Chapter 6 - Torts and Crimes

licensee

One who receives a license to use, or enter onto, another's property.

libel

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

The following four acts qualify as an invasion of privacy under the common law: 1. intrusion into an individual's affairs or seclusion. 2. false light. - writing a story about a person that attributes ideas and opinions not held by that person. 3. public disclosure of private facts. 4. appropriation of identity. - Using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

Four acts qualify as an invasion of privacy under the common law:

appropriation

If someone uses a great picture of you to sell peanut butter and fails to get your consent to do this, you may be able to sue for:

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 _____, which is normally determined by the "reasonable person standard," constitutes the tort of negligence.

1. trespass to land. 2. trespass to personal property. 3. conversion. 4. disparagement of property.

intentional torts against property include:

1. limit amount of punitive & general damages awarded. 2. cap attorneys' contingency fees. 3. require losing party to pay both the plaintiff and defendant's expenses

measures that have been taken to reduce the number of tort cases

tortfeasor

one who commits a tort

absolute privilege

only in judicial proceedings and certain government proceedings is an _____ privilege granted, such as statements made by attorneys, judges, and government official during a legislative debate

transferred intent

tort when a defendant intends to harm one individual, but unintentionally harms a second person

1. valid enforceable contract between 2 parties. 2. third party knows contract exists. 3. third party intentionally induce a contract-party-member to breach the contract.

3 elements that are necessary for wrongful interference with a contractual relationship to occur:

1. assumption of risk. 2. superseding cause. 3. contributory negligence. 4. comparative negligence (which replaces contributory negligence in some states)

4 basic affirmative defenses in negligence cases

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.

assumption of risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

compensatory damages

A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

slander of title

The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner

trade libel

The publication of false information about another's product, alleging it is not what its seller claims; also referred to as slander of quality

slander of quality

The publication of false information about another's product, alleging that it is not what its seller claims.

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.

True. (p.119) punitive damages may be awarded when a suit involves gross negligence

True or False: Usually, the means of punitive damages are available in intentional tort actions and only rarely in negligence lawsuits

True. (p.121)

True or False: When the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech also limits emotional distress claims.

True. (p.122)

True or False: exceptions to the burden of proving special damages in case alleging slander are made for certain types of slanderous statements. If a false statement constitutes "slander per se," it is actionable with no proof of special damages required.

True. (p.126)

True or False: normally, the tort of fraudulent misrepresentation occurs only when there is reliance on a statement of facts, however, reliance on a statement of opinion may involve the tort of fraudulent misrepresentation if the individual making the statement of opinion has superior knowledge of the subject matter

False. both (1) causation in fact and (2) proximate cause need to be met

True or False: only one of the two requirements, to charge a defendant due to causation, needs to be met

actionable

capable of serving as the ground for a lawsuit

general damages

compensate individuals, not companies, for the nonmonetary aspects of the harm suffered, such as pain and suffering.

special damages and general damages

compensatory damage awards are often broken down into _____ and _____.

slander

defamation in oral form

1. privileged communications. 2. public figure.

defenses to defamation:

disparagement of property

general term for slander of quality or slander of title

malicious prosecution.

If the party that initiated a lawsuit did so out of malice and without a legitimate legal reason, and ended up losing that suit, the party can be sued for _____ .

False imprisonment

is the intentional confinement or restraint of another person's activities without justification.

objective. it is not necessarily how a person would act. it is how a person should act

is the reasonable person standard subjective or objective?

forum shopping

looking for a state court known to be sympathetic to their clients' cause

"but for" test

the _____ test is typically used in determining whether an injury occurred because of a defendant's act or whether this injury would've happened anyway.

1. knowledge of the risk. 2. voluntary assumption of the risk (because you cannot voluntarily assume responsibility of a risk if you don't know about it)

the defense of assumption of risk requires:

tort law

the purpose of _____ is to provide remedies for the violations of various protected interests. provides remedies for acts that cause physical injury or that interfere with physical security and freedom of movement

punitive damages

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

duty of care

the tort occurs when someone suffers injury because of another's failure to live up to a required _____.

