Chapter 6 Flashcards
Civil wrong [plaintiff vs. defendant]
Tort
Role/ Purpose of Tort
Compensate plaintiff (injured party) for injuries wrongfully inflicted by the defendant.
Place injured party in as close to the position they would have been in prior to the tort occurring.
Remedy
Types of Remedies:
(1) Monetary damages
(2) Punitive damages
(3) Specific performance
(4) Injunction (force party to do something or not to do something)
Categories of Torts:
(1) Negligence
(2) Intentional Torts
(3) Strict Liability
Businesses become involved in torts through….
(1) Person harmed by actions of business or employees
(2) Person harmed by a product manufactured by business
(3) Business harmed by wrongful acts of another business
Unintentional, but careless conduct that creates an unreasonable risk of harm to others.
Negligence
Elements of Negligence:
(1) Duty
(2) Breached
(3) Caused
(4) Harm
To be successful in a case, plaintiff must prove all these 4:
(1) Defendant had a duty of care owed to others (must act reasonably all the time)
(2) Defendant breached that duty (failed to act miserably)
(3) Defendant breach of duty caused (failure to act reasonably is the cause of the harm)
(4) Harm to plaintiff (injury / damage)
True or False: Negligence does not require intent.
True
Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of the safety of others. Can lead to punitive damages.
Gross Negligence
Examples of Gross Negligence:
(1) Surgeon amputation of the wrong limb
(2) Speeding through a parking lot where numerous people are walking
(3) Surgeon leaving a tool in a person following surgery
(4) Drinking and Driving
How persons in the relative community ordinarily ought to behave.
Reasonable Person Standard
What applies once you turn 18?
Reasonable Person Standard: Everyone at all times is expected to act responsibly.
Defendants are not liable for every injury their actions cause - only those from unreasonable behavior.
Reasonable Person Standards
Reasonable Person Standard applies to _________________.
Specific Professions (CPA, doctor, attorney, etc.)
Standard of Reasonable Person Standards
What a reasonably skilled, competent and experienced person in that profession would do.
Defendant has a Duty
Reasonable Person Standard
Defendant’s duty of reasonable care was breached through some act or omission on the part of the wrongdoer
Defendant Breached their Duty
Cause is the link between the defendant’s breach of duty and the harm done.
Defendant’s Breach of Duty Caused
Person’s conduct is the actual cause of the injury (“but for” test)
Cause in Fact
Defendant is only responsible for harms the defendant could have foreseen through his or her actions.
Proximate [foreseeable] Cause
In a proximate foreseeable cause, look for _______________________.
A relationship between the injury and the negligent conduct.
Proximate [foreseeable] Cause Contrasts
- Example: A drunk driver weaves in traffic and hits a pedestrian, causing injury. It is foreseeable that if you drink and drive, they can cause personal injuries.
- Contrast with: If a drunk driver hits a truck full of explosives, and there is an explosion that causes drivers to rubberneck and another vehicle ends up hitting a pedestrian, the drunk driving is probably not the foreseeable cause of the pedestrian’s injuries.
- Contrast with: Maria speeds through an intersection while Sam is crossing. When Maria sees Sam, she swerves to try and avoid hitting him. While swerving, she crashes into a brick wall. The wall crumbles. The crumbling wall knocks over a tree standing next to it. The tree falls on Sam, breaking his arm. Maria hitting the wall is probably not the proximate cause of Sam’s injuries, because we couldn’t foresee the injury.
The thing speaks for itself.
Res Ipsa Loquitur
Example of Res Ipsa Loquitur
Roberta has an operation to have her appendix removed. Weeks after the operations she still has pain, goes back to the doctor, gets an x-ray, and finds that the scalpel was still inside her when she was sewn up.
Cause is a substantial factor in bringing an injury. Test often used in toxic substance injury cases
Substantial Factor Test
Example of Substantial Factor Test
If a defendant works in a factory and develops cancer, he might allege that the asbestos was the substantial cause of him getting cancer.
The causal connection between breach and harm is broken by an unforeseeable intervening act or event.
Intervening Conduct
Example of Intervening Conduct
A farmer stores a sculpture for an artist. The sculpture is designed for outdoor display, so the farmer leaves it in her backyard. A tornado comes and the sculpture is destroyed. If the artist sues farmer for damage of the sculpture, farmer can argue that the tornado intervened between her possible breach of duty and the harm, thus relieving her from liability. Farmer can argue that she could not have anticipated any detrimental effects of outdoor storage on the sculpture, because the sculpture was made for outdoor display.
