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Tort
a civil wrong not arising from a break of contract, but a breach of legal duty that proximately causes harm or injury to another
it is designed to compensate those who have suffered injury or loss due to another’s actions
Purpose of Tort
to provide relief and remedies for the violations of protected interests
personal safety, physical injury or freedom of movement property
Damage vs. Damages
Damage- refers tot he harm or injury to person or property
Damages- refers to monetary compensation for such harm or injury
Types of Damages
Compensatory
Special Damages
General Damages
Punitive
Compensatory
to compensate or reimburse the plaintiff for actual loss or damage- to make whole
special damages
general damages
Special Damages
quantifiable loss
lost wages, medical expenses, replacement items
General Damages
nonquantifiable loss
pain and suffering, physical and emotional damage, loss in companionship, loss of consortium, disfigurement, loss of reputation
Punitive damages
punish the defendant or wrong doer and deter others
only reserved for truly bad or reprehensible behavior
usually involving intentional torts
used when a suit involves Gross Negligence
Excessive amounts may involve due process issues
Gross Negligence
intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another
Legislative caps on Damages
some states have limited the amount of damages that can be awarded for various claims
Battle of lobbyist- Insurance companies and trial attorneys
Medical Malpractice cases- limits even bans
250-500k non special damages
Two types of Torts
Intentional
Unintentional
Intentional Torts
Fault plus intent
throwing a punch during a fight
Unintentional
Fault without intent
negligence or breach of duty to act reasonable
acting wild and carelessly swinging your arms
Defenses for Torts
consent
comparative negligence
SOLs
Consent
When the plaintiff agrees to the act that caused an injury
no liability
most common
Comparative negligence
who was most at fault for the injury
assessing proper blame
SOLs (Statue of Limitations)
the time limits for being an action
Intentional Torts
the wrongful act knowingly committed
may be criminal
The Tortfeasor
must intend to commit the act in questions leading to damage
the one committing the act
Intent
means that the person intended the consequence of their actions or knew with substantial certainty that specific consequences would result from the actions
Transferred intent
when an individual intents to hurt one person but unintentionally hurts someone else
throwing a punch at person A but missing and striking person B
Categories of Intentional Torts
Assault
Battery
False Imprisonment
Intentional Infliction of Emotional Distress
Defamation
Invasion of Privacy
Fraudulent Misrepresentations
Abusive or Frivolous Litigation
Business Torts
Assault
is any intentional and unexcused threat of immediate harm or contact
no physical contact is needed just reasonable apprehension of imminent harm
Battery
is unexcused and harmful or offensive physical contact intentionally performed
physical injury not needed
Offensive- judged by reasonable person standard- just of fact
False Imprisonment
the intentional confinement or restraint of another’s person’s activity without justification
could involve physical barriers, physical restraint, or threats of physical violence
Common Issue- shoplifter- use reasonable force and probable cause
Consent negatives all liability
Intentional Infliction of Emotional Distress
acts that are so extreme and outrageous resulting in emotional distress
May be protected by free speech
Defamation
Involves the wrongful hurting of one’s character or reputation
The law imposes a general duty on all people to refrain from knowing making FALSE, DEFLAMATORY statements of fact about others
Libel- when done in written format
Slander- when done orally
Items needed to establish Defamation
the defendant made false statement of fact
about the plaintiff with the intent to cause harm
the statement was made to at least one other person
If the plaintiff is a public figure actual malice
Also needs
statement of fact
publication requirement
Statement of fact
general legal issue is the statement fact or opinion
Opinions generally protected under the 1st amendment
Mike is a cheater, liar, and criminal
I think Mike is a jackass
Publication Requirement
the statements need to be communicated to another person
3rd party merely by chance overhears the statement- probably not actionable (no publication)
Restating a publication can be actionable against both individuals
Watch for retweets and forwarding emails
Damages for Defamation
Libel (written)
Slander (spoken)
Slander per se
Libel (written)
if established general damages are presumed as a matter of law
Individuals can be compensated for nonspecific harms
disgrace or dishonor, humiliation, emotional distress
Need Not show harmed in a specific way
do not have quantify the harm suffered
Slander (spoken)
the plaintiff must establish special damages to recover
must show actual economic harm or money loss
Rational- loss is temporary and generally not as deliberate
Slander Per Se
if established does not require the plaintiff to establish special damages to recover
Four types or circumstances that give rise to Slander Per Se
Four types or circumstances that give rise to Slander Per Se
a person has a loathsome disease
sexually transmitted disease
a person has committed improprieties while engaged in a profession or trade
a person has committed or has been imprisoned for a serious crime
a person is promiscuous (gets around)
Defenses for Defamation
Privileged Communications
Public Figures
Privileged Communications
Absolute privileged- court proceeding or legislative hearings or debates
Qualified or conditional- good faith and publication is limited to those who have a legitimate interest in the communication
an employment evaluation, employment reference
Public Figures
Politicians, entertainers, athletes are regarded as “far game”
the plaintiff must show actual malice- a statement with either knowledge of it falsity or a reckless disregard for the truth
