Chapter 9 Law of Tort

Distinguish the types of damages recoverable in tort actions?

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How are products liability actions distinct from other types of tort actions?

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How has the advent of discrimination suits by employees affected employer liability?

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How have workers' compensation laws affected tort actions?

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What are the 3 basic categories of tort?

1. negligence 2. intentional tort 3. strict liability

negligence

An act or failure to act toward another when (1) a duty was owed to the other person; (2) the act or failure to act was not what a reasonable person would have done under the circumstances; (3) the act or failure to act was the direct cause of injury to the other person; and (4) the injury resulted in measurable financial, physical, or emotional damage to the other person.

intentional tort

An act that the actor knows or should know with substantial certainty will cause harm to another.

Assault

Assault is commonly considered to be a physical attack of some sort, but its meaning is quite different in tort law. To prove an act of assault, it must be shown that the actor engaged in physical conduct, which may or may not have been accompanied by words, that placed the plaintiff in apprehension of immediate and harmful contact.

Battery

Battery encompasses physical attacks, medical treatment without consent, and every other conceivable act that results in physical contact between two parties as long as (1) there is the intent to make physical contact, (2) there is no consent to such contact, (3) the contact occurs to the person or to anything that is so closely attached that it is considered part of the person (e.g., clothing), and (4) the contact results in injury to the person.

Defamation

Defamation is the combined name for two types of intentional torts: libel and slander. Libel is an action for injuries that occur as the result of a written communication to a third party. Slander is the appropriate action when the injuries occur as the result of an oral communication.

last clear chance

Defense of a plaintiff responding to the defenses of an allegedly negligent defendant, in which the plaintiff claims that the defendant had the last opportunity to avoid the plaintiff's injury irrespective of the plaintiff's own negligence.

assumption of risk

Defense to negligence on the basis that the plaintiff knew of, appreciated, and voluntarily encountered the danger of the defendant's conduct.

comparative negligence

Degree of the plaintiff's own negligent conduct that was responsible for the plaintiff's injury.

contributory negligence

Doctrine maintaining that a plaintiff who contributes in any way to his or her own injury cannot recover from a negligent defendant.

Emotional Distress

Emotional distress is often called the catchall tort. A plaintiff can plead it as a negligence action or as an intentional tort. To prove an action for intentional infliction of emotional distress, however, it must be shown that the actor intentionally engaged in conduct so outrageous that the actor knew or should have known that its likely result would be a mental or emotional disturbance to the plaintiff of such a magnitude that it could produce a resulting physical injury.

A tort can include an action for breach of contract.

False

What types of claims involve strict liability?

Fault, carelessness, or intent is not an issue in actions for strict liability, because no matter how carefully an activity might be conducted or an animal might be guarded, it is a near certainty that if the danger escapes into a public area, innocent bystanders will be harmed.

strict liability

Liability without fault. Applied in situations in which the intention or neglect of the party is immaterial. The mere performance of the act will result in liability.

What is res ipsa loquitur and when does is apply?

Res ipsa loquitur is used in cases where the evidence that would disclose how the defendant was negligent is not available to the plaintiff.

How does a claim of strict liability differ from a claim for negligence?

Strict liability was applied in cases of extremely dangerous activities, whereas negligence

What is the purpose of strict liability and in what types of situations does it apply?

Strict liability was developed for use in cases of persons who obtained some personal or financial benefit from an activity that could not be made safe and from which the innocent public could not protect itself.

reasonable conduct

That action or nonaction which is appropriate under the circumstances when all risks and benefits are taken into account.

proximate cause

The direct cause that is sufficient to produce a result. For something to be the proximate cause, there can be no other intervening force that occurs independently and before the result that is also sufficient to produce the result.

Fraud

The intentional tort of fraud is perhaps the most commonly claimed tort in business and financial dealings. It must be shown that (1) the defendant made a material (significant) representation to the plaintiff that was untrue, (2) the defendant knew the statement was untrue or that his or her failure to ascertain its truth was reckless, (3) some affirmative conduct by the defendant indicates the intent to have the plaintiff rely on the statement, and (4) the plaintiff reasonably relied on the statement and as a proximate result was injured by it.

