Law 121 Chapter 7 Notes - Summary The Study of Law PDF

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Download Law 121 Chapter 7 Notes - Summary The Study of Law PDF

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Chapter 7 Notes 

A tort can occur when someone injures you, Slanders your reputation, or damages your property o a tort is a private wrong in which a person or property is harmed because of another's failure to carry out a legal Duty o in most instances This legal duty is an obligation to refrain from taking actions that harm others  occasionally a duty will consist of an affirmative obligation to act in order to protect others o a tort is considered to be a private wrongs as opposed to criminal acts which are seen as public wrongs o the individual harm to must pursue a tort action o a finding of guilt in a criminal action can result in a fine paid to the state or imprisonment, while a finding of liability in a tort action usually leads to a damage awarded to the harmed party o Tort actions vs contract actions  In a tort action the legal Duties are established by the courts through the common law and more recently also by statutory modifications of the common law  in contrast, contract actions are based on the legal duties the parties established in their contract  a further difference between a contract action and a tort action lies in the remedy sought  in a contract action the purpose of the lawsuit is to give the injured party the benefit of the bargain  any tort action the purpose is to compensate the plaintiff for any losses suffered  restatement of the law of torts, second- authoritative secondary source, written by a group of legal Scholars, summarizing the existing common law, as well as suggesting what the law should be  tort law has never been static  tort law is still predominantly court created law  torts are classified into three major categories: o intentional Acts - when people intentionally seek to violate a duty toward others; subject to punitive and compensatory damages o Negligence - when the harm occurs as a result of a careless act done with no conscious intent to injure anyone; subject to compensatory but not to punitive damage o Liability- when for policy reasons the defendant is held responsible even though the defendant did not act negligently nor intentionally to harm the plaintiff; limited to situations involving an ultrahazardous activity  the person who commits the tort is known as the tortfeasor  Intentional Torts o occurs whenever someone intends an action that results in harm to a person's body , reputation, emotional well-being, (assault and battery, false imprisonment, defamation) or property (trespass, conversion) o almost any harm that you can imagine, if caused intentionally, can be classified as an intentional tort o the primary defense is available in intentional tort cases are consent, self defense, defense of 3rd parties, and various types of privilege o Many intentional torts are also crimes o assault- an intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact

Elements:  An intentional Act  that creates a reasonable apprehension of  immediate harmful or offensive physical contact (aka - not a threat to go and get a gun because not immediate) battery- an intentional act that creates a harmful or offensive physical contact  Elements:  an intentional Act  that creates a harmful or offensive physical contact  three important concepts:  the intent involved must be the intent to perform the act, not necessarily to cause a plaintiff harm  usually defendants will be liable for any consequences of their actions, even if the consequences were unforeseeable  transferred intent- a legal fiction that if a person directs a tortious action toward party A but instead harms party B, the intent to act against A is transferred to B  the first step in winning a tort claim is for the plaintiff to prove each of the elements of that tort  the defenses that can be raised to an assault or battery claim are consent, self defense, defense of others, and sometimes defense of property  for self-defense and defense of others to be valid, the plaintiff must reasonably believe that a threat exists and then must use as only much force as is necessary to stop the battery false imprisonment- occurs whenever one person, through force or the threat of force, unlawfully detained another person against his or her will  Elements an intentional Act  that caused a confinement or restraint  Through Force or the threat of force  the plaintiff must be actually confined with no means of Escape  the most common defense to false imprisonment is that the defendant was justified and restraining the plaintiff; also consent is a defense  statutes provide that a shopkeeper May detain a suspected shoplifter only if the shopkeeper can show probable cause to justify the delay and that even then the shopkeeper May detain suspected shoplifter only for a reasonable time and in a reasonable manner Defamation- the publication of false statements that harm a person's reputation  Slander- spoken defamation  Libel - written defamation  to be considered defamatory, the material must tend to injure a person's reputation, to hold a person up to ridicule, or to excite adverse, derogatory, or unpleasant feelings or opinions about the person  Elements:  Publication (means that someone other than the plaintiff and the defendant must read or hear the defamatory comments)  of false statements  that cause harm to reputation (usually shown that the plaintiff lost a job, a contract, or something else of value as a result of people having read or heard the defamatory material) 

