Law Chapter 9: torts



Law Chapter 9: torts

Elements of an intentional Tort

Plaintiff must prove: 1 actual or implied intent

2. a voluntary act by the defendant

3. causation

4 injury or harm

Intent: subjective desire to cause consequences of an act

Actual intent: shown by evidence that def. intended specific conseq. to specific individual

Defenses

Even if all 4 are met , defendant can try to prove consent. With consent there is no tort

Types of Intentional torts: designed to protect individuals from physical harm

Intentional Torts to Protect persons

Battery: right to have ones body free from harmful or offensive contact. Intentional, non consensual harmful or offensive contact with plaintiffs body or something in contact with it.

Assault: does not require contact. Intentional non consensual contact that gives rise to apprehension that a harmful or offensive contact is imminent

False imprisonment: Intentional non consensual confinement by physical barriers

Intentional infliction of emotional distress: protects right to peace of mind. Plaintiff must show

1. outrageous conduct by the defendant

2. intent to cause or reckless ability of the probability of causing emotional distress

3. severe emotional suffering

4. actual and proximate causation of the emotional distress

Defamation: is the communication to a third party of untrue statements that injures the plaintiff’s reputation by exposing him to hatred ridicule or contempt

Defenses: an absolute priveledge cannot be lost, a qualified one can in certain conditions

Absolute priveledge is limited to:

1. the plaintiff has consented to the publication

2. statement is a political broadcast made under the fed “equal time” statue

3. statement is made by gov official in performance of gov duties

4. statement is made by participants in judicial proceedings

5. statement is made between spouses

Public Figures and media defendants

In order for public official to claim damages must be actual malice

Invasion of Privacy: violation of the right to keep personal matters to oneself

Intrusion: prying, eavesdropping or rifling through files

Intentional torts that protect property

Trespass to land: invasion of property without consent of the owner. Requires intent ot enter not intent to trespass.

Nuisance: non trespatory interference with use and enjoyment of property ex noise or odor

Public nuisance: unreasonable + substantial interference with public health, safety, peace, comfort, convenience or utilization

Private nuisance: interference with individuals use and enjoyment of his or her land

Conversion: exercise of dominion and control over the personal property of another

Trespass to personal property: when personal property is interfered with but not converted

Intentional torts that protect certain economic interests and Business relationships

Disparagement: is the publication of statements derogatory to the plaintiffs business or affairs

Injurious Falsehood: False statements that are knowingly made. Need not be disparaging

Defenses apply to injurious falsehood. Ex comparison of good is protected

Fraudulent Misrepresentation: protects public interests and right be to treated fairly. Proof that

1. defendant intentionally misled the plaintiff by making material misrepresentation of fact

2. defendant omitted to state a material fact when the defendant has a duty to speak due ot a special relationship to the plaintiff

Malicious prosecution and defense: if a plaintiff can show a prior proceeding was instituted against him maliciously and without probable or factual basis

Interference with contractual relations: protect the right to enjoy benefits of legal agreements

Think about Penzoil vs Texaco case

Defenses: truth. No interference if its true.

Interference with prospective business advantage: must prove defendant interefered with relationship plaintiff saught ot develop and that interference caused a loss.

Defense: most areas allow plaintiff to act for their own financial gain

Bad Faith typically brought by insured agent against insurance company.

Elements of Negligence

Does not include element of intent. Negligence is defines as conduct that involved an unreasonably great risk of causing injury to another person or damage to property

Plaintiff must show 1. defendant owed a duty to plaintiff ot act a certain way

2. defendant breached that duty by failing ot conform to the standard

3. a reasonably close causal connection exists between the injury and breach

4. the plaintiffl suffered an actual loss or injury

Duty: required to act reasonably under the circumstances to avoid harming the other person

Duty to rescue: no duty to rescue until an attempt is made. Except in special relationship

Parent/child. Innkeeper/ guest teacher/student etc

Negligence: Duty of Landowner or Tenant: owner of property has legal duty to keep reasonably safe

Traditional approach to liability to injuries on premesis

Duty to trespassers: generally no duties to trespassers. Some courts: duty to protectfomr dangerous conditions such as high wires.

