Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
Civil vs. Criminal Wrong
- Tort: A breach of a legal duty that proximately causes another person harm or injury.
- The duty the tortfeasor violates must exist as a matter of law, not as a consequence of any prior agreement between the tort feasor and the injured party.
- Intentional Tort: A wrongful act the tortfeasor committed knowingly and with the intent to so act (but not necessarily with the intent to do harm).
- Unintentional Tort: A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act.
: Unlike a criminal wrong, punishable by paying a fine to the government or being imprisoned, a tort is a civil wrong, punishable by paying damages
to the injured party or parties. Compensatory damages attempt to reimburse the injured party for the actual value of her injury or loss. Punitive damages attempt to punish the tortfeasor for particularly egregious conduct and, in so doing, to deter similar conduct in the future.
INTENTIONAL TORTS: PHYSICAL ACTS
- Assault: An intentional, unexcused act creating in another person a reasonable apprehension or fear of immediate harmful or offensive contact (e.g., pointing a gun at someone).
- Battery: Intentional, unexcused and harmful or offensive contact (e.g., firing the gun).
- False Imprisonment: The intentional confinement of another person or restraint of another person’s activities without justification. The confinement may occur through the use of physical barriers, physical restraint, or threats of physical force.
- Infliction of Emotional Distress: An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.
INTENTIONAL TORTS: DEFENSES
- Consent: When a plaintiff consents to the act that damages him or her, the alleged tortfeasor generally is not liable for any damage done.
- Self-Defense: An individual defending his or her life or physical well-being, either from real or apparent danger, may use reasonably necessary force, or resort to reasonably necessary action, to prevent harmful contact.
- Defense or Assistance of Others: An individual can act in a reasonable manner to protect or assist others who are in real or apparent danger.
- Defense of Property: An individual may use reasonable force to remove an intruder from the individual’s home or to restrain the intruder for a reasonable time. Force that is likely to cause death or serious bodily injury (i.e., deadly force)normally may not be used solely to protect property. Necessity: An otherwise tortious act may be excused if thetortfeasor acted in accordance with law or the public good.
- Defamation: Anything published or publicly spoken that injures another’s character, reputation, or good name.
- Slander: Defamation in oral form.
- Libel: Defamation in written form.
- Publication: The speaker must have communicated the statement to persons other than the defamed party.
- Defamation Per Se: Common law recognizes four types of false utterances that constitute indefensible defamation:
- (1) that another has a loathsome communicable disease (e.g., a sexually-transmitted disease);
- (2) that another has committed improprieties while engaging in a profession or trade;
- (3) that another has committed or has been imprisoned for a serious crime; and
- (4) that an unmarried woman is unchaste .
- Truth: Truth is normally an absolute defense. In other words, if the allegedly defamatory words were objectively true, the defendant cannot be held liable for publishing them.
- Privilege: The ability to act contrary to another person’s right without owing legal redress for the act.
- Absolute Privilege: Statements made or actions taken in judicial and certain legislative proceedings (e.g., statements made by attorneys during trial, statements made by legislators during floor debate) are privileged against any claim of wrongful conduct.
- Qualified Privilege: In other situations, statements or actions made in good faith and, in the case of statements, made only to those who have a legitimate interest in the statement, are privileged.
- Absence of Malice: Generally speaking, otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice –that is, with either knowledge of falsity or reckless disregard of the truth or falsity.
Invasion of Privacy
- Invasion of Privacy: Common law recognizes four acts that qualify as improperly infringing on another’s privacy:
- (1) Appropriation: the use of a person’s name, picture, or other likeness for commercial purposes without their permission;
- (2) Intrusion in an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy;
- (3) Publication of information that places a person in false light; and
- (4) Public disclosure of private facts about an individual that an ordinary person would find objectionable.
- Right of Publicity: Some states recognize a person’s right to control the use of her name or likeness for commercial purposes and to sue anyone who misappropriates a person’s name or likeness without permission.
