Notes on Torts free essay sample

This intent is not harm but rather to engage in a specific act, which ultimately results in injury, physical or economical, to another. Motive is not required to prove liability in an intentional court case. Assumes that people intend the normal consequences of their actions. * Intentional torts are divided into three types: 1. Intentional torts against persons intentional acts that harm an individual’s physical or mental integrity. A. Assault and Battery – An assault occurs when one person places another in fear or apprehension (apprehension does not equal fear) of an immediate, offensive bodily contact. An assault is often (not always) followed by a battery, an intentional, unwanted, offensive bodily contact. A limited number of defenses are available to an action for a battery; consent mitigates (lessens) the element of the unwanted, self- defense (most common) is responding the force of another with comparable force to defend yourself, defense of others, or defense of property where you can use reasonable force to defend your property from an intruder. We will write a custom essay sample on Notes on Torts or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page B. Defamation defamation is the intentional publication (or communication to a third arty) of a false statement harmful to an individual’s reputation. Anyone who, in any matter, repeats the defamatory statement is also liable for defamation, even if he or she cites the original source of the defamation. If the defamation is published in a permanent form, such as in a magazine or on the radio (since everything is recorded), it is known as libel. If it is made orally it is slander. If there is no harm to the slandered person, there is not cause for compensation. Slander per se are statements so inherently harmful that general damages are presumed. A person accused of defamation can raise two defenses: truth is frequently considered an absolute defense and privilege is an affirmative defense (occurs when the defendant admits to the accusation but argues that there is a reason he should not be held liable) in a defamation action. A privilege is either absolute or conditional. A person with absolute privilege cannot be sued for defamation for any false statements made, regardless of intent or knowledge of their falsity. In conditional privilege, a party will not be held liable for defamation unless the false statement was made with actual malice (with either knowledge of its falsity or reckless disregard to its truth). Another conditional privilege is the public figure privilege, where we do not hold people liable for making false statements about them as long as the statements were not made with malice. C. Privacy Torts a. False light occurs when publicity about a person creates an impression about that individual that is not valid. b. Public disclosure of private facts occurs when someone publicizes a private fact about another that a reasonable person would find highly offensive c. Appropriation for commercial gain occurs when someone uses another person’s name, likeness, voice, or other identifying characteristic for commercial gain without that person’s permission. d. Intrusion on an individual’s affairs or seclusion occurs when someone invades a person’s solitude, seclusion, or personal affairs when the person has the right to expect privacy D. False Imprisonment false imprisonment occurs when an individual is confirmed or restrained against his or her will for an appreciable period of time. It may occur by physical restraint, physical force, a threat to use immediate physical force, or refusal to release the plaintiff’s property. The use of moral pressure is not enough to establish a false imprisonment. Providing damages in false-imprisonment is not easy. Typically, plaintiffs request compensation for time lost form work and for pain and suffering from mental distress and humiliation. E. Intentional Infliction of Emotional Distress intentional infliction of emotional distress occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party. F. Misuse of Legal Procedure e. Three separate torts protect those unreasonably subject to litigation: malicious prosecution, wrongful civil proceedings (both seek to compensate those wrongfully charged with either criminal or civil matters), and abuse of process (a civil and criminal matter in which a legal procedure is misused to achieve a different goal than it intends) 2. Intentional Torts Against Property G. Trespass to Realty – trespass to realty (also called trespass to real property) occurs when a person intentionally enters the land of another without permission, causes an object to be placed on the land of another without the landowner’s permission, stays on the land of another when the owner tells him to depart, or refuses to remove something he placed on the property that the landowner asked him to remove. H. Private Nuisance – a private nuisance occurs when a person uses her property in an unreasonable manner that harms a neighbor’s use or enjoyment of his property. I. Trespass to Personal property – trespass to personalty occurs when someone temporarily exerts control over another’s personal property or interfering with the owner’s right to use it. J. Conversion – conversion occurs when a person permanently removes personal property from the owner’s possession and control. 3. Intentional Interference with Contract In an intentional interference with contract tort, the plaintiff must prove that a valid and enforceable contract between the two parties existed, the defendant knew of the existence of the contract and its terms, the defendant intentionally undertook steps to cause one of the parties to breach the contract, and the plaintiff was injured in result of the breach. Unfair Competition – exists because U. S. law protects businesses acting on the profit motive. So when someone enters an industry with the sole intent of driving another firm out of business, the law punished this act as unfair competition. Fraudulent Misrepresentation occurs when a party uses intentional deceit to facilitate personal gain. To prove this the injured party must demonstrate: 1. Someone knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions 2. The defendant intended to have other parties rely on the misrepresentations 3. The injured party reasonably relied on the misrepresentations 4. The injured party suffered damages because of this reliance 5. A direct link exists between the injuries suffered and a reliance on the misrepresentations * III. Damages Available in Tort Cases A. Compensatory Damages – are designed to compensate the victim for all the harm caused by the person who committed the tort, often called the tortfeasor. They usually are rewarded for pain and suffering, costs of repairing damaged property, medical expenses, and lost wages. B. Nominal Damages – are awarded both to punish conduct that is extremely outrageous and to deter similar activity by the defendant and others. * Legal Principle : In general, in deciding whether to strike down a punitive-damage award as unconstitutional, the court will look at the (1) the degree of reprehensibility of the