Chapter 5: Business Torts Flashcards
Law of Torts
Seeks to reimburse an individual who suffers a loss because of the dangerous or unreasonable conduct of others
Negligence
Failure to do what a reasonable person would do under the circumstances
What are the 4 elements of negligence?
Duty Owed/Duty of Care, Breach of Duty, Proximate Cause, Damages
Duty Owed/Duty of Care
Must act as a reasonable person under the circumstances; Ex: Standard of care of driver held to avg. driver
Give an example where duty is not owed
Driver has a heart attack and runs over 30 people; Duty not owed because it was an act of God
Duty of Children
Child is held to the standard of care of a child of similar age, intelligence, and experience
0-7 Age Duty
Child can do no wrong
7-14 Age Duty
Child is not negligent, but you can overcome that presumption by showing a child that age should know better; Parents/Family covered by insurance
14-18
Child can be negligent
What is the exception for duty of children?
Child engaging in adult activity; Driving a boat, car, plane
Is the parent liable for a 5 year old?
No
Negligent Entrustment
Liability that arises against a person who lends a car to an incompetent driver; Makes lender responsible for actions of drive; Ex: Giving keys to drunk person/person w/o license
Liability of Parents
Parent if not liable unless agency relationship exists or parent is negligent
Agency Relationship
Child is running errand for parent; Negligent if parent leaves gun out and child shoots someone
Malpractice
Negligence against a professional; Ex: Doctor, Accountant, Lawyer, Teacher
Do you owe a duty to save a person who is drowning?
You don’t owe a legal duty, but you owe an ethical one
Special Relationship
Requires a person to help; Ex: Husband/Wife, Parent/Child; Employer/Employee, Business/Patron
Does a Doctor owe a legal duty to help outside of work?
No
Good Samaritan Statue
If you are medically trained and render emergency help, you will only be liable for gross misconduct; Does not apply to average person
What happens if you find a person unconscious in the car?
Can’t move a person and hurt them unless the car is about to go up in flames
Duty Owed by Volunteer
Assume the duty to act as a reasonable person under circumstances
Automated External Defibrillator (AED)
External device that lets anybody help shock someone’s heart back into rhythm; Computer tells you when to hit button
Atcoviz v. Gulf Mills
No duty on a business to acquire and use an AED on premises; No duty of care was owed
AED Good Samaritan Act
People who are untrained have immunity who in good faith use an AED in an emergency
Duty of Land Owner: Person jumps fence and drowns in pool
Pool owner is not liable because neighbor was a trespasser and did not have the right to be in the pool
Duty of Land Owner: Person jumps fence and is killed by Piranha placed as protection in pool
Pool owner is liable for neighbor because used willful misconduct to protect property
Trespasser
One who comes upon the property of another without permission or legal right
What is the duty owed to a trespasser?
Must not injure through willful or wanton misconduct (Katco v. Briney)
Licensee
Person who comes upon the land with permission (social guest/friend)
What is the duty owed to a licensee?
Liable for known defect which guest is not liable to discover; No duty to inspect
Are you liable if a burglar falls down your missing steps?
Not liable because burglar is a trespasser
Are you liable if a friend falls down your missing steps?
Liable because person is a licensee and you should have warned them about something you knew
Are you liable if a friend sneaks up to attic and falls through?
Not liable because person becomes a trespasser when they enter into attic without permission
Are you liable if a person walking along the raised sidewalk falls outside of your house?
Liable because home owner should have known through the years that the sidewalk was a hazard
Business Visitor
Person who enters property for a business purpose
What is the duty owed to a business visitor?
Liable for know defect which invitee is not liable to discover; Duty to inspect property before
Is a store liable if a child spills milk and somebody slips and injures themselves?
Depends on whether the spill was wet, stick, dried, or had track marks; Stores have employees inspect/sign to protect selves
Is a bar liable for selling liquor to a visibly intoxicated patron?
Liable because it is willful and wanton misconduct; Intoxicated person creates risk to self and others
Breach of Duty
Decide whether a reasonable person did what they were supposed to do in that situation
Proximate Cause
Must be a reasonable connection between the negligent conduct of the defendant and the harm suffered by the plaintiff
Example of Proximate Cause
guy gets rear ended and hits head on wheel; Negligence of person who hit him because they cause the injury
Example where Proximate Cause does not apply
Drunk friends driving with other friend; Plane tire falls from air and crashes car killing passenger; Only airline is liable because the drunk driver technically wasn’t the cause of the accident, the plane was
Pellman v. McDonalds
Suit alleging McDonald’s deceives children to eat product and causes obesity; Court said that other factors can cause obesity such as genetics and activity level
Damages
Amount of money injured party receives as the result of improper conduct of the defendant
What are the 4 types of compensatory damages?
Lost Wages (missed time of work), Medical Bills (injuries), Property Damage (wrecked car), Pain & Suffering (time suffered from aftermath of accident)
How is the amount for Pain & Suffering determined?
Determined by severity of accident/injuries
Punitive Damages
Sum of money may be awarded to punish the defendant as a result of outrageous conduct
Liebeck v. McDonald’s
Coffee burns; Awarded punitive damages of millions to plaintiff because of outrageous conduct; Changed way coffee was given out
Contributory Negligence
Failure of the plaintiff to act as a reasonable person under the circumstances; Ex: Plaintiff falls into hole left by Utility Repair company
What happens if you find that the plaintiff is partially at fault for a contributory negligence case?
