Chapter 7 LENB

Assumption of the Risk

defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused. In other words, the plaintiff willingly assumed as a risk the harm they suffered.

3Is Tort law primarily federal or state law?

state law.

Slander of Quality (If spoken)

when such disparagement statements made are criticisms of the quality, honesty, or reputation of the business or product, the tort is called this.

Negligence Perse

"negligence in or of itself." Applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs.

Res Ipsa Loquitur

"the thing speaks for itself." Plaintiff uses this doctrine to allow 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.

5 Criteria to Establish Fraudulent Misrepresentation

1) a party knowingly or with reckless disregard for the truth, misrepresented material facts and conditions 2) the party intended to have other parties rely on the misrepresentations 3) the injured party reasonably relied on the misrepresentations 4) the injured party suffered damages as a result of relying on the misrepresentations 5) a direct link exists between the injuries suffered and a reliance on the misrepresentations

Damages available in tort cases

1) compensatory damages 2) nominal damages 3) punitive damages

4 Elements to Negligence

1) duty - the plaintiff must first establish that the defendant owes a duty to the plaintiff 2) breach of duty - plaintiff must prove that the defendant's conduct violated duty of care 3) causation - must prove actual cause and proximate cause 4) damages - the plaintiff must have sustained compensable injury as a result of the defendant's actions.

4 Questions to Determine Duty of Care

1) how likely was it that the harm would occur? 2) how serious was the potential harm? 3) how socially beneficial was the defendant's conduct that posed the risk of harm? 4) what costs would have been necessary to reduce the risk of harm?

3 Purposes of Tort Law

1) provide compensation to injured parties 2) maintains order in society because it discourages private retaliation by injured persons and their friends 3) gives citizens a sense that they live in a just society

3 Requirements for 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 and the plaintiff, have been sufficiently eliminated. 3) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

Proximate Cause

Also known as "legal cause." It refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of their actions. This exists only when the plaintiff and their damages were reasonably foreseeable at the time the defendant breached their duty to the plaintiff.

Special Defenses to Negligence

Commonly called "Good Samaritan" statutes, which attempt to encourage selfless and courageous behavior by removing the threat of liability.

Intentional Torts Against Persons

Intentional acts that harm an individual's physical or mental integrity. Examples include assault and battery.

Strict Liability

Liability without fault. It must satisfy three conditions: 1) it involves a risk of serious harm to people or property 2) it is so inherently dangerous that it cannot ever be safely undertaken 3) it is not usually performed in the immediate community.

Assault

Occurs when one person places another in fear or apprehension of an immediate, offensive bodily contact.

Section 870 of the Restatement (Second) of Torts

One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct doe snot come within a traditional category of tort liability.

Battery

an intentional, unwanted, offensive bodily contact. Almost any unwanted, intentional contact constitutes a battery, even if it is not harmful.

disparagement

a business tort that occurs when a statement is intentionally used to defame a business product or service.

Nuisance

a private nuisance occurs when a person uses her property in an unreasonable manner that harms a neighbor's use or enjoyment of his property

Nominal Damages

a small amount of money given to recognize that a defendant did indeed commit a tort in a case in which no compensable damages were suffered by the plaintiff. A plaintiff may receive these damages by simply failing to prove actual damages.

Tort

a wrong or injury to another, other than a breach of contract. It is a violation of another person's rights or a civil wrongdoing that does not arise out of a contract or statute

Trespass to personal property

also called trespass to personalty. A person commits this by temporarily exerting control over another person's personal property or interfering with the true owner's right to use the property. Under this, the trespasser is responsible for damages caused to the property as well as damages caused to the owner related to the trespasser's wrongful possession of the property.

Actual Cause

also known as "cause in fact." It is the determination that the defendant's breach of duty resulted directly in the plaintiff's injury.

