Ch.4 Tort Law

Slander Per Se

1. A statement that another has a loathsome disease (such as a sexually transmitted diseases) or serious mental defect. 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 is unchaste or has engaged in serious sexual misconduct. (This category of slander per se usually applies only to unmarried persons and sometimes only to women.)

Wrongful Interference with a Contractual Relationship

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

Causation

1. Causation in fact—actual cause-and-effect relationship; "but for"test; injury would not have happened anyway 2. Proximate cause—close, strong, foreseeable connection of cause and effect

Prove to claim negligence

1. Duty: defendant owed plaintiff a duty of care 2. Breach: defendant breached that duty 3. Causation: defendant's breach caused plaintiff's injury 4. Damages: plaintiff suffered legally recognizable injury

Invasion of Privacy Cont.

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

Req. for strict product liability

1. Product must be in defective condition when sold 2. Defendant normally must be in the business of selling(or otherwise distributing) product 3. Product must be unreasonably dangerous because of defect 4. Plaintiff must incur physical harm to self or property 5. Defect must be proximate cause of injury 6. The good (product) must not have been substantially changed between when sold and injury occurs

Unreasonably dangerous

1. Product was dangerous beyond the expectation of the ordinary consumer 2. A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it

Prove to Establish Defamation

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. In addition, if the plaintiff is a public figure, she or he must prove actual malice.

Assumption of Risk

A defense to negligence that bars a plaintiff from recovering for injuries or damage suffered as a result of risks he or she knew of and voluntarily assumed. 1. Knowledge of the risk. 2. Voluntary assumption of the risk

Transferred Intent

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

Compensatory Damages (incl. special and general)

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.

Damages

A monetary award sought as a remedy for a breach of contract or a tortious action.

Business Invitee

A person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes.

Unreasonably Dangerous Product

A product that is so defective that it is dangerous beyond the expectation of an ordinary consumer, or a product for which a less dangerous alternative was feasible but the manufacturer failed to produce it.

Defense

A reason offered by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks.

Contributory Negligence

A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the harm suffered is partly the plaintiff's own fault.

Comparative Negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

Puffery

A salesperson's exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties.

Privilege

A special right, advantage, or immunity that enables a person or a class of persons to avoid liability for defamation.

Good Samaritan Statute

A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly and cause further harm

Dram Shop Act

A state statute that imposes liability on bar owners, bartenders, and (in some states) social hosts who serve alcohol for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.

Tort

A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability.

Intentional Tort

A wrongful act knowingly committed Intentional torts result from the intentional violation of person or property (fault with intent)

Causation in Fact

An act or omission without which an event would not have occurred

Disparagement of Property

An economically injurious falsehood about another's product or property.

Superseding cause

An unforeseeable intervening event may break the connection between a wrongful act and an injury to another

Actionable

Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action.

Trespass to Land

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

Malpractice

Professional misconduct or the lack of the requisite degree of skill as a professional. Negligence on the part of a professional, such as a physician, is commonly referred to as malpractice.

Publication (defamation req.)

Publication here means that the defamatory statements are communicated to persons other than the defamed party.

False light

Publication of information that places a person in a false light is also an invasion of privacy.

General Damages

In a tort case, an amount awarded to compensate individuals for the non-monetary aspects of the harm suffered, such as pain and suffering. Not available to companies.

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).

Public Figures and Defamation

In general, public figures are considered fair game, and false and defamatory statements about them that appear in the media will not constitute defamation unless the statements are made with actual malice.

Proximate Cause

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

Strict Liability

Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods.

Punitive Damages

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

Tortfeasor

One who commits a tort.

Absolute Privilege

Only in judicial proceedings and certain government proceedings is an absolute privilege granted

Battery

Physical contact with another that is unexcused, harmful or offensive, and intentionally performed.

Unintentional Tort

fault without intent -- breach of a duty to act reasonably

False Imprisonment

the intentional confinement or restraint of another person's activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force.

