Torts Ch 5-8

voluntary assumption of known risk

For the assumption-of-risk defense to insulate the defendant from negligence liability, the plaintiff must have voluntarily decided to engage in an activity that the plaintiff knew (or should have known) was dangerous. EX: Suppose Gilda's employer orders her to carry stacked boxes down a long flight of stairs. -Her employer specifically instructs her to carry all the boxes in a single trip. -To do this, however, Gilda must hold the boxes in front of her, blocking her forward vision. -She knows that it is dangerous to descend stairs when she cannot see where she is going. -Gilda slips and falls because her right foot misses a step. -She sues her employer for negligence. The employer alleges that Gilda assumed the risk. -Did she? No—Gilda did not voluntarily assume the dangerous activity. In fact, she was coerced into carrying all the boxes in one trip. She would not have done so but for her employer's command. -Thus, Gilda did not voluntarily assume the risk of falling down the stairway

Injury to the accused

Like all torts, the accused must prove actual injury as a consequence of the wrongful prosecution. This is most often accomplished by showing -damages to the accused reputation in the community or financial standing, -mental anguish, -or legal expenses associated with defending the criminal charges

A fortiori

Meaning for the reason that is the stronger argument then the other one that is been offered

Intentional acts

Obviously, intentional infliction cases must include the element of intent. The tortfeasor miss purposely behave so as to create mental anguish and the victim; -the tortfeasor desires to cause Anguish

False light in the public eye

Occurs when the tortfeasor publicly attributes to another individual false opinions, statements, or actions Ex: if a magazine uses someone's photograph and name without permission and in an embarrassing fashion, this would place the victim and a false light publicly -One fact pattern repeated in many court cases concerns of plaintiffs photograph and name appearing in a newspaper adjacent to a negative story appearing on the same page, -when the story and photograph appear in such a way as to suggest a connection between the two

duty of Care to oneself

Suppose that Zelda is driving to school. -Suppose that another driver runs a stop sign and the vehicles collide with one another. By failing to stop at the sign, the other driver breached the duty of reasonable care to other vehicle users such as Zelda. -The other driver's negligence proximately caused injuries to Zelda and her vehicle. -However, because Zelda was looking at herself in the mirror for a second, instead of looking at the road, she contributed to her own injuries.

Groundless criminal prosecution

The complainants actions are considered bogus if he or she pursued criminal charges without probable cause that the accused was guilty of the crime You have to have some grounds to believe someone did something Criminal to file a criminal complaint

Public Policy

The law should be applied in a way that promotes the good and welfare of the people.

Criticism of comparative negligence

Think back to the stop sign illustration. If one disapproved of running stop signs more than driver inattention, would one not be more likely to raise the defendant's percentage of liability

culpability factoring (liability apportionment)

A defense to negligence. -When the plaintiff's negligence contributed to his or her injuries, -comparative negligence calculates the percentage of the defendant's and the plaintiff 's negligence and adjusts the plaintiff's damages according to the numbers. balancing is typically measured in percentages of negligence. This is sometimes called culpability factoring (liability apportionment).

Misrepresentation

A false statement that may be of three types: 1. Innocent misrepresentation: A false statement that is not known to be false 2. Negligent misrepresentation: a false statement made when the one making the statement should have known better 3. Fraudulent misrepresentation: a false statement known to be false and meant to be misleading Elements of misrepresentation: -The first three elements of fraud must occur -And the innocent parties injured In most jurisdictions, the elements of misrepresentation are the same as fraud -and the two concepts are redundant

Probable cause

A reasonable belief that the accused is guilty of the alleged crime

Confinement

All methods of confinement include (1) a restriction of the victims freedom of movement, (2) the captives awareness or fear of the restriction, (3)and the victims nonconsent to the restriction.

Confinement for appreciable time period

Although no definite time period Is required, false imprisonment occurs only if the confinement has existed for an appreciable length of time. -This depends upon the specific facts of each case Appreciable confinement is usually defined as unreasonable under the circumstances

False imprisonment

And unlawful restraint or deprivation of a persons liberty, usually buy a public official False imprisonment occurs when the tortfeasor intentionally can find someone without that person's consent -when a person is held against his or her will buy another for an unreasonable period Of time Distort is meant to protect each individuals right to control his or her own freedom of movement. There are four elements to false imprisonment: 1. confinement without captives consent, 2. tortfeasors intent to confine victim, 3. confinement for an appreciable length of time, 4. no reasonable means of escape Many false imprisonment cases involve shoplifting or alleged shoplifting

Tortious interference with reasonable expectations of inheritance

And you were taught that has been excepted by almost half of the states The restatement of torts 2d £ 774B defines the tort as follows: "One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift" The elements of this tort are: 1. A person or entity must have an expectation that here she will receive an inheritance 2. A third-party must intentionally interfere with this expectation 3. It is wrongful or tortious behavior to interfere 4. It is reasonably certain that without the interference, the inheritance would've been received 5. There must be damages as a result

Fraud (deceit)

Any kind of trickery used to cheat another of money or property Elements of fraud: 1. The defrauder must intent to deceive by making a false representation of material fact 2. The defrauder must know that the statements made are false 3. The purpose of the false statements must be to entice the victim into giving the tortfeasor something of value 4. The innocent party must justifiably rely on the misrepresentation 5. The innocent party must be injured

Imminent threat of contact

Assault involves the imminent or immediate threat that unconsented contact is about to occur. The fear arises from the likelihood that someone or something unwanted is about to strike.

Assault and battery

Assault is the intentional threat, show of force, or movement that reasonably makes a person feel in danger of physical attack or harmful physical contact There are three basic elements to the store: 1. The tortfeasor attempts to make unconsented harmful or offensive contact 2. The victim is apprehensive for his or her physical safety 3. The thought of contact is imminent Actual physical contact is not necessary Contact converts an assault into a battery

why Calculate Percentages?

Assume that the following percentages were selected for the stop sign problem: -defendant 75 percent negligent, plaintiff 25 percent negligent. What would be the outcome of the case? -The defendant would be liable to the plaintiff for 75 percent of the amount the plaintiff received in damages. -If the plaintiff recovered judgment against the defendant, receiving a $100,000 damages award, under this percentage the defendant would be liable for $75,000, with $25,000 having been subtracted out for the plaintiff's comparative negligence. Instead of completely barring the plaintiff's recovery (as common law contributory negligence would have done), culpability factoring enables the plaintiff to recover damages for the defendant's share of responsibility in causing the injuries. Liability apportionment also protects the defendant from paying for the plaintiff's share in harming himself or herself.

The Complete defense

Assumption of risk is a complete defense to negligence in some jurisdictions. -Like common law contributory negligence, it totally bars the plaintiff 's recovery. -If the plaintiff assumed the risk, the defendant cant be liable for negligence Assumption of the risk is commonly raised in spectator sport situations. -There is a known risk that if you attend a baseball game, you might get struck by a ball hit into the stands. -A spectator assumes these risks with full appreciation of the dangers and thus is barred from bringing suit as a result of any injuries sustained. Conversely, consider a situation in which bleachers collapse at a football stadium. Seats caving in is not a known or foreseeable risk, nor could the dangers be appreciated; thus, in this case, assumption of the risk would not apply and suit would be allowed.

Common law rule

At common law, contributory negligence barred the plaintiff from recovering any damages from the defendant. Even if the defendant was negligent in causing 99 percent of the plaintiffs harm

Farabee St. Claire owns an ice-skating rink. Charles and Kelly visited the rink on their 10th wedding anniversary. Charles had not skated since high school (15 years earlier), but Kelly of- ten went skating at the rink. Because of a broken thermostat, ice in one corner of the rink thawed and a small puddle formed. As Charles skated through the water, he slipped and fell to the ice, breaking his right arm. Kelly, who was skating close behind, collided with Charles and also fell to the ice, suffering a concussion. Kelly was a talented skater and could have avoided Charles by leaping over his body, but she did not think to do so in her surprise and confusion.

