Ch 5 - Tort Law Flashcards

Question

What is a defense?

Answer 1

A reason offered by a defendant as to why the plaintiff should not recover damages.

Answer 2

B.) False Only the action needs to be intended - the natural consequence of the act is the possibility of injury ex. Jack pulling the chair out behind Bob as a joke - Bob needs surgery, Jack is liable for an intentional tort

Answer 3

1. ) Tortfeasor must intend to commit an act 2. ) Consequences interfere with the interests of another. 3. ) Evil/harmful motive not required.

Answer 4

Any word or action intended to make another person fearful of immediate physical harm-- a reasonably believable threat. No motive is necessary, and the plaintiff can be compensated for emotional harm. If you don't actually see the threat, then it is not an assault - you didn't know it was coming. Example from class of getting punched in the head while turned away.

Answer 5

Physical contact with another that is unexcused, harmful or offensive, and intentionally performed. A physical injury does not need to occur. Example: Ivan threatens Jean with a gun and then shoots her. The pointing of the gun at Jean is an assault. The firing of the gun (if the bullet hits Jean) is a battery.

Answer 6

B.) False Only a perceived threat or fear is necessary for there to be an assault. A battery, on the other hand, requires physical contact.

Answer 7

No, physical injury is not required.

Answer 8

The intentional confinement or restraint of another person's activities without justification. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force.

Answer 9

Businesspersons may face suits for false imprisonment after they have attempted to confine a suspected shoplifter for questioning. Under the “privilege to detain” granted to merchants in most states, a merchant can use reasonable force to detain or delay a person suspected of shoplifting the merchant’s property. Although the details of the privilege vary from state to state, generally laws require that any detention be conducted in a reasonable manner and for only a reasonable length of time. Undue force or unreasonable detention can lead to liability for the business.

Answer 10

Extreme and outrageous conduct resulting in severe emotional distress to another. To be actionable (capable of serving as the ground for a lawsuit), the conduct must be so extreme and outrageous that it exceeds the bounds of decency accepted by society. Example: A father attacks a man who has had consensual sexual relations with the father’s nineteen-year-old daughter. The father handcuffs the man to a steel pole and threatens to kill him unless he leaves town immediately. The father’s conduct may be sufficiently extreme and outrageous to be actionable as an intentional infliction of emotional distress.

Answer 11

The First Amendment - Freedom of Speech This is limited in the case of public figures. Example: Hustler magazine once printed a fake advertisement that showed a picture of the Reverend Jerry Falwell and described him as having lost his virginity to his mother in an outhouse while he was drunk. Falwell sued the magazine for intentional infliction of emotional distress and won, but the United States Supreme Court overturned the decision. The Court held that creators of parodies of public figures are protected under the First Amendment from claims of intentional infliction of emotional distress. (The Court applied the same standards that apply to public figures in defamation lawsuits)

Answer 12

Anything published or publicly spoken that causes injury to another’s good name, reputation, or character.

Answer 13

Libel and slander

Answer 14

Defamation in writing or another permanent form (such as a digital recording).

Answer 15

Defamation in oral form (spoken).

Answer 16

1. ) The defendant made a false statement of fact. 2. ) The statement was understood as being about the plaintiff and tended to harm the plaintiff’s reputation. 3. ) The statement was published to at least one person other than the plaintiff. 4. ) In addition, if the plaintiff is a public figure, she or he must prove actual malice.

Answer 17

Statements of opinion normally are not actionable because they are protected under the First Amendment. In other words, making a negative statement about another person is not defamation unless the statement is false and represents something as a fact. Example: Vickie’s statement “Lane cheats on his taxes,” if false, can lead to liability for defamation because it is a statement of fact. The statement “Lane is a jerk” cannot constitute defamation because it is clearly an opinion.

Answer 18

Publication means that at least one other person heard or saw the statement. Otherwise, it cannot be considered defamation.

Answer 19

The truth - absolute defense to defamation i.e. they did say it, therefore it's a defense to slander. Privileged communications/privilege to speak - i.e. something stated in court, good faith work document - thought to be the truth when spoken. Public figures are considered fair game, and false and defamatory statements about them that appear in the media will not constitute defamation unless the statements are made with actual malice.

Answer 20

A person has a right to solitude and freedom from prying public eyes—in other words, to privacy. This right is implied by multiple amendments in the U.S. Constitution, but not actually stated.

Answer 21

1. An expectation of privacy and | 2. Highly offensive invasion

Answer 22

The use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the other. i.e. Company uses a person to mimic Morgan Freeman’s voice in their commercials, and they act as though Freeman is endorsing their products. Morgan Freeman can sue for the tort of appropriation.

Answer 23

Any misrepresentation (misstatement or omission) of material fact, knowingly made with intent to deceive another and on which a reasonable person would and does rely on to his or her detriment. --> Intentional deceit for personal gain.

