Tort Law General¡Tortla civil wrong which unfairly causes someone else to suffer loss or harm★It does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.)¡Purpose of tort lawlto provide relief to the injured party through the award of damages for the injuries incurred during a tortious act General¡Most of them have related to procedural matters and amounts and categories of damages.lMany judges utilize the Restatement of Torts (2nd) as an influential guide.¡The Restatement is an influential treatise issued by the American Law Institute, which summarizes the general principles of common law United States tort law.¡Categories of tortslintentional torts Generallnegligencelstrict liability torts General¡DefinitionlAn intentional tort is a tort resulting from an intentional act on the part of the tortfeasor.¡Subcategoriesltorts against the person¡assault¡battery¡false imprisonment¡intentional infliction of emotional distress Generallproperty torts¡trespass to land¡trespass to chattels (personal property)¡conversionldignitary torts¡defamation¡invasion of privacy Assault¡Definitionlan intentional act that causes an apprehension of immediate harmful or offensive contact★Apprehension is not the same as fear—here it means awareness that an injury or offensive contact is imminent.¡RequirementslThe act must be overt.¡Mere words do not constitute an assault. Assault¡There must be an accompanying act.lThe defendant must have the apparent ability to carry out the contact.¡Actual ability to carry out the contact is not necessary.lThe plaintiff must have a reasonable apprehension of such contact.¡Actual fear on the plaintiff’s part is not required.¡Examples Assaultlswinging a baseball bat at someonelholding a rock and threatening to throw it at someonelpointing a gun at someonelpointing a realistic toy gun at someone¡Criminal assault and tortious assaultlCriminal assault can occur even when no threat is perceived by the victim.lWith the tort of assault, a perceived threat by the victim is paramount. Assault＊A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm. Battery¡Definitionlan intentional act that causes a harmful or offensive contact¡‘Harmful’ contactlcontact that objectively intends to injure, disfigure, impair, or cause pain¡‘Offensive’ contactlcontact that would offend a person’s sense of personal dignity Battery¡Exampleslbeating someone with a tire ironlspitting in someone's facelknocking a hat off someone's headlwhipping a horse on which someone was riding, causing him to fall and be injuredlmixing something offensive in food that he knows another will eat—the other does in fact eat the offensive matter Batteryldigging a pit with the intent that another will fall into it later—the other does in fact fall into it¡Criminal and tortious batterylUsually battery is prosecuted as a crime only in cases involving serious harm to the victim.¡Criminal law recognizes degrees of crimes involving physical contact.¡There is but a single tort of battery. False Imprisonment¡Definitionlthe detention of a person in a bounded area without justification or consent★The essence of the tort is the natural mental harm that results when one’s freedom is restricted without justification.¡Elementslintent to confine a person within a certain area False Imprisonmentlactual confinementlawareness of the confinement by the person so confinedlno reasonable means of escape¡False arrestl‘False arrest’ occurs when someone arrests another individual without the legal authority to do so, which becomes false imprisonment the moment he or she is taken into custody. IIED¡Definition★short for intentional infliction of emotional distress★referred to as the tort of outrage in some jurisdictionslintentional conduct that results in extreme emotional distress¡ElementslThe defendant must act intentionally or recklessly. IIEDlThe defendant's conduct must be extreme and outrageous.lThe conduct must cause the plaintiff to suffer severe emotional distress.¡Severe emotional distresslThis tort involves more than hurt feelings, disappointment, or worry.lThere must be severe mental suffering, i.e. such that no reasonable person should be expected to endure it. IIED★This standard is quantified by the intensity, duration, and any physical manifestations (ulcers or headaches, for example) of the distress.¡ExampleslA person refused to inform another of the whereabouts of that other's child for several years, though the person knew where the child was the entire time. IIEDlA person sent a letter to another falsely informing him that a close family member of his had been killed in an accident. Statute of Limitations¡Definitionlan enactment that restricts the time within which legal proceedings may be initiated¡Objectivelto prevent claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time, or the death or disappearance of witnesses Statute of Limitations¡FunctionlThe statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him after the appropriate time has elapsed.¡ApplicationlThe defendant must raise the defense before the court upon answering the plaintiff's complaint. Statute of LimitationslIf not, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.