Charles and Kelly were invitees at the ice skating rink. Accordingly, the owner, Farabee St. Claire, owed them a duty of reasonable care to discover and correct known and unknown dangers on the premises. -This includes thawing areas of ice.Farabee breached this duty, and the remaining negligence elements can also be demonstrated. -Charles and Kelly would have stated successful causes of action against Farabee. -Farabee has no negligence defenses against Charles. -Charles did not assume a known risk, as he was unaware of the melted ice, so no assumption of risk existed. -Further, Charles did not breach his duty of reasonable care to himself. -As a novice skater, he could not reasonably have been expected to avoid the slick spot. -In fact, his injuries, caused by falling, were not only reasonably foreseeable but practically inevitable, as any beginning skater/juror could imagine. -Thus, neither contributory nor comparative negligence applies to Charles's case. -Farabee would be liable to Charles for negligently causing his injuries. -However, Farabee would claim that Kelly committed contributory negligence by failing to avoid striking her fallen spouse. -Kelly was a talented skater and, according to the facts, could have avoided Charles's sprawled body by leaping over him. -By failing to react in this reasonable fashion, Kelly breached her duty of care to herself, which contributed to her injuries. -Thus, contributory negligence would bar Kelly's negligence claim against Farabee. -This outcome seems unduly harsh for Kelly. One could argue on her behalf that her failure to avoid Charles (i.e., by freezing up) was perfectly reasonable. -She was taken by surprise and would have been concerned for Charles's well-being, even in the instant before hitting him. -So, arguably, Kelly was not contributory negligent. -Assume, however, that contributory negligence is established. -Applying comparative negligence, the outcome for Kelly's case would be different. -The melted ice created the initial risk, which caused Charles to fall. -But for this added danger(Charles lying on the ice), Kelly would not have been at risk herself. -Thus, Farabee's negligence was greater in permitting the ice to thaw than Kelly's in failing to jump across her prone husband. -What negligence percentages should be applied? -Consider the following: Farabee's liability—95 percent; Kelly's contribution—5percent.

Harm to reputation in the community

Community: 1. Neighborhood, locality, or other grouping of persons. -A Vague term that can include very large or very small areas 2. A group with common interests that are shared Community is narrowly defined as a significant number of persons acquainted or familiar with the victim. -Although some courts have held that a community of one is sufficient under certain circumstances, -most courts maintain that larger numbers are required. -Nevertheless certain expressions, such as, a handful, a closely associated group, and associates in the neighborhood or workplace, suggest small numbers in most instances Many courts define the victims injury in more emotional terms. -For example, it is commonly been held that statements are libelous or slanderous -if they ridicule, humiliate, or subject the victim to contempt or hatred from among their peers

Patient dumping

Denial of treatment to emergency patients or women in labor, or transferring them to another hospital while in an unstable condition This Tort usually occurs when a hospital or other medical facility is trying to save money and limits treatment, or send a patient to another facility before it is medically sound to do so If federal statute addressing patient dumping is the emergency medical treatment and active labor act. -The act only covers hospitals that participate in Medicare. The act provides that if a person goes to a hospital with an emergency medical condition and the person request treatment or an examination, the person must be provided with an appropriate medical screening exam. If this does not occur and the person suffers harm, The person will have a claim against the medical provider or institution

Last clear chance

Even though the plaintiff was at fault in causing his or her own injuries, the defendant had the last opportunity to avert harm and failed to do so; therefore, the plaintiff can still recover. EX: An example of last clear chance would be where a defendant enters a high-way and goes in the wrong direction. -The plaintiff sees the defendant's car coming at plaintiff in plaintiff's lane of traffic, and instead of trying to switch lanes or honk his horn to avoid the impending collision, the plaintiff does nothing and continues to drive in his lane of traffic. -In this example, it was the plaintiff who had the "last clear chance" to avoid the incident. -The fact that the defendant was the one who was originally negligent does not affect the plaintiff's obligation to try to avoid the collision.

No reasonable means of escape

False imprisonment cannot happen if the captive has a reasonable avenue of escape. In other words, the confinement must be complete. -If the victim could simply walk away from the situation, then no false imprisonment transpired Reasonable means of escape depends upon the facts of each case, but usually includes any route that a reasonable person would use to flee given the circumstances

Gina Lee loves her new job as office assistant. She cannot believe her good luck: there are so many good-looking guys working in her department. Gina is determined to start dating someone new by the end of the month. When Gina sees her co- worker Brad each morning, she tries to think of something different and provocative to say. Brad seems kind of quiet and it is hard to get a reaction out of him. Gina is not sure if he is just trying to play it cool or what. Gina tells Brad in detail about her exciting nights with her last boyfriend. Brad does not seem to care, but Gina still thinks he is playing it cool. The next morning, Gina decides she needs to be more forward. Gina asks Brad about his sex life and whether he thinks John or Scott in the next cubicle would make good lovers. Again no response from Brad. Gina brushes against Brad's crotch with her hip and walks away.

Gina repeatedly bothered coworker Brad in the workplace. -Repeated unwelcome sexual advances creating an offensive work environment are considered sexual harassment. -After Gina made sexual remarks and Brad did not respond, it was her responsibility to discontinue this line of behavior, which was clearly not welcome or reciprocated.

Malicious prosecution

I torque committed by bringing charges against someone in order to harm that person and with no legal justification for doing it Arises when a private citizen files with the prosecutor a groundless criminal complaint against another person. Elements of this tort: 1. Groundless criminal prosecution against the accused without probable cause 2. The complainant's malice in filing the spurious charges 3. The accused acquittal from, or dismissal of, the criminal charges 4. Injury to the accused as a result of the prosecution

Civil actions

In a civil action, a case must be approved by a preponderance of the evidence to find liability, -just enough to tip the scales in favor of one person over another. For a few cases, the decision must be made by clear and convincing evidence. A civil jury consist of a minimum of 12 jurors. The decision need not be unanimous

Shopkeepers privilege

In many states, there is a common law right called the shopkeepers privilege -to stop and detain a suspected shoplifter at the store for a reasonable period of time, -so long as the shopkeeper has a reason to believe the person detained has actually stolen or attempted to steal property.

Hazing

In order to show their commitment, incidents in which students are forced to undergo degrading, embarrassing, and sometimes painful test and trials before joining a particular group Some civil assault and battery actions have been brought as a result of hazing incidents at school, and clubs, and even in the military Every year, prospective members are seriously injured and even killed as a result of hazing that gets out of control

Beau owns a sporting-goods store. Matt came in to buy a new shotgun. One of Beau's employees, Saul, handed Matt a shotgun that, unbeknownst to Saul or Matt, was loaded. Neither Saul nor Matt checked the gun to see if it was loaded. The trigger, however, had a keyed lock that prevented it from being pulled. Matt asked that the lock be removed so that he could feel the trigger's sensitivity. Saul opened the lock and Matt tested the trigger. The gun discharged, shooting another customer, Clay, in the stomach. Clay saw Matt aim the gun in his general direction. Instead of stepping aside, Clay jokingly shouted, "Hey, do not shoot me, I'm on your side!"

