Chapter 5 - Torts, Crimes and Intellectual Property
Example of the tort invasion of the right to privacy
Example Sending an objectionable telegram to a third party and signing another's name would place the purported sender in a false light in the eyes of the receiver.
Malicioys Prosecution
In a lawsuit for the original defendant sues the original plaintiff. In this second lawsuit, which is a civil action for damages, the original defendant is the plaintiff and the original plaintiff the defendant. To succeed in a malicious prosecution lawsuit, the courts require the plaintiff to prove all of the following:
Intentional torts
In addition, the law protects a person's reputation and privacy. Violations of these rights are actionable as BLANK BLANK against persons are discussed in the paragraphs that follow.
Actual Cause
A defendant's negligent act must be the actual cause (also called causation in fact) of the plaintiff's injuries. The test is this: "But for" the defendant's conduct, would the accident have happened? If the defendant's act caused the plaintiff's injuries, there is causation in fact.
Libel
A false statement that appears in writing or other fixed medium is
Example of misappropriation of the right to publicity
Example Megan Fox is a famous movie star. If an advertising agency places Megan Fox's likeness (e.g., photo) on a billboard advertising a product without Megan Fox's permission, it has engaged in the tort of misappropriation of the right to publicity. Megan Fox could sue and recover the profits made by the offending party as well as obtain an injunction to prevent unauthorized use of her likeness by the offending party.
What are Intentional Torts:
The law protects a person from unauthorized touching, restraint, or other contact.
Shopkeeper's Priviledge : Enacted merchant protection statutes ( 3) factors that must be true
There are reasonable grounds for the suspicion. Suspects are detained for only a reasonable time. Investigations are conducted in a reasonable manner.
In such a situation, the law applies the doctrine of res
(Latin for "the thing speaks for itself").
Intentional Torts
1.Assault 2.Battery 3.False Improsonment 4.Misappropriation of the Right to Privacy 5. 6.
After the duty of care, breach of the duty of care, next is the injury to the plaintiff
Even though a defendant's negligent act may have breached a duty of care owed to the plaintiff, this breach is not actionable unless the plaintiff suffers injury or injury to his or her property. That is, the plaintiff must have suffered some injury before he or she can recover any damages. The damages recoverable depend on the effect of the injury on the plaintiff's life or profession.
Assault
Assault is (1) the threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary. Threats of future harm are not actionable.
Gross Negligence
A person who injures someone by his or her gross negligence is liable for compensatory damages suffered by the injured party, including actual losses such as medical costs and also for pain and suffering. If gross negligence is found, punitive damages may also be awarded.
Strict Negligence
Activities such as crop dusting, blasting, fumigation, burning of fields, storage of explosives, and the keeping of animals and pets are usually considered activities to which strict liability applies.
enacted merchant protection statutes,
Almost all states have also known as the shopkeeper's privilege.
Disparagement
Business firms rely on their reputation and the quality of their products and services to attract and keep customers. That is why state unfair-competition laws protect businesses from disparaging statements made by competitors or others. A statement is an untrue statement made by one person or business about the products, services, property, or reputation of another business.
Defenses against Negligence
Example Assume that an avid golfer negligently hits a spectator with a golf ball, knocking the spectator unconscious. While lying on the ground, waiting for an ambulance to come, the spectator is struck by a bolt of lightning and killed. The golfer is liable for the injuries caused by the golf ball. He is not liable for the death of the spectator, however, because the lightning bolt was an unforeseen intervening event.
Strict Liability
Example Ellison has owned a dog for years. The dog has shown no dangerous propensities and has never bitten anyone. Ellison goes out of town on a business trip and has his neighbor take care of the dog while he is gone. While Ellison is gone, the neighbor, while walking the dog, lets the dog off of her leash to play with a child who has asked to play with the dog. When the child hits the dog in the eye, the dog bites the child, injuring the child. Here, Ellison is strictly liable for the injuries caused by his dog even though he has committed no negligence himself.
Example of Product Disparagement
Example If a competitor of John Deere tractors told a prospective customer that "John Deere tractors often break down" when in fact they rarely do, that would be product disparagement.
Defenses against negligence
Superseding or Intervening Event Under negligence, a person is liable only for foreseeable events. Therefore, an original negligent party can raise a superseding event or an intervening event as a defense to liability.
