Ch 5 - Tort Law Flashcards
The case that most often gets mentioned in a discussion about punitive damages is:
A.) Brown v. Board of Education.
B.) Medtronic v. Hughes
C.) Rawls v. Progressive Northern Insurance
D.) Liebeck v. McDonalds Restaurants
D.) Liebeck v. McDonalds Restaurants
Fifi, a clerk at a Games n’ Gamers store, permanently takes a video game player and a selection of new games from the store without permission. Fifi is liable for
A.) wrongful interference with a business relationship.
B.) no tort - only a crime.
C.) conversion.
D.) appropriation.
C.) conversion.
Elise, an emergency medical technician is driving down the road and notices that a jogger needs medical assistance. Elise calls 9-1-1 and gets out to help. Even if Elise makes a mistake rendering aid, she is likely immune from liability under
A.) an applicable Good Samaritan statute.
B.) exception theory.
C.) dram shop legislation.
D.) the doctrine of res ipsa loquitur.
A.) an applicable Good Samaritan statute.
Logistics Trucking Company operates a fleet of fuel trucks. When one of the trucks is positioned to receive a load of biofuel, it accidentally strikes a storage tank owned by Metro Biofuel, Inc. For the cost of repairing the damage to the tank, Metro is most likely to be awarded
A.) compensatory damages.
B.) contingency fees.
C.) punitive damages.
D.) all of the above.
A.) compensatory damages.
Jim is an appliance salesperson. To make a sale, he asserts that a certain model of a Kitchen Helper refrigerator is the “best one ever made.” This is
A.) fraud if the statement is the truth.
B.) fraud if Jim believes that this statement is not true.
C.) fraud if Jim is stating his opinion, not the facts.
D.) not fraud.
D.) not fraud.
Jess, an accountant, posts a message on social media that states her competitor Kelly has been convicted of theft. Which of the following statements, taken by itself, would most likely make Jess liable for the tort of defamation
A.) Kelly sees this information on social media.
B.) the statement is false.
C.) Kelly loses business.
D.) Kelly suffers emotional distress.
B.) the statement is false.
A defamatory statement must be communicated to a third party to be actionable.
A.) True
B.) False
A.) True
To commit an intentional tort, a person must have an evil or harmful motive.
A.) True
B.) False
B.) False
Under the doctrine of comparative negligence, only the defendant’s negligence is taken into consideration.
A.) True
B.) False
B.) False
Manuel is walking past Thomas’s house when he hears a smoke alarm going off. He also hears a child calling for help and sees smoke coming from a window. Manuel ignores the “no trespassing” sign and rushes into Thomas’s house, finds the child and brings the child outside. Manuel
A.) trespassed, but has a valid defense for doing so.
B.) trespassed, and does not have a valid defense.
C.) disparaged the property.
D.) did not trespass.
A.) trespassed, but has a valid defense for doing so.
What is a tort?
A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability.
The way someone is able to sue if someone else has wronged them.
What is the purpose of tort law?
To compensate those who have suffered a loss or injury due to another person’s wrongful act. - Make the plaintiff whole again.
Society recognizes an interest in:
- Personal physical safety
- Protecting property
What are compensatory damages?
Monetary damages equivalent to the actual value of injuries or damage sustained by the aggrieved party.
What are the two types of compensatory damages?
Special and General
What are special compensatory damages?
Quantifiable damages
i.e. wages, medical expenses, car repairs
What are general compensatory damages?
Non-monetary damages - difficult to put a number on
i.e. chronic back pain, emotional distress, loss of a loved one
What are punitive damages?
Monetary damages awarded to punish the defendant and deter similar conduct.
Courts exercise great restraint in granting punitive damages to plaintiffs in court actions because punitive damages are subject to the limitations imposed by the due process clause of the U.S. Constitution.
What are legislative caps?
Limits on the amount of damages - punitive and general - that states can award to the plaintiff.
“Tort Reform”
In addition to legislative caps, requiring the losing party to pay both expenses is another form of tort reform.
What are the 3 classifications of tort?
- Intentional Tort
- Unintentional Tort - Negligence
- Strict Liability
What is an intentional tort?
A wrongful act knowingly committed.
What is an unintentional tort?
An act that fails to live up to a required duty of care.
- Negligence
What is strict liability?
Liability regardless of fault (imposed on those engaged in abnormally dangerous activities)
What is a tortfeasor?
The person who commits a tort.
What are some defenses the defendant can raise as reasons why the plaintiff should not obtain damages in a case involving a tort?
Consent - When a person consents to the act that damages her or him, there is generally no tort liability.
Comparative Negligence
Statute of limitations - The time limit (often 2 years from the date of discovering the harm) within which a particular type of lawsuit can be filed. After that time period, the plaintiff can no longer file a claim.
What is a defense?
A reason offered by a defendant as to why the plaintiff should not recover damages.
Evil/harmful motive is required in an intentional tort.
A.) True
B.) False
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
The 3 factors in intentional torts:
- ) Tortfeasor must intend to commit an act
- ) Consequences interfere with the interests of another.
- ) Evil/harmful motive not required.
What is an assault?
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.
What is a battery?
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.
An assault requires physical contact.
A.) True
B.) False
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.
Does a battery require there to be a physical injury as a result of the physical contact?
No, physical injury is not required.
A person can be charged with both assault and battery simultaneously.
A.) True
B.) False
A.) True
What is false imprisonment?
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.
What is a reasonable force under false imprisonment?
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.
What is the intentional infliction of emotional distress?