Rational- matter of public interest and means to correct absurdities
Invasion of Privacy
a person has a right to solitude and freedom from prying public eyes
the court had held there is implied right of privacy in the Constitution
to recover a person must establish a reasonable expectation of privacy and the invasion must be highly offensive
Four acts as Invasion of Privacy
Intrusion into an individual’s affairs or seclusions
breaking and entering an individuals home, accessing one’s laptop, wiretaps or eavesdropping, peeping tom
False light- publication of information that places an individual that places an individual in false light
attributing racial statements to an individual
Public disclosure of private facts that a private person would find objectionable or embarrassing
publication of medical or financial information- doesn’t matter if true
Appropriation of Identify- using a person’s name, image, or likeness for commercial purposes without permission
hiring a look like for advertising purposes
most states have codified the common law- but differ for which it may be used
videos or video games
naked singing cowboy
Fraudulent Misrepresentations
involves intentional deceit for personal gain
need a few things to recover
for fraud to occur- need more than Puffery- seller’s talk- requires knowledge of truth
Statement of Fact vs. Opinion
opinions are not actionable
Negligent misrepresentation- no knowledge of falsity
but defendant had a duty of care to supply correct information
Five things needed to recover fraudulent misrepresentations
misrepresentation of a false material fact/condition or reckless disregard for the truth
an intent to induce another party to rely on the misrepresentation
a justifiable reliance on the misrepresentation by the deceived party
damage suffered by the reliance
connection between the misrepresentation and injury suffered
Abusive or Frivolous Litigation
recognizes that people have the right not to be sued without legally just and proper reasons
Protects the right of
Malicious prosecution
Abuse of Process
Malicious Prosecution
if party sues with malicious and without legitimate legal reason and loses, they can then be sued
constantly bring frivolous claims
Abuse of Process
using the legal process against someone outside of the intended purpose as a form of punishment or harassment
does not require prior litigation or proving malice
consistent an unreasonable subpoenas or depositions
Business Torts
Involved wrongful interference with another’s business rights
public policy favors free competition
fall within 2 categories
wrongful interference with a contractual right
wrongful interference with a business relationship
Interference with a Contractual Right
valid contract between the two parties
3rd party must know of the contract
3rd party must intentionally induce a party of breach the contract
Interference with a business relations
unreasonably interfering with another’s business to gain a great market share
competitive vs. predatory behavior
International Torts Includes
trespass to real property- land or home
trespass to personal property- money, securities, cars
Conversion- use without authority
disparagement of property
Trespass to land Occurs when without permission any one of the following occurs
Entry upon the land by another
onto, above, or below the surface
Causes anything to enter onto the land by another
remains on land owned by another or permits anything to remain on the land
actual harm to the land is not essential- owners exclusive property
Establishing a Trespass
the owner or legal occupant of the land must establish the person as a trespasser
positing signs or asking an individual to leave
it can by implied- illegal act
Liability for harm
under common law liable for harm caused to the land and the trespasser could not sue the owner if injured
Today- owners has a reasonable duty of care and attractive nuisance doctrine to consider
owners can use reasonable force to remove trespassers
Defenses to Trespass
warranted or necessary- exigent circumstances
entering a building to help someone in danger
Licensee- invited on the land or ticket holders
are revocable
someone reading an electric meter
Trespass to personal property (Also known as Trespass to Chattel/personality)
unlawful taking or harming of another’s personal property; interference with another’s right to the exclusive possession of his or her personal property
harm can mean destruction or reduction in value, condition, or quality
also includes barring an owner access to the property
Exceptions mechanic liens, failure to retrieve
Conversion
any act that deprives an owner of personal property without the owners permission
If conversion occurs very often a trespass has occurred
original taking is trespass and failure to return is conversion
Conversion is the civil side of theft crimes
theft not necessary
borrowing and not returning
intention is not a defense
receiving stolen goods
Disparagement of Property
occurs when economically injurious falsehoods are made about another’s property
Two theories
Slander of Quality (trade libel)
Slander of title
Slander of Quality (Trade libel)
publication of false information about another’s product or alleging it cannot perform as the owner claims
the plaintiff must show that the improper publication caused a 3rd part to refrain from dealing with the plaintiff
must show economic harm
may also trigger a defamation of character claim
Slander of title
when a publication falsely denies or casts doubt on the other’s legal ownership of the property
someone publishes an untrue story about the ownership of another’s property with the intent to persuade others from dealing with the plaintiff
auto parts business- inventory is all stolen
Negligence
occurs when someone is injured because of another’s failure to live up to a duty of care
does not require intent
a person behavior creates the risk of injury
To succeed in a negligence action, the plaintiff must prove each of the following
Duty. The defendant owed a duty of care to the plaintiff.