Gross Negligence
Example If a person is texting while driving and causes an accident in which other persons are injured or killed, that person is most likely liable for gross negligence. It is well known that texting while driving causes the driver to take her or his eyes off the road to use an electronic texting device. Texting while driving is a conscious disregard for the safety of others.
Attractive Neusance
Example If, in the prior example Pamela was not a doctor or otherwise protected by the Good Samaritan law, she would be liable for any injuries caused to Sam by her ordinary negligence (or gross negligence or recklessness) while rendering aid to Sam. Thus, there is some liability exposure when a person renders aid to another perso
Example of the tort invasion of the right to privacy
Examples Secretly taking photos of another person with a cell phone camera in a men's or women's locker room constitutes invasion of the right to privacy. Reading someone else's mail, wiretapping someone's telephone, and reading someone else's e-mail without authorization to do so are also examples of invasion of the right to privacy.
wrongful death action
If the victim of a tort dies, his or her beneficiaries can bring a BLANK to recover damages from the defendant.
Attractive Neusiance
The attractive nuisance doctrine is a special tort rule that imposes liability on a landowner to children who have trespassed onto his or her property with the intent to play on the attractive nuisance and are killed or injured while doing so. The underlying reason for this doctrine is that children, due to their youth, do not understand the potential risk associated with the hazard. To find the landowner liable to the child, the attraction must pose an unreasonable risk of death or serious bodily harm.
The tort of defamation of character requires a plaintiff to prove that:
The defendant made an untrue statement of fact about the plaintiff. The statement was intentionally or accidentally published to a third party. In this context, publication simply means that a third person heard or saw the untrue statement. It does not require appearance in newspapers, magazines, or books.
Most torts are intentional or unintentional
These are based on the concept of fault. In many jurisdictions, the law recognizes the doctrine of strict liability. Under this doctrine, in certain circumstances, defendants may be held liable without fault.
The general rule for proximate cause is
]foreseeability
Attractive Neusisance
include machinery, abandoned refrigerators and freezers, junk yards, open pits, and unguarded pools. The landowner owes a duty to remove the dangerous condition or take steps to prevent children from reaching the dangerous object.
scienter,
refers to intentional conduct. It also includes situations in which the wrongdoer recklessly disregards the truth in making a representation that is false. Intent or recklessness can be inferred from the circumstances.
To be successful in a negligence lawsuit, the plaintiff must prove tha
t (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached this duty of care, (3) the plaintiff suffered injury, (4) the defendant's negligent act was the actual cause of plaintiff's injury, and (5) the defendant's negligent act was the proximate cause of the plaintiff's injuries. Each of these elements is discussed in the paragraphs that follow.
Disparagement different names
which is also called trade libel, product disparagement, and slander of title, the plaintiff must show that the defendant
To prove disparagement,
(1) made an untrue statement about the plaintiff's products, services, property, or business reputation; (2) published that untrue statement to a third party; (3) knew the statement was not true; and (4) made the statement maliciously (i.e., with intent to injure the plaintiff).
Public Figures as Plaintiffs In New York Times Co. v. Sullivan,
1 the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with "actual malice." Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity. This requirement has since been extended to public figure plaintiffs, such as movie stars, sports personalities, and other celebrities.
Applying a reasonable person standard
A brain surgeon is measured against a reasonable brain surgeon standard. A general practitioner doctor who is the only doctor who serves a small community is measured against a reasonable small-town general practitioner standard.
3 conditions for the negligent infliction of emotional distress
A close relative was killed or injured by the defendant. The plaintiff suffered severe emotional distress. The plaintiff's mental distress resulted from a sensory and contemporaneous observance of the accident. Some states require that the plaintiff's mental distress be manifested by some physical injury; other states have eliminated this requirement.
Gross Negligence
A person can be liable for injury and damage caused by their gross negligence. Gross negligence is extreme when compared with ordinary negligence. BLANK has often been defined as either a want of even scant care or an extreme departure from the ordinary standard of conduct. In most jurisdictions, gross negligence requires a finding that the defendant engaged in willful misconduct or reckless behavior. A person who engages in wanton and reckless conduct usually has no intent to cause harm to others. However, she or he performs an act that she or he knows or should have known is so unreasonable and dangerous that it is likely to cause harm. Because the definition of gross negligence is vague, a claim for gross negligence is often difficult to prove. The determination of whether a party's conduct is ordinary negligence or gross negligence depends on the unique circumstances of the case.
Tort of Defamation of Character
A person's reputation is a valuable asset. Therefore, every person is protected from false statements made by others during his or her lifetime. This protection ends upon a person's death.
