BLAW CHAPT 4

Puffery

A salesperson's often exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties.

Causation in Fact

An act or omission without which an event would not have occurred.

Assault

Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat.

Tort

A civil wrong not arising from a breach of contract; a breach of a legal duty that proximately causes harm or injury to another.

Defense

A reason offered and alleged by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks.

Negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances. EXAMPLE: If Juan carelessly bumps into Maya, however, and she falls and breaks an arm as a result, Juan's action will constitute negligence. In this situation, Juan has committed a tort.

Damages

Money sought as a remedy for a breach of contract or a tortious action.

Compensatory Damages

A monetary award equivalent to the actual value of injuries or damage sustained by aggrieved party.

Qualified Privilege

A person will not be liable for defamatory statements because he or she has this type of privilege. An employer's statements in written evaluations of employees are an example of a qualified privilege. EXAMPLE: Jorge applies for membership at the local country club. After the country club's board rejects his application, Jorge sues the club's office manager for making allegedly defamatory statements to the board concerning a conversation she had with Jorge. Assuming that the office manager had simply relayed what she thought was her duty to convey to the club's board, her statements would likely be protected by qualified privilege.

Statute of Limitations

A time limit.

Cyber Tort

A tort committed in cyberspace.

Intentional Tort

A wrongful act knowingly committed. EXAMPLE: A prankster telephones a pregnant woman and says that her husband and son have been in a horrible accident. As a result, the woman suffers intense mental anguish and a miscarriage. In this situation, the woman can sue for intentional infliction of emotional distress. EXAMPLE 2: Hustler magazine once printed a fake advertisement that showed a picture of the Reverend Jerry Falwell and described him as having lost his virginity to his mother in an outhouse while he was drunk. Falwell sued the magazine for intentional infliction of emotional distress and won, but the United States Supreme Court overturned the decision. The Court held that creators of parodies of public figures are protected under the First Amendment from intentional infliction of emotional distress claims. (The Court applied the same standards that apply to public figures in defamation lawsuits, discussed next.)

Negligence Per Se

An action or failure to act in violation of a statutory requirement. EXAMPLE: A Delaware statute states that anyone "who operates a motor vehicle and who fails to give full time and attention to the operation of the vehicle" is guilty of inattentive driving. Michael Moore was cited for inattentive driving after he collided with Debra's car when he backed a truck out of a parking space. Moore paid the ticket, which meant that he pleaded guilty to violating the statute. The day after the accident, Debra began having back pain, which eventually required surgery. She sued Moore for damages , alleging negligence per se. The Delaware Supreme Court ruled that the inattentive driving statute set forth a sufficiently specific standard of conduct to warrant application of negligence per se.

Disparagement of Property

An economically injurious falsehood made about another's product or property; a general term for torts that are more specifically referred to as slander of title. EXAMPLE: A car dealer would have difficulty attracting customers after competitors published a notice that the dealer's stock consisted of stolen automobiles.

Actionable

Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action.

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability. EXAMPLE: Ackerman carelessly leaves a campfire burning. The fire not only burns down the forest but also sets off an explosion in a nearby chemical plant that spills chemicals into a river, killing all the fish for a hundred miles downstream and ruining the economy of a tourist resort. Should Ackerman be liable to the resort owners? To the tourists whose vacations were ruined? These are questions of proximate cause that a court must decide.

Strict Liability

Liability regardless of fault. In tort law, strict liability is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce goods that are unreasonably dangerous when in a defective condition. A significant application of strict liability is in the area of product liability-liability of manufacturers and sellers for harmful or defective products.

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

Tortfeasor

One who commits a tort.

Absolute Privilege

Only in judicial proceedings and certain government proceedings is this type of privilege granted. Thus, statements made in a courtroom by attorneys and judges during a trial are absolutely privileged, as are statements made by government officials during legislative debate.

Business Tort

Wrongful interference with another's business rights.

Duty of Care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

Trespass to Land

The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization. THIS IS AN INTENTIONAL TORT AGAINST REAL ESTATE.

Libel

Defamation in writing or other form having the quality of permanence (such as digital recording).

Reasonable Person Standard

The standard of behavior expected of a hypothetical "reasonable person"; the standard against which negligence is measured and that must be observed to avoid liability for negligence.

Fraudulent Misrepresentation

Any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment.

Defamation

Anything published or publicly spoken that causes injury to another's good name, reputation, or character.

Slander

Defamation in oral form. EXAMPLE: If Thompson writes Andrews a private letter accusing him of embezzling funds, the action does not constitute libel. If Peters falsely states that Gordon is dishonest and incompetent when no one else is around, the action does not constitute slander. In neither instance was the message communicated to a THIRD party.

Appropriation

In tort law, the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user. EXAMPLE: Vanna White, the hostess of the popular television game show Wheel of Fortune, brought a case against Samsung Electronics America, Inc. In one of its advertisements (and without White's permission), Samsung depicted a robot dressed in a wig, gown, and jewelry, posed in a scene that resembled the Wheel of Fortune set, in a stance for which Whit is famous. The court held in White's favor, holding that the tort of appropriation does not require the use of a celebrity's name or likeness. The court stated that Samsung's robot ad left "little doubt" as to the identity of the celebrity whom the ad was meant to depict.

Battery

The unexused, harmful or offensive, intentional touching of another. EXAMPLE: Ivan threatens Jean with a gun and then shoots her. The pointing of the gun at Jean is an assault; the firing of the gun (if the bullet hits Jean) is a battery. The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss).