COB 318 - Exam 2, Class 6 onward

Define Torts

Wrongful acts between private parties where the injured party seeks monetary compensation from the party that caused the injury

What’s the difference between crimes and torts?

Crimes → The State punishes the individual who causes the harm

Torts → The Private Party seeks compensation from the individual who caused the harm

Does the State/Government get involved when it comes to Torts?

No. Torts are only between private parties where the compensation is always money and never jail time.

Where does the term “Tort” come from?

It’s French for “injury” or “wrong”

What are the 2 Categories of Torts?

Intentional Torts and Negligence

What is the difference between the 2 categories of Torts?

Intentional Torts → Intended to commit the act that caused harm

Negligence → No intent to cause the harm, an accident that arose from carelessness.

What are the 2 Elements that make up an intentional tort?

1. The Intent to Act

2. The Damages or actual harm that was caused

In intentional torts, does the intent to act mean the intent to harm?

No. For example, I can be congratulating you, and give you a pat on the back.

My pat on the back could break your collar bone.

You could sue me for Tort, even though I didn’t intend to hurt you

When it comes to intentional torts, what is transferred intent?

An intentional act that sets off a “chain reaction” and causes indirect harm.

Example: I give Professor McCarthy a pat on the back, and he stumbles forward, knocking another student over, and breaking their nose.

If I give Professor McCarthy a pat on the back, and he stumbles forward, knocking another student over, which breaks their nose, who is responsible for the tort?

Me (the guy who patted Professor McCarthy on the back")

or

Professor McCarthy who stumbled into the person who broke their nose

I am responsible, not professor McCarthy

What are the 5 Types of Intentional Torts

Assault, Battery, False Imprisonment, Intentional Infliction of Emotional Distress (IIED), Defamation

What is the definition of Assault?

Intentional threat of immediate contact that will be harmful or offensive (Reasonable person standard)

What are some examples of assault?

• Pointing a gun

• Dragging finger across the neck (Suggesting I will kill you)

• Fake punches

• Pretending to throw basketball at your friend

• Fake rubber band game

What is the definition of Battery?

Intentional contact with a person, or their attached belongings, that is harmful or offensive (reasonable person standard)

What are some examples of battery?

• Shooting a rubber band in face

• Push your finger into someone’s chest

• Slap

• Unwanted kiss

• water gun

• cigarette smoke in someone’s face

• Knock hat off head

• Kick someone’s umbrella they’re holding

Difference between assault and battery

Assault: Just the threat of the contact

Battery: The actual contact

Define False Imprisonment

Intentional confinement or restraint without justification

What are the 3 Types of restraints that count as false imprisonment

1. Physical Barriers (locked in a room/car)

2. Physical Restraints (Handcuffs, rope, tape)

3. Threat of immediate physical force (“If you get up from that seat, I will shoot you“)

What does NOT count as a physical restraint

Threat of future force

Example: If the person could go and get help, they are not restrained

“If you get up from that seat, I’ll hurt you at some point in your life.”

The threat has to be immediate

What is the shoplifting rule

If you’re a store owner, and you accuse someone of shoplifting

You can bring that person to an office, and essentially restrain them in a reasonable manner & for a reasonable time

This is NOT false imprisonment

Define Intentional Infliction of Emotional Distress (IIED)

Intentional extreme & outrageous conduct that causes emotional distress

Behavior must exceed the bounds of social decency

What is an example of Intentional Infliction of Emotional Distress (IIED)

The Westfield Watcher

He stalked a family, sent them letters in the mail that he knew what they were talking about in the house

This causing emotional distress, and the behavior exceeded that bounds of social decency

Define Defamation

Intentionally making false statements of fact that harm a person’s reputation

What constitutes defamation? AKA what must happen for the tort to be defamation

1. The statement must be a false statement of fact

2. The statement must be “published” aka communicated to a third party.

   1. If I personally tell you I hate you, that isn’t defamation. I need to tell a 3rd party or a 3rd person about you and how much you suck

What are the 2 types of defamation?

