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Legal exam 3
Terms in this set (38)
Any non-criminal, wrongful action other than breach of contract.
One who commits a tort- tortfeasor (defendant)
Duty and Causation
One is not liable for another's injury unless he or she has a duty toward the person injured and one has caused the injury
1. Intentional- Defendant has to intended the action that causes the harm. Defendant is fully responsible for harm that results so long as defendant intended the action that causes the harm.
2. Negligence- Unintentional harm through carelessness. You are only liable for foreseeable harms
3. Strict Liability- Doesn't really care if intentional or negligent but rather fully responsible regardless and impose legal responsibility
1. Assault and battery
2. Intentional infliction of mental distress
3. Invasion of privacy
4. False imprisonment and malicious prosecution
9. Common law business torts
Placing of another in immediate apprehension for his or her physical safety.
Ex: A store manager who threatens an unpleasant customer with a wrench, being held at gunpoint.
Illegal touching of another, touching without justification and without consent, need not cause physical injury. Battery usually comes after assault.
Infliction of mental distress
Battery to emotions. Outrageous, intentional conduct carrying a strong probability of causing mental distress. Many states require mental distress + physical symptoms (e.g. sleeplessness, headaches)
- i.e. abuse from creditor to collect debts
Elements of mental distress tort
1. The defendant's conduct was extreme and outrageous;
2. Defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress; and
3. The defendant's conduct did cause severe emotional distress
Ex: Most common examples are against employees who have been fired or discriminated
Snyder vs Phelps
defendant argued they have first amendment right to the speech, Protests at military funerals, Westboro Baptist church won (done in a public protest)
Invasion of privacy
Misappropriation of a person's name or likeness for commercial purposes without their permission.
Ex:Vanna White: using my image without my permission, should have paid me; Sued Samsung, she won (it evokes her, only one person turning letters, she has a property right in that identity, even if it wasn't an exact rendering of her
Invasion of privacy
Intrusion upon person's physical solitude (illegal wiretapping, search of home, Erin Andrews, Rutgers University student)
Invasion of privacy
Public disclosure of highly objectionable, private information about non-public figure (ex: about someone's sex life, health - doesn't matter if true)
Note: the news media are protected under the 1st Amendment when they publish information about public officials and public figures
the intentional unjustified confinement of the non-consenting person
Context: shoplifting - the store detention must be reasonable without any unnecessary use of force, lack of reasonable suspicion of shoplifting or an unreasonable length of confinement
(false arrest). arises from causing someone to be arrested criminally without proper ground. Ex: Arrest is accomplished simply to harass someone.
Trespass occurs when a person enters another's land without consent or remains there after being asked to leave.
Remedy: injunction and/or damages
ex: customer refusing to leave store, picketing on company property.
The wrongful exercise of dominion (power) and control over the person (nonland) resources that belong to another. Deprives owners of their lawful right to exclude others from such resources. Stealing, failure to return rental, delivering to wrong party and damaging others goods.
Example of conversion tort
Example: taking someone else's personal property, you may have permission to be in possession but failure to return property is known as conversion, unintentionally buy stollen goods (you did not know) and refuse to return them after being notified is conversion
The publication (oral or written) of anything injurious to the good name or reputation of another. Publication means that the untruth must be made known to third parties. Untruth about statements of fact.
Slander- oral defamation
Libel- written or published over radio/television
*In Libel the plaintiff does not have to prove economic harm
-In the case of slander they must prove actual economic harm
Defenses to Defamation
1. Proving the statements are true.
2. Privileged communications-Privileged Communications exist so that in certain circumstances people shouldn't have to fear being sued all of the time. For examples witnesses giving testimonies on the stand.
3. If you are a public figure you have to prove that the defendant knows the information is false. (Printed with malice- evil intent) The reason is that they are considered news worthy and can counter statements via media.
Intentional misrepresentation of material fact(s) justifiably relied upon by someone leading to an injury
factual, not opinion
concealment = fraud
* A lie that is relied on and usually causes someone to lose money or another resource
-victim must suffer injury (loss of money)
-i.e. failure to disclose, concealment misrepresentation in employment, misrep about products
Examples of fraud
-Businesses lying about their profits in order to entice investors to buy stocks.
