REVIEW FOR EXAM GOOD ASS NOTES

Which one of the following is the best argument that Kowalski's Grocery is not liable for Maria's injury?

Kowalski's posted the "Employee's Only No Admittance" sign, therefore Maria was trespassing in the stockroom.

Defenses to Defamation

Truth is normally an absolute defense against a defamation charge. In some circumstances, a person will not be liable for defamatory statements because she or he enjoys a privilege, or immunity.

Modified Comparative Negligence states:

-Percent of damages plaintiff causes herself are subtracted from the total award. includes the 50% rule and the 51% rule

Defamation (libel or slander)

A false statement of fact, not made under privilege, that is communicated to a third person and that causes damage to a person's reputation. For public figures, the plaintiff must also prove that the statement was made with actual malice

Good Samaritan Statutes

A state statute that provides that persons who rescue or provide emergency services to others in peril (unless they do so recklessly, thus causing further harm) cannot be sued for negligence. -physicians and medical personnel cannot be sued by the victim.

Basis of Tort Law

A tort is a civil injury designed to provide a remedy (damages) for injury to a protected interest.

Privileged communications are of two types:

Absolute and qualified.

Proximate Causation

An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. -Were the injuries foreseeable? Judges use proximate cause to limit liability of defendants. -Proximate cause is limited by foresee-ability in the interests of justice and fairness.

Duty of care and its breach:

Defendant owes duty to protect plaintiff from foreseeable risks that he knew or should have known about. -A foreseeable risk is one in which the reasonable person would anticipate and guard against.

Is there causation in fact?

Did the injury occur because of the Defendant's act, or would the injury have occurred anyway? -Usually determined by the "but for" test, ie., but for the Defendant's act the injury would not have occurred.

Qualified, or Conditional Privilege:

Employees evaluations. An employer's statements in written evaluations of employees, for instance, are protected by a qualified privilege.

Causation

Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff's injuries. Causation is both: Causation in Fact and Proximate Cause.

General Damages

Intended to compensate individuals (but not companies) for the nonmonetary aspects of the harm suffered from a tort, such as pain and suffering

Special Damages

Intended to compensate the plaintiff for quantifiable monetary losses, such as medical expenses

Superseding Cause

Is an intervening force or event that breaks the causal link between defendant's act and plaintiff's injury, relieving defendant of liability.

Battery

Is the completion of the assault: -Intentional or unexcused -Harmful, offensive, or unwelcome, physical contact. Plaintiff may be compensated for physical and emotional harm. *An unexcused and harmful or offensive physical contact intentionally performed

Once Maria enters the stock room, which of the following is Kowalski's best defense for Maria's injuries?

That she assumed the risk of injury.

Trespass to land occurs when a person, without permission:

Physically enters onto, above or below the surface of another's land; or causes anything o enter onto the land; or remains, or permits anything to remain, on the land.

Damages Available in Tort Actions

Punitive: punish the wrongdoer -Appropriate when defendant's actions were particularly egregious (actions were particularly egregious (actions were intentional or grossly negligent).

What duty is owed to Maria while she is in the Kowalski's (before entering the stock room)?

Since she is a business invitee, there is a duty to warn her about any dangers that the store knew of or should have known about.

Exceptions to the burden of proving special damages are:

Slander Per Se, it is actionable with no proof of damages required. -In most states there are 4 types of declarations that can be considered to be slander per se.

A person who commits a tort is known as a:

Tortfeasor

General damages

compensate individuals (not companies) for the non-monetary aspects of the harm suffered, such as pain and suffering.

A plaintiff is awarded Compensatory Damages to:

compensate or reimburse the plaintiff for actual loss. Thus, the goal is to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occured. -Can be broken down into special damages and general damages

Tresspass to personal property involves:

intentional interference with another's use or enjoyment of personal property without consent or privilege

False Imprisonment is:

the intentional confinement or restraint of another person's activities without justification. -Merchants may reasonably detain customer if there is probable cause.

Conversion is the:

wrongful possession or use of property without permission.

Abusive or Frivolous Litigation

-Generally, each of us has the right to sue when we have been legally injured. -Torts related to abusive or frivolous litigation include: --Malicious prosecution, and Abuse of process.

Tortfeasor must "intend" to commit the act, which means:

-He intended the consequences of his act: or -He knew with substantial certainty that certain consequences would result

Duty of Professionals

-Higher duty of care based on special education skill or intelligence -Breach of Duty is called professional malpractice

No Duty to Rescue

-Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust. -However, if rescue is attempted, the law requires die care and follow through.

Disparagement of Property:

-Slander of Quality: publication of false information about another's product (trade libel) -Slander of Title: publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss.

Spread of Span

-State regulation of spam -Federal CAN-SPAM act (2004) applies primarily to commercial emails. -U.S. Safe Web Act (2006): gives FTC powers to investigate a prosecute.

Wrongful interference with a business relationship occurs when:

-There is an established business relationship, the tortfeasor, using predatory methods causes the relationship to end; and the plaintiff suffers damages. -Bonafide competitive behavior is a permissible interference even if it results in the breaking of a contract.

