ch 5 legal

slander

involves communication of the defamatory statement by spoken words or gestures, like a nod of the head, a wink, or hand gesture

chattel

personal property with tangible physical existence

private nuisance

private nuisance is a strictly private tort remedy, closely related to the tort of trespass. Designed to protect against invasions of the private interest in the use and enjoyment of land, whereas trespass protects against wrongful interference with possession of land.

limiting punitive damages

Some states have limits on punitive damages (max proportion of compensatory damages or a normal limit, called a "cap"). Other states use bifurcated trials that only allow juries to hear evidence after the defendant is found liable and they have calculated the compensatory damages.

Reducing liability

Tort law recognizes certain defenses that extinguish or reduce the defendant's liability, even if a plaintiff establishes all the elements of a tort, a defendant may prove facts constituting a legitimate defense to the plaintiff's recovery. A defense may be complete, the defendant is released from all liability, or partial, the defendant's liability is reduced.

2 types of invitees

public and business

The law recognizes two types of action for defamatory publications

libel and slander

"But-for" or "Sine Qua Non" Test

under this test, the defendant's conduct is the proximate cause of the injury if the injury would not have occurred but for that conduct.

Hairston v. Alexander Tank and Equipment Co.

Automobile accident after dealership sold car with faulty wheel which fell off. Car pulled to the side, a van stopped behind the car and tried to help. A truck ran into the van and crushed John Hairston in between the car and van, killing him. His wife sued Alexander Tank and Equipment Co. and the dealership for negligence.

Lanier v. Wal-Mart Stores, Inc.

Lanier slipped on a clear liquid in Wal-Mart, suing Wal-Mart for negligence. The trial court and appeals court granted summary judgement to Wal-Mart.

Intentional Infliction of Emotional Distress

Mental pain and anxiety are recognized as an element of damages in other personal torts like assault, battery, and false imprisonment. Courts allow compensation in tort for intentionally imposed severe emotional distress and the resulting bodily injury if the defendant's conduct is "extreme and outrageous".

negligence

Negligence law compensates those who are injured because of a person's careless, not intentional, conduct that creates an unreasonable risk of harm. Negligence occurs when a person does something that a reasonable person would not do or fails to do something that a reasonable person would do.

false imprisonment/false arrest

Tort law safeguards an individual's freedom of movement by imposing liability for false imprisonment (aka false arrest). A person who intentionally confines another within fixed boundaries has committed false imprisonment. In recognition of the serious problems posed by shoplifting, most states have adopted statutes (sometimes called merchant protection legislation or shopkeeper's privilege statutes) that relieve a merchant from liability for false imprisonment if the merchant acts reasonably in detaining and confining suspected shoplifters.

business invitee

a business invitee is a person invited to enter or remain on the premises to conduct business with the possessor of the property (a patron of a retail store)

trespass

a person commits trespass by intentionally interfering with another's right to exclusive possession of real property

public invitee

a public invitee is a member of the public invited to enter or remain on the property for a purpose for which it is held open to the public (like a library or museum)

public nuisance

a public nuisance involves invasion of public rights, those common to all members of the public

trespasser

a trespasser is a person who enters or remains upon another's property without a privilege to do so.

contributory negligence

contributory negligence is negligence on the plaintiff's part, which combining with the defendant's negligence, causes the plaintiff harm. Traditionally, the existence of contributory negligence recovered the defendant, rendering them not liable.

turntable or attractive nuisance doctrine

if a possessor (1) maintains an artificial condition upon the land around which he or she knows or should know children are likely to trespass, and (2) the condition poses an unreasonable risk of death or injury to such children who, because of their youth, are unable to discover the danger or realize the risk presented, and (3) the utility to the possessor in maintaining the condition and the burden of eliminating the danger are slight when compared to the risk involved, then the possessor is liable for injury to the trespassing children caused by the condition if he or she fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Tort liability is imposed on 3 basic grounds

intent, negligence, and strict liability.

real property

interests in land and personal property includes anything else that can be owned

liability for defamation

liability for defamation requires the statements to be false and defamatory. Even if the statement is made to lower their reputation, if it is true, the defendant is defended. Defamatory statements concerning a business's credit, honesty, or efficiency are actionable.

nuisance

nuisance refers to a human activity conducted on land or a physical condition of land that is harmful or annoying to neighboring landowners or members of the public generally

tort-feasor

A person who commits a tort is a tort-feasor, and acts or omissions constituting torts are said to be "tortious."

tort

A tort (tortus in Latin, which means "twisted") is a civil wrong, other than breach of contract, for which the law will provide a remedy, usually in the form of an action for damages. Tort law provides compensation for legal wrongs committed against a person or her property arising independently of any contract between the parties.

Compensatory damages

Generally the plaintiff is entitled to compensatory damages (a money award designed to compensate for the injuries). Compensatory damages include payment for medical bills, property damage, loss of income, total or partial disability, and sometimes "pain and suffering."

