Chapter 8 - Torts
An intentional or unintentional (negligent) act.
A tort can be:
Fair Labor Standards Act (FLSA)
Act passed in 1938 that set a minimum wage, a maximum workweek of 44 hours, and outlawed child labor.
A doctor failing to diagnose a woman's breast cancer.
An example of medical malpractice is:
Recklessness
Knowing failure to exercise reasonable care; e.g. having unprotected sex.
Private Nuisance Laws
Laws that protect a single individual landowner or a very limited number of individuals from things, such as a neighbor's dangerous dog.
A tort
People who cause car accidents commit:
Tortfeasor
Person who commits the act that caused harm.
Motive
Reason why the person wanted to cause the act.
Proponderance of the evidence (more than 50%) - based on the quality of the evidence, not quantity.
The burden of proof for a criminal case is beyond a reasonable doubt, while the BOP in a tort (civil) case is:
A casual relation between the plaintiff's damage and the defendant's act
The connection between the cause and effect.
1. Duty 2. Breach of duty 3. Causation 4. Damages
The elements of a negligent tort include:
Standard of Care
The level at which an average person in the field would practice; usually applies to healthcare professionals; the requirement depends on the circumstances.
Existence of a Legal Duty
The responsibility to other people to act according to the law.
1. Actual cause/cause and effect 2. Proximate cause/legal cause
The two types of legal causation are:
Actionable per se
The very act is punishable and no proof of damage is required; e.g. trespass to land.
1. To people 2. To chattel 3. To land
There are generally 3 types of trespass:
1. The person/entity damaged by by a broken contract 2. The person who is forced to break the contract. *Either victim can file a lawsuit if they are damaged.
There are two types of victims in a tortious interference case:
Someone who is being paid rather than someone who is doing a favor.
There is a higher standard of care for:
False Light
When a person's feelings or dignity is damaged rather than his reputation.
Nursing Home Reform Act
"A part of the Omnibus Budget Reconciliation Act of 1987 whose purpose is to guarantee the quality of nursing home care and to ensure that the care that residents receive helps them to achieve or maintain the 'highest practicable' level of physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care," per Social Security Act Section 1919(c)(1).
Causation
A cause and effect relationship between the act or omission and the damage alleged in a tort.
Personal Injury
A civil matter where one person causes another person harm by failing to take reasonable precautions or exercise a reasonable level of care; the harm is almost always unintentional; injury to a person not property.
Private wrong
A criminal act is a public wrong, while a tort is a:
Res Ipsa Loquitur
A doctrine under which negligence may be inferred simply because an accident occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the thing speaks for itself." Example: if a person is walking down the street, and a piano falls from a building and hits the person, there is no need for any additional explanation to show negligence.
Qui Tam Lawsuit
A lawsuit brought on behalf of the federal government by a whistle-blower under the False Claims Act of 1863.
Medical/Legal Malpractice
A legal cause of action that occurs when a medical or legal professional deviates from standards in the profession and that deviation causes injury to a patient or client.
Tort
A private or civil wrong or injury, other than breach of contract, for which the court provides a remedy in the form of an action for damages.
Negligent Tort
A tort caused by lack of reasonable care but not done purposefully.
One party causing harm to the other party.
A tort occurs by:
Intentional Tort
A tort performed on purpose to cause harm.
Conversion
A type of intention tort - property tort where a person converts (steals) another property to their own use; civil version of the criminal act of larceny; more serious interference with personal property than trespass to chattel.
Tortious Interference
A type of intentional tort - intentional interference with a contract causing causing economic harm; when a person intentionally damages a contractual or other business relationship and can be done through unethical business practices, blackmail or inducement or force.
- Failing to know or properly apply the law - Conflicts of interest - Failure to timely file documents - Failure to calendar or follow-up
According to the ABA's Legal Malpractice Claims, the most common forms of legal malpractice are:
1. The extent and duration of the tort or trespass to chattel 2. The tortfeasor's intent 3. The tortfeasor's good faith 4. The extent and duration of the interference 5. The harm done to the property; and 6. The inconvenience and expense.
According to the Restatement (Second) of Torts, the court may consider:
Occupational Safety and Health Act (OSH)
Act that established the first national policy for safety and health and continues to deliver standards that employers must meet to guarantee the health and safety of their employees.
Actual Cause
Also known as cause in fact, the injury would not have occurred had it not been for the defendant's action; often measured by the "but for" test.
Proximate Cause
Also known as legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability (an action that produces foreseeable legal consequences).
Whistleblower
An employee who exposes unethical or illegal conduct within the federal government or one of its contractors.
