Chapter 5 - Intentional Torts and Negligence

Question 0

Intentional tort

Answer 0

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries.

Question 1

Tort

Answer 1

A wrong. There are three categories of torts: (1) intentional torts, (2) unintentional torts (negligence), and (3) strict liability.

Question 2

Assault

Answer 2

(1) The threat of immediate harm or offensive contact of (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary.

Question 3

Battery

Answer 3

Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury.

Question 4

Transferred intent doctrine

Answer 4

Under this doctrine, the law transfers the perpetrator’s intent from the target to the actual victim.

Question 5

False imprisonment

Answer 5

The intentional confinement or restraint of another person without authority of justification and without that person’s consent.

Question 6

Merchant protection statutes (shopkeeper’s privilege)

Answer 6

Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) suspects are detained for only a reasonable time, and (3) investigations are conducted in a reasonable manner.

Question 7

Misappropriation of the right to publicity (tort of appreciation)

Answer 7

An attempt by another person to appropriate a living person’s name or identity for commercial purposes.

Question 8

Invasion of the right to privacy

Answer 8

the unwarranted and undesired publicity of a private fact about a person. The fact does not have to be untrue.

Question 9

In cases of misappropriation of the right to publicity (tort of appropriation) the plaintiff can:

Answer 9

1. ) recover the unauthorized profits made by the offending party and
2. ) obtain an injunction preventing further unauthorized use of his or her name or identity.

Question 11

Defamation of character

Answer 11

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally of accidentally published to a third party.

Question 12

Libel

Answer 12

A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

Question 13

Slander

Answer 13

Oral defamation of character

Question 14

To prove disparagement (trade libel, product disparagement, and slander of title) the plaintiff must show the defendant:

Answer 14

1. ) made an untrue statement about the plaintiff’s products, services, property, or business reputation
2. ) published that untrue statement to a third party
3. ) knew that statement was not true
4. ) made that statement maliciously (intent to injure the plaintiff)

Question 15

Disparagement (trade libel, product disparagement, and slander of title)

Answer 15

False statements about a competitor’s products, services, property, or business reputation.

Question 16

To prove intentional misrepresentation (fraud or deceit) what elements are required (4 items):

Answer 16

1. ) The wrongdoer made a false representation of a material fact.
2. ) The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party.
3. ) The innocent party justifiable relied on the misrepresentation.
4. ) The innocent party was injured.

Question 18

Intentional misrepresentation (fraud or deceit)

Answer 18

The intentional defrauding of a person out of money, property, or something else of value.

Question 20

To prove malicious prosecution, the plaintiff is required to show (5 items):

Answer 20

1. ) The plaintiff in the original lawsuit (now defendant) instituted or was responsible for instituting the original lawsuit.
2. ) There was no probable cause for the first lawsuit (frivolous lawsuit)
3. ) The plaintiff in the original action brought it with malice. (Caution: this is a very difficult element to prove.)
4. ) the original lawsuit was terminated in favor of the original defendant (now the plaintiff).
5. ) The current plaintiff suffered injury as a result of the original lawsuit.

Question 21

Scienter

Answer 21

The wrongdoer has knowledge that the representation was false and intended to deceive the innocent party (intentional conduct).

Question 22

Intentional infliction of emotional distress (tort of outrage)

Answer 22

A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress.

Question 23

Malicious prosecution

Answer 23

A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.

Question 25

Unintentional tort (negligence)

Answer 25

A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

Question 26

To prove negligence the plaintiff must prove (5 items):

Answer 26

1. ) The defendant owed a duty of care to the plaintiff
2. ) The defendant breached this duty
3. ) The plaintiff suffered injury
4. ) The defendant’s negligent act was the actual cause (or causation in fact) of the plaintiff’s injuries.
5. ) the defendant’s negligent act was the proximate cause (or legal cause) of the plaintiff’s injuries. The defendant is liable only for the foreseeable consequences of his or her negligent act.

Question 28

Duty of care

Answer 28

The obligation people owe each other not to cause any unreasonable harm or risk of harm.

Question 29

Reasonable person standard

Answer 29

A test used to determine whether a defendant owes a duty of care. This test measures the defendant’s conduct against how an objective, careful, and conscientious person would have acted in the same circumstances.

Question 30

Breach of the duty of care

Answer 30

A failure to exercise care or to act as a reasonable person would act.

Question 31

Injury

Answer 31

A plaintiff’s personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant’s negligence.

Question 32

Actual cause (causation in fact)

Answer 32

The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven.

Question 33

To prove negligence per se, the plaintiff must show (3 items):

Answer 33

1. ) a statute existed
2. ) the statute was enacted to prevent this type of injury suffered
3. ) the plaintiff was within a class of persons meant to be protected by the statute.

Question 34

Res ipsa loquitur

Answer 34

A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone’s negligence. The burden switches to the defendant to prove that he or she was not negligent.

Question 35

Attractive nuisance doctrine

Answer 35

A tort rule that imposes liability on a landowner to children who have been attracted onto the landowner’s property by an attractive nuisance and who are killed or injured on the property.

Question 36

Good Samaritan law

Answer 36

A statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations.

Question 37

Superseding event (intervening event)

Answer 37

An event for which a defendant is not responsible. The defendant is not liable for injuries caused by the superseding or intervening event.

Question 38

Assumption of the risk

Answer 38

A defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury.

Question 39

Contributory negligence

Answer 39

A doctrine that says a plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant.

Question 40

Comparative negligence (comparative fault)

Answer 40

A doctrine under which damages are apportioned according to fault.

Question 41

Partial comparative negligence

Answer 41

A plaintiff must be less then 50% responsible for causing their own injuries to recover under comparative negligence; otherwise contributory negligence applies.

Question 42

Strict liability

Answer 42

Liability without fault

Question 43

Professional malpractice

Answer 43

The liability of a professional who breaches his or her duty of ordinary care.

Question 44

Negligent infliction of emotional distress

Answer 44

A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct.

Question 45

Bystanders must prove the following elements in Negligent infliction of emotional distress cases (3 items):

Answer 45

1. ) A close relative was killed or injured by the defendant
2. ) The plaintiff suffered severe emotional distress, and
3. ) The plaintiff’s mental distress resulted from a sensorycontemporaneous observance of the accident.

Question 46

Negligence per se

Answer 46

A tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care.

Question 47

Proximate cause (legal cause)

Answer 47

A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions.