Legal: Torts Quiz (2.12.20)

Assault

any intentional and unexcused threat of immediate harmful or offensive contact—words or acts. Trying to hit someone is assault Defense of others: pushing someone out of the way of a car Self-defense Defense of property

Defenses to negligence Assumption of risk

baseball example This is the defense of assumption of risk, which requires two elements: 1. Knowledge of the risk. 2. Voluntary assumption of the risk.

*Invasion of privacy Invasion of privacy under common law Invasion into an individual's affairs or seclusion

celebrities often False light: makes them look like something they are not Public disclosure of private facts Appropriation of identity: use of someone's likeness without permission

Tort

civil wrongs (not a criminal wrong) and compensation. Tort law is designed to compensate those who have suffered a loss or injury due to another person's wrongful act. A civil wrong does not arise from a contract, a law from which the law arises a remedy. Some torts can be crimes.

Special damages

compensate the plaintiff for quantifiable monetary losses, such as medical expenses and lost wages and benefits (now and in the future). Special damages might also be awarded to compensate for extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property. General damages compensate individuals (not companies) for the non monetary aspects of the harm suffered, such as pain and suffering.

Contributory negligence

All individuals are expected to exercise a reasonable degree of care in looking out for themselves. In the past, under the common law doctrine of contributory negligence, a plaintiff who was also negligent (who failed to exercise a reasonable degree of care) could not recover anything from the defendant.

*False imprisonment

False imprisonment is the intentional confinement or restraint of another person's activities without justification

Public figures

Figures. Politicians, entertainers, professional athletes, and others in the public eye are considered public figures. Public figures are regarded as "fair game." False and defamatory statements about public figures that are published in the media will not constitute defamation unless the statements are made with actual malice.9 To be made with actual malice, a statement must be made with either knowledge of its falsity or a reckless disregard of the truth.

Injury requirement and damages

For tort liability to arise, the plaintiff must have suffered a legally recognizable injury. To recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest.

Dram shop acts

Many states have also passed dram shop acts,18 under which a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar.

Good Samaritan statutes

Most states now have what are called Good Samaritan statutes.17 Under these statutes, someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence.

Appropriation statutes

Most states today have codified the common law tort of appropriation of identity in statutes that establish the distinct tort of appropriation, or right of publicity. States differ as to the degree of likeness that is required

Punitive damages

Occasionally, the courts also award punitive damages in tort cases to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy). Purpose is to punish

Intentional infliction of emotional distress

The tort of intentional infliction of emotional distress involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. To be actionable (capable of serving as the ground for a lawsuit), the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society. Outrageous conduct Limited by the first amendment

Unintentional torts-- negligence

The tort of negligence occurs when someone suffers injury because of another's failure to live up to a required duty of care.

Wrongful interference with a business relationship

There is a difference between competitive practices and predatory behavior—actions undertaken with the intention of unlawfully driving competitors completely out of the market

Reasonable person standard

Tort law measures duty by the reasonable person standard. In determining whether a duty of care has been breached, the courts ask how a reasonable person would have acted in the same circumstances. The reasonable person standard is said to be objective. It is not necessarily how a particular person would act. It is society's judgment of how an ordinarily prudent person should act

Slander of title

When a publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss to the property's owner, the tort of slander of title occurs.

Trespass to personal property

Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property, trespass to personal property occurs. Protects against the owner's enjoyment of the property.

Damages for libel

oral defamation that damages someone's reputation

Tortfeasor

person who commits the tort, usually the defendant

Civil standard

prove preponderance of evidence (51% sure) Criminal standard: prove beyond a reasonable doubt (100% sure)

Purpose of tort law

provide remedies for the violation of various protected interests. Damages available in tort actions: Note that legal usage distinguishes between the terms damage and damages. Damage refers to harm or injury to persons or property, while damages refers to monetary compensation for such harm or injury.

Battery

the act that created the apprehension is completed and results in harm to the plaintiff, it is a battery—an unexcused and harmful or offensive physical contact intentionally performed.

Intentional torts

the intent is in doing the act (holding the book) not intent in the consequence (depriving you of your book)

Real property

the land and everything affixed to it. Improvements on the land and the land

Intentional torts against property

the law distinguishes real property and personal property. Trespass doesn't have to have harm, the law is designed to protect exclusive property

Classifications of torts

torts: intentional torts and unintentional torts (torts involving negligence). The classification of a particular tort depends largely on how the tort occurs (intentionally or negligently) and the surrounding circumstances. Intentional torts result from the intentional violation of person or property (fault plus intent). Negligence results from the breach of a duty to act reasonably (fault without intent).

Defenses to defamation

truth

Personal property

your tangible belongings

Causation Courts ask two questions Is there causation in fact? Use of the but-for test

"but for" the wrongful act, the injury would not have occurred. This test seeks to determine whether there was a cause-and-effect relationship between the act and the injury suffered. In theory, causation in fact is limitless. Was the act the proximate or legal cause of the injury? Proximate cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability. Proximate cause asks whether the injuries sustained were foreseeable or were too remotely connected to the incident to trigger liability.

Abusive or frivolous litigation

(tort) The key difference between the torts of abuse of process and malicious prosecution is the level of proof. Unlike malicious prosecution, abuse of process is not limited to prior litigation and does not require the plaintiff to prove malice. It can be based on the wrongful use of subpoenas, court orders to attach or seize real property, or other types of formal legal process. Bringing lawsuits without probable cause or adequate grounds to bring a case. Plaintiff doesn't have to show malice.