Inquiry Requirements and Damages

-To recover, Plaintiff must show legally recognizable injury -Compensatory Damages are designed to reimburse Plaintiff for actual losses. -Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.

Intentional Torts against property include:

-Trespass to personal property -Conversion -Disparagement of Property

Pure Comparative Negligence

-allows plaintiff to recover even if his liability is greater than that of the defendant.

Old Contributory Negligence

-is a common law doctrine that said that a plaintiff who was also negligent or failed to exercise a reasonable degree of care, could not recover anything from the defendant. Under this rule, no matter how insignificant the plaintiff's negligence was relative to the defendant's negligence, the plaintiff would be precluded from recovering any damages. --Most states have replaced contributory negligence with the doctrine of comparative negligence.

Main elements of fraudulent misrepresentation in the order in which they should normally appear:

1) A misrepresentation of material facts with knowledge of their falsity 2) An intent to cause another party to rely on the misrepresentation 3) Justifiable reliance on the misrepresentation 4)Damages suffered as a result of that reliance 5) A causal connection between the misrepresentation and the injury suffered.

4 types of declaration that 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.

To succeed in a negligence action, the plaintiff must prove each of the following:

1) Duty. The defendant owed a duty of care to the plaintiff 2) Breach. The defendant breached that duty 3) Causation. The defendant's breech caused the plaintiff's injury 4) Damages. The plaintiff suffered a legally recognizable injury.

There are two broad classifications of torts:

1) Intentional Torts 2) Unintentional Torts

To establish defamation, a plaintiff normally must prove the following:

1) The defendant made a false statement of fact 2) The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation. 3) The statement was published to at least one person other than the plaintiff 4) If the Plaintiff is a public figure, she or he must prove actual malice

Because an intentional tort requires intent, a harmful motive is required (t or f)

False

Is there a chance that Vinny will be liable for the tort of battery?

Yes, because Maria told him not to touch her and he then did.

Which of the following has nothing to do with false imprisonment?

You are made fearful of unwanted and possibly harmful contact with another person.

Damages for Libel

-General Damages are presumed; Plaintiff does not have to show actual injury - General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

Damages for Slander

-General Rule: plaintiff must prove "special damages" (actual economic loss) to prevail for slander.

Duty of Landowners

-Duty to warn business invitees of forseable risks (knew or should have known) -Duty to discover and remove hidden dangers that might injure invitees -Exception: Obvious Risks

Reslpsa Loquitur

-Facts and circumstances create presumption of negligence by Defendant -Burden of proof shifts to Defendant to show he was not negligent.

Assumption of Risk

-A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. This is a defense of assumption of risk which requires: 1) Knowledge of the risk 2) Voluntary assumption of the risk -Courts do not apply the assumption of risk doctrine in emergency situations. -Defense can be used by participants, as well as spectators and bystanders. -Assumption of risk can be expressed or implied.

Damages available in Tort Actions

-Compensatory: reimburse plaintiff for actual losses --Special: quantifiable losses, such as medical expenses, lost wages, and benefits. --General: non-monetary, such as pain and suffering, reputation

New Contributory Negligence standard

-Computes liability of Plaintiff and Defendant and apportions damages. -A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence. -Some jurisdictions have adopted a "pure" form of comparative negligence

Defenses to Assault and Battery are:

-Consent -Self-defense (reasonable force) -Defense of Others (reasonable force) -Defense of Property

Defenses to Negligence

-Defendants often defend against negligence claims by asserting that the plaintiffs have failed to prove the existence of one or more of the required elements for negligence.

Four-Step Analysis of Negligence:

-Duty (defendant owed plaintiff a duty of care -Breach (defendant breached that duty) -Causation (defendant's breach caused the injury) -Damages (plaintiff suffered legal injury)

Compensatory Damages

A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party. -Intended to compensate or reimburse a plaintiff for actual losses.

Assault

Any intentional and unexcused threat of immediate harmful or offensive contact.

Invasion of Privacy

Every person has a fundamental right to freedom from public scrutiny, such as: -Appropriation of Identity -Intrusion of Individual's affairs or Seclusion -False Light -Public Disclosure of Private Facts. *Publishing or otherwise making known or using information relating to a person's private life and affairs, with which the public has no legitimate concern, without that person's permission or approval.

Public Figures

Exercise substantial governmental power or are otherwise in the public limelight. -To prevail, they must show "actual malice" i.e., the statement was made with either knowledge of falsity or reckless disregard for the truth.

The basic purpose of tort law is to punish criminal wrongdoers (T or F)

False

Orson takes Harrison's car without Harrison's permission and without just cause. Orson has probably committed the tort of conversion unless he can show that

Harrison does not really own the car.

Cyber Torts

Identifying the Author of Online Defamation: is usually a threshold barrier to filing suit.

Absolute Privilege is:

Only in judicial proceedings and certain government proceedings is an absolute privilege.

