Module 2: Chapter 4 Key Terms
Business Invitee
Retailers and other firms that explicitly or implicitly invite persons to come onto their premises have a duty to exercise reasonable care to protect these business invitees. The duty normally requires store owners to warn business invitees of foreseeable risks, such as construction zones and wet floors, about which the owners knew or should have known. BUSINESS INVITEES: A person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes.
Product Liability
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. This is called PRODUCT LIABILITY. PRODUCT LIABILITY claims may be based on the tort theories of negligence, fraudulent misrepresentation, or strict liability. Sometimes, a business faces multiple PRODUCT LIABILITY lawsuits over the same product. 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.
Tortfeasor
One who commits a tort.
Proximate Cause
PROXIMATE CAUSE, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability. Courts use PROXIMATE CAUSE to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions. PROXIMATE CAUSE: Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.
Punitive Damages
Occasionally, the courts also award PUNITIVE DAMAGES in tort cases to punish the wrongdoers and deter others from similar wrongdoing. PUNITIVE DAMAGES are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy). Thus, PUNITIVE DAMAGES are normally available mainly in intentional tort actions and only rarely in negligence lawsuits (intentional torts and negligence will be explained later in the chapter). They may be awarded, however, in suits involving gross negligence, which can be defined as an intentional failure to perform a manifest duty in reckless disregard of the effect on the life or property of another. PUNITIVE DAMAGES: Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
Tort
A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability.
Defense
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. The DEFENSES available may vary depending on the specific tort involved. A successful DEFENSE releases the defendant from liability for the tortious act. A common DEFENSE to intentional torts against persons, for instance, is consent. When a person consents to the act that damages her or him, there is generally no tort liability. The most widely used DEFENSE in negligence actions is comparative negligence (discussed later in this chapter). Most states also have a statute of limitations that establishes the time limit (often two years from the date of discovering the harm) within which a particular type of lawsuit can be filed. After that time period, the plaintiff can no longer file a claim. 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.
Puffery
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 she or he knows is untrue. For instance, it is fraud to claim that a roof does not leak when one knows it does. Facts are objectively ascertainable, whereas seller's talk (such as "I am the best accountant in town") is not. 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.
General Damages
GENERAL DAMAGES compensate individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering. A court might award GENERAL DAMAGES for physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of mental or physical capacity. GENERAL DAMAGES: In a tort case, an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering. Not available to companies.
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. Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff was precluded from recovering any damages. Today, only a few jurisdictions still follow this doctrine. In most states, the doctrine of CONTRIBUTORY NEGLIGENCE has been replaced by a comparative negligence standard. 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.
Strict Liability
Another category of torts is called STRICT LIABILITY, or liability without fault. Intentional torts and torts of negligence involve acts that depart from a reasonable standard of care and cause injuries. Under the doctrine of STRICT LIABILITY, liability for injury is imposed for reasons other than fault. 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.
Trespass to Land
A TRESPASS TO LAND occurs anytime a person, without permission, does any of the following: 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 of this tort, because the tort is designed to protect the right of an owner to exclusive possession. Common types of TRESPASS TO LAND include walking or driving on another's land, shooting a gun over the land, and throwing rocks at a building that belongs to someone else. Another common form of trespass involves constructing a building so that part of it is on an adjoining landowner's property. TRESPASS TO LAND: Entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.
Malpractice
Persons who possess superior knowledge, skill, or training are held to a higher standard of care than others. Professionals—such as physicians, dentists, architects, engineers, accountants, and lawyers—are required to have a standard minimum level of special knowledge and ability. In determining what constitutes reasonable care, the law takes their training and expertise into account. Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard. If a professional violates her or his duty of care toward a client, the professional may be sued for MALPRACTICE, which is essentially professional negligence. For instance, a patient might sue a physician for medical MALPRACTICE. A client might sue an attorney for legal MALPRACTICE. 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
Compensatory Damages
Plaintiffs are awarded COMPENSATORY DAMAGES to compensate or reimburse them for actual losses. Thus, the goal is to make the plaintiffs whole and put them in the same position that they would have been in had the tort not occurred. COMPENSATORY DAMAGES awards are often broken down into: 1. special damages and, 2. general damages. COMPENSATORY DAMAGES: A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.
