MGMT 311 Exam 2 Hailey TAMU

tort

A civil wrong

purpose of a tort

to provide remedies for the violation of various protected interests

damage v.s damages

- damage: injury/destruction of property

- damages: monetary compensation for the wrong doing

damages available in tort actions

- compensatory: special/general

- punitive

compensatory damages

money intended to restore a plaintiff to the position he was in before the injury

special damages and general damages

- special: compensate the plaintiff for quantifiable monetary losses (now & future)

- general: compensate individuals (not companies) for the non monetary aspect of the harm

punitive damages

damages exceeding simple compensation and awarded to punish the defendant

punitive damages are only awarded when?

in intentional tort actions & rarely in negligence lawsuits

gross negligence

an action committed with extreme reckless disregard for the property or life of another person

punitive damages are subject to what?

limitations under the due process law

does the government have the right to limit punitive damages?

yes

classifications of torts

-intentional torts

-unintentional torts (negligence)

what is the purpose of a defense?

even if the plaintiff can prove all elements of the tort the defendant can argue a defense to limit or eliminate the liability of the act

types of defenses

- consent

- comparative negligence (most common)

- statue of limitations (2 year time limit)

tortfeasor

person who commits a tort

do intentional torts require motive?

no the defendant can commit the tort without any bad intentions

transferred intent

when a defendant intends to harm one individual, but unintentionally harms a second person

assault

intentional & inexcusable threat or immediate harmful of offensive contact (verbal or physical) that can occur without any physical contact being made (if plaintiff can prove immediate harm was about to happen)

battery

intentional harmful or offensive physical contact unwanted by the plaintiff (doesn't need physical injury) OR something set in motion to harm the plaintiff

offensive contact is determined by what?

reasonable person standard

plaintiffs compensation for battery

- emotional distress

- physical harm

- damage to reputation

defenses to battery

- consent

- self defense

- defense of others or property

false imprisonment

confinement or restraint of another person's activities without justification (interferes with freedom to move without restraint)

what is the privilege to detain?

granted to businesses, a law in most states allowing them to detain shoplifters with reasonable force for the police

intentional infliction of emotional distress

an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm

to sue for emotional distress the plaintiff needs what?

actionable proof

which amendment limits the emotional distress claim?

first

defamation

wrongfully hurting another's reputation

libel

written or recorded defamations that are permanent

breaching libel orally is called what?

slander

does defamation apply to businesses & their products?

yes

4 steps to establishing defamation

1. defendant made a false statement of fact

2. statement was understood to be about the plaintiff and tended to harm the plaintiffs reputation

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

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

what type of damages are rewarded for breach of libel/defamation?

general damages

slander

defamation in oral (temporary) form that causes the plaintiff to suffer economic or monetary loss

to establish slander, the plaintiff must prove what?

special damages (economic or monetary loss)

slander per se

when oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject's reputation

defenses to defamation

- the statement was true

- privileged speech

- speech concerns a public figure

defamation cases are usually filed in what court?

state courts

2 types of privileged speech

1. absolute

2. qualified

absolute privilege

immunity granted to judicial and government proceedings

qualified privilege

the statement is made in good faith and was only shown to individuals with interest

public figures are excluded from defamation unless what?

the public figure can prove actual malice (knowing its false or recklessness)

privacy

the tort "invasion of privacy" protects our right to privacy

in order to sue for breach of privacy, the plaintiff must prove what?

- an expectation of privacy

- invasion must be highly offensive

under common law, what 4 acts identify with invasion of privacy?

1. intrusion to an individuals affairs or seclusion

2. false light

3. public discourse or private facts

4. appropriation of identity

intrusion to an individuals affairs or seclusion

invading someones home or property, stalking, eavesdropping, & unauthorized scanning of a bank account

false light

publication of information that places a person in a false light

public discourse or private facts

a person discloses private facts about a person that anyone would find embarrassing

appropriation of identity (varies by state)

using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

fraudulent misrepresentation (fraud)

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 (intentional deceit for personal gain)

statement of opinion

can be considered a statement of fact if the individual making the statement have superior knowledge on the topic

negligent misrepresentation

fraud committed by someone who should have known what they were saying was false

abusive or frivolous litigation

the filing of a lawsuit without legitimate grounds and with malice & the use of a legal process in an improper manner.

how does abuse of process differ from malicious prosecution?

