Module 6-Torts Flashcards
What is a Tort
A tort is a civil wrong that occurs when someone (“D”) causes harm/loss to another person or their legally protectable interests (“P”) intentionally, carelessly, or as a result of their dangerous activities, defective products or inadequate warnings.
Reasonable Person Standard
Reasonable person standard:
A purportedly objective standard judged by what a hypothetical “reasonable person” should do under similar circumstances.
But note: a “reasonable person” is not just reasonable. Plaintiffs’ lawyers will always work to convince a jury she is very cautious, prudent, calm, responsible.
Respondant Superior Doctrine
Respondeat Superior doctrine
A master (e.g., employer) may be held vicariously liable for the torts of his servant (e.g., employee) done while acting within the scope of his employment and motivated in part to benefit employer.
Recall: Much harder to hold employer variously liable for acts of Independent Contractors (b/c employers have less right to control how IC acts than how Employee acts)
Negligence law
Negligence law imposes liability where D’s fails to live up to required duty of care: duty to act as “reasonable person” would act under similar circumstances.
Most common form of tort recovery; does not involve intentional misconduct
Negligence Elements
Negligence actions require proof of the following
essential elements:
Duty to follow a standard of care in respect of P
Breach of that Duty
Causation (Factual Cause & Legal Cause)
Damages (harm)
Duty
P’s must prove that Defendant has a legal “duty” to be careful in respect of the plaintiff.
Duty helps determine which persons/injuries are within the scope of liability. No duty = No liability
Breach
“Breach” refers to violation of the applicable standard of care
Breach usually determined by applying “REASONABLE PERSON STANDARD”
Ultimate question: Did D act as a reasonably prudent person would have acted under similar circumstances?
Enhanced standard for experts.
Breack the role of Economic Efficiency
Duty to provide against resulting injuries is function of variables:
(1) The probability of loss; (P)
(2) the gravity of the foreseeable resulting injury; (L)
(3) the burden of providing additional care (B)
Costs, Feasible Alternatives, Convenience, Costs to Society of Losing Risk-Producing Activity
Liability depends upon whether B is less than L multiplied by P
Negligence Defenses
Express assumption of risk: usually occurs when a person signs a written waiver before
engaging in a dangerous activity.
To be valid, it must be clear, unambiguous and voluntary. (See Kurashige)
Implied assumption of risk can be defense even where no advance written waiver is
signed.
Comparative Negligence: In most states, Plaintiffs own negligence can reduce the plaintiff’s recovery by the percentage of responsibility for the injury attributable to the plaintiff.
Tortious Interference
Type 1: Wrongful interference w/ a contractual relationship
Requires plaintiff to show:
Valid and enforceable contract between A and B
C must have actual or constructive knowledge that the A-B contract exists
C intentionally and improperly induces A or B to breach K by non-performance.
Often used when a company wrongfully poaches another’s contractual counterparties,
including buyers, suppliers, etc. (see Pennzoil v. Texaco)
Type 2: Wrongful interference w/ a prospective business advantage/relation
Requires plaintiff to show:
D intentionally and improperly interfered with prospective contractual relationship that plaintiff sought to develop with 3rd party, causing P’s economic loss by preventing a contract from being formed.
Often used when business wrongfully interferes w/ another business’ future customers.
Unfair Competition
State common law prohibits many forms of unfair competition & false advertising:
Breach of Warranty
Right of Publicity: suit for commercial use of name/likeness w/o permission
Federal Trade Commission Act: declares “unfair methods of competition in or
affecting commerce” to be unlawful. 15 USC § 45(a)(1). Enforced by FTC in
cases of deceptive pricing (e.g., bait & switch), false testimonials/simulations.
Lanham Act: forbids use of any false or misleading description or
representation in connection with goods or services that (1) is likely to cause
consumer confusion/mistake/deception, or (2) misrepresents nature,
characteristics, qualities or origin of goods/services. 15 USC § 1125.
Enforceable by “any person who believes that he or she is or is likely to be
damaged by such an act.”
Defamation
Tort of defamation can be used to seek compensation from one who (1)
communicates to a 3rd party (2) false statements of fact about another person (3)
that causes harm to subject’s reputation by exposing them to hatred, ridicule, etc.
Products Liability
Businesses are often held liable for injuries caused by products they sell. Theories of liability include
Br/K, breach of warranty, negligence & strict liability
Many states adopt liability approach of Restatement (2nd) of Torts:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the ultimate
user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a
product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.”
Causation
Plaintiff must provide evidence that the defendant’s conduct was the factual
and legal cause of plaintiff’s damage.
Types of Civil Tort Damages-Compensatory Damages
Compensatory Damages
Designed to restore injured party, as nearly as possible, to position he would have been in, had it not been for
wrong of other party (i.e., status before the injury)
Available for pecuniary losses & non-pecuniary losses:
Pecuniary Losses: Includes damage to property, out of pocket medical expenses, future medical expenses, past and future lost wages, etc.
Non-pecuniary losses: Includes past and future pain & suffering, humiliation, anxiety.
Plaintiffs still have duty to mitigate.
