BLAW Exam #2 chapters 6 and 7

Duty to use ordinary care
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Tort Laws and Criminal LawsProtect people and propertyA single act may...Constitute both a crime and a tort"Tortfeasor"The person committing the tortTort definitionThe breach of a duty, owed by one person to another, other than a contract, for which the law provides a remedyOne's acts are governed against a standard of "reasonableness" of actions1. The standard of a "reasonable prudent person." (RPP) 2. Tort law is designed to protect members of society from unreasonable actions which by definition would cause harm to anotherThree types of tortsIntentional Negligence Strict LiabilityIntentional TortsThose causing harm by committing intentional actsNegligence TortsThose acts causing harm by careless acts or failure to perform a legal dutyStrict LiabilityImposed by laws which assign liability regardless of faultTypes of Intentional TortsAssault, Assault and Battery, False Imprisonment, Intentional Infliction of Emotional Distress, Invasion of privacy, defamation of character, fraud, wrongs against propertyAssault*No touching or bodily harm is required Definition: a willful attempt or threat to inflict injury upon the person or another (or anything connected), coupled with a present ability to do so, and any display of force such as give the victim a reasonable apprehension or fear of immediate bodily harm or offensive contactAssault and Battery*Unlawful touching is involved Definition: the intentional, unlawful touching (offensive contact) by another person (or anything connected) with the victim without consent or justification. i.e. it is intentional, unexcused, offensive or harmful physical contact.False ImprisonmentDefinition: the non-consensual, intentional confinement of a person, against one's will, without the lawful privilege, for an appreciable length of time, however short.Merchant Protection ActsFalse Imprisonment Exception: -Reasonable detention of a customer is allowed - false imprisonment is not -A merchant must have probable cause to justify detaining a suspected shoplifter, and the merchant can only restrain the suspect in a reasonable manner and for a reasonable length of timeIntentional infliction of emotional distressAn intentional act that amounts to extreme and outrageous conduct that results in sever emotional distress to anotherInvasion of PrivacyUse of a person's name, picture or other likeness for commercial purposes without consentDefamation of character: DefinitionPublication of a statement that holds an individual or business up to contempt, ridicule, or hatred (a knowing, false statement to others)Defamation of character: Elementspublication of a false or malicious statement to a third partyFour statements considered to be "Defamation Per Se"1. Statement that a person has a loathsome communicable disease 2. Statement that a person has committed improprieties while engaged in a profession or trade 3. Statement that a person has committed or has been imprisoned for a serious crime 4. Statement that an unmarried woman is unchasteRational for Defamation per SeThe statements are 100% intended to injure someone's reputation, or 100% guaranteed to do it.Defenses against defamation1. Truth is an absolute defense 2. Privileged communications 3. False statements about a public figure - have to prove actual malice for false statements about public figures for it to be defamatoryPrivileged communications1. Absolute privileged statements: made by Judges, attorneys and legislators during floor debate 2. Qualified privileged statements: those made in letters of recommendation or written evaluations - assuming no abuse of facts, done in good faith, and only communicated to proper personsFraud (in the inducement)Definition: the intentional misrepresentation of a past present material fact, made with the intent to induce another to enter into a contract, justifiably replied upon to the victim's detrimentStatements of OpinionException of fraud: statements of opinion and puffing are not misrepresentations of fact, unless the person stating an opinion has superior knowledge of the subject matter.Wrongs against propertyTrespass to land, trespass to personal propertyTrespass to landThe unlawful entry onto the property of another without consent or privilege. Actual damage to land is not required.General Rule about trespassinga trespasser generally assumes the risk of the condition of the premises (a trespasser cannon complain of personal injuries suffered due to the condition of the premises)Exceptions to the general rule about trespassing to land1. A landowner cannot set traps to injure the trespasser 2. A landowner has a duty to protect or warn a trespasser from very dangerous conditions on the premises, such as a hole in the ground (cordon it off) or a vicious dog (post a warning)Attractive Nuisance (Trespass to land)1. An owner must anticipate children or others trespassing because of being attracted by something on the property (swimming pool, construction site, sand pit or sand pile, hay loft, etc) 2. Landowner must take reasonable steps to keep children off the property to avoid injury (put up a fence, post a "do not enter" sign, clean up dangerous items off the site, etc.)Trespass to personal propertyconversion, nuisanceConversion (trespass to personal prop)An unauthorized and wrongful exercise of dominion and control over another's property intended to be permanent or for an indefinite timeNuisance (trespass to personal prop)An improper activity which unreasonably interferes with another's right to use and enjoyment of his propertyNuisance (legal definition)an activity that arises from the unreasonable, unwarranted, indecent or unlawful use be a person of his or her own property, working an obstruction or injury to the right of another or to the public, and producing such material annoyance, inconvenience and discomfort that the law will presume resulting damageNuisance (defense)"coming to the nuisance"Negligence torts questionWhat would a reasonable prudent person do in the same circumstances? The law sets a minimum standard of conduct for acts of forbearance (omissions) to be used in a certain set of circumstances by a hypothetical person with the same degree of training, education and experience, in the same localeOne's actions must always meet of exceed a minimum standard of performanceThe standard ("ordinary care") is always the same, but the degree of skill in performance varies (use the RPP test to determine the standard)Elements required for proof of negligenceDuty of care, breach of duty, factual causation, legal causation, damagesDuty of care (to use ordinary care)The degree of care which an ordinary prudent and competent person, engaged in the same line of business or endeavor, with the same degree of training, education and experiences, in the same location, should exercise under the same or similar circumstances.Breach of dutyBy not acting with ordinary care By breach of statute (breaching a federal regulatory law)Factual causation - "Cause in fact"determined by the "but for" testLegal causation - "Proximate Causation"determined by the "reasonable forseeability test"Damages under negligence1. must be substantiated and not speculative 2. compensatory damages - plus - pain and suffering damagesSpecial Negligence DoctrinesRes Ispa Loquitor (The thing speaks for itself) Negligence per seRes Ispa Loquitor - The thing speaks for itself1. Negligence is inferred by law for any act that causes damage that would not have occurred without negligence - a hammer falls off a construction scaffold and seriously injures a pedestrian below; would not have happened if negligence happenedNegligence per se1. Negligence is inferred by law when a person violates a statute or ordinance providing for a criminal penalty, and the violation causes someone to be injured - a person illegally carries a firearm which discharges and injures someoneStrict Liability ("no fault" situation)Does not involve fault, but rather involves liability resulting from abnormally dangerous activities, or it involves product liabilityIntentional Interference with business relationsKnowing that a valid contract or business relationship existed, the defendant intentionally induced the breach of the contract, resulting in economic gain to the defendantDamages typically awarded in tort casesCompensatory Pain and suffering PunitiveCompensatoryPayment for out of pocket financial losses, such as lost ages, medical and hospital bills for treatment and property damagePain and SufferingPayment for physical and psychological suffering, both temporary and permanentPunitive1. to punish a wrongdoer for acts which society finds intolerable or abhorrent 2. designed to create a deterrent for others to commit such an act 3. can be awarded in addition to compensator and pain and suffering damages 4. often based upon a formula