Chapter 6: Tort Law

Publication requirement:

gravamen of Defamation is the "publication" of a false statement to a 3rd party holds an individual up to hatred, contempt or ridicule in the community

Libel def

Breaching it in print or media (& internet)

Castle Laws

Can use more serious force sometimes

Transferred intent def

Intent of tortfeasor is transferred when he/she intends to harm person "A" but unintentionally harms person "B" as well

Fraudulent misrepresentation (fraud):

Intentional deceit, usually for personal gain

Trespass to Personal Property def

Intentional interference w/ anothers use or enjoyment of personal property w/o consent or priviledge ex: Employee who is fired keeps the company owned computer

Exceptions:

Obvious risks require no warning ex: Izquierdo v Gyroscope, inc (2007)

Negligence per se:

Occurs when defendant violates a statute designed to protect plaintiff

Disparagement of property def:

Occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation

Defenses to Defamation:

Truth is generally an absolute defense for defamation

Contributory Negligence:

Under common law doctrine of contributory negligence, if the plaintiff in any way caused his/her injury, he/she has barred from recovery - not common today

Conversion def

Wrongful possession or use of property w/o permission

Res Ipsa Loquitor def

" The thing speaks for itself" - Facts & circumstances create presumption of negligence by defendant

Infliction of distress

- makes someone physically sick/medical issues - intended to make someone miserable ex: a photo-shopped post

Privileged (or Immune) Speech types :

1. Absolute Privilege 2. Qualified or Conditional Privilege

Types of Intentional torts:

1. Assault & Battery 2. False Imprisonment 3. Infliction of emotional distress 4. Defamation 5. Invasion of privacy 6. certain business torts

Damages Available in Tort Actions:

1. Compensatory 2. Punitive

Defenses to Assault & Battery:

1. Consent to the act that is allegedly tortious 2. Self- defense (reasonable force necessary to prevent harmful contact) 3. Defense of others 4. Defense of property (reasonable force, but not usually force that will cause death or great bodily injury)

Wrongful Interference w/ a contractual relationship occurs when:

1. Defendant knows about contract b/w A & B 2. Intentionally induces either A or B breach the contract 3. Defendant benefits from breach

The Plaintiff must prove the following elements of Negligence:

1. Duty 2. Breach 3. Causation 4. Damages

Classification of torts:

1. Intentional 2. Unintentional (negligence) torts

Invasion of privacy: Common law recognizes 4 acts that qualify as improperly infringing on another's privacy:

1. Intrusion on individuals affairs or seclusion 2. Publication of information that places a person in false light 3. Public disclosure of private facts 4. Appropriation

Courts ask 2 Q's:

1. Is there a Causation in Fact? 2. Was the act the Proximate (or legal) Cause of the injury?

Torts related to Abusive or Frivolous Litigation include:

1. Malicious Prosecution 2. Abuse of process

Requirements:

1. Plaintiff has adequate notice & understanding of the risks associated w/ an activity 2. Plaintiff knowingly & willingly engages in the act anyway 3. Can be implied by the plaintiff's knowledge of risks & subsequent conduct

Assumption of risk:

1. Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway 2. Defense can be used by participant, as well as spectators & bystanders

Two types of Compensatory damages:

1. Special 2. General

Plaintiff must prove:

1. Statute sets out standard of care 2. Plaintiff is an employee 3. Statute designed to prevent plaintiff injury

To establish the following elements must be proved:

1. The defendant made a false statement of fact 2. The statement was understood as being about the plaintiff & tended to harm the plaintiff's reputation 3. The statement was published to at least one person other than the plaintiff

The courts consider the following factors:

1. The nature of the act 2. The manner in which the act was performed 3. The nature of the injury

Injury requirement & Damages

1. To recover, the plaintiff must show legally recognizable injury 2. Plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest

Two notions serve as the basis of all torts:

1. Wrongs 2. Compensation

Wrongful Interference w/ a Business relationship occurs when:

1. established business relationship 2. The defendant uses predatory methods to cause the relationship to end 3. Plaintiff suffers damage

The act:

1. he/she intended the consequences of his/her act 2. He/she knew w/ substantial certainty that certain consequences would result

Elements:

1. misrepresentation of material fatc 2. Intent to decieve/induce another to rely on the misrepresentation 3. Justifiable reliance by innocent party 4. Damages suffered as a result of reliance 5. A casual connection b/w misrepresentation & the injury suffered

Trespass to land occurs when a person w/o permission:

1. physically enters onto above or below the surface of another's land 2. Causes anything to enter onto the land 3. Remains or permits anything to remain on the land

Tort def

A civil wrong not arising from a breach of contract or other agreement or a breach of a legal duty, approximately causing another person harm or injury.

Elements of a cause of action in negligence: ABCD's

A duty of care Breach of a duty of care Causation (the breach must cause an injury) Damage ( injury or harm)

Good Samaritan Statutes:

A person who are aided voluntarily by others cannot turn around & sue the "Good Samaritan" for negligence

" Danger invites rescue" Doctrine

A person who is injured while going to someone else's rescue can sue the person who caused the dangerous situation

Dram shop acts:

A tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated when served by the bartender

Liability to harm def

A trespasser to the generally liable for damage caused to the property & generally cannot hold the owner liable for injuries sustained on the premises

Proximate cause is like...