- Fraud: Intentional deceit, usually for personal gain. Actionable fraud requires:
- (1) a misstatement or omission
- (2) of one or more material facts,
- (3) made knowingly and with the intent to deceive the innocent party,
- (4) on which a reasonable person would rely,
- (5) and the innocent party actually relied to her detriment,
- (6) causing the innocent party loss.
- Negligent Misrepresentation: A material misrepresentation made without knowledge of its falsehood or intent to deceive.
- Predictions and Expressions of Opinion: Generally, these will not give rise to an actionable misrepresentation, unless the person making the statement has a particular expertise and knows or has reason to know that the listener intends to rely on the statement.
ABUSIVE OR FRIVOLOUS LITIGATION
- Abuse of Process: Using a legal process (e.g., seeking a temporary restraining order or an injunction, subpoenaing testimony or records, garnishing wages) against someone in an improper manner or to accomplish a purpose for which the legal process was not designed.
- Malicious Prosecution: Initiating a lawsuit out of malice and without a legitimate legal reason.
- Frivolous Litigation: Asserting a claim or defense the party knows to be groundless, and impossible to prove to the extent necessary to satisfy the relevant burden of proof, for the purpose of causing the accused to incur litigation and other expenses to dispense with the claim or defense and its broader ramifications, if any.
- Sanctions: Federal Rule of Civil Procedure 11 (to which all states have a counterpart) sets forth an array of sanctions a judge may impose on a party, it attorney(s), or both for, inter alia, asserting a baseless claim or defense or otherwise misleading the court into abetting a party’s abuse of process.
- Interference with Contract: The tort of interference with contract requires proof of the following:
- (1) a valid contract exists between parties X and Y;
- (2) a third party, Z, knows that said contract exists; and
- (3) Z intentionally causes X or Y to breach the contract.
- Interference with Business Relationship: Interference with a prospective business relationship is also actionable, where:
- (1) While no contract or other business relationship presently exists between X and Y, Z knows or has reason to believe that X and Y might enter into a business relationship, by contract or otherwise; and
- (2) Z intentionally interferes with X’s attempt to establish a business relationship with Y. In either case, Z’s interference will be excused if Z can establish that it was privileged or justified to act as it did. Thus, for example, bona fide competitive behavior (e.g., non predatorily underselling a competitor) will not support a claim of tortious interference.
TRESPASS TO LAND
- Trespass to Land: Entry onto, above, or below the surface of land without the owner’s permission or legal authorization. Any person who enters onto another’s property to commit an illegal act is deemed to have trespassed as a matter of law. Otherwise, the owner or legal occupant of the real property must establish that
- (1) the trespasser ignored a posted “no trespassing” sign (or comparable notice), or
- (2) the trespasser ignored the owner’s or legal occupant’s request to leave the property.
- “Attractive Nuisance”: A landowner may be liable for injuries to children enticed to enter the property by, e.g., a swimming pool or an abandoned building.
- Defense to Trespass: Trespass may be justified or excused if the trespasser can prove
- Necessity: she was trying to rescue another or save another’s life or property, or
- License: she was invited, and entered before the owner revoked the license.
OTHER PROPERTY TORTS
- Trespass to Personal Property: Taking or harming another’s personal property, in a way that interferes with her right to exclusive possession, without the owner’s permission or legal authorization. The key is injury to the owner’s enjoyment of his personal property, not injury to the property itself.
- Conversion: Taking, using, selling, or retaining possession of personal property that belongs to another without the other’s permission or legal authorization.
- Conversion assumes that the purported owner has a superior right of possession. Conversion may be excused by necessity.
- Disparagement of Quality: Written (trade libel) or oral(slander of quality) publication of false information about the quality of another’s product or services, proximately causing financial loss to the disparaged party.
- Disparagement of Title: Written or oral publication of a statement that denies or casts doubt upon another’s legal ownership of any property, resulting in financial loss to the disparaged party.
NEGLIGENCE: BASIC PRINCIPLES
- Negligence: Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances.
