Torts (Chapter 10) Flashcards
(34 cards)
Torts. What are the two types?
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).
What are the legally recognized personal and protect interests?
Personal safety, freedom of movement, property, privacy and reputation & dignity.
What are the types of damages in tort law?
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.
What does intent mean?
Tortfeasor/defendant intended consequences of action, knew with substantial certainty that certain consequences would result, and does not need an evil or harmful motive.
Types of intentional torts
1) Assault and Battery
2) False Imprisonment
3) Infliction of Emotional Distress
4) Defamation
5) Invasion of Privacy
6) Misappropriation
7) Business Torts
What is assault?
Intentional act that reasonably makes somebody afraid and feel threatened of immediate harmful contact. Not words alone, but these can play into fear.
What is battery?
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).
Defenses to assault and battery
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.
What is false imprisonment?
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.
What is infliction of emotional distress?
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.”
Defamation. What is it?
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.
What statements must a person refrain from making?
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.
What are damages for libel? Damages for slander?
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.
Defenses to defamation?
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)
How are public figures affected by defamation?
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.
How does somebody invade another’s privacy?
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.
What is fraudulent misrepresentation?
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.
What is abuse of frivolous litigation?
Lawsuit initiated out of malice and without probable cause that party winds up losing.
When does wrongful interference with a contractual relationship occur? (Business tort)
Defendant knows about contract between A and B, intentionally induces A or B to breach contract, and defendant benefits from breach.
When does wrongful interference with a business relationship occur? (Business tort) What are defenses?
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.
What is negligence?
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.
What does defendant have a duty to protect plaintiff from?
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.
How is foreseeability defined?
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.
What duties does a landowner have?
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.