Trespass to land

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.

Defenses to wrongful interference

A person will not be liable for the tort of wrongful interference with a contractual or business relationship if it can be shown that the interference was justified or permissible. Bona fide competitive behavior—such as marketing and advertising strategies—is a permissible interference even if it results in the breaking of a contract.

Compensatory damages

A plaintiff is awarded compensatory damages to compensate or reimburse the plaintiff for actual losses. Thus, the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred.

Fraudulent misrepresentation

Although people sometimes make misrepresentations accidentally because they are unaware of the existing facts, the tort of fraudulent misrepresentation (fraud), involves intentional deceit for personal gain.You can only have fraud with factual misrepresentation, cannot be opinion. 1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth. 2. An intent to induce another party to rely on the misrepresentation. 3. justifiable reliance on the misrepresentation by the deceived party. 4. Damages suffered as a result of that reliance. 5. A causal connection between the misrepresentation and the injury suffered. For fraud to occur, more than mere puffery, or seller's talk, must be involved. Fraud exists only when a person represents as a fact something he or she knows is untrue. Statement of fact versus opinion Negligent misrepresentation: Sometimes, a tort action can arise from misrepresentations that are made negligently, rather than intentionally. The key difference between intentional and negligent misrepresentation is whether the person making the misrepresentation had actual knowledge of its falsity. Negligent misrepresentation requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness.

*Intentional torts against persons

An intentional tort, as the term implies, requires intent. The tortfeasor (the one committing the tort) must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law.

Superseding cause

An unforeseeable intervening event may break the causal connection between a wrongful act and an injury to another. If so, the intervening event acts as a superseding cause—that is, it relieves the defendant of liability for injuries caused by the intervening event.

Conversion

Any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause can constitute conversion. Not giving Paul his laptop back. A case of consent. Has a parallel with theft. Conversion is the tort; theft is the crime. Failure to return goods Intention

Liability for harm

At common law, a trespasser is liable for any damage caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains on the premises. The owner is liable if there is a hazard that should have been made known to the general public to prevent injury.

Establishing trespass

Before a person can be a trespasser, the real property owner (or another person in actual and exclusive possession of the property, such as a renter) must establish that person as a trespasser. For instance, "posted" trespass signs expressly establish as a trespasser a person who ignores these signs and enters onto the property.

The duty of care and its breach

Central to the tort of negligence is the concept of a duty of care. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others.

Defamation

Defamation of character involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false and defamatory statements of fact about others. 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. If the plaintiff is a public figure, she or he must also prove actual malice, discussed later in the chapter.

Disparagement of property

Disparagement of property occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation (as in the tort of defamation). Disparagement of property is a general term for torts that can be more specifically referred to as slander of quality or slander of title.

To succeed in a negligence action, the plaintiff must prove each of the following

Duty. The defendant owed a duty of care to the plaintiff. Reasonable person standard Breach. The defendant breached that duty. Causation. The defendant's breach caused the plaintiff's injury. Link between a breach of duty and the damage suffered The "but-for" clause. Woman vs. baseball team. But-for the baseball having not been thrown, the woman would not have been injured. That woman assumed the risk because she was on the foul line, and if you play a sport it is known that you have assumed the risk of the game Must have both: Actual causal link Proximate cause DUTY BREACH CAUSATION DAMAGE

Defenses

Even if a plaintiff proves all the elements of a tort, the defendant can raise a number of legally recognized defenses (reasons why the plaintiff should not obtain damages). A successful defense releases the defendant from partial or full liability for the tortious act.

Comparative negligence

In most states, the doctrine of contributory negligence has been replaced by` a comparative negligence standard. Under this standard, both the plaintiff's and the defendant's negligence are computed, and the liability for damages is distributed accordingly.

Privileged communications

In some circumstances, a person will not be liable for defamatory statements because she or he enjoys a privilege, or immunity. Privileged communications are of two types: absolute and qualied.8 Only in judicial proceedings and certain government proceedings is an absolute privilege granted. us, statements made by attorneys and judges in the courtroom during a trial are absolutely privileged, as are statements made by government officials during legislative debate.

Duty of professionals

Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals—including physicians, dentists, architects, engineers, accountants, and lawyers, among others—are required to have a standard minimum level of special knowledge and ability.If a professional violates his or her duty of care toward a client, the client may bring a suit against the professional, alleging malpractice (professional negligence), which is essentially professional negligence

Publication requirement

Publication here means that the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party.

Damages for slander

The plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses. Must be proven with specificity

Slander of quality

The publication of false information about another's product, alleging that it is not what its seller claims, constitutes the tort of slander of quality, or trade libel.

Duty of landowners Duty to warn business invitees of risks

Retailers and other business operators who explicitly or implicitly invite people to come onto their premises have a duty to exercise reasonable care to protect these business invitees. Obvious risks provide exception

Legislative caps on damages

State laws may limit the amount of damages—both punitive and general—that can be awarded to the plaintiff. More than half of the states have placed caps ranging from $250,000 to $750,000 on noneconomic general damages

Damage

harm Damages: what you are awarded by the court, if you win a civil case this is what you get

Slander per se

it is actionable with no proof of special damages required. In most states, the following four types of declarations are considered to be slander per se: 1. A statement that another has a "loathsome" disease (such as a sexually transmitted disease). 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 usually applies only to unmarried persons and sometimes only to women.)

Statement of fact requirement

making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than a personal opinion.