Torts

Are there situations where a person can make defamatory statements and not be held liable for defamation?

If the statement: 1. is the truth 2. if the defamation is privileged/immunity 2a. judges making statements are privileged (absolute privilege) 2b. writing an employee's evaluation (qualified/conditional privilege) 3. concerns a public figure public figures are considered "fair game"

What constitutes the tort of false imprisonment?

the intentional confinement or restraint of another person's activities without justification, it is essential that the person being restrained does not wish to be restrained

False Imprisonment

the intentional confinement or restraint of another person's activities without justification. Interferes with the freedom to move without restraint.

Tortfeasor

the one committing the tort; must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law

If a person is acting in a negligent manner, who has cause (or standing) to sue that person?

the person the negligence is directed towards.

Which type of defamation must be communicated to a third party to be actionable?

Publication

Punitive Damages

Punish the wrongdoer and defers others from similar wrong doing, only appropriate when the conduct was egregious

Does the land have to suffer an actual injury to constitute trespass to land?

Actual harm to the land is NOT an essential element

Danger invites rescue

"at risk" - when you see someone who needs help but you're not liable to help... but you still help the person injured --> connects most things together because people do try to help. pends negligence on the wrongdoer to everyone who gets involved to help.

What is the doctrine of res ipsa loquitur?

"here are all the facts, now its the defendant's job to prove there wasn't negligence" - when you look at a situation and say "the thing speaks for itself". i.e. opening someone up because of an infection and the previous doctor negligected to take all of the tools out

Examples of Defamation

"lane cheats on his taxes" -- can lead to liabaility for demation "lane is a jer" -- cannot constitute defmation because it is clearly an opinion

Puffery

"seller's talk"

Special damages

- compensate the plaintiff for quantifiable monetary losses such as: medical expenses and lost wages and benefits (now and in the future) - might also be awarded to compensate for extra costs of the loss of irreplaceable items and the costs of repairing or replacing damaged property

Is there ever a defense against trespass to personal property

- if it can be shown that trespass to personal property was warranted then a complete defense exists i.e. getting your car working on but they won't allow you to take it home until you pay the bill

What four acts qualify as an invasion of privacy?

1. Intrusion into an individuals affairs or seclusion (invading someone's home, searching through someone brief case 2. False light (Publication of info that places a person in a false light) 3. Public Disclosure of private facts ( occurs when a person publicly discloses private facts about an individual that an ordinary person would find objectionable 4.Appropriation of identity- (using a person's name, picture, likeliness, or other identifiable characteristic for commercial purposes without permission )

To succeed in a negligence action, the plaintiff must prove each of the following: (4)

1. duty - the defendant owed a duty of care to the plaintiff 2. breach - the defendant breached the duty 3. causation - the defendant's breach caused the plaintiff's injury 4. damages - the plaintiff suffered a legally recognizable injury

What is required to prove Fraudulent Misrepresentation?

1. fraud exists only when a person represents something as a fact or conditions with knowledge that they are false with reckless disregard for the truth 2. an intent to induce another party to reply on misrepresentation 3. a justifiable reliance on the misrepresentation by the deceived party 4. damages suffered from a result of the reliance 5. a causal connection between the misrepresent and injury suffered

What does a statement have to contain to be defamatory?

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 he or she must prove actual malice

What factors are considered when determining if a duty of care has been breached? (3)

1. the nature of the act (whether it is outrageous or commonplace) 2. the manner in which the act was performed (cautiously vs. heedlessly) 3. the nature of the injury ( whether it was serious or slight)

Intentional torts against property (4)

1. trespass to land 2. trespass to personal property 3. conversion 4. disparagement of property

If a case is brought under the doctrine of strict liability, what does a plaintiff have to show to recover?

????????

Crime

A crime is a wrongful act that the state or federal government has identified as a crime. A criminal case is a criminal proceeding.

if A pushes B into the path of a car driven by C and D tries to rescue B....Who may be liable and under what circumstances? Who is not liable? Under what doctrines?

A is liable under the battery action for pushing B into a moving car. C is not liable because C is not purposely nor did they accidentally hit B (yet) --> under the no duty to rescue doctrine D wasn't liable until they decided to help rescue C.

Tort

A tort is a wrongful act that injures or interferes with another's person or property. A tort case is a civil court proceeding.

