Chapter 7: Torts

Tortious interference

prohibits the intentional interference with a valid and enforceable contract. If the defendant knew of the contract and then intentionally caused a party to break the contract, then the defendant may be liable.

Puffery

promotional statements expressing subjective views is not fraud.

Defense of others

reasonable and proportionate force to defend another person or persons from harm or injury

Self-defense

reasonable and proportionate force to defend oneself from harm or injury.

Product misuse

If the consumer misuses the product in a way that is unforeseeable by the manufacturer, then strict liability does not apply. Manufacturers are still liable for any misuse that is foreseeable, and they must take steps to warn against that misuse.

but-for causation

This form of causation is fairly easy to prove. But for the defendant's actions, would the plaintiff have been injured?

False Light

A false light claim is similar to a defamation claim in that it allows an individual to sue for the public disclosure of information that is misleading (or puts that person in a "false light"), but not technically false. The key difference is that defamation claims only apply to the public broadcasting of false information; and as with defamation, sometimes First Amendment protections prevail. Generally, a false light claim must contain the following elements: (1) a publication by the defendant about the plaintiff; (2) it was done with reckless disregard; (3) it places the plaintiff in a false light and (4) it would be highly offensive or embarrassing to a reasonable person. Example: In 1992, a 96-year-old woman sued an Arkansas newspaper for printing her picture next to the headline, "Special Delivery: World's oldest newspaper carrier, 101, quits because she's pregnant!" The woman, who was not pregnant, was awarded damages of $1.5 million

Dignitary Torts

Alienation of affection and other "heart balm" torts Malicious prosecution Invasion of privacy Defamation

Intentional Torts

Assault False imprisonment Intentional infliction of emotional distress (IIED) Battery

Intrusion of Solitude

Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records. Example: A man with binoculars regularly climbs a tree in his yard and watches a woman across the street undress through her bathroom window. Her injury is the emotional distress she suffers upon seeing the perpetrator looking at her.

Misppropriation of Name or Likeness

Plaintiffs may make a claim for damages if an individual (or company) uses their name or likeness for benefit without the other party's permission. Usually this involves a business using a celebrity's name or likeness in an advertisement. In fact, some states limit this type of invasion of privacy tort to commercial uses. The recognition of this tort is similar to a property right; in other words, a person's name and likeness are treated as that person's property. For celebrities, this is often referred to as "right of publicity." Example: In 2005, an advertising agency approached musician Tom Waits with regard to an ad campaign for a new automobile. Waits, who has a distinctive and easily recognizable voice, declined. So the advertisers hired someone who sounds like him to do the soundtrack, prompting Waits to sue the automaker for appropriating his likeness.

Strict Liability

Product liability Ultrahazardous activity (examples include transportation of explosives, possession of wild animals, radioactive materials, etc.)

proximate cause

Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's injuries.

Public Disclosure of Private Facts

This type of invasion of privacy claim must be weighed against the First Amendment's protection of free speech. Unlike defamation (libel or slander), truth of the disclosed information is no defense. Legal action may be taken if an individual publicly reveals truthful information that is not of public concern and which a reasonable person would find offensive if made public. Example: In 1931, the maiden name of a former prostitute who was acquitted of murder was revealed in a film about the case. Since the trial, she had moved to another city, gotten married and adopted a new lifestyle. Her new friends were unaware of her past, so the disclosure of this true but embarrassing information was deemed an invasion of her privacy.

vicarious liability

Tort litigation is perhaps the most frequent user of the vicarious liability theory; this theory allows someone injured by an employee to sue and collect a settlement from that person's employer. Frolic and detour is an exception to the vicarious liability rule. A frolic and detour is almost exactly what it sounds like; an employee who ordinarily would be engaged in the activities dictated by the terms of his employment briefly strays from those activities. If he or she strays far enough for the behavior or activity to be completely unrelated, the law labels the employee's actions during that time a "frolic and detour

Open and Obvious doctrine

a defense used mostly in Premise liability cases. The general rule is that a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from any unreasonable risk of harm caused by a dangerous condition on the land. The open and obvious doctrine is a major exception to this general rule. According to the doctrine an invitor is protected from liability if the danger is an open and obvious one. The foundation for this rule is that the open and obvious nature of the dangerous situation serves as a warning to the invitee and the person is expected to recognize the potential danger and to protect himself against it.

Defamation

a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice.

Duty

arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.

Assumption of the risk

as in negligence the user must know of the risk of harm and voluntarily assume that risk.