Libel: Written Defamation (General Damages) Slander: Spoken defamation (Special Damages)

When it comes to Defamation, is it easier to prove someone guilty for libel or for slander?

• Libel (Written Defamation):

  • I essentially just have to prove that you did it, and I can sue you for everything

  • Easier to sue because something written down is permanent

• Slander (Spoken Defamation)

  • I have to prove that your slander was a direct reason why I lost my job for example

  • Harder to sue because something spoken is not permanent

When it comes to defamation, can you sue for embarrasment?

No. The defamation has harmed my reputation. If I’m just embarrassed, I can’t sue for that.

McKee v. Laurion (Case about Defamation)

• Laurion (Patient) left negative reviews about McKee (Doctor) on a website

• Laurion was upset at how McKee treated Laurion’s father

• McKee made fun of Laurion’s father.

• McKee sued for defamation claiming that the comments made on the website harmed his reputation

• The court sided with Laurion saying that for defamation to occur, the claims made must be false statements.

• McKee actually did what Laurion said on the website, McKee was essentially a jerk

• IMPORTANCE

  • Truth (if you actually said/did it) is an absolute defense to defamation.

What is the Public Figure Exception to Defamation?

If the target of the defamatory statement is a public figure (athlete, politician, celebrity), then that public figure has to prove actual malice

Actual Malice: The person who made the statement knew it was false, or acted with reckless disregard for the truth.

-

Essentially If a celeb is going to be famous and put themselves out there, it’s much harder to win a defamation case.

What is Vicarious Liability aka Respondient Superior?

An employer is responsible for all of his/her employees actions

Define Fraud (Fraudulent Misrepresentation)

The intentional use of deceit for personal gain.

What are the elements of Fraud?

1. A material misrepresentation (omission): Lying by being silent about it

2. Intent to induce you to rely on that lie: They intend on tricking you

3. Justified Reliance: (A reasonable person would believe that lie. Nobody would believe a crazy lie)

4. Damages: The lie actually hurt you

5. Causal Connection: The damages that happened to u must be the direct result of those lies.

When it comes to fraud, what is an example of A material misrepresentation (omission)?

Sketchy Car Sale

“Has this car been in any accidents?”

“Nope, no accidents”

The car actually has accidents

When it comes to fraud, what is an example of puffery?

Car Sale

“This is the best car in the universe AND a good luck charm”

This actually doesn’t count as fraud. It counts as “marketing talk”

What are the 3 types of Business Torts

Fraud

Wrongful Interference with a Contract

Wrongful Interference with a Business Opportunity

Define Wrongful Interference with a Contract

Intentional interference with a valid contract

Define Tortious Interference

An intentional tort that interferes with a business scenario

What are the 2 types of Tortious Interference

Wrongful Interference with a Contract

Wrongful Interference with a Business Opportunity

What are the elements of the Wrongful Interreference with a Contract

1. Valid Contract: It’s an enforceable contract

2. Interfering Party Knew it was a Valid Contract: The interfering person knew it was valid

3. Interfering Party Induced a Breach of Contract: The interfering person induced someone to break it

What’s an example of Wrongful Interreference with a Contract

I tutor Ben for $20 an hour.

We have a contract that I will tutor you

Someone else comes in and convinces Ben to leave my tutor session for another person. If Ben leaves my tutor session, he’s breaking the contract

“Hey Ben, you should break that contract, and come get tutored by me, I’m cheaper and I know more of what I’m talking about”

Define Wrongful Interference with a Business Opportunity

Intentional Predatory Behavior to Steal Customer or Clients

What is an Example of Predatory Behavior of Wrongful Interference with a Business Opportunity

Standing right in front of a Burger King door, not letting people in, holding a sign that says “McDonald’s is better, we are down the road and to the right”.

What is the fine line between Predatory Behavior of Wrongful Interference with a Business Opportunity and just straight up Competition?

Predatory: Standing right in front of a Burger King door, not letting people in, holding a sign that says “McDonald’s is better, we are down the road and to the right”.

