Module 4: Torts, Negligence, and Product Liability

Vocabulary flashcards covering intentional torts, negligence, damages, strict liability, product liability, and statutes of limitations and repose based on MGT 2000 lecture materials.

Tort

A French word meaning 'wrong,' derived from the Latin term tortum, which means 'something twisted, wrung, or crooked.'

Tortious

A legal term used to describe behavior that constitutes a tort.

Tortuous

An adjective meaning full of twists and turns.

Torturous

An adjective defined as being characterized by, involving, or causing excruciating pain or suffering.

Tort Damages

Monetary compensation sought by an injured party from an offending party in a civil lawsuit for injury to person or property.

Assault

The threat of immediate harm or offensive contact, or any action that arouses reasonable apprehension of imminent harm, where actual physical contact is not necessary.

Dan throws a heavy rock directly at Paul during an argument.

• Assault: Paul sees the rock flying toward him and ducks in fear. (The fear of immediate contact).

• Battery: The rock strikes Paul on the shoulder. (The actual physical contact).

Battery

Unauthorized and harmful or offensive physical contact with another person that causes injury, which can be direct or indirect.

Transferred Intent Doctrine

A legal principle applied when a person intends to harm one individual but unintentionally injures a different person instead.

False Imprisonment

The intentional confinement or restraint of another person without legal authority, justification, or consent, carried out by physical force, barriers, threats, or false legal authority.

Dan suspects Paul of shoplifting in a store. Dan locks Paul inside a back office and refuses to let him leave for two hours, ignoring Paul's requests to go. It turns out Paul had not stolen anything.

• Why it's false imprisonment: Dan intentionally confined Paul, Paul was aware of the confinement, and there was no reasonable exit available.

Merchant Protection Statutes

Laws allowing merchants to stop, detain, and investigate suspected shoplifters without liability for false imprisonment, provided there are reasonable grounds, reasonable detention time, and a reasonable investigation manner.

Misappropriation of the Right to Publicity

An intentional tort occurring when a person or entity appropriates a living person's name or identity for commercial purposes without permission.

A beverage company launches a national billboard campaign for an energy drink featuring a photograph of a famous athlete drinking their beverage. The company never contacted the athlete, obtained permission, or paid a licensing fee.

Because the company used the athlete's likeness to promote its product without consent, it has committed misappropriation of the right of publicity.

Invasion of the Right to Privacy

A tort involving the violation of a person's right to live without unwanted publicity, such as the unwarranted publication of private facts or placing someone in a false light.

Defamation of Character

The intentional publication of an untrue statement of fact about a plaintiff to a third party that causes injury to the plaintiff's reputation.

Slander

An oral defamatory statement made about another person.

Libel

A written or permanent defamatory statement expressed in email, social media posts, letters, printed media, photos, or videos.

Actual Malice

A constitutional standard established in New York Times v. Sullivan requiring public officials or public figures claiming defamation to prove that a statement was made with knowledge of its falsity or with reckless disregard for its truth.

Disparagement

An intentional tort (also termed trade libel, product disparagement, or slander of title) requiring proof that a defendant maliciously published an untrue statement of fact regarding a plaintiff's business, products, services, or property, causing economic loss.

Intentional Misrepresentation (Fraud)

A tort involving intentionally defrauding someone of value by making a false representation of material fact, knowing it is false, intending to deceive, leading to justifiable reliance and resulting injury.

A seller lists a house and tells a prospective buyer, "The roof was completely replaced last month with brand-new materials," knowing full well the roof is 20 years old and actively leaking.

Relying on this statement, the buyer purchases the home for full price. A week later, a heavy rainstorm causes major ceiling damage.

• Why it's intentional misrepresentation: The seller knowingly made a false statement of material fact with the intent to induce the buyer to complete the purchase, causing the buyer direct financial harm.

Intentional Infliction of Emotional Distress

A tort (also called the tort of outrage) involving extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another.

A prankster calls a mother pretending to be a hospital doctor, telling her falsely that her child was critically injured in a car crash and is undergoing emergency life-saving surgery. The mother suffers severe panic, psychological shock, and psychiatric hospitalization as a result.

• Why it's IIED: Fabricating a child's catastrophic injury is extreme and outrageous conduct that goes far beyond acceptable behavior, intentionally causing severe, debilitating psychological harm.

Malicious Prosecution

A lawsuit brought by a successful defendant from a previous civil action against the original plaintiff, alleging that the original lawsuit was frivolous, brought with malice, and lacked probable cause.

Dan hates his neighbor Paul. Dan calls the police and lies, claiming Paul pointed a gun at him during an argument.