"substantial-factor" test

Under this test, when separate acts of negligence combine to produce a single injury, each tort-feasor is responsible for the entire result even if her act alone may have not caused it.

conversion

Unreasonable interference with use and possession of tangible personal property is compensable in tort through an action for conversion. Conversion occurs when one person intentionally exercises control over a chattel belonging to another, which so seriously interferes with the owner's right to control it that the possessor may have to pay the owner the full price of the chattel.

McIntyre v. Balentine

Vehicular collision, both were drinking. Balentine was also speeding. Jury found the defendant and plaintiff equally at fault and ruled in favor of the defendant. McIntyre appealed saying comparative fault should have been used. Appeals court affirmed. Supreme court remanded the case for a new trial.

An invasion of privacy action may provide compensation for three types of interference

(1) Intentional intrusions, highly offensive to a reasonable person, into a person's solitude or private affairs (spying through windows, tapping telephone wires, making harassing phone calls or visits). (2) Wrongful appropriation of another's name or likeness (using another's name or picture to promote the defendant's product, business, or other commercial venture). (3) Publicity portraying a person in an objectionably false light if the defendant knows the portrayal is false or that it recklessly disregards the truth. If the false publicity given to the plaintiff is also defamatory, an invasion of privacy action provides an additional or alternative remedy.

In Intentional Infliction of Emotional Distress, the plaintiff must prove 3 things

(1) Outrageous conduct by the defendant. (2) The defendant's intent to cause (or reckless disregard of the probability of causing) emotional distress. (3) The plaintiff's suffering extreme and severe emotional distress caused by the defendant's conduct.

determining proximate cause generally requires resolving 2 questions

(1) did the defendant's negligence in fact cause the injury, and (2) if so, was the injury to the plaintiff foreseeable?

Trespass occurs if without permission or legal privilege, a person intentionally

(1) enters land possessed by another, (2) causes anything or anyone to enter onto the land, (3) remains on the land, or (4) fails to remove from the land a thing which he is under a duty to remove.

Courts have allowed recovery for the following 4 examples

(1) spreading a false rumor that the plaintiff's spouse or child had been seriously injured or committed suicide. (2) bullying tactics by insurance adjusters seeking to force a settlement. (3) threats or verbal abuse of particularly susceptible persons, such as invalids or children. (4) mishandling or mutilation of dead bodies by funeral directors, hospitals, and others.

negligence alone does not subject a person to tort liability. To recover damages for the tort of negligence, the plaintiff must prove 4 things

(1) the defendant owed the plaintiff a legal duty not to be negligent, (2) the defendant breached that duty by failing to act as a reasonable person would act under the circumstances, (3) the defendant's negligence was the "proximate" or "legal" cause of an injury suffered by the plaintiff, and (4) the plaintiff suffered actual loss, damage or injury as a result of the defendant's conduct.

Tort actions begin when a person injured by another's act or omission files a complaint in an appropriate court alleging that the defendant has committed a tort and requesting damages. All tort actions require the plaintiff to prove 3 things

(1) the existence of a legal duty owed by the defendant to the plaintiff (2) breach of that duty (3) injury or damage as a proximate result of the defendant's breach.

Tort law is derived from state common law, developed by the courts on a case-by-case basis. Tort and criminal actions differ in 3 ways

(1)The identity of the plaintiff (the public generally versus an injured individual). (2) The nature of the relief sought (punishment versus compensation). (3) The source of the law (statute versus common law). Most torts are not crimes!

battery

A battery is a harmful or offensive contact with a person which is intended by the actor to cause such a contact. A battery may be committed by a direct use of force, such as a punch, or indirectly. Battery liability may be imposed whether or not the contact causes physical injury.

A communication is defamatory if

A communication is defamatory if it "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him

assumption of the risk

A defendant establishes assumption of the risk by proving that the plaintiff voluntarily assumed the risk of harm caused by the defendant's negligent conduct. Plaintiff's consent, express or implied.

licensee

A licensee is a person privileged to enter or remain upon the land only because the owner consents.

assault

An assault occurs if a person, intending to cause a harmful or offensive contact, acts in a manner that places another in imminent apprehension of such a contact. A defendant in an assault or battery case may avoid liability by proving they used self defense.

jointly and severally liable

If a plaintiff's injury was caused by more than one person's tortious actions, they usually sue everyone involved. If the defendants worked in concert, they are considered to be joint tort-feasors and held jointly and severally liable for damages. Joint tort-feasors can all pitch in to pay the damages, or one person can pay for it all. If the injuries reasonably can be apportioned or a distinct injury per defendant, the damages will be assessed against each defendant individually. If there is no basis for apportioning damages, states usually have imposed joint and several liability on all defendants. Under this liability each defendant is responsible for all damages. Joint and several liability is imposed because of the policy that an innocent plaintiff should not be denied recovery from defendants who partially caused the injury because the plaintiff cannot prove the extent of injury caused by each defendant.