Define tort and give an example of a cause of action that is a tort and one that is not ?

Torts are wrongdoings that are done by one party against another. As a result of the wrongdoing, the injured person may take civil action against the other party. To simplify this, let's say while walking down the aisle of a grocery store, you slip on a banana that had fallen from a shelf. You become the plaintiff, or injured party, and the grocery store is considered the tortfeasor or defendant, the negligent party. Simply said, you would probably take civil action against the grocery store to recoup compensation for pain, suffering, medical bills and expenses incurred as a result of the fall. Negligence is just one tort category.

Trespass

Trespass is the intentional invasion of property rights. It occurs when someone personally or through his or her property enters the land of another or permits such an invasion to continue when another takes control of the property.

respondeat superior

a superior may be held responsible for injuries caused by its employee.

When is an employer liable for the acts of an employee?

an injured third party has the right to elect to sue the employer if the third party can demonstrate that the employee was a regular employee and not an independent contractor and that the injury was caused by the employee while acting within the scope of his or her employment.

Explain the reasonable man concept?

conduct of the alleged wrongdoer is measured against a standard of reasonableness (what would have been proper). The actions or omissions of a party accused of negligence are measured against what the conduct of a reasonable person would have been.

The ____ is an exception or defense to actions for battery.

emergency rule

An intentional tort requires the intent to injure

false

Assumption of risk is a defense of plaintiff.

false

Battery involves any unpermitted physical contact.

false

Contributory negligence, if proven, has the same effect as comparative negligence.

false

Defendant must have been actually aware of the foreseeable results of the action.

false

False imprisonment must be brought as a tortious criminal action.

false

Fraud is a form of tort negligence.

false

In negligence, the defendant knows with substantial certainty that the action will produce injury.

false

Res ipsa loquitur can be used in an intentional tort action.

false

Special damages are considered to be damages for unusual injuries.

false

The employer is not responsible if it does not actually cause the hostile environment to exist.

false

The reasonable person acts as the ordinary person would in similar circumstances.

false

How does negligence differ from an intentional tort? What types of claims involve strict liability?

intentional tort: the actor knows or should know with substantial certainty will cause harm to another while, negligence is a failure to act toward another

What are the types of defamation actions?

libel and slander

world-at-large approach

requires the defendant to foresee more remote possibilities of harm to persons not in the immediate area and of injuries not as readily foreseeable to occur

zone of danger

the area that the defendant should reasonably expect or foresee his or her actions to affect.

Identify and define the common defenses to tort?

the defenses of consent, privilege, immunity, and involuntary conduct are seen most often in intentional tort suits.

Which party claims last clear chance?

the plantiff; This doctrine states that even though a plaintiff contributed to endangering himself or herself, the defendant had the last clear opportunity to avoid the occurrence and prevent the plaintiff's injury but failed to do so.

How do the torts of assault and battery differ?

the tort of assault involves no physical contact, only the threat of such contact; The basis for an assault action is that the threat of immediate physical harm produces such fear or a reaction or both that it actually injures the plaintiff. The tort of battery includes all unpermitted physical contact that results in harm. Battery encompasses much more than a physical fight between two persons.

Assault requires the threat and existence of opportunity for actual harm.

true

Comparative negligence involves the apportionment of damages based on the degree of fault.

true

Defamation can occur in two ways.

true

General damages are amounts that must be estimated.

true

Last clear chance is a defense of plaintiff.

true

Proximate cause must be proven in an action for negligence.

true

Punitive is another term for exemplary damages.

true

Strict liability eliminates the requirement of proof of fault such as in negligence.

true

Under what circumstances is the assumption of risk doctrince applied?

when a defendant could prevent recovery by a plaintiff if the defendant could prove that the plaintiff was aware of the risk of danger, appreciated the seriousness of the risk, and voluntarily exposed himself or herself to the risk.