What types of activities are judged under a strict liability thoeory?

Abnormally dangerous activities = things that cannot be made safe despite the exercise of careful care i.e. seller's of defective products, etc.

Battery does or does not require actual physical harm to be actionable?

Battery- an unexcused and harmful or offensive physical contact intentionally performed. Physical injury need not occur, the contact can involve any part of the body or anything attached to it (ex: hat)

How is Causation in Fact different from Proximal Cause? Which is necessary for a successful recovery under negligence theory?

Causation in Fact - (unlimited) "if this happens then this will happen" -- woke up late, speeding to class, got in a wreck, etc. Proximal Cause -- narrows the CIF to the thing that will happen; this is foreseeable. make a list of the possible outcomes of what might happen and see if what actually happens is on that list.

What are some defenses to assault and battery?

Consent, and Comparative Negligence

In which case is it easier to recover damages, slander or libel? Why?

Libel because the plaintiff doesn't have to prove that he or she was actually harmed

What amount of force is justified to stop someone suspected of shoplifting?

Must be done in a reasonable manner and for only a reasonable length of time. The reasonable person standard is an objective test of how a reasonable person would have acted under the same circumstances

Name some of the doctrines that apply to the negligence liability (4)

No duty to rescue Res ispa Loquitur Negligence per se Danger invites rescue

Can a person maintain a suit for negligence if they have not suffered a loss, harm, injury, wrong, or invasion of a protected interest?

No! Must have damage for responsibility = no harm, no foul

Does a person have a duty to rescue another person in peril if he/she is the only one present? if so, when?

No!!! We morally feel obligated too but we don't have a duty too.

Is the reasonable person the same in every circumstance?

No, it depends upon a lot of things; someone's occupation, his/her relationship with plaintiff, etc.

If a judge has to make a ruling in a case concerning whether a duty of care has been breached, who or what will the judge use as a measure to determine this issue? Does it matter if the judge (himself/herself) would have acted in the same way?

REASONABLE PERSON And it doesn't matter if the judge would have acted the same way.

Which of the following is fraud? Telling the truth. Representing as fact something that the speaker knows is untrue. Expressing and opinion on a matter the speaker knows nothing about. Puffery.

Representing as a fact something that the speaker knows is untrue

Does a landowner have any responsibility for the safety of trespassers?

Sometimes yes, you have a duty to guard from certain things so people do not injure themselves

What defenses could a person sued for false imprisonment raise?

The plaintiff's consent to the restraint bars a liability

ex. Ivan threatens Jean with a gun and then shoots her; what is assault and what is battery?

The pointing of the gun at Jean is Assault. The firing of the gun (if the bullet hits Jean) is a battery.

In the case Palsgraf v. Long Island Railroad, what is necessary element of negligence was missing that prevented Ms. Palsgraf from recovering from the railroad for her injuries?

There is harm/injury, a duty and there is a cause but there was no proximal cause, meaning that we could not have predicted that dynamite would have exploded.

What is the distinction between trespass to personal property and conversion?

Trespass to personal property: whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property Conversion: any act that DEPRIVES an owner of personal property or of the use of that property without the owner's permission and without a just cause

When can an intervening event break the connection between a wrongful/negligent act and injury to another? Does the event have to be foreseeable?

Watch lecture video

What do the courts do if the plaintiff has also been negligent?

Watch video

Are there any exceptions to liability if someone is injured on a business premises?

Yes i.e. example in book: woman fell on club floor because of napkins and sued the club. she lost because she had been there before and knew the risk of falling was possible since she knew napkins were there.

Define conversion

any act that deprives an owner of personal property or of the use of that property without the owner's permission and without a just cause

What is assault?

any intentional and unexcused threats of immediate harmful or offensive contact- words or acts that create a reasonably believable threat. Can occur even if there is no actual contact

Interference with a Business relationship

basically just have the difference between competitive practice and predatory behavior attempting to attract consumers in general is a legitimate business practice, whereas specifically targeting the customers of a competitor is more likely to be predatory

Comparative Negligence

both the plaintiff's and the defendant's negligence are computed and the liability for damages is distributed accordingly

Libel

breaching this duty in writing or other permanent for (digital recording) involves the tort of (libel)

Slander

breaching this duty orally involves the tort of (slander)

General Damages

compensate individuals (not companies) for the non-monetary aspects of the harm suffered, such as pain and suffering - physical or emotional pain, loss of companionship, loss of consortium, disfigurement, loss of reputation, etc.