Slander
An oral defamatory statement is slander.
Example of a Breach of Duty of Care
BLANK may also consist of a failure to act when there is a duty to act. Example A firefighter who refuses to put out a fire when her safety is not at stake breaches her duty of care for failing to act when she has a duty to act.
Battery
Battery is unauthorized and harmful or offensive physical contact with another person that causes injury. Basically, the interest protected here is each person's reasonable sense of dignity and safety. Direct physical contact, such as intentionally hitting someone with a fist, is battery. DIRCT PHYSICAL CONTACT
Malicious Prosecution
But a losing plaintiff does have to worry about being sued by the defendant in a second lawsuit for malicious prosecution if certain elements are met. The plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit. There was no probable cause for the first lawsuit (i.e., it was a frivolous lawsuit). The plaintiff in the original action brought it with malice. (Caution: This is a very difficult element to prove.) The original lawsuit was terminated in favor of the original defendant (now the plaintiff). The current plaintiff suffered injury as a result of the original lawsuit. The courts do not look favorably on malicious prosecution lawsuits because they feel that such lawsuits inhibit the original plaintiff's incentive to sue.
A defendants neglict must be the plaintiff's actual cause
Example Suppose a corporation negligently pollutes the plaintiff's drinking water. The plaintiff dies of a heart attack unrelated to the polluted water. Although the corporation has acted negligently, it is not liable for the plaintiff's death. There were a negligent act and an injury, but there was no cause-and-effect relationship between them. If, instead, the plaintiff had died from the polluted drinking water, there would have been causation in fact, and the polluting corporation would have been liable.
Sometimes a plaintiff is partially liable for causing his own injuries. In such cases, the law usually penalizes the plaintiff for his negligence. States apply one of the two following standards:
Contributory negligence. Some states apply the doctrine of contributory negligence, which holds that a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant. Comparative negligence. Many states have replaced the doctrine of contributory negligence with the doctrine of comparative negligence, also called comparative fault. Under this doctrine, damages are apportioned according to fault.
Neglect Infliction of Emotional Distress
Example A father is walking his young daughter to school when a driver of an automobile negligently runs off the road and onto the sidewalk, hitting the girl but not her father. Suppose that the young daughter dies from her injuries. The father suffers severe emotional distress by seeing his daughter die and manifests his distress by suffering physically. The father can recover damages for negligent infliction of emotional distress for the severe distress he suffered by seeing his daughter die.
Attractive Neusisance
Example A home owner owes a duty to place a fence and locked gate around a swimming pool in his or her yard.
Gross Negligence
Example If an automobile driver runs a stop sign by mistake and hits another car, causing injury to its occupants, the driver is liable for ordinary negligence. If that driver had been drinking alcohol before running the stop sign and his alcohol levels are well above the legal limit, and he causes the same accident, the driver would be found liable for gross negligence because of his reckless disregard for the safety of others, which is caused by his excessive drinking and then driving.
Negligence Per Se
Example Most cities have an ordinance that places the responsibility for fixing public sidewalks in residential areas on the home owners whose homes front the sidewalks. A home owner is liable if he or she fails to repair a damaged sidewalk in front of his or her home if a pedestrian trips and is injured because of the unrepaired sidewalk. The injured party does not have to prove that the home owner owed the duty because the statute establishes that.
Contributory Negigence
Example Suppose a driver who is driving over the speed limit negligently hits and injures a pedestrian who is jaywalking against a red "Don't Walk" sign. Suppose the jury finds that the driver is 80 percent responsible for the accident and that the jaywalker is 20 percent responsible. The pedestrian suffered $100,000 in injuries. Under the doctrine of contributory negligence, the pedestrian cannot recover any damages from the driver.
Example of a Breach of a Duty of Care
Example Throwing a lit match on the ground in the forest and causing a fire is a BLANKKKKK
Example of a Breach of a Duty of Care
Example Throwing a lit match on the ground in the forest and causing a fire is a breach of a duty of care.
Assumption of Risk
Example Under assumption of the risk, a race-car driver assumes the risk of being injured or killed in a crash. In the following case, the court had to decide whether there was an obvious danger.
Comparative Negligence
Example When the comparative negligence rule is applied to the previous example in which the pedestrian suffered $100,000 of injuries, the result is much fairer. The plaintiff-pedestrian, who was 20 percent at fault for causing his own injuries, can recover 80 percent of his damages (or $80,000) from the negligent defendant-driver.