¡Tolling the statutelWhen the statute is tolled, the running of limitations is suspended until some event specified by law takes place.★Most jurisdictions provide that the statute of limitations is tolled under certain circumstances: Statute of Limitations¡The plaintiff is a minor.¡The plaintiff has been deemed insane.¡The plaintiff has been convicted of a felony and is imprisoned.¡The defendant is in bankruptcy. Shopkeeper's Privilege¡GenerallIn some jurisdictions of the US, the courts recognize a common law shopkeeper's privilege, under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has probable cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. Shopkeeper's Privilege★This privilege does not include the power of search.¡Requisite conditionslInvestigation on or near premises¡The detention itself should be effected either on the store premises or in the immediate vicinity thereof.lReasonable suspicion¡The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting. Shopkeeper's PrivilegelReasonable force only¡Only reasonable, non-deadly force is used to effect the detention.lReasonable period and manner of detention¡The detention itself may be for only the time necessary to make a reasonable investigation of the facts. Property Torts Trespass to Land¡GenerallTrespass to land occurs when a person directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land.lThe basis for this tort is the right to exclusive possession of the land.¡NaturelThis tort is actionable per se. Trespass to Land¡Damages are not required to be proven for intentional trespass.¡Only when the entry is negligent is there any need to prove damages.¡IntentlThe intent requirement of trespass is only that the person intended to enter the property.¡It is irrelevant whether or not the entry is a mistake, caused by ignorance of the ownership or the boundaries. Trespass to Land¡NotelThe rights inherent in the possession of land extend above and below the surface. Trespass to Chattels¡Definitionlthe intentional interference with another person's lawful possession of a chattel (movable personal property)¡Interferencelany physical contact (intermeddling) with the chattel in a quantifiable waylany dispossession of the chattel (whether by taking it, destroying it, or barring the owner's access to it) Trespass to Chattels¡NotelIn cases of intermeddling, there needs to be actual harm sustained by the plaintiff in order for him to sue.¡Damages are limited to the actual harm (which can include economic loss as a result of the trespass—e.g. loss of profit on a damaged chattel).lIn cases of dispossession, the plaintiff is always entitled to damages even if no quantifiable harm can be proven. Trespass to Chattels¡ExamplelHerman sees his War and Peace sitting on a table. He picks up the book, puts it in his bag and goes home. In fact, the book belongs to Leon and Herman has mistaken it for his own copy.lIn this case, Herman is liable for a trespass to chattels because he intended to take Leon’s book, even though his action was based on a reasonable mistake. Conversion¡GenerallConversion occurs when someone wrongfully takes or uses property of another for their own purposes or destroys it or alters its nature.¡Conversion and theftlTheft will also be conversion.lBut not all conversions are thefts because conversion requires no element of dishonesty. Conversion¡Property subject to conversionlIt must be personal property.¡Real property cannot be lost and then found.lIt must be tangible.¡money, an animal, furniture, or tools¡crops or timber (after they are severed from the ground)¡rights in a paper, such as a life insurance policy, a stock certificate, or a promissory note Conversion¡ExampleslA person has another’s car towed away in order to take the parking place.lA dry cleaner mistakenly delivers a suit to the wrong customer.lA mechanic borrows a sports car he is supposed to repair without permission.lA neighbor lends her hedge trimmer to a friend, but the friend uses it to cut down a tree. Trespass to Chattels and Conversion¡GenerallThe two concepts are closely related.¡SimilaritylBoth include the wrongful, intentional interference of personal property.¡DifferencelThey are different in degree—the damage done to the plaintiff’s possession in a conversion case is more severe than in a trespass case. Trespass to Chattels and Conversion¡ApplicationlIn general, when an object is damaged but repairable, trespass to chattels is the more appropriate tort. When something is destroyed or stolen, conversion is more appropriate.lWhen trespass is found, a person can recover the value of the "lost use" of the item—and recover the item itself. Conversion, instead, allows a person to recover the full value of the item. Trespass to Chattels and Conversion¡ExamplelDaphne hits Marty’s dog with her car. The dog suffers a broken leg. This would be an actionable trespass to chattels and Marty would be awarded damages commensurate with the harm done by Daphne.lDaphne hits Marty’s dog with her car. The dog dies. This would be an actionable conversion. Marty would be awarded the dog’s full value. Dignitary Torts Defamation¡Definitionlthe communication of a false statement that harms a person’s reputation★Defamatory information must be communicated to a third person.