Chapter Seven Flashcards
Restatement of the Law of Torts, Second
an authoritative secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be
Assault
an intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact
Battery
an intentional act that creates a harmful or offensive physical contact
Transferred intent
a legal fiction that if a person directs a tortious action toward A but instead harms B, the intent to act against A is transferred to B
False imprisonment
occurs whenever one person, through force or the threat of force, unlawfully detains another person against his or her will
Defamation
spreading rumors to ruin a person’s reputation
Slander
spoke defamation
Libel
written defamation
Defamation per se
remarks considered to be so harmful that they are automatically viewed as defamatory
Malice
making a defamatory remark either knowing the material was false or acting with a reckless disregard for whether or not it was true
Invasion of privacy
an intentional tort that covers a variety of situations, including disclosure, intrusion, appropriation, and false light
Disclosure
the intentional publication of embarrassing private affairs
Intrusion
the intentional unjustified encroachment into another person’s private activities (neighbor eavesdropping)
Misfeasance
acting in an improper or a wrongful way
Nonfeasance
failing to act
Res ipsa loquitor
the thing speaks for itself, the doctrine that suggests negligence can be presented if an event happens that would not ordinarily happen unless someone was negligent
Actual cause
also known as cause in fact, this is measured by the “but for” standards: but for the defendant’s actions, the plaintiff would not have been injured
Market share theory
a legal theory that allows plaintiffs to recover proportionately from a group of manufacturers when the identity of the specific manufacturer responsible for the harm is unknown
Proximate cause
once actual cause is found, as a policy matter, the court must also find that the act and the resulting harm were so foreseeably related as to justify a finding of liability
Contributory negligence
negligence by the plaintiff that contributed to his or her injury
acts as a complete bar to a plaintiff’s recovery
Comparative negligence
a method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate decrease in the compensation for the injuries
Assumption of the risk
voluntarily and knowingly subjecting oneself to danger
Exculpatory clause
a provision that purports to waive liability
Recklessness
disregarding a substantial and unjustifiable risk that harm will result (gross negligence)
Strict liability
liability without having to prove fault
sellers are liable for their consumers harm
Ultrahazardous activities
those activities that have an inherent risk of injury and therefore may result in strict liability
Products liability
the theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous
Product misuse
when the product was not being used for its intended purpose or was being used in a dangerous matter; it is a defense to a products liability claim so long as the misuse was not foreseeable
Torts
private wrong or property is harmed because of another’s failure to carry out a legal duty
When does a tort law apply?
when someone injures you
slanders your reputation
damages your property
Private Wrong vs Public Wrong (criminal act)
Individual must pursue tort action
Result damages awarded
Same set of facts tort action and criminal action
Tort Action vs Contract Action
Tort actions: legal duties are established by the courts
Contract actions: based on legal duties the parties established in their contract
Remedy for contract
give the injured party the benefit of a bargain
Remedy for tort
compensate the plaintiff for any losses suffered
Three types of torts
Intentional acts
Negligence
Strict liability
Defense of assault and battery
plaintiff must prove each element if tort defendant can claim 1. consent 2. self defense 3. defense of others 4. defense of property
Elements of false imprisonment
Intentional act
Caused confinement/restraint
Through force or threat of force
Defenses to false imprisonment
Defendant justified in detaining plaintiff by probable cause, reasonable time and reasonable manner
Elements of defamation
publication
false statements
cause harm to reputation (defamation per se)
Defense of defamation
truth
some situations where publication of false statement privileged
statements published on internet
cannot sue the website, only the person who posted it
Appropriation
unauthorized exploitative use of one’s personality, name or picture for the defendant’s benefit
False light
use of picture or some other means to infer a connection between the person and an idea or a statement for which the individual is not responsible
Intentional infliction of emotional distress
the tort of outrage severe restrictions 1. an intentional act 2. extreme and outrageous 3. and causes 4. severe emotional stress (result in physical injury)
Elements of tort law (negligence)
duty
breach of duty
causation
injury
Harm to a person’s property
- trespass to land
- trespass to personal property and conversion
- defenses to torts against property
Trespass to land elements
someone enters or causes something to enter or remain
one the land of another
without permission
Trespass to personal property and conversion
someone harms or interferes with the owner’s exclusive possession of the property but has no intention of keeping the property
Defenses to torts against property
private necessity
public necessity
retaining someone else’s property
False arrests
arrested with or without probable cause and not special circumstances
Malicious prosecution
improper use of courts/legal proceedings
Fraud
intentional misrepresentation
Interference with a contractual relationships
interfering with performance of a contract
Duty
due care
how a reasonably prudent person would act in the same situation
duty should be consistent training, age, physical
misfeasance vs nonfeasance
Breach
how a reasonable person would have acted
res ipsa loquitor
injury under the defendant’s exclusive control
Cause
but for standard sometimes more than one cause substantial factor Market share theory Proximate cause Intervening cause Superseding cause
Intervening cause
another factor intervenes that contributes to the plaintiff’s injury
Superseding cause
intervening cause makes defendant’s negligence no longer makes them liable
Defenses to negligence
Contributory negligence
Comparative negligence
Assumption of risk
Exculpatory clause
Harm of negligence
compensate plaintiff for any harm
emotional distress in zone of danger
What is comparative negligence measured in?
