Torts PDF

Torts What is a Tort? A tort is a breach of duty that causes injury or damage to a person(s) or property. Tort law is designed to compensate those who have suffered a loss/injury. Kinds of Torts in...

Torts What is a Tort? A tort is a breach of duty that causes injury or damage to a person(s) or property. Tort law is designed to compensate those who have suffered a loss/injury. Kinds of Torts in geward Intentional Torts Defamation, Invasion of Privacy, Business Torts Unintentional Torts (Negligence) Strict Liability, Products Liability Damages differences know I Types of damages available: Compensatory Damages Special Damages Loading… General Damages Punitive Damages Nominal Damages Damages – Types D Compensatory Damages: To compensate plaintiff for harm suffered; must be foreseeable, certain, unavoidable Special: Quantifiable dollar loss suffered (proven at trial) Include economic losses such as medical bills, lost wages/profits, and property damage General: Damages not quantified in monetary terms (i.e., no invoice or receipt as with special damages) Include pain and suffering, emotional distress Damages – Types Punitive Damages: (aka “exemplary damages”) Purpose is to punish defendant, rather than compensate plaintiff(s) In most jurisdictions punitive damages are Loading… recoverable in negligence, but only if plaintiff can show defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless) Due Process Limit: Can’t be grossly excessive when compared to compensatory amount Nominal Damages: Plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses Can be as low as $1 What is Intent? have idea Intent: Desire that a result will occur or knowledge to a substantial certainty that a result will occur. Variations: Children Mental Illness Transferred Intent Between Victims Between Torts Intentional Torts have idea To Person To Property Assault Real Property Battery Trespass to Land False Imprisonment Personal Property Intentional Infliction of Trespass to Chattles Emotional Distress Conversion **Please note that some of these torts may cover topics or situations that may be difficult or sensitive to some students** Assault Rule: Intentionally placing another in reasonable apprehension of an imminent harmful or offensive touch without consent or privilege. Physical contact not required Words alone are not enough, defendant must have actual ability to inflict harm Plaintiff must have awareness Battery Rule: The intentional harmful or offensive touching of another, without consent or privilege. Trivial touching of person or clothing is sufficient Awareness is not necessary False Imprisonment Rule: The intentional physical or psychological confinement of another, within fixed boundaries, for any period of time, without consent or privilege. No reasonable means of escape Awareness of confinement or physical injury Intentional Infliction of Emotional Distress Rule: Conduct of an extreme and outrageous nature which is intended to cause and which does cause severe emotional distress. Loading… Beyond the bounds tolerated by civilized society Distress must be lasting, not temporary or minor No transferred intent Trespass to Land Rule: The intentional entry upon land in possession of another without consent or privilege. Requires some tangible entry Mistake is no defense Trespass to Chattels Rule: Minor intentional interference with the personal property of another without consent or privilege. Chattel: item of personal property Mistake is no defense Actual minor damage or interference Conversion Rule: Major intentional interference with the personal property of another without consent or privilege. Mistake is no defense Must have some major interference More than minor or temporary damaged forever, taken Damages: Fair Market Value at the time of conversion Defamation * To establish a prima facie case: Plaintiff must prove the matter was false and defamatory, published intentionally or negligently by defendant to a third person, that the third person understood the defamatory imputations applied to plaintiff and plaintiff suffered damages as a result of the defamation. Defamation – Common Law case... to establish 1. False Statement Burden of proof on plaintiff to prove falsity 2. Defamatory Must harm or injure plaintiff’s reputation 3. Published Must be heard by at least 1 third person Intentional or negligent OK 4. About or Concerning Plaintiff Extrinsic facts OK 5. Caused Damage Defamation – Damages Plaintiff needs to prove damages Type of damages to prove depends on type of defamation plaintiff claims: Slander Slander Per Se Libel I know difference Defamation – Slander * Slander is oral defamation Plaintiff must prove