Initially, this hypothetical involves issues of vicarious liability and joint and several liability. -Under respondeat superior, Beau would be responsible for the negligence of his employees, such as Saul. -Therefore, vicarious liability would exist if Saul had been negligent. -Clay, the innocent bystander in this hypothetical, would sue Beau and Saul, as well as Matt, the other customer. -Herein lies the joint and several liability issue. Both Matt and Saul were negligent by not first checking to see if the shotgun was loaded. -The duo acted together to cause Clay's injuries. -Thus, all three defendants would be liable under negligence. -The defendants would respond with the defense of contributory or comparative negligence. -The critical question is whether Clay breached his duty of reasonable care to himself by standing in the direct line of fire instead of standing clear. -Would a reasonable person have anticipated that the gun might be loaded and prudently step clear? Yes. -So Clay breached his self-duty, which contributed to his injuries. -Contributory negligence would totally bar Clay's recovery; comparative negligence would require culpability factoring (liability apportionment).What percentages should be applied? -One could pick Saul (vicariously, Beau)—40 percent (supplying loaded gun); Matt—40 percent (firing loaded gun); Clay—20 percent (failing to avoid line of fire). -One may argue vehemently that Clay was not contributory or comparatively negligent. -Why, one might say, would Clay have reasonably anticipated that Saul would hand Matt a loaded weapon inside the store to test its trigger? -Arguably, this situation would not be reasonably foreseeable, and so Clay would not have proximately caused his own injuries. -Thus, neither defense would apply.

Intent and action together

Intent reflects the tortfeasor state of mine and must occur simultaneously with the misconduct For example, -assume that David and Steven are Carpender's. Stephen tosses a piece of wood across a room into a pile, -but before it lands the word strikes David in the throat. -Stephen would not be liable for battery because although the board struck David, Stephen did not intend this to happen

Captives consent to confinement

Intentional tort of false imprisonment cannot occur if the victim consents to the captivity. Consent includes awareness and acceptance of the confinement. Thus, if the shoplifting suspect agrees to remain in a room pending questioning by store security, -this would constitute consent, because the patron knows and except the restriction to the room

assumption of risk

Knowingly and willingly exposing yourself (or your property) to the possibility of harm. Assumption of risk means that the plaintiff assumed the risk of doing (or not doing) something that resulted in his/her injury's It is important to note that not all risks are assumed, just those that are reasonable.

Innocent parties injury

Like all torts, the innocent party must prove actual injury as a consequence of the false statements or misrepresentation Classic illustrations of fraud or misrepresentation often utilize used car sales situations

Publication

Making public; communicating defamatory information to a person other than the person defamed Publication of the defamatory information must enjoy the victims reputation in the community. Elements of publication: 1. Written (libel) or oral (slander) statement 2. False and defamatory statement about a person 3. Tortfeasors communication of the statement to a third-party 4. Harm to the victims reputation in the community The tortfeasor must communicate the false and derogatory statement to a third-party. -This means that the statements made by the tortfeasor directly to the victim are defamatory -only if seen or heard by another or others Publication takes place through any means by which the false information is disseminated -this includes anything spoken, either in person or over amplification, radio, television, or telephone; -videos on YouTube; -and anything written, including letters, telegrams, scribbled messages, billboards, or printed and published works (such as the letter to the editor in the local newspaper)

Ch 7 Emotional distress

Mental anguish. -Non-physical harm that may be compensated for by damages in some types of lawsuits -mental anguish maybe as limited as the immediate mental feelings during an injury -or as bright as prolonged grief, Shane, humiliation, despair, and so forth Emotional distress can be broadly defined as mental anguish caused by tortfeasor. -Synonyms such as fright, anxiety, shock, grief, mental suffering, and emotional disturbance are commonly used by the courts to describe the store. -The condition can include shame or embarrassment as well It is the psychological harm that thus tort intends to remedy In the field of intentional torts, there are two varieties of infliction of emotional distress: -intentional and reckless -third version negligent infliction, was discussed in chapter 4

Clear and convincing evidence

More than enough evidence to tip the scales, but less evidence then proof beyond a reasonable doubt is required. The evidence must be clear and convincing; -it should be substantially more likely true then not true

Patty Patient arrives via ambulance at Mercy General Hospital's emergency room. Her first words to the triage nurse are, "I do not have insurance— did they bring me to the right place?" Then Patty starts moaning and passes out. The triage nurse Henry is glad he heard Patty's last words and whispers to the emergency medical technician, Pete, who has just wheeled Patty in, "Take her out of here." Off goes Patty to the County Medical Center. En route to that hospital, she dies.

Nurse Henry was wrong to send Patty Patient away. -Under the new cause of action of patient dumping, patients cannot be transferred to another hospital while in an unstable condition. -No effort was made whatsoever to examine or stabilize Patty before she was transferred. -Patty was treated differently than other patients solely because of her lack of finances.

Duty to Indemnify

Obligation to pay or reimburse the party for damage or loss of sustained

Duty to defend

Obligation to provide a legal defense

Private disclosure of private facts

Occurs when the tortfeasor communicates purely private information about a person to the public without permission, -and a reasonable person would find this disclosure extremely objectionable Truth is not a defense against the story, because it is the unauthorized and offensive public revelation of private facts that is being protected against The most common example of such disclosure involves communications by the mass media. -For example, if a newspaper article mentions an ordinary citizen by name and discusses in detail, their drug dependency problems, and the person did not consent, -then public disclosure of private facts has occurred. Public figures, however, generally do not succeed in lawsuits against the media when such disclosures are made without malice

Unreasonable intrusion

Occurs when the tortfeasor engages in an excessive and highly offensive invasion upon another's seclusion or solitude Ex: if store security personnel demand that I suspected shoplifter diss robe, -or if they rifle through the suspects personal belongings in an illegal search, -this would be considered and reasonable intrusion. -Intentional eaves dropping upon a private conversation is another example. -searching another's mail to discover private information or obtaining unauthorized access to someone's bank account or tax records are yet other instances -courts have also found that illegal, compulsory blood test are an unreasonable intrusion. -simple trespassing onto an individual's land to snoop would also constitute this type of invasion of privacy

Reckless infliction of emotional distress

Occurs when the tortfeasors outrageous conduct causes the victim to suffer severe mental anguish. Intent to produce the motional suffering is not necessary. -it is sufficient that the tortfeasor new, or reasonably should've known, that their misbehavior would produce emotional distress. The tortfeasors conduct is wonton and reckless, with no apparent regard for the victim suffering Many cases involving reckless infliction of emotional distress include the miss handling of the remains of deceased persons ex: a funeral home cremates the deceased instead of following the families clear and explicit instructions regarding burial. -Even though the funeral home did not intend this error, the conduct could be construed as so reckless as to fall within this tort Another type of fact situation that illustrates reckless infliction of emotional distress involves the unanticipated effect of a practical joke. Ex: consider the Pranksters who vandalize someone's automobile by smearing it with manure, knowing that the vehicle owner took pride in the cars appearance. -The jokers knew that the owner had a weak heart, but were only expecting to shake up the owner. -When the owner saw his prize automobile, he collapsed from a heart attack. -This illustrates wonton misconduct. -Although the pranksters did not intend the victim to suffer heart failure as a consequence of their deed, -the tortfeasors behavior revealed utter disregard for the health and well-being of the victim, -and accordingly they would be liable for reckless infliction of emotional distress Claims of reckless infliction of emotional distress are sometimes made regarding unwanted, insulting, and demeaning sexual advances from a supervisor or coworker at a place of employment

Intentional infliction of emotional distress

Occurs when the tortfeasors outrageous conduct, -which is intended to cause severe emotional anguish in the victim, -actually causes the victim such emotional suffering as a result of the tortfeasors actions Three elements: 1. Outrageous conduct by the tortfeasor 2. Conduct intended to cause severe mental anguish in the victim 3. The victims suffering of severe mental anguish as a consequence of the tortfeasors behavior

How negligence defenses are used

Once the plaintiff has alleged a cause of action for negligence in the complaint, it is assumed that the defendant has no defense unless he or she specifically pleads one (or more) in his or her answer. Always remember these basic analytical rules: 1. Negligence defenses are used only by the defendant against the plaintiff. Put more generally, these defenses are responses to negligence allegations. The party alleged to have been negligent can use defenses against the party alleging negligence. 2. Negligence defenses are applied only in response to the plaintiff 's allegations that the defendant acted negligently or with willful and wanton negligence, not to claims of intentional action. 3. Once a plaintiff alleges the defendant's negligence, both parties' failure to be careful may be at issue. 4. Ask who is alleging negligence and who is alleged to have been negligent. The alleged tortfeasor, usually the defendant, is the person who may utilize defenses.

