STRAT 3410 Final

all torts are

affirmative and volitional acts

affirmative

it actually happened

volitional

it happened by will

battery

intent to cause harm or offensive contact, has to directly or indirectly cause actual harm

assault

intent to cause harmful or offensive contact or to cause apprehension of immediate harm or offensive contact, apprehension must be reasonable

false imprisonment

with intent to confine the plaintiff within boundaries set by the defendant, no reasonable means to escape, plaintiff is aware of the confinement

intentional infliction of emotional damage

either intentional or via reckless behavior, with the purpose of inflicting severe emotional damage or with a substantial certainty that severe emotional distress will occur (deliberately or via disregard), extreme and outrageous conduct, plaintiff must have suffered sever emotional distress and be able to prove it

trespass

intent to enter or remain upon land that belongs to another without permission (or to cause some other person or thing to do the same)

conversion

intent to exercise dominion or control over personal property that belongs to someone else without permission, the dominion or control was so great as to render the only equitable remedy the repayment of the full value of the property in question, total destruction or depravation

trespass to chattels

dominion or control that either harms the owner, harms the chattel, or deprives the owner of the use of their chattel, not total destruction or deprivation

fraudulent misrepresentation

consisting of material facts or conditions with knowledge of the falsity or reckless disregard for the truth of the statement with justifiable reliance upon the misrepresentation, and there are damages stemming from the reliance

defamation

private and public defamation, publication means telling only one other person

public (of public concern) defamation

an act of publication of a statement that tends to harm the reputation that was of and concerning the plaintiff that was FALSE, defendant acted with either actual malice or with reckless disregard for the truth or falsity of the statement, the truth is ALWAYS a defense to defamation

private defamation

that was and concerning the plaintiff, plaintiff was actually HARMED by the statement

per se defamation

“in itself” defamation, to say the plaintiff has committed a serious crime or has a loathsome disease

misappropriation

intent to use the identity of the plaintiff without permission for advertising purposes

intrusion

intent to intrude in the plaintiff’s private affairs through unreasonable and improper means, confidential information that was (or almost) obtained

public disclosure of private facts

intent to disclose information about the plaintiff, info was private and a reasonable person woudln’t publicize it, must be to a WIDE audience (if a plaintiff is a public figure and info is newsworthy, it may be allowed)

false light

defendant intentionally publicized to a WIDE audience, placed the plaintiff in a false light that would be highly offensive to the reasonable person, defendant had a knowledge of the falsity or was acting with reckless disregard for the truth, no malice required

interference with contract

the existence of a valid contract or business relationship and defendant had knowledge of that contract with intentional efforts by the defendant to induce one of the parties to the contract to breach that contract, there is actual breach and actual harm to the non-breaching party

respondeat superior

only one factor has to be true to utilize:

• the act was within the scope of employment

• the act was explicitly authorized or directed by the employer or a manager

• the actor was a manager

• the actor was unfit for the duty assigned

• the act was ratified after the fact by the employer

defenses to torts

consent, self defense, defense of others, defense of property, public necessity, and private necessity

consent

consent is a defense to any tort, however consent cannot be obtained from a minor

implied consent

consent that is implied in the acceptance of the activity, playing a physical sport and getting shoved

express consent

verbal or written consent from the plaintiff, getting permission to punch someone in the face

emergency privilege (consent)

you performed a tort, but did so in an emergency situation

informed consent

liability waiver, you are explained to what is about to happen to you before it is real consent

self defense/defense of others (with or without deadly force)

equal force is self defense, but any kind of escalation is no longer self defense, you can only use deadly force if you are going to DIE without it

defense of property

you can only use equal force, never escalate, deadly force is NEVER permissible, pets are included in property

public necessity

you performed a tort for the betterment of another, you stole a car to take someone to the hospital

private necessity

you perform a tort in order to keep yourself safe, you break into a house to escape someone chasing you

negligence

unintentional torts

elements of negligence

duty, breach, actual cause, proximal cause, and harm

duty

to act reasonably to those surrounding you, there is a higher standard for professionals and a lower standard for minors

