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I.
Torts: def.: a wrongful act (other than a breach of contract) that results in harm or injury
to another and leads to civil liability
Business torts: wrongful interference with anothers business rights and relationships
o Unfair competition, wrongfully interfering with the business relations of others
Cyber tort: a tort committed in cyberspace
A.
B.
Compensatory Damages
2.
Punitive damages: monetary damages that may be awarded to a plaintiff to punish the
defendant and deter similar conduct in the future
o Only when the defendants conduct was particularly bad or unacceptable
Damages usually in intentional tort actions and rarely in negligence suits
Can be awarded in gross negligence suits, defined as intentional failure to perform a
manifest duty n reckless disregard for the consequences of such a failure to life and
property of another
Courts exercise great restraint because punitive damages are subject to the imitations of
imposed by due process
o Excessive award furthers nothing legitimate and violates due process
o Appellate court will then reduce the award
C.
II.
Tort Reform
Critics say torts encourages too many trivial and unfounded lawsuits, clogging court
systems
o Awards are excessive and have nothing to do with the lawsuit while imposing
society with tort tax
Whats wrong with it and how to stop, reduce it PG 97
D.
Punitive Damages
Classifications of Torts
A.
Assault: any word or action intended to make another person fearful of immediate
physical harm a reasonable believable threat
o Committed even if no contact was made towards plaintiff
B.
C.
False Imprisonment
This can be defined as an extreme and outrageous act, intentionally committed, that
results in severe emotional distress to another
Actionable: capable of serving as the basis of a lawsuit. An actionable claim can be
pursued in a lawsuit or other court action
o Has to be extreme and outrageous
1.
Outrageous Conduct
When outrageous conduct consists of speech about a public figure, freedom of speech
limits emotional distress
D.
Defamation
Courts must balance free speech against other strong social interests, like preventing
attacks on reputation
Defamation: anything published or publicly spoken that causes injury to anothers good
name, reputation, or character
Duty to refrain from making false, defamatory statements of fact about others
Breaching this duty in writing is libel
Libel: defamation in writing or another form having the quality of permanence (such as
digital recording)
Slander: defamation in oral form
Also about false statement of fact about a persons product, business
1.
Once defendants liability for libel is established general damages are presumed as a
matter of law
o Compensate for nonspecific harm
o Plaintiff does not need to prove harm
4.
The plaintiff must prove special damages to establish the defendants liability
o It actually caused economic or monetary loss
If cannot be proved the lawsuit cant continue
Slander per se dont need proof
o Person has loathsome disease
o Committed improprieties during business, profession or trade
o Committed or imprisoned for serious crime
o Is unchaste or engaged in serious sexual misconduct
5.
a)
Tort law safeguards privacy rights through torts of invasion of privacy and appropriation
1.
Invasion of Privacy
a)
False Light
Public Figures
E.
Privileged Communications
Person publicly discloses private facts about an individual that an ordinary person would
find objectionable or embarrassing
d)
Using a persons name, picture, or other likeness for commercial purposes without
permission
2.
Fraudulent Misrepresentation
Misrepresentation leads another to believe in a condition that is different from the one
that exists
o Accomplished through a false or incorrect statement
o Some people do this unaware
Fraudulent Misrepresentation: any Misrepresentation, either by misstatement or by
omission of a material fact, knowingly made with the intention of deceiving another and
on which a reasonable person would and does rely to his or her detriment
Intentional when:
o Misrepresentation of fact is said with knowledge of falseness or disregard for
truth
o Intent to induce another to rely on Misrepresentation
o Justifiable reliance by deceived party
o Damage suffered as result of reliance
o Casual connection between Misrepresentation and injury suffered
Fraud to occur it has to be more than puffery
Puffery: a salespersons often exaggerated claims concerning the quality of property
offered for sale. Such claims involve opinions rather than facts and are not legally
binding promises or warranties
Fraud the person needs to represent as a fact something they know is not true
1.
Appropriation
Appropriation: in tort law, the use by one person of another persons name, likeness, or
other identifying characteristic without permission and for the benefit of the user
o Some courts say an animated character in a video or video game are not enough
similarities
F.
Appropriation of Identity
2.
Tort can arise from Misrepresentations that are made negligently rather than intentionally
Difference is knowledge of falsity
Negligent Misrepresentation requires only that the person have a reasonable basis for
believing its truthfulness
o Liability for this happens only when there was a duty to the plaintiff to produce
correct information
- Attorneys and accountants
G.
People have a right not to be sued without legally just and proper reason therefore it
protects individuals from the misuse of litigation
Abusive litigation =
o If person begins a lawsuit out of malice and without probable cause, and end up
losing the suit he or she can be sued for malicious prosecution
- Then the new plaintiff now has to prove injury beyond the cost of
litigation such as lost profits
o Abuse of process can apply to any person using a legal process against another in
an improper manner or to accomplish a purpose for which it was not designed
Key difference between these two torts is level of proof required to
succeed
H.
Wrongful Interference
Negligent Misrepresentation
III.