Negligent party (defendant) is responsible for losses suffered by those who attempt to save a victim in danger as the result of torts of others. However, the negligent party is not liable for harm if the rescue attempt was unreasonable.
Danger Invites Rescue
Example of Danger Invites Rescue
Negligent party (defendant) is responsible for losses suffered by those who attempt to save victims in danger as the result of torts of others.
Example of Danger Invites Rescue where negligent party is not liable for harm if the rescue attempt was unreasonable.
Again, Greg negligently bumps into Mike, and Mike falls into a river. If Jenny now tries to rescue Mike by extending a live electrical wire for him to grab onto, and Mike suffers electrical burns, Greg will not be held liable for Mike’s burns because Jenny’s rescue attempt is unreasonable.
To succeed in a negligence case against a defendant, the plaintiff must show that they were _________.
Harmed/ injured
If there is no harm, plaintiff cannot win the suit, even if they otherwise can show that:
(1) Defendant had a duty
(2) Defendant breached that duty by not acting reasonably
(3) Defendant’s break of duty caused something
Injured Party know or should have known of the risk and voluntarily assumed it.
Assumption of Risk
With assumption of risk, look for:
(1) Liability waiver
(2) Exculpatory clause in a contract
Every state must pick one of these four rules:
(1) Comparative Negligence
(2) Modified Comparative (50% Rule)
(3) Modified Comparative (51% Rule)
(4) Contributory Negligence
Damages reduced by % of injuries caused by plaintiff’s own negligence.
Comparative Negligence
If the plaintiff is 50% or more at fault, they recover nothing.
Modified Comparative (50% Rule)
Modified Comparative (50% Rule)
- If plaintiff is 50% at fault, they collect $0 of the $100K damages
- If they are 49% at fault, they collect $51,000 out of $100,000
- Under 50% they collect percentage not at fault
Comparative Negligence
- If plaintiff is found 40% at fault, she can only collect $60,000 out of the $100,000 damages
- Best of four rules
If plaintiff is 51% or more at fault, they recover nothing.
Modified Comparative (51% Rule)
Modified Comparative (51% Rule)
- If they are 49% at fault, they get $51,000
- If they are 50% at fault, they get $50,000
- If plaintiff is 51% at fault, they get $0
If the plaintiff is even 1% at fault, they collect nothing.
Contributory Negligence
Contributory Negligence
Worst of four rules
Intentional Torts Against Persons
(1) Assault
(2) Battery
(3) False Imprisonment
(4) Infliction of Emotional of Mental Distress
(5) Defamation
Person intended to commit the act.
Intentional Torts
Intent to place plaintiff in fear of immediate bodily harm or offensive contact. Plaintiff must be in fear and aware of what is happening.
Assault
Assault Example
Point gun at someone’s face and they pull away.
Intent to make physical contact without consent. No injury needed. Actually touches person. Person does not see it coming.
Battery
Battery Example
Use fist or gun to hit a person from behind (no immediate fear since didn’t see it coming)
Intent to hold, detain, or confine someone that violates a person’s freedom.
False Imprisonment
Intended conduct so outrageous, it creates severe mental or emotional distress.
Infliction of Emotional or Mental Distress
Examples of Infliction of Emotional or Mental Distress
- Badgering,
- Late night phone calls
- Profanity
- Threats
- Name-calling
Intentional false communication to a third party that injures a person or a company’s reputation. Person making claim intends to do so. Must be evident of injury.
Defamation
Types of defamation:
(1) Slander
(2) Libel
Spoken defamation (verbal)
Slander
Written defamation
Libel
Possible defenses to intentional torts:
(1) Consent
(2) Self defense
(3) Defense to defamation
When someone carries on an abnormally dangerous activity, they are subject to liability for any harm caused by the activity, even if they exercise the utmost care to prevent harm.
Strict Liability
Example of Strict Liability
The owner of a tiger rehab center is strictly liable for injuries caused to Frank when a tiger escapes and attacks him - no matter that the tiger cages were strong and worked properly.
Example of Strict Liability
Transporting volatile chemicals, using explosives