Breach. The defendant breached that duty.
Causation. The defendant’s breach caused the plaintiff’s injury.
Damages. The plaintiff suffered a legally recognizable injury.
Duty of Care
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
In determining whether the duty of care has been breached, courts consider several factors
The nature of the act (whether it is outrageous or commonplace).
The manner in which the act was performed (cautiously versus heedlessly).
The nature of the injury (whether it is serious or slight).
Reasonable person standard
The standard of behavior expected of a hypothetical “reasonable person.” The standard against which negligence is measured and that must be observed to avoid liability for negligence
how would a reasonable prudent person act?
degree of care can vary based upon occupation or relationship to the plaintiff
decided on a case by case basis
Duty of landowners
landowners are expected to exercise reasonable care to protect individuals coming onto their land
may extend to trespassers
landowners who rent must keep renters safe
Duty to warn
business owners have a duty to exercise reasonable care to protect customers or business invitees
the business owner has a duty to discover and remove hidden damages that might injury a customer
wet caution signs
obvious risk provides an exception
Duty of Professionals
people who possess a superior knowledge, skill, or training are held to a higher standard of care
lawyers are held to a reasonable lawyer standard
if breached is considered malpractice
Causation
If a person breaches a duty of care and someone suffers injury, the person’s act must have caused the harm for it to constitute the tort of negligence
Two questions asked to determine Causation
Is there causation of fact?
Was the act the proximate, or legal, cause of the injury?
Both question must be answered to recover
Causation of fact
An act or omission without (“but for”) which an event would not have occurred
cause and effect- did the bad act cause the injury or would it have happened any way
Proximate cause (legal cause)
exists when the connection between an act and an injury is strong enough to justify imposing liability
was the injury foreseeable or remotely connected to the incident to trigger liability
Injury requirement
for the plaintiff to recover they must have suffered a legally recognizable injury
some loss, harm, wrong, or invasion to recover
carelessly bumping into someone
punitive damages- only recoverable
Good Samaritan laws
protect individuals from liability who aid voluntarily
these laws are passed to protect medical professional who volunteer in emergency situations
medical emergency on a plane
Dram Shop Acts
bar owners and bartender liable when intoxicated individuals cause injuries
social hosts statutes- people hosting parties may be liable for injuries caused by quests
overly intoxicated individuals
strict liability- if underage drinking
Two theories of defenses to Neglience
failed to establish a cause of action- did not meet one of the 4 elements
affirmative defenses
Assumption of the risk
superseding cause
contributory negligence
comparative negligence
Assumption of risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger
2 elements required
knowledge of the risk
voluntary assumption of the risk
skiing and skydiving, attending a baseball game
Superseding cause
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 theory in tort law under which a complaining party’s own negligence contributed to or caused his or her injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions
Comparative negliegence
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
pure form- allows the plaintiff to recover, even if the extent of his or her fault was greater than that of the defendant
if the plaintiff was 80 percent at fault and the defendant 20 percent at fault, the plaintiff can recover 20 percent of his or her damages
Most states use a 50-50 rule
that prevents the plaintiff from recovering any damages if she or he was more than 50 percent at fault
Strict Liability
liability without fault
cases with abnormally dangerous activities, animals, or defective products
Product Liability
legal liability of manufacturers, sellers, and lessors of goods to consumers for injuries or damages caused by the goods
Abnormally Dangerous Activity
the doctrine applies to situations because of the extreme risk of the activity
include blasting or storing explosives
even if extreme care is taken then is risk of injury
Demoing a building
Owning Animals may qualify
wild animals- Tiger or Lions
Some Domestic animals may qualify
danger or propensity to bite or attack
certain dog breeds may qualify
like pit bulls
The application of Strict liability to product liability depends on two things:
The manufacturer can better bear the cost of injury because it can spread the cost throughout society by increasing the prices of its goods.