Compensatory Damages

compensate or reimburse the plaintiff for actual losses broken down into: 1. Special damages 2. General damages

What Types of damages are available in tort law?

compensatory damages and punitive damages

Assumption of the Risk

defense that requires the plaintiff to have knowledge about the risk and voluntary assumption of the risk. not only applies when participating in an activity but also as a bystander or spectator (baseball, etc. )

Defenses

defenses availiable may vary depending on the specific tort involved. A common defense for an intentional tort is CONSENT. the most commonly used defense in negligence is comparative negligence

Tort law provides remedies for what types of issues

generally the purpose of tort law is to provide remedies for the violation of various protected interests i. 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 ii. Society also recognizes an interest in protecting property, and tory law provides remedies for acts that cause destruction of or damage to a property

What character attributes does the reasonable person possess?

society's judgment on how an ordinary person should act

Intentional and unintentional tort

intentional -- result from intentional violation of a person or property; the law protects people from unauthorized touching, restraint, or other contact. the law also protects people's reputation & privacy. unintentional -- negligence: this doctrine says that a person is liable for harm that is the forseeable consequence of his or her actions. plaintiff must prove: duty of care, breach of duty, injury to plaintiff

Does an intentional tort require a harmful motive?

intentional torts result form the intentional violation of person or property, and evil or harmful motive is not required intent means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consqeuences would result from the act

Define Intentional Infliction of Emotional Distress

involves an intentional act that amounts to extreme and outrageous conduct resulting in sever emotional distress to another

What is the standard by which this tort (intentional infliction of emotional distress) is measured?

it must be actionable in other words the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society i.e. someone being stalked, coupled with threats, etc.

Defamatory statements

libel and slander

Interference with a Contractual Relationship

must have these 3 elements: 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

To what standard of care are professionals held? (engineers, doctors, etc.)

not always consistent level, they are held to a higher standard than a random person

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, the tortfeaser 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, there is no negligence.

Defamation

of character involves wrongfully hurting a person's good reputation. the law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others.

What is malpractice?

professional negligence

No duty to rescue

prohibits people from suing bystanders

What are defenses against trespass to land?

show that the trespass was warranted- such as when a trespasser enters a building to assist someone in danger - she or he had a license to come onto the land or - licensee: one who is invited onto the property of another for the licensee's benefit

Why do we use reasonable person standard?

to help determine if someone's duty has been breached

Can a shoplifter sue for false imprisonment if he/she is detained by a store security guard?

under the "privilege to detain" granted to merchants in most states, a merchant can use reasonable force to detain or delay persons suspected of shoplifting and hold them for the police.

What is the purpose of punitive damages awards? Are they frequent or infrequently awarded in tort cases?

used to punish the wrongdoer and deter others from similar wrongdoing. these are appropriate only when the defendant's conduct was particularly egregious (flagrant) or reprehensible (blameworthy) courts exercise great restraint (infrequent) in granting punitive damages to plaintiffs in tort actions because punitive damages are subject to limitations under the due process clause in the US constitution.

Do the same rules apply to internet service providers regarding defamation as historically apply to newspaper, magazines, TV, etc.? Can ISP ever be held liable for violations? if so, what circumstances?

we would like to hold the internet people accountable but you generally cannot sue them. it is because of their passive nature unless you can prove the ISP knew/helped about what was being posted, you cannot sue.

Consent

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

Explain Negligence Per Se

when a statute has defined what is a duty of care i.e. driving situation

If a person participate in an activity, has he/she thereby assumed the risk and therefore responsible for any injury which might result in performing the activity?

yes under the defense of assumption of the risk, which requires two elements: 1. knowledge of the risk and 2. voluntary assumption of the risk

Can a person be guilty of conversion without knowing it?

yes, conversion can occur even when a person mistakenly believed that she or he was entitled to the goods

What about business owners? To what degree are they responsible for the safety of business invitees?

you have a duty of reasonable care so people don't injure themselves. business owners must warn those on premises of risks if any arise. i.e. putting up wet floor signs so people don't fall after it has been mopped