BLAW CH 5

tortfeasor

(the one committing the tort) must intend to commit an act, the consequences of which interfere with the personal or business interests of another in a way not permitted by law. An evil or harmful motive is not required. In fact, the person committing the action (the actor) may even have a beneficial motive for committing what turns out to be a tortious act.

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 1. knowledge of the risk and 2. voluntary assumption of the risk. The risk can be assumed by express agreement, or the assumption of risk can be implied by the plaintiff's knowledge of the risk and subsequent conduct. Note that courts do not apply the assumption of risk doctrine in emergency situations.

design defect

A product "is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe."

Inadequate Warnings

A product will be considered defective "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Qualified Privilege

A qualified, or conditional, privilege exists when statements are made in good faith and communicated only to those who have a legitimate interest. For instance, an employer's statements in written employee evaluations are protected by qualified privilege.

Other Applications of Strict Liability

A significant application of strict liability is in the area of product liability—liability of manufacturers and sellers for harmful or defective products. Liability here is a matter of public policy and is based on three factors: 1. Consumers should be protected against unsafe products. 2. Manufacturers and distributors should not escape liability for faulty products simply because they are not in privity of contract (discussed shortly) with the ultimate user of those products. 3. Manufacturers, sellers, and lessors of products generally are in a better position than consumers to bear the costs associated with injuries caused by the products. They can ultimately pass on these costs to all consumers in the form of higher prices.

Manufacturing Defects

According to Section 2(a) of the Restatement (Third) of Torts a product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product." Basically, a manufacturing defect is a departure from a product's design specifications that results in products that are physically flawed, damaged, or incorrectly assembled. A glass bottle that is made too thin and explodes in a consumer's face has a manufacturing defect.

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 any damages. Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the defendant was not liable. Today, only a few jurisdictions still apply the contributory negligence doctrine.

causation

Another necessary element in a negligence action is causation. If a person fails in a duty of care and someone suffers an injury, the wrongful act must have caused the harm for the act to be considered a tort. In deciding whether the requirement of causation has been met, a court must address two questions: Was the defendant's conduct the cause in fact of the plaintiff's injury? Was it the proximate cause? Only when the answer to both of these questions is affirmative will liability be imposed.

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.

invasion of privacy

A person has a right to solitude and freedom from prying public eyes—in other words, to privacy. The Supreme Court has held that a fundamental right to privacy is implied by various amendments to the U.S. Constitution. Some state constitutions explicitly provide for privacy rights, as do a number of federal and state statutes. Tort law also safeguards these rights through the tort of invasion of privacy.

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—through aggressive marketing and advertising strategies, for instance—is a permissible interference even if it results in the breaking of a contract.

The Duty of Professionals

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 knowledge and training, for instance. In determining whether professionals have exercised 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.

Strict Product Liability

Recall that under the doctrine of strict liability, people may be liable for the results of their acts regardless of their intentions or their exercise of reasonable care. In addition, liability does not depend on privity of contract. The law imposes strict product liability as a matter of public policy.

Duty to Warn Business Invitees of Risks

Retailers and other firms that explicitly or implicitly invite persons to come onto their premises are usually charged with a duty to exercise reasonable care to protect those persons, who are considered business invitees. This duty normally requires a store owner to warn business invitees of foreseeable risks, such as construction zones or wet floors, about which the owner knew or should have known.

Obvious Risks Are an Exception

Some risks are so obvious that the owner need not warn of them. For instance, a business owner does not need to warn customers to open a door before attempting to walk through it. Other risks, however, may seem obvious to a business owner but may not be so to someone else, such as a child. Even if a risk is obvious, a business owner may still have a duty to protect customers from foreseeable harm.

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 (such as for pain and suffering), especially in medical malpractice suits. More than thirty states have limited punitive damages, with some imposing outright bans.

statement of fact or a statement of opinion

Statements of opinion normally are not actionable because they are protected under the First Amendment. I n other words, 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.

Abnormally Dangerous Activities

Strict liability for damages proximately caused by an abnormally dangerous activity is one application of this doctrine. Courts apply the doctrine of strict liability in such cases because of the extreme risk of the activity

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.

consent

When a person consents to the act that damages her or him, there is generally no liability

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.

proximate cause

When the connection between an act and an injury is strong enough to justify imposing liability, proximate cause, or legal cause, exists. Judges 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.

