Ch. 4 Flashcards
Some torts, like assault and trespassing originated in the….
English common law
Many of the lawsuits brought by or against business firms are based on the
Tort theories
Business tort
Wrongful interference with another’s business Rights and relationships. Also Include vague concepts like unfair competition and wrongfully interfering with the business relations of another.
Cyber tort
A tort committed via the Internet
To notions serve as the basis of all torts:
Wrongs and compensation
Tort law is designed to
Compensate those who have suffered a loss or injury due to another person’s wrongful act
Damages
Monetary award sought as a remedy for a breach of contract or a tortuous action
The purpose of tort law
To provide remedies for the invasion of various protected interests
Compensatory damages
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party
Special damages
Compensate the plaintiff for quantifiable monetary losses like medical expenses, lost wages and benefits, extra costs, loss of your replaceable items etc.
General damages
Compensate individuals (not companies) for nonmonetary aspects such as pain and suffering
Punitive damages
Monetary damages that may be awarded to the plaintiff to punish the defendant and deter similar conduct in the future
Punitive damages are available mainly in
Intentional tort actions
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
Measures to reduce the number of tort cases include
- limiting the amount of punitive damages and general damages that can be awarded
- Capping the amount that attorneys can collect in contingency fees
- Requiring the losing party to pay both the plaintiff and the defendant’s expenses
Forum shopping
Looking for a state court known to be sympathetic to their clients cause and predisposed to award large damages
Two broad classifications of torts
- Intentional torts
2. Unintentional torts (Torts involving negligence)
Intentional tort
A wrongful act knowingly committed
Tortfeasor
One who commits a tort
Assault
Any word or action intended to make another person fearful of immediate physical harm – a reasonably believable threat
Battery
Unexcused, harmful or offensive, physical contact with another that is intentionally performed
Defense
A reason offered in alleged by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks
The reasonable person standard
And objective test of how a reasonable person would have acted under the same circumstances
False imprisonment
The intentional confinement or restraint of another person’s activities without justification
Actionable
Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action
Intentional infliction of emotional distress
An extreme and outrageous act, intentionally committed, that results in severe emotional distress to another.
Defamation
Anything published or publicly spoken that causes injury to another’s good name, reputation, or character
Libel
Defamation in writing or another form having the quality of permanence. Such as a digital recording
Slander
Defamation in an oral form
The following four types of false utterances are considered to be slander per se
- A statement that another has a loathsome disease
- A statement that another has committed improprieties while engaging in a business, profession, or trade
- A statement that another has committed or has been imprisoned for a serious crime
- A statement that a person is unchaste or has engaged in serious sexual misconduct
Privilege
A special right, advantage, or immunity granted to a person or a class of persons, such as the judges absolute privilege to avoid liability for defamation over statements made in the court room during a trial.
Two types of privileged communications
- Absolute
2. Qualified
An example of absolute privileges
Statements made in a court room by attorneys and judges during a trial
An example of qualified privilege
An employer’s statements in written evaluations of employees
Actual malice
Deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth. Required to establish defamation against public figures
Appropriation
The use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user
Fraudulent misrepresentation
Any misrepresentation, either by misstatement or by 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.
Puffery
A sales person’s often exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties
Three elements that are necessary for wrongful interference with a contractual relationship to occur
- Invalid, enforceable contract must exist between two parties
- A third-party must know that the contract exists
- The third-party must intentionally induce a party to breach the contract
Real property
Land and things “permanently” attached to the land
Personal property
All other items, which are basically movable. For example furniture, cash, Stocks, and bonds
Trespass to land
Entry onto, above, or below the surface of land owned by another without the owners permission or legal authorization
Trespass to personal property
Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owners possession of personal property
Conversion
Wrongfully taking or retaining possession of an individual’s personal property and placing it in the service of another
Disparagement of property
An economically injurious false hood about another’s product or property
Slander of quality (trade libel)
The publication of false information about another’s product, alleging that it is not worth what its seller claims
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 the property’s owner
Negligence
Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances
To succeed any negligence action the plaintiff must prove each of the following:
- Duty. That the defendant owed a duty of care to the plaintiff
- Breach. That the defendant breached that duty
- Causation. That the defendants breach cause the plaintiffs injury
- Damages. That 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.
Business invitee
A person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes
Malpractice
Professional misconduct or the lack of the requisite degree of skill as a professional.
Causation in fact
An act or omission without which an event would not have occurred.
Tort
A wrongful action
Proximate case
Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.
Assumption of risk
A defense to negligence. A plaintiff may not recover for injuries or damage suffered from risks he or she knows of and has voluntarily assumed.
Contributory negligence
A rule in tort law, used in only a few states but completely bars the plaintiff from covering any damages if the damage suffered is partly the plaintiffs own fault
Comparative negligence
A rule in tort law, used in the majority of states that reduces the plaintiffs recovery in proportion to the plaintiffs degree of fault, rather than barring recovery completely
Res Ipsa Loquitur
Meaning “The facts speak for themselves”, a doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence
Negligence per se
Per se meaning “in or of itself”. An action or failure to act in violation of a statutory requirement
Good Samaritan statutes
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.
Dram shop act
A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks the public, for injuries resulting from accidents caused by intoxicated persons.
Strict liability
Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods
