BLAW Final Exam for Tort Law

breaching it in print or media (and internet) is

libel

a ____ figure is one who has access to the media to get his or her own view across - think Kim Kardashian

limited-purpose public

Must judge tortfeasor's conduct against the conduct of a "_____" That person must act as a reasonable person should act under the same or similar circumstances. The Court/judge determines what is reasonable under circumstances.

reasonable person

Orally breaching this duty is

slander

Compensatory damages are broken down into what two categories?

special and general

Liability without fault

strict liability

A legal doctrine that says that some activities are so dangerous that liability will always follow any injury that results from those activities.

strict liability (defective product + injury = liability)

sometimes we assess blame/fault even if TF is not negligent or acted intentionally called ____. So in products liability even if manufacturer of product has taken every precaution if he sells a product that is defective and it causes injury he is _______.

strict liability; liable

If public figures believe media has injured their reputation they must show "actual malice", What is actual malice?

the statement was made with either knowledge of falsity or reckless disregard for the truth.

Defenses to Negligence.

Assumption of Risk. Assumption of the risk can be express or implied. When you go to a Red's game - do you impliedly assume the risk of being hit with a foul ball?

_____ is the completion of the Assault: -Intentional or Unexcused. -Harmful, Offensive or Unwelcome, Physical Contact.

BATTERY (Plaintiff may be compensated for physical and emotional harm.)

Assault or Battery? If the other driver started hitting your car with his/her car;

Battery - harmful or offensive contact with another person (or their car)

Causation is both:

Causation in Fact, and Proximate Cause.

Defamatory(when false) or Not defamatory? Calling a TV show participant a "local loser," "chicken butt" and "big skank"

Not defamatory

Defamatory(when false) or Not defamatory? Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Not defamatory

What type of law are these examples of? -Car accidents caused by careless drivers that injure other motorists/pedestrians -Medical malpractice - again resulting in bodily injury (or personal injury)

Tort Law

_____occurs when a person, without permission: Physically enters onto, above or below the surface of another's land; or Causes anything to enter onto the land; or Remains, or permits anything to remain, on the land

Trespass to Land

True/False False imprisonment can be a threat.

True

True/False Damages for personal injury are NOT taxable

True (not seen as income)

What is defamation?

Wrongfully hurting a person's good reputation. Law imposes duty to refrain from making false statements of fact about others.

Louis—larger and stronger than Mica—threatens to hit Mica before hitting and injuring him. Mica files a suit against Louis for assault and battery. Mica will most likely recover for a. assault and battery. b. assault but not battery. c. battery but not assault. d. neither assault nor battery.

a. assault and battery.

Tortfeasor is the term for a person who commits a tort. a.True b.False

a.True

Published statement must be a ____ Opinions are protected speech under the ___ Amendment, and not actionable.

fact. ; First

TORTS can be examined on a _____

fault/blame continuum (We have no problem assessing blame if someone intends the act that causes injury. But we also assess blame/fault if someone is careless and causes harm)

Reasonable Person Standard: A _____is one in which the reasonable person would anticipate and guard against

foreseeable risk

The total compensation P can get in a personal injury claim is called "____". It is usually based on medical expenses/lost wages

general damages

Opinion or Fact? They continued to bill me for monies that I did not owe

fact

What is one place where criminal law intersects with civil/tort law?

Assault and battery is a crime - and a tort (civil wrong or harm)

causation in fact is usually determined by the ____ test, i.e., but for the Defendant's act the injury would not have occurred

"but for"

Defenses to Trespass to Land:

- Consent - License to use - temporary - Contrast with easement - permanent right to use

List some intentional Torts?

-Assault/Battery - False Imprisonment -Intentional infliction of emotional distress -Defamation

Elements of Fraudulent Misrepresentation?

-Misrepresentation of material fact; -Intent to induce another to rely; -Justifiable reliance by innocent party; -Damages as a result of reliance; -Causal connection.