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defamation per se- remarks considered to be so horrible that they are automatically viewed as defamatory  Examples:  that someone has a loathsome communicable disease  that someone committed business improprieties  That an unmarried woman is unchaste  that someone has been imprisoned for a serious crime the right to sue for defamation requires a balancing of the right to preserve one's reputation with the Public's interest in maintaining a free Marketplace of ideas when the plaintiff is a public official or public figure, the plaintiff must prove a fourth element, actual malice, in addition to the three elements  Malice- making your defamatory remarks either knowing the material was false or acting with a reckless disregard for whether or not it was true judges, attorneys, jurors, and other court Personnel are protected against being held liable for comments that are made as part of their official duties Defenses - truth, privilege o invasion of privacy- an intentional tort that covers a variety of situations, including disclosure, intrusion, appropriation, and false light Disclosure- the intentional publication of embarrassing Private Affairs intrusion- the intentional unjustified encroachment into another person's private activities appropriation- unauthorized exploitive use of one's personality, name, or picture for the defendants benefit false light- the use of a picture or some other means to infer a connection between the person and an idea or statement for which the individual is not responsible in cases involving invasion of privacy, truth is not considered to be a valid defense consent is a defense; also newsworthiness o intentional infliction of emotional distresssometimes referred to as the tort of outrage Elements:  an intentional Act  that is Extreme and outrageous  add causes  severe emotional distress Defenses: consent  Harm to a Persons Property o Property can be classified as either: real property personal property o the tort of trespass is when someone invades your rights to real property o an invasion of your rights to personal property can be classified as either trespass to personal property or conversion trespass to personal property- occurs when someone harms or interferes with the owner's exclusive possession of the property but has no intention of keeping the property

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conversion- the Big Brother of trespass and that it involves the more serious taking of someone else's property with the intent of permanently depriving the owner; civil side of theft o trespass elements: someone enters or causes something to enter or remain on the land of another Without permission o Defenses to trespass to land: consent, private necessity, public necessity o Defenses to trespass to personal property: rightful retention (artisans lien), necessity o Artisans lien- rightfully retaining someone's property o false arrest- when a person is arrested by either a law officer or a citizen without probable cause and when not covered by special privilege o malicious prosecution and abuse of process both involve malicious and improper use of the courts or other forms of legal proceedings o fraud involves the attempt to induce Reliance on a misrepresentation, knowledge that the representation is false or a reckless disregard for the truth, justifiable Reliance, and harm o the tort of interference with a contractual relationship prohibits one from inducing a party to breach a contract or interfering with the performance of a contract  the most common to our actions involve negligence o negligence is a failure to act as a reasonably prudent and careful person is expected to act and similar circumstances. o the purpose of negligence law is to compensate a plaintiff for any harm suffered o it is a careless inflicting of an injury as opposed to an intentional one o four basic elements in a negligence case: 1. Defendant must owe a Duty to the plaintiff to act reasonably  The law imposes a duty to act with due care  this due Care standard is defined in terms of how a reasonably prudent person would act in the same situation  the duty is owed by all persons within the society to a degree that is consistent with their ages and physical and mental conditions  what legal Duty you owe to others also varies depending on your relationship to that other person. the closer and more direct the relationship, the greater the likelihood that a court will find a duty  misfeasance- acting in an improper or wrongful way  nonfeasance- failing to act  courts frequently say that duty is a question of law to be determined by the judge, while foreseeability is a question of fact to be determined by the jury 2. Defendant must have breached that Duty

In order to prove have a reasonable professional would have acted, the plaintiff will be required to call an expert witness to testify as to the professional standard of care and how in the expert opinion the defendant breached that standard  another concept that can sometimes be used by the plaintiff to show negligence is the doctrine of res ipsa loquitur  Res ipsa loquitur - the thing that speaks for itself; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent  the court will assume that the defendant was negligent without the plaintiff having to prove the precise nature of that negligence 3. Causation (thereby causing)  under one commonly used test, referred to as the “but for” standard, it is necessary to establish that if the defendant had not acted in that manner, the plaintiff would not have been injured  this is known as the actual cause or cause in fact  actual cause- measured by the “but for” standard; but for the defendant's actions, the plaintiff would not have been injured  market share Theory- a theory that allows plaintiffs to recover proportionately from a group of Manufacturers when the identity of the specific manufacturer responsible for the harm is unknown  the second prong of the requirement that the defendant's actions caused the injury is known as proximate cause  proximate cause- once actual causes found, as a policy matter, the court must also find that the Act and the resulting harm were so foreseeably related as to justify a finding of liability  This notion of proximate cause is not really about cause at all, but rather represents a policy decision that at some point eight defendant will not be held responsible for every consequence of every action  Palsgraf v. Long Island Railroad Company  probably the most famous tort decision ever written  Superseding cause - in negligence, and intervening Clause that relieves the defending of liability  Dramshop laws- statutes making bar owners responsible if intoxicated patrons negligently injure third parties 4. harm to the plaintiff o a feeling of outrage is not enough to support a cause of action  defenses to negligence o contributory negligence- negligence by the plaintiff that contributed to his or her injury. Normally, it is a complete bar to the plaintiff's recovery o comparative negligence- a method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate decrease in the compensation for the injuries three alternative theories of comparative negligence:  a plaintiff can recover when the plaintiff's negligence is slight but may not recover when the plaintiff's negligence is gross. This is too difficult to measure and currently only one state follow this approach 

