BUL3310 Chapter 6 Review

With respect to the law of defamation, which of the following are absolutely privileged? A. Statements made during the course of judicial proceedings B. Statements made "in a reasonable manner and for a proper purpose" C. Statements made in the conduct of a person's affairs where his interest is concerned D. Credit reports

A. Statements made during the course of judicial proceedings Feedback: Statements made in judicial proceedings are absolutely privileged. Other absolutely privileged statements are those made in executive or legislative proceedings, and statements made between spouses.

Governmental Function

Activity done or furnished for general public good.

Loss of consortium

An action for depriving one spouse of the companionship of the other spouse.

Liquidated Damages Agreement

An amount stipulated in a contract which the parties agree is a reasonable estimation of the damages owing to one in the event of a breach by the other.

Short Answer: Discuss the difference between battery and assault

Assault is the threat or use of force that causes the victim to have a reasonable belief of imminent harmful or offensive contact. Battery is the actual application of force to another resulting in harmful or offensive contact.

Outrage (Bad Faith)

Breach of faith, willful failure to respond to plain, well understood statutory or contractual obligations.

Assumption of Risk

The act of a plaintiff taking on the risk of loss or injury.

Res ipsa loquitur

The act speaks for itself, negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened.

Battery

The application of force to another resulting in harmful or offensive contact.

Nuisance

The defendant's interference with the plaintiff's interests.

Proprietary Function

The government acting in its commercial capacity.

Vicarious Liability

The imputation of liability upon one person for the actions of another.

Lex Loci

The place of the wrong

Impact Rule

The requirement of a physical contact with an individual person in order for damages for emotional distress to be imposed.

Degree of care

The standard which an ordinary person would use.

Definitions: Assault

The threat or use of force that causes the victim to have a reasonable belief of imminent harmful or offensive contact.

Standard of Care

The uniform standard of behavior upon which the theory of negligence is based, requires the actor to do what a reasonable person would do if in the same situation.

False Imprisonment

The unjustified detention of a person.

Ministerial Act

Those acts performed by a subordinate official according to explicit directions, usually embodied in a statute rather than judicial order, performed at the operational level of government.

Nondelegable duties

Those duties which an employer cannot impute to another, such as an independent contractor. One example is the duty of a business to keep its premises safe for customers.

Imputed Negligence

To assign vicariously to another person or entity the legal responsibility for the act of another.

MATCHING: A wrong for which the law will provide redress, most often in the form of money damages but sometimes in the form of an injunction.

Tort

Parent-Child Immunity

Traditional doctrine that prohibited children and parents from suing each other

Inter-spousal Immunity

Traditional doctrine that prohibited spouses from suing each other

True or False: A libel judgment obtained by a public official against a newspaper cannot stand unless the plaintiff has shown "actual malice."

True

True or False: Under the rule of vicarious liability, an employer is responsible for the negligence of his employees if they were acting in the scope of employment

True

Public Figure

In libel, a person of general fame or notoriety, a public figure must show actual malice before recovering libel damages.

Discuss the four elements of negligence

In order to recover, a plaintiff must prove (1) a breach of duty (2) actual injury suffered by the plaintiff, (3) actual and proximate causation between the breach and the injury, and (4) she must overcome any defenses raised by the defendant.

Libel per se

Injury to Plaintiff is presumed by law only if the statement is libelous and defamatory on its face, no need to prove special damages.

Slander per se

Injury to the plaintiff's reputation is presumed.

True or False: The law of torts was developed almost entirely by the common law courts

TRUE Feedback: Most tort law is a consequence of common law, unlike criminal law, which is mostly statutory.

Common Carriers

One in the business of transporting goods or persons for hire, as a public utility.

Invitee

One who comes upon the land of another by the other's invitation.

Tortfeasor

One who commits a tort.

Tresspasser

One who enters or remains upon the land of another without the owner's permission.

Licensee

One whose presence is not invited but tolerated, status as a licensee may affect the duty of care owed.

It was once believed that a manufacturer or supplier owed a duty of care only to immediate purchasers, not to others who might use the product or to whom the product might be resold. This limitation was known as the rule of...

