Chapter 4 review Flashcards
a wrongful act that was knowingly committed
International Tort
a wrongful act that was not knowingly committed
Unintentional Tort
One who commits a tort
Tortfeasor
Negligence (unintentional)
Plaintiff needs to prove all 4 questions
- Did the defendant owe the plaintiff a duty of care?
- Did the defendant breach that duty?
- Did the plaintiff suffer a recognizable injury?
- Was the defendants breach the factual and proximate cause of the plaintiffs injury?
As a general rule, a person owes a duty of care towards those around them or who own land around them.
Duty of Care
Do yo have to come to someone’s aid? no
Do storeowners owe customers a duty of care? yes
Duty to act with reasonable care towards others based upon a reasonable person standard
Reasonable Care
Ex. must drive with care so pedestrians and other motorists are not injured.
Question becomes “how would the reasonable person believe they should act” not “how would the reasonable person act?”
A professional focuses on the skill set of the reasonable professional in that field and not merely the reasonable person found in society
Duty of professionals
Malpractice is often the resulting claim. Malpractice when a doctor commits negligence (ex.) We judge the heart surgeon against the heart surgeon.
Rex is a divorce attorney who forgets to file a certain motion for his client Amie. Amie accuses Rex of negligence and he says "listen, ask 10 people out of the street and they will tell you that they don't know what elections need to be filed in a case like this." Who will rex be judged against? Average person? Average attorney? Average Divorce attorney?
Rex would be judged against an average divorce attorney.
*Injury has to result for damages to be awarded, damages may be compensatory or punitive.
*Plaintiff has to prove causation,
Causation in Fact: act or omission caused the damage.
Injury Requirement and Damages
Ex. Ran a red light, cannot sue because you missed something like a job interview.
Causation in fact
act or omission caused the damage (factual causation) “But for?”test
Proximate Cause
Strong enough connection to justify holding the defendant responsible. Forseeable?
Palsgraf v. Long Island Railroad Co.
Plaintiff was waiting for the train standing on the railroads platform and a package of fireworks falls on the ground and injures the plaintiff. The plaintiff was unable to recover damages because the harm was not forseeable (Proximate causation)
- Did the defendant owe a duty of care? Yes
- Breach of care? Yes
- Injury? Yes
- a) Factual cause? Yes - but for?
b) Proximate causation? Forseeable? No
Plaintiff must prove 3 things that prove Breach occurred: - Plaintiff was owed a duty of care under a statute.
- The defendant committed the conduct prohibited by the statute in question.
- Statute was designed to prevent this type of injury.
Negligence Per Se
ex. Speeding, you are breaking a statute when you speed.
Helps plaintiff create a presumption of negligence on the part of the defendant who must then defend against such presumption.
Res Ipsa Loquitor
ex. plaintiff can’t move knee after a knee surgery
Susan is driving down the road when a large box falls from the back of a truck. The box strikes Susan’s car causing injury. Would either Res Ipsa Loquitor or Negligence Per Se apply?
Res Ipsa Loquitor
Mike is driving his Buick down the road while speeding. He runs into Kristen who is turning onto the road in front of him. Kristen’s car is damaged.
Is Mike liable for negligence?
Could either Res Ipsa Loquitor or Negligence Per Se apply?
Yes, Mike is liable
and Negligence Per Se
These 4 are defenses to what?
- Assumption of Risk
- Plaintiff entered into the situation knowing the risks
- Need to show 1) Plaintiff knew of the risk 2) Plaintiff assumed the risk
- Intervening Cause – something that breaks the chain of causation.
Defenses to Negligence
Jose and Charlie visit Arnold’s Amusement Park. While at the amusement park Jose is injured while partaking in a duel with Charlie using Styrofoam bats. Charlie took a wild swing and Jose’s platform where he was standing broke at the base causing his injury.
Can Jose sue Charlie? Can Jose sue the park?
-No Negligence
-Assumption of risk or consent
-Maybe no assumption of risk
No Jose cannot sue the park
Arthur is walking down the sidewalk when a driver from the road jumps the curb with his car. The out of control car strikes Arthur. While Arthur is waiting for an ambulance, a truck drives by and a rock from the truck hits Arthur.
What negligence defense might the driver of the car raise regarding the injury from the rock?
Intervening Cause
In some states this is not a bar to recovery if there is a “last clear chance” for the defendant to avoid the harm
Contributory Negligence
Bill is driving down University Avenue. He runs a red light and hits Jennifer. Jennifer had obeyed all traffic lights but was texting. Jennifer wants to sue Bill.
What result if her state has a pure contributory negligence standard?
No recovery
In these cases the court looks at the fault of the defendant and compares it to the fault of the plaintiff. Recovery on the part of the plaintiff is then reduced by their contribution to the incident.
Comparative Negligence
May apply to all torts (even intentional) in a given state and not just negligence
Example:
Todd hits Melanie after she calls him a jerk and takes his cell phone throwing it on the ground. A court in a state that recognizes comparative fault will consider Melanie’s contribution to the incident.
Comparative Fault
These laws Protects good Samaritans against negligence lawsuits
Good Samaritan Protection Laws
Cannot serve those who are intoxicated or yo may be liable for their damages.
What act is this?
Dram Shop acts
Courts may impose strict liability when defendants engage in severely dangerous activities.
What Liability is this?
Strict Liability
ex. Pitbull escapes from a secure cage after an earth quake
Manufacturers and distributors are held to strict liability for product defects.
What liability is this?