Guarding against false accusations. Source: SKT Law

1. The Criminal Case: Police arrest Paul. At trial, security footage proves Paul was at work when the alleged incident happened, so the judge drops all charges (favorable termination).

2. The Civil Lawsuit: Paul sues Dan for malicious prosecution.

Real Property

A category of property consisting of land and anything permanently attached to that land.

Personal Property

A category of property comprising tangible items that are movable, as well as intangible property such as intellectual property rights and contracts.

Trespass to Land

An intentional tort that interferes with a real property owner's right to exclusive possession of their land.

Trespass to Personal Property

A tort committed when a person injures another's personal property or interferes with that person's enjoyment and use of their personal property.

Conversion of Personal Property

A tort occurring when a person deprives the true owner of the use and enjoyment of personal property by taking control of it and exercising ownership rights.

Unintentional Tort (Negligence)

A legal doctrine holding a party liable for harm caused by failing to do something that a prudent and reasonable person would do, or doing something that a prudent person would not do.

imple Example: The Distracted Driver

Dan looks down at his phone to text while driving through a stop sign and rear-ends Paul’s car at a red light, breaking Paul's wrist.

• Duty: Dan owes other drivers a duty to pay attention and follow traffic laws.

• Breach: Dan breached his duty by texting and running the stop sign.

• Causation: Dan’s carelessness directly caused the crash (actual and foreseeable cause).

• Damages: Paul suffered physical injury and vehicle damage.

Duty of Care

The legal obligation imposed on individuals not to cause unreasonable harm or risk of harm to others, measured against a reasonable person or reasonable professional standard.

Breach of Duty of Care

The failure to exercise care or to act as a prudent and reasonable person would act under similar circumstances.

Simple Example: The Wet Floor

A grocery store clerk mops up a spilled drink in an aisle but fails to put up a "Caution: Wet Floor" sign.

• Duty: The store has a duty to keep its premises reasonably safe for shoppers.

• Breach: Leaving a slippery floor unmarked violates the standard of care expected of a reasonable store manager.

• The Result: If a customer slips and falls, the store breached its duty of care.

Causation in Fact (Actual Cause)

An element of negligence proven by the 'but for' test, establishing that the plaintiff's injury would not have occurred but for the defendant's conduct.

Proximate Cause (Legal Cause)

A limitation on legal responsibility along the chain of damages determined by foreseeability, asking whether the plaintiff's injury was a foreseeable result of the defendant's negligent act.

Simple Example: The Texting Driver

Dan texts while driving, runs a red light, and crashes into Paul's car.

• Foreseeable (Proximate Cause Exists): Paul breaks his leg in the crash. Dan is liable because physical injury in a collision is a direct, predictable outcome of running a red light.

• Unforeseeable (No Proximate Cause): Ten miles away, a pedestrian hears the distant crash, panics, drops an expensive vase, and sues Dan. Dan is not liable for the vase—that outcome is too remote and unpredictable to be proximately caused by Dan's driving.

Palsgraf v. The Long Island Railroad Company

A landmark $1928$ New York Court of Appeals case establishing proximate cause, holding that a defendant is not liable to a plaintiff who is outside the zone of foreseeable risk.

Professional Malpractice

A negligence claim against a professional (such as a doctor, lawyer, accountant, or engineer) judged against the standard of ordinary care expected of peers in that specific profession.

• Medical Malpractice: A surgeon operates on the wrong leg or leaves a surgical instrument inside a patient.

• Legal Malpractice: An attorney misses a mandatory court filing deadline, causing a client's valid lawsuit to be permanently dismissed.

• Accounting Malpractice: An accountant fails to follow standard auditing rules, missing major tax errors that lead to severe government penalties for the client.

Res Ipsa Loquitur

A special negligence doctrine meaning 'the thing speaks for itself,' applied when an injury does not ordinarily happen without negligence and the defendant held exclusive control over the instrumentality.

Negligence Per Se

A doctrine where the violation of a specific statute or local ordinance automatically proves a breach of the duty of care.

A city law sets a 15 mph speed limit in school zones to keep children safe from being struck by cars.

Dan drives 45 mph through the active school zone and strikes Paul, a student walking on the crosswalk.

Gross Negligence

Severe negligence characterized by extreme, reckless, or wanton conduct that far exceeds ordinary carelessness.

Concrete Example

A surgeon performs an abdominal operation.

• Ordinary Negligence: The surgeon uses an acceptable technique, but inadvertently cuts a minor blood vessel due to a momentary lapse in focus.

• Gross Negligence: The surgeon shows up to the operating room visibly intoxicated, ignores warnings from the surgical team, performs the procedure, and leaves a surgical towel inside the patient.

