ch 6 tort law

what is tort law?

a civil wrong not arising from a breach of contract;

a breach of a legal duty that proximately causes harm or injury to another

what are the two notions that serve as the basis of all torts?

1. wrongs

2. compensation

what was tort law designed for?

to compensate those who have suffered a loss or injury due to another person’s wrongful act

what is the purpose of tort law?

to provide remedies for the violation of various protected interests

what is an example of tort law?

society recognizes an interest in protecting property, and tort law provides remedies for acts that cause destruction of or damage to property

what are damages?

a monetary award sought as a remedy for a breach of contract or a tortious act

what are compensatory damages?

a money award equivalent to the actual value of injuries or damages sustained by the aggrieved party

what are the two types of damages in compensatory damages?

special damages and general damages

what are special damages?

an amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damage, and lost wages and benefits (now and in the future)

what are general damages?

an amount awarded to compensate individuals for the non monetary aspects of the harm suffered, such as pain and suffering;

not available to companies

• cannot be measured

what are punitive damages?

money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct

when are punitive damages appropriate?

only when the defendant’s conduct was particularly egregious (outrageous) or reprehensible (shameful)

when are punitive damages usually available and when are they rarely available?

usually available in intentional tort actions

rarely available in negligence lawsuits

• may be awarded in suits involving gross negligence

what is gross negligence?

an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another

where are punitive damages subject to limitations under?

the due process clause

T or F: state laws cannot limit the amount of damages — both punitive and general — that can be awarded to the plaintiff

FALSE

state laws may limit the amount of damages

what are the two broad classifications of torts?

1. intentional torts

2. unintentional torts (torts involving negligence)

what do intentional torts result from?

the intentional violation of person or property (fault plus intent)

what do unintentional torts result from?

the breach of a duty to act reasonably (fault without intent)

even if a plaintiff proves all the elements of a tort, what can the defendant do?

raise a number of legally recognized defenses (reasons why the plaintiff should not obtain damages)

what can a successful defense release the defendant from?

partial or full liability for the tortious act

what is a common defense to intentional torts against persons?

consent

• when a person consents to the act that damages her or him, there is generally no liability

what is the most widely used defense in negligence actions?

comparative negligence

what is intentional tort?

a wrongful act knowingly committed

what is a tortfeasor?

one who commits a tort

T or F: an evil or harmful motive is not required in an intentional tort

TRUE

what does intent mean in tort law?

the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act

what is transferred intent?

a legal principle under which a person who intends to harm one individual, but unintentionally harms a different individual, can be liable to the second victim for an intentional tort

what is assault?

any word or action intended to make another person fearful of immediate physical harm;

a reasonably believable threat

when can assault occur even if there is no actual contact with the plaintiff?

if the defendant’s conduct creates a reasonable apprehension of imminent harm in the plaintiff

when can an action be considered a battery?

if the act that created the apprehension is completed and results in harm to the plaintiff

what is battery?

the unprivileged, intentional touching of another

T or F: physical injury needs to occur in order for an action to be considered a battery

FALSE

the contact can be harmful, or it can be merely offensive

what is false imprisonment?

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

what can the confinement of false imprisonment be accomplished through?

the use of physical barriers or restraints, or threats of physical force

what does false imprisonment interfere with?

the freedom to move without restraint

what is essential for false imprisonment to be labeled as such?

the person being restrained does not wish to be restrained

what does the tort of intentional infliction of emotional distress involve?

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

what does actionable mean?

capable of serving as the basis of a lawsuit

to be actionable in a tort of intentional infliction of emotional distress, what must the act be?

it must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society

what is an example of a tort of intentional infliction of emotional distress?

repeated annoyances (such as those experienced by a person who is being stalked), coupled with threats

when does the first amendment’s guarantee of freedom of speech limit emotional distress claims?

when the outrageous conduct consists of speech about a public figure

what is defamation?

any published or publicly spoken false statement that causes injury to another’s good name, reputation, or character

what is libel?

defamation in writing or in some other form (such as a digital recording) having the quality of permanence

what is slander?

defamation in oral form

establishing defamation involves proving the following elements:

1. the defendant made a false statement of fact

2. the statement was understood as being about the plaintiff and tended to harm the plaintiff’s reputation

3. the statement was published to at least one person other than the plaintiff

4. if the plaintiff is a public figure, she or he must also prove actual malice

when does making a negative statement about another person become defamation?

the statement is false and represents something as a fact rather than a personal opinion

what is publication?

the defamatory statements are communicated (either intentionally or accidentally) to persons other than the defamed party

what happens once a defendant’s liability for libel is established?

to recover damages, the plaintiff need not prove that he or she was actually harmed in any specific way as a result of the libelous statement

what must the plaintiff prove in a case alleging slander?

must prove special damages to establish defendant’s liability

what happens if special damages cannot be proved in a slander case?

a plaintiff alleging slander normally cannot go forward with the suit and recover any damages

what does it mean when a false statement constitutes “slander per se”?

it is actionable with no proof of special damages required

what are the four types of declarations that are considered to be “slander per se” in most states?

1. a statement that another has a “loathsome” disease (such as an STD)

2. a statement that another has committed improprieties while engaging in a profession or trade

3. a statement that another has committed or has been imprisoned for a serious crime

4. a statement that a person is unchaste or has engaged in serious sexual misconduct

what does it mean when it is said that truth is an absolute defense against a defamation charge?

if the defendant can prove that the allegedly defamatory statements of fact were true, normally no tort has been committed

what is privelage?

the ability to act contrary to another person’s right without that person’s having legal redress for such acts

what are the two types of privileged communication?

