LS CH 6

res ipsa

"the thing that speaks for itself"- shows someone is negligent. says that there is no way there can't be negligence ex. shoulder sponge

Defenses to Wrongful Interference

- a person will not be liable for the tort of wrongful interference with a contractual or business relationship if it can be shown that the interference was justified, or permissible -BONA FIDE COMPETITIVE behavior aka honest competitton- through aggressive marketing and advertising strategies, for instance- is a permissible interference even if it results in the breaking of a contract

Nuisance

- an INTENTIONAL tort - similar to trespass however, its indirect and generally not a person interfering with the land but a THING ex. Bob plants a tree in his own land. The tree grows and its branches and roots spread onto Sue's land. It is a nuisance

Proximate Cause

-also known as "legal cause" -defendant not necessarily liable for ALL damages -test: was it foreseeable that this action would result -defendant who is NOT found to be the proximate cause- is not liable!! generally, if the victim or the consequences of a harm done were unforeseeable, there is no proximate cause

Misappropriation of name

-also known as Approporiation of Right of Publicity -an attempt by a person to use another persons name or identity for commercial gain ex. using famous persons name or likeness to sell a product they didn't say you could use

Intentional torts (6)

-assault & battery -false imprisonment -defamation -invasion and misappropriation of privacy -intentional infliction of emotional stress -fraudulent misrepresentation

Characteristics of torts

-designed to compensate those who have suffered a loss or injury due to another person's wrongful act -two notions serve as the basis of all torts: wrongs and compensation

Cause in fact

-must be proven before plaintiff can recover -harm suffered must be a result of defendant's actions - must be the cause and effect of plaintiff's harm e.g. person breaks their arm when they are hit by a car while riding their bicycle two questions are asked: is there causation in fact? and was the act the proximate, or legal, cause of the injury? (asks whether the injuries sustained were foreseeable or were too remotely connected to the incident to trigger liability)

Slander of Title (aka trade libel)

-published article/speech that shows a person's product isn't their own/not what the owner says -goes to the legal ownership of property i.e. lemon's cars are from the black market Usually, this is an intentional tort in which someone knowingly publishes an untrue statement about another's ownership of certain property with the intent of discouraging a third person from dealing with the person.

Slander of quality

-publishing an untrue statement with intent that 3rd party won't use -must prove that P sustained economic damages -goes to a person's products i.e. shaky's pizza uses alpo dog food instead of hamburger

two types of compensatory damages

-special damages: compensate the plaintiff for quantifiable monetary losses -general damages: compensate individuals (not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering (a court might award general damages for physical or emotional pain and suffering, loss of companionship etc.)

Defenses to defamation (3)

-the truth -privileged communications (absolute privilege in judicial proceedings or statements made by attorneys and judges in a courtroom during a trial) (qualified or conditional privilege for example, an employers statements in written evaluations of employees is protected by qualified privilege) -public figures (public figures are considered "fair game" and false and defamatory statements about them that are published in the media will not constitute defamation unless the statements are made with actual malice)

Key differences between trespass and nuisance

-trespass is direct and nuisance is indirect -trespass is with some material or tangible objects/person and nuisance is created by some intangible objects such as gas, noise, smell, smoke, pollution, vibrations, electricity etc. -trespass interferes with the possession of the land or property of plaintiff and nuisance interferes with the plaintiffs use or enjoyment of land or property

abuse of process

-using the legal process for improper manner (including subpoenas, depositions etc.) -burden of proofs are different ex. trying to depose someone over and over again or issuing many subpoenas to get someone to come in

In most states, the following four types of declarations are considered to be slander per se:

1. A statement that another has a particular type of disease (such as a sexually transmitted disease or mental illness) 2. A statement that another has committed improprieties while engaging in a profession or trade 3. A statement that another has committed or has been imprisoned for a serious crime 4. A statement that a person (usually only unmarried persons and sometimes only women) is unchaste or has engaged in serious sexual misconduct

A trespass to land occurs when a person, without permission, does any of the following:

1. Enters onto, above, or below the surface of land that is owned by another 2. Causes anything to enter onto land owned by another 3. Remains on land owned by another or permits anything to remain on it

There are three basic affirmative defenses in negligence cases (defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states) what are they?