Attractive Nuisance Doctrine

A tort doctrine requiring landowners to exercise reasonable care to protect trespassing children from harm caused by hazardous conditions on the property, such as unfenced pools or junkyards.

Good Samaritan Laws

Statutes protecting medical personnel and rescuers who voluntarily render emergency assistance from ordinary negligence claims.

Dram Shop Acts

Statutes imposing civil liability on commercial establishments that serve alcohol to minors or visibly intoxicated persons who subsequently cause injury to third parties.

Assumption of the Risk

A defense to negligence claims where a plaintiff voluntarily and knowingly encountered a known risk inherent in an activity.

Implied Assumption of Risk (Inherent Hazards)

The risk is obvious and inherent to the activity itself, even if no contract or waiver was signed.

• Example (Baseball Game): Paul attends a Major League Baseball game and sits in an unshielded section near first base. During the 4th inning, a foul ball flies into the stands and breaks Paul's nose.

• Outcome: Paul sues the team for negligence. The court dismisses the case because foul balls are a known, inherent risk of sitting in an open stadium section, which Paul impliedly assumed by attending.

2. Express Assumption of Risk (Written/Verbal Waivers)

The plaintiff explicitly agrees—usually in writing—not to hold the defendant liable for injuries caused by inherent risks.

• Example (Skydiving Facility): Sarah signs a liability waiver before skydiving that states: "I understand skydiving involves serious risks including equipment malfunction and physical injury, and I voluntarily release the company from liability." She breaks her ankle upon landing on rough terrain.

• Outcome: Sarah sues the skydiving center. The center uses her signed waiver as an express assumption of risk defense to bar her recovery.

Contributory Negligence

A common law defense completely barring a plaintiff from recovering damages if their own negligence contributed in any way to their injury.

• What happened: A distracted driver hits a pedestrian who jaywalked across a busy street on a red light.

• The Fault: The driver was 90% at fault for staring at their phone, but the pedestrian was 10% at fault for crossing illegally.

• The Result: The injured pedestrian gets $0.

The 1% Rule: If you are even 1% at fault, you get nothing. It is an "all-or-nothing" rule.

Comparative Negligence

A doctrine where court damages are calculated and apportioned between plaintiff and defendant based on their relative percentages of fault.

• Damages: You have $100,000 in injuries.

• Fault: The jury finds you 20% at fault and the other driver 80% at fault.

• Payout: You get $80,000 ($100,000 minus your 20% share).

Partial Comparative Negligence

A comparative negligence rule where a plaintiff can recover damages only if found less than $50\%$ responsible; otherwise, recovery is entirely barred.

Actual Damages

Monetary compensation awarded to reimburse a plaintiff for personal injuries, pain and suffering, emotional distress, and property losses resulting from tortious conduct.

Punitive Damages

Damages awarded beyond actual losses to punish a defendant for intentional, fraudulent, or egregious conduct, deter future violations, and set a public example.

Strict Liability

Liability without fault, imposing legal responsibility for damages regardless of intent or lack of negligence, applied to abnormally dangerous activities and defective products.

Abnormally Dangerous Activities

High-risk activities not in common usage—such as storing explosives, blasting, crop dusting, or keeping wild animals—that subject participants to strict liability for resulting harm.

Greenman v. Yuba Power Products, Inc.

The $1963$ Supreme Court of California decision that first established strict liability in tort for product liability cases.

Chain of Distribution

The entities involved in bringing a product to market—including manufacturers, distributors or wholesalers, and retailers—all of which are strictly liable under product liability law.

Risk-Utility Test

A test used by courts in product liability cases weighing the gravity of potential danger against the likelihood of injury and the cost or availability of a safer alternative design.

Consumer Expectation Test

A defect evaluation test assessing whether a product performs as safely as an ordinary, reasonable consumer would expect.

Defect in Manufacture

A product defect occurring when a manufacturer fails to properly assemble, test, or check the quality of a specific product unit.

Defect in Design

A product defect occurring when a product is designed improperly, rendering the entire product line inherently unsafe.

Statute of Limitations

A statutory rule setting a maximum timeframe (commonly $1$ to $4$ years) from the date of injury within which an injured plaintiff must file a lawsuit.

Statute of Repose

A statute establishing an absolute outer time limit on seller or manufacturer liability, calculated from the date the product was originally sold regardless of when injury occurred.

General Aviation Revitalization Act (GARA)

A $1994$ federal law establishing an $18\text{-year}$ statute of repose protecting manufacturers of general aviation aircraft (civilian aircraft carrying fewer than $20$ passengers) and parts from tort suits.