1. absolute → only in judicial proceedings and certain government proceedings

2. qualified → if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication

what is an example of absolute privileged communications?

statements made by attorneys and judges during a trial

what is an example of qualified privileged communications?

an employer’s statements in written evaluations of employees

what is a public figure?

an individual in the public limelight

what is actual malice?

a condition that exists when a person makes a statement with either knowledge of its falsity or reckless disregard for the truth

what are the four acts that qualify as invasions of privacy under the common law?

1. intrusion into an individual’s affairs or seclusion

2. false light

3. public disclosure of private facts

4. appropriation of identity

what is fraudulent misrepresentation?

any misrepresentation, either by misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment

what are the elements of the tort of fraudulent misrepresentation?

1. a misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth

2. an intent to induce another party to rely on the misrepresentation

3. a justifiable reliance on the misrepresentation by the deceived party

4. damages suffered as a result of that reliance

5. a causal connection between the misrepresentation and the injury suffered

what is puffery?

a salesperson’s exaggerated claims concerning the quality of goods offered for sale

when can the tort of fraudulent misrepresentation involve opinions?

when the individual making the statement of an opinion has superior knowledge of the subject matter

what is the key difference between intentional and negligent misrepresentation?

whether the person making the misrepresentation had actual knowledge of its falsity

what does negligent misrepresentation require for it to be negligence?

the person making the statement or omission did not have a reasonable basis for believing its truthfulness

when does liability for negligent misrepresentation usually arise?

when the defendant who made the misrepresentation owed a duty of care to the plaintiff to supply correct information

how does the tort law protect individuals from the misuse of litigation?

it recognizes that people have a right not to be sued without a legally just and proper reason

what is the key difference between the torts of abuse of process and malicious prosecution?

the abuse of process is not limited to prior litigation and does not require the plaintiff to prove malice

what are the two categories of business torts that involve wrongful interference with another’s business rights?

1. interference with a contractual relationship

2. interference with a business relationship

what are the three elements necessary for wrongful interference with a contractual relationship to occur?

1. a valid, enforceable contract must exist between two parties

2. a third party must know that this contract exists

3. this third party must intentionally induce a party to the contract to breach the contract

what is wrongful interference with a business relationship?

businesspersons are prohibited from unreasonably interfering with another’s business in their attempts to gain a greater share of the market

what must a plaintiff prove in order for behavior to be deemed predatory and not competitive?

that the defendant used predatory methods to intentionally harm an established business relationship or gain a prospective economic advantage

when will a person not be liable for the tort of wrongful interference?

if it can be shown that the interference was justified or permissible

what is bona fide competitive behavior?

permissible interference even if it results in the breaking of a contract

• such as marketing and advertising

what are intentional torts against property?

wrongful actions that interfere with individuals’ legally recognized rights with regard to their property

what do intentional torts against property include?

trespass to land and/or personal property

conversion

disparagement of property

what is real property?

land and things permanently attached to the land, such as a house

what is personal property?

consists of all other items, including cash and securities

T or F: the law distinguishes real property from personal property

TRUE

what is trespass to land?

the entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization

• actual harm to the land is not an essential element of this tort

what are some common types of trespass to land?

walking or driving on another’s land

shooting a gun over another’s land

throwing rocks at a building that belongs to someone else

what must be established before a person can be a trespasser?

the real property owner must establish that person as a trespasser

• no trespassing signs put up by the owner

at common law, is the trespasser liable for any damage caused to the property?

yes, the trespasser is liable for any damage they might have caused to the property

the owner cannot be held liable for injuries that the trespasser sustains on the premises

what would happen if children were attracted to a property by some object and then injured?

the owner may be held liable under the attractive nuisance doctrine

what are two defenses against trespass to land?

1. to show that the trespass was warranted

2. to show that he or she had a license to come onto the land

what is trespass to personal property?

the unlawful taking or harming of another’s personal property;

interference with another’s right to the exclusive possession of his or her personal property

what does harm mean in the context of trespass to personal property?

not only destruction to property, but also anything that diminishes its value, condition, or quality

what is conversion?

the wrongful taking, using, or retaining possession of person property that belongs to another

when would a failure to return property be considered a conversion?

when the rightful owner consented to the initial taking of the property

what is not a defense against conversion?

good intentions

what is disparagement of property?

an economically injurious false statement made about another’s product or property;

a general term for torts that are more specifically referred to as ‘slander of quality’ or ‘slander of title’

what is slander of quality (or trade libel)?

the publication of false information about another’s product, alleging that it is not what its seller claims

what must the plaintiff prove in order to establish slander of quality?

that the improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages as a result

what is slander of title?

the publication of a statement that falsely denies or casts doubt on another’s legal ownership of property, causing financial loss to that property’s owner

what is negligence?

the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances

what differentiates torts involving negligence from intentional torts?

the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur

• the person’s conduct merely creates a risk of such consequences

what must the plaintiff prove in order to succeed in a negligence acton?

1. duty (defendant owed a duty of care to the plaintiff)

2. breach (defendant breached duty of care)

3. causation (defendant’s breach caused plaintiff’s injury)

4. damages (plaintiff suffered a legally recognizable injury)

what is central to the tort of negligence?

the concept of a duty of care