¡Typeslslander—oral defamation (spoken statements)llibel—written defamation (written, printed or broadcast words) Defamation¡Public figure law of defamationlA public figure alleging libel must prove actual malice.★Public figures voluntarily place themselves in a position that invites close scrutiny.¡Defamation per selSome categories of statements are considered defamatory per se—injury is presumed and needn’t be proven. Defamation¡a statement that negatively affects a person’s reputation relating to his business or profession¡allegations that a person is unchaste¡allegations that a person is infected with a sexually transmitted disease¡allegations that a person has committed a crime of moral turpitude (such as rape or incest)¡Defenses to claims of defamationltruth Defamationlopinionlprivilege¡evidence given in court¡statements made in a session of the legislature Invasion of Privacy¡Definitionlthe intrusion into the personal life of another, without just cause¡Categorieslintrusion of solitude¡actual physical or electronic intrusion into a person’s private quarters★A person was undressing at home, and someone filmed this without telling the person. Invasion of Privacylpublic disclosure of private facts¡the dissemination of truthful private information which a reasonable person would find objectionable★An unscrupulous reporter rummaged through a public figure's garbage to find evidence of prescription drug use or other highly personal matters.lfalse light¡the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory Invasion of Privacy◆False light cases are about damage to a person's personal feelings or dignity, whereas defamation is about damage to a person's reputation.★A reporter returned to the scene of a massive bridge collapse several years after the tragedy. The reporter attempted to interview the widow of a man who died in the crash. The widow and her children were not at home so the reporter fabricated a story about them which placed them in a false light in the public eye. Invasion of Privacylappropriation¡the unauthorized use of a person's name or likeness to obtain some benefits★A local restaurant used a celebrity's name or image in a commercial and implied an official endorsement. Negligence General¡Definitionlconduct that breaches a standard of care deemed by the law as necessary to protect others from unreasonable risks of harm★generally expressed as a ‘breach of a duty’¡ElementslThe defendant owed a duty of care to the plaintiff; Generallthe defendant breached that duty; andlas a result of the defendant's breach of that duty, the plaintiff suffered injury. Standard of Care¡GenerallAll people are under a duty to conduct themselves in such a manner as not to create unreasonable risks of physical harm to others.lDuring a trial, the conduct of the defendant is reviewed to determine if he or she has met the reasonable person standard.¡Would a reasonable person have acted similarly under similar circumstances? Standard of Care¡Reasonable personla hypothetical person in society who shows average care, skill or judgment in conduct★It is not an average or typical person.★It is a composite of a community's judgment as to how a typical member of that community should behave in situations that might pose a threat of harm to the public. Standard of Care☆Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person.¡Reasonable person standardlA person has acted negligently if she has departed from conduct expected of a reasonably prudent person acting under similar circumstances. Standard of Care¡It is a completely objective test under which subjective elements are normally not taken into account.¡Subjective traits of the tortfeasor may be considered, but they are considered according to an objective standard. Causation¡GenerallTo establish causation in negligence cases the plaintiff must prove that the defendant’s act was both the cause-in-fact and the proximate cause of his injuries.¡Cause-in-factlThe but-for test¡‘Would the plaintiff have been injured but for the act of the defendant?’ CausationlThe substantial factor test¡‘Was the defendant’s action a substantial factor in causing the plaintiff’s injury?’¡Proximate causelThe directness test¡The defendant’s act is the proximate cause of the plaintiff’s injury if there is an unbroken sequence of events between the act and the harm.lThe foreseeability test Causation¡It is sufficient if a reasonable person would have foreseen the harmful results.