BLW 302 Ch.6

Tort Law

Compensatory

Reimburse plaintiff for actual losses.

Special: For quantifiable losses, such as medical expenses, lost wages, and benefits.

General: For nonmonetary aspects, such as pain, suffering and reputation.

Punitive

Punish the wrongdoer and deter similar conduct in the future.

Legislative Caps on Damages

Some states have caps on the amount of damages - both punitive and general - that can be awarded to the plaintiff

Intentional tort

The tortfeasor (person committing the tort) must “intend” to commit the act:

Unintentional torts

A wrongful act the tortfeasor committed without knowing its wrongfulness/without intending to commit the act

Assault

• intentional

• unexcused threat of immediate harmful/offensive contact-whether words/act

• that create a reasonably believable threat

• no physical contact is necessary for an assault to occur

Battery is the completion of the assault

• unexcused

• harmful/offensive physical contact

• intentionally performed

• the contact can be made by the defendant or by some force set in motion by the defendant

Transferred Intent

Intent of tortfeasor is transferred when he intends to harm person “A” but unintentionally harms person “B” as well

False imprisonment

• the intentional confinement of another person/restraint of another person’s activities without justification

• the confinement may occur through the use of physical barriers, physical restraint, or threats of physical force

• physical harm not required

Intentional Infliction of Emotional Distress

an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

Defamation

Involves wrongfully hurting a person’s good reputation

• Law imposes duty to refrain from making false statements of facts about others

• Spoken is slander

• Written is libel

Publication Requirement

The false statement must hold an individual up to hatred, contempt, or ridicule in the community and be “publicized” (communicated) to a third party.

Good Samaritan Statues

Protects someone who renders aid to an injured person from being sued for negligence.

Dram Shop Acts

Liability for injuries may be imposed upon bartender and bar owner

Assumption of Risk

A plaintiff that knows the risk and voluntarily engages in the act anyway may not recover from the alleged tortfeasor

Superseding Cause

An unforeseeable intervening act that breaks the casual link between defendant’s act and plaintiff’s injury, relieving defendant's of liability

Contributory Negligence

Under common law doctrine of contributory negligence, if the plaintiff caused his injury in any way, he was barred from recovery

Comparison Negligence

Computes liability of plaintiff and defendant and apportions damages

Pure comparative negligence allows plaintiff to recover even if his liability is greater than that if defendant

Modified comparative negligence

Percentage of damages that the plaintiff causes are subtracted from the total award

• 50% rule: plaintiff recovers only if liability is less than 50%

• 51% rule: plaintiff recovers nothing if liability is greater than 50%

Negligence

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

In unintentional tort negligence the plaintiff must prove:

Duty: defendant owed plaintiff a duty of care

Breach: defendant breached that duty

Causation: defendant's breach caused the injury

Damages: plaintiff suffered legal injury

Damages for slander

Plaintiff must prove special damages

• Slander Per Se is an exception and no proof of damages is
  necessary when the statement involves a loathsome
  communicable disease; business improprieties; serious crime; or serious sexual misconduct.

Defenses to Defamation

• Truth is a defense for defamation.

• Privileged (or Immune) Speech.

  • Absolute Privilege.

    • Judicial Proceedings

    • Statement on Legislative Floor

  • Qualified Privilege.

Invasion of Privacy

Common law recognizes four acts that qualify as improperly infringing on another’s privacy.

4 Acts that infringe on another’s privacy

1. Intrusion on individual’s affairs or seclusion: Searching someone’s home or property

2. Publication of information that places a person in false light: Can overlap with defamation

3. Public disclosure of private facts: Disclosure of facts that ordinary person would find objectionable or embarrassing.

4. Appropriation: Use of another’s name, likeness, or other
   identifying characteristic
   • for commercial purposes
   • without the owner’s consent

Fraudulent Misrepresentation (Fraud)

Intentional deceit, usually for personal gain.

Malicious prosecution

instituting litigation without a legitimate
legal reason and loses.

Abuse of process

• Using process for a purpose other than it is intended.

• Not just lawsuits

• Example - Subpoena to get records improperly.

Wrongful Interference with a Contractual Relationship Occurs When

Defendant knows about contract between A and B;
• Intentionally induces either A or B to breach the
contract; and
• Defendant benefits from breach.

Wrongful Interference with a Business Relationship Occurs When

• Established business relationship;

• The defendant uses predatory methods to cause the relationship to end; and

• Plaintiff suffers damages.

Defenses to Wrongful Interference:

• The interference was justified or permissible.

• Bona fide competitive behavior (such as marketing) is a permissible interference even if it results in the breaking of a contract.

Defenses to Trespass to Land

• The trespass is warranted (necessary) to assist some
  in danger.

• The trespasser is a licensee (such as a utility service
  person).

Trespass to Personal Property

Intentional interference with another’s use or enjoyment of personal property without consent or privilege.

Conversion

Wrongful possession or use of property without permission.

Failure to Return Goods

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

Disparagement of Property

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

Slander of Quality

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