actual special damages (pecuniary) Once special damages are proven, general damages are also recoverable Defamation – Slander Per Se * Slander Per Se is oral defamation that concerns: Business / Profession Serious crime Loathsome disease Unchastity Plaintiff does not need to prove actual special damages, general damages are presumed Defamation – Libel * Libel is written defamation Plaintiff does not need to prove actual special damages, general damages are presumed  Defamation – Constitutional If the defamation includes a “public” or “newsworthy” ingredient (person or event), must consider constitutional requirement of actual malice to recover damages Actual Malice (New York Times v. Sullivan) Rule: Knowledge of falsity or reckless disregard for the truth Types of damages depend on type of suit Public P v. Any D Public Figure Pervasive/ Achieved Fame: Famous or holds public office Limited Purpose: Public figure for one purpose, private figure for other issues A public figure cannot base a defamation suit unless there is proof the defendant acted with actual malice Higher standard of proof (“Burden of Proof”) required for public figure plaintiffs Private P v. Any D – Matter of Public Concern Common law negligence is sufficient for actual (special) damages Actual Malice is required for presumed (general) damages Private P v. Private D – Matter of Private Concern Common law negligence is sufficient for actual (special) damages and presumed (general) damages Fraudulent Misrepresentation maybe False statement of material fact Scienter: Knowledge of falsity or reckless disregard for the truth Intent to induce reliance on the misrepresentation Justifiable reliance by the deceived party Causes actual damage The Tort of Negligence know Negligence is an unintentional tort that causes actual harm. Rule: A defendant may be liable to a plaintiff for negligence if it can be determined that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the plaintiff suffered damages which were actually and proximately caused by the defendant’s breach. Negligence Junoa 1. Duty Standard of Care 2. Breach 3. Causation Actual Cause Proximate Cause 4. Damages  Duty * Ask: Did the defendant have a legally recognizable duty to the injured party? ⑨ General Rule: A duty of reasonable care is owed to all foreseeable plaintiffs (Palsgraf v. Long Island Railroad Company) “Reasonable” is determined by the Standard of Care  Standard of Care C General Test: Reasonable Person Test Reasonable Person Test: Looks at how a typical person, with ordinary prudence, would act under certain circumstances Other Standards of Care Adults with disabilities are held to the reasonable person test with their disability taken into consideration Children are judged by age, intelligence, and experience Professional Standard of Care Professional Standard of Care & Professional Standard of Care: Professionals such as physicians, attorneys, etc. are measured by standards in the profession. Ask: Did the defendant act as an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would have under the same or similar circumstances? Duty — Special Duties Special Duties (Common situations): Violation of Statute Omission to Act Landowner / Occupier Duty – Violation of Statute Majority: Negligence Per Se Duty is automatic when a statute is violated (i.e. statute adopted as standard of care) if three conditions are met: 1. Intent of the legislature 2. Class of persons to be protected 3. Type of injury suffered Duty – Omission to Act In general, no duty to go to the aid of another in an emergency unless: Special relationship between the parties Parent/child, employer/employee, common carrier (transports goods/people) Duty to warn: Tarasoff (narrow) Injured by instrumentality under defendant’s control Statutory duty to act  Duty – Landowner / Occupier Who is the Natural Artificial Activities Plaintiff? Conditions Conditions Outside the No Duty Reasonable Care Reasonable Care Premises Unknown No Duty No Duty No Duty Trespasser Known No Duty Warn or Make Reasonable Care Trespasser Safe Known Dangers Licensee Warn or Make Warn or Make Reasonable Care (social guests, Safe Known Safe Known police) Dangers Dangers Invitee Reasonable Care Reasonable Care Reasonable Care (public, business) Breach Ask: Did the defendant breach the duty owed through the standard of care by exposing others to a risk of harm? General Test: Plaintiff must have proof of what happened and Must show the defendant acted unreasonably (breached the standard of care) Alternative Theory: Res Ipsa Loquitor *  Breach – Res Ipsa Loquitor “The thing speaks for itself” The breach is so obvious it doesn’t require further explanation Used when