The Happy Hollow Mental Health Hospital houses many emotionally disturbed individuals. One patient, Jasmine, a convicted arsonist, escaped from her maximum-security room. No guards were on duty in that part of the hospital, and an attendant had left Jasmine's door unlocked. As Jasmine wandered out of a wooded area onto a highway, she hitchhiked a ride from Kate, who was driving back to the university at which she worked. Kate noticed that Jasmine was dressed in a hospital gown and blue jeans, but Jasmine explained that she was a medical student at the university and often wore these gowns be- cause they were comfortable. Kate dropped Jas- mine off at a bus stop located only a few hundred yards from Kate's home. Jasmine saw Kate stop at the house and then drive away again. Later that day, Kate's house burned down. Police arrested Jasmine for having set the fire.

One may become immersed in the threshold question, namely, was the Happy Hollow Mental Health Facility negligent in permitting an arsonist/patient to escape and burn down Kate's home? -Certainly, the issue of proximate cause is indefinite. -Was it reasonably foreseeable that Jasmine would escape, hitch a ride with a nun suspecting passerby (Kate), and conclude by torching Kate's house? Jasmine was a convicted arsonist. -Thus, the facility was fully aware that, if freed, she might be inclined to set fire to property, perhaps that of the first person she encountered on the "outside" (which, in this hypothetical, was Kate). -Thus, jurors could be persuaded that the events in this problem were reasonably foreseeable, and thus the facility could be liable to Kate for negligently allowing Jasmine to escape and commit arson. -First, the facility would argue that Kate was contributory or comparatively negligent by picking up the hitchhiking Jasmine. -Kate knew, or reasonably should have known, that the facility was located nearby. -She recognized that Jasmine was wearing a hospital gown and blue jeans. -Would a reasonable person have recognized that Jasmine was most likely an escaped patient? Yes. -Would a reasonable person have avoided picking up such a hitchhiker? Yes. -So it would seem that Kate breached her duty of reasonable care to herself by picking up Jasmine. -That, however, would be an incorrect analysis. There remains another,fundamental inquiry, namely, would a reasonable person have anticipated that picking up a hitchhiker, even an escaped patient from a mental health facility, would result in the burning of the reasonable person's house? No. -Kate might reasonably have anticipated being attacked while Jasmine was inside the vehicle, but Kate could not reasonably have expected that Jasmine would return later to set Kate's house ablaze. -Because the fire was not a reasonably foreseeable consequence of Kate's self-negligence, Kate was not contributory (or comparatively) negligent. -The hospital's defense would be unsuccessful. -Nor could the health facility claim assumption of risk as a defense. -Kate did not assume a known risk with full appreciation of the danger involved, because she could not have anticipated that Jasmine would burn down her house, which was the particular risk that Kate would have had to assume for this defense to protect the hospital from liability

Slander per se

Per se is a term indicating that something is automatic or presumed Some words in and of themselves for defamatory; -therefore, injury and damage need not be proven one slander per se as shown Ex: words that imply criminal conduct, -words that are harmful to one's business, -and words implying that one has a loathsome and communicable disease are all presumed to damage ones reputation, -so the victim need not prove damages to be successful in a slander per se claim

Physical barriers restricting movement

Physical barriers of the most common method of falsely imprisoning someone Placing the captive in a locked room or moving automobile (while refusing to stop) are common examples. However, the physical barriers need not be so small as a single room or vehicle, -a captive may be restricted to the grounds of a series of adjacent buildings. -It is even possible for the victim to be pending by such unexpected blockades as an automobile blocking the victims access from the driveway to the street The physical barrier need only restrict the captives freedom of movement

Beth is an accountant. Ruben is one of her clients. Beth completed Ruben's federal and state tax returns for 2009. Beth made a critical addition error, however, and as a result, Ruben under- paid his taxes. Both the Internal Revenue Service and the State Department of Revenue assessed hefty penalties against Ruben for the underpayment. Ruben had signed the returns without reading them, although the instructions on each return clearly advised the taxpayer to read care- fully through the returns to verify their accuracy, even if a professional tax preparer had been used.

Ruben would sue Beth for negligence in the form of professional malpractice. -Clearly, Beth violated her professional community's standard of care by making an elementary addition mistake (the accountant's equivalent of a surgeon's leaving a scalpel inside a patient's abdomen). -The negligence elements may be easily demonstrated in this hypothetical.Beth would argue that Ruben assumed the risk of mathematical mistakes by failing to review the returns before signing them. -Did Ruben voluntarily assume a known risk with full appreciation of the dangers involved? -A reasonable person would know that addition mistakes can occur on complex mathematical documents such as tax returns. -By signing the forms without reading them, Ruben willfully assumed this known risk. -He also should have known that addition errors could result in tax penalties, as reasonable persons are presumed to know that tax authorities levy such penalties under law. -This satisfies the requirement as to full appreciation of danger. -Thus, Ruben assumed the risk of incurring fines for inaccurate tax returns and, accordingly, Beth would not be liable for malpractice. -One might argue that Ruben justifiably relied upon Beth's expertise in computing his tax liability on the forms. -However, this does not excuse Ruben's failure to read the returns before signing them. -Even experts, such as accountants, occasionally make mathematical mistakes. -Beth could also successfully plead contributory and comparative negligence against Ruben, since, by signing without reading, he violated his duty of reasonable care to himself. -Ruben's contributory negligence would absolutely bar his recovery, as would assumption of risk. -However, his comparative negligence would only reduce Beth's liability. -The probable percentages would be: Beth—60 percent; Ruben—40 percent (based primarily upon the expectation that most jurors would be more sympathetic to Ruben, unless the voir dire happened to select an unusually high number of professionals).

statutes of limitations

Statutes of limitations are statutes restricting the time within which a plaintiff may file a lawsuit for particular causes of action against a defendant. The period for medical malpractice claims, for instance, may be two years in one state and three years in another. -Similarly, lawsuits involving premises liability may have one-year statutes of limitations in one state and three- year statutes in another. Note that the statute of limitations is one of the few areas in the practice of law for which there is no remedy if one misses the deadline.

