Torts (Chapter 10)

Question 1

Torts. What are the two types?

Answer 1

Civil wrong for which a remedy may be obtained, usually in the form of damages. Not a breach of contract. Damages sought by injured party for a legally protected interest. (All the crazy stuff you can imagine happening ot a person). Intentional (fault + intent) and unintentional (fault w/o intent; negligence).

Question 2

What are the legally recognized personal and protect interests?

Answer 2

Personal safety, freedom of movement, property, privacy and reputation & dignity.

Question 3

What are the types of damages in tort law?

Answer 3

Compensatory (actual damages to make plaintiff whole), special damages (medical expenses, lost wages, etc.), punitive (punish, only for egregious acts), pain and suffering, loss of reputation.

Question 4

What does intent mean?

Answer 4

Tortfeasor/defendant intended consequences of action, knew with substantial certainty that certain consequences would result, and does not need an evil or harmful motive.

Question 5

Types of intentional torts

Answer 5

1) Assault and Battery
2) False Imprisonment
3) Infliction of Emotional Distress
4) Defamation
5) Invasion of Privacy
6) Misappropriation
7) Business Torts

Question 6

What is assault?

Answer 6

Intentional act that reasonably makes somebody afraid and feel threatened of immediate harmful contact. Not words alone, but these can play into fear.

Question 7

What is battery?

Answer 7

Completion of assault; harmful, offensive or unwelcome (like a kiss), physical contact. Physical injury doesn’t need to occur. “Reasonable person standard” determines if contact is offensive. Any body part or anything touching a body part (hat, purse).

Question 8

Defenses to assault and battery

Answer 8

1) Consent: Plaintiff consented to act (sports)
2) Self-defense and defense of others: Reasonable force. Defending life or physical well-being. If real or apparent danger is imminent and it is reasonably necessary to prevent harm. Deadly force can only be used to prevent serious bodily injury or death, most states you have to retreat.
3) Defense of property: Reasonable force may be used to defend property but not deadly force unless a person thinks it is the only way to defend themselves. Castle doctrine: No duty to retreat from an attack in own home, may use force including that likely to cause death.

Question 9

What is false imprisonment?

Answer 9

Intentional confinement or restraint of another person’s activities without justification. (Interferes with freedom of movement). Merchants may detain somebody with reasonable force if there is probable cause.

Question 10

What is infliction of emotional distress?

Answer 10

Intentional act that is extreme and outrageous, results in severe emotional distress of another and exceeds bounds of societal decency. Must be some physical symptom or illness, not just “being annoyed.”

Question 11

Defamation. What is it?

Answer 11

Society has an interest in preventing and redressing attacks on reputation. Orally breaching duty is slander; breaching in print or media is libel. If you repeat a slanderous or libelous remark, you are also liable.

Question 12

What statements must a person refrain from making?

Answer 12

False statements of fact, statements about plaintiff that hurt their reputation (hold them up to ridicule, contempt or ridicule), published to a 3rd party. A public figure must prove actual malice.

Question 13

What are damages for libel? Damages for slander?

Answer 13

Libel – General damages presumed, plaintiff doesn’t have to prove injury. Compensation for disgrace, dishonor, humiliation and injury to reputation and emotional distress.
Slander – Plaintiff must prove actual economic loss or special damages (oral statements are temporal). Exceptions, slander per se: no proof of damages for: loathsome disease, business improprieties, imprisoned for a serious crime, saying a woman (usually unmarried) is not chaste, engaged in sexual misconduct.

Question 14

Defenses to defamation?

Answer 14

Truth is an absolute defense. Privileged (or Immune) Speech: Absolute Privilege – Judicial & legislative proceedings (attorneys in courtrooms, judges, gov’t officials in debates). Qualified Immunity – Employee Evaluations (Good faith and interest in comm)

Question 15

How are public figures affected by defamation?

Answer 15

Generally in the “limelight” and are fair game; to prevail for defamation or libel, must show “actual malice,” show that statement was made with knowledge of falsity or reckless disregard of truth.

Question 16

How does somebody invade another’s privacy?

