Tort Law Flashcards
Tort
Civil wrong, not arising from a breach of contract, society compensates those who have suffered injuries as a result of the wrongful conduct of others, idv. vs. idv.
Damages
Money sought as a remedy for a breach of contract or a tortious (wrongful) act
Damage
Refers to actual harm done
Class-Action Lawsuit
Suit in which a number of persons join together to bring an action
Defenses
Reason offered by the defendant as to why the plaintiff should not recover or establish what they seek
Liability
Legally responsible for something
Intentional Tort
Wrongful act knowingly committed, Act, Intent, Causation, Damage
Tortfeasor
One who commits a tort
Assault
Any word or action intended to make another person fearful of immediate physical harm or cause apprehension
Battery
Completion of the act that caused apprehension, if it results in harm, intentional touching of another
How to determine if touching is offensive
Reasonable person standard
False Imprisonment
Intentional confinement of another person without justification
Defamation
Anything published or publicly spoken that causes injury to another’s good name, reputation, or character, also false statements about products, businesses, or titles to property
Libel
Defamation in written form
Slander
Defamation in oral form
4 Parts Necessary to Establish Defamation
1) must have been a false statement of fact (not just a negative opinion)
2) Was understood to be about the plaintiff and tended to harm plaintiff’s reputation
3) Statement was published to at least one person other than the plaintiff
4) If plaintiff is public figure must prove actual malice
Is a person who repeats or republishes defamatory statements also liable?
yes
Privilege
Immunity from liability for an action that would otherwise be a tort (Judge or attorney in court have privilege), defense against defamation charge
Actual Malice
Defamatory statement made about a public figure with knowledge of its falsity or with reckless disregard for truth
Tort of Appropriation
Act of invasion of the right to privacy, use of a person’s name, picture, or other likeness for commercial purposes without permission
Invasion of the home
Act of invasion of the right to privacy, invasion into an individual’s affairs or seclusion in an area where the person has a reasonable expectation of privacy
Invasion of privacy in publication
Act of invasion of the right to privacy, publication of info that places a person in a false light (saying something they didn’t do), crosses towards defamation
Public Disclosure of Private Facts
Act of invasion of the right to privacy, public disclosure of public facts about a private individual that an ordinary person would find objectable
Fraudulent Misrepresentation
Misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would/does detriment
Elements of Fraudulent Misrepresentation
1) Misrepresentation of facts or conditions with the knowledge that they are false or with reckless disregard for the truth
2) Intent to induce another to rely on the misrep.
3) Justifiable reliance on the misrep. by the deceived party
4) Injuries suffered as a result of this reliance
5) Casual connection between the misrep. and the injury
Puffery
“Seller’s Talk”, saying you’re the best at something isn’t fraud because impossible to prove a true best
Abusive or Frivolous Litigation
People have a right to not be sued without a legally and proper reason
Malicious Prosecution
Can be sued for starting a lawsuit out of malice or without legal reason and then lost said suit
Abuse of Process
Person using legal process in an improper manner or to accomplish a purpose it was not designed for
Business Tort
Wrongful interference with another’s business rights
Wrongful Interference with a Contractual Relationship
1) Valid, enforceable contract must exist between two parties
2) A third party must know this contract exists
3) Third party must intentionally cause either of the two parties to break the contract
Wrongful Interference with a Business Relationship
Businesses are forbidden by court to interfere unreasonably in other business’s attempt to gain a share of the market (predatory behavior), can’t solicit only customers who have shown interest in a similar product (need to just attract customers in general)
Trespass to Land
Entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization or causes anything to enter the land, liable for damages caused and can’t hold owner liable for injuries sustained on property
How can trespassers be removed?
With reasonable force
Trespass to personal property
Unlawful taking or harming of another’s personal property, interference with another’s right to the exclusive possession of their personal property
Personal Property
Object you can move
Conversion
Wrongful taking, using, or retaining possession of personal property that belongs to another, includes electronic data
Disparagement of Property
Economically injurious falsehoods about another’s product or property, published with the intent of discouraging a third person from dealing with the person slandered.
Slander of Quality
Disparagement of Property, Publication of false info about another’s product, alleging it is not what its seller claims, plaintiff must prove actual damages
Slander of Title
Disparagement of Property, publication of a statement that denies or casts doubt on another’s legal ownership of any property, causing financial loss to that property’s owner
Negligence
Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances, creating risk
Duty
Did the defendant owe a duty of care to the plaintiff?
Breach
Did the defendant breach that duty?
Damages
Did the plaintiff suffer a legally recognizable injury as a result of the breach?
