Tort Law (Chapter 10)

risk utility test

Used to see if manufacturer was negligent in adopting a negligent design, the magnitude of the danger outweighs the utility of the product

assault

intentional tort, any intentional and unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive physical contact. The interest the law protects here is the freedom from having to expect harmful or offensive contact

"but for" test

"but for" the defendant's wrongful act, the plaintiff's injury would not have occurred.

Implied warranties

(UCC/ sale of goods) warranties imposed by law that arise automatically when the sale is made

warranty

A confirmation of the quality or performance of a good or service, A statement indicating the liability of the manufacturer for product deficiencies.

express warranties

Affirmation of fact or promise flowing from the free will of the seller, Provision of a sample or model words, sample, model a promise that expressly affirms or describes the goods and that seller is part of the basis of the bargain is an express warranty unless it's the seller's opinion

trespass criteria

Before a person can be a trespasser, the owner of the land must establish that person as a trespasser. For example, the use a "posted" sign would establish the person as a trespasser. Any person who enters on your property to commit an illegal act is established implicitly as a trespasser even in the absence of "posted" signs-for example, a thief who intends to burglarize your house. The instructor may want to discuss the appropriate level of force to remove the trespasser. Under common law, a trespasser is liable for damages caused to property. However, the instructor should point out that the common law rule is changing to a reasonable person standard based upon the status of the parties-for example, attractive nuisances and children.

statute or common law duty test

Common law and statutes establish the standard of care, , because a standard of care can be set by statute, a breach of the statute is a breach of the standard of care. For example, anyone who breaches a traffic ordinance breaches the standard of care.

market share liability

If multiple manufacturers produce identical products, the court may allocate liability on the basis of each defendant's share of the market, asbestos

foreseeability test (scope of liability)

If the victim of the harm or the consequences of the harm done are unforeseeable, then there is no proximate cause. Thus, proximate cause (acts to limit damages) exists when the connection between an act and an injury is strong enough to justify imposing liability.

implied warranty of merchantability

The seller is a merchant, The good must be merchantable (meaning one of the following) i.Passes without objection in the trade ii.Fair or average quality iii.Fit for the ordinary purpose for which the good was intended iv.Even kind or quality v.Labeled, contained, or packaged as the law requires or vi.Conform to any affirmation of fact or promise made on the label or container Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchantwith respect to goods of that kind.

negligence (product liability)

To prove negligence for product liability, plaintiff must show that the defendant did not use reasonable care in designing or manufacturing its product or failed to provide adequate warnings or to comply with statutory requirements.

false light

Widespread dissemination of a material falsehood that would be highly offensive to a reasonable person - this can overlap with defamation, but not always

strict liability tort

a civil wrong that involves taking action that is so inherently dangerous under the circumstances of its performance that no amount of due care can make it safe, usually imposed by law, assigns liability to the tortfeasor regardless of fault.

reasonable person standard

a court would ask how a reasonable person (careful, conscientious, even tempered, and honest) would act in the same circumstances.

intentional infliction of emotional distress

an intentional act that amounts to extreme and outrageous conduct that results in severe emotional distress to another. The interest the law protects is to be free from behavior (extreme and outrageous conduct) that causes emotional harm, such as one person "stalking" another.

proximate cause

apply foreseeability test/ scope of liability,is the reasonable causal connection between the defendant's conduct and plaintiff's injury

breach of duty of care

apply reasonable person standard, Generally, courts consider the nature of the act, the manner in which the defendant performed the act, and the nature of the plaintiff's injury in determining whether the defendant breached the duty of care.

duty of care

apply statute or common law duty test, Generally, the duty of care arises from the belief that if we are to live in society with other people, society can tolerate some actions and some it cannot. Additionally, society requires that we use reasonable care in our dealings with others. Essentially, it is society's judgment on how people should act.

causation

apply the "but for" standard, In determining the existence of causation, the courts examine the following questions. Is there causation in fact? Did the injury occur because of the defendant's act or would the injury have occurred anyway?

economic damages

are considered special damages and include loss and diminished wages and medical expenses. These damages must be proved at trial to recover compensation. This type of damages will cover those expenses that arise as a result of the injury.