1. assumption of risk 2. superseding cause 3. contributory/comparative negligence

two types of causation

1. cause in fact: the actual cause of the accident- uses the "but for" the defendant's act or omission, there wouldn't be an injury 2. proximate cause: the point at which a negligent party is legally responsible or foreseeability of the harm

Defenses to A&B (4)

1. consent (boxer in a boxing ring) 2. self-defense (putting your hand up) 3. defense of others- can protect others who are in real or apparent danger 4. defense of property- protection of home

the 4 elements of negligence

1. defendant owed a duty of care 2. defendant "breached" (or failed) this duty 3. Plaintiff suffered injury because of it 4. Defendant's breach caused the Plaintiff's injuries

Invasion of privacy includes: (4)

1. intrusion into an individuals affairs or seclusion 2. false light (ex. publishing a story about someone that attributes ideas and opinions not held by that person 3. public disclosure of private facts (note- the news reports about public figure's behavior is not actionable because a public figure's behavior is a legitimate public concern) 4. appropriation of identity (using a person's name, picture, likeness, or other identifiable characteristics for commercial purposes without permission)

Assumption of risk elements

1. knowledge of the risk 2. voluntary assumption of the risk -does not apply in emergency cases

Five elements to Fraudulent Misrepresentation

1. misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth 2. The wrongdoer must intend to deceive the innocent party 3. The innocent party must have justifiably relied on misrepresentation 4. the innocent party was injured 5. with a casual connection* (you were the person who caused the injury or you are the person who could have stopped they injury)

Defenses to trespass to land

1. show that the trespass is warranted- such as when a trespasser enters a building to assist someone in danger 2. someone is a licensee- one who is invited (or allowed to enter) onto the property or another for the licensee's benefit

Defenses to Negligence

1. superseding of intervening event: Defendant's liable for foreseeable events 2. Assumption of risk: defendant can use against plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury ex. going to a sporting event, going to the gym etc. 3. contributory negligence 4. comparative negligence

Intentional torts against property (3)

1. trespass to land 2. trespass to personal property 3. conversion These torts are wrongful actions that interfere with individual's legally recognized rights with regard to their land or personal property

Unintentional torts- negligence

A person is liable for harm that is the foreseeable consequence or result of their action -the tortfeasor neither wishes to bring about the consequences of the act nor believes that it will occur -an omission to do something which a reasonable person would do or doing something that a reasonably prudent person would not do

What is a tort?

A wrong that can be rectified by a CIVIL trial

Defamation of character (definition and requirements)

FALSE statement about another to ruin or harm reputation -p must prove d made an untrue statement -statement was understood to be about p and intended to harm their reputation -statement was intentional "published" to a 3rd party -if p is a public figure- must have malice FACT not OPINION -truth is almost always an absolute defense

What is the difference between an intentional tort and an unintentional tort?

Negligence aka fault without intent

Wrongful interference with a contractual relationship (3 elements)

Three elements are necessary for wrongful interference with a contractual relationship to occur: 1. A valid, enforceable contract must exist between two parties 2. A third party must know that this contract exists 3. This third party must INTENTIONALLY cause one of the parties to contract to breach the contract

causation

a person isn't liable unless the act causes the plaintiff's harm

Wrongful Interference with business relations

a) an established business relationship b) the tortfeasor by use of a predatory method INTENTIONALLY causes the business relationship to end c) P suffers damages as a result of the tortfeasor's actions (usually economic harm)

Negligent Infliction of Emotional Distress

allows for a person to recover for emotional distress -caused by the defendants conduct e.g. mother witnessing her child getting hit by a car

compensatory damages

an award to compensate or reimburse the plaintiff for actual losses -goal is to put the plaintiff in the same position they were in before the tort occurred -two types: special(monetary) and general(non monetary)

Gross negligence

an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another

Business Torts (2 kinds)

business torts generally involve wrongful interference with another's business rights. Business torts involving wrongful interference generally fall into two categories: interference with a contractual relationship and interference with a business relationship

3 types of damages that a plaintiff seeks

compensatory damages, punitive damages, injunctive relief

Personal property

consists of all other items, including cash and securities (stocks, bonds, and other ownership interests in companies)

Injunctive Relief

court says you can't do something or you have to do something

Attractive Nuisance Doctrine

deals with children under the age of 14 who cannot appreciate the danger of what they are doing and that is a man made object ex. a child drowning in your pool - things that mitigate damages: reasonable precautions like fences signs etc.

