Post on 18-Jan-2016
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Torts
Chapter 6
Basis of Tort Law
• What is a Tort?– A tort is a civil injury designed to provide a
remedy (damages) for injury to a protected interest.
Basis of Tort Law
• Damages Available in Tort Actions. –Compensatory: reimburse plaintiff
for actual losses.–Special: quantifiable losses, such as
medical expenses, lost wages, and benefits.
Basis of Tort Law
• Damages Available in Tort Actions. –General: non-monetary, such as pain
and suffering, reputation.–Punitive: punish the wrongdoer.
Torts: An Introduction
• Civil vs. Criminal Wrong– A tort is a “civil” wrong punishable by paying
damages to the injured party.– A tort is not a “criminal” wrong resulting in
paying a fine to the government and/or being imprisoned.
Torts: An Introduction
• Civil vs. Criminal Wrong– Some torts may also serve as the basis for
separate criminal prosecution by the state.– Burden of Proof is different:
• “beyond a reasonable doubt” for crimes• “preponderance of evidence” for torts
Torts: An Introduction
• Tort vs. Contract– The duty that is violated by the tortfeasor must
exist as a matter of law, not as a consequence of any agreement between the tortfeasor and the injured party.
Intentional Torts:
• A tort intentionally or knowingly committed. It can be to a person or to property.
Intentional Torts
• Tortfeasor (person committing the tort) must “intend” to commit the act:–He intended the consequences of his act; or
–He knew with substantial certainty that certain consequences would result.
Intentional Torts Against Persons
• Transferred Intent.– Intent of tortfeasor is transferred when he intends to
harm person “A” but unintentionally harms person “B” as well.
Intentional Torts: Assault
– An intentional act that creates a reasonable apprehension of immediate harmful contact.
– For example, pointing a gun at someone.
Intentional Torts: Battery
– An intentional harmful or offensive contact.– For example, getting hit by the bullet.
Intentional Torts: False Imprisonment
– The intentional confinement or restraint of another person’s activities without justification.
– Restraint may occur through the use of physical barriers, physical restraint, or threats of physical force.
Intentional Torts: Infliction of Emotional Distress
– An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.
– Parodies of public figures protected
Intentional Torts: Defamation• Defamation is anything published or
publicly spoken that injures another’s character, reputation, or good name.
• Libel is defamation that is written.• Slander is defamation in oral form. • Truth is normally an absolute defense
against any claim of defamation.• Public figure has to prove actual malice.
Intentional Torts: Privacy
• Invasion of Privacy– Four acts generally qualify as improperly
infringing on another’s privacy:
Intentional Torts: Privacy• Appropriation: use of a person’s name or likeness
without permission.• Intrusion in an individual’s affairs where the
person has a reasonable expectation of privacy. • Public disclosure of private facts that an ordinary
person would find objectionable.• Publication of information that places a person in
a false light.
Intentional Torts: Fraud• Actionable fraud consists of the following
elements:– A misstatement of a material fact– Made knowingly or with reckless disregard for
the truth– With intention to deceive another – With justifiably reliance by a reasonable person
Intentional Torts: Fraud
Mere puffery, or “sales talk,” is not fraud because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person.
Intentional Torts: Tortious Interference
Intentional interference with a contractual relationship–Must be a contract between two parties–Third party must know the contract exists–Third party must intentionally cause a breach of that contract
Intentional Torts: Tortious Interference
Intentional Interference with a business relationship
- Must be some sort of predatory behavior
Bona Fide competitive behavior is a defense to tortious interference
Intentional Torts: TrespassEntry onto another person’s land without permission. It may be:
• On land• Above land• Below surface
It also may involve personal property,
such as a website
Intentional Torts: Conversion
• Wrongfully taking or retaining another’s property and placing it in service of another.
Negligence
• Tortfeasor does not intend the consequences of the act or believes they will occur.
• Actor’s conduct merely creates a foreseeable risk of injury.
Negligence: Basic Principles• Elements of Negligence:
– Duty of care to act as a reasonable person under similar circumstances
– Breach of Duty– Proximate Cause– Of Damages to the Plaintiff.
Duty
• No duty to stop and render aid• Duty to aid if you were involved in accident• In your actions, act as a reasonable person
would act
Duty of Landowners
• Trespassers –Duty not to intentionally or recklessly
cause them harm.
Duty of Landowners
• Licensees - social guests and other persons not on the premises for any business purpose–Duty to warn of any known dangers
Duty of Landowners
• Invitees - persons who come onto premises for business purposes, including retail and other establishments–Duty to warn of known dangers and those
dangers owner should know about
Negligence• Causation.
– Courts ask two questions: • Was the defendant’s action the causation in fact
of plaintiff’s injury, and • Was it the proximate cause of plaintiff’s injury .
Negligence• Causation in Fact.
– Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?
– Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.
Negligence• Proximate Cause.
– When the causal connection between the act and injury is strong enough to impose liability.
– CASE 6.2 PALSGRAF V. LONG ISLAND RAILROAD CO. (1928).
Defenses to Negligence
• Assumption of Risk• Superseding Cause
Negligence: Damages• Tort law recognizes two categories of
damages: – Compensatory damages - Designed to
reimburse actual value of the plaintiff’s injury or loss
– Punitive damages - Designed to punish the tortfeasor and to deter similar conduct in the future.
Contributory and Comparative Negligence
• Contributory Negligence– Any negligence on the part of the plaintiff that
contributed to the injury is an absolute bar to the recovery of damages.
– It does not matter how insignificant the plaintiff’s own negligence is compared to that of the defendant.
Contributory and Comparative Negligence
• Comparative Negligence– Once it is established that negligence of both
parties caused the damages, the court must apportion negligence among the parties on a percentage basis.
Defenses to Negligence
• Comparative Negligence.– Comparative negligence computes liability of
Plaintiff and Defendant and apportions damages.
– Pure Comparative Negligence States: allows Plaintiff to recover even if his liability is greater than that of Defendant.
Defenses to Negligence• Comparative Negligence.
– Modified Comparative Negligence States: percent of damages Plaintiff causes herself are subtracted from the total award.
– 50 Percent Rule: Plaintiff recovers only if liability is less than 50%.
– 51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50% (Texas).
Torts
Chapter 6