Chapter 7: Torts

A public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with the intent of causing him severe emotional distress.

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Assault and battery are one indivisible tort.

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Contributory negligence refers to the defendant's actions.

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Contributory negligence, assumption of the risk, and product misuse are the three most common defenses to a strict liability claim.

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Foreseeability is a question of law to be determined by the judge while duty is a question of fact to be determined by the jury.

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Generally, a person is not allowed to use deadly force to protect an unoccupied dwelling unless the intruder is a trespasser.

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If a product proves to be defective, the only remedy available to the injured party is to sue under a theory of strict liability.

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In a restaurant review, the mystery diner stated that the Good Chow Restaurant served the worst hamburger he had ever eaten. This is a good example of a defamatory statement as it would tend to hurt the restaurant's reputation.

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In determining if a battery occurred, the court is concerned with the defendant's motive, not with the defendant's intent.

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In most states, you can sue for the loss of a pet's companionship.

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In order for a plaintiff to prove false imprisonment, she must be able to show that physical force was used to detain her.

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Intentional behavior and recklessness describe negligent behavior.

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John and Joe are in an argument. They get very angry and John begins attacking Joe with his fists. In response, Joe pulls out a gun and shoots John. This is an example of self-defense.

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Martha waves a gun in front of Ben's face and tells him that she is going to shoot him. Ben believes that she is about to do so, but then a policeman arrives and arrests Martha before she can fire the gun. No tort was committed.

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Negligence can be caused either by acting unreasonably or by intentionally causing harm.

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One of the required elements of a battery is that physical injury must be proven.

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Punitive damages are designed to punish the defendant, and although they cannot be awarded in contract actions, they can be awarded in any type of tort action.

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Sam is angry with Raymond and tells him that he is going to go home and get his gun. Raymond is frightened. This constitutes assault.

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Suzanne told Sally that she thought Sally was a thief. This was said to Sally's face with no one else present. This is an example of slander.

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The Restatement (Second) of Torts, section 402A , which sets forth the basic requirements for a products liability action, has not been widely followed.

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The Restatement of Torts Second is a uniform code that has been adopted by most state legislatures.

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The Restatement of Torts Second lists six factors, all of which must be present, for a defendant to be held strictly liable when engaging in ultrahazardous activities.

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The recent trend is to uphold exculpatory clauses that relieve a party of its own negligence.

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The three major affirmative defenses to negligence are contributory negligence, assumption of the risk, and consent.

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The three types of damages that a plaintiff is most likely to receive in a torts action are compensatory, specific performance, and nominal.

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There can be no battery without an accompanying assault.

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Tort law is one of the most static areas of law, having seen little change in the last 20 years.

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Tort law usually involves an affirmative obligation to protect others rather than an obligation to refrain from taking actions that harm others.

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Torts have traditionally been classified into one of four major categories based on whether they involve intentional acts, mere accident, negligence, or strict liability.

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Under a "pure" comparative negligence statute, a plaintiff may recover actual damages less a percentage, calculated as the amount of negligence attributable to the plaintiff, unless the plaintiff was the main cause of the injury.

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Verbal defamation is known as libel and written defamation is known as slander.

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When an athlete injures another athlete during a game, most courts will find liability if the athlete who caused the injury acted negligently.

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When there is disagreement as to whether an issue raises a question of duty of care or of proximate cause, the plaintiff is most likely to frame the issue as one of duty of care.

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A classic case for finding strict liability is the use of dynamite in blasting.

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A doctor is not expected to act as a reasonable person would act, but rather as a reasonable doctor would act under the circumstances.

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A person who injures another or damages their property is called a tortfeasor.

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A tort occurs when someone's person or property is hurt.

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An exculpatory clause is an example of an express assumption of the risk.

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An intentional tort is defined as an intentional action that results in harm to a person's body, reputation, emotional well-being, or property.

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An unwanted kiss from a stranger could qualify as a battery.

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Both duty of care and proximate cause are based upon the concept of foreseeability.

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Comparative negligence measures liability in percentages.

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Compensatory damages are to compensate the plaintiff for the harm done.

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Courts impose liability in strict liability cases for the policy reason that as between the defendant and the injured plaintiff, the defendant is in a better position to absorb the costs of the injury.

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Defamation can consist of either verbal or written remarks that harm a person's reputation.

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For a statement to be considered defamatory, the statement must present the information as a fact rather than as merely the opinion of the speaker.

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For policy reasons, certain defendants, such as participants in sporting events, are immune from suit even when they act in a negligent manner.

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For policy reasons, sometimes courts will hold that no duty existed and hence there is no liability, even though someone was harmed through a negligent act.

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Generally, nonfeasance, as opposed to misfeasance, cannot form the basis of negligence liability.

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Generally, the law has always placed a higher value upon human safety than upon mere rights in property.