The manufacturer is making a profit from its activities and therefore should bear the cost of injury as an operating expense.
rational is society is ensuring that manufacturer are not cutting corners and protecting innocent member of society
Product liability is based on Tort theories of:
Negligence
misrepresentation
strict liability
break of warranty
Negligence
failure to exercise a reasonable degree of care
If a manufacturer fails to exercise “due care” to make a product safe, a person who is injured by the product may sue the manufacturer for negligence
Manufacturers must use due care in all of the following areas
Designing the product.
Selecting the materials.
Using the appropriate production process.
Assembling and testing the product.
Placing adequate warnings on the label to inform the user of dangers of which an ordinary person might not be aware.
Inspecting and testing any purchased components used in the product.
Privity of Contract
The relationship that exists between the promisor and the promisee of a contract
is not required for product liability based on negligence
manufacturers or seller is liable for failure to exercise due care to anyone who sustains an injury caused by the negligent product
Cause in Fact
requires the showing that “but for” the defendant’s action would not have occurred
must be shown in any negligence case
Proximate Cause
focuses on the foreseeability of the consequences of the act
defective automobile cause an accident between vehicle A &B. Vehicle B crashes into a gas station’s gas pump causes an explosion damaging person C’s nearby home
is the car manufacturer responsible for the damage to C’s home? But for? Proximate cause?
Based on misrepresentation
when a defendant is injured as a result of a manufacturer’s or seller’s fraudulent misrepresentation is Tort of Fraud- made knowingly or with reckless regard for the facts
mislabeling of packages
intentional concealment of a product’s defect
The misrepresentation must be
a material fact
the seller must intend to induce the reliance on the misrepresentation
label or advertisement is enough to show an intent to induce
the plaintiff must show reliance on misrepresentation
Strict Product Liability as a matter of public policy
Consumers should be protected against unsafe products.
Manufacturers and distributors should not escape liability for faulty products simply because they are not in privity of contract with the ultimate user of those products.
Manufacturers and distributors can better bear the costs associated with injuries caused by their products, because they can ultimately pass the costs on to all consumers in the form of higher prices.
Six requirements of Strict Product Liability
The product must be in a defective condition when the defendant sells it.
The defendant must normally be engaged in the business of selling (or otherwise distributing) that product.
The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states).
The plaintiff must incur physical harm to self or property by use or consumption of the product.
The defective condition must be the proximate cause of the injury or damage.
The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.
plaintiff must not show how or why the product was defective, just that it was defective when sold and the defect made it unreasonable dangerous to user
Unreasonably Dangerous Products
it is understood that certain products cannot be made entirely safe for all users
hence only liable for unreasonably dangerous products
Test for Unreasonably Dangerous Products
The product was dangerous beyond the expectation of the ordinary consumer.
did they have reasonable knowledge of the danger of the product
A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.
could safety features have been added
Three types of product defects
Manufacturing
design
inadequate warning
Manufacturing Defect
when the product departs from its intended design even though all possible care was exercised in the preparation and marketing
departure from a products units design specifications that results in a product that flawed, damaged, or incorrectly assembled
defects occur when a manufacturer fails to assemble, test, or check a product
Quality Control
is essential but not defense to liability
rational behind strict liability in manufacturing is to encourage greater investment in product safety and stringent quality control
cannot be used as a defense
if you say 90% of products are checked you are still responsible for the other 10%
Design Defects
the product is made in conformity with specifications, but the product or design is defective
For Design Defect action a plaintiff must show
A reasonable alternative design was available.
As a result of the defendant’s failure to adopt the alternative design, the product was not reasonably safe.
Factors Considered in Design Defects
a court could consider a wide range of factors in deciding design cases
magnitude and probability of risk, advantages and disadvantages of product before and after adjustment to the design
Risk-Utility Analysis
court examines the risk of harm from the product as designed outweighs its utility to the user or public
Note
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