Professional Malpractice ( Special Negligence DOctrines)
Examples A doctor who accidently leaves a medical instrument in a patient after an operation has been completed is liable for medical malpractice. A lawyer who fails to file a document with the court on time, thus causing the client's case to be dismissed, is liable for legal malpractice.
False Imprisonment
Examples A person who locks the doors in a house or automobile and does not let another person leave is liable for false imprisonment. Merely locking one door to a building when other exits are not locked is not false imprisonment. However, a person is not obliged to risk danger or an affront to his or her dignity by attempting to escape.
Duty of Care
Examples Each person owes a duty to drive his or her car carefully, not to push or shove on escalators, not to leave skateboards on the sidewalk, and the like. Businesses owe a duty to make safe products, not to cause accidents, and so on.
Examples of Defamation
Examples False statements that appear in a letter, newspaper, magazine, book, photograph, movie, video, and the like, are libel. If a person verbally makes an untrue statement of fact about another person to a third person, such oral statement constitutes slander. Most courts hold that defamatory statements in radio and television broadcasts are considered libel because of the permanency of the media.
ipsa loquitur
Examples Haeran goes in for major surgery and is given anesthesia to put her to sleep during the operation. Sometime after the operation, it is discovered that a surgical instrument was left in Haeran during the operation. She suffers severe injury because of the instrument left in her body. Haeran has no way to identify which doctor or nurse carelessly left the instrument. In this case, the court can apply the doctrine of res ipsa loquitur and place the presumption of negligence on the defendants. Any defendant who can prove that he or she did not leave the instrument in Haeran escapes liability; any defendant who does not disprove his or her negligence is liable. Other typical res ipsa loquitur cases involve commercial airplane crashes, falling elevators, and the like.
Attractive Neusance
Examples Sam is injured in an automobile accident and is unconscious in his automobile alongside the road. Doctor Pamela Heathcoat, who is driving by the scene of the accident, stops, pulls Sam from the burning wreckage, and administers first aid. In doing so, Pamela negligently breaks Sam's shoulder. If Pamela's negligence is ordinary negligence, she is not liable to Sam because the Good Samaritan law protects her from liability; if Pamela was grossly negligent or reckless in administering aid to Sam, she is liable to him for the injuries she caused. It is a question of fact for the jury to decide whether a doctor's conduct was ordinary negligence or gross negligence or recklessness. n.
Example of Assault
Examples Suppose a 6-foot-5-inch, 250-pound person makes a fist and threatens to punch a 5-foot, 100-pound person. If the threatened person is afraid that he or she will be physically harmed, that person can sue the threatening person to recover damages for the assault.
Injury to the plaintiff
Examples Suppose that a man injures his hand when a train door malfunctions. The train company is found negligent. If the injured man is a star professional basketball player who makes $5 million per year, with an expected seven years of good playing time left, this plaintiff can recover multiple millions of dollars because he can no longer play professional basketball. If the injured man is a college professor with 15 years until retirement who is making only one-fortieth per year of what the basketball player makes, he can recover some money for his injuries. However, because he makes a lot less per year than the professional basketball player and because he can continue working, albeit with more difficulty, the professor can recover much less for the same injury.
Opinion or defamation
Examples The statement "My lawyer is lousy" is an opinion and is not defamation. The statement "My lawyer has been disbarred from the practice of law," when she has not been disbarred, is an untrue statement of fact and is actionable as defamation.
ipsa loquitur
If a defendant is in control of a situation in which a plaintiff has been injured and has superior knowledge of the circumstances surrounding the injury, the plaintiff might have difficulty proving the defendant's negligence. This doctrine raises a presumption of negligence and switches the burden to the defendant to prove that he or she was not negligent. Res ipsa loquitur applies in cases where the following elements are met: The defendant had exclusive control of the instrumentality or situation that caused the plaintiff's injury. The injury would not have occurred ordinarily but for someone's negligence.
Assumption of Risk
If a plaintiff knows of and voluntarily enters into or participates in a risky activity that results in injury, the law recognizes that the plaintiff assumed, or took on, the risk involved. Thus, the defendant can raise the defense of assumption of the risk against the plaintiff. This defense assumes that the plaintiff (1) had knowledge of the specific risk and (2) voluntarily assumed that risk.