professional duty

to possess and exercise the skill and knowledge of an ordinary professional in the field who is in good standing in the national community of such professionals, someone pretending to be a professional is also held to these standards

minor duty

(ages 8-15) to act as a reasonable minor with the mental capacity, physical capacity, and experience of a minor of similar age UNLESS the minor is engaging in adult and inherently dangerous activities

special duty rules

duties owed to landowners to entrants onto their land, trespassers are NOT owed a duty of reasonability by a landowner, but landowner must refrain from willful, wanton, or reckless conduct

exception to special duty rules

1. landowners must ALWAYS warn of concealed traps

2. landowners ALWAYS owe a duty of reasonability to child trespassers (0-7)

strict liability

wild animals, products, and abnormally dangerous activities

wild animals liability

owners are always liable, tame animals are considered wild after just one bite

product liability

liable for manufacturing defects, design defects, and danger to warn (list allergens, cancer causing ingredients, etc.)

abnormally dangerous activities liability

driving around a truck full of dynamite

the duties of rescuers

generally, there is no duty to do so unless you put someone in harms way or there is a special relationship of care, if you have begun a rescue you must complete (or reasonably try)

breach

did the defendant meet their level of duty?

actual cause

but-for test, if you had not been there would this event have happened?

proximate cause

butterfly effect, was the harm foreseeable by a reasonable person, “thin skull rule” you cannot chose your defendant

harm

was there actual harm

defenses to negligence

comparative negligence, contributory negligence, express assumption of the risk, implied assumption of the risk, and failure to mitigate damages

comparative negligence

pure: whatever you’re responsible for you can’t get damages for, if you’re 30% responsible you only get 70% recovery

50% rule, even if you’re 49% responsible they have to pay you, if you’re even 51% responsive they do not

contributory negligence

if you are even 1% responsible, this is used to discredit your whole case and it gets thrown out

express assumption of the risk

even with a safety waiver they could still be on the hook, the dangers are told to you/written out

implied assumption of the risk

skydiving, you understand the risks of the activity and the dangers that can happen within normal performance of activity

failure to mitigate the damages

plaintiff failed to limit the damages that occurred, waited to see the doctor about a broken bone and it got worse

contracts

a promise the law will enforce, express contracts, implied in-fact contracts, and quasi contracts

express contracts

can be either written or oral and bilateral or unilateral and all elements of contract are there

implied in-fact contracts

formal elements of a contract are not met, but the actions of the parties toward on another indication intent to form or maintain contractual relationship, continuing to mow lawn every sunday

quasi contracts

based on the equitable doctrine of Unjust Enrichment, only used what there is no valid contract, but equity demands that the law treat the situation as though there were

elements of a contract

offer, acceptance, and consideration

offer

a manifestation of present contractual intent, there is certainly and definiteness to the terms, there is communication to the offeree

you CANNOT enter into a contract with a minor UNLESS the minor is the offerer of the contract

acceptance

acceptance is given by the offeree in the manner laid out by the offeror, offeree may accept by a promise or by performance if it is not specified how to accept

other responses to an offer than acceptance

• rejection

• lapse, reasonable time or time frame provided has passed

• death or incapacity (does not void contracts already formed)

• counteroffer, creates a new contract

mirror image rule

an offer must be accepted exactly as it with no modifications, negotiations until offer looks exactly the same on both sides

revocation

good until ___, need to give the offeree the time you told them to respond, except in option contracts which cannot be revoked until expiration date

mailbox rule

communications from the offeree become effective immediately upon their dispatch, offer acceptance cannot be revoked after acceptance has been sent in the mail

consideration

the parties must each do something they would not otherwise have has to (a mutual DETRIMENT), must be agreed upon at the moment of agreement with both parties knowing what the other is giving up

problems to consideration

illusory promises, pre-existing duties, contract modifications, past consideration, gifts

illusory promises

not detailed and do not mean anything, such as promising to buy all the screws I will need this year from you