A crime and a tort

Table 6-1 compares torts versus crimes. Note that the civil and criminal definitions of acts constituting intentional torts are not necessarily the same

Appropriation

Taking something wrongfully. Occurs when the tortfeasor uses a persons name or likeness without permission to gain some benefit. Ex: an advertising company used a persons photograph to sell a product without that person's consent, -then the firm would be liable to the person for invasion of privacy by appropriation. Most cases involving this variety of invasion of privacy consist of -the unauthorized use of photographs, -artist sketches, -or quotations associated with names to sell someone else's goods or services

The Tàpàjós Inn, owned by Guillermo Estaben, has a swimming pool with no lifeguards on duty. The pool is surrounded by a high-wire fence, and access to the pool is restricted to guests, who must use their room keys to reach the facility. Signs posted in several places on the fencing read, in bold, black lettering: "NO LIFEGUARD ON DUTY. SWIM AT YOUR OWN RISK! NO DIVING, RUNNING, OR HORSEPLAY. ADULTS MUST SUPERVISE CHILDREN. BE CAREFUL!" Tony Harmon, a 16-year-old, and his family are staying at the Inn. Tony and his 17-year-old girlfriend, Tanya, went swimming in the pool after midnight. There were no signs indicating times when the pool was opened or closed. At 1:45 a.m., hotel maintenance activated the automatic pumps to drain the pool for cleaning. None of the Inn staff checked to see if the pool was being used. While swimming underwater, Tanya got her left foot caught in a pool drain as a result of the powerful suction of the pumps. She would have drowned had Tony not rescued her. She suffered torn tendons in her foot and ankle, and she developed an extreme phobia of water. She experienced nightmares and acute nervousness after the incident. There were no signs indicating that the pool could be drained remotely, nor that the drains were dangerous when the pumps were running.

Tanya Martin would sue the Tàpàjós Inn's owner, Guillermo Estaben, for negligently operating the automatic pumps without first determining if the swimming pool was vacant. -The hotel maintenance crew committed the negligent actions, for which Estaben would be liable under respondeat superior. -Further, because Tanya was an invitee on the premises, Estaben owed her a duty of reasonable care to protect her from known (and unknown) dangers, such as the powerful pumps (a known risk),which foreseeably could trap a swimmer's limb as a result of the strong suction. -Tanya could state a prima facie case for negligence. -She would also claim negligent infliction of emotional distress, because of her resulting phobia of water. -Estaben could plead the defense of assumption of risk. -The pool's signs clearly stated that no lifeguards were present and that swimmers used the facility at their own risk. -The key to this defense, however, is whether Tanya voluntarily assumed a known risk with full appreciation of the dangers involved. -Certainly, Tanya was aware of the ordinary risks of swimming—getting cramps, hitting one's head against the side or bottom while diving, and so forth. However, Tanya could not have anticipated the danger that caused her injuries. -There were no signs warning patrons that the pool would be automatically drained at night. -No hours of use were posted for the area. -Tanya could not have reasonably anticipated the risk of powerful pumps trapping her under water. -Thus, Tanya did not voluntarily assume a known risk with complete comprehension of the danger. Accordingly, Estaben's assumption of risk defense would fail. -Estaben might also plead the defenses of contributory and comparative negligence, but both would likewise fail. -Tanya did not breach her duty of reasonable care toward herself by swimming in the pool late at night. -There was no reason for her to know that swimming at 1:45 a.m. was any more dangerous than swimming during daylight, as no open/closed or maintenance schedule signs were posted. -Because the drain danger was not reasonably foreseeable, she was not contributory (or comparatively) negligent in swimming.

Outrageous conduct

The common test for outrageous conduct is one of reasonableness Would a reasonable person so for substantial emotional distress as a result of the tortfeasors actions? -where these activities so outlandish as to shock the conscience of a reasonable person? -what a person of ordinary sensibilities suffer mental pain as a consequence? Tasteless practical jokes often provide fodder for emotional distress litigation. -Consider the person who places a dead mouse inside a soda pop bottle from which someone is drinking and then tells the drinker about the mouse. -Or the heartless prankster hotels apparent that his or her child has just been struck and killed by an automobile when, in fact, this never occurred, as the joker knew perfectly well. -Or the person who places revealing photographs of a nude sunbather all around the sunbathers place of employment for fellow workers to see. -Or the individual who repeatedly telephones another at all hours of the day and night over several weeks In addition, the circulation of hurtful comments, videos, and photos on the Internet; -the posting of hurtful remarks on Twitter, Facebook, and other social network sites; -and the sending of cruel and out rages instant messages and -highly personal photos via cell phone or more recent methods of causing emotional distress to victims

Tortfeasors profit from deception

The defrauder must make false statements tailored to encourage the victim to surrender something of value to the tortfeasor -he must profit in someway In the preceding dishwasher repair example, Aaron duped Stephanie in order to receive her money. -This constitutes fraud

Justifiable reliance

The injured party must justifiably rely on the false statement. This means the party must know about the statement. The false statement must be a substantial factor in the plaintiffs decision, or reason for an action taken based upon the statement. However, the false statement need not be the sole factor in the decision or action

Battery

The intentional, unconsented touching of another person in an offensive or injurious manner There are three basic elements to this tort: 1. nonconsensual physical contact 2. offensive or harmful contact 3. the tortfeasors intent to touch another person in an offensive or injury is Manor

Full appreciation of danger

The plaintiff must fully understand the dangerous nature of the activity that he or she voluntarily undertakes. EX: Suppose that Brett visits a friend's woods. He comes across a cavern and decides to explore it. -He has no way of knowing that higher above him, on a nearby hill, a highway construction crew is preparing to detonate dynamite. -They explode a powerful charge, which sends a shock wave through the ground and causes part of the cavern walls to collapse, trapping Brett inside the cave. -He sues the highway company for negligence in detonating excessively powerful explosives. Run through the negligence formula to determine if the company was negligent toward Brett, closely examining foreseeability of the injury and foreseeable plaintiffs theory. -Presuming that the company acted negligently, it responds with the defense of assumption of risk. -Did Brett voluntarily assume a known risk with a full appreciation of the dangers involved? -He willfully entered the cave. -He knew (or reasonably should have known) that cavern walls sometimes fall in. -That risk was known, but he had no way to anticipate the additional danger created by a forceful explosion. -He did not fully appreciate this aspect of the risk in entering the cave. -Arguably, the dynamite was also an unknown risk to him. Thus, the company's defense would fail.

Freedom from apprehension

The rates being protected by recognition of this toward involve each person's right to control what touches his or her person. Apprehension means that a person reasonably fears for his or her physical safety in anticipation of being struck by the unconsented harmful or distasteful contact

Actual emotional distress

The test for anguish revolves around the way reasonable person of ordinary sensibilities would react to the tortfeasors actions Courts of often complain that determining genuine emotional suffering from fake distress is extremely difficult, -because anyone can pretend to be upset by something. However, physical symptoms usually a company mental distress, -such as loss of sleep, wait, appetite, or vigor; -illnesses brought on after the mental shock; -or other signs of a fact such as tremors, twitches, or sensitivity to loud or some noises. It is important to note, that modern courts do not require physical manifestations and intentional infliction cases

False statements intended to deceive

The tortfeasor commits fraud or misrepresentation by making material false statements designed to delude the victim Ex: if Aaron tells Stephanie that he can repair her broken dishwasher for $100, -when Aaron knows that he lacks the required skill and knowledge to do so, -then Aaron has made false statements intended to mislead Stephanie into paying him the money for work he cannot perform

Intent to confine

The tortfeasor mess intend to confound the victim for false imprisonment to happen. Consider the example of an accident to lock in at a department store, -where a customer is inadvertently locked inside the store after closing hours. -There would be no false imprisonment, because the store management had no desire to confined the patron