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under a pure comparative negligence statute a plaintiff can recover actual damages less a percentage, calculated as the amount of negligence attributable to the plaintiff  under modified comparative negligence, a plaintiff's recovery is reduced by the percentage of the plaintiff's own negligence if the defendants negligence is greater than or equal to that of the plaintiff o Assumption of the risk- voluntary and knowingly subjecting oneself to Danger the plaintiff may not recover for an injury received as a result of voluntary subjecting himself or herself to a known Danger for example when people choose to attend a baseball game they assume the risk of being hit by a foul ball Assumption of risk involves a subjective standard  the plaintiff must voluntarily and knowingly assume the danger and understand the risk o exculpatory clause- a provision that purports to waive liability o Immunitiescertain defendants are immune from suit many states have eliminated spousal immunity in specific situations  the prohibition against one spouse suing the other some states have eliminated parental immunity  the prohibition against allowing children to sue their parents charitable immunity  the prohibition against suing charitable organizations or capping the possible damage award sovereign immunity- prohibit suits against the government without the government's consent  Reckless behavior o Recklessness - disregarding a substantial and unjustifiable risk that harm will result o Unlike negligence, which requires merely unreasonable behavior, recklessness requires a “conscious choice of a course of action, with knowledge or reason to know that it will create a serious danger to others” o Most courts have held that a plaintiffs contributory negligence may not be used as a defense when the defendant has acted in a willful, wanton, or reckless manner o One of the most interesting areas requiring the finding of at least reckless behavior is in the area of sport law Player must have acted in an intentional or reckless manner  Strict liability o Liability without having to prove fault o Person is responsible for injuries that resulted from actions that were not necessarily unreasonable and that did not violate a standard of due care o The courts have applied strict liability in two situations: Ultrahazardous activities - those activities that have an inherent risk of injury and therefore may result in strict liability  6 factors: 

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Existence of a high degree of risk of some harm to the person, land or chattels of others  Likelihood that the harm that results from it will be great  Inability to eliminate the risk by the exercise of reasonable care  Extent to which the activity is not a matter of common usage  Inappropriateness of the activity to the place where it is carried on  Extent to which its value to the community is outweighed by its dangerous attributes  Defense: assumption of the risk Products liability- the theory holding manufacturers and sellers liable for defective products when he defects make the products unreasonably dangerous  3 theories plaintiff can use when bringing products liability claim:  A defect in the product caused by failing to use reasonable care in the manufacturing process  A defect in the product caused by negligent design  Negligent failure to warn o Defenses to strict liability Product misuse- when the product was not being used for its intended purpose or was being used in a dangerous manner; it is a defense to a products liability claim so long as the misuse was not foreseeable Assumption of the risk; contributory negligence in some states  Wrongful life or wrongful birth o Wrongful life- child suing on the basis that but for someones negligence the child never would have been born o Wrongful birth- parents suing over the birth of a child  Battered spouse syndrome o Result of continued pattern of abuse and violence. o Consists of three stages: Monir physical or verbal abuse Actual battering occurs Abuser asks for forgiveness and promises to never abuse again. Leads to cycle beginning again  Drug Dealer Liability Act o Anyone who distributes an illegal drug can be sued by anyone harmed by that type of drug o The distribution must have been in the same area and during the same time period as the person who took the drugs  The most common form of remedy that a plaintiff seeks in a tort action is the awarding of some form of damages  3 types of damage awards: o Compensatory, punitive, nominal o In addition to, or instead of, the court may issue an injunction An order to the defendant ordering them to do a specific act or cease it o Compensatory damages (actual damages) - awarded to compensate the plaintiff for the harm done to him or her Can be divided into general and special damages  General damages- pain and suffering, emotional distress, disfigurement, loss of reputation 

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Special damages- economic loss that someone suffered due to a tort injury, cost of repairing or replacing damaged property, paying medical bills, income lost from not working o Punitive damages- punish and deter tortfeasors Awarded only for intentional torts o Nominal damages- awarded when a right has been violated but the plaintiff cannot prove any monetary harm 

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