A person can avoid liability for the tort of Wrongful Interference with a contractual or
business relationship by showing that the interference was justified or permissible
Courts usually allow the driving away of customers as spirit of competition
A.
Trespass to Land
Trespass to land: entry onto, or below the surface of land owned by another without the
owners permission or legal authorization
Actual harm to the land is not essential
Walking or driving in someone elses land, shooting a gun over the land, throwing rocks
at the buildings on the land,
1.
B.
C.
IV.
Conversion
D.
Disparagement of Property
A.
Duty of care: the duty of all persons, as established by tort law, to exercise a reasonable
amount of care in their dealings with others. Failure to exercise due care, which is
normally determined by the reasonable person standard, constitutes tort of negligence
o May be an act (careless or carefully performed) or an omission
Courts consider nature of the act, the manner performed, and nature of injury
1.
The Reasonable person standard
Reasonable person standard: the standard of behavior expected of a hypothetical
reasonable person. It is the standard against which negligence is measured and that must
be observed to avoid liability of negligence
If duty of care breached courts ask how reasonable person would have behaved
o This is objective
o Societys judgement of how people should act
- Careful conscientious even tempered and honest
Degree of care varies depending on persons profession or relationship with plaintiff
2.
Landowners have to exercise reasonable care to protect people from harm when coming
onto their property
a)
Business invitee: a person such as a customer or a client who is invited onto business
premises by the owner of those premises for business purposes
Duty to discover and remove any hidden dangers that might injure a customer or other
invitee
b)
Duty of professionals
B.
Causation
Person fails in a duty of care and someone suffers an injury, the wrongful act must have
caused the harm for the act to be considered a tort
1.
1. Is there causation in fact? Causation in fact: an act or omission without which an event
would not have occurred
a. But for test
2. Was the act the proximate cause of the injury? Proximate cause: legal cause. It exists
when the connection between an act and an injury is strong enough to justify imposing
liability
a. Courts use it to limit the scope of the defendants liability to a subset of the total
number of potential plaintiffs that might have been harmed by the defendant
actions
Both have to affirmative cant be one and not another
2.
C.
For a tort to be committed the plaintiff must have suffered a legally recognizable injury
Recover damages plaintiff must have suffered loss harm wrong or invasion
No harm means nothing to compensate which means no tort
Compensatory damages are the norm in negligence cases
D.
Foreseeability
Defenses to negligence
By asserting the plaintiffs failed to prove the existence of one or more of the required
elements of negligence
Assumption of risk: a defense to negligence. A plaintiff may not recover for injuries or
damage suffered from risks he or she knows of and voluntarily assumed
o Plaintiff voluntarily entered the situation knowing the risks
Risk assumed by express agreement or knowledge of the risk and subsequent conduct
2.
All individuals are expected to exercise a reasonable degree of care in looking out for
themselves
Contributory negligence: a rule in tort law, used in only a few states, that completely bars
the plaintiff from recovering any damages if the damage suffered is partly the plaintiffs
own fault
o No matter how insignificant plaintiffs negligence they didnt get any damages
Comparative negligence: a rule in tort law, used in the majority of states, that reduces the
plaintiffs recovery in proportion to the plaintiffs degree of fault, rather than barring
recovery completely
o Most have 50 % rule more than that of plaintiff they get nothing
In lawsuits the plaintiff has the burden of proof to prove the defendant was negligent
Res ipsa loquitur: a doctrine under which negligence may be inferred simply because an
event occurred, if it is the type of event that would not occur in the absence of
negligence. Literally, the term means the facts speak for themselves
o The burden of proof here lies on the defendant to prove they were not negligent
Doctrine used if injury is usually seen with negligence
2.
Superseding cause
Unforeseeable intervening event may break the connection between a wrongful act and
an injury to another
Event acts as a superseding cause it relieves a defendant from liability for injuries
caused by an intervening event
3.
Contributory and Comparative negligence
E.
Assumption of Risk
Negligence per se
Statute must set out what conduct is expected, when and where it is expected, and of
whom.
o Standard of conduct described is what the defendant owes to the plaintiff and a
violation of statute is breach of that duty
Operation of motor vehicle inattentive driving
3.
A person who is trying to avoid harm by an individual ends up causing harm to another
individual
The original wrongdoer is liable to anyone who is injured, all the parties
Extends the same protection to a person who is trying to rescue another from harm the
original wrongdoer is liable as well for this person
o Whether rescuers injure themselves, the person rescued, or even a stranger, the
original wrongdoer is still liable
4.
V.
Good Samaritan statutes: a state statute stipulating that persons who provide emergency
services to, o rescue, someone in peril cannot be sued for negligence unless they act
recklessly, thereby causing further harm
5.
Dram shop acts: a state statute that imposes liability on the owners of bars and taverns, as
well as those who serve alcoholic drinks to the public, for injuries resulting from
accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks
contributed to the intoxication.
Strict Liability
A.
B.
A.
Online forums means the people who post can remain anonymous
An internet service provider (ISP) can disclose personal info about a customer only when
ordered to by a court