Business Law - Chapter 4 (Tort Law)

what limits charges of outrageous conduct?

the First Amendment; ex. cases that involve outrageous conduct about a public figure limit emotional distress claims (although this is not absolutely limited, as seen in defamation cases)

real property

land; things "permanently" attached to the land, as opposed to personal property

tortfeasor

one who commits the tort

res ipsa loquitur

"the facts speak for themselves"; a doctrine in which negligence may be inferred without the need to prove the defendant's negligence (ex. injury sustained due to a surgery that ordinarily does not go wrong)

two requirements for causation

1. causation in fact - if an injury would NOT have occurred without the defendant's act, then there is causation in fact 2. proximate cause - exists when the connection between an act and an injury is strong enough to justify imposing liability

four acts that constitute invasion of privacy

1. intrusion into an individual's affairs or seclusion (ex. searching a briefcase, eavesdropping via wiretap, window peeping) 2. publication of information that places a person in a false light 3. public disclosure of private facts 4. appropriation of identity

slander per se

1. statement that someone has a loathsome disease (ex. leprosy, STDs, mental illnesses) 2. statement that someone has committed improprieties while engaging in a business, profession, or trade 3. statement that someone has committed or has been imprisoned for a serious crime 4. statement that a person is unchaste or has engaged in serious sexual misconduct (usually only unmarried persons and sometimes only women)

what must a plaintiff prove to establish defamation?

1. the defendant made a FALSE statement of fact 2. the statement was understood as being ABOUT the plaintiff and tended to harm their reputation 3. the statement was published to at least one person other than the plaintiff 4. plaintiff must prove actual malice (IF the plaintiff is a public figure)

assumption or risk

a defense to negligence that prevents a plaintiff from recovering for injuries or damage suffered; requires that the person both had knowledge of the risk and voluntary assumption of the risk

transferred intent

a legal principle under which a pers0n who intends to harm one individual, but unintentionally harms a different individual , can be liable to the second victim for an intentional tort

compensatory damages

a monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party

business invitee

a person, such as a customer or a client, who is invited onto business premises by the owner for business purposes

defense

a reason offered by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what they seek

contributory negligence

a rule in tort law that bars the plaintiff from recovering any damages if the damage suffered is partly their own fault; only used in a few states

comparative negligence

a rule in tort law that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault; most states have a "50 percent" rule that prevents recovery of damages if they were more than 50 percent at fault

puffery

a salesperson's exaggerated claims concerning the quality of property offered for sale; such claims involve opinions rather than facts and are not legally binding promises (ex. "I am the best accountant" is a subjective opinion whereas "this roof never leaks", when it does, is a lie)

Good Samaritan statutes

a statute enacted in most states that protects persons who provide emergency services to, or rescue, someone in peril from being sued for negligence unless they act recklessly, causing further harm

dram shop act

a statute in many states that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public (such as party hosts) for injuries that result from accidents caused by intoxicated persons

wrongful interference with a business relationship

a type of business tort in which 'predatory behavior'--as opposed to 'competitive methods'--are used (ex. an employee from a competing store standing in front of their competitor's shop advertising their own store)

wrongful interference with a contractual relationship

a type of business tort that must include 1. a valid, enforceable contract between two parties 2. a third party's knowledge that the contract exists 3. the third party's intentional inducement of another party to breach the contract

tort

a wrongful act (other than breach of contract) that results in harm or injury to another and leads to civil liability

slander of quality

aka trade libel; the publication of false information about another's product, alleging that it is not what its seller claims

negligence per se

an action or failure to act in violation of a statutory requirement (ex. inattentive driving causing someone to back into another person)

general damages

an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as emotional pain

special damages

an amount awarded to compensate the plaintiff (individuals or companies) for quantifiable monetary losses, such as medical expenses, property damage, and lost wages and benefits (now and in the future)

disparagement of property

an economically injurious falsehood about another's product or property (as opposed to their reputation); includes torts such as slander or quality and slander of title

