blaw test 2 ch6

Torts

•Tort: French word for “a wrong.”

•Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or to the party’s property.

•Most torts are either intentional torts or unintentional torts, such as negligence.

•Tort damages: Monetary damages sought from the offending party.

•Doctrine of strict liability: A defendant may be held liable without fault.

•If the victim of a tort dies, beneficiaries can bring a wrongful death action against defendant to recover damages.

Intentional Torts

•Category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries

• assault

• battery

• false imprisonment

• Misappropriation of the Right to Publicity

• invasion to right of privacy

• defamation of character

• disparagement

• intentional misrepresentation (fraud)

• Intentional Infliction of Emotional Distress

• malicious prosecution

• trespass to real property

assault vs battery (intentional torts)

•Assault

–Threat of immediate harm or offensive contact

–Action that arouses reasonable apprehension of imminent harm

▪Actual physical contact is unnecessary for an action to be assault

▪Threats of future harm are not actionable

•Battery

–Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury

▪The interest protected is each person’s reasonable sense of dignity and safety

In louisiana, an assault is a threat, not the actual harm; actual physical contact is uncessary. Offensive contact: groping someone.

If you go through with it, that is the battery; the physical contact. Has to be unauthorized: Victim didn’t consent, can’t ask to box and the get beat up and say you committed battery. Direct (fist) or indirect contact (golf club – it is an extension of yourself).

false imprisonment (intentional tort)

•Intentional confinement or restraint of another person without authority or justification and without that person’s consent by:

–Physical force

–Barriers

–Threats of physical harm

–False arrest

Has to be without consent; if you tie lover to bed because they asked you to, that’s not without consent.

Shoplifting and Merchant Protection Statutes

•Allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if:

–Reasonable grounds for the suspicion exist

–Suspects are detained for only a reasonable time

–Investigations are conducted in a reasonable manner

•Also known as shopkeeper’s privilege

Misappropriation of the Right to Publicity (intentional tort)

•Attempt by another person to appropriate a living person’s name or identity for commercial purposes

–Also called the tort of appropriation

–Valuable right to well-known individuals

▪Sports figures and movie stars

–Artificial intelligence (A I) can now easily misappropriate a person image and voice

▪Indistinguishable digital replicas of: Famous actors, sports figures, celebrities, and others

▪Fake A I-generated images have been used to create compromising videos

–A person can recover damages from the operator of A I cloning systems, and injunction against further violations

Tort of appropriation of identity: people make money off of their face (like athletes), cannot have random billboards of those people without paying them/their permission.

invasion of the right to privacy (intentional tort)

•Unwarranted and undesired publicity of a private fact about a person

–Fact does not have to be untrue

–If a fact is public information, there is no claim to privacy

▪However, a fact once public (e.g., the commission of a crime) may become private with the passage of time

If you post something truly private about someone. If the information is already public, have no claim. If it’s something anyone can see, it’s not private (front of house)

defamation of character (intentional tort)

•False statement made by one person about another

•Plaintiff needs to prove in the court that:

–Defendant made an untrue statement of fact about the plaintiff

–Statement was intentionally or accidentally published to a third party

–Publication simply means that a third person heard or saw the untrue statement

–Some state defamation of character claims end upon death of the person

▪Slander: Oral defamation

▪Libel: False statements that appear in writing or other fixed medium

Intention false statement about someone, if you’re the plaintiff you have to PROVE that the defendant made a false statement and that it was intentionally published.

Two types; libel – writing or a video or radio broadcast, usually permanent/semi-permanent

                  slander – just saying it,  temporary

•Libel: False statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on

•Slander: Oral defamation of character

•Publication of an untrue statement of fact is not the same as the publication of an opinion

–Not actionable, because defamation requires an untrue statement of fact be

•Truth is an absolute defense to a charge of defamation

•Public figures as plaintiffs

–U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with “actual malice”

▪Defendant made the false statement knowingly or with reckless disregard of its falsity

If you’re a public figure, you have to show that the statement was made with actual malice: reckless disregard of consequences or if it was true or not. Harder for a famous person to have a defamation case.