only know the result, there is no evidence of what actually happened Requires Three Elements: 1. The accident/injury does not normally occur in the absence of negligence 2. Instrumentality which caused plaintiff’s injury must be in defendant’s exclusive control 3. Plaintiff must not have contributed to his/her/their own injury Causation & Actual cause: Defendant’s actions must be the cause in fact of plaintiff’s injury + Proximate Cause: Looks to see if there is any reason defendant should be relieved of liability (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?) Causation – Actual Cause Concurrent Tortfeasors: Separate negligent acts occur and plaintiff would not have been injured without the concurrence of both Joint Tortfeasors: Several defendants jointly engaged in negligent conduct Each defendant is liable even if only one inflicted injury Successive Tortfeasors: Defendants act independently but cause successive impacts to plaintiff resulting in a single indivisible injury  Causation – Actual Cause Substantial Factor Test: Plaintiff sustains an injury resulting from negligent conduct of multiple tortfeasors. Even if the conduct of each is not the “but for” cause of the injury, both are a substantial factor. Alternative Liability: Insufficient facts as to which of several tortfeasors caused the injury, both defendants could not have the caused the injury, and it is impossible to prove which defendant’s act caused the injury. Shifts burden of proof to each defendant to show each’s negligence was not the actual cause of the plaintiff’s injury (Summers v. Tice: two rifles, one man gets shot, don’t know which gun) Causation – Proximate Cause Ask: Is there any policy reason why defendant should be relieved of liability for the injury? (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?) Direct Cause No intervening act Foreseeable result? Indirect Cause Some intervening act occurred Dependent Intervening Act Independent Intervening Act Causation – Proximate Cause Dependent Intervening Act: Normal response created by defendant’s negligent act Effect: won’t cut off defendant liability unless it is abnormal Rescue forces, reaction forces, medical malpractice Independent Intervening Act: Abnormal response created by defendant’s negligent act; may have occurred regardless of defendant’s negligence Effect: if result is foreseeable, defendant still liable; if result is unforeseeable (“superseding act/cause”), can cut off defendant’s liability Acts of God, animals, third person Damages & Remember, a plaintiff can only recover damages under negligence if he/she/they have suffered actual harm Types of damages available: Compensatory Damages Special Damages General Damages Punitive Damages Nominal Damages Defenses to Negligence Basic Defenses (trial/pre-trial mechanisms): & Denial Defense Statute of Limitations Failure to Mitigate Damages - Affirmative Defenses (look at plaintiff’s conduct): Contributory Negligence F Comparative Negligence sche Assumption of Risk =  Basic Primary Defenses Denial Defense: Most common defense is denial during trial —expert witnesses, documentation, etc. to prove standard of care was met; often used in professional negligence cases; if proven, no recovery Statute of Limitations: The time period allotted for the injured party to file a lawsuit; varies by state and situation; pre- trial motion; if proven, complete bar to action Exception: Discovery Rule Failure to Mitigate Damages: Plaintiff has a duty to mitigate damages; for example, seek treatment for medical injuries (affirmative duty, can be seen as intervening act/cause)  Affirmative Defenses depend dich Shurisar Contributory Negligence: Plaintiff’s conduct was a contributing factor in his/her/their own injury; complete bar to recovery, even if 1% at fault Comparative Negligence: Compares the negligence of plaintiff and defendant and apportions damages accordingly: Pure Comparative Negligence: Plaintiff’s recovery is reduced by his/her/their amount of fault; can recover 30% even if 70% at fault Modified (Majority): Plaintiff can only recover if his/her/their negligence was equal to or less than defendant’s negligence; more than 50% at fault, can’t recover  Affirmative Defenses, con’t. D Assumption of Risk: If plaintiff assumed risk of injury, s/he/they can’t recover Express (Contractual): Prior to defendant’s negligence, plaintiff assumed the risk of injury by signing a release Plaintiff knows and understands the contents + Injury within scope of release + Enforcement of release not contrary to public policy Implied (Subjective): No express oral/written release Plaintiff knew the risk + Appreciated the magnitude + Voluntarily assumed it