Torts Notes

10-24-19

Torta? Tortilla Chips? Nah :b: it’s Torts time

Torts are civil wrongs.

Why do we have em?

Goals of Tort Law - To provide civil rules for individuals and businesses who act in a way that exposes others to risk of injury, to provide compensation to those who are injured.

Burden of proof in a civil case - plaintiff must prove liability by a Preponderance of the evidence.

Risk Management

Effort made within an organization to avoid a lawsuit

Liability insurance

Classification of Torts

Intentional Torts - acts that are done on purpose that cause injury to another

*Negligence - the failure to exercise reasonable care (most often, 90%)

Strict Liability - Liability without fault. Liability even if one exercises reasonable care.

Intentional Torts

Battery: intentional offensive touching of another. One need not be aware of the battery while it’s occurring.
Assault: an act which places a person in fear or apprehension of immediate bodily contact.
Defenses to battery include self defense and consent.
Defamation: a wrongful statement which hurts a person's good reputation, name, or character. (Elements of Defamation include False, Defamatory (statement that holds a person up to public scorn/ridicule (embarrassment)), and Published to a third party)

 10-28-19

Back to torts

Types of Defamation
Libel: defamation - written form (Defamatory statement published in a permanent form, such as in a magazine or newspaper.)
Slander: defamation - spoken word (Defamation statement made verbally)
Obv. Libel is worse.

Damages for Defamation

Damages for Libel - general damages are presumed one liability is established

Damages for Slander - general rule is that for slander, damages must be proven except for slander per se.

Slander per se - statements so damaging that even though spoken, damages will be presumed. (serious crime, improper business conduct, a contagious disease, sexual misconduct)

Defenses to Defamation

-Truth

- Privilege - legal immunity (Absolute (lawyers, legislators during debate, etc) or Qualified (managers, supervisors)

So long as you act in good faith, and only give the evaluation to those who need to see it, you are protected. (qualified)

Defamation and public figures

Who are public figures? - Those in the public limelight

A fourth element required

Malice: Knowledge that the statement was false when it was made.

False Imprisonment

Intentional confinement of another without justification (police, department stores)
Shopkeeper’s Privilege - can imprison based on probable cause, jury decides whether it is justifiable

Intentional Infliction of Mental Distress

An extreme and outrageous act that results in severe emotional stress to another.
          Fraudulent Misrepresentation
A false statement which leads another to believe a condition is different than what actually exists. This tort is normally found in contract situations.

Elements
The defendant knowingly, or with reckless disregard for the truth, misrepresented material exists
To induce another party to rely
Justifiable reliance and
Damagers were suffered because of the reliance on the misrepresentation


	Fact v. Opinion - if it's a fact, it’s not fraudulent misrepresentation

	Puffery - sales talk, not actionable unless it’s a question of fact v. opinion

	Invasion of Privacy

Intrusion

Public disclosure of private facts

Commercial Appropriation
Use of another person’s name or likeness without permission or compensation

	Wrongful Interference with a Contractual Relationship
		Elements
 A valid and enforceable contract between two parties
The tortfeasor knows that the contract exists
Induces one of the parties to breach

10-31-19

More torts

Intentional Torts Against Property

Trespass to Land

Occurs when a person intentionally enters the land of another without permission or causes an object to be placed on the land of another without the landowner’s permission.

	Real property - land and anything permanently attached to it. Personal property is everything else

	Conversion - the wrongful taking of an individual’s personal property with the intent to permanently deprive the owner of it.

Trespass to Personal Property
A temporary exercise of control over another’s personal property, or interference with the true owner’s right to use the property.

Private Nuisance
A person’s unreasonable use of his property that interferes with a neighbor’s use or enjoyment of their property.

Negligence
The failure to exercise reasonable care

Elements of Negligence include..

Duty
Breach of Duty
Damages (Injury)
Proximate Clause

Special doctrines that involve duty and breach of duty are Negligence Doctrines

Additional ones:

Voluntary Undertaking Doctrine - where no obligation exists, if you choose to act, you must act properly

Danger Invites Rescue - An obligation/duty that one person owns to another, he owes to whoever comes to assist.

Good Samaritan Rule - One who helps in the case of emergency is not responsible for negligence.

Dram Shop Act - This provides liability on bars and restaurants if they serve alcohol knowingly to an intoxicated person who then injures a 3rd party.

Malpractice - Duty to exercise reasonable care by a doctor or lawyer or other professional.

Vicarious Liability - Liability placed on employers because of the acts of the employee.
11-4-19

Proximate Clause - This requires that the defendant's breach of his duty be close enough to his patients injury for there to be legal liability

I should ask myself: “When the defendant breached his duty, was it foreseeable that the plaintiff’s injury would have occurred?”

Defenses to negligence:

Comparative negligence - Allows defendant to prove that the plaintiff themselves was partially at fault for her own accident. Her percentage of fault will reduce the amount of recovery
	Old rule: (contributory negligence)

Assumption of Risk - a defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk of the actual harm the plaintiff incurred.

Only the risk is inherent in the activity is assumed.

Res Ipsa Loquitur (The Thing Speaks For Itself)

Elements:

The event was a kind that ordinarily does not occur in the absence of negligence

Other responsible causes, including the conduct of third parties and the plaintiff, have been eliminated, and

The indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Negligence Per Se (“Negligence In or Of Itself”)

Applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs.

Strict Liability - liability even if you exercise reasonable care

This doctrine is only implied in those cases where a person engages in an ultra hazardous activity

11-7-19

Products Liability - This action describes a tort claim against someone who makes or sells a product that hurts an individual.