L Chapter 4 Torts Flashcards
Tort
A civil wrong, not arising from a breach of contract or other agreement. A breach of legal duty that proximately causes another person harm or injury
Civil vs Criminal wrong
A tort is a civil wrong, punishable by compensating or paying damages to, the injured party, rather than a criminal wrong, which is punishable by paying a fine to the government or being imprisoned.
Basically, civil is for rich ppl, criminal is for poor ppl.
Types of Tort Damages
- Compensatory: Reimburse or return actual value of plaintiff injury or loss
- Punitive: Punish tortfeasor to deter similar future conduct
Types of Torts
- Intentional Tort
- Unintentional Tort
- Business Tort
- Cyber Tort
Intentional Tort
A wrongful act the tortfeasor committed knowingly and with the intent to commit the act (not necessarily with the intent to do harm)
Unintentional Tort
A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act. AKA Negligence
Business Tort
Wrongful interference with another’s business rights
Cyber Tort
A tort committed in cyberspace.
How u open Enterneat Expoler? I need 2 find gud thanksgivng recipe 4 family
Intentional Tort: Physical Acts
- Assault
- Battery
- False Imprisonment
- Infliction of Emotional Distress
Assault
An intentional, unexcused act creating in another person reasonable apprehension or fear of immediate harmful or offensive contact (pointing a gun at someone cuz they said ur pillow ugly) Apprehension is “awareness”
Battery
Intentional, unexcused and harmful or offensive contact (Firing a gun becuz person said u have an android not an iphone)
False Imprisonment
The intentional confinement of another person or restraint of another person activity without justification (Someone doesnt flush toilet at taco bell so staff lock him in the bathroom to clean it up)
Infliction of Emotional Distress
An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. (someone said “yo mama so fat, when she goes camping the bears have to hide THEIR food”, so you get depressed because it’s so sad)
Intentional Torts Defenses
Consent Self-Defense Defense or Assistance of Others Defense of Property Necessity
Consent
When a plaintiff consents to the act that damages him or her, the alleged tortfeasor generally is not liable for any damage done
Self-Defense
An individual defending his or her life or physical well-being, either from real or apparent danger, may use reasonably necessary force or resort to reasonably necessary action, to prevent harmful contact.
Defense or Assistance of Others
An individual can act in a reasonable manner to protect or assist others who are in real or apparent danger
Defense of Property
An individual may use reasonable force to remove an intruder from the individual’s home or to restrain the intruder for a reasonable time. Force that is likely to cause death or serious bodily injury (i.e., deadly force) normally may not be used solely to protect property
Necessity
An otherwise tortious act may be excused if the tortfeasor acted in accordance with law or the public good.
DEFAMATION TYPES
Defamation Slander Libel Publication Defamation Per Se
Defamation
Anything published or publicly spoken that injures another’s character, reputation, or good name with respected part of society.
Slander
Defamation in oral form.
Libel
Defamation in written form.
Publication
The speaker must have communicated the statement to persons other than the defamed party.
Defamation Per Se
1) that another has a loathsome communicable disease (e.g., a sexually-transmitted disease)
(2) that another has committed improprieties while engaging in a profession or trade;
(3) that another has committed or has been imprisoned for a serious crime;
(4) that an unmarried woman is unchaste
DEFAMATION DEFENSES TYPES
Truth Privilege Absolute Privilege Qualified Privilege Absence of Malice
Truth
Truth is normally an absolute defense. In other words, if the allegedly defamatory words were objectively true, the defendant cannot be held liable for publishing them.
Privilege
The ability to act contrary to another person’s right without giving legal redress for such acts.
Absolute Privilege
Statements made or actions taken in judicial and certain legislative proceedings (e.g., statements made by attorneys during trial, statements made by legislators during floor debate) are privileged against any claim of wrongful conduct
Qualified Privilege
In other situations, statements or actions made in good faith and, in the case of statements, made only to those who have a legitimate interest in the statement, are privileged
Absence of Malice
Generally speaking, otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice – that is, with either knowledge of falsity or reckless disregard of the truth or falsity
INVASION OF PRIVACY TYPES
Appropriation
Intrusion
false light
Public disclosure of private facts
Appropriation
the use of a person’s name, picture, or other likeness for commercial purposes without their permission; ( right of publicity)
Intrusion
n an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy; Traditional violation of privacy
false light
Publication of information that places a person in false light;
Public disclosure of private facts
about an individual that an ordinary person would find objectionable. Often intrusion + tell lots of people or cause that to happen.