Sine qua non
An essential condition; a thing that is absolutely necessary; commonly known as "but-for" causation.
Intervening Cause
An event that occurs after a tortfeasor's initial wrong act and before the damage to the plaintiff; the connection between the wrong act and the damage is broken and may relieve the original tortfeasor from liability for the injury.
Chattel
An item of personal, movable property.
Superseding Cause
An unforseeable, intervening act that breaks the causal link between defendant's act and plaintiff's injury, relieving defendant of liability.
False Claims Act (FCA) or Lincoln Law
Civil fraud at the federal level; Congress enacted this act during the Civil War to encourage individuals aware of fraud being perpetrated against the government to bring the information forward; Abe Lincoln retested the act to prevent fraud against the federal government by suppliers to the Union Army - Rewards and protects the whistleblower.
Personal Injury Protection (PIP)
Coverage for medical, hospital, and funeral costs of the insured and passengers in the event of an auto accident; related to no fault insurance.
Common law (e.g. slip and fall) and statutory law (e.g. false imprisonment).
Current tort law is created through:
Slander
Defamation by spoken words or gestures.
Libel
Defamation by written or printed words, pictures, or any other broadcast form other than spoken words or gestures regarding a person's character, reputation, business, or property rights.
1. Existence of a legal duty 2. Breach of the duty 3. A casual relation between the plaintiff's damage and the defendant's act 4. Damage/Injury
Elements of a tort are:
1. Discrimination 2. Retaliation 3. Pension Issues 4. Workplace safety 5. Unemployment compensation; and 6. Harassment.
Employees can also assert tort claims directly against their employers for many causes of action, including:
- Swimming pools - Construction sites - Discarded appliances - Trampolines
Examples of attractive nuisances include:
1. Negligent hiring 2. Negligent retention 3. Negligent supervision; and 4. Negligent training
Examples of cases where an employer is held legally responsible for tortuous acts of an employee include:
1. Americans with Disabilities Act (ADA) 2. Fair Labor Standards Act 3. Immigration and Nationality Act (INA) 4. Occupational and Health Act (OSH) 5. Employment Retirement Income Security Act (ERISA); and 6. Family and Medical Leave Act (FMLA)
Examples of federal law that apply to employment law include:
- Motor vehicle accidents - Slips and falls - Medical malpractice
Examples of personal injuries include:
Gross Negligence
Extreme disregard of the need to exercise reasonable care; e.g. a doctor amputating the wrong limb off a patient.
- Profession - Custom - Age - Whether the defendant violated a statute or law - Physical characteristics of the defendant
Factors important in determining reasonableness sometimes include the defendant's:
Ordinary Negligence or Negligence
Failure to exercise reasonable care; e.g. a restaurant owner who mops the floor and fails to put up a "wet floor" sign.
Breach of Duty
Failure to meet the standard of care; break or fail to observe.
Family and Medical Leave Act (FMLA)
Federal act that provides employees with up to 12 weeks of unpaid leave to care for family members or because of a serious health condition of the employee.
Employment Retirement Income Security Act (ERISA)
Federal tax and labor act passed in 1974 that establishes minimum standards for pension plans in private industry.
Healthcare fraud, financial industry fraud, defense contractor fraud, and grant fraud.
Frequent targets of False Claims Act lawsuits include:
Immigration and Nationality Act (INA)
Fundamental act passed in 1965 that applies to all employers; addresses employment eligibility and employment verification and defines the conditions for the temporary and permanent employment of aliens in the U.S.
Liability Insurance
If a person (tortfeasor) is liable for an accident, this type of insurance helps pay for the other party's incurred damages; an important component of tort law.
1. Uses another person's name or likeness 2. Intrudes upon seclusion, solitude, or into private affairs such as using electronic equipment to eavesdrop on a private conversation 3. Publicly discloses a private fact; or 4. False light.
Invasion of Privacy allows a person to bring a lawsuit against someone who:
Germanic system of fining people for wrongdoing.
It is believed that the origina of tort law came from the:
Employment Law
Large area of law which covers all of the aspects of the employer and employee relationship; consists of thousands of laws; includes many laws enacted to protect workers.
Prima Facie
Latin term that means there is enough evidence to support a case, but does not mean the person filing the case will necessarily win the case; does not prove the case , just means the fact is presumed to be true until shown otherwise; literally means "at first sight."
Public Nuisance Laws
Laws that protect the public at large from things such as air pollution.
Civil Negligence per se
Legal doctrine where an act is considered negligent because it violates a statute or regulation meant to protect the public; e.g. running a red light.
Damage
Loss or harm that is the result of injury to a person, property or reputation.
