Chapter 6: Tort Law Flashcards
Torts
Two types:
- Intentional
- Unintentional (negligence)
Elements of Negligence
- The defendant owed a legal duty of care to the plaintiff
- The defendant breached the duty of care to the plaintiff
- The defendant’s negligent act was the proximate cause of the plaintiff’s injury or damage
- The plaintiff suffered actual injury or damage
Proximate Cause
Rules to determine proximate cause:
- “But for” rule
- Substantial factor rule
- Proof of defendant’s responsibility
- Forseeability rule
Defenses Against Negligence
- Comparative negligence
- Releases and exculpatory clauses
- Immunity
- Statues of limitations and repose
- Tortfeasor’s capacity
Comparative Negligence
Four variations of the application of comparative negligence:
- The pure comparative negligence rule
- The 50% rule
- The 49% rule
- The slight versus gross rule
Immunity
Four major classes of immunities:
- Sovereign, or governmental, immunity
- Public official immunity
- Charitable immunity
- Intrafamilial immunity
Intrafamilial Immunity
Two principal categories;
- Interspousal immunity
- has been abolished, in whole or part, by all jurisdictions
- Other family relationship immunities
- Some jurisdictions still recognize parent-child immunity
Intentional Torts
Part 1
Common types of intentional torts:
- Battery
- Assault
- False imprisonment or false arrest
- Intentional infliction of emotional distress
- Defamation (libel and slander)
- Invasion of the right of privacy
Battery
Defenses to Battery:
- The plaintiff consented to the act
- The act was in self-defense or defense of others
- The act was one of physical discipline
Slander & Libel
Defenses:
- The statement was true
- The defendant made or printed a retraction
- The statement had absolute privilege
- The statement had conditional or qualified privilege
Torts Involving Use or Disclosure of Information
- Public disclosure of private facts
- Publicity placing plaintiff in a false light
- Unauthorized release of confidential information
- Appropriation of plaintiff’s name or likeness
Defenses to Invasion of Privacy
- The plaintiff previously published the information
- The plaintiff consented to publication
- The plaintiff is a public figure, or the information is public knowledge
- The Information was part of a news event
- The publication would not offend an individual of ordinary sensibility
- Matters are disclosed in judicial proceedings
- The Information is of public interest, such as the public’a right to know
Intentional Torts
Part 2
- Fraud
- Bad faith, or outrage
- Interference with relationships between others
- Misuse of legal process
- Trespass
- Nuisance
- Conversion
Defenses to Fraud
- The statement was not false
- The statement did not relate to a material fact
- The defendant did not know clothe statement was false
- The defendant did not indent to deceive
- The plaintiff did not rely on the statement
- The plaintiff suffered no harm or loss because of relying on the statement
Defenses to Bad Faith
- No intent or recklessness was involved
- No outrageous or extreme conduct occurred
- The defendant did not reach any implied duty of good faith and fair dealings
- If contract damages are involved, the defendant owned no contractual duty to the plaintiff
- In an insurance case, no valid insurance contract existed
Interference with Relationships Between Others
- Injurious falsehood
- Malicious interference with prospective economic advantage
- Unfair competition
- Interference with employment
- Interference with copyright, patent, or trademark
- Interference with right to use one’s own name in business
- Interference with family relationships
Misuse of Legal Process
- Malicious prosecution
- Malicious abuse of process
Malicious Prosecution
These acts bar a lawsuit for malicious prosecution:
- Defendant’s action on advice of counsel
- Plaintiff’s guilt of the crime
- Probable cause
Trespass
Defenses:
- The plaintiff did not own or possess the property
- The plaintiff consented to the defendant’s entry
- The defendant did not enter onto or take control of the property
Conversion
Defenses:
- A plaintiff’s failure to establish the right to possession of the property
- A plaintiff’s refusal to demand return, followed by the defendant’s consequent refusal to deliver
Ultrahazardous Activities
- It has a high degree of risk or serious harm
- It cannot be performed without the high degree of risk
- It does not normally occur in the area in which it is conducted
Products Liability
Based on one or more of these legal principles:
- Misrepresentation
- Breach of warranty
- Strict liability and negligence
Types of Product Defects
- Defect in manufacture or assembly
- Defect in design
- Failure to warn
Product Liability Defenses
- State-of-the-art defense
- Compliance with statues and regulations defense
- Compliance with product specifications defense
- Open and obvious danger defense
- Plaintiff’s knowledge defense
- Comparative negligence versus the assumption-of-risk defense
- Misuse of product defense
- Alteration of product defense
Damages in Tort Suits
Two broad categories of damage:
- Compensatory damages
- Punitive damages (exemplary damages) by
Punitive Damages
Can be awarded only in certain situations for ordinary negligence:
- The defendant actually intended to cause harm
- The defendant acted oppressively, maliciously, or fraudulently
Punitive Damages
To assess punitive damages, courts usually consider three factors:
- Nature of the defendant’s actions
- Size of the defendant’s assets
- Purpose of punitive damages
Misuse of Legal Process
- Malicious prosecution
- Malicious abuse of process
Malicious Prosecution
These acts bar a lawsuit for malicious prosecution:
- Defendant’s action on advice of counsel
- Plaintiff’s guilt of the crime
- Probable cause
Trespass
Defenses:
- The plaintiff did not own or possess the property
- The plaintiff consented to the defendant’s entry
- The defendant did not enter onto or take control of the property
Conversion
Defenses:
- A plaintiff’s failure to establish the right to possession of the property
- A plaintiff’s refusal to demand return, followed by the defendant’s consequent refusal to deliver
Ultrahazardous Activities
- It has a high degree of risk or serious harm
- It cannot be performed without the high degree of risk
- It does not normally occur in the area in which it is conducted
Products Liability
Based on one or more of these legal principles:
- Misrepresentation
- Breach of warranty
- Strict liability and negligence
Liability Concepts Affecting Tort Claims
- Joint tortfeasors
- Expanded liability concepts
- Vicarious liability
- Good Samaritan issues
- Class actions and mass tort litigation
Expanded Liability Concepts
- Enterprise liability (industry-wide liability)
- Alternative liability
- Market share liability
- Convert of action
- Conspiracy
- Joint venture
Vicarious Liability
- Principle and agent
- Employer and employee
- Parent and child
Class Actions and Mass Tort Litigation
A trial court considers four features to certify a suit as a class action:
- Numerosity
- Commonality
- Typicality
- Adequacy of representation
