Chapter 7: Tort Law
where does negligence per se apply to in 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
torts against persons
intentional acts that harm an individual's physical or mental integrity
what are torts most commonly classified as?
intentional, negligent, or strict-liability torts
pure comparative negligence
court determines the percentage of fault of the defendant
trade libel
(if in printed form) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product
slander of title
(if related to ownership of business property) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product
slander of quality
(if spoken) when such statements are criticisms of the of the quality, honesty, or reputation of the business or product
special damages
(plaintiff must show specific monetary use that resulted from the defamatory statement)
how does a party 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 misrepresentation 3) the injured party intended to have other parties rely on the misrepresentation 4) the injured party suffered damages because of relying on the misrepresentation 5) a direct link exists between the injuries suffered and a reliance on the misrepresentations
what elements must be proved in a negligence case?
1) duty 2) breach of duty 3) causation 4) damages
what four questions determine whether a reasonable person would have owed a duty to others?
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 list of harm? 4) what costs would have been necessary to reduce the risk of harm?
slander per se statements exception to special damages
1) individual has a loathsome, communicable disease, 2) has committed a crime for which imprisonment is a possibility, 3) is professionally incompetent, 4) if a woman has engaged in sexual conduct
what are the three conditions that strict liability must satisfy?
1) involves a risk of serious harm to people or property 2) it's so inherently dangerous that it cannot ever be safely undertaken 3) it's not usually performed in the immediate community
what must plantiff's demonstrate in res ipsa loquitur?
1) the event was a kind that ordinarily doesn't 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
what must the defense must prove in contributory negligence?
1) the plaintiff's conduct fell below the standard of care needed to prevent unreasonable risk of harm and 2) the plaintiff's failure was a contributing cause of the plaintiff it's injury
what are the three categories of intentional torts?
1) torts against persons, 2) torts against property, 3) torts against economic interests
Good Samaritan statutes
attempt to encourage selfless and courage behavior by removing the threat to liability
contributory negligence
a defense once available in all states but replaced today in some states by the defense of comparative negligence
reasonable person standard
a measurement of the way members of society expect an individual to act in a given situation
absolute privilege
a special right, or immunity or benefit given to certain individuals that allows them to make any statements about someone being held liable; one cannot be sued for defamation
tort
a wrong or injury to another, other than a breach of contract
privilige
affirmative defense in a defamation action; this occurs when the defendant admits to the accusation but argues that there is a reason he should not be held liable; either absolute or conditional
last clear chance doctrine
allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff
gross negligence
an action committed with extreme reckless disregard for the property or life of another person
battery
an intentional, unwanted, offensive bodily contact (consent, self-defense, defense of others, defense of property)
negligence per se
another doctrine that helps plaintiff's succeed in negligence cases
negligence
behavior that cradles an unreasonable risk of harm to others ; involve the failure to exercise reasonable care to protect another's person or property
defenses to negligence
contributory negligence, comparative negligence, and assumption of risk
what are the three types of damages available in tort cases?
compensatory, nominal, and punitive
what are the different objectives of tort law?
contribute to maintaining order in society because it discourages private retaliation by injured persons and their friends; to give citizens a sense that they live in a just society; primarily state law
compensatory damages
damages intended to reimburse a plaintiff for their losses; damages designed to compensate victims for all the harm caused by the person who committed the tort (tortfeasor)
slander
defamation made orally
libel
defamation published in a permanent form
assumption of the risk
defendant must prove that the plaintiff must voluntarily and unreasonably encountered the risk of the actual harm the defendant caused
what is the difference between each of the categories generally?
differs in terms of the elements needed to prove the tort, the available damages, the available defenses, and the defense of willfullness of the actor
what are the five most common types of intentional torts against economic interests?
disparagement, intentional interference with contract, unfair competition, misappropriation, and fraudulent misrepresentation
public figure privilege
don't hold people liable for making false statements about politicians as long as the statements were made not with malice
where do absolute privileges arise?
in judicial proceedings and the speech and debate clause
comparative negligence
in which an extremely careless defendant can cause a great deal of harm to plaintiff who is barred from recovery due to minimal contributory negligence
unfair competition
exists because of American views about the purpose of a business
what are the two types of defense in assumption of risk?
express assumption and implied assumption of the risk
what are the four distinct torts?