Answer 24

A salesperson’s 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. Puffery vs. Fraud i.e. this is the best used car in town v. this car has never been in an accident (if it has)

Answer 25

Statement of Fact vs. a Statement of Opinion | i.e. this car has 70,000 miles vs. this is the best used car in town

Answer 26

Misrepresentation negligently made (not fraud). Typically occurs when a person owes a duty to another to give correct information. Lazy, not paying attention to professional standards – can still be sued for this but it is not as bad as being sued for defrauding.

Answer 27

1. ) Valid, enforceable contract exists between two parties. 2. ) Third-party knows about contract. 3. ) Third-party intentionally causes either party to breach the original contract. Example: Anne hires Berta on contract for 3 years Anne pays Berta $100,000 a year ``` Chris wants Berta  going to pay 125,000 a year Berta says she’s already In a contract Chris will not take no for an answer Offers $150,000 Now Berta says yes ``` Anne can sue Berta for breach of contract Anne can sue Chris for tort of wrongful interference with a contractual relationship

Answer 28

- Distinguish competition vs. predatory behavior. Predatory behavior is unlawfully driving competitors out of the market. - To prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and products Example: Sell smoothies Advertise for 50% a smoothie Not selling The other smoothie place is selling better Goes over and hands out coupons by another smoothie shop This is predatory marketing The other smoothie place can sue for wrongful interference - Must be able to show that only their customers were being targeted - And they were damaged as a result

Answer 29

Interference was justified or permissible (bona fide competitive behavior). Example: If Antonio’s Meats advertises so effectively that it induces Sam’s Restaurant to break its contract with Burke’s Meat Company, Burke’s will be unable to recover against Antonio’s Meats on a wrongful interference theory. After all, the public policy that favors free competition in advertising outweighs any possible instability that such competitive activity might cause in contractual relations.

Answer 30

Wrongful actions that interfere with individuals’ legally recognized rights with regard to their land or personal property.

Answer 31

Land and anything permanently affixed thereto.

Answer 32

Movable property.

Answer 33

Occurs when a person, without permission: 1. ) Enters onto, above, or below the surface of land owned by another 2. ) Causes anything to enter onto land owned by another 3. ) Remains on land owned by another or permits anything to remain on it

Answer 34

B.) False Actual harm to the land is not required.

Answer 35

- "Posting" - Trespass signs - The person on the property intends to commit a crime - Damages

Answer 36

The reasonable duty of care standard - landowner may be liable for injuries sustained by trespassers.

Answer 37

If it looks fun to a kid, we must take extra precautions because you can still be sued if the kid gets hurt.

Answer 38

The trespass war warranted. - Trespasser entered the property to assist someone in danger. - License to come onto the land i.e. reading an electric meter - --- licenses are revocable by the property owner at any time.

Answer 39

Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner’s possession of personal property. i.e. Roommate’s car won’t start and you are still sleeping so he takes your car keys and heads to campus. You miss your final exam.

Answer 40

Wrongfully taking or retaining possession of an individual’s personal property and placing it in the service of another (civil theft). i.e. The same roommate is going to be academically suspended and takes your car home to Ohio, not planning to return

Answer 41

In conversion, there is a failure to ever return the goods. In other words, the property is fully converted over.

Answer 42

Yes, good intentions are not a defense against conversion. Example: Someone who buys stolen goods, for instance, can be sued for conversion even if he or she did not know that the goods were stolen. If the true owner of the goods sues the buyer and wins, the buyer must either return the property to the owner or pay the owner the full value of the property.

Answer 43

Occurs when economically injurious falsehoods are made about another’s product or property, rather than about another’s reputation (as in the tort of defamation). Slander of quality or slander of title

Answer 44

(trade libel): a false statement about another’s product that caused a third party to refrain from dealing with the plaintiff, causing financial loss. i.e. competitor shoe store falsely accuses (and newspaper publishes story) that ABC Shoes sells shoes counterfeit goods (slander of quality) that are stolen (slander of title)

Answer 45

False statement about legal ownership of another’s product resulting in financial loss. For instance, a car dealer would have difficulty attracting customers if competitors publish a notice that the dealer’s stock consists of stolen automobiles. Somebody says you don't own it when you do.

Answer 46

Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

Answer 47

Duty – defendant owed a duty of care to the plaintiff Breach – defendant breached the duty Causation – defendant's breach caused the injury Damages – plaintiff suffered a legally recognizable injury

Answer 48

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.

Answer 49

1. ) The nature of the act (whether it is outrageous or commonplace). 2. ) The manner in which the act was performed (cautiously versus heedlessly). 3. ) The nature of the injury (whether it is serious or slight).

