Ch 10 Flashcards
3 main categories of torts
1 intentional torts
2 negligence torts
3 strict liability torts
Tortfeasor
One who commits a tort
Intentional torts
Involve deliberate actions that cause injury
Negligence torts
Involve injury following failure to use reasonable care
Strict liability torts
Impose legal responsibility for injury even though neither
Intentionally nor negligently causes injury
Intent
Desire to bring about certain results
Results that are substantially likely to result from an action
Battery
Employers who knowingly exposed employees to toxic substances without warning them of the dangers
These injuries were substantially likely to result from
Failure to warn
9 types of intentional torts
1 assault and battery 2 intentional infliction of mental distress 3 invasion of privacy 4 false imprisonment and malicious prosecution 5 trespass 6 conversion 7 defamation 8 fraud 9 common law business torts
Apprehension
Expectation that one is about to be physically injured
Assault
Pacing of another in immediate apprehension for his or
Her physical safety
Battery: definition
Illegal touching of another
Example of both battery and assault
Store manager who unpleasantly threatens a customer with a wrench is guilty of assault
Actually hits them with the wrench is guilty of battery
Intentional infliction of mental distress
Battery to emotions
Arises from outrageous, intentional conduct that carries
Strong probability of causing mental distress to person
Whom directed at
Intentional infliction of mental distress, 2 most common examples
Employees who’ve been discriminated against or fired
Intentional infliction of mental distress: 2 symptoms that show it
Sleeplessness and headaches
Intentional infliction of mental distress: business world example
Creditors calling their debtors to extract payment in
Frequent, abusive, threatening phone calls
Invasion of privacy, most common invasion of privacy
1 using plaintiffs name or likeness for own use (ex. Marketers
Required to pay damages to individuals when pictures
Of them are used without authorization)
Advertiser must obtain proper release from person to avoid liability
Invasion of privacy: defendant’s intrusion of plaintiff’s physical solitude 4 examples
1) illegal searches
2 invasions of home/possessions
3 illegal wire tapping
4 unwanted telephoning
Invasion of privacy: defendant’s public disclosure of highly objectionable information about plaintiff example
Publishing facts that plaintiff doesn’t pay debts even if info
Is true, is damaging to plaintiffs reputation creating liability
Communicating the same facts to a credit reporting
Agency is not seen as a liability
False imprisonment, define, when is it most commonly used?
Intentional unjustified confinement of nonconsenting person
Most commonly used for shoplifting
Malicious prosecution
False arrest
Someone to be arrested criminally without proper grounds
Trespass, define, examples
Enter another’s land without consent or remain there after
Being asked to leave
Ex. Union pickets walking on company property, customers leaving store after being asked to do so
Conversion
Wrongful exercise of dominion (power) + control over
Personal (non land) resources that belong to another
Ex. Stealing from an employer, purchasing something
That’s been stolen, failing to return something at the
Designated time, destruction/alteration of what belongs
To others, delivering something to the wrong party
Defamation
Publication of untrue statements about another that hold
Up that individual’s character or reputation to contempt
Or ridicule
Slander
Oral defamation
Libel
Written defamation or defamation published over radio
Or television
Who can sue for defamation?
Individuals and corporations
Defamation and the first amendment
News media can only be sue for knowly printing false
statements (malice) or being reckless
Fraud
Intentional misrepresentation of material fact that’s justifiably
Relied upon by someone to his or her injury
Common business frauds
Involve intentional misrepresentation of property or financial
Status
Lying about assets or liabilities to get credit/loan
Failure to disclose
Fraud where defendant is under legal duty to disclose fact
Ex. Defendant seller knows foundations of house are weakened by termites and must disclose this to buyer
When a tort is a crime
Intentionally harm others
Fraud and corporate governance
When publically traded companies distort their financial
Statements it harms investors
Investors pay higher prices for stock, that corporate officers
Get out of
Common law business torts: injurious falsehood AKA trade disparagement
Publication of untrue statements that disparate business
Owner’s product or it’s quality
In disparagement cases plaintiff must establish falsity of
Defendant’s statements and show actual damages arising
From untrue statements
Common law business torts: intentional interference with contractual relations
One company raids another for employees
Negligence
Unreasonable behavior that causes injury
5 elements of negligence
1 existence of duty of care owed by defendant to plaintiff
2 unreasonable behavior by defendant that breaches duty
3 causation in fact
4 proximate causation
5 an actual injury
Duty, duty to take action
Critical element of negligence tort
Special duty relationship of Owing person reasonable care
Ex. Business renting surfboards at the beach would be liable for renting board to a customer who was attacked by a shark if it knew the shark was nearby and failed to warn the customer
Malpractice
Negligence of professionals
Willful and wanton negligence
Special type of aggravated negligence where defendant
Shows extreme lack of due care
Ex. Injuries inflicted by drunk drivers
Cause in fact
In negligence suit the plaintiff must prove that the defendant
Actually caused the injury
Proximate cause AKA Legal cause
Proposition that those engaged in activity are legally liable
Only for foreseeable risk that they cause
Ex. BP promised to pay $20 billion but only paid 1/5th of it, claimants are having trouble showing that a falloff in business miles inland is directly caused by oil spill instead of poor business practice
Affirmative defenses
Defendant must raise these defenses to take advantage
Of them
Must be raised in defenses to negligence
2 principal defenses to an allegation of negligence
1 contributory negligence
2 assumption of risk
Contributory negligence defense
Absolutely barred the plaintiff from recovery if plaintiff's Own fault (even slightly) contributed to injury
Comparative responsibility AKA Comparative negligence AKA Comparative fault
Doesn’t bar recovery
Compares plaintiff’s fault with defendant’s and reduces
The damage award proportionately
Assumption-of risk defense
Arises from plaintiff’s knowing and willing undertaking of
Activity made dangerous from negligence of another
Ex. Getting struck by hockey puck at hockey games, owners of hockey team have successfully used this defense
Strict products liability
For commercial sale of defective products sold by retail,
Whole sale or manufacturing seller
Relates to unreasonably dangerous defect product that
Causes injury
Ex. Defective brakes, cause injury in car accident
Strict products liability: 2 kinds of defects
1 production defects
2 design defects
Production defects
Arise when products aren’t manufactured to manufacturers
Own standards
Ex. Defective brakes on a new car, clam chowder where a diner found a condom
Design defects
When product is manufactured to manufacturer’s standards,
But product injures user due to its unsafe design
State of the art
Prevailing industry standards at time of product manufacture
Statute of repose
Period following product of sale after which plaintiffs would
Lose their rights to bring suits to product-related injuries
Ultra hazardous activity
Transporting and using explosives, poisons, keeping
Dangerous wild animals, keeping large volumes of liquids
Dram shop acts
Injuries to third parties of business owners caused by
Intoxicated patrons
Common carriers, transportation companies licensed to serve the public are also…
Strictly liable for damage to goods carried by them
6 types Compensatory damages that follow for injury
1 past and future medical expenses 2 past and future economic loss (including property damage Loss of earning power) 3 past and future pain and suffering 4 loss of limb 5 ruined marriage 6 mental distress
Punitive damages AKA Exemplary damages
Arise from intentional torts or extreme willful and wanton negligence
Motive must be malicious, fraudulent or evil
