Chapter 5: intentional torts and negligence Flashcards
Tort
a wrong; modern term is personal injury
Imminent
something could happen in next present moment
Intentional Torts
a category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries
Assault
the threat of immediate harm or offensive contact; any action that arouses reasonable apprehension of imminent harm (actual physical contact is unnecessary)
Battery
unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury (can be unauthorized but reasonable)
Transferred Intent Doctrine
under this doctrine, the law transfers the perpetrators intent from the target to the actual victim of threat
False Imprisonment
the intentional confinement or restraint of another person without authority or jurisdiction and without that person’s consent
rule:
>actual detention
>no permission
Shoplifting and Merchant Protection Statutes
statutes that allow merchant to stop, detain, and investigate suspected shoplifter without being help liable for false imprisonment if:
- there are reasonable grounds for suspicion
- suspects are detained for only a reasonable time
- investigators are conducted in reasonable manner
Misappropriation of Right to Publicity
using someone’s voice or appearance; an attempt by another person to appropriate a living person’s name or identity for commercial purpose
Invasion of the Right to Privacy
the unwarranted and undesired publicity of a private fact about a person; a fact does not have to be true
Defamation of Character
false statements made by one person about another
must prove the following:
1. defendant made untrue statement of fact
2. statement was intentionally or accidentally published to a third party
Libel
a false statement that appears in a letter, newspaper, magazine, book, photograph, movie, and so on
Slander
oral defamation of character
Disparagement
false statements about a competitor’s products, services, property, or business reputation
Intentional Misrepresentation (Fraud)
the intentional defrauding of a person out of money, property, or something else of value
Four Elements to Find Fraud
- Wrongdoer made a false statement of material face
- (scienter) wrongdoer had knowledge that the representation was false and intended to deceive the innocent party
- innocent party justifiably relied on the misrepresentation
- innocent party was injured
Intentional Infliction of Emotional Distress
a tort that states say a person whose extreme and outrageous conduct intentionally or recklessly cause severe emotional distress to another person is liable for that emotional distress
criteria:
>outrageous behavior
>actual emotional distress
Malicious Protection
someone in power purposely prosecuting another without probable cause to do so; a lawsuit in which the original defendant sues the original plaintiff and second lawsuit consists of the defendant becoming the plaintiff and vice versa
Unintentional Tort
a doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
Elements of Unintentional Tort
- Duty of care
- Breach of the duty
- Causation
- Injury
Duty of Care
obligation people owe each other not to cause any unreasonable harm or risk or harm
Reasonable Person Standard
a test used to determine whether a defendant owes a duty of care
Breach of Duty
a failure to exercise care or to act as a reasonable person would act
Injury
a plaintiffs person injury or damages to his or her property that enables him or her to recover monetary damages for the defendants negligence
Actual Cause
the actual cause of negligence; a person who commit a negligent act is not liable unless actual cause can be proven
Proximate Cause
a point along a chain of event caused by a negligent party after which the party is no longer legally responsible for the consequences of his/her action
Professional Malpractice
the liability of a professional who breaches his/her duty of ordinary care
Negligent Infliction
a tort that permit a person to recover a for emotional distress cause by the defendant negligent conduct
Negligence Per Se
a tort in which the violation of a statute or an ordinance constitutes the branch of the duty of care
Res Ipsa Loquitur
a tort in which the presumption of negligence arises because
- the defendant had exclusive control of the instrumentality or situation that caused the plaintiff’s injury
- the injury would not have ordinarily occurred but for someones negligence
Good Samaritan Laws
A statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations
Superseding Event
an event for which a defendant is not responsible
Assumption of the Risk
a defense a defendant can use against a plaintiff who knowingly and voluntarily enter into or participates in risky activity that results in injury
Contributory
a doctrine that says a plaintiff who is partially at fault for his/her own injury cannot recover against the negligent defendant; must be blameless to make recover
Comparative
a doctrine under which damages are apportioned according to fault
Partial Comparative Negligence
provide plaintiff must be less than 50% responsible for causing her/his own injuries to recover under comparative negligence
Strict Liability
liability without fault; fault is automatic
Comparative Advantages
recover percentage and recover even if you are at fault
Contributory Advantages
less litigation