superseding cause

an unforeseeable intervening event that may relieve a defendant of some liability for injuries that were caused by the intervening event

assault

any word or action intended to make another person fearful of immediate physical harm

defamation

anything published or publicly spoken that causes injury to another's good name, reputation, or character; also applies to a person's product, business, or legal ownership rights to property

abuse of process

applies to any person using a legal process against another in an improper manner; unlike malicious prosecution, prior litigation and proof of malice do not need to be established, simply the wrongful use of subpoenas, court orders, or other types of formal legal process needs to be proven

defenses against negligence

assumption of risk, superseding cause, and contributory and comparative negligence

actionable

capable of serving as the basis of a lawsuit;

slander

defamation in oral form

libel

defamation in writing or another permanent form (such as digital recording)

duty of care

factors that play into whether it has been breached: 1. the nature of the act (was it outrageous or commonplace?) 2. the manner in which the act was performed (cautiously vs. heedlessly) 3. the nature of the injury (serious or slight)

damages for libel (defamation)

general damages may be recovered; plaintiff doesn't need to prove that they were actually harmed in any specific way because of the libelous statement

malicious prosecution

grounds for suing a party who initiates a lawsuit out of malice and without a legitimate legal reason (and loses the suit)

when could a statement of opinion be considered a statement of fact?

if the individual making the statement has a superior knowledge of the subject matter (ex. a lawyer making a statement of opinion about the law in a state in which they are licensed to practice)

damage

in legal use, refers to harm or injury to persons or property

damages

in legal use, refers to monetary compensation for 'damage'

trespass to land

includes entering onto, above, or below the surface of land that is owned by another; causing anything to enter onto land (ex. shooting a gun over land); remaining on land or permitting anything to remain on it

two types of tort

intentional tort and unintentional tort

fradulent misrepresentation

involves: 1. the misrepresentation of facts with knowledge that they are false 2. an intent to induce another to rely on the false information 3. justifiable reliance by the deceived party 4. damage suffered as a result of the reliance 5. a casual connection between the misrepresentation and the injury suffered

strict liability

liability regardless of fault; applies to those engaged in abnormally dangerous activities, those who keep dangerous animals, and on manufacturers or sellers that introduce defective and unreasonably dangerous goods into commerce

measures to reduce number of tort cases

limiting amount of both punitive and general damages that can be awarded; capping the amount that attorneys can collect in contingency fees; requiring the losing party to pay both the plaintiff's and the defendant's expenses

negligent misrepresentation

misrepresentation made unintentionally/without knowledge; liability usually only arises when the defendant who made the misrepresentation owed a duty of care to the plaintiff to supply correct information (ex. attorneys and accountants to their clients)

punitive damages

monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct

negligence

must prove the following to be actionable: 1. duty - the defendant owed a duty of care to 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

statement of opinion

normally not actionable since they are protected under the First Amendment

battery

physical contact with another that is unexcused, harmful or offensive, and intentionally performed

damages for slander (defamation)

plaintiff must prove special damages to establish defendant liability in order to recover damages (except in cases of slander per se)

malpractice

professional misconduct or the lack of the requisite degree of skill as a professional

qualified privilege

protects a person from defamation liability; apply to statements that are made in good faith and when the publication is limited to those who have a legitimate interest in the statements (ex. employer's statements in their evaluation of an employee)

absolute privilege

protects a person from defamation liability; only granted in judicial proceedings and certain government proceedings (apply to statements made in a courtroom by attorneys and judges/by government officials during legislative debate)

"danger invites rescue" doctrine

relieves anyone of liability who causes injury to another in avoiding danger or rescuing another from danger

actual malice

required to establish defamation against public figures; occurs when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth

federal tort reform

state courts no longer have jurisdiction over class actions under the CAFA due to forum shopping

slander of title

the publication of a statement that denies or casts doubt on another's legal ownership of property, causing financial loss to that property's owner

reasonable person standard

the standard behavior against which negligence is measured and that must be observed to avoid liability for negligence

conversion

wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another (applies to electronic records as well