Ch. 10 Torts Affecting Business

What is a tort?

a civil wrong that gives rise to an injury or harm (other than breach of contract)

Tort law limits

how people act and use their resources

Types of Torts

intentional, negligence, strict liability

Intentional Torts

deliberate action that causes injury or harm

Intent

the desire to bring about certain results

the plaintiff has to prove that the defendant intended to perform the act that caused the harm

Types of Intentional Torts

1. assault

2. battery

3. infliction of emotional distress

4. invasion of privacy

5. false imprisonment

6. malicious prosecution

7. trespass

8. conversion

9. defamation

10. fraud

11. injurious falsehood

12. tortious interference

Assault

placing another in immediate apprehension for their physical safety

Battery

touching of another without consent (does not require physical injury)

Additional Battery Elements

1. Did the defendant touch the plaintiff?

2. Was the touching intentional?

3. In what manner was the touching being done? In an offensive or harmful manner?

Infliction of Emotional Distress

outrageous, intentional conduct that carries a strong probability of causing mental distress to the person at whom it is directed (must show physical symptoms)

Invasion of Privacy

1. using a person’s name or likeness for personal gain/use

2. intrusion upon a person’s solitude

3. public disclosure of highly objectionable private information

False Imprisonment

intentional unjustified confinement of a nonconsenting person (buzzword is ‘detained’)

Malicious Prosecution

causing someone to be arrested criminally without proper grounds (false arrest)

Trespass to Land

entering another’s land without consent or to remain there after being asked to leave

Trespass to Chattel AKA Personal Property

when someone uses personal property without permission or otherwise interferes with the owner’s possession of personal property

Conversion

• wrongful exercise of power and control over personal (nonland) resources that belong to another

• can be temporary or permament BUT must be a substantial or a serious invasion of property

• defendant’s actions have rendered an item valueless to its rightful owner

Difference between Conversion and Trespass?

key difference is the degree of interference

Defamation

publication (saying to a third party) of untrue statement about another that hold up that individual’s character or reputation to ridicule

slander

spoken defamation

libel

written defamation (including radio or tv)

What are the defenses to Defamation?

truth, privileged communication

Is the news media held to the same standard for defamation?

very hard to sue the media for defamation, have to show malic or complete disregard for the truth

Fraud

intentional misrepresentation of a material fact that is relid upon someone to their injury

Fraud is both a tort and a crime

True

Injurious Falsehood

publication of untrue statements that disparage the business owner’s product or its quality

Difference between defamation and injurious falsehood

defamation is regard to character or reputation, injurious falsehood applies to a product

Negligence

unreasonable bejaviour that causes injury

Elements of Negligence

1. Duty of Care

2. Breach of Duty

3. Causation in Fact

4. Proximate Causation

5. Actual Injury

Duty of Care

a responsibility to another person to exercise reasonable care and skill to avoid causing injury or harm

Standard of Care

Ask: what would a reasonable person do under the same or similar circumstances?

Is there a Duty owed for non-conduct

there is no duty owed to someone through non-conduct

Exceptions for non-conduct

special relationships: created a duty to take action and makes someone liable for their unreasonable non-conduct

Is the Standard of Reasonableness the same for everyone?

in most negligence cases the standard of reasonableness is that of a reasonable person

negligence of a professional is called

malpractice

Breach of Duty

occurs when a person’s conduct fails to meet an applicable standard of care

Willful and Wanton Negligence

an aggravated level of negligence that is happening as a result of extreme lack of due care

How does Foreseeability come into play?

you cannot have a breach of duty if the danger is not reasonably foreseeable

Causation in Fact

before a person is liable to another for negligent injury, the person’s failure to use reasonable care must actually have caused the injury

But For Test

But for the act of the defendant, would the injury have occured?

Substantial Factor Test

The jury must determine whether the defendant’s conduct is a substantial, material factor in bringing about the injury

What happens when more than one person is responsible for someone’s injuries?

depends on the state, would be joint and several liability or pure several liability

How would be apply joint and several liability?

could make one person pay all of it, make them split equally, or split inequally however you want

Joint and Several Liability

the plaintiff can recover the amount of the judgement entirely from either of the defendants or get a portion of the judgement from each

Pure Several Liability

some states hold a defendant liable for only the portion of damages the jury believes that individual actually caused

Proximate Causation

Also known as Legal Cause. People engaged in an activity are only liable for the foreseeable risk that they cause

Do we have a foreseeable plaintiff?

Could the defendant expect the plaintiff to be a person who could be injured due to their their negligent act?

Do we have a foreseeable consequence or harm?

Did the defendant directly cause the injury?

Intervening Cause

Causes of injury that intervene between the defendant’s negligence and the plaintiff’s injury can destroy the necessary proximate causation

Actual Injury

A plaintiff in a negligence case must prove a legally recognized harm. It’s not enough that the defendant simply failed to use reasonable care.

Contributory Negligence

if the plaintiff is even partially at fault, ten the plaintiff cannot recover

Comparative Negligence

if the plaintiff is partially at fault, then damages will be apportioned according to fault

Asumption of the Risk

The plaintiff cannot recover if the plaintiff:

1. had knowledge of the specific risk

   AND

2. voluntarily assumed that risk

Strict Products Liability

Commercial Seller who sells an unreasonably dangerous defective product that causes injury of the product is strictly liable

Punitive Damages

awarded by courts to punish defendants for intentional torts and for negligent behavior considered “gross” or “willful and wanton”