MISREPRESENTATION
Fraud: Intentional deceit, usually for personal gain. Actionable fraud requires:
(1) a misstatement or omission
(2) of one or more material facts,
(3) made knowingly and with the intent to deceive the innocent party,
(4) on which a reasonable person would rely,
(5) and the innocent party actually relied upon her detriment,
(6) causing the innocent party loss.
Negligent Misrepresentation
A material misrepresentation made without knowledge of its falsehood or intent to deceive.
TYPES OF MISREPRESENTATION
Predictions/Opinion
Conduct
Law
Silence
Predictions/Opinion
Not unless done by an expert in his field and knows other could rely.
Conduct
Hiding something etc. can support claim
Law
Not unless one expected to know more about law than most.
Silence
Not unless duty to speak/awareness or later realizes issue or latent defect involved.
Scienter
A person acts knowingly and with the intent to deceive if he: Knowledge of Falsity with intent to deceive
Knowledge of Falsity with intent to deceive
(1) makes a statement he knows is false,
(2) makes a statement he reasonably believes to be false,
(3) makes a statement with reckless disregard for its truthfulness or falsity, or
(4) implies that a statement is made on the basis of information that he does not possess or on some other basis on which it is not, in fact, based.
Reliance
The innocent party must have acted based on (although not solely based on) the misrepresentation and must have acted reasonably in doing so
Injury
In order to recover damages, the innocent party must prove that the misrepresentation injured her or otherwise caused her loss.
WRONGFUL INTERFERENCE
With Contract….Intentionally causing known contract between others.
With Business Relationship….Intentionally prevent starting business relationship where no bona fide competitive situation involved.
Trespass to Land
Entry onto, above, or below the surface of land without the owner’s permission or legal authorization or failure to leave when requested to do so.
Attractive Nuisance
A landowner may be liable for injuries to children enticed to enter the property by, e.g., a swimming pool or an abandoned building.
Defense to Trespass
Trespass may be justified or excused if the trespasser can prove:
Necessity: she was trying to rescue another or save another’s life or property, or
[License: she was invited, and entered before the owner revoked the license, or was based on a continuing situation known to owner.
Trespass to Personal Property
Taking or harming another’s personal property, in a way that interferes with her right to exclusive possession, without the owner’s permission or legal authorization. Usually more temporary and less extreme than conversion.
Conversion
Taking, using, selling, or retaining possession of personal property that belongs to another without the other’s permission or legal authorization. Often involves longer term taking or such damage to property that return is not enough and must repay its value at time of taking.
Disparagement
False statements which harm the assets, business, etc of another ( Defamation vs. others’ financial assets
Disparagement of Quality
Written (trade libel) or oral (slander of quality) publication of false information about the quality of another’s product or services, proximately causing financial loss to the disparaged party. Knowing false statement that quality is bad
Disparagement of Title
False statement that other is not the owner of property.
Negligence
Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances. Legally liable carelessness despite a duty.
Professionals’ Duties
If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a “reasonable professional” can result in the professional being subject to liability for professional malpractice
Causation in Fact
An act or omission without which the plaintiff’s injury would not have occurred. Ex: A throws ball out window and it hits someone five blocks later after many twists and turns
Proximate Cause
Exists when the connection between an act and an injury is direct enough to impose liability. In above case, chain reaction might be too much for direct liability to exist. Ex: guy chokes because he laughs at another falling on roller skate. Direct proximate liability for fall but not for choking guy
foreseeability
if the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.
Res Ipsa Loquitur
A court may infer that negligence caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence. Obvious negligence= “the thing speaks for itself”
Superseding Cause
The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s control, which supersedes the original wrongful act or omission as the cause of plaintiff’s injury or loss.
Assumption of Risk
A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor.
Contributory Negligence
No matter how insignificant the plaintiff’s own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.
Comparative Negligence
More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiff’s own negligence.
Negligence Per Se
An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party.
The “Danger Invites Rescue” Doctrine
In cases where an individual takes foreseeable action to avoid harm or to rescue another from harm, any injury her action causes will be attributable to the original wrongdoer whose fault or negligence caused her to take the defensive action
“Good Samaritan” Statutes
Many states have passed legislation preventing those who are aided voluntarily from then suing the person who rendered the assistance.
[Symbol]“Dram Shop” Liability
Many jurisdictions hold that a business, and in some jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.
Strict Liability
Liability regardless of fault. Among others, defendants whose activities are abnormally dangerous, involve chemicals or biological, or involve dangerous animals are strictly liable for any harm caused. Animals must usually be wild and not domesticated.
Respondeat Superior
Employer may be liable for negligent acts ( even intentional ones) of on-duty employee