false light, appropriation for commercial gain, and public disclosure of private facts
damages
final required element of negligence action; plaintiff must have sustained compensable injury as a result of the defendant's actions
privacy torts
four distinct torts collectively called invasion of privacy torts (to keep certain things out of public view)
truth
frequently considered an absolute defense one cannot beheld liable for defamation regardless of whether damages result
punitive damages
imposed to punish the offended and defer others from committing similar offenses (exemplary damages); awarded to punsih the defendant and when conduct is extremely outrageous
res ipsa loquitur
literally means "the thing speaks for itself"; uses this doctrine to allow the judge or jury to infer that the defendant's negligence was the cause of the plaintiff's harm; proof of these elements permits a finding of negligence and the burden is shifted to the defendant
what is the basis of intentional torts?
most willful of torts and predicated on the common element of intent; one doesn't need to establish a motive when proving liability
negligent torts
occur when the defendant acts in a way that subjects other people to unreasonable risk of harm
intentional torts
occur when the defendant takes an action intending that certain consequences will result or knowing certain consequences are likely to result
strict-liability torts
occur when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely
disparagement
similar to defamation, but it is a business' or product's reputation that has been tarnished
trespass to realty
occurs when a person intentionally 1) enters the land of another without permission, 2) causes an object to be placed on the land of another without the landowner's permission, 3) stays on the land of another when the owner tells him to depart, 4) 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 (true owner can no longer regain the property)
private nuisance
occurs when a person uses their property in an unreasonable manner that harms a neighbor's use or enjoyment of his property; occurs when a party acts in a way that endangers the property, health, safety, or welfare of the community
assault
occurs when one person places another in fear or apprehension of an immediate, offensive, bodily contact
fraudulent misrepresentation
occurs when one uses intentional deceit to facilitated personal gain
false light
occurs when publicity about a person creates an impression about that individual that is not valid (similar to defamation)
tort of intentional infliction of emotional distress
occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party
intrusion on individual's affairs or seclusion
occurs when someone invades a person's solitude, seclusion or personell affairs when the person has the right to privacy
public disclosure of private facts
occurs when someone publicizes a private fact about another tha a reasonable person would find offensive
appropriation for commercial gain
occurs when someone uses another person's home, likeness, voice, etc., for commercial gain without person's permission
express assumption
occurs when the plaintiff expressly agrees to assume the risk posed by plaintiff the risk posed by the defendant's behavior
breach of duty
once plaintiff establishes the defendant's duty in the case, they must prove that the defendant's conduct violated that duty (breach of duty)
conditional privilege
party will not be held liable for defamation unless the false statement was made with actual malice
plaintiff's doctrines
plaintiff has the burden of proving all four elements of a negligence case
duty
plaintiff must establish that a defendant owes a "duty
causation
plaintiff must prove actual cause ad proximate cause to be able to recover damages
what are the two forms of comparative negligence?
pure and modified
proximate cause
refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions (legal cause)
what are the two doctrines that have been adopted by courts to aid plaintiffs in establishing negligence claims?
res ipsa loquitur and negligence per se
modified comparative negligence
same manner but the defendant must be more than 90% at fault before plaintiff can recover
nominal damages
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
defense
special damages
actual cause
the determination that the defendant's breach of duty resulted directly in the plaintiff's injury; courts commonly determine whether a breach of duty actually caused the plaintiff's injury by asking whether the plaintiff would have been injured if the defendant had fulfilled his or her duty
defamation
the intentional publication (communication to a 3rd party) of a false statement harmful to another's reputation
implied assumption
the plaintiff implicitly assumed a known risk
if defendant successfully proves contributory negligence...
the plaintiff will will be denied any recovery of damages
intentional interference with contract
to bring a claim of this to success the plaintiff must prove that a 1) valid and enforceable contract between 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 innjured as a result of the breach
intent
to engage in a specific act that results in injury, physical, or economic, to another
what is the primary objective of tort law?
to provide compensation for injured parties
what are the most common torts of intentional torts against property?
trespass to reality, nuisance, trespass to personality, and conversion
trespasser to personal property
trespasser is responsible for damages caused to property as well as for damages caused to the owner related to trespasser's wrongful possession
who is liable for damages in trespass to realty
tresspasser; cannot hold an owner of property liable for damages the trespasser sustains under common law
what are two defenses for someone accused of defamation?
truth and privilege
superseding cause
unforseeable event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered; can avoid liability