Business Competition (not breaking the law): Standing on the sidewalk, in front of Burger King, not letting people in, holding a sign that says “McDonald’s is better, we are down the road and to the right”.

Define Negligence (The Vast Majority of Tort Law)

The failure to use a reasonable level of care to prevent a foreseeable harm

What’s the difference between Negligence and an intentional tort?

Negligence is an Accidental Harm

Intentional Torts mean there was intent

What are the 5 elements of Negligence?

Duty of Care (You have a duty to be careful)

Breach of the Duty of Care (You weren’t careful and an accident happened)

Cause in Fact (If it didn’t happen, would I still be injured)

Proximate Cause (Was my injury the direct result of the breach of duty of care)

Damages (What damages were caused to me)

When it comes to Negligence, define Duty

Duty: We each owe society a duty to behave with reasonable care

What is the Reasonable Person Standard?

A person that sets the Duty of Care.

How would a Reasonable person (in the same circumstances and with the same abilities) have behaved in that moment?

Imagine if a European person came to America. There are different expectations

Weirum v. RKO (Case about Negligence → Duty of Care)

Radio show game to find “The Real Don Steele” in a red car

People were speeding and being dangerous, eventually, a Woman was driven off the road and killed

Importance: A reasonable radio manager should have foreseen the risk of getting high school students to speed through LA, since that can lead to an accident.

What are the 3 “Special” Duties of Care

Business Owner Duty of Care

Heightened Duty of Care

Lessened Duty of Care

What is the Business Owner Special Duty of Care

Business owners have a duty to discover and remove hidden dangers

“Clean up on Aisle 3”

What is the Heightened Special Duty of Care

Certain professionals have to be more careful than others. These professionals have expertise and you have personal trust in them.

Accountant, Architect, Doctor, Engineer, Lawyer

What is the Lessened Special Duty of Care?

• Certain situations where you don’t have to be as careful

• If that’s the case, there is normally an assumption of risk

When it comes to Duty, what is the Assumption of Risk?

By engaging in this activity, you’re assuming a certain level of risk.

Taylor v. Baseball (Case about Negligence → Duty of Care → Special Duty of Care)

• Importance: Baseball fans assume the risk of a ball entering the stands and that a ball could hit you in the face when you go to the game

• Baseball hits a woman in the face

• She sues

• She loses because she assumed the risk when she attended the baseball game

Remember these things about Duty (1/5 elements of negligence)

• Special duties (Business Owner Special Duties Heightened Duties, Lessened Duties),

• Weirum vs RKO CASE,

• Taylor v Baseball CASE

Define Breach (Element 2/5 that constitutes negligence)

Failure to fulfill the duty of care

Give an example of Breach (Element 2/5 that constitutes negligence)

Speeding + texting while driving + brake lights not working

Define Cause In Fact (Element 3/5 that constitutes negligence)

• The “But For” Cause

• But for this breach of duty, the damages would not have occurred

• Simple “cause and effect” analysis

Give an example of Cause in Fact (Element 3/5 that constitutes negligence)

Before you were texting while driving, you wouldn’t have crashed into my car

Define Proximate Cause (Element 4/5 that constitutes negligence)

No unexpected act intervened in the chain of events leading up to the accident

Give an example of Proximate Cause (Element 4/5 that constitutes negligence)

A train is going on a track and is emitting smoke like a train does

A seagull flies above the train, catches fire, and lands on your house and burns the house down

That is such an unexpected intervening event, than it cuts off the chain of liability

Cyr v. Adamar Associates (Case about Negligence → Proximate Cause)

• A woman was at a hotel bar

• While she’s outside for a moment, she gets raped by a sex offender

• She sued the hotel

• Her case didn’t win because the rapist in the hotel was an unexpected intervening event that cut off the chain of liability

• The hotel can’t screen every person who walks into the bar to see if they’re rapists

Define Damages (Element 5/5 that constitutes negligence)

The victim suffered some quantifiable economic loss

Give an example of Damages (Element 5/5 that constitutes negligence)

If someone backs into your car, you have to show that your car actually suffered damages and it would cost money to get it repaired

What is the Negligence Policy

Tort law provides each of us with a financial incentive to make society safer.

