theory

this theory is found in breach of warranty and isa contractual remedy

disparagement of property

this tort arises when someone makes a comment about the property of another that is untrue and results in harm to the person in possession of the property. There are 2 types of this which is slander of title and slander of quality, deals with untrue statements about personal property

harm to persons

this type of harm can be in the form of physical injury, emotional injury, or damage to a person's reputation

harm to property category

trespass to real property, trespass to personal property, and disparagement of property

false

true or false: a tort does involve criminal conduct

true

true or false: most negligence cases never go to trial, because the cases are settled by the attorneys and their clients

true

true or false: plaintiffs can use 3 theories when suing manufacturers under product liability: negligence, strict liability and breach of warranty

true

true or false: plaintiffs must show all the elements of negligence to prevail in court

conversion

when an individual takes a property and takes possession of that property

plaintiff

who is the (injured person) has the burden of proving her case when negligence is alleged, each element must be found to exist before a this party may recover (be awarded money) in a negligence case

libel defamation

written form of defamation

harm to persons category

battery, assault, defamation, false imprisonment, intentional infliction of emotional distress, and invasion of the right to privacy

battery

An intentional tort, involves touching someone, is generally defined as the intentional, harmful, or offensive touching of another that is unprivileged and unpermitted. you don't have to bruise or physically hurt someone to commit this type of tort, as this type of tort includes both touch that is harmful and that which is merely offensive

real property

both land and objects that are permanently attached to the land, such as fields, courts and swimming pools

intrusion

a second type of intentional tort with privacy implications, this tort may arise where someone invades a person's home or searches personal belongings without permission

intentional tort

a tort (civil wrong resulting in harm to person or property) that is committed with intent, the defendant intended the consequences of the act or knew with substantial certainty that a particular consequence (specific outcome) would result from the act

damages

a tort might result in an award of money known as this, from the person or organization (the defendant) that caused injury or harm

slander of quality

a type of disparagement, this type of tort arises when someone makes false statements about the quality of someone's product or merchandise

false imprisonment

a type of intentional tort, the intentional, wrongful, and unreasonable confinement of another

waiver

a type of legal protection from negligence liability in sports, this is a contract that sport organizations often use to protect themselves and their business from lawsuits that might occur when people are injured at an event or facility, this type of form is also known as a contract

assault

another type of intentional tort, is the threat to touch someone. is the threat of the battery (the threat of harmful or offensive touching)

unforeseeable consequences

are the results of actions or situations that could not have been predicted or foreseen by a reasonable person

inherent risks

are those that cannot be removed from an activity without fundamentally altering the nature of the activity (ex. removing the skill of tackling in football)

express warranty

arises through advertising, sales literature, product labeling, and oral statements in which the seller asserts a fact or makes a promise that relates to the quality of goods and induces the buyer to purchase the goods

defamation

intentional tort, a false and defamatory statement made in the presence of a third party, by either spoken or written

intentional infliction of emotional distress

intentional tort, is a type of tort that arises when someone intentionally commits an act that represents extreme and outrageous conduct and results in severe emotional distress to another person