percents and damages disturbed proportionally
FTCA
can sue gov for harm caused by gov employees negligence
Strict liability elements
Ultra hazardous activities
Products liability
Defense to strict liability torts
Product misuse
New torts
Wrongful life
Battered spouse syndrome
Drug dealer liability act
Remedies
Injunction Compensatory damages Special damages General damages Punitive damages Nominal damages
Martha and Pat were at a baseball game. Both had attended games before and were aware that sometimes flyballs went into the bleachers. At the bottom of the 9th, a fly ball hit Martha in the head. Martha sue the baseball team for negligence. She has since fully recovered from her injury.
Martha will probably lose her suit because she assumed the risk of injury
A three year old child opened a stove door in order to step on it in an attempt to reach a shelf located above the stove. If the child’s parents were to sue the manufacturer using strict liability as the basis for their lawsuit
they would most likely win. Even though a stove is not meant to be used as a stepping stool, such misuse was foreseeable and could have been avoided by a different design
Ralph watches in horror as Jim points a gun at Ralph. Jim aims and fires a bullet that goes through Ralph’s shirt sleeve, barely missing his arm.
Both an assault and a battery have been committed
Typically, a statute providing a shopkeeper with a defense to false imprisonment requires that the detention
be for only a reasonable time.
be based on probable cause to believe the detainee was shoplifting.
be for only a reasonable manner
A movie star sued a tabloid newspaper for statements it made regarding her abuse of drugs. The story was not true, having been invented by the editors to sell newspapers. Assume the movie star lost several employment opportunities because of the story and she decided to sue.
It is likely she could win a libel suit because the statement was false and it was printed with malice.
Barney was sitting peacefully in a bar, sipping his drink. Suddenly a fight broke out between two other patrons and one of them threw a bar stool. The stool missed its target, hitting Barney across the back of his head, knocking him unconscious.
This is an example of both a tort and a crime.
Matt lost his Introduction to Law text, so he “borrowed” Sam’s copy without first asking Sam’s permission. After using it to study for the exam, he gave it back to Sam. This is an example of
trespass to personal property
For which of the following, will the court be most likely to find that the defendant engaged in reckless behavior?
A golfer sees that there is a person standing where he is planning on hitting his ball. He yells a warning, but before the other person can move, he takes his shot and the ball hits the other player.This answer is correct.
A man is injured through a motorcyclist’s negligent driving. The injured man is taken to the hospital, and his injuries are made worse through a doctor’s malpractice.
The motorcyclist will be responsible for all of the injuries, including those that were made worse by the doctor’s malpractice
Your boss has asked you to research a client’s situation involving tort law. You would look at all of the following resources, except
the United States Constitution
Jill and Samantha were arguing. Soon Jill lost her patience, and in an effort to make Samantha pay attention to what she was saying, she punched her lightly in the arm. Unbeknownst to Jill, Samantha had recently undergone surgery on her arm, and the light punch ruptured her sutures, causing her a great deal of pain.
Jill will be liable to Samantha for her medical bills and pain and suffering because she intentionally hit Samantha on the arm
The legal duty you owe is influenced by
your age and experience
your relationship with the person harmed.
The “guideposts” the Court developed to analyze the appropriateness of the size of a punitive award, include all the following except
whether the lawsuit is based on personal injury or property damage
Assume John swung his fist, meaning to hit Bill. However, Bill moved aside and John hit Sara instead.
John is liable to Sara for battery under the theory of transferred intent.