Actual Malice
Politicians, entertainers, professional athletes, and other persons who are in the public eye are considered public figures. 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. To be made with ACTUAL MALICE, a statement must be made with either knowledge of its falsity or a reckless disregard of the truth. 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.
Special Damages
SPECIAL DAMAGES compensate plaintiffs for quantifiable monetary losses, such as medical expenses, lost wages and benefits (now and in the future), extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property. 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).
Unreasonably Dangerous Product
The Restatement recognizes that many products cannot possibly be made entirely safe for all uses. Thus, sellers or lessors of these products are held liable only when the products are unreasonably dangerous. A court may consider a product so defective as to be an UNREASONABLY DANGEROUS PRODUCT in either of the following situations: 1. The product is 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. A product may be unreasonably dangerous due to a flaw in its manufacturing, design, or warning. 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.
Fraudelent Misrepresentation
When a user or consumer is injured as a result of a manufacturer's or seller's FRAUDULENT MISREPRESENTATION, the basis of liability may be the tort of fraud. In this situation, the misrepresentation must have been made knowingly or with reckless disregard for the facts. The intentional mislabeling of packaged cosmetics, for instance, or the intentional concealment of a product's defects constitutes FRAUDULENT MISREPRESENTATION. The misrepresentation must concern a material fact, and the seller must have intended to induce the buyer's reliance on the misrepresentation. Misrepresentation on a label or advertisement is enough to show the intent to induce reliance. Of course, to bring a lawsuit on this ground, the buyer must have relied on the misrepresentation. 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.
Trespass to Personal Property
Whenever an individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession of personal property, TRESPASS TO PERSONAL PROPERTY (also called trespass to chattels or trespass to personalty) occurs. In this context, harm means not only destruction of the property, but also anything that diminishes its value, condition, or quality. TRESPASS TO PERSONAL PROPERTY involves intentional meddling with a possessory interest (the right to possess), including barring an owner's access to personal property. EX. Kelly takes Ryan's business law book as a practical joke and hides it so that Ryan is unable to find it for several days before the final examination. Here, Kelly has engaged in a TRESPASS OF PERSONAL PROPERTY here. (Additionally, Kelly has also committed the tort of conversion) If it can be shown that TRESPASS TO PERSONAL PROPERTY was warranted, then a complete defense exists. Most states, for instance, allow automobile repair shops to retain a customer's car (under what is called an artisan's lien) when the customer refuses to pay for repairs already completed. 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.
Slander of Title
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 specifically referred to as slander of quality or SLANDER OF TITLE. When a publication denies or casts doubt on another's legal ownership of property, and the property's owner suffers financial loss as a result, the tort of SLANDER OF TITLE may exist. Usually, this is an intentional tort that occurs when someone knowingly publishes an untrue statement about property with the intent of discouraging a third party from dealing with the property's owner. For instance, a car dealer would have difficulty attracting customers if competitors publish a notice that the dealer's stock consists of stolen automobiles. 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.
Damages
Generally, the purpose of tort law is to provide remedies for the invasion of various protected interests. Society recognizes an interest in personal physical safety, and tort law provides remedies for acts that cause physical injury or interfere with physical security and freedom. Society also recognizes an interest in protecting property, and tort law provides remedies for acts that cause destruction of or damage to property. Note that in legal usage, the singular damage is used to refer to harm or injury to persons or property. The plural DAMAGES is used to refer to monetary compensation for such harm or injury. DAMAGES: A monetary award sought as a remedy for a breach of contract or a tortious action.
Battery
If the act that created the apprehension is completed and results in harm to the plaintiff, it is a BATTERY, which is defined as an unexcused and harmful or offensive physical contact intentionally performed. The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss). Physical injury need NOT occur. The contact can be made by the defendant or by some force set in motion by the defendant, such as a rock thrown by the defendant. Whether the contact is offensive or not is determined by the reasonable person standard. If the plaintiff shows that there was contact, and the jury (or judge, if there is no jury) agrees that the contact was offensive, the plaintiff has a right to compensation. A plaintiff may be compensated for the emotional harm resulting from a BATTERY, as well as for physical harm. The defendant may raise a number of legally recognized defenses to justify his or her conduct, including self-defense and defense of others. BATTERY: Physical contact with another that is unexcused, harmful or offensive, and intentionally performed.
