Torts Flashcards
What are the goals of tort law
(1) to compensate the innocent party
(2) to deter similar conduct by the same defendant or others
(sometimes by imposing punitive damages).
What are the 3 types of torts
-Intentional
-Negligence
-Strict Liability
What is Intentional Torts
Where one person intentionally injures another (occasionally, but not always, a crime).
What are Torts based upon Negligence
Most torts occur when one person acts in a careless manner, causing an injury to another person. A person is negligent if he or she breaches
a duty of care that results in harm to another person.
Strict Liability Torts
Certain torts where the fact of injury means that somebody has done something wrong
Tortfeasors are
defendants
Plaintiff-victim can file a case against multiple defendants.
Example: Plaintiff-victim files a case against one defendant, and then that defendant
joins/sues other defendants, claiming they contributed to the problem.
class actions are
-Multiple victims
-Large groups of injured persons, can all be plaintiffs in a single
lawsuit, rather than filing hundreds or even thousands of separate suits.
TORTS BY NEGLIGENCE
Violation of a statute (NEGLIGENCE PER SE: / a criminal or civil / finding is proof of negligence.)
Often, the government will place affirmative requirements on the producers of
products the
failure to comply with such requirements = negligence per se.
elements of a Lawsuit based on negligence
- That the Defendant owed a duty of care to the person injured
(plaintiff); Courts apply the “reasonable person” standard. - That the Defendant breached the duty of care through his or her unreasonable
conduct, - (1) ACTUAL AND (2) PROXIMATE CAUSE of the victim’s injury.
- That the injury justifies an award of damages (in other words, the victim has
demonstrated some real economic loss, or damage, that might include pain and
suffering), and that there is no social policy that should result in the defendant not
being liable.
Duty of Care
Every person must operate as a “reasonable person”, and use “ordinary care” in how we interact with others.
Duty of care test
Test: Did the defendant either
(1) do the act that was unreasonable,
under the circumstances; or
(2) not do an act which a reasonable person should have done under the
circumstances.
Causation
The defendant’s conduct must be both the actual and proximate cause of the victim’s
injuries.
Actual Cause test
Would the injury have occurred “BUT FOR” the defendant’s conduct.
Proximate Cause Test
Did the act actually cause the injury?
Proximate cause = the true cause which, in a natural, predictable, and
continuous sequence, caused the injuries.
Proximate cause will be found if the consequences were foreseeable, in
advance, that the harm or injury is a likely result of the acts or omissions.
Foreseeability
limits liability
Foreseeability only exists when
a reasonably prudent person would be able to reasonably
foresee their conduct as injuring others.
Social Policy
: We don’t hold people liable for unpredictable and unexpected consequences of
their actions.
“the thing speaks for itself”
This doctrine permits the jury to find the defendant liable in a tort case that:
1. The event at issue doesn’t usually happen without being negligent;
2. Parties other than the plaintiff have been ruled out as being negligent;
3. The negligence at issue is within the scope of defendants’ duty of care to the plaintiff.
THE INJURY REQUIREMENT
No injury= no tort
Why? Purpose of tort law is to compensate people for their injuries. If there is no injury, then
there is no tort.
there must not be a social policy (public policy) that says that the plaintiff is not entitled
to damages.
Example: workers compensation programs provide a comprehensive scheme to compensate
injured workers, and in return they may not sue the employer if they are injured on the job.
Defenses to Negligence
Assumption of risks and obvious dangers
If you voluntarily put yourself in a dangerous situation, and are injured, you can’t sue to
recover damages.
Contributory negligence
make it impossible for plaintiffs to recover
anything if they were even minimally at fault. Still, some states continue to operate under
this regime. Washington does not.
Comparitive negligence
(damages split by % each party is found to be at fault) and “modified comparative
negligence”, where the rule is that the defendant must be MORE negligent than the plaintiff,
or the plaintiff recovers nothing.
What type of Negligence state is Washington?