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

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

general. this is because tort of libel is typically permanent because of its written form. a libelous (written) statement has the quality of permanence and can be circulated widely, especially through tweets and blogs. Also, libel usually results from some degree of deliberation by the author.

to recover damages for libel, the plaintiff must prove _____ damages to establish the defendant's liability

special. this is because oral statements have a temporary quality.

to recover damages for slander, the plaintiff must prove _____ damages to establish the defendant's liability

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

to succeed in a negligence action, the plaintiff must prove 4 items:

unintentional torts

torts resulting from fault without intent

1. interference with a CONTRACTUAL relationship. 2. interference with a BUSINESS relationship.

two categories of business torts:

intentional and unintentional torts

two types of torts

special damages

type of compensatory damage that compensates the plaintiff for quantifiable monetary losses

50 percent rule

under the comparative negligence standard, prevents the plaintiff from recovering any damages if she or he was more than 50 percent at fault

puffery

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

dram shop acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.

good samaritan statutes

A state statute that provides that persons who rescue or provide emergency services to others in peril—unless they do so recklessly, thus causing further harm—cannot be sued for negligence.

contributory negligence

A theory in tort law under which a complaining party's own negligence contributed to or caused his or her injuries. _____ is an absolute bar to recovery in a minority of jurisdictions.

comparative negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence.

negligence per se

An act (or failure to act) in violation of a statutory requirement.

causation in fact

An act or omission without ("but for") which an event would not have occurred.

disparagement of property

An economically injurious false statement made about another's product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title.

qualified privilege

An employer's statements in written evaluations of employees are protected by a _____ privilege

superseding cause

An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability

fraudulent misrepresentations

Any misrepresentation, either by misstatement or 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

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

assault

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

1. is there CAUSATION IN FACT? 2. was the act the PROXIMATE CAUSE, or legal cause of the injury?

In deciding whether the requirement of causation is met, the court must address two questions:

slander per se

In most states, the following four types of declarations are considered to be _____: 1. A statement that another has a particular type of disease (such as a sexually transmitted disease or mental illness). 2. A statement that another has committed improprieties while engaging in a profession or trade. 3. A statement that another has committed or has been imprisoned for a serious crime. 4. A statement that a person (usually only unmarried persons and sometimes only women) is unchaste or has engaged in serious sexual misconduct.

privilege

In tort law, the ability to act contrary to another person's right without that person's having legal redress (remedy) for such acts. _____ may be raised as a defense to defamation.

public figures

Individuals who are thrust into the public limelight. ______ include government officials and politicians, movie stars, well-known businesspersons, and generally anybody who becomes known to the public because of his or her position or activities.

battery; negligence

Juan walks up to Maya and intentionally shoves her. Maya falls and breaks her arm as a result. In this situation, Juan is liable for the intentional tort of _____. If Juan carelessly bumps into Maya, however, and she falls and breaks her arm as a result, Juan's action constitutes ______.

proximate cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

malpractice

Professional misconduct or the failure to exercise the requisite degree of skill as a professional.

trespass to land

The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.

negligence

The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

intentional infliction of emotional distress

The tort of intentional infliction of emotional distress involves an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

trespass to personal property

The unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property.

battery

The unprivileged, intentional touching of another.

conversion

The wrongful taking, using, or retaining possession of personal property that belongs to another.

business invitees

Those people, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.

True. (p.130)

True or False: An improper publication may be both a slander of quality and a defamation of character. For instance, a statement that disparages the quality of a product may also, by implication, disparage the character of a person who would sell such a product.

False. good intentions are not a defense against conversion. conversion can occur even when a person mistakenly believed that she or he was entitled to the goods. (p.129)

True or False: If you buy stolen goods, you will be protected from being sued for conversion

True. (p.130)

True or False: Many of the actions giving rise to the intentional torts discussed earlier in the chapter constitute negligence if the element of intent is missing or cannot be proved

True. (p.122)

True or False: Statements of opinion normally are not actionable because they are protected under the First Amendment.

True. (p.120) Physical injury need not occur.

True or False: The contact can be harmful, or it can be merely offensive (such as an unwelcome kiss).

abuse of process

_____ can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed.

actual malice

a condition that exists when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth. in a defamation suit, a statement made about a public figure normally must be made with ____ for liability to be incurred.

intentional torts

a wrongful act knowingly committed. (fault + intent)

gross negligence

an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another

attractive nuisance doctrine

if young children were attracted to the property by some object, such as a swimming pool or a sand pile, and were injured, the landowner may be held liable for their injuries. this is the so-called _____

comparative negligence

in most states, the doctrine of contributory negligence has been replaced by a _____ standard