Chapter 7: Tort Law

Tort

A non-contractual civil wrong that results in an injury or other loss for which the injured party has a legal remedy.

Tortfeasor

One who commits a tort.

Injunction

A court order directing the defendant to stop the tortious conduct.

Elements

The requirements for a cause of action. 

Cause of Action

The basis upon which a lawsuit may be brought to the court.

Intentional Tort

A tort that is willful and meant to cause harm. 

Transferred Intent

The legal concept that when an individual intends to harm a specific person, but inadvertently harms another, the intent is transferred, satisfying the intent requirement for tort liability.

Shopkeeper’s Privilege 

The right of a merchant to make reasonable detention of a patron where there is probable cause to believe that shoplifting occurred. 

Slander Per Se

A statement that on its face is defamatory. 

Disparagement

Another term for the business torts of slander of title and trade libel.

Intellectual Property

The result of one’s thoughts, ideas, or inventions; includes patents, copyrights, and trademarks.

Infringement 

Improper interference in the intellectual property rights of another. 

Negligence

A tort; failure to act as a reasonably prudent person would act under the same or similar circumstances. 

Res ispa loquitur

“The thing speaks for itself”; negligence is implied from the fact that the incident happened.

Negligence Per Se

Negligence that is presumed because the tortfeasor has violated a statute.

Attractive Nuisance

A condition on land that appeals to children; a doctrine that requires homeowners to use reasonable care to avoid injury to trespassing children. 

Malpractice

Professional negligence.

Product Liability

Liability of manufacturers and distributors for defective products that cause injury.

Consortium 

Companionship, comfort, and society given by one spouse to another.

Contributory Negligence

Negligence of a plaintiff that contributes to the injury; a doctrine that is a defense to negligence.

Last Clear Chance 

A doctrine that prevents the harsh result that follows from the doctrine of contributory negligence; if a negligent defendant had the last opportunity to avoid an accident, the contributory negligence of the plaintiff will not be a bar to recovery. 

Comparative Negligence

A doctrine that compares the negligence of the plaintiff and the defendant and allows recovery based on apportionment of fault.

Assumption of the Risk

Knowingly and voluntarily assuming a risk; a defense to negligence and strict liability.

Strict Liability

Liability without fault. 

Abnormally Dangerous Activity

A dangerous activity; one who engages in an abnormally dangerous activity is strictly liable to those who may be injured as a result.

Special Damages

Out-of-pocket losses.

General Damages

Damages not based on a monetary loss; including items such as pain and suffering and mental anguish. 

Punitive Damages

Damages meant to punish.

Exemplary Damages

Another term for punitive damages.

Joint and Several Liability

The principle that when two or more defendants cause an injury, the injured party can recover all or part of the damages from any of the defendants. 

Respondeat Superior

The responsibility of an employer for torts of employees that are committed in the course and scope of employment.

Vicarious Liability

Liability for the acts of another.

Independent Contractor

One who does work for another but who is not subject to control of the one who has hired him or her. 

Peculiar Risk Doctrine

A doctrine that makes an employer liable for the acts of an independent contractor when the independent contractor has been engaged to perform a nondelegable duty. 

Contingent Fee

A fee based on a fixed percentage of whatever amount is recovered by the attorney on behalf of the client. 

Workers’ Compensation

Laws that apply to those who are injured at work.