Pure comparative Negligence
PROFESSIONAL LIABILITY
Failure to use degree of caere/learning and skill applied by the avergae member of the proffesion or sometimes locality
PREMISES LIABILITY
Duty of care we owe determined how guests are classified.
If tresspassers come you have no duty to
warn them of natural conditions
ppl who are present at your invitation
are known as licenses
Customers in Business Premises:
The people are known as INVITEES.
TORTS BY INTENTIONAL CONDUCT
1) Deliberate, intentional conduct by one person, that
(2) a reasonable person would have known that harmful consequences were
likely to follow the act, and that
(3) injures another person, is an intentional tort.
Self Denfense
Violent conduct, which would otherwise be criminal behavior, is justidied un defense of yourself or other person
What are the defendants, state, and juries respsonsibility in self defense case?
Defendant: Burden of providing evidence it was self defense
Sate proves defendant did not act in self defence
Jury: evaluates self degense by applying combination of subjective and objective criteria
SELF DEFENSE IS JUSTIFIED WHEN:
Genuine and resaonble fear from the defendants POV
May only use proportionate force.
SELF DEFENSE IS JUSTIFIED WHEN:
Genuine and reasonable fear from the defendants POV
May only use proportionate force.
Intentional Infliction of mental / emotional Distress.
A. Extreme or outrageous conduct with the intent, or reckless disregard of the
probability of causing emotional distress.
Few defendants try to harm others; that’s why most cases are based on reckless
conduct, where the jury can conclude the defendant should have known their conduct
would have injured the plaintiff.
B. Victim is injured (is not limited to physical injury)
C. Actual and proximate causation.
5. Invasion of privacy (four separate torts)
A. Appropriation: Using a person’s likeness without permission (usually in a business
context).
B. Intrusion into solitude
recording any private communication w/o obtaining consent of a;ll participants
c. False light
publush soemthin with signficant misinfo
D public disclosure of private facts
Defamation
Libel (Written) and Slander (spoken)
Plaintiff bears the burden of proving by a preponderance of the evidence:
1. That the libel was communicated to a third person (or, the press is the
defendant, it must be “published”)
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2. That the plaintiff was identified (this is an element, even though the text only
implies as much)
3. That the words were defamatory***, e.g. it causes harm to the plaintiff
4. That the defamatory statement was false (this is sometimes considered a “defense” to
the tort.
Proving Fault
a. Public Figures - or those who Hold Office
Publication must be knowingly false or published with reckless disregard as to
whether it was true or false (ACTUAL MALICE TEST)
Note that the fact finder (jury) makes the decision about whether or not a person is or
is not a public figure. Public figures may be “limited”, or general.
b. Non-public figures
the publication was negligent
Elements of Fraud:
- False statement about something important
- Knowledge (or have reason to know) the statement was false.
- Desire or intent to deceive the other party;
- about a material fact (a fact that matters)
- Which induces reliance
- And causes damage
- That are causally related to the misstatement
- There is privity (a relationship that creates a legal obligation) between the
parties.
INTENTIONAL INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP.
- A valid contract
- Def’s knowledge of the contract
- Def’s intentional inducement of breach, or interference with the relationship
- Without justification
- Damages.
INTENTIONAL TORTS AGAINST PROPERTY
A. Trespass to Realty / Trespass to real property. Using another’s land without
permission.
B. Trespass to personality (using or interfering with another person’s property for a short
period of time).
C. Conversion (More commonly thought of as Theft).
Modern rules
Protect consumers
Product liability torts treats manufacturers and product sellers
1.Strict Liability
There is strict liability (fault is irrelevant) for construction defects (meaning, the product
was not reasonably safe in construction; e.g. it deviated from other similar products) and
the defect proximately caused the harm.
(b) Breach of Warrant
The product was not safe because it did not conform to an express (clear promise) or
implied warranty (e.g., merchantability)
2. RISK-UTILITY BALANCING TEST IS USED IN PLACE OF PROXIMATE
CAUSE FOR (a) DESIGN DEFECTS AND (b) INADAQUATE WARNINGS.
a.Design defects
(B) INADEQUATE WARNINGS
A product is not reasonably safe because of inadequate warnings or instructions if, at the
time of manufacture,
(1) the likelihood that the product would cause the subject harm or similar
harms, plus the seriousness of those harms, rendered the warnings and
instructions given inadequate
AND
(2) the manufacturer could have provided adequate warnings and
instructions.