Actual Cause
If two (or more) persons are liable for negligently causing the plaintiff's injuries, both (or all) can be held liable to the plaintiff if each of their acts is a substantial factor in causing the plaintiff's injuries.
tort of intentional infliction of emotional distress, or the tort of outrage.
In some situations, a victim may suffer mental or emotional distress without first being physically harmed. The Restatement (Second) of Torts provides that a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that emotional distress.2 This is called the
Example of misappropriation of the right to publicity
In such cases, the plaintiff can (1) recover the unauthorized profits made by the offending party and (2) obtain an injunction preventing further unauthorized use of his or her name or identity. Many states provide that the right to publicity survives a person's death and may be enforced by the deceased's heirs.
Good Samartian
In the past, liability exposure made many doctors, nurses, and other medical professionals reluctant to stop and render aid to victims in emergency situations, such as highway accidents. Almost all states have enacted Good Samaritan laws that relieve medical professionals from liability for injury caused by their ordinary negligence in such circumstances. Good Samaritan laws protect medical professionals only from liability for their ordinary negligence, not for injuries caused by their gross negligence or reckless or intentional conduct. Most Good Samaritan laws protect licensed doctors, nurses, and laypersons certified in cardiopulmonary resuscitation (CPR). Laypersons not trained in CPR are not generally protected by Good Samaritan statutes—that is, they are liable for injuries caused by their ordinary negligence in rendering aid.
Intentional Misrepresentation ( Fraud or Deceit)
It occurs when a wrongdoer deceives another person out of money, property, or something else of value.
Defendant breached that duty - Breach of the duty of care
Once a court finds that the defendant actually owed the plaintiff a duty of care, it must determine whether the BLANKA breach of the duty of care is the failure to exercise care. In other words, it is the failure to act as a reasonable person would act. A breach of this duty may consist of an action.
Intentional Misrepresentation ( This tort is also known as fraud or deceit.)
One of the most pervasive business torts is intentional misrepresentation. A person who has been injured by intentional misrepresentation can recover damages from the wrongdoer. Four elements are required to find fraud:
Malicious Prosecution
One student actor wins a part in a play over another student actor. To get back at the winning student, the rejected student files a lawsuit against the winning student, alleging intentional infliction of emotional distress, defamation, and negligence. The lawsuit is unfounded, but the winning student must defend the lawsuit. The jury returns a verdict exonerating the defendant. The defendant now can sue the plaintiff for malicious prosecution and has a very good chance of winning the lawsuit.
More about a breah of a duty to care
Passersby are generally not expected to rescue others gratuitously to save them from harm. However, most states require certain relatives—parents to children or children to parents if the children are old enough—to try to save their relatives from harm. The following ethics feature discusses a classic case involving the issue of negligence.
Special Negligence Doctrines
Professionals, such as doctors, lawyers, architects, accountants, and others, owe a duty of ordinary care in providing their services. This duty is known as the reasonable professional standard. A professional who breaches this duty of care is liable for the injury his or her negligence causes. This liability is commonly referred to as professional malpractice.
Negligent Infliction of Emotional Distress
Some jurisdictions have extended the tort of emotional distress to include the negligent infliction of emotional distress. Here, a person who is not physically injured by the defendant's negligence suffers emotional distress because of the defendant's action and can recover damages from the defendant for emotional distress.
Transferred Intent Doctrine ( Intentional tort )
Sometimes a person acts with the intent to injure one person but actually injures another. The transferred intent doctrine applies to such situations. Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim of the act. The victim can then sue the defendant.
Negligence Per Se
Statutes often establish duties owed by one person to another. The violation of a statute that proximately causes an injury is negligence per se. The plaintiff in such an action must prove that (1) a statute existed, (2) the statute was enacted to prevent the type of injury suffered, and (3) the plaintiff was within a class of persons meant to be protected by the statute.
Strict Liability
Strict liability, another category of torts, is liability without fault. That is, a participant in a covered activity will be held liable for any injuries caused by the activity, even if he or she was not negligent. This doctrine holds that (1) there are certain activities that can place the public at risk of injury even if reasonable care is taken and that (2) the public should have some means of compensation if such injury occurs. Strict liability is imposed for abnormally dangerous activities that cause injury or death.
Examples of Tort Damages
Such injury may consist of past and future medical expenses, loss of wages, pain and suffering, mental distress, and other damages caused by the defendant's tortuous conduct.
applying a reasonable person standard.
