Chapter 4 - Tort Law

Res Ipsa Loquitur

"the facts speak for themselves"; a doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence; the burden of proof rests of the defendant

Consent

a common defense to intentional torts against persons; when a person consents to the act that damages her or him, there is generally no liability

Class Action

a lawsuit in which a large number of plaintiffs bring suit as a group

Transferred Intent

a legal principal under which a person who intends to harm on individual, but intentionally harms a different individual, can be liable to the second victim for an intentional tort

Abuse of Process

a legal process against another in an improper manner or to accomplish a purpose for which it was not designed; not limited to prior litigation and does not require the plaintiff to prove malice

Compensatory Damages

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

Business Invitees

a person, such as a customer, who is invited onto business premises by the owner of those premises for business purposes; e.g. having a wet floor sign; there are risks that are so obvious that they don't need a warning (e.g. opening a door)

Injury Requirement and Damages

a plaintiff must have suffered a legally recognizable injury to recover damages

Assumption of Risk

a plaintiff voluntarily enters a risky situation, knowing the risks involved; 2 elements: 1) knowledge of the risk 2) voluntary assumption of the risk e.g. skiing and skydiving

Privilege

a special right, advantage, or immunity that enables a person or a class of persons to avoid liability for defamation; e..g statements made in a courtroom by attorneys and judges during a trial are absolutely privileged

Dram Shop Acts

a state statute that imposes liability on the owners of bars and taverns, as well as social hosts, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication

Torts

a wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability; wrongs and compensation serve as the basis

Defenses to Negligence

affirmative defenses: 1) assumption of risk 2) superseding cause 3) contributory and comparative negligence

Personal Property

all other items, basically moveable; e.g. furniture, cash, stocks, bonds

Causation in Fact

an act or omission without which an even would not have occurred

General Damages

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

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)

Battery

an excused and harmful or offensive physical contact intentionally performed; e.g. firing the gun (and hits) someone

Superseding Cause

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

Assault

any intentional and unexcused threat of immediate harmful or offensive contact; works or acts that create in another person a reasonable apprehension of harmful contact; e.g. pointing a gun at someone

Competitive Methods nv Predatory Behavior

attempting to attract customers in general is a legitimate business practice, but specifically targeting the customers of a competitor is more likely to be predatory; employee stands outside store to lure customers to another

Contingency Fees

attorneys' fees that are based on a % of the damages awarded to the client

Wrongful Interference with a Business Relationship

businesses are prohibited from unreasonably interfering with another's business in their attempts to gain a share of the market

Actionable

capable of serving as the ground for lawsuit

Contributory Negligence

completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault; used only in a few states

Slander

defamation in oral form

Basis of Tort Law

designed to compensate those who have suffered a loss or injury due to another person's wrongful act

Reasonable Person Standard

determining whether the contact is offensive or not; 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

Artisan's Lien

e.g. automobile repair shops can retain a customer's car when the customer refuses to pay for repairs already completed

Disparagement of Property

economically injurious falsehood about another's product/property, rather than about another's reputation

Statute of Limitation

establishes the time limit (often 2 years from the date of discovery) within which a particular type of lawsuit can be filed

Tort of Intentional Infliction of emotional distress

extreme and outrageous conduct resulting in severe emotional distress to another

Real Property

land and things permanently attached to the land; e.g. a house

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 person who keep dangerous animals product liability - on manufacturers or sellers that introduce into commerce defected and unreasonably dangerous goods; applied to cases of extreme risk of the activity

Forum Shopping

looking for a court based on whether the court is likely to provide a favorable judgement

Duty of Care

the duty of all persons to exercise a reasonable amount of care in their dealings with others. failure to exercise due care constitutes the tort of negligence In determining whether the duty of care has been breached, courts consider: 1. nature of the act (outrageous or commonplace) 2. the manner in which the act was performed (cautiously or heedlessly) 3. the nature of the injury (serious or slight)

Negligence

the failure to exercise the standard of care that reasonable person would exercise in similar circumstances; carelessly bump into someone and break their arm to succeed in a negligence action, the plaintiff must prove: 1. the defendant owed a duty of care to the plaintiff 2. the defendant breached that duty 3. the defendant's breach caused the plaintiff's injury 4. the plaintiff suffered a legally recognizable injury

Privilege to Detain

the merchant can use reasonable force to detain or delay a person suspected of shoplifting the merchant's property

Comparative Negligence

the most widely used defense in negligence actions

Tortfeasor

the one committing the tort

Danger Invites Rescue Doctrine

the original wrongdoer is liable for anyone who is injured, even if the injury resulted from another person's attempt to escape harm; e.g. avoiding a drunk driver and causing a collision because of it

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 info about another's product, alleging that it is not what its seller claims

Appropriation

the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user; e.g. animated character in a video game is made to look like an actual person, there are not enough similarities to constitute appropriation

Reasonable Duty of Care

trespasser is liable for any damage caused to the property and generally cannot hold the owner liable for injuries sustained

Causation

wrongful act must have caused the harm for it to constitute the tort of negligence

Business Torts

wrongful interference with another's business rights and relationships

Defamation

wrongfully hurting a person's good reputation; for it to be established, a plaintiff must prove: 1. false statment 2. 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, they must prove actual malice

Trespass to Personal Property

wrongfully taking or harming the personal property of another or 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 he service of another; e.g. Chen borrows Mark's iPad to use while traveling but when Mark asks for it back Chen says that he gave it to his little brother.

False Imprisonment

intentional confinement or restraint of another person's activities without justification (the person under restraint does not wish to be restrained); business persons may face suit for false imprisonment after they have attempted to confine a suspected shoplifter for questioning

Intentional Torts

result form the intentional violation of a person or property; fault with intent

Puffery

seller's talk; 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

Slander per se

1. a statement that another has a loathsome disease 2. a statement that another has committed improperness while engaging in a business, profession, or trade 3. a statement that another has committed or has imprisoned for a serious crime 4. a statement that a person is unchaste or has engaged in a serious sexual misconduct

Wrongful Interference with a Contractual Relationship

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

Invasion of Privacy

1. intrusion into an individuals affairs or seclusion; invading home, eavesdroppping; window peeping 2. false light; publication of info that places a person in a false light 3. public disclosure of private facts 4. appropriation of identity; using a person's name, picture for commercial purposes without permission

Measure to reduce the # of tort cases

1. limiting the amount of both punitive damages and general damages that can be awarded 2. capping the mat that attorneys can collect in contingency fees 3. requiring the losing party to pay both the plaintiff's and defendant's expenses

Class Action Fairness Act (CAFA)

shifted jurisdiction over large interstate tort and product liability class-action lawsuits from the state courts to the federal courts; prevents plaintiff's attorneys from forum shopping

Defenses against Trespass to Land

show that the trespass was warranted (i.e. entered the property to assist someone in danger); show license to enter land

Damage vs Damages

singular: used to refer to harm or injury to the persons or property plural: refer to the monetary compensation for such harm or injury

Statement of Fact vs Opinion

statements of opinion normally are not actionable bc they are protected under the 1st Amendment

Libel

Defamation in writing or another permanent form, reputation, or character

Product Liability

suits involve the manufacture, sale, and distribution of allegedly danger or defective goods

Publication

the defamatory statements are communicated to persons other than the defamed party

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; required to establish defamation against public figures

Fraudulent Misrepresentation

fraud; involves intentional deceit for personal gain 1. misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth 2. an intent to induce another to rely on the misrepresentation 3. justifiable reliance by the deceived party 4. damage suffered as a result of the reliance 5. a casual connection between the misrepresentation and the injury suffered

Damages for Libel

general damages are designed to compensate the plaintiff for nonspecific harms -harms difficult to measure

Malicious Prosecution

if a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued

Defenses to Defamation

if the defendant in a defamation suit can prove that his or her allegedly defamatory statements were true, normally no tort has been committed

Punitive Damages

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

State Reform

more than half of the states have placed caps ranging from 250k to 750k on noneconomic general damages; > 30 states have limited punitive damages, with some imposing outright bans

Unintentional Torts

negligence results from the breach of a duty to act reasonably

Defenses to Wrongful Interference

not liable if it can be shown that the interference was justified or permissible

Trepass to Land

occurs anytime a person, without permission, does any: 1. enters onto, above, or below the surface of land that is owned by another 2. causes anything to enter onto land owned by another 3. remains on land owned by another or permits anything to remain on it actual harm to the land is not an essential element, bc the tort is designed to protect the right of an owner to exclusive possession

Negligence Per Se

per se = "in or of itself"; an action or failure to act in violation of a statutory requirement

Good Samaritan Statutes

persons who provide emergency services to, or rescue someone, in peril cannot be sued for negligence unless they are reckless and cause further harm

Damages for Slander

plaintiff must show that the slanderous statement cause the plaintiff to suffer actual economic or monetary losses

Public Figures

politicians, pro athletes, others in the public eye

Malpractice

professionals are held to a higher standard; professional misconduct or the lack of the requisite degree of skill as a professional; negligence on the part of a professional

Purpose of Tort Law

provide remedies for the invasion of various protected interests

Foreseeability

questions of proximate cause; it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury

Defenses

reasons why the plaintiff should not obtain damages

Comparative Negligence

reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault; used in majority of states