5. Torts

Respondeat Superior

"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment.

Damages (negligence)

In order to prevail on a negligence claim, Plaintiff must prove he suffered cognizable personal injury or property damage. To be recoverable, damages must be reasonably FORESEEABLE, proven w/reasonable CERTAINTY, and UNAVOIDABLE.

Intrusion of Solitude

Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person.

False Light

Invading a person's privacy by implying something untrue about him or her in a negative way.

Appropriation of Name or Likeness

It occurs when an individual's name or likeness is used by others without consent and for their own commercial or other ends.

Vicarious Liability

Legal responsibility placed on one person for the acts of another.

Public Disclosure or Private Facts

Taking private information that one knows about another person and disclose it to a lot of other people. It may be true facts, but it is private.

Breach (negligence)

The defendant breached that duty. Res ipsa loquitur.

Causation (negligence)

The defendant's breach caused the plaintiff's injury. ° But For Causation: But for your negligence, this thing wouldn't have happened. ° Proximate Causation: Not just would this have happened but for your negligence, but was this a foreseeable injury with regard to your particular duty of care and your particular negligence.

Transferred intent for assault and battery

For example, if you go to hit one person and in the process you hit a different person, your intent to hit the first person still carries over to the second person and the second person could sue you for intentional tort.

Shopkeeper's Defense

If someone is in your store and you have reason to believe that they are committing a shoplifting crime, you can hold them at the store for a reasonable period of time, in a reasonable manner, until the police get there.

True or False: There are NO defenses available for strict liability?

True.

False Imprisonment

Unlawful restraint or restriction of a person's freedom of movement.

The doctrine of respondeat superior can be used by an injured party to hold (A) an employer responsible for the torts of its employee (B) an employee responsible for the torts of its employer (C) a manufacturer liable for a defective product (D) a retailer liable for selling a defective product (E) a wholesaler liable for a defective product

(A) an employer responsible for the torts of its employee

If a large company induces an employee at a small corporation to breach her employment agreement and work for the large company, then the small corporation may do which of the following? (A) Bring a suit against the large company for the tort of bad faith. (B) Bring a suit against the large company for the tort of intentional interference with contractual relations. (C) Bring a suit against the employee for the tort of intentional interference with contractual relations. (D) Bring a suit against the employee to try to recover all the past wages and compensation it paid to the employee. (E) Bring a suit against the large company for breach of contract.

(B) Bring a suit against the large company for the tort of intentional interference with contractual relations.

Which of the following is true about the concept of strict liability? (A) It requires proof of intent. (B) It does not require a showing of negligence (C) It is a concept related to the sale of stock. (D) It does not apply to the third-party bystanders (E) It requires privity of contract

(B) It does not require a showing of negligence.

Florence, after shopping in Jesse's store, attempts to leave with merchandise concealed under her coat that she has not purchased. Jesse stops Florence, finds the merchandise, and brings her into the back room of the store. He then proceeds to search the rest of her bags and to lecture her on the evils of shoplifting for four hours before calling the police. Florence subsequently sues Jesse. Which of the following statements about the incident is true? (A) Jesse cannot be liable to Florence because Florence was herself breaking the law and therefore caused the incident. (B) Jesse may be liable to Florence even though she shoplifted because he held her too long before calling the police. (C) Jesse may be liable to Florence because he was not a police officer and was therefore not permitted to hold Florence against her will. (D) Jesse cannot be liable to Florence because Florence was contributorily negligent. (E) Both B and C are true.

(B) Jesse may be liable to Florence even though she shoplifted because he held her too long before calling the police.

Barry sneaks up behind Caesar and hits him over the head with a bat. Caesar suffers a concussion and incurs damages exceeding $50,000.00. Under these facts, Caesar will most likely win a suit against Barry for (A) assault (B) battery (C) conversion (D) false imprisonment (E) negligence

(B) battery

Proximate cause means that the (A) defendant will be held liable for all the damages caused by his breach of duty (B) defendant will be held liable for only those damages that were reasonably foreseeable and a natural and probable consequence of his breach of duty (C) plaintiff's injury would not have occurred but for the defendant's breach of duty (D) plaintiff's injury would not have occurred unless the defendant's breach of duty was a substantial factor in bringing about the injury (E) plaintiff's injury occurred because of the defendant's breach of duty

(B) defendant will be held liable for only those damages that were reasonably foreseeable and a natural and probable consequence of his breach of duty

Sam was spending his vacation at a local ski resort. While skiing down a groomed run, he noticed an area off to the side that went into the woods. At the entrance to this area, Sam saw two red sticks stuck into the snow in the form of an upright X. Being of a curious nature, Sam skied over and looked into the woods and wondered what was in there. He decided to ski in. After a short distance, he fell into a crevice that was hidden by the snow cover. Sam was found quickly, but he suffered hypothermia and frostbite on his toes. Should Sam sue the resort for his injuries? (A) Yes. He will win because the resort is liable for injuries to people who pay to use their facilities. (B) Yes. He will win because the resort should have had a sign specifically explaining why the area was dangerous and what would happen if a person entered the area. (C) No. He will lose based on the defense of assumption of the risk, since the danger was obvious, and he decided to proceed anyway. (D) No. He will lose because the resort is a private recreation facility and is immune from a lawsuit. (E) No. He will lose based on the insanity defense, since he had to be insane to go outside the groomed areas.

(C) No. He will lose based on the defense of assumption of the risk, since the danger was obvious, and he decided to proceed anyway.

Under which of the following situations would a principal be liable for the tortious act of its agent under the doctrine of respondeat superior? (A) The agent had no authority (actual or apparent) to commit the act. (B) The agent's act was a criminal act against a third person, and the principal had not directed the act and had no knowledge of the agent's propensity to commit such an act. (C) The agent was an employee of the principal and the act was within the scope of the employee's duties. (D) The agent was an independent contractor acting without authority. (E) The agent, an employee of the principal, caused an automobile accident after he deviated greatly from his assigned delivery route.

