Torts Flashcards
Intentional
defendant intended to commit an act, that caused harm to another, and that harm was forseeable
Preponderance of Evidence
to prove something is more likely than not
Compensatory Damages
medical bills, lost wages, harm to reputation, sometimes emotional distress
Punitive Damages
defendant’s conduct was “willful and wanton”, this is intended to punish and deter
Battery
the intentional and harmful OR offensive touching of another without their consent
Elements of Battery
- Harmful - produced bodily injury
- Offensive - calculated to offend a reasonable sense of personal decency
- Intentional - either intent to cause the conduct or intent to cause apprehension that such contact is imminent (and then contact occurs)
Doctrine of Transferred Intent
if you mean to hit arthur, but miss and instead hit bobby you are still liable for bobby’s injury
Assault
intentionally placing another in immediate apprehension for their physical safety, it HAS to be imminent!
Assault/Battery in Business
If a bouncer is being aggressive, not only is the bouncer liable but so is the bar/club, also negligence
False Imprisonment
Intentional, unjustified confinement of a non-consenting person
False Imprisonment in businesses
Mall jails - shoplifters, if handled improperly…it must be injustified. it has to be for a reasonable time and in a reasonable way
Defamation
publication of untrue statements about another person that hold that person’s character in contempt or ridicule
2 Kinds of Defamation
Slander - oral
Libel - written
Defenses to Defamation
- Truth (defendant’s burden to prove the truth)
- News media are not liable for defamatory untruth printed about public officials and figures…unless the plaintiff can prove untruths were published with malice
Injurious Falsehood (Trade Disparagement)
publication of untrue statement that disparage the plaintiff’s business, product, or quality
Invasion of Privacy
interference with a person’s right to be left alone
3 Kinds of Invasion of Privacy
- Public disclosure of private facts - where disclosure is highly offensive to a reasonable person BUT not for public figures/truth is not defense
- Intrusion upon solitude - intentionally intruding on a person’s private life (wiretapping, stalking)
- Unauthorized appropriation of name or likeness for commercial purposes - without consent or to imply endorsement
Fraud
false, material misrepresentation of fact
Fraud is a…
tort, crime, and defense to contract
Mail and Wire Fraud
any other kind of fraud done through mail or by electronic means across state lines (20 years in prison)
Securities Fraud
often based on financial statements provided to public
Health Care Fraud
e.g billing for services not performed, “upcoding”, accepting kickbacks for referrals
Bankruptcy Fraud
falsify info in bankruptcy proceedings by either the debtor (not disclosing assets) or a creditor (inflating claim)
Tax Fraud
willful evasion of taxes
Intentional Interference with Contractual Relations
defendant intentionally interferes with an existing contract between plaintiff and third party (trying to steal employees who have agreed to work for a certain time)
Conversion
wrongful exercise of power and control over personal resources that belong to another (stealing, withholding, destroying, transferring something that is not yours)
Trespassing
any unauthorized intentional intrusion upon another’s real property
* only need minimal intent - intended to be on land
Versions of Trepassing
- physically entering land
- causing another person to enter plaintiff’s land
- remaining on land after one’s rights have ceased
- failing to remove from the land something you have a duty to
- causing an object to enter the land
- invading airspace or subsurface
Computer Fraud and Abuse Act
knowingly and with intent to defraud, accesses a protected computer without authorization AND obtains anything of value
Nuisance
interference with the plaintiff’s use and enjoyment of their land that is substantial and unreasonable
Negligence
- defendant owed a duty of care to plaintiff, AND
- defendant breached that duty, AND
- breach was actual and proximate cause of the injury experienced by plaintiff
Duty
duty to perform obligations with knowledge, skill, and care
Duty of Reasonable Care
must act a reasonable person would act under same or similar circumstances
**Property Damage, you must know…
property damages is the consequence of some tort it is not itself a tort, you must tie it to a tort
Types of Injuries
- Personal
- Property
- Emotional
Plaintiff can recover for only those injuries that were caused by the breach of duty. The breach must cause the injury in BOTH two ways:
- Actual Cause: the injury would not have occurred “but for” the breach AND
- Proximate Cause: the injury is a “natural and probable consequence” of the breach
Defenses to Negligence
Intervening cause, contributory or comparative negligence, or assumption of the risk
Intervening Cause
a later act, force, or event that was not foreseeable to the defendant contributes to the injury
Contributory Negligence
if the plaintiff has any fault in causing the harm, defendant is not liable at all
Comparative Negligence
jury assigns % of fault to plaintiff and each defendant, only liable for you % (Kansas law - plaintiff is over 50% liable then it is contributory)
Assumption of the Risk
voluntary consent to a known danger
Negligence: Products Liability
a manufacturer or seller:
1. who sells a product in a defective condition
2. which is unreasonably dangerous to the user
3. is subject to liability for physical harm or property damage to the user if
4. the product reaches the user without substantial change in the condition in which it is sold
5. rule applies even if the manufacturer/seller has exercised all possible care
A product is in a defective condition if it has a defect in…
design, manufacturing, instruction, or warning and such defect existed at the time the product left the manufacturer/seller
A defective condition is unreasonably dangerous if it is…
used in the way it is ordinarily used, AND is dangerous to an extent beyond that which would be contemplated by the ordinary customer who purchased
A consumer has a duty to use ordinary care for their own safety and protection, consumer must:
exercise ordinary care with reference to obvious defects and dangerous conditions, use product in accordance with adequate instructions and warnings, and use in a normal manner
Plaintiff’s Duty to Mitigate Damages
in determining the amount of damages sustained, should not include any loss in which:
- plaintiff could have prevented
- by reasonable care and diligence
- exercised after the loss occurred
Punitive Damages
- available in some intentional tort cases, if conduct was “willful and wanton”
- generally NOT available in breach of contract
- generally NOT available in negligence actions, unless “gross negligence”
- statutory caps