Publication requirement

The basis of the tort of defamation is the publication of a false statement that holds an individual up to hatred, contempt or ridicule in the community. -Publication requires communication to a 3rd party.

Tort Reform

Tort law performs a valuable function by enabling injured parties to obtain compensation. Critics say that certain aspects of today's tort law encourage too many trivial and unfounded lawsuits, which clog the courts and add unnecessary costs. -Measures to reduce the number of tort cases can include any of the following. 1) Limiting the amount of both punitive damages and general damages that can be awarded 2)Capping the amount that attorneys can collect in contingency fees (attorneys' fees that are based on a % of the damages awarded to the client) 3) Requiring the losing party to pay both the plaintiff's and the defendant's expenses

Defenses to Trespass to Land:

Trespass is necessary, or trespasser is a licensee.

Appropriation is the:

Use of another's name, likeness or other identifying characteristic for commercial purposes without the owner's consent. -Issues: --Degree of Likeness --Right of Publicity as a Property Right

An Intentional infliction of Emotional distress involves:

an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. -Most courts require some physical symptom of illness. -To be actionable the act must be extreme and outrageous o the point that it exceeds the bounds of decency accepted by society.

Punitive Damages

are: Money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct -Occasionally, the courts also award these damages in court cases to punish the wrongdoer and deter others from similar wrong-doing. -Punitive damages are appropriate only when the defendant's conduct was particularly egregious (reprehensible). -Punitive damages are avaliable in intentional tort actions and only rarely in negligence lawsuits. -They may be awarded in suits involving gross negligence. *Awarded in tort cases to punish the wrongdoer and to deter others from similar wrongdoing.

Intentional Tort

as the term implies, requires intent. The tortfeasor must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law.

Special damages

compensate the plaintiff for quantifiable monetary losses. (ex: medical expenses, lost wages and benefits, extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property)

There are 3 basic affirmative defenses in negligence cases

defenses that a defendant can use to avoid liability even if the facts are as the plaintiff states -assumption of risk, -superseding cause, and -contributory and comparative negligence

Stiles is much stronger than Ben and threatens to beat Ben, then punches him in the face, and knocks out a tooth. Ben will probably bring a lawsuit against Stiles

for assault and battery because there was both a threat and a harmful action

Hank may be able to sue his neighbor Larson for ___ ___ ___ ___ if Larson sends Hank a text message telling him that his wife was killed in a car accident even though Hank knew that it was untrue.

infliction of emotional distress

Fraudulent Misrepresentation, or fraud:

involves intentional deceit for personal gain. The tort includes several elements: -Misrepresentation of material fact -intent to induce another to rely -Justifiable reliance by innocent party -Damages as a result of reliance -Causal connection

Dram Shop Acts

is a law under which a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar. The owner or bartender may also be held responsible for continuing to serve a person who was already intoxicated.

Assault

is an intentional, unexcused act that: -creates a reasonable apprehension or fear of imminent harm in the plaintiff -No contact is necessary. Plaintiff may be compensated for physical and emotional harm. *Any intentional and unexcused threat of immediate harmful or offensive contact.

Tortfeasor

is the one committing the tort

51% rule

is when the plaintiff recovers nothing if liability is greater than 50% (in texas)

50 % rule

is when the plaintiff recovers only if liability is less than 50%

Negligence Per Se

occurs when Defendant violates a statute designed to protect Plaintiff: -Statute sets out standard of care -Plaintiff is member of class intended to be protected by statute -Statute designed to prevent Plaintiff's injury.

In Tort law, 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.

Puffery

sellers talk, is not enough for fraud to occur.

While Jessica, Ashley, and Bryan are snowboarding, they ignore warning signs indicating that they have left the marked trail and are entering dangerous territory. They become lost, and a rescue effort begins. Climbing the mountain, a snowplow accidentally cuts a nearby town's main electrical cable. Due to the loss of her electric heat, Ethel, an elderly woman, dies of hypothermia. The boarders' negligence in ignoring the warning signs is

the causation in fact, but not the proximate cause, of Ethel's death

Negligence is when the:

tortfeasor does not intend the consequences of the act or believes they will occur. -Actor's conduct merely creates a foreseeable risk of injury.

The members of the City High soccer team have been training with Hanson, a personal trainer who charges by the hour, for several years. Bob, the soccer coach, tells the team members that they must now train with Martin, not Hanson, or they will be kicked off the team. All of Hanson's clients immediately stop training with Hanson. Bob is most likely to have committed

wrongful interference with a business relationship.

Business Torts

wrongful interference with a contractual relationship occurs when: -Defendant knows about a contract between A and B, intentionally induces either A or B to breach the contract; and the defendant benefits from breach.

Defamation of character involves:

wrongfully hurting a person's good reputation. -The law imposes duty to refrain from making false statements of fact about others. --Orally breaching this duty is slander --Breaching it in print or media (and internet) is libel -Published statments must be a fact --Opinions are protected speech under the First Amendment, and not actionable