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Tort and Defenses to Torts
Terms in this set (66)
what is a tort
An interference with someone's person or property resulting in injury to that person or property
how is a tort different from a crime or contract breach
Distinction is the interests affected and how the actor is held accountable. Torts can have contract consequences and can be criminal acts
Who does tort law protect?
Tort law protects private interests whereas criminal law protects the interests of the state
Who does tort law provide a remedy for?
Tort law provides for private recovery whereas criminal law provides for public punishment
What type of law is tort law determined by?
A tort is determined by civil law and a crime by criminal law
how are torts classified?
by the actors conduct (intentional, unintentional, strict liability)
what is an intentional tort?
Person intends an act which will invade another's interest and either knows or should know that there is an appreciable risk to another
harmful motive is not required
what are common defenses to intentional torts
Consent: Permission freely given or reasonably implied. Did the act exceed the permission or consent?
Privilege: A right to engage in certain behavior arising from relationship or circumstance
examples of intentional torts
False Imprisonment and False Arrest
Intentional Infliction of Mental Distress
Invasion of Privacy
Conversion (Civil Theft)
what is assault?
An intentional, unexcused act that creates in the mind of another person a reasonable apprehension or fear of an immediate harmful or offensive touching
what is battery
An intentional unprivileged un-permitted harmful or offensive contact by another
what is false imprisonment?
Unprivileged, unpermitted confinement of another within boundaries of the wrongdoer's making
confinement can be through threats or physical barriers
what is the shopkeepers privilege statute
Allows a shopkeeper to detain a person to investigate a possible shoplifting protecting from legal responsibility for the torts of false imprisonment, assault, battery, emotional distress, defamation, etc.
must have probable cause someone committed the act and detain in a reasonable and timely manner
what is Intentional Infliction of Emotional Distress
Extreme or outrageous behavior resulting in severe emotional distress to another
harsh words are not enough
an emotional assault
what is defamation
Invasion of the interest in ones reputation
(talking shit about someone with no proof or basis)
what is libel?
Writing, printing, picture, effigy, or other fixed representation to the eye
what is slander?
Oral statements and gestures. Radio and other mechanical communications are slander in some states and in others libel
what are the requirements for defamation?
Publication - Communicated to a third person
Statement about a particular person
defenses to defamation
truth is absolute defense
absolute privilege such as judges, legislators, attorneys in court
what is the invasion of privacy?
Unreasonable interference with another's privacy. A person generally has a reasonable right to solitude and freedom from prying public eyes
what is trespass to personal property
Intentional interference with possession or physical condition of personal property (a chattel) in the possession of another
elements of trespassing
Tangible or intangible property
Plaintiff need not be the true owner just prior possessor
Wrongful intent is not required
what is conversion?
Trespass that is a wrongful exercise of dominion and control over personal property of another sufficient to deprive the owner or possessor of the substantial value of the property
(forcing someone to sell you or give you something)
what is fraud?
An intentional misrepresentation of a material fact which is justifiably relied upon by another to their damage
elements of fraud
More than mere puffery, or seller's talk must occur
Intent to induce another to rely
Justifiable reliance by victim
what is bad faith?
Deliberate failure to fulfill some duty or contractual obligation owed to another
(example is insurance company deliberately not handling a lawful claim)
what is negligence?
An unintentional failure to exercise reasonable care under circumstances in which a foreseeable risk to another is created resulting in injury
elements of negligence
Duty or obligation recognized by law to conform to a certain degree of care
Breach of the duty
Breach of the duty is the "cause in fact" of the harm
Proximate cause of the injury
what is duty of care?
Obligation (duty) recognized by law, that each person must act in a way that does not create an unreasonable risk of harm to others
tests for duty of care
Reasonable person test - did the person act as a reasonable person would have acted under the same or similar circumstances?
age, relationships, and statutes affect the test
good samaritan statutes
protects strangers who are trying to give a stranger assistance from any sort of civil damages from acts they make to try and help the individual
what is breach of duty?
A failure to conform the standard required
what does Res ipsa loquitur mean?
the facts speak for themselves
what is negligence per se?
Violation of a statute passed to protect the plaintiff from harm. It defines the duty
(example, dude runs red light and ends up injuring a person who was following the law by going on green)
what is direct cause
the actual causation of an injury
usually means someone did something wrong that ended up with a second party becoming hurt
what is proximate cause?
Proximate cause limits liability to the foreseeable consequences of one's acts
what is trespass to land?
Invasion to another's real property without consent or privilege. Specific rights and duties apply once a person is established as a trespasser
trespasser assumes risks of the premises except attractive nuisance and duty to warm of known dangers
guests on land (licensee)
Duty of reasonable care
Warn of known dangerous conditions
guests on land (business invitee)
Highest duty owed by owner or possessor
Land possessor should know or discover dangerous conditions
Exercise reasonable care to protect invitees against danger
Generally not responsible for natural conditions on land
damages in negligence
harm must be incurred for negligence to exist
what are Compensatory damages?
Sum of money awarded to compensate the plaintiff for the injury suffered - purpose is to restore the injured person (as nearly as possible) to his or her former position or the money equivalent
what are Special (economic damage)?
Objectively verifiable monetary losses including medical expenses, loss of earnings, hospital, doctor, damaged property, transportation charges and loss of business or employment opportunities
what are General (non-economic damages)
pain and suffering, humiliation: Subjective, losses including pain, suffering, inconvenience, mental suffering, emotional distress, and loss of society and companionship
what are Punitive or exemplary damages
Amount awarded to victim when someone has engaged in conduct that is outrageous. Purpose is to punish and hold the wrongdoer as an example
Assumption of the risk
Voluntary entry into a risky situation, knowing the risk involved
Allows for the discharge of damage verdicts against defendants except for willful and malicious injury to the person or property of another
what is a contract?
An agreement between competent parties; based on genuine assent of the parties; supported by consideration; made for a lawful objective and in the form required by law
law governing contracts
State Common Law
UCC applies if a transaction is a sale or lease of goods
Liability without fault: Person is liable, regardless of care exercised, for damages or injuries caused by his or her product or activity
Person who makes a promise
Person to whom a promise is made
Person who makes an offer to contract to another
Person to whom an offer to contract is made
express (in regards to contracts)
Contract terms are expressly agreed to either orally or in writing
implied in fact
Manifested by conduct or body language
Quasi-Contract (implied in law)
Not a real contract but a situation where the courts will enforce contract-like liability to avoid unjust enrichment by one party
a promise for a promise
a promise for an act
An agreement that complies with all requisites of the law for enforceability
An agreement that may be legally enforced or may be rejected by a party
Agreement that courts will not enforce or recognize
Contract initially was valid but can no longer be enforced
A contract that has been fully performed by both parties
valid contract in which something remains to be done by either or both parties.
Requisites of a Valid Contract
When can a party be considered incompetent for a contract
Drugs can be classified according to their legal status, and whether they are used instrumentally versus recreationally. An adult drinking alcohol to feel pleasant is an example of:
Bankruptcy in Chapter 13 is usually to be completed in seven years.
Was the person alleged to have committed the tort an employee? (AO1) (control test)
If a nonprofit reports net assets with donor restrictions, it is likely:
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