The courts decide whether a duty of care is owed in specific cases by Under this test, the courts attempt to determine how an objective, careful, and conscientious person would have acted in the same circumstances and then measure the defendant's conduct against that standard. The defendant's subjective intent ("I did not mean to do it") is immaterial in assessing liability. Certain impairments do not affect the reasonable person standard.
False Improsonment
The intentional confinement or restraint of another person without authority or justification and without that person's consent constitutes false imprisonment. The victim may be restrained or confined by physical force, barriers, threats of physical harm, or the perpetrator's false assertion of legal authority (i.e., false arrest). A threat of future harm or moral pressure is not considered false imprisonment. The false imprisonment must be complete.
Example of the tort invasion of the right to privacy
The law recognizes each person's right to live his or her life without being subjected to unwarranted and undesired publicity. A violation of this right constitutes the tort of invasion of the right to privacy. If a fact is public information, there is no claim to privacy. However, a fact that was once public (e.g., commission of a crime) may become private after the passage of time. Placing someone in a "false light" constitutes an invasion of privacy.
Intentional Infliction of Emotional Distress
The plaintiff must prove that the defendant's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."3 The tort does not require any publication to a third party or physical contact between the plaintiff and defendant. An indignity, an annoyance, rough language, or an occasional inconsiderate or unkind act does not constitute outrageous behavior. However, repeated annoyances or harassment coupled with threats are considered outrageous. The mental distress suffered by the plaintiff must be severe. Many states require that this mental distress be manifested by some form of physical injury, discomfort, or illness, such as nausea, ulcers, headaches, or miscarriage. This requirement is intended to prevent false claims. Some states have abandoned this requirement.
Defamation Continued
The publication of an untrue statement of fact is not the same as the publication of an opinion. The publication of opinions is usually not actionable. Because defamation is defined as an untrue statement of fact, truth is an absolute defense to a charge of defamation.
Intentional Misrepresentation ( Fraud or Deciet)
The wrongdoer made a false representation of a material fact. The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party. The innocent party justifiably relied on the misrepresentation. The innocent party was injured.
Battery
Throwing a rock, shooting an arrow or a bullet, knocking off a hat, pulling a chair out from under someone, and poisoning a drink are all instances of actionable battery. The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep).
Unintentional Tort Negligence
Under the doctrine of unintentional tort, commonly referred to as ordinary negligence or negligence, a person is liable for harm that is the foreseeable consequence of his or her actions. Negligence is defined as "the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do."4
Proximate Cause
Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. Based on public policy, the law establishes a point along the damage chain after which the negligent party is no longer responsible for the consequences of his or her actions. This limitation on liability is referred to as proximate cause (also called legal cause). The general test of proximate cause is foreseeability. A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff's injuries is not liable to the plaintiff. Situations are examined on a case-by-case basis.
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Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or to the party's property. Many torts have their origin in common law. The courts and legislatures have extended tort law to reflect changes in modern society.
Tort damages
are monetary damages that are sought from the offending party. They are intended to compensate the injured party for the injury suffered.
The most common form of negligent infliction of Emotional Distress
involves bystanders who witness the injury or death of a relative that is caused by another's negligent conduct. Under this tort, the bystander, even though not physically injured personally, may be able to recover damages against the negligent party for his or her own mental suffering. Many states require that the following elements are proved in bystander cases:
Tort
is the French word for "a wrong." The law provides remedies to persons and businesses that are injured by the tortious actions of others. Tort damages
Duty of Care
it must first be ascertained whether the defendant owed a BLANK to the plaintiff. BLANK refers to the obligation people owe each other—that is, the duty not to cause any unreasonable harm or risk of harm.
An example for Proximate and Actual Cause
person is walking on a public sidewalk. When he finishes smoking a cigarette, which is still lit, he negligently tosses it and it lands close to a house. The cigarette causes a fire that burns down the house. In this instance, the smoker is the proximate cause of the damage because it is reasonably foreseeable that his action could burn down the house. If the fire jumps and burns down the adjacent house, the smoker is still the proximate cause. If the third house in the row burns, he is probably still the proximate cause. However, if the fire spreads and burns down 100 houses before it is put out (the smoker is the actual cause of the damage under the "but for" test), the smoker would not be the proximate cause of burning the one-hundredth house because it would not be reasonably foreseeable that his action of throwing a lit cigarette would burn down so many houses. Where does one draw the line of liability? At the 4th house? The 20th house? The 40th house? This decision is left up to the jury.