Privity

Hold-harmless agreements

Protect from loss or liability, indemnify.

MATCHING: Legal phrase for the connection between the act complained of and the resulting injury.

Proximate cause

MATCHING: Formula involving a fictitious person "of ordinary prudence."

Reasonable man standard

Slight Versus Gross Rule

Slight care is such as persons of ordinary prudence usually exercise about their own affairs of slight importance, gross care is prudence exercised over affairs of great importance.

MATCHING: Defenses available in a negligence lawsuit

contributory negligence, comparative negligence and assumption of risk

MATCHING: Theories or types of tort liability

intentional torts, negligence and strict liability

MATCHING: Intentionally inducing another party to breach a contract.

interference with contractual relations

Discuss its effect, at common law, of a finding of contributory negligence on the plaintiff's part, as well as other defenses

Contributory negligence is conduct on the part of the plaintiff that falls below the standard to which he should conform, and which is a legally contributing cause in addition to the negligence of the defendant. The plaintiff could overcome this defense by showing that the defendant had the last clear chance to avoid the injury. In some jurisdictions, contributory negligence is a complete defense if the actions of the plaintiff were the substantial factor in producing the injury. Assumption of the risk is another defense where the plaintiff voluntarily consented to a known danger (i.e. the plaintiff accepted the risk on her own volition).

Sovereign (Governmental) Immunity

Doctrine precluding the institution of a suit against the government without its consent.

Last clear chance

Doctrine that a defendant may be liable for the injuries he caused, even though the defendant was guilty of contributory negligence, if the defendant could have avoided injury to the plaintiff by exercising ordinary care.

Intentional infliction of emotional distress

Extreme personal suffering caused by theintentional or negligent actions of another.

True or False: The tort of negligence has four elements: (1) standard of care; (2) duty; (3) connection between cause and injury; and (4) circumstantial evidence

FALSE Feedback: Negligence consists of (1) a breach of duty, (2) actual injury suffered by the plaintiff, (3) actual proximate causation between the breach and the injury, and (4) overcoming any defenses raised by the defendant.

Negligence

Failure to exercise the degree of care which a person of ordinary prudence would exercise under the same circumstances.

True or False: The tort of false imprisonment is limited to those situations where the victim is locked up, as in a prison or in a locked room.

False

True or False: The tort of intentional infliction of emotional distress requires that mental distress results from some physical injury.

False

True or False: Tort law is confined to tangible physical harm to person or property.

False

Defamation

False written or oral statements that damage another's property.

MacPherson

1916 case where Justice Cardozo establishes the proposition that if one accepts delivery of a product knowing the product has not been tested (assuming the obligation to test for defects), the manufacturer is not responsible, in the absence of fraud, for defects that the test should have revealed.

Intentional Tort

A civil wrong that is not a breach of a contract, they involve interference with property rights, personal rights, and businesses.

Exculpatory Agreements

A clause in a legal document which excuses a party from liability for its acts other than those caused by willful neglect or gross negligence

Foreseeability Rule

A concept used to limit liability of a party for the consequences of his acts to consequences that are within the scope of a foreseeable risk (risks whose consequences a person of ordinary prudence would reasonably expect might occur.

Attractive Nuisance Doctrine

A dangerous condition that may attract children onto property.

Privilege

A defense to defamation; can be absolute or conditional.

Comparative Negligence

A plaintiff's own negligence that proportionally reduces damages recoverable from a defendant.

Tort

A private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society's expectations regarding conduct.

Statue of Limitations

A statutory time beyond which an action may not be brought.

The law of torts sometimes excuses the commission of an apparent wrong. Which of the following may be used as justification for committing a tort? A. Punitive damages B. Assumption of risk C. Defamation D. Strict liability

B. Assumption of Risk Feedback: Assumption of the risk is one defense against liability. A plaintiff has taken on the risk of loss or injury.

Negligent Supervision

Cause of action where employer may be liable for acts of employee if employer had constructive or actual notice that employee was unfit to work.

Concurrent Causation

Causes acting contemporaneously and together causing injury, which would not have resulted in the absence of either.

Negligent Infliction of emotional distress

Causing a distress of mind or body which causes continuing anguish or suffering.

Contributory Negligence

Conduct on the part of the plaintiff that falls below the standard to which he should conform, and which is a legally contributing cause in addition to the negligence of the defendant. It is a bar to the plaintiff recovering damages.

Rule of significant contacts

Conflicts of law doctrine that uses the law of the state with the most significant contacts with the parties involved.

Federal Tort Claims Act (FTCA)

Congressional statute that waives sovereign immunity from liability in tort.

Jimmy Joe Jeter, a patient with severe back trouble, signed a hospital consent form for an operation. Jeter was not informed of the dangerous risk (a 20 percent chance of paralysis) involved in the operation. Although done without negligence, the operation resulted in paralysis of both legs. Jeter sued the doctor for damages for battery and the doctor's defense was that the consent form waived all Jeter's rights to sue. Who wins? A. Doctor wins. The operation was performed without negligence; therefore, he is not liable. B. Doctor wins. Since battery is defined as a touching without consent, the consent form neutralized Jeter's argument. C. Jeter wins. Consent without knowledge is no consent at all. Therefore, a battery has occurred. D. Jeter wins. The doctor has been guilty of malpractice (negligent conduct) and is liable.

D. Jeter wins. The doctor has been guilty of malpractice (negligent conduct) and is liable. Feedback: The doctor is guilty of malpractice because he has a duty to inform the patient of the risks of the operation.

MATCHING: Libel and slander.

Defamation

Discuss defamation and the available defenses

Defamation is the (1) unprivileged (2) publication of (3) false and defamatory (4) statements concerning another. Truth is a complete defense to liability. Some defamatory statements may be privileged as well. In some circumstances, social interests may outweigh those of the individual's right to reputation. Privileges may be absolute (as in a judicial proceeding) or conditional, which may be a defense unless abused in some way.

Slander

Defamation that is oral in nature.

Fraud

Intentional deception resulting in injury to another.

Publication

Liability for defamation must have publication of the statement, communication to one person is ordinarily sufficient.

Strict Liability

Liability irrespective of fault.

Statue of Repose

Limits potential liability by limiting time during which a cause of action can arise.

MATCHING: The tort of causing someone to be prosecuted for a criminal act, knowing that there was no probable cause to believe that the plaintiff had committed the crime.

Malicious prosecution

Negligence Per Se

Negligence as a matter of law, violation of a specific requirement of law or ordinance.

Unintentional Tort

Negligence, malpractice, conduct that falls below a standard of care necessary to protect others from unreasonable risks of harm.

Intentional torts include all of the following except:

Negligent conduct

True or False: Punitive damages are meted out as punishment by the defendants actions

TRUE Feedback: Punitive damages are compensation in excess of actual damages and are used as a form of punishment to the wrongdoer and excess enhancement to the injured.

True or False: Res ipsa loquitur, a rule of circumstantial evidence, means "the thing speaks for itself."

TRUE Feedback: Res ipsa applies when the defendant has exclusive control of the instrumentality of harm, the incident that occurred would not ordinarily occur in the absence of negligence, and the plaintiff was in no way responsible for the injury.

Proximate (direct) Cause

That which in natural and continuous sequence unbroken by any new independent cause produces an event, without which the injury would not have occurred.

Legal Duty

That which the law requires be done by a determinant person, breach of legal duty is an element of negligence and is the essence of most actions in tort.

Tresspass

Unlawful injury to the plaintiff's person, property or rights.

False Arrest

Unlawful restraint of another's personal liberty of freedom.

Misuse of legal process

Using the court system to achieve an end which is not proper for a judicial forum.

Reckless Misconduct

Wanton indifference to the consequences of one's acts..

Reasonable person test

What a hypothetical person, guided by those considerations which ordinarily regulate the conduct of human affairs, would do.

MATCHING: Act of God

force majeure

Libel

Written or printed defamations in permanent physical from, i.e. a sign or picture.

Conversion

Wrongful possession or disposition of another's reputation.

MATCHING: Doctrine stating that government is immune from suit.

sovereign immunity