Exam 3 Flashcards
TORT LAW | objectives
Aims of tort law: holding people responsible for wrongs they commit
- Loss distribution/adjustment- shifting losses from victims to perpetrators
—societal component, cost of problem will always be borne by someone and we try to ensure that victims will share in burden with perpetrator - Compensation- thought the award of (pecuniary) damages
—object of compensation is to place victim in position they were in before tort was committed, which is difficult so we compensate - Deterrence- secondary aim
—can deter through exemplary or punitive damages, esp. true in cases of products like cars or pharmaceuticals
TORT | definition
A “civil wrong” - includes both criminal and non-criminal wrongs
Torts refer to a general classification covering civil causes of action providing private remedy for injury to one party caused by tortious conduct of another party
Difference between tort law and contract law
Contract law- plaintiff generally limited to economic damages
Tort law- plaintiff can generally recover economic AND non economic damages
Types of torts
- Intentional torts
- Negligent torts
- Strict liability torts
- Types of torts based on the intent/mindset of wrongdoer
- Direct result on what must be established by plaintiff
Spectrum of fault for 3 types of torts
Intentional torts | intentional or reckless behavior
Negligent tort | unreasonable behavior
Strict liability tort | liability without fault
Intentional Torts | definition
Torts in which defendant possessed the intent or purpose to inflict the resultant injury
Intentional Torts
•defendant possessed the intent or purpose to inflict resultant injury
•most similar to criminal acts
–but objective is $ not punishment
•reckless or intentional behavior
•DONT need to establish objective evidence of harm
Most common types of intentional torts
Assault Battery False imprisonment Intentional infliction of emotional distress Invasion of privacy Defamation of character Fraud Trespass to land Trespass to personal property Conversion Nuisance
Assault
- intentional fraud
* occurs when one person intentionally put another in reasonable fear of an imminent offensive or harmful bodily contact
Battery
•intentional tort
•harmful or offensive touching
—includes pushing, punching, spitting, or shooting
False imprisonment
•intentional tort
•the intentional confinement of a person against their will and without lawful privilege
—can include being handcuffed or locked in a room or a car
Defamation
Intentional Tort
•false statements that injure a person’s good name or reputation
- slander= spoken defamation
- libel= written/printed defamation
To be defamatory the statement must be:
- False
- Communicated to a third party
- The victim’s reputation is ruined or he/she faces ridicule
Trespass to Chattels
Intentional Tort
- Defendant intentionally interferes through physical contact or dispossession
- intent to act, not motive, is required with actual damages shown
•dispossession involves taking chattel from plaintiff’s possession without consent, blocking plaintiff’s access to chattel, or destroying chattel while in plaintiff’s possession
Trespass to Land
Intentional Tort
- Defendant enters plaintiff’s land or causes a person or thing to do so
- Defendant remains on plaintiff’s land after privilege to remain expires
- Intent only is needed; manner may be direct or indirect
- boundaries of land extend above and below he surface
- damage is not required, though plaintiff may recover damages
Negligent Torts
- most common tort
- intent is NOT required for negligence
- must establish objective evidence of harm
- unreasonable behavior
- extent of damage doesn’t have to be foreseeable, still responsible for extent of harm cause by negligence
- doesn’t matter of results couldn’t be reasonably expected
Like other torts, involves 4 elements that MUST BE present
- Duty
- Breach of duty (of care)
- Causation (and proximate cause)
- Injury
Special negligence doctrines
Res ipsa loquitor Negligence per se Dram shop acts Social host liability Guest statutes Good Samaritan laws Fireman's rule "Danger invites rescue" doctrine Liability of common carriers and innkeepers Liability of landowners
Characteristics of Negligent Torts
- conduct which falls below the legal standard for protection of others against unreasonable risk of harm
- objective test of defendant’s actions compared to that which a reasonable person would do in the same situation
- anticipating what others may reasonably do should regulate conduct
Elements of Torts - Negligent Torts
1) duty - defendant’s duty to act or refrain from acting
2) breach of duty
3) causation - casual connection between negligent conduct and plaintiff’s injury
4) damage - actual harm
Elements of Torts | DUTY
- general duty imposed by negligence law is the reasonable-man standard
- reasonable-mans standard= requires that we act with the care and good judgment of a reasonable person as not to cause injury to others
- most difficult item to determine for a case
-zone of danger: reasonable to expect that negligent conduct would harm this person?