(C) The agent was an employee of the principal and the act was within the scope of the employee's duties.

Sheila is given a company car by her employer in order to travel around town and inspect job sites that she manages for the company. On her way home after work coming from one of the job sites, she gets into an accident while driving the car, and the driver of the other car sues her. Which of the following statements is not true? (A) Sheila may be liable for negligent driving. (B) The company may be vicariously liable for Sheila's negligence. (C) The company cannot be held liable because the accident occurred after work hours and so was not in the scope of employment. (D) Sheila may be able to avoid liability if the other driver was also negligent. (E) Sheila may potentially be liable for punitive as well as compensatory damages.

(C) The company cannot be held liable because the accident occurred after work hours and so was not in the scope of employment.

Which of the following elements is NOT necessary to establish liability for negligence? (A) Proximate cause (B) Breach of duty (C) Injury (D) Malice (E) Foreseeability

(D) Malice

Manuel is hired by Star Players Theater to design and maintain the theatre's Web site. Mango Theater learns of Manuel's work and convinces him to leave Star Players to come work for Mango. Mango Theater is probably liable for the tort of (A) misappropriation (B) unfair competition (C) breach of contract (D) wrongful interference with a contractual relationship (E) disparagement of a business relationship

(D) wrongful interference with a contractual relationship.

Ordinarily an employer is liable for which of the authorized acts committed by an employee for the benefit of the employer and in the scope of the employment? I. Torts II. Contracts III. Misrepresentations (A) I only (B) II only (C) III only (D) II and III only (E) I, II, and III

(E) I, II, and III

Which of the following is not an essential element of a cause of action for negligence? (A) The defendant owed a duty to the plaintiff. (B) The defendant's behavior with regard to the plaintiff was objectively unreasonable. (C) The plaintiff suffered injury. (D) The defendant's behavior caused plaintiff's injury. (E) The defendant failed to help the plaintiff once the injuries were caused.

(E) The defendant failed to help the plaintiff once the injuries were caused.

Smith suddenly attacks Jones as Jones walks down the street. In this case, Smith has committed (A) negligence (B) a contractual act (C) a criminal act only (D) a tortious act only (E) a criminal act and a tortious act

(E) a criminal act and a tortious act

Ed lives in Maine, a state that has a so-called merchant protection statute (or shopkeeper's privilege). One day Ed goes to the grocery store to shoplift some steaks for dinner. The owner of the grocery store catches Ed red-handed in the act of shoplifting. He and an employee gently restrain Ed in the back room, feeding him gourmet food and wine until the local sheriff finally shows up three days later. If Ed sues the grocer for the tort of false imprisonment, he will win if he can prove that (A) he did not intend to steal the steaks (B) the gourmet food that he was fed was poorly prepared (C) the grocer had no authority from the sheriff to hold him (D) the grocer detained him for a reasonable time after reasonably suspecting him of shoplifting (E) the grocer detained him for an unreasonable time after reasonably suspecting him of shoplifting

(E) the grocer detained him for an unreasonable time after reasonably suspecting him of shoplifting

Strict Liability Tort

A civil wrong that occurs when a defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. The defendant is liable for the plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent.

Res Ipsa Loquitur

A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

Frolic and Detour

A situation in which an employee does something during the course of his or her employment to further his or her own interests rather than the employer's.

Intentional Tort

A tort committed by one who intends to do the act that creates the harm.

Tort

A wrongful act or an infringement of a right (other than under contract) that one party does to another, leading to civil legal liability.

Defamation

Act of harming or ruining another's reputation through false statements (slander or libel) and is communicated to another.

Battery

An assault or an array of similar things causing some sort of harm or injury. ° Harmful contact; intention; causation. ° Specific or general intent sufficient. ° No need to show harm, just the act its enough to sue.

Intentional Infliction of Emotional Distress

An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

Prima Facie

Based on the first impression; accepted as correct until proved otherwise; must show all basic elements. It would mean I have presented as the plaintiff enough evidence up front, if it were all true, to demonstrate that a tort has been committed.

Negligence

Failure to take proper care in doing something.

Duty (negligence)

The duty to exercise reasonable care in the situation.

What do privacy torts require?

They require a reasonable expectation of privacy.

Assault

Threat or attempt to injure another in an unlawful manner. Reasonable apprehension of imminent contact; intentional; causation.

Slander

spoken defamation.

Libel

written defamation.

Defenses to Intentional Torts

° Consent ° Self Defense ° Defense of Others ° Defense of Property ° Necessity ° Discipline

Defenses (negligence)

° Contributory negligence : plaintiff contributed to the harm. ° Comparative negligence: hurt is asked to determine what percent at fault was the plaintiff versus the defendant; may reduce damages but not eliminate altogether. ° Assumption of risk: idea is yes you were harmed, but you assumed the risk of being harmed by entering a particular location or engaging in a particular activity.

Exceptions to Vicarious Liability

° Frolic and Detour ° Intentional Torts (unless in furtherance of employer's business)

Absolute duty of care

° Imposed by statute or by court for ultra-hazarddous activity or products liability ° Products Liability: commercial seller's duty to buyer or user.

Four Basic Tort Types

° Intrusion of Solitude ° Appropriation of Name or Likeness ° Public Disclosure of Private Facts ° False Light

Interference with Contractual/Business Relations

° Valid contractual and business relationships. ° Defendant knew of relationship and intentionally interfered. ° Damages

What is the level of intent for defamation?

° With either negligent (private figure) or reckless (public figure) disregard for its truth or falsity. ° Damages (presumed for libel and certain slanders).