defendant’s misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. CAFA ( Class Action Fairness Act) is the one successful tort reform legislation at the national level that limits the conditions under which class action suits can be brought, as opposed to limiting damage awards. It grants original jurisdiction to the federal courts over any civil action in which (1) the amount in controversy is in excess of $5 million, (2) the action is brought as a class action with at least 100 class members, (3) any one of the plaintiffs is a citizen of a state different from that of any defendant, and two-thirds or more of the class members and the primary defendants are not citizens of the state in hich the action was filed. I. Introduction to Negligence and Strict Liability * Negligent and strict liability torts are generally committed when an individual fails to maintain a duty of care to another individual II. Elements of Negligence * Negligence is behavior that creates an unreasonable risk of harm to others. * Sometimes however, harm occurs because an individual suffers an unfortunate accident, an incident that simply could not be avoided. To prove negligence, the plaintiff must prove: 1. Duty – The standard of care a reasonable person owes to another. The reasonable person standard is a measurement of the way members of society expect an individual to act in a given situation. How likely was it that the harm would occur? How s erious was the harm? How socially beneficial was the defendant’s conduct that posed the risk of harm? What costs would have been necessary to reduce the risk of harm? The law holds that individuals have no duty to rescue strangers from perilous situations, although, there are some exceptions Landowners have a duty of care to protect individuals on their property Businesses have a duty of care to protect their customers against foreseeable risks about which the owner knew or reasonably should have known Businesses and corporations are also obligated to provide products to consumers that are safe from foreseeable harm or injury Professionals hold a higher duty of care to clients than does the ordinary person 2. Breach of Duty – Failure to live up to the standard of care 3. Causation – (a) Actual cause (aka cause in fact)–the determination that the plaintiff’s harm was a direct result of the defendant’s breach of duty and (b) proximate cause (aka legal cause)- the extent to which, as a matter of policy, the defendant will be held liable for the consequences of his actions. In some states, proximate cause is the same as actual cause 4. Damages – A compensable loss suffered by the plaintiff Compensatory damages are damages intended to reimburse a plaintiff for his or her losses In typical negligence cases, courts rarely award punitive damages, or exemplary damages, which are imposed to punish the offender and deter others from committing similar offenses Instead, courts usually award punitive damages in cases in which the offender has committed gross negligence, an action committed with extreme reckless disregard for the property or life of another person III. Plaintiff’s Doctrines Direct evidence of negligence by the defendant is not always available, so two doctrines have been adopted by courts to aid plaintiffs in establishing negligence claims: 5. Res Ipsa Loquitor literally means â€Å"the thing speaks for itself. † The plaintiff uses this doctrine to allow the judge or jury to infer that more likely than not, the defendant’s negligence was the cause of the plaintiff’s harm, even though there is no direct evidence of the defendantâ€℠¢s lack of due care. The plaintiff must demonstrate that (1)the event was a kind that ordinarily does not occur in the absence of negligence, (2) other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated, and (3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. Once the plaintiff has proved those three elements, the proof shifts to the defendant. 6. Negligence Per Se literally means â€Å"negligence in or of itself. Applies to cases in which the defendant had violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs. A defendant who complies with legislative statutes can still be held liable if a reasonable person would have exercised a more stringent duty of care toward the plaintiff. 7. Special Plaintiff’s Doctrines and Statutes * Danger invites rescue doctrine * Dram shop acts allow bartenders and bar owners to be held liable for injuries caused by individuals who become intoxicated at the bar. Other states have passed laws that hold hosts liable also. IV. Defenses to Negligence * Contributory Negligence 8. Contributory negligence applies in cases in which the defendant and the plaintiff were both negligent 9. The defendant must prove that (1) the plaintiff’s conduct fell below the standard of care needed to prevent unreasonable risk of harm and (2) the plaintiff’s failure was a contributing cause to the plaintiff’s injury. 0. If the defendant can prove contributory negligence, no matter how slight the plaintiff’s negligence was, the plaintiff will be denied any recovery of damages, which brings up: 11. Last-clear-chance doctrine allows the plaintiff to recover damages despite proof of contributory negligence as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff * Comparative Negligence Since it seems unfair that an extremely careless defendant can cause a great deal of harm to a plaintiff who is ba rred from recovery due to minimal contributory negligence, most states have replaced contributory negligence with either pure comparative negligence (where the court determines the percentage of fault at the defendant, where then, the defendant is liable for that percentage of the plaintiff’s damages) or modified comparative negligence (is in the same manner, but the defendant must be at least fifty percent at fault before the plaintiff can recover * Assumption of the Risk 2. In, assumption of the risk, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused 13. Express assumption of the risk occurs when the plaintiff expressly agrees (usually in a written contract) to assume the risk posed by the defendant’s behavior 14. Implied assumption of the risk means that the plaintiff implicitly assumed a known risk 15. The most difficult part of establishing this defense is showing that the plaintiff assumed risk of the actual harm she suffered * Special Defenses to Negligence 16. Good Samaritan statutes attempt to encourage selfless and courageous behavior by removing the threat of liability. 17. A superseding cost is an unforeseeable event that interrupts the casual chain between the defendant’s breach of duty and the damages the plaintiff suffered V. Strict Liability * Strict liability is liability without fault. The law holds an individual liable without fault when the activity in which she engages satisfies three conditions: 18. It involves a risk of serious harm to people or property 19. It is so inherently dangerous that it cannot ever be safely undertaken 20. It is not usually performed in the immediate community * Instead of banning these activities, the law allows people to engage in such activities but holds them liable for all resulting harm