Causation
Did the Defendant’s breach cause the plaintiff’s injury?
Duty of Care
People are free to act as they please so long as their actions do not infringe on the interests of others, exercise a reasonable amount of care in dealings with others
Reasonable Person Standard
Society’s judgement on how people should act, careful, conscientious, even-tempered, and honest
Duty of Landowners
Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm, includes trespassers
Business Invitees
A person, customer, who is invited onto business premises by the owner for business purposes (Duty to exercise reasonable care)
Duty of Professionals
If an individual has knowledge, skill, or intelligence superior to that of an ordinary person, the individual’s conduct must be consistent with that status, taken into account of their reasonable care
Injury Requirement
For a tort to have been committed the plaintiff must have suffered legally recognizable injury, must have suffered some loss, harm, wrong, or invasion of a protected interest
Causation in fact (Actual Cause)
If the injury would not have occurred without the defendant’s act, but for test
Proximate Cause
When the connection between an act and injury is strong enough to justify imposing liability, helps limit scope of liability
Foreseeability
Test for proximate cause, no proximate cause if harm or consequence was unforeseeable
Defenses to Negligence
Assumption of Risk, comparative negligence, strict liability
Assumption of Risk
Defense to Negligence, Plaintiff voluntarily enters into a risky situation and knows the risk involved
1) Knowledge of the risk
2) Voluntary assumption of the risk
Comparative Negligence
Liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person’s proportional negligence
Strict Liability
Liability regardless of fault, abnormally dangerous activities
Burden of Evidence for Tort
preponderance of evidence, more likely than not
Joint Tortfeasors
Two or more wrong-doers, each is liable to the victim for ALL damages, damages are then split
Right of Indemnity
Tortfeasors can ask the other tortfeasor to pay their fair share back to them (One puts up the full $100,000 but the other is responsible for 40%)
Iowa Fault Rule
Must be more than 50% at fault to be held liable for all damages, otherwise just liable for your portion
What if the plaintiff is also at fault?
Their portion of the responsibility won’t be paid in damages
Act in Intentional Tort
Purposeful movement by defendant
Intent of Intentional Tort
Know you are doing something bad
Eggshell Plaintiff Rule
Defendant doesn’t need to intend all injuries but is liable for all
Doctrine of Transferred Intent
If you meant to injure A but injure B instead you are still liable
Causation of Intentional Tort
The conduct of defendant is a substantial factor in bringing about the injury
In causation what must you analyze?
Actual cause and proximate cause
Damages
Plaintiff suffers harm or injury, past, present, and prospective damages must be paid
Defenses to Intentional Torts
Express Consent, implied consent, self-defense, defense of others, defense of property, necessity
Express Consent
Competent, voluntary, act limited to scope of consent
Implied Consent
Reasonable person would infer from plaintiff’s conduct, implied by law
Self-Defense
Use of reasonable force to protect against injury, reasonable belief (don’t need to be correct), no retaliation, can use equal force back (reasonable force necessary to stop attack), don’t have to try and escape (retreat is not required)
Defense of Others
Reasonable belief, protect someone who can’t defend themselves
Defense of Property
Reasonable force to prevent harm/destruction of property, NO deadly force (Life trumps property), request to cease unless circumstances would make it dangerous or request would be futile
Necessity
May interfere with the property of another where reasonably necessary to avoid injury, threatened injury is substantially more serious than the invasion
Public Necessity
Defense is absolute (Don’t pay for anything), protects public wellbeing
Private Necessity
Defense is qualified, don’t need to pay for trespass but may need to pay for related damages since it only helped you (Breaking someone’s dock seeking harbor in a storm)
Negligence
Duty, Breach, Causation, Damages
Reasonable Person
In trial has same characteristics as defendant (physical limitations, mental ability, special skills)
Who is duty owed to?
Foreseeable plaintiffs, anyone who may be affected
What do statutes, contracts, and special relationships create?
Duty
Negligence Per Se
Question for the jury is only causation and damages, duty and breach were obvious
How do you alleviate causation?
Find a break in the chain events to show it wasn’t your fault
Defenses to Negligence
Contributory Fault, Comparative negligence, assumption of risk and commonly known damage
Contributory Fault
Defenses to Negligence, Under common law if plaintiff is partially at fault you can’t bring the case to court, no recovery
Comparative Negligence
Defenses to Negligence, Plaintiff may recover portion of damages, jury weighs plaintiff’s negligence against defendant’s, reduces plaintiff’s damages accordingly (In IA must be less than 50% at fault to recover
Assumption of risk and commonly known damage
Defenses to Negligence, Voluntarily accepted risk of injury means no compensation