If you are not careful, you will pay the price

What level of care does negligence demand?

A reasonable level of care

Essentially just do enough to be safe

Turn on your blinker when turning, look both ways when crossing the road

What is the Foam Suit Phenomenon

Essentially, JMU doesn’t want you to be spritning around campus, potentially colliding with people,

But JMU also doesn’t want you to walk around slowly with a foam suit on

Just be a reasonable person and make good judgement when deciding how safe to be

Does the Negligence Policy change over time?

Yes. It changes day to day, and it changes year to year

Taylor v. Seattle Baseball Club (the Negligence Policy changing over time) 2006

• Baseball fans assume the risk of a ball entering the stands and that a ball could hit you in the face when you go to the game

• Baseball hits a woman in the face

• She sues

• She loses because she assumed the risk when she attended the baseball game

• Importance: She lost back then, but now, since everyone is on their phones looking down, she probably would’ve won the case because the reasonable standard has changed

What are the 4 defenses aka how can you defend yourself if you get sued for an intentional tort

• Discipline (Smacking your child)

• Necessity (Was it necessary for a greater cause? Like running away from an attacker but bumping into a civilian)

• Duress (Someone puts a gun to my head and tells me to do something)

• Consent (Did I consent to it? Like you’re a football player)

When it comes to consent (Element 4/4 that constitutes tort defenses), what is informed consent?

Having full knowledge of the risk + Agreeing in advance

Lugenbuhl v. Dowling (Case about Defenses to Intentional Torts → Informed Consent)

• Importance: Performing surgery without using the mesh aka the informed consent is battery (harmful or offensive contact)

• Guy needs surgery for a hernia

• Agrees with Doctor to get the surgery done but only if the doctor uses a mesh

• Doctor didn’t use the mesh

• Guy sues cuz that isn’t what he agreed to

What are the 3 defenses to negligence aka how can you defend yourself if you get sued for negligence

1. Failure to meet the burden of proof

2. Comparative Negligence

3. Contributory Negligence

When it comes to defenses against negligence, what is the preponderance of Evidence?

• The burden of proof, aka you are guilty if you meet the preponderance of evidence

• More likely than not (50.1%)

When it comes to defenses against negligence, define Comparative Negligence

The jury assigns a percentage of fault, and the defendant pays according to that level of fault

When it comes to defenses against negligence, what is an example of Comparative Negligence

1. There was a car crash

2. Victim seeks $100,000

3. jury determines victim is actually 40% responsible for the crash

4. The Victim will win only $60,000 instead of the total $100,000

When it comes to defenses against negligence, define Contributory Negligence

• If the victim is even 1% at fault, the victim receives nothing

• Very strict rule and very rare rule

When it comes to defenses against negligence, which 5 states use Contributory Negligence? (if the victim is only 1% liable for the accident, the victim gets nothing)

1. Alabama

2. DC

3. Maryland

4. North Carolina

5. Virginia

When it comes to Damages, what are the 2 types of damages?

• Compensatory Damages (most common)

• Punitive Damages

When it comes to Damages, define Compensatory Damages

Compensating the victim for economic losses

When it comes to Damages, what is the policy for Compensatory Damages?

• Return the victim to their pre-accident financial condition

• Essentially only paying what needs to be paid to fix the problem.

• No extra payments

• You lost $20,000? Here’s $20,000

When it comes to Damages, define Punitive Damages

To financially punish a defendant who engages in extreme, reprehensible, or antisocial behavior

When it comes to Damages, what is the policy for Punitive Damages?