Duty to children: Attractive nuisance: liability for physical injury to child trespassers caused by artificial condition on the land if:

1. landowner knew children were likely to trespass

2. provide unreasonable risk to injury of children

3. children, because of youth, did not know of risk involved

4. utility to the possessor of maintaining the position is not great

5. Burden of eliminating risk is slight compared to risk

6. the possessor fails to exercise reasonable care to protect children

Duty to licenses: Any one on land with implied consent. Duty arises when owner of land is aware of the risks. Duty to protect

Duty to Invitees: higher duty to them than to licensee. “slip and fall” cases

Reasonable care approach: requires owners have duty of care in respect to all persons on land.

Duty of landlord to tenant: Relevant issues: 1. the areas was a high crime area

2. there had been earlier criminal acts

3. there was a failure to maintain locks

4. the landlord has knowledge of prior criminal acts

Negligence: Duty of Accountant and other professionals to third parties:

Negligent hiring and liability for letters of recommendation

Negligent hiring: plaintiff must prove:

1. employer was required to make an investigation of employee and didn’t

2. investigation would have revealed unsuitability of employee for employment

3. it was unreasonable for employer to higher employee for that reason

Duty to employers based of Let of Rec: damned if you do, damned if you don’t.

Randi v muroc joint school district

Negligence: Breach of Duty Causation and Injury

Standard of conduct: compare to other professionals in the field: i.e. lawyer, pilot, doctor

Res Ipsa Loquitur: “ the thing speaks for itself” (finding surgical clamps etc)

1. injury within exclusive control of defendant

2. ordinarily not occur in the absesnse of negligence

3. must not be due to plaintiffs own negligence

Causal Connection

Actual cause: plaintiff must prove he would not have been harmed if it wasn’t for def.

Proximate Cause: def. had duty to protect plaintiff from the actual cause

Injury: cannot sue for emotional distress unless there is physical injury

Defences to Negligence:

Contrbutory Negligence: if plaintiff was negligent in any manner= no damages

Comparative Negligence: may recover the portion of his loss attributed to def.

Pure comparative negligence: def can recover any amount of defendents neg

Assumption of risk: requires the plaintiff

1. new risk was present and understood its nature

2. voluntarily chose to incur the risk

Countervailing federal imperatives: sexual harassment case

Vicarious Liability and Respondent Superior

Respondent superior: let the master answer. Employer bears risk. Plaintiff must establish that

1. the employess consumed alcohol at employee party

2. employee caused accident while driving from banquet

3. occurred at the proximate time of consumption

4. banquet was beneficial to eomployer, attendance required

Liability for torts committed within scope of employment

Successor Liability: one who purchase a business may be held liable for torts of the previous owner

Liability of Multiple Defendants:

Joint and several liability: helps defendant get money from the most sovent person. Many states

Have outlawed this. Can be responsible for 100 percent of fines if only 1 percen resp for

The actions

Contribution and indemnification:

Contribution distributes loss requiring each pay proportionate share

Allows defent to shits loss to other defendents whose blame is greater

Strict Liability: liability without fault (either intent or negligence)

1. in product liability cases

2. cases involving abnormally dangerous activities

Ultrahazardous activities: is if : 1. involves risk of serious harm to peroson that cannot be eliminated by even the utmost care

2. not a matter of common usage

Damages

Actual damages: cost to repair or replace the item

Punitive Damages: (exemplary) deter others from engaging in the same conduct

Equitable relief: when ney wont do. Court can issue an injunction to stop offending activity

Toxic torts

Definition: wrongful act that causes exposure to a harmful substance

1. utilize substances that may injur employee consumer or bystander

2. whose processes emit hazardous substances into air or water

3 waste material goes to landfill where it may get in ground water

4 whose product itself can injure or contains dangerous substances

Expensive to defend:

Strict liability

New Theories damages

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