Causation in Fact
In deciding whether there is causation, the court must address two questions: 1. Is there CAUSATION IN FACT? Did the injury occur BECAUSE of the defendant's act, or would it have occurred anyway? *If an injury would NOT have occurred without the defendant's act, then there IS CAUSATION IN FACT. CAUSATION IN FACT can usually be determined by the use of the but for test: "but for" the wrongful act, the injury would not have occurred. Theoretically, causation in fact is limitless. One could claim, for example, that "but for" the creation of the world, a particular injury would not have occurred. Thus, as a practical matter, the law has to establish limits, and it does so through the concept of proximate cause. 2. Was the act the proximate 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. Courts use proximate cause to limit the scope of the defendant's liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant's actions. CAUSATION IN FACT: An act or omission without which an event would not have occurred.
Dram Shop Act
Many states have passed DRAM SHOP ACTS, under which a bar owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar. The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated. Some states' statutes impose similar liability on social hosts (persons hosting parties). Under a DRAM SHOP ACT, it is unnecessary to prove that a bar owner, bartender, or social host was negligent. 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.
Good Samaritan Statute
Most states have what are called GOOD SAMARITAN STATUTES. Under these statutes, someone who is aided voluntarily by another cannot turn around and sue the "Good Samaritan" for negligence. These laws were passed largely to protect physicians and medical personnel who volunteer their services in emergency situations to those in need, such as individuals hurt in car accidents. 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.
Appropriation
Most states today have codified the common law tort of appropriation of identity in statutes that establish the tort of APPROPRIATION, or right of publicity. States differ as to the degree of likeness that is required to impose liability for APPROPRIATION, however. Some courts have held that even when an animated character in a video or a video game is made to look like an actual person, there are not enough similarities to constitute APPROPRIATION. APPROPRIATION: In tort law, the use by one person of another person's name, likeness, or other identifying characteristics without permission and for the benefit of the user.
Assault
An ASSAULT is any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create in another person a reasonable apprehension of harmful contact. An ASSAULT can be completed even if there is no actual contact with the plaintiff, provided the defendant's conduct causes the plaintiff to have a reasonable apprehension of imminent harm. Tort law aims to protect individuals from having to expect harmful or offensive contact. ASSAULT: Any word or action intended to make another person fearful of immediate physical harm-a reasonably believable threat.
Slander of Quality (Trade Libel)
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 specifically referred to as SLANDER OF QUALITY or slander of title. 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. To establish TRADE LIBEL, the plaintiff must prove that the improper publication caused a third party to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result. An improper publication may be both a SLANDER OF QUALITY and a defamation of character. For example, a statement that disparages the quality of a product may also, by implication, disparage the character of the person who would sell such a product. SLANDER OF QUALITY (TRADE LIBEL): The publication of false information about another's product, alleging that it is not what its seller claims.
Assumption of Risk
A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. This is the defense of ASSUMPTION OF RISK, which requires two elements: 1. Knowledge of the risk. 2. Voluntary assumption of the risk. This defense is frequently asserted when a plaintiff is injured during recreational activities that involve known risk, such as skiing and skydiving. ASSUMPTION OF RISK can apply not only to participants in sporting events, but also to spectators and bystanders who are injured while attending those events. 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.
Privity of Contract
A product liability action based on negligence does not require privity of contract between the injured plaintiff and the defendant manufacturer. PRIVITY OF CONTRACT refers to the relationship that exists between the promisor and the promisee of a contract. Privity is the reason that normally only the parties to a contract can enforce that contract. In the context of product liability law, privity is not required. A person who is injured by a defective product can bring a negligence suit even though he or she was not the one who actually purchased the product—and thus is not in privity. A manufacturer is liable for its failure to exercise due care to any person who sustains an injury proximately caused by a negligently made (defective) product. PRIVITY OF CONTRACT: The relationship that exists between the promisor and the promisee of a contract.
Privilege
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: 1. absolute and, 2. qualified. Only in judicial proceedings and certain government proceedings is an absolute privilege granted. Thus, statements made in a courtroom by attorneys and judges during a trial are absolutely PRIVILEGED, as are statements made by government officials during legislative debate. In other situations, a person will not be liable for defamatory statements because he or she has a qualified, or conditional, PRIVILEGE. An employer's statements in written evaluations of employees are an example of a qualified PRIVILEGE. Generally, if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication, the statements fall within the area of qualified PRIVILEGE. PRIVILEGE: A special right, advantage, or immunity that enables a person or a class of persons to avoid liability for defamation.