Misuse of legal proceedings to achieve unlawful goals

The tortfeasor miss intentionally miss use (or threaten to miss use) a legal proceeding against another person to accomplish and objective to which the process abuser is not legally entitled. Ex: The tortfeasor normally threatens frivolous civil litigation in an attempt to frighten the victim into paying a disputed claim. Ex: The process abuser might file a groundless lawsuit against an innocent defendant in an attempt to "scare up some quick money". -This occasionally occurs in personal injury litigation when fault is difficult to assign improve; the personal injury plaintive abuses process by suing a convenient (but innocent) defendant Ex: The same man suit multiple restaurants, claiming that a waiter had spilled food or beverages on his new suit, permanently staining it. -Many restaurants willingly pay for the cost of a new suit, rather than spending the time and money to defend such a frivolous lawsuit Litigation isn't the only legal process that maybe misapplied, however. Creditors filing in proper mechanics license against debit or's to collect on disputed it, or a wife accusing her spouse of sexually abusing their children to gain an advantage in a custody hearing, when there are no grounds for the claim and she knows the claim is false, would also be guilty of abuse of process The Pivotal aspect of abuse of process is the tortfeasors misuse of a legal proceeding to gain some indirect benefit to which he or she is not legally entitled

Knowledge of falsity of information

The tortfeasor must've known or should've known that the information given to the victim is false for fraud or misrepresentation to happen. Ex: if Henry sells Michelle a new computer with a defective floppy disk drive of which Henry is totally unaware, -then Henry has not engaged in either fraud or misrepresentation, -because he did not know about the product defect when he made the sale

Proof of assumption of risk

There are two categories of assumption of risk. Express Assumption of risk: a plaintiff voluntarily assumes a known risk by an express agreement - An example of this would be a plaintiff being given an agreement with a release clause to sign, -thus acknowledging a particular danger associated with an activity and agreeing not to hold the other party liable -for example, a boxing match. This express assumption is valid so long as it does not violate public policy Implied assumption of risk: a plaintiff accepts a risk knowingly and voluntarily by reason of the plaintiff 's knowledge -For example, a plaintiff entering a barricaded structure despite seeing a large no-entry sign at the entrance.

Spoilation of evidence

This is a new tort as well as a civil action and also a criminal act It is the Deliberate withholding, hiding, or destruction of evidence relevant to a legal proceeding.

who decides the Percentages

Thus, the jury (or judge, in a bench trial) must closely examine the facts and assign negligence percentages to the plaintiff and the defendant.

Accused acquittal from the criminal charges

To recover successfully for malicious prosecution, the accused must've been acquitted of the groundless criminal charges initiated by the complainant, - or the prosecution must've been otherwise disposed of in the accused favor

Truth as an absolute defense

Truth is considered an absolute defense in defamation cases. If the information the tortfeasor communicates is true, -the no libel or slander occurred. To successfully use this defense, the tortfeasor must prove the veracity of the statement What is true is often a matter of opinion. -It always depends upon the nature of the derogatory comments Ex: to call the person born out of wedlock a bastard is technically accurate, but in today's society determines really use as defined in the dictionary. -Similarly, to refer to a sexually promiscuous individual as a ***** could be deemed factual by reasonable person's, particularly those who are morally opposed to the condo described The most common court opinion states that literal truth in every detail is unnecessary. -If the statement is substantially true, -so that a reasonable person would decide that the accusations were justified given the facts, -then truthful operate as a defense to the defamation actions

Bad faith claim

Under insurance law, when an insurance company has an opportunity to settle the matter within the coverage of the insurance policy and refuses to do so without a good reason, A defendant may bring a bad faith claim against the insurance company

Sexual-harassment

Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature, -when this conduct affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment

Abuse of process

Using the legal system unfairly; for example, prosecuting a person for writing a bad check simply to pressure him or her to pay Elements of abuse of process: 1. Misuse of a legal proceeding, or threat of such misuse 2. Misuse to achieve unlawful objectives 3. Injury to the victim as a result of the misuse

Complainant

A person who makes an official complaint A person who starts a lawsuit

Libel

Written defamation. Publicly communicated false written statement that injure a person's reputation, business, or property rights There are many forms of written expression, including such an usual methods as -billboards, -skywriting with smoke -or banners pulled by an airplane, -or placing objects such as stones into the shapes of letters -films, -records, -DVDs, -and downloadable computer files

Malice

1. Ill will 2. Intentionally harming someone 3. In defamation law, with knowledge of falsity or with reckless disregard for whether or not something is false If the complainant new (or reasonable you should've known) that the accused did not commit the alleged crime, then malice is implied. -Also, if the complainant is using the criminal prosecution to obtain some improper objective, such as intimidating the accused into settling a disputed civil claim or to extort money from the accused, then this likewise implies malice

comparative negligence

A legal rule, used in many states, by which the amount of "fault" on each side of an accident is measured and the side with less fault is given damages according to the difference between the magnitude of each side's fault. Comparative negligence may be defined as a measurement and comparison of the plaintiff 's and the defendant's negligence in causing the plaintiff 's injuries.

Petro Chemical Corporation manufacturers Dredroxiphine, a poison used in insect sprays. A railway line delivers tanker Cars full of the chemical to be unloaded into the plant. On Breezy days, the fumes from the unloading stations drift across the highway on to Elmer Parsley's Farm. The owners are pungent and are especially irritating to the sinuses. When Elmer and his family work outside on Windy days, they are constantly besieged by the poisonous smells. Their eyes water excessively, their noses run, and their gripped by sneezing fits. Other farmers in the area have complained of similar symptoms. Visits to the family physician have revealed that Elmer has absorbed minute amounts of the chemical in his lungs and through his skin. Medical studies link exposure to the chemical with several forms of cancer. Elmer has farmed on his property since 1999. Petro constructed its plant in 2001.

1. Petro Chemical Corporation is engaged in trespass to land as a toxic tort, and Elmer Parsley would sue for damages to his property caused by Pestro's chemical production. Pestro's method of unloading the tanker cars allowed airborne toxic chemical vapors to be carried onto Elmer's farm. This was an unauthorized entry upon Elmer's land. Because of its careless method of unloading, Pestro's intent to enter without consent may be implied, as the airborne contamination could easily have been anticipated. Whenever Elmer and his family worked outdoors on windy days, they suffered severe physical reactions from breathing the chemical-tainted air. This was a substantial interference with Elmer's exclusive right to use his real estate (possession). Elmer's family suffered significant health harms. In particular,Elmer was exposed to a powerful carcinogen. Thus, Elmer's action against Petro For toxic trespass to land would be successful

Elements of comparative negligence

1. The plaintiff 's negligence contributed to his or her own injuries. 2. Calculation of the percentage of the plaintiff 's negligence that contributed to his or her injuries. 3. Calculation of the percentage of the defendant's negligence that produced the plaintiff's injury's In some jurisdictions, a fourth element is included: the defendant must have been more negligent than the plaintiff.

Crimes versus torts

A crime is considered a wrong against the state or society as a whole, in addition to the actual victim. -Therefore, the state brings actions against alleged criminals. With torn actions, one person brings suit against another individual or group; -the action is brought by a private attorney on behalf of the injured party. -Thus, a tort is considered a civil action

Invasion of privacy

A violation of the right to be left alone Exist when someone publicly exploits another person's private affairs in an unreasonably intrusive manner. Four different types of invasion of privacy: 1. Appropriation 2. Unreasonable intrusion 3. Public disclosure of private facts 4. False light in the public eye

Endorsement

A written document added to an insurance policy to make modifications or changes

Ch 6 Intentional tort

An injury design to injure a person or that person's property, as opposed to an injury caused by negligence or resulting from an accident Intentional torts consist of conduct that is fashion to harm another person or his or her property They include three elements: act, intent, and injurious behavior

Exclusion

And I don't more current specifically not covered by insurance

Umbrella policy

And additional insurance policy that is purchased to extend the liability limits beyond what is covered under an insured's basic policy of insurance

been left the Pick Em Up Saloon after an evening of heavy drinking. Intoxicated, he stumbled across the street to the Tao, a Chinese restaurant, and ordered a hamburger. The waitress, an exchange student at the local high school, did not understand English well, and because Ben speech was slurred, she misunderstood him when she returned with an oriental Dish, been jumped from his chair and shouted loudly "I did not order the stinking slop! get it out of my face!" several customers started been as he yelled at the waitress, "I'll get the health department to shut this dump down, before somebody else gets poisoned!" the manager ran out from the kitchen and demanded that Ben leave the premises immediately. Ben refused to leave.