- Negligence requires no intent on the part of the tortfeasor, nor does it require that the tortfeasor know or believe the consequences that his act or omission may cause. Negligence merely requires that the tortfeasor’s act or omission create a risk of the consequences complained of by the injured party.
- Actionable negligence requires that:
- (1) the tortfeasor owed the plaintiff a duty of care,
- (2) which the tortfeasor breached,
- (3) actually causing the plaintiff
- (4) a legally recognizable injury.
NEGLIGENCE: DUTY OF CARE
- Duty of Care: The duty of all persons to exercise reasonable care in their dealings with others.
- Reasonable Care: The degree of care expected of a hypothetical “reasonable person”; not necessarily how a reasonable person would act, rather how a reasonable person should act. Tort law presumes that the reasonable person will be, at a minimum:
- (1) attentive,
- (2) aware of his or her environs,
- (3) careful,
- (4) conscientious,
- (5) even tempered, and
- (6) honest.
NEGLIGENCE:PREMISES & PROFESSIONALS
- Landowners’ Duties: Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property – even trespassers. Business
- Invitees: Retailers and other business that explicitly or implicitly invite persons to come onto their premises are expected to exercise reasonable care toward these business invitees.
- Obvious Risks: Some risks are so obvious that the owner need not warn even invitees.
- Professionals’ Duties: If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a “reasonable professional” can result in the professional being subject to liability for professional malpractice.
NEGLIGENCE: INJURY AND CAUSATION
- The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.
- Causation in Fact: An act or omission without which the plaintiff’s injury would not have occurred.
- Proximate Cause: Exists when the connection between an act and an injury is direct enough to impose liability. A common and critical element of proximate cause is foreseeability – if the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.
- Res Ipsa Loquitur: A court may infer that negligence caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence.
- Superseding Cause: The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s control, which supersedes the original wrongful act or omission as the cause of plaintiff’s injury or loss.
NEGLIGENCE: ASSUMPTION OF RISK
- Assumption of Risk: A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor.
- Risk may be assumed by express agreement or be implied by the plaintiff’s knowledge and conduct.
- Plaintiffs do not assume risks other than those inherent in the situation.
- Assumption of risk will not arise in emergencies.
- Assumption of risk will not arise when the plaintiff is a member of a statutorily-protected class of persons.
CONTRIBUTORY AND COMPARATIVE NEGLIGENCE
- Contributory Negligence: No matter how insignificant the plaintiff’s own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.
- Comparative Negligence: More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiff’s own negligence. “50% Caps” – Some jurisdictions further refuse to permit a negligent plaintiff from recovering any damages if the plaintiff is responsible for more than 50%of his or her own injury or loss.
NEGLIGENCE PER SE
- Negligence Per Se: An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party. The plaintiff must prove that:
- (1) the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected,
- (2) the plaintiff is in the class of persons intended to be protected by the statute or ordinance, and
- (3) the statute or ordinance was intended to prevent the type of injury that the plaintiff suffered as a result of the defendant’s wrongful act.
SPECIAL NEGLIGENCE RULES
- The “Danger Invites Rescue” Doctrine: In cases where an individual takes foreseeable action to avoid harm or to rescue another from harm, any injury her action causes will be attributable to the original wrongdoer whose fault or negligence caused her to take the defensive action.
- “Good Samaritan” Statutes: Many states have passed legislation preventing those who are aided voluntarily from then suing the person who rendered the assistance.
- “Dram Shop” Liability: Many jurisdictions hold that a business, and in some jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.
- Strict Liability: Liability regardless of fault. Among others, defendants whose activities are abnormally dangerous or involve dangerous animals are strictly liable for any harm caused.
- An online message attacking another person or entity in harsh, often personal, and possibly defamatory, terms.
- Online defamation is difficult to combat because:
- (1) the Communications Decency Act of 1996 absolves Internet service providers (“ISPs”) from liability for disseminating defamatory material; and
- (2) the Internet affords a high degree of anonymity to the person who posted the defamatory message.