superseding or intervening event

defendant is liable only for foreseeable events ex. derrick negligently hits julie and she breaks her arm. while she is waiting for help to arrive, an explosion nearby hits her with debris. derrick is only liable for the bicycle damages because the risk of injuring her with the bicycle is foreseeable . he's not liable for the explosion because the risk of an explosion nearby and injuring julie was not forseeable

comparative negligence

doctrine under which damages are apportioned according to fault -based on 100% liability -court allocates fault -car accident- Tom is found to be 80% at fault, bill is 20% -OK has 51% rule as does most states

Breach of duty

failing to use care or to act as a reasonable person would -can be an action or a failure to act

Slander per se

if a false statement constitutes "slander per se" it is actionable with no proof of special damages required

contributory negligence

if a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant. no matter how insignificant the plaintiff's negligence was related to the defendant's negligence, the plaintiff would be precluded from recovering any damages

qualified privilege

if you are an employer giving an evaluation (Written or oral)

absolute privilege

if you're an attorney in the court room or legislative body

transferred intent

intent can be transferred when a defendant intends to harm one individual , but unintentionally harms a second person

3 types of torts

intentional business torts, unintentional (negligence), strict liability/product

False Imprisonment

intentional confinement of a person without justification and without authority -interferes with the freedom to move without restraint -doesn't necessarily have to involve barriers -can also be threat of harm or false assertion of authority

Real property

land and things permanently attached to the land, such as a house

Damages with defamation: damages for libel and slander are different -- why?

libel- general damages- automatic because hard to ascertain slander- "special damages" -must show economic loss/injury, public figures and malice LIBEL- in other words, to recover damages, the plaintiff need not prove that he or she was actually harmed in any specific way as a result of the libelous statement (general damages) SLANDER- must prove special damages to establish the defendant's liability. plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses. THE REASON FOR THIS-- oral statements have a temporary quality. In contrast, a libelous (written) statement has the quality of permanence and can be circulated widely, especially through tweets and blogs. Also, libel usually results from some degree of deliberation by the author.

Frivolous lawsuits occur in 2 ways:

malicious prosecution and abuse of process

negligence per se

may occur if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured

Intent

means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act

punitive damages

meant to punish the wrongdoer and deter others from similar wrongdoing. appropriate only when the defendants conduct was particularly egregious (very bad)

Slander

oral statement

malicious prosecution

party does so out of malice and no real basis in legal reasoning

Duty of care

the obligation each individual has not to cause harm to another person -"reasonable person standard" -DOESNT MATTER if the defendant's subjective thought is "I didn't mean to"

tortfeasor

the person that caused the tort to happen

Injury to the plaintiff

the plaintiff must suffer personal injury to themselves or to their property in order to recover e.g. person backs into their own fence, no one is hurt and no real injury to fence- no recovery - damages depend on person/property injured e.g. baseball player and I get in accident and we both injure our arms.. because baseball players need their arm for their job

Assault

threat of IMMEDIATE harm or offensive contact or any action that arouses reasonable apprehension of imminent harm (ex. acting like you are going to hit someone)

Invasion of Privacy tort requirements

to sue someone for an invasion of privacy, a person must have a reasonable expectation of privacy, and the invasion must be highly offensive

Battery

unauthorized and harmful OR offensive contact with another person -can also be the extension of a persons body (someones hat, crutches, cane, someones car) ex. pounding on someones car would be battery

Conversion of Personal property

when someone deprives owner of possession or mistakenly uses property and doesn't return it ex. someone borrows your LS book ad doesn't return it and might sell it back at the book store *with conversion, you may have the legal right to do the thing* -Good intentions are not a defense against conversion! someone who buys stolen goods, for instance, may be sued for conversion even if they were unaware that the goods were stolen. if the true owner brings a tort action against the buyer, the buyer must either return the property to the owner or pay the owner the full value of the property)

Trespass to personal property

when someone interferes with use or enjoyment of personal property ex. ruining someone's computer hard drive Means not only the destruction of the property, but also anything that diminishes its value, condition, or quality another ex- kelly takes ryans business book as a joke and hides it so that ryan is unable to find it for several days before the final examination. here, kelly has engaged in trespass to personal property, and also conversion. WHY? because kelly intentionally meddled with a possessory interest (one arising from possession)

Professional Malpractice

where a professional(lawyer, doctor, engineer) owes a professional duty. e.g. lawyer not filing a suit on time

Damages for misappropriation of name

will receive profits and obtain an injunction *since it is a property right- can transfer the right at death or to beneficiaries under a will

Libel

written statement