Defenses for Defamation

Truth is normally an absolute defense against a defamation charge. Privilege

Appropriation of identity

Under the common law, using a person's name, picture, or other likeness for commercial purposes without permission is a tortious invasion of privacy.

Strict Product Liability

Under the doctrine of strict liability, people may be liable for the results of their acts regardless of their intentions or their exercise of reasonable care.

Business Tort

Wrongful interference with another's business rights and relationships

Trespass to Personal Property

Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner's possession of personal property.

Conversion

Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another.

Damages for Slander

the plaintiff must prove special damages to establish the defendant's liability. That is, the plaintiff must show that the slanderous statement caused the plaintiff to suffer actual economic or monetary losses.

Res Ipsa Loquitur

burden of proof for negligence shifts to defendant, e.g., surgeon's mistake

Intentional Infliction of Emotional Distress

can be defined as extreme and outrageous conduct resulting in severe emotional distress to another.

Personal Property

consists of all other items, which are basically movable

Duty to retreat

duty to retreat from the situation if you feel threatened, with deadly force only as a last resort; no deadly force allowed if safely inside your home

Statue of Limitations

establishes the time limit (often two years from the date of discovering the harm) within which a particular type of lawsuit can be filed.

Statement of pinion

Statements of opinion normally are not actionable because they are protected under the First Amendment. In other words, making a negative statement about another person is not defamation unless the statement is false and represents something as a fact.

Actual Malice

The deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth. It is required to establish defamation against public figures

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.

Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Defenses: Assault and Battery

• Consent • Self-defense (reasonable force) • Defense of others (reasonable force) • Defense of property

Libel

Defamation in writing or another permanent form (such as a digital recording).

Privy of Contract

The relationship that exists between the promisor and the promisee of a contract.

Reasonable Person Standard

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

Wrongful Interference with a Business Relationship (predatory behavior)

actions undertaken with the intention of unlawfully driving competitors completely out of the market.

Castle Doctrine

no duty to retreat if threatened in own home, yard, business, or vehicle (in some states), and can use deadly force

Stand your ground

no duty to retreat; defendant can "stand their ground" and use deadly force against perceived threats. Extends castle doctrine to anywhere, even though retreating is easier in public spaces, and to virtually any situation, even if not life-threatening (though claims to rest on reasonable person standard)

Preemption

preemption—that government regulations preempt claims for product liability. An injured party may not be able to sue a manufacturer of defective products that are subject to comprehensive federal regulatory scheme

Public disclosure of private facts

This type of invasion of privacy occurs when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing.

Product Liabiity

Those who make, sell, or lease goods can be held liable for physical harm or property damage caused by those goods to a consumer, user, or bystander.

Fraudulent Misrepresentation

Any misrepresentation, either by misstatement or by 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

Assault

Any word or action intended to make another person fearful of immediate physical harm—a reasonably believable threat

Defamation

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

Qualified Privilege

Conditional -- An employer's statements in written evaluations of employees are an example of a qualified privilege.

Slander

Defamation in oral form.

Intent

In tort law, intent means only that the person intended the consequences of his or her act or knew with substantial certainty that certain consequences would result from the act. People intend the "normal consequences" of their actions. EX) a hard push -- will typically result in a hard fall and some other potential injury -- even if the tortfeasor didn't "intend" to injure them, only to push them

Appropriation

In tort law, the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user.

Intrusion into an individual's affairs or seclusion

Invading someone's home or illegally searching someone's briefcase is an invasion of privacy.

Product Liability

The legal liability of manufacturers, sellers, and lessors of goods for injuries or damage caused by the goods to consumers, users, or bystanders.

Slander of Title

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

Slander of Quality (Trade Libel)

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

Tort of Invasion of Privacy

a person must have a reasonable expectation of privacy, and the invasion must be highly offensive.

Damages for Libel

a plaintiff is normally entitled to general damages. General damages are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the community, humiliation, injured reputation, and emotional distress—harms that are difficult to measure.

Negligence per se

action violates statute, e.g., inattentive driving

Real Property

is land and things "permanently" attached to the land