To deter similar behavior in the future

Ford Motor Co. v. Stubblefield (Case about Damages → Punitive Damages)

• Importance: Ford was fined EXTRA money (punitive damages) on top of what they already owed (compensatory damages) to deter them from doing the same thing in the future

• Ford knew there was a design impact in the car that made it explode on minimal impact

• Many people were injured

Whats the difference between Punitive Damages and Compensatory Damages

• Compensatory: You repay the victim exactly what they lost in the damage

• Punitive: You repay the victim exactly what they lost in the damage but then MORE money on top of that to deter this behavior in the future

What are the 4 Special Tort Doctrines

1. Res Ipsa Loquitur (the thing speaks for itself)

2. Good Samaritan Laws

3. Social Host / Dram Shop Laws

4. Strict Liability

When it comes to special tort doctrines, give an example of Res Ipsa Loquitur (Thing speaks for itself) (1/4 Special Tort Doctrine)

1. A guy walks down a sidewalk

2. A barrel rolls out of a building and hits the guy

3. Nobody was in the building at the time

4. No person directly committed negligence

5. Guy sues company

6. Importance: Flips the burden of proof onto the defendant

   1. AKA the company has to prove that they weren’t being negligent

   2. Normally, the guy has to prove that the company was being negligent

When it comes to special tort doctrines, What does Res Ipsa Loquitur translate to, and what does it mean? (1/4 Special Tort Doctrine)

1. The thing speaks for itself

2. Sometimes things happen that are so obviously a by-product of negligence, that you can’t prove it was negligence from your POV.

   1. If a barrel rolls out of a building SOMEONE had to be negligent, but if nobody was in the building at the time of the injury, who was negligent?

When it comes to special tort doctrines, what are Good Samaritan Laws? (2/4 Special Tort Doctrine)

• Some states require bystanders to assist at the scene of an accident

• Minnesota, Rhode Island, Vermont

When it comes to good Samaritan laws, how do all states protect aka “insulate” good Samaritans? (2/4 Special Tort Doctrine)

• If a good Samaritan helps, the state will remove any and all liability that the good Samaritan created when trying to help

• Encourages kindness

When it comes to Special Tort Doctrines, what is the Social Host / Dram Shop Law (3/4 Special Tort Doctrine)

• If you overserve someone alcohol, and they drive home and get in an accident, the injured person can not only sue the driver, but also the bar that overserved them.

• This is why bartenders will sometimes cut people off

When it comes to Special Tort Doctrines, what is the Strict Liability Doctrine (4/4 Special Tort Doctrine)

Some things are so intrinsically dangerous, that if a company injures a person, that person doesn’t have to prove that the company was negligent, that person immediately wins.

When it comes to Special Tort Doctrines, what is the Policy for Strict Liability Doctrine (4/4 Special Tort Doctrine)

So dangerous that if you choose to do it, you have to pay all injuries for all parties

When it comes to Special Tort Doctrines, give examples of Strict Liability Doctrine (4/4 Special Tort Doctrine)

• Toxic waste leakage

• Missile test hitting civilians

• Nuclear power plant explosion

When it comes to Special Tort Doctrines, does Virginia allow you to sue someone for Social Host / Dram Shop Law (3/4 Special Tort Doctrine)

No. In VA, if you drive home from a bar, and hit a driver. The driver can only sue you, not the bar as well.

When it comes to criminal law, define crime

• The government’s power to deprive a person of life, liberty, and property as punishment for engaging in prohibited conduct

• Life

  • Death Penalty

• Liberty

  • Prison

• Property

  • Fines & removal of assets (house)

When it comes to criminal law, define the Burden of Proof

The Government must prove a defendant’s guilt beyond a reasonable doubt

What is the difference between the Criminal Law Burden of Proof & the Tort Law Burden of Proof

• Criminal Law Burden of Proof

  • The Government must prove a defendant’s guilt beyond a reasonable doubt

  • 99.5% sure

• Tort Law Burden of Proof

  • The victim must establish a defendant’s liability by a preponderance of evidence

  • 50.1% sure

What are the 2 elements that all crimes have.

1. Actus Reus: Engaging in a forbidden act

2. Mens Rea: Having criminal intent

It is not a crime if only 1 or none of these are present, both must be present