Ben's statements constitute commercial disparagement: specifically, disparagement of goods ("stinking slop") and disparagement of business ("I'll get the health department to shut this dump down, before somebody else gets poisoned!"). Ben'saccusations were false statements about the Tao's goods and business enterprise.Ben intended to hurt the restaurant's ability to sell food to its customers and encourage customers to recommend the establishment. Ben "published" his statements loudly and plainly, so that almost everyone present could hear. It is reasonably likely that the restaurant's business would suffer from the allegation that it was a public health hazard. Thus, Ben is liable to the restaurant owner for commercial disparagement.Ben is also liable for trespass to land. Although Ben was implicitly invited into the restaurant as a prospective patron, this consent to his presence on the premises was withdrawn when the manager ordered Ben to leave. By refusing to depart, Ben became a trespasser to land.One might argue that Ben's intoxication prevented him from intending to disparage or trespass. This is irrelevant—a "red herring"—because Ben's degree of intoxication,given his behavior, was insufficient to affect his ability to commit these intentional torts. Additionally, many recent state appellate court decisions disallow intoxication as a defense to various intentional torts, although these usually involve injuries to persons, such as assault, battery, or false imprisonment.

Intent

Explains how a person wants to do something and what that person wants to get done Intent can be broadly defined as the desire to achieve a particular result. Specifically, the tortfeasor mess in 10 to accomplish the harmful consequences of his or her actions

Preponderance of the evidence

Just enough evidence is required to tip the scales in favor of one party over another party

Slander

Oral defamation Speaking of false words that endure another person's reputation, business, or property rights It doesn't necessarily have to be words -Gestures, particularly obscene ones, also qualify, -provided that the meaning of the jesters is sufficiently clear to onlookers to be defamatory

Privilege as an absolute defense

Privileges also considered an absolute defense and defamation cases. Statements made by attorneys and judges during trials are privileged and cannot be the grounds for a defamation charge. -Likewise, legislators are immune from liability for fall statements made during debate, even if the lawmakers deliberately make the untrue statements. -Members of Congress have an absolute privilege of speaking on the floor of Congress. Privilege allows all these persons to do their best jobs without fear of repercussions should a statement they make later proved to be untrue. Defamation is another intentional tort, like a salt and battery, that virtually everyone has experienced either as a victim or tortfeasor (or both)

Public figures

Public figures, such as movie and television celebrities are public officers and employees who exercise substantial governmental power, are treated differently than private individuals. These people are used to being under the public eye and have greater access to the media to refute untrue charges an ordinary person. Accordingly, not as much protection is afforded to public figures. To be successful and claiming defamation, public figure my show that a statement was made with actual malice

Material

Significant or important

Expressed implied threat of force

Sometimes no locked door or wall is necessary to confine a person. -Threats of physical or emotional violence can be quite effective, -as are threats against the victims family or property. -In this way confinement is achieved by expressed intimidation -athe victim is afraid to escape

Transferred intent

Sometimes the tortfeasor tries to strike someone but ends up hitting someone else or intense one wrongful act and another occurs Transferred intent is an effective tool for protecting persons from misdirected physical contacts

Defamation

Transmission to others of false statements that harm the reputation, business, or property rights of a person. -Spoken defamation is slander -written defamation is libel

exclusive right of possession

a landowners right to use their property without interference from other ppl

exclusive right

a right granted to no one else

trespass

a wrongful entry onto another person's property trespass to land occurs when a tortfeasor enters upon a landowners real estate without consent the tortfeasor trespasses when they intentionally acts in such a way as to violate the landowners exclusive right to use the land the elements are 1. unauthorized entry upon another person's real estate 2. tortfeasors intent to enter without consent 3. tortfeasors actions interfering with the landowners exclusive right to use the land (possession)

toxkc tort actions

actions involving toxic chemicals, pollution, hazardous waste disposal and transportation, and other environmentally sensitive issues. -Many tort theories, including trespass to land, negligence, absolute liability for Ultra hazardous substances, products liability, and nuisance, apply these torts are a significant percentage of modern tort litigation

commercial disparagement

an intentional tort that occurs when a tortfeasor communicates false statements to a third party about a person's Goods, services, or business Enterprise. The tortfeasor must intend to harm the victim's ability to use Goods, furnace services, or conduct business disparagement of goods: impedes the chattel owners ability to use his or her personal property disparagement of services: interferes with a service providers ability to engage in provision of services disparagement of business: occurs when the tortfeasor impugns the Integrity of another's business venture elements of commercial disparagement: 1. false statements about an individual's Goods, services, or business 2. intent to injure the victims ability to use Goods, furnish services, or conduct business 3. communication to third parties

defamation by computer

an intentional tort that occurs when the tortfeasor includes false information about a person's credit or credit rating in a computer database this false information must be communicated to third parties, and must enter the victims ability to obtain credit defamation by computer can also be defined as the inclusion of false information about a customer's credit rating in a computer record-keeping system that harms the consumers ability to secure credit elements of this tort: 1. false information about a person's credit rating 2. entering such erroneous data into a computerized record-keeping system 3. communication of the incorrect information to third parties 4. entering the victim's ability to obtain credit as a result of the false computerized data customers who are the subjects of credit reports are protected by the stringent guidelines of the Fair Credit Reporting Act -15 U.S.C. ß 1681 et seq.

extent of deprivation

conversion is differentiated from trespass to Chattel based upon the scope of deprivation trespass deprivation needs to be minor or temporary conversion deprivation must be so expensive as to suggest a desire to deprive the owner of possession permanently most courts agree that conversion has occurred because the tortfeasor deprive the owner of dominion and control over the chattel regardless of the length of time or permanent intent

conversion: criminal or civil?

many state statutes Define conversion as a criminal offence. -Some statutes use the therm theft instead of conversion. Simultaneously, conversion is considered an intentional tort under the common law. -This means that the Chattel owner May Sue in a civil action under the tort theory of conversion -and may also contact the County prosecutor to file a criminal complaint for conversion these separate legal actions are commonly perceived simultaneously in most jurisdictions

slander of title

occurs when a tortfeasor makes false statements about an individual's ownership of property the false statements aren't designed to defend the owner - the purpose is to injure the owner's ability to use the property elements of slander of title 1. false statements regarding a person's ownership of property 2. intent to hinder or damage the owners use of the property 3. communication (publication) of the falsehoods to third parties

conversion

in early history of tort law, trespass to chattel was frequently subject to litigation, often in cases involving domestic livestock. -more recent cases, however, have tended to focus upon conversion, which is a similar but separate tort regarding chattel HISTORY: conversion occurs when a tortfeasor, without consent, deprives an owner of possession of the owners shuttle and puts or converts the property to the conversion occurs when a tortfeasor, without consent, deprives an owner of possession of the owner's chattel and puts or converts the property to the tortfeasors own use elements of conversion: 1. depriving the owner of possession of the Chattel 2. intent to deprive possession and convert the property to one's own use 3. the owners non-consent to The tortfeasors Possession and use of the Chattel

intent to deprive or interfere

intent may be expressed, as it was when Nancy took her neighbor's book. It may also be implied under the circumstances. ex: assume that Sherry's landlord change the locks on her apartment door in order to lock her out, -although she had paid her rent and had done nothing to violate her rental agreement. -This would imply the landlord's intent to deprive Sherry of possession of her personal property inside the apartment. lack of intent may be implied ex: assume Bud found his neighbor's cow grazing along a public Highway and took the animal to his barn for safekeeping until he could tell the neighbor. -although but took possession of the cow with all the neighbors consent, but did not interfere with the neighbors you said the cow. -Nor did he wish to deprive his neighbor of possession -bud simply wished to protect the animal from harm -thus Bud lacked intent to trespass to Chattel