Common law business torts
1. Injurious Falsehood or trade disparagement consists of the publication of untrue statements that disparage plaintiff's ownership of property or its quality
- Similar to defamation, but injurious falsehood usually applies to a product or business rather than character or reputation.
- Proof: plaintiff must prove that the statements are false and show actual damages arising from the untrue statements
2. Intentional Interference with Contractual Relations is when one person intentionally interferes with another's contract relations
E.g. hiring away an employee who is under contract with another employer by Maliciously inducing another to breach or fail to fulfill a valid contractual obligation
But must know about the other contract, and actively induce the person to breach the contract
Takes place when one who has a duty to act reasonably acts carelessly and causes injury to another.
General definition: Negligence is the "failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Not intentional.
ex: malpractice, slip n fall
Duty of care
- generally arises out of a person's conduct or activity.
- A person doing something has a duty to use reasonable care and skill around others to avoid injuring them
- In general a person has no duty to avoid injuring others through nonconduct
- If there is a special relationship between persons, the situation changes, you may have duty
(business & customers, landowners & invitees, professionals & clients)
Breach of duty
Failure to act as a reasonable person would under the circumstances.
What is unreasonable behavior that causes injury? - jury question of fact
- Aggravated negligence is willful and wanton negligence which shows an extreme lack of due care.
Causation in fact
-Did the failure to use reasonable care actually cause the injury or would the injury happen anyway?
-Plaintiff must prove that the defendant actually caused the injury
- Generally a jury question
:Injury must be reasonably foreseeable, direct causation, i.e., not too many intervening events.
-Foreseeability has come to mean that the plaintiff must have been one whom the defendant could reasonable expect to be injured by a negligent act.
Proximate causation example
o Palsgraf v. Long Island RR (1927): Woman waiting for train Mrs. P. Another train is also leaving. Man running for that train with box in hand gets pushed on to train, drops his box full of fireworks which go into the rood the station and falls on Mrs. P. She lost because the guard owed no duty to someone 30 ft away.
Plaintiff must suffer some injury. Can be property damage, doesn't have to be physical but usually is.
Defenses to Negligence
Comparative negligence- When the Plaintiff was also at least partially to blame for the injury, P's recovery will be reduced
• Plaintiff can recover money but award is reduced in proportion to plaintiff's blame
• P proves $1000 damages, but P Blame = 20%, reward reduced to the $800
Defenses to negligence
Assumption of Risk- When plaintiff knowingly and willingly undertakes a risky activity.
Ex: flying pucks at a hockey game
*both assumption and comparative are affirmative defenses- must raise them to take advantage
Strict Liability torts
Responsible for harm even if using greatest care in the world. Injury causing behavior that is neither intentional nor negligent.
Strict products liability
In most states, any retail, wholesale, or manufacturing seller who sells an unreasonably dangerous defective product that causes injury to a user of the product is strictly liable
- This applies only to commercial sellers, i.e. those who normally sell products like the one causing the injury or who places them in the stream of commerce.
Strict products liability (defective product)
Manufacturing Defect - error that occurred in making the product
Design Defect - defect in the product itself, product recalls
Inadequate Warnings - need to reveal specific warnings, side effects on drugs. Inadequate Warnings means that a company has to warn you about non-obvious dangers of using the product
Defenses to products liability
• Assumption of risk (EX: don't get product fixed after recall)
• Commonly known dangers (knives cut, stoves burn, etc.)
• Product misuse (EX: remove safety guard from lawn mower)
Abnormally Dangerous Activity (transporting explosives, wild animals)
-Activities that involve a high degree of risk of serious harm
-The risk cannot be completely guarded against by the exercise of reasonable care, and
-The activity is not one commonly performed in the area (dynamite in downtown ATL)
Dram shop acts
Liability among tavern owners for injuries to third parties caused by their intoxicated patrons.
Compensation to the plaintiff for the injuries suffered (includes medical expenses, property damage, pain and suffering)
• Economic - Medical bills, Property damage, Lost wages
• Noneconomic - Pain & Suffering, Emotional Harm
o Punitive Damages (2% of the time) = Damages intended to punish defendant for intentional tort or willful and wanton negligence, serves as a deterrent for others.
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