Disparagement (intentional tort)

•False statements about a competitor’s products, services, property, or business reputation

•States have unfair-competition laws protect businesses from disparaging statements made by competitors or others

Not a persons reputation/name, it’s moreso about a product/business/service. Ex: open coffee shop and start telling people that a competitor’s shop failed health checks and has rats, you could get sued for disparagement (if it’s false).

intentional misrepresentation (fraud) - (intentional tort)

•Intentional defrauding of a person out of money, property, or something else of value

–Otherwise known as fraud or deceit

•Elements required to find fraud

–Wrongdoer made a false representation of a material fact

–Wrongdoer had knowledge that the representation was false and intended to deceive the innocent party

–Innocent party justifiably relied on the misrepresentation

–Innocent party was injured

Intentional Infliction of Emotional Distress (intentional tort)

•Tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes:

–Severe emotional distress to another person is liable for that emotional distress

•Does not require any publication to a third party or physical contact between the plaintiff and defendant

Has to be extreme and outrageos (not like unkind, politically incorrect), and severe emotional distress.

malicious prosecution (intentional tort)

•Lawsuit in which the original defendant sues the original plaintiff for improperly filing a lawsuit

–In the second lawsuit, the defendant becomes the plaintiff, and vice versa

•Succeeding in the lawsuit requires the plaintiff to prove:

–Plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit

–There was no probable cause for the first lawsuit and plaintiff action was brought with malice

–Original lawsuit was terminated in favor of the original defendant

–Current plaintiff suffered injury as a result of the original lawsuit

trespass to real propety (intentional tort)

•Occurs when someone knowingly enters onto another person’s real property without permission

–If the real property is damaged, the owner can sue the trespasser to recover tort damages such as

▪Costs of restoration

▪Loss of market value

▪Loss of use of the property

•Real property owner can petition a court to issue an injunction to stop the trespass

Have to show that you’ve been damaged somehow, can’t just sue someone for stepping foot onto property

unintentional torts (negligence)

•Doctrine that says individuals and businesses are liable for harm that is the foreseeable consequence of their actions

–Referred to as unintentional tort

•Negligence: Omission to do something that a reasonable person would do, or doing something that a prudent and reasonable person would not do

•Succeeding in a negligence lawsuit requires the plaintiff to prove that:

–Defendant owed a duty of care to the plaintiff

–Defendant breached this duty of care

–Plaintiff suffered injury

–Defendant’s negligent act was the actual cause of the plaintiff’s injury

–Defendant’s negligent act was the proximate cause of the plaintiff’s injuries

duty of care (negligence) + breaching it (first parts of what you must prove in a negligence case)

•Obligation people owe each other not to cause any unreasonable harm or risk of harm

–Reasonable person standard

▪Test used to determine whether a defendant owes a duty of care

▪Measures the defendant’s conduct against how an objective, careful, and conscientious person would have acted in the same circumstances

–Reasonable professional standard

▪Test to determine how an objective, careful, and conscientious equivalent professional would have acted in the same circumstances

Courts look at what a reasonable person would have done, what would a reasonable professional in your area have done (medical malpractice, legal malpractice

Breach of the duty of care

•Failure to exercise care or to act as a reasonable person would act

–Failure to exercise care in their actions

–Failure to act when there is a duty to act

injury to plaintiff + actual/proximate cause (second parts you must prove in a negligence case)

•Personal injury or damage to the plaintiff’s property

•Plaintiff may recover monetary damages for the defendant’s negligence

–Damages cannot be recovered if the plaintiff suffered no injury

–Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession

Actual cause

•Actual cause of negligence

–The test is this “But for” the defendant’s conduct would the accident have happened?

▪If the defendant’s act caused the plaintiff’s injuries, there is causation in fact

–Person who commits a negligent act is not liable unless actual cause can be proven

•Otherwise known as causation in fact

Have to prove that the negligent act is actually what caused the injury

proximate cause

•Point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of their actions

–Also called a legal cause

•Foreseeability is the general test

–A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff

It also has to be foreseeable that your negligent act could have caused the damage

Ex: throw a cigarette bud on ground, it is foreseeable that the house next door catches on fire, it is not foreseeable that it burns down

special negligence doctrines (1) - profressional malpractice, negligent infliction of emotional distress, duty to rescue laws, negligence per se

•Professional Malpractice: Liability of a professional who breaches their duty of ordinary care

–Duty is known as reasonable professional standard

–Such as doctors, lawyers, architects, accountants, and others

•Negligent infliction of emotional distress: Tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct

–Often used in bystander cases in which the following elements must be proved

▪A close relative was killed or injured; the plaintiff suffered severe emotional distress; and mental distress resulted from witnessing the accident

typically a bystander situation, if a car veers off road and hits a child, parent will obviously have emotional distress

•Duty to Rescue Laws: Under certain circumstances a duty is imposed on a person to assist or rescue another who is in peril

–Only in some state

–Special relationship between the parties (e.g., parent and child, or between spouses)

–Most states require a person to rescue someone they put in danger

–The rescuer is not obligated to put their self in danger to rescue another

–Many state have enacted duty to notify laws that require a person to call 911 to advise authorities

•Negligence Per Se: Tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care

special negligence doctrines - res ispa loquitur, attractive nuisance doctrine

•Res Ipsa Loquitur

–Defendant had exclusive control of the situation that caused the plaintiff’s injury

–Injury would not have ordinarily occurred but for someone’s negligence

–Latin for “the thing speaks for itself”

–Burden on the defendant to prove they were not negligent

It could not have happened but for someone being totally negligent, don’t even have to try and prove it: ex – have someone with surgical scissors inside body, only possible way for that to happen from a negligent doctor

•Attractive Nuisance Doctrine: Imposes liability on a landowner to children who have been attracted onto the landowner’s property by an attractive nuisance and are killed or injured on the property

–Reason for the doctrine

▪Children, due to their youth, do not understand the potential risk associated with the hazard

▪Landowner owes a duty to remove the dangerous condition or take steps to prevent children from reaching the dangerous object

Impose liability on landowners when they have something on property that might attract child, and then child is killed / injuried. Kids don’t understand danger of things and are very curious. Need to act as a reasonable landowner and prevent

good samaritan laws

•Statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations

–Protects licensed doctors, nurses, and laypersons certified in cardiopulmonary resuscitation (C P R)

▪Laypersons not trained in cardiopulmonary resuscitation (C P R) not covered, that is, they are liable for injuries as a result of ordinary negligence

Render aid to someone, as long as its in good faith, cant sue for making it worse

product liability

•Product Liability: Liability of manufacturers, sellers, lessors, and others for injuries caused or death caused by defective products

–Three main theories:

▪Negligence

▪Misrepresentation

▪Strict Liability

–Imposes liability without showing fault

–Plaintiff may recover punitive damages for reckless or intentional conduct

–Party who has been injured by a defective product can sue the product manufacturer, distributor, or seller

–Plaintiff can sue a party—usually the manufacturer—for being negligent in producing a defective product

•Injured party must show that the product that caused the injury was defective to recover for strict liability

–Most common types of defects:

▪Defect in manufacturing

▪Defect in Design

▪Failure to warn

▪Defect in packaging

Defenses to Negligence and Product Liability Lawsuits

•Generally known dangers

–Certain products are inherently dangerous and are known to the general population to be so

–Manufacturers and sellers are not strictly liable for failing to warn of generally known dangers

Everybody knows that certain things can be dangerous, just expect people to understand there is risk in using the product (knife, firearm, etc)

•Abnormal misuse of a product

–Relieves the manufacturer or seller of product liability if the plaintiff abnormally misused a product

▪Manufacturer or seller did not intent, expect, or anticipate such a blatant misuse of the product

–If a misuse of a product is reasonably foreseeable misuse:

▪Could easily and reasonably be designed to be prevented

–Then a manufacturer will not be absolved from liability—from a preventable danger

Using the product in a weird, abnormal way. Cant be liable for every way someone might use a product

•Supervening event

–Alteration or modification of a product by a party in the chain of distribution that absolves all prior sellers from strict liability

▪Manufacturer or seller is not liable if a product is materially altered or modified after it leaves the seller’s possession, and the alteration or modification causes an injury

•Assumption of risk

–Defendant must prove that the plaintiff: (1) knew and appreciated the risk and (2) voluntarily assumed the risk