PRODUCT SELLERS
these are typically retailers or wholesalers.
The point of the statute is to make these entities less vulnerable to product liability lawsuits
than manufacturers (who created the problem).
A product seller is liable to the claimant only if the claimant’s harm was proximately
caused by:
(a) The negligence of such product seller; or
(b) Breach of an express warranty made by such product seller; or
(c) The intentional misrepresentation of facts about the product by such product seller
or the intentional concealment of information about the product by such product seller.
Market Share Liability / or Joint and Several Liability
if multiple defendants amnufature a profuct that is shown to be dangerous we look at the share of market that eCJ Mjor manufacturer controlled at the time.
For market share liability all defendant must be tortfeasors and must prove
- The harmful products are
identical. - Plaintiff, through no fault, cannot establish exact tortfeasor.
- All manufacturers sold product in same geographic area at same time.
DEFENSES TO PRODUCT LIABILITY LAWSUITS
- Product misuse
- Assumption risk
- sophisticated users
- statute of repose
This limits the time period for which a tort can be brought by looking back to
when the product was purchased by the consumer. Example: No lawsuits unless the widget was purchased within the past 3 years. (This is different from
a statute of limitations, which typically starts when the EVENT that is the tort
occurs). - State of the Art Defense
Manufacturer may show that, at the time it produced the product, the product was reasonable given the available scientific evidence.
STRICT LIABILITY TORTS
In some circumstances, as a matter of public policy, certain people and businesses MUST
compensate persons who are injured by their products, services or activities.
The victim need not prove an intentional tort, or even a tort based upon negligence.
WRONGFUL DEATH STATUTES
Allow family members who depend on the income of the deceased to sue for loss of
companionship and lost future
income.
SURVIVOR STATUTE
Allow the decedent’s claim to flow to his estate, and the estate to sue, then distribute the
money to the heirs.
Example: If I died on the Alaska Airlines flight, leaving no children or dependents, my estate
could still sue the airline for my “pain and suffering” and the award would go to my heirs
(whoever I designate in my will).
BARRIERS TO THE COLLECTION OF DAMAGES:
Statute of limitations.
Judgment Proof Debtors.
DAMAGES
-Compensatory: Special & general
-Nominal
-Punitive
Special Damages
= Out of pocket damages that can be specified: Lost wages,
medical bills, lost income, cost of repairing a car. Cost of future lost wages
(w/discount rate).
General Damages
= Other than out-of-pocket expenses. These include PAIN AND
SUFFERING, MENTAL DISTRESS, LOSS OF CONSORTIUM (not available unless married).
Compensatory damages
e they consist of money
damages awarded to the plaintiff for real (actual) loss or injury. They may be broken down
to:
Special
General
NOMINAL DAMAGES
Unusually very small, token damages – but this is a necessary predicate to punitive damages
and (occasionally) statutory, or contractual, attorney fees.
PUNITIVE DAMAGES
This is the case where the civil law PUNISHES the tortfeasor by allowing extra damages where
the tortfeasor is particularly blameworthy (that is, the conduct at issue was flagrant,
unconscionable, or egregious).
Can’t get punitive damages w/out
getting some general damages (though these may be
“nominal” damages.
The Supreme Court has set general limits on punitive damages; they cannot
exceed
10x compensatory damages
Punitive damages are never awarded
in contract cases
Duty to Mitigate
Like in contract cases, there is always a duty on the injured party to mitigate damages by
taking reasonable steps to limit damages.
claimant’s damages.
The percentages of the total fault attributed to at-fault entities shall equal one hundred
percent. The entities whose fault shall be determined include the claimant or person
suffering personal injury or incurring property damage, defendants.