Punitive Damages

awarded to punish the defendant. These are only given when a defendant's conduct is extremely outrageous. The purpose is twofold: punish the defendant, and to deter him and others who are similarly situation from engaging in that kind of activity again.

Negligence

behavior that creates an unreasonable risk of harm to others. It involves the failure to exercise reasonable care to protect another's person or property

Defenses to Negligence

courts permit certain defenses that relieve the defendant from liability even when the plaintiff has proved all 4 elements of negligence

Superseding cause

defendants can avoid liability by establishing this, which is an unforeseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered. It basically proves that the defendant's breach of duty was not the proximate cause of the plaintiff's injuries.

Contributory Negligence

defense to negligence that applies in cases in which both the defendant and the plaintiff were negligent. 2 elements to prove: 1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm 2) the plaintiff's failure was a contributory cause of the plaintiff's injury. If proved, the plaintiff will be denied recovery of damages.

Intentional Torts Against Economic Interests

disparagement, tort of intentional interference with contracts, unfair competition, fraudulent misrepresentation.

Slander of Title

if disparagement statements made are related to the ownership of the product or property

Intentional Torts Against Property

includes trespasses to realty, nuisance, trespass to personalty, and conversion

Comparative Negligence

most states have replaced contributory negligence with this defense. There are two types: 1) pure 2) Modified

Negligent Torts

occur when the defendant acts in a way that subjects other people to an unreasonable risk of harm. In other words, the defendant is careless to someone else's detriment. These claims are usually used to achieve compensation for accidents and injuries.

Intentional Torts

occur when the defendant takes an action intending that certain consequences will result or knowing certain consequences are likely to result. Examples include assault, battery, conversion, false imprisonment, intentional infliction of emotional distress, trespass to land, and trespass to chattels.

Strict-Liability

occur when the defendant takes an action that is inherently dangerous and cannot be undertaken safely, no matter what precautions the defendant takes. In such situations, a defendant is liable for the plaintiff's damages without any requirement for the plaintiff to prove that the defendant was negligent.

Trespass to Realty

occurs when a person intentionally: enters the land of another without permission causes an object to be placed on the land of another without the landowner's permission stays on the land of another when the owner tells him to leave refuses to remove something he placed on the property that the landowner asked him to remove

Conversion

occurs when a person permanently removes personal property from the owner's possession and control. When this happens, the owner cannot regain the property. The owner usually recovers damages for the full value of the converted item plus any additional damages that resulted from the loss. It is not a defense to conversion for a person to argue that they believed they had a legal claim to the goods.

Fraudulent Misrepresentation

occurs when one uses intentional deceit to facilitate personal gain.

Modified Comparative Negligence

percentages are calculated in the same way as pure, except the defendant must be more than 50 percent at fault before the plaintiff can recover.

Tort Feasor

person who committed the tort

Tort of Intentional Interference with Contracts

plaintiff must prove the following to bring this to court: 1) a valid and enforceable contract between the two parties existed 2) the defendant party knew of the existence of the contract and its terms 3) the defendant intentionally undertook steps to cause one of the parties to breach the contract 4) the plaintiff was injured as a result of the breach

Compensatory Damages

primary type of damages in tort law because the primary objective of tort law is to compensate victims. These damages are typically awarded for pain and suffering, costs of repairing damaged property, medical expenses, and lost wages. However, attorney fees are not recoverable as compensatory damages

Reasonable Person Standard

standard used by courts to determine the defendant's duty of care. It is a measurement of the way members of society expect an individual to act in a given situation.

Unfair Competition

the act of competing with another, not to make a profit, but for the sole purpose of driving that other out of business

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

Plaintiff's Doctrines

the plaintiff has the burden of proving all 4 elements of a negligence case. 2 doctrines have been adopted by courts to aid plaintiffs in establish negligence claims: 1) Res Ipsa Loquitur 2) Negligence Perse

Trade Libel

when such disparagement statements are criticisms of the quality, honesty, or reputation of the business or product in printed form