False Imprisonment is the intentional:

1) Confinement or restraint. 2) Of another person's activities. 3) Without justification

4 Defenses to Assault and Battery.

1) Consent (surgery is battery - unless...) 2) Self-Defense (reasonable force). 3) Defense of Others (reasonable force). 4) Defense of Property (interesting issue)

Duty of Landowners/Occupiers:

1) Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known) 2) Duty to discover and remove hidden dangers that might injure invitees. EXCEPTION: Open and Obvious Risks. Examples include icy conditions, other hazards that are easily perceived

What are DUTIES that are imposed on us by society (which have their roots in ethical conduct) as expressed by the common law?

1) Duty to act carefully (not negligent) 2) Duty to tell the truth - to be loyal 3) Duty not to damage someone's reputation by disclosing untrue statements of fact about that person/business 4) Duty to respect other people's property (real and personal property)

Negligence Four-Step Analysis:

1) Duty: Defendant owed Plaintiff a duty of care; 2) Breach: Defendant breached that duty; 3) Causation: Defendant's breach caused the injury; 4) Damages: Plaintiff suffered injury.

Defamation: Damages for Libel (written defamatory statement).

1) General Damages are presumed; Plaintiff does not have to show actual injury. 2) General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

Once jury decides TF is liable/responsible, they must decide what damages should be awarded to injured person. What is injured party entitled to and what are the damages designed to do?

1) Injured party entitled to recover damages from TF 2) Typically damages are designed to compensate for the harm caused

In tort cases the jury has to decide 2 things:

1) Is the tortfeasor is responsible/liable/to blame for injury - so in tort law we talk about whether the tf is liable (not whether he is guilty) 2) And - if so - what damages are appropriate?

Difference between defamation of private figure and public figure?

1) Private: has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement. 2) Public: "actual malice"—that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.

Defenses to Defamation.

1) Truth is generally an absolute defense. 2) Public Figures

What 4 interests does Tort Law protect?

1) our property (personal and real property) 2) a person (auto accidents) 3) Our economic interests (so we can't steal from each other, we can't defraud others, we must tell the truth, must be loyal, disclose information, bad partner/disloyal agent) 4) personal interests (right to be left alone, the right to a good reputation)

There, the Court held that the accused who used deadly force must show:

1) that he was not at fault in creating the situation giving rise to the event; 2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm, and that his only means of escape from such danger was the use of such force; and 3) he did not violate any duty to retreat to avoid the danger.

______ is an intentional, unexcused act that: -Creates a reasonable apprehension or fear of -Immediate harmful or offensive contact. -NO CONTACT NECESSARY

ASSAULT (This means the other person threatened to harm you or did something which placed you in reasonable apprehension of being struck by the other party. )

Assault or Battery? If the other party uses their car to frighten you - you are fearful of imminent physical contact,

Assault

____ computes liability of Plaintiff and Defendant and apportions damages. ex. Stella Liebeck, McDonald's hot coffee plaintiff, jury found that her carelessness contributed to her injury - how much? 20% So her recovery reduced from $200,000 to $160,000

Comparative negligence

_____ Damages are designed to reimburse Plaintiff for actual losses. _____ Damages are designed to punish the tortfeasor and deter others from wrongdoing.

Compensatory; Punitive

What is wrongful possession or use of personal property without permission? Even if you are just kidding.

Conversion

What is Untrue statement of fact published to a third party?

DEFAMATION

Defamatory(when false) or Not defamatory? Accusing a minister of unethical conduct

Defamatory(when false)

Defamatory(when false) or Not defamatory? Calling an attorney a "crook"

Defamatory(when false)

_______ is when employer is vicariously liable for employee's negligent torts committed within the agent's "course and scope of employment."

Doctrine of Respondeat Superior

______ usually takes the form of a written agreement between the plaintiff and defendant. An example of this is where the plaintiff engages in an hazardous activity like skiing, parasailing, go-cart racing or skydiving. They may be required to sign a waiver stating that they are assuming all the risks associated with skydiving, and are will not pursue litigation if injured (Exculpatory clause)

Express assumption of risk

Opinion or Fact? "[t]hey billed my insurance company for the same thing they billed me for

FACT

True/False Merchants can not detain customers because it's considered false imprisonment.

FALSE; Merchants may reasonably detain customers if there is probable cause.