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 may also be called trespass to chattels or trespass to personalty. In this context, harm means not only destruction of the property, but also anything that diminishes its value, condition, or quality.

wrongful interference

Wrongful interference with another's business rights is generally divided into two categories: wrongful interference with a contractual relationship and wrongful interference with a business relationship.

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. If the plaintiff is a public figure, she or he must prove actual malice.

compensatory damages

are intended to compensate or reimburse plaintiffs for actual losses—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 special damages and general damages.

torts

are wrongful actions that can lead to civil liability. (Tort is the French word for "wrong.") Any time that one party's allegedly wrongful conduct causes injury to another, an action may arise under the law of torts. Part of doing business today—and, indeed, part of everyday life—is the risk of being involved in a lawsuit. Any time that one party's allegedly wrongful conduct causes injury to another, a lawsuit may arise under the law of torts. Through tort law, society compensates those who have suffered injuries as a result of the wrongful conduct of others.

gross negligence

can be defined as an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another.

defamation

character 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. The tort of defamation can also arise when a false statement of fact is made about a person's product, business, or legal ownership rights to property.

special damages

compensate the plaintiff 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.

personal property

consists of all other items, which are basically movable

The Restatement (Third) of Torts Products Liability

defines the three types of product defects that have traditionally been recognized in product liability law—manufacturing defects, design defects, and inadequate warnings.

defenses

Even if a plaintiff proves all the elements of a tort, the defendant can raise a number of legally The defenses available vary depending on the specific tort involved. A common defense to intentional torts against persons, for instance, is consent, statue of limitation

The Injury Requirement and Damages

For tort liability to arise, the plaintiff must have suffered a legally recognizable injury. That is, to recover damages, the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. Essentially, the purpose of tort law is to compensate for legally recognized injuries resulting from wrongful acts. If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists.

categories of torts

Four general types of torts are intentional torts, negligence, strict liability, and product liability.

purpose of tort law

Generally, the purpose of tort law is to provide remedies for the violation of various protected interests. Society recognizes an interest in personal physical safety. Thus, tort law provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement. Society also recognizes an interest in protecting property, and tort law provides remedies for acts that cause destruction of or damage to property.

to sue for invasion of privacy

Generally, to sue for invasion of privacy, a person must have a reasonable expectation of privacy, and the invasion must be highly offensive.

malpractice

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.

battery

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

strict liability and product liability

In addition, in certain circumstances, strict liability (liability without fault) or product liability (liability for damage caused by defective products) may be imposed.

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 on how people should act. If the so-called reasonable person existed, he or she would be careful, conscientious, even tempered, and honest.

The Duty of Landowners

Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm. In some jurisdictions, landowners are held to owe a duty to protect even trespassers against certain risks. Landowners who rent or lease premises to tenants are expected to exercise reasonable care to ensure that the tenants and their guests are not harmed in common areas, such as stairways, entryways, and laundry rooms.

statute of limitations

Most states have a statute that establishes a 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 has expired, the plaintiff can no longer file a claim. The most widely used defense in negligence actions is comparative negligence

Appropriation

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 to impose liability for appropriation, however. Some courts have held that 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.

damages

Once a defendant's liability for libel is established, a plaintiff is normally entitled to general damages. General damages are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the community, humiliation, injured reputation, and emotional distress—harms that are difficult to measure. In other words, to recover damages in a libel case, the plaintiff need not prove that she or he was actually harmed in any specific way as a result of the libelous statement.

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.

Product Misuse

which occurs when a product is used for a purpose for which it was not intended. The courts have severely limited this defense, however, and it is now recognized as a defense only when the particular use was not reasonably foreseeable. If the misuse is foreseeable, the seller must take measures to guard against it.

real property

is land and things "permanently" attached to the land.

false imprisonment

is the intentional confinement or restraint of another person's activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force. Moral pressure or threats of future harm do not constitute false imprisonment. It is essential that the person under restraint does not wish to be restrained.

Causation in fact

is usually 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 instance, 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.

strict liability

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.

punitive damages

may also be awarded 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 (bad) or reprehensible (unacceptable). Usually, this means that punitive damages are available mainly in intentional tort actions and only rarely in negligence lawsuits. They may be awarded, however, in suits involving product liability or gross negligence

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. Change font size

in a case alleging slander

the plaintiff must prove special damages to establish the defendant's liability. That is, the plaintiff must show that the slanderous statement caused the plaintiff to suffer actual economic or monetary losses. Exceptions to the burden of proving special damages in cases alleging slander are made for certain types of slanderous statements. For instance, a statement that another has committed improprieties while engaging in business is considered slander per se and is actionable without proof of special damages.

unreasonably dangerous product

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.