Negligence per se

can skip duty of care and breach of duty, allows a court to infer negligence where an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. For the doctrine to apply, the statute must clearly set out (1) the standard of conduct, (2) when and where the conduct is expected, and (3) of whom the conduct is expected. Additionally, the plaintiff must demonstrate that the statute is designed to prevent the injury suffered and that the plaintiff falls within the class of people the statute protects.

negligence tort

consist of harm caused by careless acts or failure to perform a legal duty

pain and suffering

damages designed to compensate an individual for the trauma of an accident. They include, for example, physical pain, psychological suffering, and loss of consortium. Often pain and suffering damages are difficult to quantify and are the subject of much debate in court cases. Because calculation of the damages is subjective, judges and attorneys (for settlement purposes) use certain rules of thumb. For example, in Louisiana, a plaintiff with a sprained back or neck typically receives $1,500 to $2,000 dollars a month for pain and suffering for each month the plaintiff saw a doctor, plus compensatory damages. In other states, the courts often use a multiplier factor; for example, if the multiplier is 3 and the plaintiff's medical bills amounted to $1,000, the plaintiff would receive $3,000 for pain and suffering, plus compensatory damages. Both approaches may lead the unscrupulous plaintiff to seek unnecessary medial treatment.

implied warranty of fitness for a particular purpose

doesn't require a merchant a. At the time of purchase, the purchaser must have a unique purpose for the good (not its everyday use) b.Seller must have reason to know of the buyer's unique purpose c.Seller must have reason to know that the buyer is relying on the seller's skill or judgment d.Buyer must actually rely on the seller's skill or judgment e.Buyer must suffer legal injury

fit for its ordinary purpose

fit for its purpose using the standards of the trade, would a member of the industry accept it?

Strict liability

for ultrahazardous or abnormally dangerous activities, a court imposes liability for injury for reasons other than fault. If a person engages in an abnormally dangerous activity, that person will be liable if any harm results. Abnormally dangerous activities have three characteristics. First, the potential for serious harm is great. Second, the risk involved cannot be eliminated with the exercise of reasonable care. Third, the activity is not performed commonly in the community. Thus, responsibility is imposed because of the activity's nature and not because any fault is involved. Workers compensation statutes and product liability laws involve strict liability.

Compensatory

i. Economic ii. Pain and suffering iii. Punitive damages designed to make the plaintiff whole and restore her to a position she was in before the wrong against her was committed. Compensatory damages include reimbursement for hospital bills, lost wages, and property damage. Thus, the bills for these items constitute proof of the damages. Furthermore, because often these expenses have to be projected for severely injured people, the courts rely upon experts, such as economists, to project, for example, the cost of medical care over the course an individual's life.

strict liability for defective products

i.Seller must be engaged in the manufacturing or selling of that product ii.Product must be unreasonably dangerous to the user or consumer because of its defective condition iii.Defective condition must be the cause of the injury iv.Goods must not have been substantially changed from the time the product was sold until the time the injury occurred v.Plaintiff must have suffered a legally recognizable injury

Common law factors for ultrahazardous activities

i.Whether involves high degree of risk of harm to property or others ii.Whether potential harm is likely to be great iii.Whether risk can be eliminated by exercise of reasonable care iv.Whether activity is matter of common usage v.Whether activity is appropriate to place where conducted vi.Whether activity has substantial value to community that outweighs its dangerous attributes

Intentional tort

injuries caused by intentional acts

defamation

intentional tort, character involves wrongfully harming a person's good reputation. Oral defamation is slander; written defamation is libel. In libel cases, the plaintiff need only prove general damages to recover, but in cases of slander the plaintiff must prove actual monetary loss. In a business context, defamation also occurs when a false statement is made about a business, a business' product (disparagement of goods), or its title to property (slander of title). False statements made via the Internet are actionable. For example, when an owner's database fails to correct erroneous information, say a credit history, the business damaged by that error could sue for defamation by computer.