A unbroken chain

Superseding Cause:

A unforeseeable , intervening act that books the causal link b/w defendant's act & plaintiff's injury, relieving defendant liabiility

Unintentional torts def

A wrongful act the tortfeasor committed w/o knowing its wrongfulness or w/o intending to commit the act

General def

Compensate individual for the non-monetary aspects of harm suffered, such as pain & suffering, loss of reputation, disfigurement, etc

Special def

Compensate the plaintiff for quantifiable losses, medical expenses, lost wages and benefits

Breach:

Defendant breached that duty

Duty:

Defendant owed plaintiff a Duty of Care

Foreseeability def

Defendant owes duty to protect plaintiff from foreseeable risks that defendant knew or should have known about

Causation:

Defendant's breach caused the injury

Compensatory def:

Designed to compensate or reimburse plaintiff for actual losses - They are designed to make the plaintiff whole & put him/her in the same position that he/she would have been....

Causation in fact:

Did the injury occur b/c of the defendant's act, or would the injury have occurred anyway? - Usually determined by the "but for" test

Example of Qualified or Conditional Privilege

Employee Evaluation

Failure to return Goods def:

Even if the rightful owner consented to the initial taking of the property, a failure to return the property may still be conversion

Causation def

Even though the tortfeaser owes a Duty of Care & breaches the D.C, the act must have caused the plaintiff's injuries

Negligence def

Failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances

Absence of Malice:

False & Defamatory statements made about Public Figures are privileged unless they are made w/ Actual Malice (knowledge of falsity or reckless disregard of the truth or falsity)

Damages for libel:

General damages are presummed & the plaintiff does not have to prove actual injury

When is Punitive damages available?

In Intentional tort & rarely available in negligence cases

Assault def

Intentional, unexcused threat of immediate harmful/offensive contact- whether words/acts- that creates a reasonable apprehension or fear of immediate harmful/offensive contact

False imprisonment involves?

Interference w/ freedom to move w/o restriction

Slander Per Se def

Is an eception, and no proof of damages is necessary when the statement involves a loathsome communicable disease ( which includes mental illness); business improprieties; serious crime; or serious sexual misconduct

Defamation def

Is anything published or publicly spoken that injures another's character, reputation, or good name

Tort law def

Is designed to compensate those who have suffered a loss or injury due to another person's wrongful act

Battery def

It is unexcused & harmful offensive, or unwelcomed physical contact intentionally performed

Example of Absolute Privilege

Judicial or legislative proceedings

Duty of Landowners:

Landowners must exercise reasonable care to protect persons on their property from harm- even trespassers - business owners must warn invitees of potential harm on their premises

Classification of a tort depends on?

Largely how the tort occurs & the surrounding circumstances

No Duty to rescue def

Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust

Comparative Negligence

Most states have replaced contributory negligence w/ the doctrine of comparative neg.

______ physical contact is necessary for an assault to occur

NO

Moral pressure does _____ constitute false imprisonment

NOT

It must be such,

That a reasonable person engaging in the same activity would anticipate the risk & guard agains it

When is Punitive appropriate?

Only when the defendants conduct was particularly egregious/reprehensible

This doctrine is applied:

Only when the event creating the damage or injury is one that ordinarily doesn't occur in the absence of negligence

Slander def

Orally breaching this duty

The confinement may occur through the use of?

Physical barriers, restraint, or threat or physical force

51% rule:

Plaintiff recovers nothing if liability is greater than 50%

50% rule:

Plaintiff recovers only if liability is less than 50%

Damages:

Plaintiff suffered legal injury

Breach of duty is called:

Professional malpractice

Duty of Professionals:

Professionals may owe higher duty of care based on special education, skill, or intelligence

Purpose of tort law

Provide a remedy (damages) for injury to a protected interest, personal physical safety/security, freedom of movement, property and certain intangible interests.

If the Plaintiff is a _______ _______, he or she must also prove ______ _______.

Public figure; Actual Malice

Slander of title

Publication falsely denies or cast doubts on another's legal ownership of property, resulting in financial loss

Slander of quality:

Publication of false information about another's product (trade libel)

Courts exercise great restraint in granting Punitive damages to plaintiffs in tort actions b/c?

Punitive damages are subject to the limitations imposed by the Due Process Clause of the Constitution

Plaintiff must prove that actual damages proximately resulted from ___________________

Slander of quality

Published statement must be a fact this means?

Statements of opinions are protected speech under the 1st Amendment & not actionable

Pure Comparative Negligence

States (Cali/NY) allows plaintiff to recover even if his/her liability is greater than that of Defendant

Modified Comparative Negligence def

States percent of damages plaintiff causes himself/herself are subtracted from the total award

Battery is...

The completion of Assault

Duty of Care & Breach

The concept of duty of care is central to the tort of negligence

The contact can be made by?

The defendant or by some force set in motion by the defendant

Reasonable Person Standard:

The degree of care expected of a hypothetical "reasonable person" - not necessarily how this person should act, rather how this person should act

The interest protected by tort law concerning assault is?

The freedom from having to expect harmful offensive contact

False Imprisonment def

The intentional confinement of another person or restraint of another person's activities w/o justification

What is essential for False imprisonment?

The person restrained NOT agree to the restraint

Tortfeasor

The person who committed the tort

Damages for slander:

The plaintiff must prove special damages (actual economic loss)

The interest protected by Tort law concerning Battery is?

The right to personal & safety

Intentional tort

The tortfeasor must "intend" to commit the act

Plaintiff may be compensated when?

There is physical & emotional harm

Punitive def:

They are intended to punish the wrongdoer & deter others from similar wrongdoings

Under the laws of most states, merchants may reasonably do?

They may reasonably detain customers suspected of shoplifting & hold them for the police if there is probable cause

Appropriation def:

Use of another's name, likeness, or other identifying characteristic for commercial purposes w/o the owner's consent

Proximate cause def:

When the causal connection b/w the act & injury is strong enough to impose liability

In determining what is reasonable conduct,

courts consider the nature of the possible harm

Physical injury need ____ occur

not