public officials and defamatory statements

In New York Times Company v. Sullivan, the Supreme Court held that a public official, such as an elected official or government employee, is prohibited "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice', meaning with knowledge that it was false or with reckless disregard of whether it was false or not." The defendant is not liable for negligently or inadvertently publishing a defamatory statement (such as by failing to adequately check sources). Actual knowledge of falsity or reckless disregard of the truth is required. Subsequent Supreme Court decisions have extended this "knowledge-reckless disregard" rule to candidates for public office and public figures. "Public figures" include both persons who have achieved pervasive fame or notoriety (who are public figures for all purposes in all contexts) and those who voluntarily inject themselves into a particular public controversy (who become public figures for a limited range of issues). Private plaintiffs may recover for false and defamatory statements published merely as a result of the defendant's negligence.

punitive or exemplary damages

In certain cases the defendant also may be assessed punitive or exemplary damages, a monetary award designed to punish the defendant and to deter similar conduct by the defendant or others in the future. Punitive damages are awarded only in cases involving a defendant's intentional and deliberate disregard for others' rights (like fraud and the sale of unreasonably dangerous products). The amount of damages, like the issue of liability, is normally determined by the trier of fact (normally the jury). Compensatory damages must be supported by evidence like medical bills. A jury's punitive damage award need bear no relation to actual compensatory damages, and usually exceeds them, but the U.S. Supreme Court says if it is too high it may be an unconstitutional violation of due process.

comparative fault

In comparative fault, the negligent plaintiff is awarded damages reduced in proportion of his fault. Wealthy defendants or parties carrying insurance may be forced to pay the full amount of the judgement and then be unable to obtain contribution from poorer or uninsured defendants. Under comparative fault principles adopted in many states, each of several defendants may be liable only for the percentage of the plaintiff's damages caused by that defendant's negligence.

intentional torts

In intentional torts the tort-feasor acts deliberately with the desire to harm the plaintiff

strict liability

In strictly liability torts, the defendant is held liable in the absence of either negligence or intent to interfere with the plaintiff's legally protected interests. Strictly liable means liable without fault.

Intentional Interference with the Person

Many tort actions are designed to protect a person's physical or emotional well-being against intentional interference. Tort law protects a person against harmful or offensive bodily contacts (and apprehension of such contacts) and confinement. It also protects intangible emotional interest, such as a person's peace of mind, regulation, or right to be left alone. The torts safeguarding these interests include assault, battery, false imprisonment, intentional infliction of emotional distress, defamation, and invasion of privacy.

State Department of Environmental Protection v. Ventron Corporation

New Jersey Environmental Protection Agency sued multiple companies including Ventron Corporation to recover damages for cleanup of the area they polluted with mercury and other pollutants. Trial court found them all strictly liable.

Adams v. Zayre Corporation

Plaintiff Mary Adams sued Zayre Corporation for false imprisonment. After Adams bought two blankets and left the store with her daughter, they were detained from 2 members of Zayre's security staff. The security manager said they saw Adams put a radio in her purse, but when searched in the security room there was no radio found. After being detained for 30 minutes, they were allowed to leave. After the trial, the jury found Zayre liable for false imprisonment and awarded Adams compensatory damages of $2,500, and punitive damages of $30,000. Zayre appealed. Sections 16A-5 and 16A-6 of the Illinois Criminal Code is a statute that empowers a merchant who has reasonable grounds to believe that a person has committed retail theft to detain such person in a reasonable matter for a reasonable amount of time.

intent

The Restatement (Second) of Torts finds a person's conduct intentional if he either "desires to cause the consequences of his act, or... believes that the consequences are substantially certain to result from it." The probability that the harmful consequences will follow decreases to less than substantial certainty, the conduct is reckless, or ultimately negligent, not intentional, and increases the risk of harm. In intentional and negligent torts, the law imposes liability because of the defendant's "fault" in causing the plaintiff's harm. Intent and negligence represent differing degrees of fault.

defamation

The law has long protected, through a tort action for defamation, a person's reputation and good name. To recover for defamation, the plaintiff must prove that a false and defamatory statement was made and communicated or "published" to a third party, and that the defendant was at fault for disseminating the statement.

right to privacy

The right to privacy is generally defined as simply the right to be left alone.

reasonable person

To avoid liability for negligence, a person must conform his conduct to that of a reasonable person. A reasonable person is a hypothetical, fictitious person who possesses characteristics of attentiveness, knowledge, intelligence, and judgement required by society for the protection of others. A personification of the community ideal of reasonable behavior.

libel

involves the publication of a defamatory statement by written or printed words, like a magazine or book