Improper, unskilled or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other healthcare professional.
Medical malpractice arises out of:
Med Pay
No fault concept; insurance which covers medical payments for passengers in the vehicle who are injured - does not pay for lost wages or other damages.
Negligence, neglect or abuse that causes harm to the patient or resident.
Nursing homes can be held legally responsible for:
Americans with Disabilities Act (ADA)
Passed by Congress in 1991, this act banned discrimination against the disabled in employment and mandated easy access to all public and commercial buildings.
Uninsured/Underinsured Motorist Coverage (UM/UIM)
Protection against damages caused by a motorist with no or insufficient insurance rather than file a lawsuit.
No Fault Car Insurance
Several state's legislatures have enacted this type of insurance; insurance in which a person's own automobile insurer will pay certain damages (usually medical bills and lost wages) up to a set amount no matter who is at fault for the accident.
Intent
State of mind with which something is done; means the person wanted to cause the act.
Attractive Nusiance Doctrine
States that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children; acknowledges that children can be attracted to items without knowing the risks involved; originated in the late 1800s when children were playing with a train turntable that was not guarded or locked.
Federal Rule of Evidence 411
States that evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully; but the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.
Vaughn v. Menlove (1837) 132 ER 490 (CP)
The English tort case that first introduced the concept of the reasonable person in law and the concept is described as whether the individual "proceeded with such reasonable caution as a prudent man would have exercised under such circumstances."
Damages
The award or compensation given to the plaintiff who was harmed.
- Trespass - Nuisance - Conversion
The most common property torts are:
Criminal case and a tort case.
The same event can create both a:
Tied to the reasonable person concept.
The standard of care concept is closely:
Restatement (Second) of Torts section 283(b)
Today, most jurisdictions follow this reasonable man standard; finds the reasonable person standard is an objective standard that provides a comparison between the defendant and the ideal person who is acting reasonably; e.g. a blind person is not held to the same standard of care as people who have their eyesight.
Both types of civil law and involve breach of duties.
Tort law and contract law are similar because they are:
Trespass to Chattel
Type of intention tort - a party interferes with another party's lawful possession of a chattel, including: physical contact with the chattel, disposing of the chattel by taking and destroying it, or by barring the other party's access to the chattel.
Intention Infliction of Emotional Distress (IIED)/Tort of Outrage
Type of intention tort - claim for outrageous conduct that results in extreme emotional distress; the most important element is determining what is extreme or outrageous conduct; in some jurisdictions, a physical manifestation of the mental injury is required to recover damages.
Dignitary Tort
Type of intention tort where the person experiences an indignity to his reputation or honor; historically, examples include assault, battery, and false imprisonment - now includes defamation and intentional infliction of emotional distress.
Defamation
Type of intentional tort - communicating false information about a person, group or entity ; allows the person who is the target of the statement to sue the person who made the statement; classified into two areas: libel and slander.
Civil Fraud
Type of intentional tort - deliberate deception to secure unfair or unlawful gain or to deprive the other person of a legal right; requires damage/injury to have occurred.
Trespass to the Person
Type of intentional tort - dignitary torts including: assault, battery or false imprisonment of another person.
Nuisance
Type of intentional tort - interference with the right to use and enjoy land; something that is highly offensive and annoying.
Battery (Common Law)
Type of intentional tort - one person acts intentionally to harmfully or offensively contact another person or something closely associated with that person; actual contact and can be a tort and a crime if there is an element of damage/injury.
Assault (Common Law)
Type of intentional tort - one person acts with either general or specific intent to cause the reasonable apprehension of an immediate or harmful contact to another person; not a tort of negligence because intent is involved; no actual contact and can be a tort and crime if there is an element of damage/injury.
False Imprisonment
Type of intentional tort - one person confines another in a bounded area; person can be confined by physical barriers that leave no room to escape, overpowered by brute physical strength, or by fraud/deception; can be a tort and crime if there is an element of damage/injury.
Malicious Prosecution
Type of intentional tort - the wrongful initiation of a criminal or civil case without probable cause and that causes damage; can happen when a person wants to harass another person, when a corporation is trying to intimidate a competitor, or when a police officer makes a false arrest.
Trespass to Land
Type of intentional tort - when a person or the object of a person intentionally enters land or of another person without a lawful excuse; actionable per se.
Trier of Fact
Usually the jury in a jury trial; the judge when there is not a jury trial.
Mr. Menlove was warned several times that a stack of hay that he placed near Mr. Vaughn's cottage could catch fire and burn the cottage. Mr. Melove ignored the warning and the cottage burned.
Vaughn v. Menlove was about:
Legal Malpractice
the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client.