Good Samaritan law

be a defense in a negligence suit. Good Samaritan statutes are designed to remove any hesitation a bystander in an accident may have to providing first aid or other assistance. They vary widely by state, but most provide immunity from negligent acts that take place while the defendant is rendering emergency medical assistance. Most states limit Good Samaritan laws to laypersons (i.e., police, emergency medical service providers, and other first responders are still liable if they act negligently) and to medical actions only.

Breach of Duty

defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact.

Attractive nuisance

when there is an item or condition on a property that would be attractive or dangerous to children, even if they are trespassing, the homeowner must take care to both warn children about the attractive nuisance and protect them from harm posed by the attractive nuisance. (pools, abandoned cars, refrigerators left out for collection, trampolines, piles of sand or lumber). Key question is whether or not children can understand or appreciate the risk.

Trespass to land

whenever someone enters onto, above, or below the surface of land owned by someone else without the owner's permission. The trespass can be momentary or fleeting. Soot, smoke, noise, odor, or even a flying arrow or bullet can all become the basis for trespass. Defenses: invitee : someone invited by the owner license to trespass: meter reader or repairman necessary to trespass: to rescue someone in distress.

libel

written defamation

Consent

players on a sports team are presumed to have consented to be battered.

Negligence

If the tortfeasor didn't act intentionally but nonetheless failed to act in a way a reasonable person would have acted.

Assault

- is an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact. Actual fear is not required for assault—mere apprehension is enough.

Elements of a Negligence Claim

1. duty; 2. breach; 3. causation; and 4. damages.

Comparative negligence

Contributory negligence has led to harsh results in some cases, and the majority of states have replaced the doctrine with an alternative called comparative negligence . The doctrine of comparative negligence reduces a plaintiff's recovery by the percentage in which the plaintiff is at fault for his or her damages. A majority of states have modified this rule, barring a plaintiff from recovering if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant. Example: a drunk driver strikes and seriously injures a pedestrian who failed to use a nearby crosswalk. Although it's unlikely the driver would have acted any differently had the pedestrian used the crosswalk, the driver's civil liability may be reduced due to the plaintiff's own negligence.

Negligence

Duty of care Breach of that duty Proximate causation Damages

Commonly known danger doctrine

If a manufacturer can convince a jury that the plaintiff's injury resulted from a commonly known danger, then the defendant may escape liability. Because product liability is strict liability, the plaintiff's contributory or comparative negligence is not a defense.

foreseeability test

If an injury is foreseeable, then proximate cause exists. If it is unforeseeable, then it does not.

Assumption of the risk

If the plaintiff knowingly and voluntarily assumes the risk of participating in a dangerous activity, then the defendant is not liable for injuries incurred. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. The assumption of risk defense would not apply to any additional, unknown dangers.

Intentional tort

If the tortfeasor acted with intent to cause the damage or harm that results from

Doctrine of joint and several liability

Joint and several liability" allows a plaintiff to "sue for and recover the full amount of recoverable damages from any [defendant]." Restatement (Third) of Torts: Apportionment of Liability § 10 (2000). In its pure form, the practical effect of this doctrine is that the plaintiff can recover the entire amount of damages from any of the jointly and severally liable tortfeasors, regardless of a particular defendant's percentage share of fault.

slander

Oral defamation

intentional infliction of emotional distress (IIED).

When a battery has not incurred but an individual's emotions have been battered, an injured party may file a claim for Two Elements: extreme and outrageous conduct (measured objectively); and emotional distress

Economic Torts

Tortious interference Fraud Restraint of trade

Property Torts

Trover - recovery of damages for the taking of personal property Replevin - recovery of property unlawfully taken Detinue - action by a person who believes they have a greater legal right to immediate possession of property rather than the current posessor Conversion - deprives person of their property (destruction of property, willful interference, etc.) Trespass

Dram shop laws

When restaurants, bars, and taverns serve alcohol to minors or visibly intoxicated persons This is considered an ultrahazardous activity because there is a high risk of probability that these patrons, if they drive, will injure others. many states have laws that impose strict liability in these circumstances.

Ultrahazardous activity

an activity so inherently hazardous that those who undertake the activity and cause injuries are held strictly liable. Example: Transporting dangerous chemicals or nuclear waste is inherently dangerous. If the chemicals spill, it is very difficult, if not impossible, to prevent injury to property or persons.

tort

any legally recognizable injury arising from the conduct (or nonconduct, because in some cases failing to act may be a tort) of persons or corporations. All the crazy stuff that you can possibly imagine happening to a person.