abuse of process does not require the plaintiff to prove malice & is not limited to before trial

business torts

wrongful interference with another's business rights and relationships

- contractual relationship

- business relationship

3 factors of wrongful interference of a contractual relationship

1. valid & enforceable contract must exist

2. third party must know the contract exists

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

wrongful interference with a business relationship

when a person uses predatory tactics to take another business's customer

defenses to wrongful interference

the interference was justified or permissible &

bona fide competitive behavior (such as marketing) is a permissible interference even if it results in the breaking of a contract

intentional torts against property

1. trespass to land

2. trespass to personal property

3. conversion

4. disparagement of property

real v.s personal property

real: land & things permanently attached to the land

personal: everything else

trespass to land

the entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization (no harm is necessary)

establishing trespass

before making someone a trespasser there has to be a sign warning, but if the person enters onto another's property to commit an illegal act (stealing) is trespassing without posted sings

liability of harm of trespasser is subject to what?

reasonable duty of care

attractive nuance doctrine

if a child is attracted to something on your property and trespasses which results in injury, the home owner is liable for damages

defenses to trespassing

- the trespasser can prove they were warranted (saving someone in danger)

- the trespasser had license to enter

licensee

one who receives a license to use, or enter onto, another's property

t/f: licenses are revocable by the owner

t

trespass to personal property

whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property

conversion

any act that deprives an owner of personal property or of the use of that property without the owner's permission and without just cause

- failure to return goods

- intention (thought they were entitled to the goods)

disparagement of property

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

- slander of quality

- slander of title

slander of quality

the publication of false information about another's product, alleging that it is not what its seller claims (trade libel)

to prove slander of quality, the plaintiff must prove what?

improper publication caused a third party to refrain from dealing with the plaintiff and the plaintiff suffered economic damages

slander of title

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

unintentional torts (negligence)

someone suffers injury because of another's failure to live up to a required duty of care

negligence involves what 2 factors?

1. risk was involved

2. risk is foreseeable

in order for the plaintiff to prove negligence the must prove what?

1. duty: defendant has a duty established

2. breach: the duty was breached

3. causation: the defendants actions caused plaintiffs injury

4. damages: plaintiff suffered a legally recognizable injury

the duty of care & its breach

the duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others & failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence

3 factors in determining whether duty of care has been breached

1. nature of the act (was it outrageous)

2. the manner in which the act was preformed (was is cautious)

3. nature of the injury (was it a serious injury)

reasonable person standard

a measurement of the way members of society expect an individual to act in a given situation

the duty of landowners

people who invite others onto property have a duty to keep the premises safe

duty to warn business invitees of risks

owners has a duty to warn business invitees of risks that they know about or should have known about

exceptions to the duty to warn business invitees

the risk is very obvious

the duty of professionals

- professionals may owe higher duty of care based on special education, skill or intelligence

- breach of duty is called professional malpractice

- their skills & expertise are taken into account when considering what is reasonable

malpracitce

professional negligence

- medical malpractice

- legal malpractice

2 causation questions (both must be proved true to have standing)

1. is there causation in fact? (if the injury would not have occurred without the defendants act, there is causation in fact)

2. was the act the legal cause of injury? (proximate or legal cause exists when the connection between the act and the injury is strong enough to impose liability)

forseeablity

it is unfair to make the defendant liable for their action unless they knew about the foreseeable risk

what is the test for proximate cause?

foreseeability

what must be present for the plaintiff to receive compensation for negligence?

harm or injury

good samaritan statute

a state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence, unless they act recklessly, thereby causing further harm

defenses to negligence

- plaintiff failed to prove one of the elements of negligence

- assumption of risk

- superseding cause

- contributory & comparative negligente

assumption of risk

- plaintiff was aware of the risk

- voluntary assumption of the risk

superseding clause

an intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability

contributory negligence

a rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault

comparative negligence

a theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence

what case did strict liability derive from?

fletcher v ryland (coal mines got filled with water from ryland's mill that over flowed)

strict liability (nature of the case)

the legal responsibility for damage or injury even if you are not negligent

product liability

the legal liability of manufacturers, sellers, and lessors of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods

abnormally dangerous activities

- involve a high degree of risk of serious harm and are not matters of common usage

- even if reasonable care is taken by the defendant, they still have responsibility to compensate those who were harmed bc of the risk involved

abnormally dangerous actives include what?

- keeping wild animals

- dangerous domesticated pets

2 applications to strict liability

1. abnormally dangerous activities

2. product liability