fraud

intentional tort, involves intentional deceit that leads another to believe in a circumstance that is different from the circumstance that actually exists. Misrepresentation of facts with the knowledge that the facts are false or made with a reckless disregard for the truth. Intent to induce another to rely on the misrepresentation. Justifiable reliance by the deceived party on the factual misrepresentation. Damages suffered by plaintiff because of the reliance on the misrepresentation, and a causal relationship between the misrepresentation and the injury suffered.

trespass

intentional tort, occurs whenever a person without permission or legal authorization enters onto, above, or below the surface of land that another owns; causes anything to enter onto the land; causes anything to remain on the land; or some combination of these. Actual harm to the land is not an essential element of trespass.

invasion of privacy

intentional tort, privacy involves an intentional act that invades a person's right to be left alone. Essentially, tort law protects a person's right to solitude and freedom from prying public eyes. For example, the use of a person's name, picture, or other likeness for commercial purposes without permission constitutes the tort of appropriation. Another example is the intrusion into an individual's affairs when the person has a reasonable expectation of privacy. Finally, publication of information that places a person in a false light, or public disclosure of private facts about an individual that an ordinary person would find objectionable, is an invasion of privacy

battery

is the completion of the act that caused the apprehension, if it results in harm to the plaintiff. Therefore, a battery is an unexcused and harmful physical contact intentionally performed. The interest tort law protects concerning battery is the right to personal security and safety. Physical injury need not occur. Courts use a reasonable person standard to determine whether the contact is offensive or not.

Merchant

means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Damages

must be real, apply legal injury test, For a tort to occur, the plaintiff must suffer a legally recognizable injury. In other words, to recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. Typically, if the plaintiff proves his case, the plaintiff can recover compensatory damages and damages for pain and suffering. In rare instances, the court can award the plaintiff punitive damages, which are money damages that the court awards to the plaintiff to punish the defendant.

punitive damages

quasi-criminal in nature. Courts use punitive damages to punish the wrongdoer and promote a deterrent effect on both the wrongdoer and others-in short, society finds this type of behavior intolerable. In an intentional tort case, courts may award punitive damages in addition to compensatory damages and damages for pain and suffering

merchant

regularly deal with selling these types of goods A business or person who deals regularly in the sale of goods or who has specialized knowledge of goods.

Negligence res ispa loquitor

the defendant exclusively controlled the harm, is Latin for the "facts speak for themselves." The doctrine allows the court to infer negligence and so shift the burden of proof to the defendant who must then prove he or she was not negligent. Typically, the doctrine is applied only when the event creating the damage or injury is one that ordinarily does not occur in the absence of negligence. In addition, the event must not have been the result of any voluntary action or contribution on the part of the plaintiff, and the defendant must owe the plaintiff a duty of reasonable care

false imprisonment

the intentional confinement or restraint of another person's activities without justification. The interest the law protects here is the freedom to move without restraint. The confinement can consist of physical barriers, physical restraint, or threats of physical force. However, moral pressure and threats of future harm do not constitute false imprisonment. For the tort to apply, it is essential that the person being restrained not comply with the restraint willingly. Generally, a merchant can defend a false imprisonment case if the merchant had probable cause to justify detaining a suspected shoplifter and the merchant restrained the suspect in a reasonable manner and for a reasonable length of time.

Product liability claims

the legal liability manufacturers and suppliers have for defective products that injure a purchaser, user, bystander, or property. Liability extends to anyone in the chain of distribution: manufacturers, distributors, wholesalers, and retailers. The general trend is towards strict product liability.

negligence

the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. Thus, many of the intentional torts discussed, if committed carelessly and without intent, would constitute negligence.

service liability

used against service providers such as doctors or accountants: fraud, breach of contract, negligence (malpractice) The obligation of a company to make restitution for loss related to personal injury, property damage or other harm caused by its product or service.