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.
What amendment is the intentional infliction of emotional distress limited by?
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)
What is defamation?
Anything published or publicly spoken that causes injury to another’s good name, reputation, or character.
What are the two types of defamation?
Libel and slander
What is libel?
Defamation in writing or another permanent form (such as a digital recording).
What is slander?
Defamation in oral form (spoken).
To establish defamation, a plaintiff normally must prove the following:
- ) The defendant made a false statement of fact.
- ) The statement was understood as being about the plaintiff and tended to harm the plaintiff’s reputation.
- ) The statement was published to at least one person other than the plaintiff.
- ) In addition, if the plaintiff is a public figure, she or he must prove actual malice.
What is a statement of fact vs. a statement of opinion in regards to defamation?
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.
What is the requirement of publication in regards to defamation?
Publication means that at least one other person heard or saw the statement. Otherwise, it cannot be considered defamation.
What are the defenses to defamation?
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.
What is the right to privacy?
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.
To have an invasion of the right to privacy, there must be:
- An expectation of privacy and
2. Highly offensive invasion
What is appropriation?
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.
What is fraudulent misrepresentation (Fraud)?
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.
What is puffery?
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)
What is a statement of fact vs. a statement of opinion in regards to fraud?
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
What is negligent misrepresentation?
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.
What is wrongful interference with a contractual relationship?
- ) Valid, enforceable contract exists between two parties.
- ) Third-party knows about contract.
- ) 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
What is wrongful interference with a business relationship?
- 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
What are defenses to wrongful interference?
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.
What are intentional torts against property?
Wrongful actions that interfere with individuals’ legally recognized rights with regard to their land or personal property.
What is considered real property?
Land and anything permanently affixed thereto.
What is considered personal property?
Movable property.
What is trespass to land?
Occurs when a person, without permission:
- ) Enters onto, above, or below the surface of land owned by another
- ) Causes anything to enter onto land owned by another
- ) Remains on land owned by another or permits anything to remain on it
Harm to the land is required to be considered trespass to land.
A.) True
B.) False
B.) False
Actual harm to the land is not required.
Before a person can be a trespasser, the real property owner must establish that person as a trespasser. How will they do this?
- “Posting” - Trespass signs
- The person on the property intends to commit a crime
- Damages
What is the liability for harm regarding trespassing?
The reasonable duty of care standard - landowner may be liable for injuries sustained by trespassers.
What is an attractive nuisance?
If it looks fun to a kid, we must take extra precautions because you can still be sued if the kid gets hurt.
What are the defenses to trespass to land?
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.
What is trespass to personal property?
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.
What is conversion?
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
What’s the difference between trespass to personal property and conversion?
In conversion, there is a failure to ever return the goods. In other words, the property is fully converted over.
If you only have trespass to personal property, it does not necessarily mean there is conversion.
A.) True
B.) False
A.) True
Conversion usually occurs with trespass to personal property. There will usually be both if there is a conversion.
A.) True
B.) False
A.) True
Can conversion occur even when a person mistakenly believes that she or he was entitled to the goods?
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.
What is disparagement of property?
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
What is slander of quality?
(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)
What is slander of title?
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.
What is the unintentional tort of negligence?
Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
What are the elements of negligence that the plaintiff must prove?
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
What is the duty of care in regards to negligence?
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 what 3 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).
What is the duty of landowners?
To warn business invitees of risks - warning signs
Obvious risks are an exception
What is the duty of professionals?
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.
What is the reasonable person standard?
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.
What is malpractice?
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
What is causation in fact?
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!!
What two questions does the court ask to determine causation?
- ) Is there causation in fact? - “But for” test
2. ) Was the act the proximate cause of the injury? - Was it foreseeable?
What is proximate cause?
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
For a tort to have been committed, the plaintiff must:
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.
To recover damages (receive compensation), the plaintiff must:
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.
What are 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 and cause further harm.
What is dram shop acts?
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.
What are the defenses to negligence?
- ) assumption of risk,
- ) superseding cause, and
- ) contributory and comparative negligence.
What is the defense to negligence, assumption of risk?
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.
What is the defense to negligence, superseding cause?
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
What is contributory negligence?
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.
What is comparative negligence?
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
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Roger recover:
If the state follows the “pure form” of comparative negligence?
10% x $10,000 = $1,000
Pure Form – plaintiff recovers the percent that the other party was at fault
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Roger recover:
If the state follows the common law doctrine of contributory negligence?
$0
Contributory negligence:
the doctrine that completely bars a plaintiff from recovering damages if the plaintiff is at all at fault
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Roger recover:
If the state follows the “50% rule” of comparative negligence?
$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.
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Lisa recover:
If the state follows the “pure form” of comparative negligence?
90% x $1,000 = $900
Pure Form – plaintiff recovers the percent that the other party was at fault
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Lisa recover:
If the state follows the common law doctrine of contributory negligence?
$0
Contributory negligence:
the doctrine that completely bars a plaintiff from recovering damages if the plaintiff is at all at fault
Roger and Lisa are in an automobile collision as a result of Roger running a stop sign. However, Lisa was driving slightly faster than the posted speed limit and multiple experts testified at the trial that there would have been no collision if she had been driving the speed limit. Roger’s damages amount to $10,000. Lisa’s damages amount to $1,000. A trial results in the determination that Roger is 90% at fault and Lisa is 10% at fault.
How much would Lisa recover:
If the state follows the “50% rule” of comparative negligence?
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.
What is 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
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