Actionable
The tort of Intentional Infliction of Emotional Distress can be defined as extreme and outrageous conduct resulting in severe emotional distress to another. To be ACTIONABLE (capable of serving as the ground for a lawsuit), the conduct must be so extreme and outrageous that it exceeds the bounds of decency accepted by society. ACTIONABLE: Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action.
Slander
The tort of defamation involves wrongfully hurting a person's good reputation. The law has imposed a general duty on all persons to refrain from making false, defamatory statements of fact about others. Breaching the duty orally is the tort of SLANDER. SLANDER: Defamation in oral form.
Libel
The tort of defamation involves wrongfully hurting a person's good reputation. The law has imposed a general duty on all persons to refrain from making false, defamatory statements of fact about others. Breaching this duty in writing or another permanent form (such as a digital recording) constitutes the tort of LIBEL. LIBEL: Defamation in writing or another permanent form (such as a digital recording).
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. Often, when CONVERSION occurs, a trespass to personal property also occurs. The original taking of the personal property from the owner is a trespass, and wrongfully retaining the property is CONVERSION. CONVERSION is the civil side of crimes related to theft, but it is not limited to theft. If the rightful owner consented to the initial taking of the property, for instance, there was no theft or trespass, but a failure to return the personal property may still be CONVERSION. CONVERSION can occur even when a person mistakenly believes that she or he was entitled to the goods. Someone who buys stolen goods, for instance, can be sued for CONVERSION even if he or she did not know that the goods were stolen. If the true owner of the goods sues the buyer and wins, the buyer must either return the property to the owner or pay the owner the full value of the property. Note that the taking of electronic records and data can form the basis of a CONVERSION claim. CONVERSION: Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another.
Duty of Care
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 in society are free to act as they please so long as their actions do not infringe on the interests of others. When someone fails to comply with the duty to exercise reasonable care, a potentially tortious act may result. Failure to live up to a standard of care may be an act (setting fire to a building) or an omission (neglecting to put out a campfire). It may be a careless act or a carefully performed but nevertheless dangerous act that results in injury. In determining whether the DUTY OF CARE has been breached, courts consider several factors: 1. The nature of the act (whether it is outrageous or commonplace). 2. The manner in which the act was performed (cautiously versus heedlessly). 3. The nature of the injury (whether it is serious or slight). Creating even a very slight risk of a dangerous explosion might be unreasonable, whereas creating a distinct possibility of someone's burning his or her fingers on a stove might be reasonable. 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.
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 specifically referred to as slander of quality or slander of title. 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. To establish trade libel, the plaintiff must prove that the improper publication caused a third party to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result. An improper publication may be both a slander of quality and a defamation of character. For example, a statement that disparages the quality of a product may also, by implication, disparage the character of the person who would sell such a product. DISPARAGEMENT OF PROPERTY: An economically injurious falsehood about another's product or property.
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. Some jurisdictions have adopted a "pure" form of COMPARATIVE NEGLIGENCE that allows a plaintiff to recover, even if the extent of his or her fault is greater than that of the defendant. For instance, if a plaintiff was 80 percent at fault and the defendant 20 percent at fault, the plaintiff may recover 20 percent of his or her damages. Many states' COMPARATIVE NEGLIGENCE statutes, however, contain a "50 percent" rule that prevents a plaintiff from recovering any damages if she or he was more than 50 percent at fault. Under this rule, a plaintiff who is 35 percent at fault could recover 65 percent of his or her damages, but a plaintiff who is 65 percent at fault could recover nothing. 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.
Transferred Intent
Intent can be transferred when a defendant intends to harm one individual but unintentionally harms a different person. This is called TRANSFERRED INTENT. Alex swings a bat intending to hit Blake but misses and hits Carson instead. Carson can sue Alex for the tort of battery (discussed shortly) because Alex's intent to harm Blake can be transferred to Carson. 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.
Defamation
The freedom of speech guaranteed by the First Amendment to the U.S. Constitution is not absolute. In interpreting the First Amendment, the courts must balance free speech rights against other strong social interests, including society's interest in preventing and redressing attacks on reputation. The tort of DEFAMATION involves wrongfully hurting a person's good reputation. The law has imposed a general duty on all persons to refrain from making false, defamatory statements of fact about others. Breaching this duty in writing or another permanent form (such as a digital recording) constitutes the tort of libel. Breaching the duty orally is the tort of slander. The tort of DEFAMATION also arises when a false statement of fact is made about a person's product, business, or legal ownership rights to property. To establish DEFAMATION, a plaintiff normally must prove the following: 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. DEFAMATION: Anything published or publicly spoken that causes injury to another's good name, reputation, or character.