Contributory negligence and last clear chance

it is time to examine contributory negligence, used by a minority of jurisdictions. The majority uses comparative negligence as a primary defense, which is described later in this chapter.

unauthorized interference with use

it's possible to trespass to chattel without taking the property from its rightful owner interference with the Chattel owners use of the property is sufficient. ex: For instance, if a tortfeasor purposely fed Ray's prize Hogs contaminated food, and the Hogs became ill and lost weight, and the tortfeasor engaged in unconsented interference with Ray's use of the animals if Sherry's landlord shuts off the electricity to her apartment without permission, then this would also constitute unauthorized interference with the use of her personal property (if she was up to date with her bill)

Chattel

item of personal property. Any property other than land chattel is personal property, as opposed to real property, (which is land.) that is movable and can be seen and touched. -Animals are included in this definition. -An automobile, -a textbook, -and a desk -are all examples of chattels

Trespass to Chattel

occurs when the tortfeasor intentionally deprives or interferes with the chattel owners possession or exclusive use of personal property. The tortfeasors possession or interference must be unauthorized, -which means that the owner cannot have consented elements of trespass of Chattel: 1. unauthorized possession of, or interference with the use of, another individual's personal property 2. intent to deprive (or interfere with) the owner's possession of exclusive use of his or her Chattel

methods of depriving

physical possession is the most common, although deprivation may happen through damage or destruction of the personal property deprivation may also take place simply through use. -Some forms of personal property cannot be picked up and carried away. ex: electricity, free-flowing liquids, and other intangible items are commonly defined as chattels under state laws called commercial codes. -One possesses such things by using

Ponzi scheme

scam where investors are promised High payoffs for their Investments. However, their money is not really invested, -it is merely paid off with the money from the next investors

unauthorized possession of another chattel

suppose Nancy takes the neighbors textbook during class. -Unless Nancy obtain the neighbors consent before seizing the textbook, -Nancy has engaged and unauthorized possession of another person's property. This is sometimes described as the act of dispossession consent may be employed under certain circumstances. ex: if Alfred gives his car keys to a friend, -the implication is that the friend may use Alfred's car. Similarly, Hotel guests May presume that the management intended them to use the electricity, water, soap, and tissues supplies to the rooms. However if a patron takes the hotel's pillows, sheets, or towels this would be an authorized possession, -as staying in a hotel does not implicitly intitle guess to keep such items

entry

the act of entering (as upon real property) ex: taking a shortcut and walking across someone's front lawn constitutes entry, because the tortfeasor entered the land -entry happens when someone throws trash in a neighbor's backyard bc the trash depositor placed an unwanted substance on the land -both of these ex have the interference element

depriving of possession

the common-law usually employs the phrase "exercising dominion and control over the chattel that is inconsistent with the owner's right to exclusive use" this means that the tortfeasor controls in other's personal property as to prevent the owner from using it

unauthorized entry

the entry must be with out consent this is the permission element people have a lawful right to enter store premises as they are patrons of the store -they are invited to come upon the premises to spend money the lawful right of ppl to be on another property may be withdrawn -suppose someone becomes disruptive, annoying other shoppers and employees -the manager could demand the agitator leave immediately -if they don't, they become a trespasser even tho they were originally invited onto the premises

contributory negligence

the plaintiff's own negligence that contributed to his or her injuries. The elements of contributory negligence include duty, breach, causation, and injury. In some jurisdictions, this doctrine totally bars an injured plaintiff from recovering anything.

no actual harm required

the unauthorized entry need not cause any damage to the real estate it is sufficient the transgression occured injury has happened bc the tortfeasor has interfered with the landowners use of the realty technical trespasses are walking onto someone's land courts usually award nominal damages for technical trespasses -usually award a minimal sum, such as $1 in nominal damages, bc no actual damage has occured -it is ceremonial or symoblic of the invasion of the property rights few lawsuits involve technical trespasses bc it's too expensive to litigate a trespass action when no injury has resulted

importance of environmental statutes

there are a variety of federal, state, and local statutes regulating environmental toxins. One important federal statute is the Toxic Substances Control Act. -This act regulates the manufacturer, distribution, processing, use, and disposal of hazardous materials. - 15 U.S.C. ẞ 2601 et seq. (1992) The Hazardous Materials Transportation Act establishes strict requirements for Transporters of hazardous waste. - 49 U.S.C we 1801-1812 (1992) another federal statute, the Comprehensive Environmental Response, Compensation and Liability Act, addresses any "imminently hazardous chemical substance or mixture" -and allows the Federal Environmental Protection Agency to file civil lawsuits when the use of such a material will pose imminent risk to health or the environment -and the EPA has not issued a final rule to protect against such risk In addition, there are international environmental agreements.

false statements regarding ownership

this usually occurs when the tortfeasor falsely calls into question the title to another's property. Normally, cases involving this tort include real estate and the filing a false liens. a lien is something a business person files against someone's property so that it cannot be leased or sold because the person owes them money for a service suppose a business threatens to file a lien against a customer who does not owe the business any money. -If the lienholder wrongfully files and lean, then the leans to feign the Integrity of the landowners title. - the lean falsely suggest to the world that the landowner is not properly paid his or her debts. -Anyone thinking of buying or leasing the property will think twice -that's a falsely found lean could injure the landowners ability to use the property

Possession: landowners exclusive right to use

to trespass to land, the tortfeasors unauthorized entry must interfere with the land owners exclusive right to use their realty this is sometimes called the exclusive right of possession,which entitles the landowner to use the property without anyone elses interference trespass seeks merely to protect ones realty from other ppl encroching upon it, just as assult and battery are meant to deter unwanted physical contact

trespass above and below land

trespass to land may occur not only upon the surface of the realty but also above and below it it's possible for trespass to occur in the air above ones land ex: if a utility company erects wires across one's land without consent, this would constitute trespass to land, because the landowner owns the air above the soil -there is an exception for aircrafts trespass also occurs if someone mines under someone else's land in Marengo Cave Co. v. Ross, the supreme Court of indiana stated that it was trespass for the cave company to charge admission for ppl to explore caves below the surface of another landowners property

toxic trespass

trespass to land occurs when toxic substances enter upon another's property. The trespass elements remain the same: 1. Unauthorized entry upon another person's real estate 2. tortfeasors intent to enter without consent 3. tortfeasors actions interfering with the landowners exclusive right to use the land (possession) the tortfeasors intent to enter without permission may be implied from the disposal method used. ex: toxic waste buried in metal barrels will, over time, rust through and seep into the underground soil, unless the material is contained in an isolated fashion another example of implied intent is dumping toxic fluids into waterways. -the tortfeasor desired the river or stream to carry the dangerous substances Downstream, which would plainly deposit the toxins on the shores of other people's property many cases in the court reports tell sad Tales of families irreparably harmed through long-term consumption of chemically contaminated well water, poisoned as a result of improper underground waste disposal

dispossession

wrongfully taking away a person's property by force, trick, or misuse of the law