Affirmative defense

are raised by the defendant essentially admitting that the four elements for negligence are present, but that the defendant is nonetheless not liable for the tort. There are three types of affirmative defenses to a negligence claim: assumption of the risk contributory or comparative negligence Good Samaritan statutes

Nuisance

exists when a tortfeasor acts in a manner that interferes with someone else's use or quiet enjoyment of land. A public nuisance occurs when a tortfeasor's actions interfere with public health, safety, or welfare.

Negligence per se doctrine

if someone is convicted of a crime, he or she is also automatically liable in civil tort law. Criminal defendants who wish to avoid a criminal trial are permitted to plead "no contest" to the criminal charges, which permits the judge to sentence them as if they were guilty but preserves the right of the defendant to defend a civil tort suit.

Strict liability

if the tortfeasor is engaged in certain activities and someone is injured or killed, the tortfeasor is held liable no matter how careful or careless he or she may have been.

Invasion of Privacy

intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. The four main types: Intrusion of Solitude Misappropriation of Name or Likeness Public Disclosure of Private Facts False Light

Battery

is a completed assault. It is any unconsented touching, even if physical injuies are not present. The touching does not have to be direct, it can be through an object.

Contributory negligence

is an absolute defense in situations where the plaintiff contributed to his own injuries. Contributory negligence occurs when a plaintiff's conduct falls below a certain standard necessary for the plaintiff's protection, and this conduct cooperates with the defendant's negligence in causing harm to the plaintiff. This means the plaintiff most likely would have avoided injuries had he or she not also been negligent. Although state laws differ, in a state that follows the contributory negligence rule, a plaintiff's own negligence, no matter how minor, could bar the plaintiff from any recovery. Example: a factory worker suffers serious burns to his face after his welding torch malfunctions. However, he failed to flip down his mask before using the torch, which would have prevented the injury. Technically speaking, the plaintiff's negligence for his safety (failure to use proper safety equipment) is the cause-in-fact and proximate cause of the damages.

Compensatory damages

money damages to compensate for economic losses stemming from injuries. (easy to calculate for breach of contract claim, difficult to calculate for tort claim.)

Punitive damages

money damages to punish the defendant for gross and wanton negligence to deter future wrongdoing.

Fraudulent misrepresentation

requires the tortfeasor to misrepresent facts (not opinions) with knowledge that they are false or with reckless disregard for the truth. An "innocent" misrepresentation, such as someone who lies without knowing he or she is lying, is not enough—the defendant must know he or she is lying.

emotional distress

some states require plaintiff must demonstrate some physical manifestation of the psychological harm (such as sleeplessness or depression) to win any recovery.

public figure

someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures—a government employee, a senator, a presidential candidate—someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across.

Injurious falsehood (or trade disparagement)

takes place when someone publishes false information about another person's product.

actual malice

that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.

strict liability

the defendant is liable no matter how careful the defendant was in preventing harm. Three areas of strict liability: 1. carrying out ultrahazardous activities ; 2. serving of alcohol to minors or visibly intoxicated persons; and 3. the manufacture, distribution, and sale of unreasonably dangerous products

Tortfeasor

the person committing the tort.

Design defect theory

the product is defective because it was designed incorrectly or in a manner that causes the product to be unreasonably dangerous. The primary inquiry in a design defect case is whether the product -- because of the way it was designed -- creates an unreasonable risk of danger to the consumer or user when put to normal use. To establish liability in a design defect case, the plaintiff must prove 1. the product, as designed, is unreasonably dangerous and therefore "defective"; and 2. the demonstrated defect caused his injuries.

Defective Product theory

the product was defective because of a flaw in the manufacturing process. In a strict product liability case, the plaintiff must show that: 1. a product was sold in an unreasonably dangerous condition or with an inadequate warning; 2. the seller expected and intended that the product would reach the consumer without changes to the product, and 3. the plaintiff or the plaintiff's property was injured by the defective product. Strict liability only applies to commercial sales.

Trespass to personal property

the unlawful taking or harming of another's personal property without the owner's permission.

Respondent superior doctrine

when an employee is working for the employer's benefit and commits a tort, the employer is liable. The employee was on a frolic and detour at the time he or she committed the tort.

Malpractice

when professionals such as doctors, accountants, dentists, architects, and lawyers who owe a special duty to act as a reasonable person in their profession violate that duty. Professional negligence by these professionals is known as malpractice

Conversion

when someone takes your property permanently; it is the civil equivalent to the crime of theft.