Product Liability
Actions intended to make another person fearful or immediate physical harm. Often need more than just words.
(Intentional Tort)
Assault
“Swing and a miss”
The un-consented to and intentional touching of another person which results in harmful contact or offensive contact.
The touching was unwelcome or offensive.
Battery
“Landed Punch”
ex. Sexual Assault
What are the Assault and Battery Defenses?
4 of them
1 Consent
2 Self defense
3 Defense of other
4 Defense of Property
Jane and Dan have been dating for two years. Dan has a bad temper and often threatens Jane. One day he holds a clenched fist in her face and says “I oughta.” As he says the words, Jane’s brother Bruno walks in and seeing what is happening knocks Dan out with one punch?
Did Dan commit any torts?
What about Bruno?
Dan committed Assault
Bruno committed Battery
The intentional confinement or restraint of another person’s activities without justification.
Cannot have a safe escape.
May be detained by threat of physical harm but the threat must be in the present.
False Imprisonment
Ex. “I will beat you up the next time I see you if you leave” is not false imprisonment
Mary locks Jane in a storeroom as part of a prank at the coffee shop where they work. Jane is locked in the room for 35 minutes.
False imprisonment?
What if the storeroom had an unlocked window?
- Maybe false imprisonment
- Not false imprisonment if its a safe escape
Wrongfully hurting a person’s good reputation by stating an untruth
Slander – oral defamation
Libel – written statement of defamation
Defamation
Common law has four false statements which require no proof of damages in order of the plaintiff to recover:
1 Plaintiff is incompetent and/or immoral in the plaintiff’s business affairs;
2 Plaintiff has a loathsome disease such as a venereal disease or leprosy;
3 Plaintiff is sexually promiscuous; or
4 Plaintiff has committed a criminal act.
Defamation Per Se (Slander Per Se)
Defendant makes untrue statements which decrease the value of plaintiff’s property
Slander of Property
Defendant makes untrue statements which cause a 3rd party to doubt the plaintiff’s ownership of the property
Slander of Title
Four different major acts constitute a violation
1 Publishes information that places the plaintiff in a false light.
2 Publicly discloses facts about the plaintiff that a reasonable person would find objectionable or embarrassing.
3 Uses the name or likeness of the plaintiff without permission for a commercial purpose.
4 Invades a person’s home or private papers.
Invasion of the right of privacy
The use of another person’s name or likeness without their consent for the defendants benefit.
also known as “right of publicity”
Appropriation
Requirements:
1) Behavior has to be outrageous and intentional
2) In most jurisdictions you have to prove some type of physical pain or suffering
Intentional Infliction of Emotional Distress
Example:
Jimmy calls his neighbor Mrs. Williams and tells her both of her sons were killed in a car accident. Jimmy impersonates a police officer when telling this untruth. Mrs. Williams suffers a heart attack.
Trespass – occurs when a person without permission enters above or below the surface or causes something to enter above or below the surface of another’s real property.
- Normally a landowner is not liable for the injuries of trespassers. Exceptions exist.
- Attractive nuisance: sand pile that attracts children
Intentional Torts Against Property
Kerry has a dog named Dallas. Dallas likes to run on the neighbor mike’s lawn and “do his business”
Can Mike sue Kerry for trespass?
Possibly, the dog is in her control.
- Invitee: must warn of hidden risks and make hazardous situations safe. ( Business customer)
- Licensee: must warn of potentially dangerous situations. (Party guest)
- Dangerous situation required action
Defenses to Trespass
-Trespass to Personal Property: interfering with the use of another’s personal property. (Air out of tires)
Exceptions provided by statute (artisan’s lien)
-Conversion – the unlawful taking of another’s property. (Stealing tires)
Defenses
*Necessity
*Superior right to property
Trespass to Personal Property/Conversion Not real (movable objects)
Taylor takes his pickup truck to Muffler’s and More. Taylor wants an expensive exhaust system put on his truck. Taylor does not have money to pay his bill at the end of the business day. Muffler’s and More will not give the truck back to Taylor.
Has Muffler’s and More committed a tort?
Probably not
-Artisans lien
Requirements
1 The defendant made a misrepresentation;
2 The defendant knew of the deception;
3 The defendant intended to influence the plaintiff to act or refrain from acting;
4 The plaintiff justifiably relied on the defendant’s misrepresentation; and
5 The plaintiff was damaged as a result.
Fraud
4 elements that must exist:
1 A valid enforceable contract must exist between the two parties.
2 Defendant knew the contract existed.
3 Defendant intentionally caused either of the two parties of the contract to breach the contract.
4 Plaintiff was injured.
Wrongful Interference With a Contractual Relationship
Cannot engage in malicious behavior but only competitive behavior.
- Tom prepares tax returns. He walks into Nancy’s office (a competitor). He offers all people in her waiting room, 50% off their tax return preparation if they come to his office instead.
- Can engage in competitive behavior but not behavior that is predatory
- Critical question is defendant soliciting customers or trying to get customers that are interested in only a competitor?
Wrongful Interference with a Business Advantage
Not calculated by a precise model but meant to compensate plaintiff
-Example: “pain and suffering”
General damages
Compensate plaintiff for loss suffered
Compensatory Damages
Costs incurred out of pocket
-Example: rental car fee because of accident
Special damages
Small amount of damages meant to establish liability.
Nominal Damages
Meant to punish defendant not necessarily compensate plaintiff
Punitive Damages
Damages required by state statute and awarded in tort cases.
Liquidated Damages