Answer 16

1) Appropriation of identity: Using a person’s name, picture or likeness for commercial purposes without permission.
2) Intrusion on Affairs or Seclusion: Invading one’s home or searching their personal computer, eavesdropping, window peeping.
3) Publication of Info that places a person in false light: Story attributing ideas to somebody that they do not hold.
4) Public Disclosure of Private Facts: Person publicly discloses private facts (although true) that an ordinary person finds embarrassing or objectionable.

Question 17

What is fraudulent misrepresentation?

Answer 17

Intentional deceit for personal gain. Elements: Misrepresentation of material fact, intent to induce another to rely, justifiable reliance by innocent party, damages as a result of reliance, causal connection. Needs to be fact, not puffery.

Question 18

What is abuse of frivolous litigation?

Answer 18

Lawsuit initiated out of malice and without probable cause that party winds up losing.

Question 19

When does wrongful interference with a contractual relationship occur? (Business tort)

Answer 19

Defendant knows about contract between A and B, intentionally induces A or B to breach contract, and defendant benefits from breach.

Question 20

When does wrongful interference with a business relationship occur? (Business tort) What are defenses?

Answer 20

Established business relationship, tortfeasor using predatory methods causes relationship to end and plaintiff suffers damages. Defenses - Actions were justified, permissible or bona fide competitive behavior.

Question 21

What is negligence?

Answer 21

Tortfeasor does not intend consequences of act. Somebody suffers and injury because another fails to live up to their duty of care, actor’s conduct creates foreseeable risk of injury. Defendant owed plaintiff duty of care, breached, breach caused injury, plaintiff suffers legal injury or damage as a result.

Question 22

What does defendant have a duty to protect plaintiff from?

Answer 22

Foreseeable risks that defendant should have known about; everyone has duty to exercise due care, or the amount of care that a reasonable person would exercise in same circumstances. Imaginary prudent person who takes necessary precautions to avoid harming a person or property.

Question 23

How is foreseeability defined?

Answer 23

Consequences of an act are legally foreseeable if they are consequences that typically occur in the course of the event. Foreseeable risk creates duty the person owes.

Question 24

What duties does a landowner have?

Answer 24

Have to exercise reasonable care to business invitees and in some jurisdictions, trespassers. Guard against foreseeable risks, warn business invitees of risks (supermarket slip, etc.). Can warn in number of ways, obvious risks are an exception.

Question 25

What duties do professionals have?

Answer 25

Duty of care varies based on occupation. Professionals may owe higher duty of care based on special education, skill, intelligence. Breach of duty is professional malpractice.

Question 26

Causation

Answer 26

Even though a tortfeasor owes a duty of care and breaches it, act must have caused plaintiff’s injuries. (Causation in fact and proximate cause)

Question 27

Causation in fact

Answer 27

Did injury occur because of defendant’s act, or would it have occurred anyways? Usually determine by “but for” test, “but for” defendant’s actions, injury would not have occurred.

Question 28

Proximate causation

Answer 28

Act is the proximate (or legal) cause of injry when causal connection between act and injury is enough to pose liability. Foreseeability is important. “Unbroken chain of events.”

Question 29

Study special negligence doctrines and statutes!

Answer 29

Good luck!

Question 30

What are the defenses to negligence?

Answer 30

Assumption of risk, superseding intervening cause, contributory or comparative negligence.

Question 31

What constitutes assumption of risk?

Answer 31

Plaintiff has adequate notice and understanding of risks associated with activity, knowingly and willingly engages anyways, plaintiff (in the eys of the law) assumes risks of injuries that fall within scope of risk understood.

Question 32

What is a superseding cause?

Answer 32

Unforeseeable, intervening act that occurs after defendant’s act and breaks causal relationship between defendant’s act and plaintiff’s injury, relieving defendant of liability. If it was foreseeable, however, defendant may be liable. Does something break chain of events?

Question 33

What is contributory negligence?

Answer 33

Under common law, if plaintiff in any way caused his injury, he/she was barred from recovery. Most states have replaced it with comparative negligence.

Question 34

What is comparative negligence?

Answer 34

The amount of damages a plaintiff causes themselves are subtracted from the amount of damages caused by plaintiff, and plaintiff can only recover remainder. If plaintiff is more than 50% liable, they recover nothing.