Negligence
The tort of NEGLIGENCE occurs when someone suffers injury because of another's failure to fulfill a required duty of care. In contrast to intentional torts, in torts involving NEGLIGENCE, the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The person's conduct merely creates a risk of such consequences. If no risk is created, there is no negligence. Moreover, the risk must be foreseeable—that is, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it. In determining what is reasonable conduct, courts consider the nature of the possible harm. Many of the actions giving rise to the intentional torts discussed earlier in the chapter constitute NEGLIGENCE if the element of intent is missing (or cannot be proved). To succeed in a NEGLIGENCE action, the plaintiff must prove each of the following: 1. Duty. The defendant owed a duty of care to the plaintiff. 2. Breach. The defendant breached that duty. 3. Causation. The defendant's breach caused the plaintiff's injury. 4. Damages. The plaintiff suffered a legally recognizable injury. NEGLIGENCE: The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
Business Tort
The torts known as BUSINESS TORTS generally involve wrongful interference with another's business rights. Business torts involving wrongful interference are generally divided into two categories: Category 1. wrongful interference with a contractual relationship and, Category 2. wrongful interference with a business relationship. Category 1. Wrongful Interference with a Contractual Relationship: 3 elements are necessary for wrongful interference with a contractual relationship to occur: 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. The body of tort law relating to intentional interference with a contractual relationship has expanded greatly in recent years. In principle, any lawful contract can be the basis for an action of this type. Category 2: Wrongful Interference with a Business Relationship: Businesspersons devise countless schemes to attract customers, but they are prohibited from unreasonably interfering with another's business in their attempts to gain a share of the market. There is a difference between competitive methods and predatory behavior- actions undertaken with the intention of unlawfully driving competitors completely out of the market. Attempting to attract customers in general is a legitimate business practice, whereas specifically targeting the customers of a competitor is more likely to be predatory. BUSINESS TORT: Wrongful interference with another's business rights and relationships
Intentional Tort
There are two broad classifications of torts: INTENTIONAL TORTS and unintentional torts (torts involving negligence). INTENTIONAL TORT result from the intentional violation of person or property (fault with intent). Negligence results from the breach of a duty to act reasonably (fault without intent). The classification of a particular tort depends largely on how the tort occurs (intentionally or negligently) and the surrounding circumstances. INTENTIONAL TORTS AGAINST PERSONS: Intent can be transferred when a defendant intends to harm one individual but unintentionally harms a different person. This is called transferred intent. EX: Alex swings a bat intending to hit Blake but misses and hits Carson instead. Carson can sue Alex for the tort of battery (discussed shortly) because Alex's intent to harm Blake can be transferred to Carson. INTENTIONAL TORTS AGAINST PROPERTY: Intentional torts against property include trespass to land, trespass to personal property, conversion, and disparagement of property. These torts are wrongful actions that interfere with individuals' legally recognized rights with regard to their land or personal property. The law distinguishes real property from personal property. Real property is land and things "permanently" attached to the land. Personal property consists of all other items, which are basically movable. Thus, a house and lot are real property, whereas the furniture inside the house is personal property. Cash, stocks, and bonds are also personal property. INTENTIONAL TORT: A wrongful act knowingly committed.
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 (though in an absolute sense it cannot be) objective. It is not necessarily how a particular person would act. It is society's judgment on how people should act. If the so-called reasonable person existed, he or she would be careful, conscientious, even tempered, and honest. The degree of care to be exercised varies, depending on the defendant's occupation or profession, her or his relationship with the plaintiff, and other factors. Generally, whether an action constitutes a breach of the duty of care is determined on a case-by-case basis. The outcome depends on how the judge (or jury, in a jury trial) decides a reasonable person in the position of the defendant would act in the particular circumstances of the case. Note that the courts frequently use the REASONABLE PERSON STANDARD in other areas of law as well as in negligence cases. Indeed, the principle that individuals are required to exercise a reasonable standard of care in their activities is a pervasive concept in many areas of business law. 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.