- children under 7 are incapable of negligence
- professionals and skilled tradespersons are held to a higher degree of care in their work
Elements of a Tort | BREACH OF DUTY
Defendant’s conduct is compared to reasonable-man standard to see if a violation of the duty occurred
Elements of a Tort | CAUSATION
The violation of the duty must be the cause of injury (damage)
Elements of a Tort | INJURY (damage)
- requires actual harm
- clear and convincing proof of physical or emotional injury
- most than just hurt feelings/upset
DAMAGES
- compensatory: pain and suffering, economic loss, loss of consortium, wrongful death
- punitive: meant to punish defendant
Defenses to Negligence
1) contributory negligence
2) comparative negligence
3) assumption of risk
Contributory negligence
Defendant may not have to pay, his negligence may only have been part of the problem
—only used in some states
Comparative negligence
- Applies when a plaintiff is partially at fault
- defendant’s payment is therefore reduced
- used in most states
Doctrine of Comparative Negligence
- how we apportion fault
- likelihood is that neither party is 100%responsible
- we ask juries to decide an appropriate remedy, based on what portion plaintiff/defendant is responsible
*in Michigan, plaintiff can be up to 50% responsible, in some states its up to 80%
Assumption of Risk
If plaintiff is aware of the danger and decide to subject themselves to the risk anyway
—ex: walking on wet floor when there’s a warning sign
Negligence per se
Definition: violation of a standard of care set by statute
- when we assume negligence unless defendant proves otherwise
- very unusual
- ex: rear-end collision
Res ipsa loquitor
“The thing speaks for itself”
Dram Shop Laws
Established by statute that we owe a duty to ANYONE harmed by our serving alcohol to a minor or a visibly intoxicated person
- expands the zone of danger/who duty is owed to when it comes to selling alcohol
- generally a very short statute of limitations, 100 days
Good Samaritan Laws
Provides immunity from liability for those who go to the aid of others
- should help people who try to help but may unintentionally make situation wore
- ie: doctor who tries to save someone in a car accident
Zone of Danger
part of Duty element
—reasonable to expect that negligent conduct would harm this person?
Strict Liability Torts
Does not involve fault
—liability for inherently dangerous activities where harm results or where products liability is involved
Generally: products, animals, unusually dangerous activities
Exceptions to Fault Based Systems)
1) no-fault statutes (car insurance)
2) workers compensation laws
No Fault
- 12 states have no fault car insurance requirements
- limits ability to seek recover from other drivers/vehicle owners involved in accident
Basic premise: each person in the accident will turn to their own insurance for compensation, both for their person and their car
3 parts of no fault policy
1) Personal Injury Protection (PIP)
* most important
2) Property Protection (PPI)
—property damage to another’s building (Michigan)
3) Residual Liability Insurance Coverage
—property damage in another state
ALL RELATING TO ECONOMIC DAMAGES ONLY
No Fault Threshold
Policyholders can sue for non-economic damages if certain criteria are met:
1) permanent scarring
2) disfigurement
3) death
Non-mandatory Parts of No-Fault Insurance
1) collision and comprehensive insurance- to pay for damage to your car
2) mini tort rider (to cover the $1000)
*good if person you were in accident with doesn’t have sufficient insurance coverage to pay for all your damages, can help bridge gap
Workers Compensation
Employers subject to act must provide som way of assuring it can pay benefits to its workers should they become injured in the workplace/doing work activities
—in Michigan, most buy insurance policy
- Employee is entitled to workers comp benefits without having to go to court/prove stuff
- but they’re limited to these economic damages provided by the workers comp insurance
- if an employer doesn’t have insurance coverage, employee may sue for civil damages
- can result in large payment if employer was at fault
Foreseeability
Extent of damage caused by negligent act doesn’t have to be foreseeable
—still responsible for extent of harm caused by negligence
—doesn’t matter if results could be reasonably expected
Vicarious liability
Holding one person responsible for the acts of another
•ex: giving someone your keys and then they drive negligently, accident is result of both your negligence
Compensatory damages
What is tort remedy intended to fix?
Remedy is intended to compensate injured party and put them back into position they were in before tort was committed
—this is often difficult, so we compensate with money
Economic Damages
Money provided to compensate for money lost based on some objective standard
—ie, wages lost, hospital bills, etc.
Non-economic damages
Money paid to compensate for damages that can’t be objectively quantified
—ie, pain and suffering
—much harder to judge, so amounts tend to be varied