A rule in Tort law that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely; used in the majority of states.
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 the tort of negligence.
Duty of CareReasonable Person Standard
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.
A civil wrong; a breach of a legal duty that causes harm or injury to another.
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
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, a Latin term meaning "the facts speak for themselves."
Res Ipsa Loquitur
An act or omission without which an event would not have occurred.
Causation in Fact
A wrongful act knowingly committed.
Special damages example
- Usually business to business. Coal ship strikes another business. compensate the plaintiff for quantifiable monetary losses (medical exp, lost wages and benefits, extra costs, replacing damaged property.
- * general damages compensate individuals
Shooting someone (pointing a gun is an assault) unwanted kiss... Battery is when the assault is completed.
- confined to OUTRAGEOUS CONDUCT. Ex father handcuffs daughters boyfriend to steel pole.
- * limitations on freedom of speech. Hustler sued for defamation of character to a preacher. Hustler won
Slander is verbal defamation, libel is written. Attorney sues another attorney for publically saying he was inaccurate, fraudulent and deceitful. Won because "reasonably susceptible of a defamatory connotation (implication).
qualified privilege example
man is up for a promotion at facebook and boss sends a written note to the people making the decision. Boss has qualified privilege if she honestly believed that what she wrote was true and limited her disclosure to company representatives, her statements would likely be protected.
Brittney spears mother sued by business manager due to false claims in book. Though the business manager was a public figure, they proved her words were done with actual malice.
Wrongful interference example
a firm draws away one of a firms key employees. to recover damages from the competitor, the original employer must show that the competitor knew of the contract's and intentionally induced the breach.
**predatory wrongful interference: two shoes stores in a mall. One store purposefully tries to take the other's customers out of their store.
borrows ipad. Doesn't return and gives it as a Christmas present to another person.
juan accidently bumps maya and she breaks her arm. His action are unintentional negligence.
proximate cause example
man leaves camp fire burning and it burns down the forest, chemical plant and ruins vacations. The court must decide the proximate damages
Nico is a passenger in a car driven by Owen, whose negligence causes an accident, injuring himself. Nico, uninjured, accompanies Owen to Parkside Hospital in an ambulance. The ambulance is hit by a car driven by Quin, injuring Nico. Nico files a suit against Owen, whose best defense is:
assumption of risk.
negligence per se.
Bella owns a farm in Colorado. Doyle drives his sport utility vehicle off a highway and onto Bella's land. Doyle commits trespass if he
does not have Bella's permission to drive on the property.
drives onto the property for recreational purposes.
harms the property in a material way.
harms the property in any way.
does not have Bella's permission to drive on the property.
Defamation is one person's use of another's name without TrueFalse
Cook's Pantry Appliances, a retail store, must use reasonable care on its premises to warn its patrons of
Reaching for a bottle of soda from a display in a Bargain Mart store, Cody slips in a puddle of spilled soda and falls, suffering an injury. Bargain Mart's employees are not aware of the spilled soda until Cody falls. In a suit against Bargain Mart, Cody will most likely
lose, because Bargain Mart's employees were not aware of the spill.
lose, because Cody should have exercised more care.
win, because Bargain Mart can recover from the soda bottler.
win, because the spilled soda was foreseeable.
win, because the spilled soda was foreseeable.
Proximate cause exists when the connection between an act and an injury is strong enough to justify imposing liability.
An assumption of risk defense does not require that a risk be voluntarily
Kai files a suit against Lana based on one of Lana's statements that Kai alleges is fraudulent. To give rise to fraud, the statement must be one of
Liu enters Mountain Triathlon, an athletic competition in which Liu has never competed. Regarding the risk of injury, Liu assumes the risks
attributable to the Triathlon in any way.
different from the risks normally associated with the Triathlon.
greater than the risks normally associated with the Triathlon.
normally associated with the Triathlon.
normally associated with the Triathlon.
Under the theory of negligence, the duty of care requires one person to come to the aid of another in "peril."