pre-existing duties

if you already need to do it, you have to do it and it cannot be considered consideration (not smoking until 21)

contract modifications

modifications require new consideration, if you want more chickens you need to pay more money

past consideration

not consideration, should be given at the moment of agreement of the contract

gifts

gifts are NEVER consideration

promissory estoppel (quasi contract)

a clear and definite promise, relied upon by the promise, to which reliance was justified, to fail to enforce the promise would lead to an unjust result

doctrine used to get the law to enforce a contract, or get damages for the failing of the contract

if there is a contract, it CANNOT be promissory estoppel

contract issues

if there is ambiguity these are the steps:

• the course of normal dealings between parties

• standards within the industry

• parol evidence (external/extra evidence)

  • judge decides (last resort)

the statue of frauds

certain contracts MUST be in writing in order to be enforceable:

• the sale of property interests in land

• leases to be longer than one year

• contracts not to be fully performed within one year (CANNOT be performed)

• the sale of goods more than $500

• promises to pay the debt of another

exception to contracts that have been partly or wholly performed

anticipatory breach

an action that shows one party's intention to fail to fulfill its contractual obligations to another party, can end the counterparty's responsibility to perform its duties

excuses for non-performance

• mutual mistake

• unilateral mistake

• illegality

• impossibility

• impracticability

• frustration of the purpose

• unclean hands

• laches

• fraud

• unconscionability (shock of the conscious)

mutual mistake

where parties are each mistaken as to some material fact of the agreement

unilateral mistake

one party to a contract has made a grave mistake and now does not want to be held to the terms of the contract if that error was of an “innocent” type merely consisted of a mathematical or typographic error

illegality

a contract to perform an illegal act is no contract at all and is unenforceable, you can be required to perform all acts of the contract that is NOT illegal

frustration of the purpose

a contract need not be performed if and when the very purpose for which it was entered into has been frustrated through no act of either party

impracticability

some intervening event has occurred, the non occurrence of which was a basic assumption of the contract, performance for one of the parties has become extremely difficult and/or expensive

impossibly

performance of the contract becomes, by no fault of either party, ACTUALLY impossible

unclean hands

if one party has acted in bad faith or has themselves breached the contract, the other party may have its non-performance excused

laches

if the plaintiff failed to protect their interests in a timely manner, they may have missed the opportunity to do so

fraud

fraud or misrepresentation in the inducement of the contract may excuse nonperformance by the non-fraudulent party

unconscionability (shock of the conscious)

contract terms that “shock the conscious of the court” either on their face or because of marked unfairness to one party will not be enforceable

remedies:

• actual damages

• benefit of the bargain damages

• liquidated damages (damages in the contract)

• punitive damages

• nominal damages

• restitution

• specific performance

• legal fees and costs

• injunctive relief

actual damages

damages awarded by a court equivalent to the loss a party suffered

benefit of the bargain damages

equal to what the aggrieved party would have received, including profits, if the contract had been fully performed

liquidated damages

damages stipulated in the contract

punitive damages

damages assigned by the court on top of other remedies

nominal damages

a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court

restitution

make sure the injured party is restored to the position they enjoyed prior to the contract's formation, if possible

specific performance

perform the act outlined in the contract initially

injunctive relief

stop what you’re doing, sieze all acts

code (civil) law

depend on comprehensive legislative enactments (called codes) and an inquisitorial system of determining disputes. In the inquisitorial system, the judiciary initiates litigation, investigates pertinent facts, and conducts the presentation of evidence

common law

stare decisis, courts adhere to and rely on rules of law that they or superior courts relied on and applied in prior similar decisions

district courts

general trial courts in the federal system most federal cases begin in the district court, and it is here that issues of fact are decided

court of appeals

primarily hears appeals from the district courts located within its circuit. In addition, these courts review decisions of many administrative agencies, the Tax Court, and the Bankruptcy Courts.

supreme court

nation’s highest tribunal, In certain types of cases, the U.S. Supreme Court has original jurisdiction