Answer 50

To warn business invitees of risks - warning signs Obvious risks are an exception

Answer 51

Professionals—such as physicians, dentists, architects, engineers, accountants, and lawyers—are required to have a standard minimum level of special knowledge and ability The law takes their training and expertise into account. If a professional violates her or his duty of care toward a client, the professional may be sued for malpractice, which is essentially professional negligence.

Answer 52

How a person should act. The standard of behavior expected of a hypothetical “reasonable person.” It is the standard against which negligence is measured and that must be observed to avoid liability for negligence. To determine whether a duty of care has been breached, courts ask how a reasonable person would have acted in the same circumstances.

Answer 53

Professional misconduct or the lack of the requisite degree of skill as a professional. Negligence on the part of a professional, such as a physician, is commonly referred to as malpractice

Answer 54

An act or omission without which an event would not have occurred. The "but for" test - But for your actions, this wouldn't have happened!!

Answer 55

1. ) Is there causation in fact? - "But for" test | 2. ) Was the act the proximate cause of the injury? - Was it foreseeable?

Answer 56

Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability. - -> Was it foreseeable that the injury might result from that action? If so, then you might have a proximate cause. - -> Think the Palsgraf v. Long Island Railroad Co. case

Answer 57

Have suffered a legally recognizable injury. If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists. Example: If you carelessly bump into a passerby, who stumbles and falls as a result, you may be liable in tort if the passerby is injured in the fall. If the person is unharmed, however, there normally cannot be a suit for damages because no injury was suffered.

Answer 58

have suffered some loss, harm, wrong, or invasion of a protected interest. If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists. Example: If you carelessly bump into a passerby, who stumbles and falls as a result, you may be liable in tort if the passerby is injured in the fall. If the person is unharmed, however, there normally cannot be a suit for damages because no injury was suffered.

Answer 59

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 and cause further harm.

Answer 60

A state statute that imposes liability on bar owners, as well as bartenders and social hosts who serve alcohol, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication. Example: Monica hosts a Super Bowl party at which Brett, a minor, sneaks alcoholic drinks. Monica is potentially liable for damages resulting from Brett’s drunk driving after the party, even if she was not negligent in serving the alcoholic beverages.

Answer 61

1. ) assumption of risk, 2. ) superseding cause, and 3. ) contributory and comparative negligence.

Answer 62

The person had knowledge of the risk and voluntarily assumes that risk. A person at a baseball game assumes the risk of getting hit by a foul ball.

Answer 63

An unforeseeable intervening event may break the connection between a wrongful act and an injury to another. An unforeseeable intervening event may break the connection between a wrongful act and an injury to another. Example: While riding his bicycle, Derrick negligently hits Julie, who is walking on the sidewalk. As a result of the impact, Julie falls and fractures her hip. While she is waiting for help to arrive, a small plane crashes nearby and explodes, and some of the fiery debris hits her, causing her to sustain severe burns. Derrick will be liable for Julie’s fractured hip because the risk of hitting her with his bicycle was foreseeable. Normally, though, Derrick will not be liable for the burns caused by the plane crash, because the risk of a plane’s crashing nearby and injuring Julie was not foreseeable. Can also think of the weird golfer example - getting struck by lightning

Answer 64

A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the harm suffered is partly the plaintiff’s own fault. If both are partially at fault. no one recovers any damages.

Answer 65

A rule in tort law, used in the majority of states, that reduces the plaintiff’s recovery in proportion to the plaintiff’s degree of fault, rather than barring recovery completely. Damages determined based on % of the negligence of each party - Pure Form - plaintiff recovers percent that the other party was at fault - 50% Rule - the plaintiff may not recover if more than 50% at fault

Answer 66

10% x $10,000 = $1,000 Pure Form – plaintiff recovers the percent that the other party was at fault

Answer 67

$0 Contributory negligence: the doctrine that completely bars a plaintiff from recovering damages if the plaintiff is at all at fault

Answer 68

$0 He is more than 50% at fault. Calculate just as you do in pure form, but if you are more than 50% at fault, you do not recover any damages.

Answer 69

90% x $1,000 = $900 Pure Form – plaintiff recovers the percent that the other party was at fault

Answer 70

$0 Contributory negligence: the doctrine that completely bars a plaintiff from recovering damages if the plaintiff is at all at fault

Answer 71

She is less than 50% at fault, therefore, she gets the percent of damages that she did not cause: 90% x $1,000 = $900 Calculate just as you do in pure form, but if you are more than 50% at fault, you do not recover any damages.

Answer 72

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 Liability without fault. - Abnormally Dangerous Activities - Wild Animals - Product Liability Example: ABC inc. builds demolition, using explosives to demolish a building - Something went wrong and someone was injured - Even though we did exactly what we should have - Because we’re engaged in dangerous activities, we are liable