Business Law - Torts Terms

Assault

Threat of immediate harm or offensive contact; any action that arouses reasonable apprehension of imminent harm; actual physical contact is unnecessary

Battery

Unauthorized and harmful or offensive physical contact with another person that causes injury; there can be direct and/or indirect physical contact between victim and perpetrator; may accompany assault

Doctrine of transferred intent

Applies when a person acts with the intent to injure one person but actually injures another; law transfers perpetrator’s intent from target ot actual victim; victim can sue the perpetrator

False Imprisonment

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

Physical force

Barriers

Threats of physical harm

False arrest

Shoplifting and merchant protection statutes

Merchants may stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if:

There are reasonable grounds for suspicion

suspects are detained for only a reasonable time

investigations are conducted in reasonable manner

Misappropriation of the right to publicity

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

Also called tort of appropriation

Plaintiff’s recourse - Recover the unauthorized profits made by the offender

Obtain an injunction preventing further unauthorized use of his or her name or identity

Invasion of the right to privacy

Violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity

Facts do not have to be untrue

Placing a person in false light constitutes invasion of privacy

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EX: sending an objectionable telegram to a third party and signing someone else’s name would place the so called sender in a false light in the eyes of the receiver

Defamation of character

False statement(s) made by one person about another

Slander

Oral defamation

Libel

False statements that appear in media

Plaintiff must prove that:

Defendant made na untrue statement of fact about plaintiff

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Statement was intentionally or accidentally published to a third party

Defamation and Public Figures as Plaintiffs

Actual Malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity; this requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities

Disparagement

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

Intentional misrepresentation (fraud)

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

Intentional infliction of emotional distress

Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person;

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also known as tort of outrage

Malicious prosecution

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

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Ex. One student actor gets a part in a play over another student actor. To get back at the winning student, the rejected one files a lawsuit against the winning one, alleging intentional infliction of emotional distress, defamation, and negligence. The lawsuit is unfounded, but the winning student must defend the lawsuit. The jury returns a verdict exonerating the defendant. The defendant can now sue the plaintiff for malicious prosecution and ahs a very good chance of winning the lawsuit

Neglignece

Omission to do something which a reasonable person would do, or something which a prudent and reasonable person would not do

Elements of Negligence Lawsuit

* The defendant owed a duty of care to the plaintiff
* the defendant breached the duty of care
* the plaintiff suffered injury
* the defendant’s negligent act was the actual cause of the plaintiff’s injury
* the defendant’s negligent act was the proximate cause of the plaintiff’s injuries

Duty of care

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

2 tests used to determine where a duty of care was owed

Reasonable person standard and reasonable professional standard

Breach of duty of care

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

Injury to Plaintiff

* Personal injury or damage to the plaintiff’s property
* 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

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Causation in fact (actual cause)

A person who commits a negligent act is not liable unless acual cause can be proven

Proximate cause (legal cause)

A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions

Professional malpractice

* Liability of a professional who breaches his or her duty of ordinary care
* Also knowna s a breach of reasonable professional standard

Negligent infliction of emotional distress

Tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct

Negligence *per se*

Violation of a statute or an ordinance constitutes the breach of the duty of care

*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

Gross Negligence

A person is liable for harm that is caused by his or her willful misconduct or reckless behavior

* Punitive damages may be assessed

Attractive nuisance doctrine

Tort rule that imposes liability on a landowner to children who:

* attracted to the landowner’s property by an attractive nuisance are killed or injured on the property

Good Samaritan Law

* protects medical professionals who stop and render emergency first aid
* Relieves them from liability for ordinary negligence
* No relief for gross negligence or intentional or reckless conduct
* Laypersons not trained in CPR not covered

Superseding or intervening event

An event for which defendant is not responsible

Assumption of risk

Defense that a defendant can use against a plaintiff who knowingly and voluntarily participates in a risky activity that results in inury

Contributory negligence

Plaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendant

Comparative negligence

Damages apportioned according to fault

* Pure comparative negligence
* Partial comparative negligence (50% rule; you have to be less that 50% responsible for your own injuries to recover)

Strict Liability

Liability without fault

* certain activities that can place the public at risk of injury even if reasonable care is taken
* Public should have some means of compensation if such injury occurs