Which compensatory damage? non-monetary, such as pain and suffering, damage to reputation

General

(Libel or Slander) mistakes COST MONEY

Libel ABC settled out of court rather than continue to fight a $10 B. dollar libel suit brought by Phillip Morris over reports on Day One which alleged the company added nicotine to its tobacco products.

What is it called when Tortfeasor does not intend the consequences of the act BUT tortfeasor's conduct creates a foreseeable risk of injury To either person OR property?

Negligence

_____ is the most significant part of tort law.

Negligence

In _____, a person has a legal right to use force to defend himself, another person, his house, or even his property. The level of force that may be lawfully used varies, of course, depending on the circumstances of the case.

Ohio (Of course, the use of deadly force to defend oneself requires greater justification than does the use of non-deadly force.)

To recover negligence damages, plaintiff must show what?

Plaintiff must show legally recognizable injury.

What is a way for the courts to limit liability by focusing on foreseeability in the interests of justice and fairness?

Proximate Cause

What is an act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability?

Proximate Cause Judges use proximate cause to limit liability of defendants. BP Oil spill - is a perfect example of need to limit liability - proximity cases

____ Comparative Negligence States (CA & NY) allow plaintiff to recover even if his liability is greater than that of defendant. ____ Comparative Negligence States: percent of damages caused by plaintiff is subtracted from the total award. Most states - ____ Rule: Plaintiff recovers only if liability is less than 50%.

Pure; Modified; 50 Percent

Which compensatory damage? quantifiable losses, such as medical expenses, lost wages, and benefits.

Special

_____ is the person who engages in tortious activitis (is negligent, defames someone, defrauds someone)

The Tortfeasor (TF)

The TF is always responsible (or liable) for the torts he/she commits BUT sometimes - others will be liable as well. This is called _____

Vicarious liability - (ex. respondeat superior-ER liable for the torts of his EEs when they are acting in the scope of their employment)

Sam, an engineer, supervises the construction of a new bridge. When the bridge col¬lapses due to faulty construction, Sam is sued by those injured in the collapse. As a professional, Sam is held to the same standard of care as a. ordinary persons. b. other engineers. c. other professionals, including doctors, dentists, and lawyers. d. those injured in the collapse of the bridge.

b. other engineers. (reasonable professional rule)

Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have ____ the Plaintiff's injuries.

caused (Causation)

A tort is a (civil or criminal) wrong/act for which the court will provide a remedy

civil

Most states have replaced contributory negligence with the doctrine of ____ negligence.

comparative

Under the common law doctrine of _____, if Plaintiff in any way caused his injury, he was barred from recovery.

contributory negligence

Jaqy distributes a handbill among her neighbors accusing one of them—Ked—of being a convicted sex offender. The statement is defamatory only if a. a neighbor repeats it. b. Ked suffers emotional distress. c. the statement is true. d. the statement is false.

d. the statement is false.

Fraudulent Misrepresentation is not a personal injury but injures _____ interests

economic

What is Hedonic?

loss of enjoyment of life

Careless behavior = ___ Individuals AND Companies can act ____

negligence; carelessly

Sometimes formula applied using "specials" multiply "specials" by a number between 1.5 and 5 (sometimes higher) to compensate for

pain and suffering, permanent disability, lost social and educational opportunities, Hedonic (loss of enjoyment of life) etc.

To recover in a ____ liability case you only need to prove that the product was defective and that the product caused the injury

products

Professionals typically owe higher duty of care based on special education, skill or intelligence. Breach of duty is called ______.

professional malpractice.

Opinion or Fact? "[i]n my heart I honestly think that's a way to get double paid

protected opinion

Opinion or Fact? "[t]hey don't care About the customer or the patient

protected opinion

A ____ figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures—a government employee, a senator, a presidential candidate

public

Basis of defamation is the "_____" of a false statement of fact that holds an individual up to contempt or ridicule in the community. Publication requires communication to a 3rd party.

publication

This is only awarded if jury finds that TF acted maliciously or with conscious disregard for the rights and safety of others. Designed to punish TF/make an example of TF (sometimes called exemplary damages)

punitive damages Very rare but if there is an intentional tort or conduct that is grossly negligent (think McDonald's Hot Coffee case/BP oil spill or fraud cases)