The plaintiff looses
Which 4 jurisdictions follow contributory negligence?
AL, MD, NC, VA/DC
Comparative Negligence
Plaintiff will will as long as his negligence is not greater than that of the defendant
How is the amount awarded determined for a comparative negligence case?
Reduces verdict by amount plaintiff was negligent for; Ex: $10,000 case, 20% negligent, Plaintiff gets $8,000
What happens if the case is 50/50?
Plaintiff still wins because his negligence is still not greater than the defendants
Assumption of the Risk
When the plaintiff knowingly and voluntarily exposes himself to the risk; Ex: Jumping over manhole, football player, playing with alligator, person at a baseball game
Imputed Negligence
Because of a special relationship, one can be held liable for another
Example of Imputed Negligence
Septa Bus Drive rear ends car; Septa liable because they are employer
Example where Imputed Negligence does not apply
Septa driver punches guy on road; Bus driver is liable; Septa not liable because the action in not related to the employment
Independent Contractor
Person who contracts to do work on his or her own is not subjected to the control of the employer
Example of Negligence with Independent Contractor
Person hires roofing company to fix house, roofer slips and injures self; Person not liable because they are technically not the employer of roofing company
Liability of Parents
Parents typically not liable for torts of children unless parent directly at fault of agency
What is PA’s law for the liability of parents?
Parents liable when no insurance available; $1,000 per person and $2,500 per incident if child commits tortuous act and someone is hurt
Infliction of Emotional Distress
A person who, by outrageous conduct, cause severe emotional distress to another is liable
Examples of Emotional Distress
Debt Collector/Parent/Child in accident; Finger in Coke bottle, Rat in chicken sandwich
Battery
Intentional touching of the body of another or an object closely associated with the body in a harmful or offensive manner
Example of Battery
Punching, kissing, slapping someone’s butt, Pitcher purposely throwing baseball at head
What is an object closely associated with the body?
Car, clothing, accessory, clown & balloons, road rage, Woman getting uterus branded
Is it considered battery if a football player tackles QB and breaks his shoulder?
Not battery because it is part of the game; Person engaging in game consents to unusual touches
Is it considered battery if a boxer gives another boxer a brain injury?
Not battery; If they bite the ear, it is considered battery
Is it considered battery if a hockey player knocks out another player’s teeth?
Not battery because fighting is part of the game
What happens if a fan throws their beer on the players and the players whack the fans with their sticks?
Players on Bruins arrested for battery
Andrews v. Peters
Co-worker taps knee and other worker breaks it; Doesn’t matter that the result was unintended, battery took place and the person is liable for the result
Assault
Act intended to put another in fear of an immediate battery (uses threats); Usually put together with battery
Give an example when assault is separate from battery?
Pulling out gun and hitting trigger but gun is unloaded
Invasion of Privacy
Law guarantees that we have the right to be left alone
Examples of Invasion of Privacy
Someone keeps calling you during night; Boy taking/distributing pictures of naked woman; Breached birth pictures; Penn students having sex in open window
Electronic Communications Privacy Act
Employer may monitor e-mail if it occurs in the ordinary course of business or with employee’s express/implied consent
Defamation
False statement which harms the reputation of another or lowers his or her reputation in the community
Example of Defamation
Teacher announces to class that the student keeps leaving to go shoot up in the bathroom
Libel
Putting it in writing
Slander
Saying it orally
What must happen for it to be considered defamation
Must have publication; Have to tell the lie to a third person
What is a defense for defamation?
What being said is an opinion or the truth
Does an employer have any liability for providing a former employee with a poor job reference?
Employers who give a fair and unbiased reference to a prior employee’s work performance is presumed to have acted in good faith and is immune from suit
Can you defame a large group? (Oprah and Mad Cow Disease)
Court said there was no way to identify individuals of the group and none of the 740 members were mentioned by name
False Imprisonment
Unlawful detention of a person against his or her will
Examples of False Imprisonment
Cop arresting man for ill reasoning; Teacher prevents students from leaving classroom; Little boy locked in school closet overnight
McDonald’s v. Ogborn
Hoax phone call making employee strip down and do embarrassing acts; Woman sued and own money because McDonald’s knew people were making fake phone calls, never passed on info, and didn’t protect employee
Interference with a Contract
Cause of action stabilizes business relationships, since a party who wrongfully interferes with an existing contract or future business opportunity may face damages
Elements of Interference with a Contract
Must be an enforceable contract; defendant’s awareness of contract; Intentional inducement to breach contract; Wrongful interference by the defendant to breach agreement; Actual damages
Can Philly sue Lady Gaga if she backs out of concert to do one in NYC for more money?
Yes, they can sue because she meets the elements of interference
Did Matt Rhule breach his contract with Temple since he signed an extension?
Not a breach because he had a buyout option
Products Liability
One who sells a defective product is liable; merchant becomes insurer of product’s safety
Can you sue a car company if your brakes fail after it was inspected several times?
Can’t sue for negligence but can sue for products liability; reasonable inspections are not relevant;
Case of Woman microwaving cat to dry it
Won case on basis of failure to warn of dangers was a defect
Case of Man suing after getting injured by lawn mower
Won case because company neglected to warn of dangers
What is a defense for product liability?
You must use the product for its intended use without a material alteration