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Historically some remarks, such as that someone has been imprisoned, are considered to be so bad that they are automatically viewed as defamatory per se.

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Historically, the concept of privity restricted the class of persons who could recover when injured by a defective product.

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If a person was injured when an elevator unexpectedly fell twenty stories, to prove negligence the plaintiff's attorney might rely upon the doctrine of res ipsa loquitur.

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In a case of medical malpractice, in order to prove how a reasonable physician would have acted under the circumstances, usually the plaintiff will be required to call an expert witness to testify as to the professional standard of care.

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In negligence cases, the court must evaluate the behavior based on all of the circumstances. Therefore, the specific facts become very important.

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Negligence is a failure to act as a reasonably prudent and careful person is expected to act in similar circumstances.

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Normally, absent a special relationship, no one owes a duty to control the conduct of third parties.

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One area of negligence law that is still evolving relates to whether social hosts should be responsible for accidents caused by their intoxicated guests.

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One of the reasons why a plaintiff might want to bring a claim under the new tort of battered woman's syndrome rather than under traditional battery law is because battery typically has a fairly short statute of limitations, whereas the tort of battered woman syndrome is considered to be a "continuing tort," thereby eliminating the statute of limitations problem.

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Proximate cause is not really about cause at all, but represents a policy decision that at some point a defendant will not be held responsible for every consequence of every action.

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Punitive damages are rarely awarded.

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Punitive damages must bear some reasonable relationship to the amount of compensatory damages.

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Recklessness implies a conscious or knowing disregard of an unreasonable and substantial risk of serious bodily harm to another.

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Sandra cut herself on a sharp carving knife. If she were to sue the manufacturer basing her lawsuit on strict liability, she would probably lose as a sharp knife is not a defective product.

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Some, but not all, courts will allow a cause of action for wrongful birth.

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Sometimes the same set of facts will give rise to both a tort action and a crime.

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Sometimes the same set of facts will give rise to both a tort and a contract action.

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Sometimes violation of a statute, especially one designed to protect the public, will be seen as negligence per se.

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Suzanne told Sally that she thought Sally was a thief. This was said to Sally's face with no one else present in the room. However, Harry was next door and heard the whole thing. This is an example of slander.

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Tavern owners are liable for injuries caused by their intoxicated patrons. This is an example of when a superseding cause does not relieve the original tortfeasor of liability.

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The civil side of theft is called conversion.

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The courts have applied the doctrine of strict liability in two situations: those involving ultrahazardous activities and products liability.

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The defendant does not have to raise any defenses if the plaintiff is unable to prove each of the elements of the prima facie case.

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The defenses that can be raised to an assault or battery claim are consent, self-defense, defense of others, and sometimes defense of property.

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The doctrine of last clear chance states that the contributory negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might still have been able to avoid the accident or at least reduce some of the plaintiff's injuries.

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The doctrine of sovereign immunity prohibits suits against the government without the government's consent.

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The question of whether someone owed a duty usually revolves around whether the plaintiff was someone whom the defendant could foresee would be harmed by his or her actions.

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The term strict liability is a bit of a misnomer because a manufacturer is not always liable when a product hurts someone. First, it must be shown that the product had a defect that made it unreasonably dangerous.

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The tort of intentional infliction of emotional distress allows a plaintiff to sue for emotional distress, but usually requires that the defendant's behavior be extreme and outrageous.

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The tort of invasion of privacy covers situations including: disclosure, intrusion, appropriations, and false light.

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The tort theory of strict products liability recognizes that the liability is not assumed by agreement but imposed by law.

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There are some circumstances when the publication of a false defamatory statement is privileged.

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There are times when for policy reasons the defendant is held strictly liable under tort law even though the defendant acted neither negligently nor intentionally to harm the plaintiff.

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Truth is an absolute defense to a defamation claim.

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Under contributory negligence, the defendant is relieved of any liability connected with the defendant's negligence, no matter how great the defendant's negligence and how slight the plaintiff's contributory negligence.

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Under modified comparative negligence, a plaintiff's recovery is reduced by the percentage of his or her own negligence if the defendant's negligence is greater than that of the plaintiff, and the plaintiff is barred from recovering anything if the plaintiff's negligence is greater than the defendant's.

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Under strict liability, a product is considered to be defective if it is unreasonably dangerous for use in the ordinary manner.

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Under the theory of strict liability, the court imposes liability even though the defendant is not at fault.

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When a defendant is found liable based on recklessness, punitive damages may be available.

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When the plaintiff in a defamation suit is a public official or figure, the plaintiff must prove a fourth element, actual malice.

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When there is more than one cause of an injury, the court may use the "substantial factor" test; liability is imposed if the defendant's action is shown to be a substantial factor in having caused the plaintiff's injuries.

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