Depending on the jurisdiction, if these requirements are met, a manufacturer's liability to an injured party can be almost unlimited.

1. The product must be in a defective condition when the defendant sold it. 2. The defendant must normally be engaged in the business of selling (or otherwise distributing) that product. 3. The product must be unreasonably dangerous to the user or consumer because of its defective condition. 4. The plaintiff must incur physical harm to self or property by use or consumption of the product. 5. The defective condition must be the proximate cause of the injury or damage. 6. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

conversion

Any act that deprives an owner of personal property or the use of that property without that owner's permission and without just cause can constitute conversion. Even the taking of electronic records and data can be a form of conversion. Often, when conversion occurs, a trespass to personal property also occurs. The original taking of the personal property from the owner was a trespass, and wrongfully retaining it is conversion. Conversion is the civil side of crimes related to theft, but it is not limited to theft.

Assumption of Risk

Assumption of risk can sometimes be used as a defense in a product liability action. To establish this defense, the defendant must show that 1. the plaintiff knew and appreciated the risk created by the product defect and 2. the plaintiff voluntarily assumed the risk, even though it was unreasonable to do so.

tort of libel (defamation)

Breaching this duty in writing or in another permanent form (such as a digital recording)

slander (defamation)

Breaching this duty orally

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 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 have been committed.

Defenses to Negligence

Defendants often defend against negligence claims by asserting that the plaintiffs failed to prove the existence of one or more of the required elements for negligence. Additionally, there are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states). These defenses are 1. assumption of risk, 2. superseding cause, and 3. contributory and comparative negligence.

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.

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.

monetary damages or other relief for the harm suffered

Tort law is designed to compensate those who have suffered a loss or injury due to another person's wrongful act. In a tort action, one person or group brings a suit against another person or group to obtain compensation Tort actions are not criminal actions, and tort lawsuits are handled in civil courts.

actionable

The tort of intentional infliction of emotional distress can be defined as an extreme and outrageous act, intentionally committed, that results 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.

product liability

Those who make, sell, or lease goods can be held liable for physical harm or property damage that those goods cause to a consumer, user, or bystander.

Wrongful Interference with a Contractual Relationship

Three 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.

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.

To successfully assert a design defect

a plaintiff has to show that a reasonable alternative design was available and that the defendant's failure to adopt the alternative design rendered the product unreasonably dangerous. In other words, a manufacturer or other defendant is liable only when the harm was reasonably preventable.

Comparative Negligence (Fault)

fault, can also affect strict liability claims. Today, courts in many jurisdictions consider the negligent or intentional actions of both the plaintiff and the defendant when apportioning liability and damages. A defendant may be able to limit some of its liability if it can show that the plaintiff's misuse of the product contributed to his or her injuries.

privilege

immunity Privileged communications are of two types: absolute and qualified. Only in judicial proceedings and legislative hearings is an absolute privilege granted. In these situations, privilege is intended to enable people to speak freely.

transferred intent

intent can be transferred when a defendant intends to harm one individual, but unintentionally harms a second person.

assault

is any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat. An assault can occur even if there is no actual contact with the plaintiff, provided that the defendant's conduct creates a reasonable apprehension of imminent harm in the plaintiff. Tort law aims to protect individuals from having to expect harmful or offensive contact.

trespass to land

occurs when 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.

tort of negligence

occurs when someone suffers injury because of another's failure to live up to 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. risk must be foreseeable

fraudulent misrepresentation,

or fraud, involves intentional deceit for personal gain. The tort includes several elements: 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. A 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. For instance, it is fraud to claim that the roof of a building does not leak when one knows that it does. Facts are objectively ascertainable, whereas seller's talk (such as "I am the best accountant in town") is not.

puffery

or seller's talk, must be involved.

Three Types of Quality Control

preventive, concurrent, and feedback. They apply at different stages of the manufacturing process: preventive quality control occurs before the process begins, concurrent control takes place during the process, and feedback control occurs after it is finished.

Privity of Contract

refers to the relationship that exists between the parties to a contract. Privity is the reason that only the parties to a contract normally can enforce that contract

intentional torts

requires intent, a wrongful act knowingly committed

intentional tort

result from the intentional violations of person or property (fault plus intent).

negligence

results from the breach of a duty to act reasonably (fault without intent).