¡Intervening causelan event which occurs after the defendant’s negligent act has occurred and which contributes to the injury★If the intervening cause was the proximate cause of the plaintiff’s injury, the defendant’s act will not be considered the proximate cause. Causation★If the intervening cause was foreseeable, the defendant will often be held liable for this additional harm. NIED¡Generallshort for negligent infliction of emotional distressla controversial cause of actionlavailable in nearly all US states but severely constrained and limited in the majority of them¡NIED and IIEDlIn an action for NIED there is no need to prove intent to inflict distress. NIEDlAn accidental infliction, if negligent, is sufficient to support a cause of action.¡Underlying conceptlOne has a legal duty to use reasonable care to avoid causing mental distress to another individual.lIf one breaches this duty and unreasonably causes mental distress to another individual, he will be liable for damages to the injured individual. Contributory Negligence¡Definitionla defense that bars a plaintiff from recovery if his or her own acts or omissions contribute to the injury¡Burden of prooflIn some jurisdictions, the defendant has to prove the negligence of the plaintiff or claimant.lIn others, the burden is on the plaintiff to disprove his own negligence. Contributory Negligence¡DisadvantagelIt is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely.¡ResultlIt has been deleted as a defense from the vast majority of statutes and replaced with comparative negligence. Comparative Negligence¡Definitionla defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to the injury¡Typesl‘Pure’ comparative negligence¡If a plaintiff is 90% at fault he or she can still recover 10% of his losses. Comparative Negligencel‘Partial’ comparative negligence¡If a plaintiff is more than 50% at fault he or she can not recover. Assumption of Risk¡Definitionla defense that bars a plaintiff from recovery against a negligent tortfeasor if the plaintiff voluntarily and knowingly assumed the risks inherent to the activity in which he participated¡RationalelUpon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff. Assumption of RisklWithout a duty owed by the defendant, there can be no negligence on his part.¡ClassificationslExpress assumption of risk occurs when a plaintiff explicitly agrees to take on a risk.¡This is often done through a contract.lImplied assumption of risk occurs when the plaintiff’s actions imply that he has consented to assume the risk. Assumption of Risk¡ExamplelJoe broke his arm when he fell into a manhole while walking down the street in a town. The area where the manhole was had been roped off and large signs posted warning pedestrians to avoid it.lIn its defense, the town may raise the doctrine of assumption of risk. Strict Liability Torts General¡Strict liabilitylStrict liability is liability without fault (such as negligence or tortious intent).★Under certain circumstances, a plaintiff may be allowed recovery even if there is no fault on the part of the defendant.¡ApplicationlStrict liability is often imposed on those engaged in abnormally dangerous activities. GenerallStrict liability is also imposed on sellers and manufacturers of products. Abnormally Dangerous Activity¡Definitionlan activity that is so inherently dangerous that a person engaged in it can be held strictly liable for injuries caused to another person, even if he has taken every reasonable precaution to prevent others from being injured★also termed inherently dangerous activity or ultrahazardous activity¡Categories Abnormally Dangerous ActivitylTransportation, storage, and use of ultrahazardous materials¡dynamite and other explosives¡radioactive materials¡certain hazardous chemicalslKeeping of dangerous animals¡wild animals (i.e. animals that are not normally domesticated in that area)¡domesticated animals that have a known propensity for dangerous behavior (e.g., a dog that has attacked people before) Abnormally Dangerous Activity★These activities are allowable as long as no harm occurs.¡ExceptionlA person who is injured by one of these activities while trespassing on the property of the person engaged in the activity is barred from suing under a strict liability theory.lInstead, he or she must prove that the property owner was negligent. Product Liability¡Definitionlthe responsibility of a manufacturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale¡Product liability claims in the USlnegligence claimslstrict liability claimslbreach of warranty claimslvarious consumer protection claims Product Liability¡Strict liability claimslGeneral¡Strict liability is applied commonly to dangerously defective products.¡The manufacturer and any seller of a product can be held liable even if they have exercised all reasonable care in production and sale of the product.lLimitations¡It applies only to merchant sellers—sellers who regularly deal in the product. Product Liability¡The product must not have been altered after it left the seller’s control and must be used in a normal and proper manner.lDefense¡The defense usually raised in strict liability products cases is ‘misuse’ of the product.lThe plaintiff injured himself by using an electric hedge trimmer to cut his hair.¡If the particular misuse was a foreseeable one, the defendant will usually be liable.lstanding on a chair Nuisance General¡Definitionlsomething that causes offence, damage, annoyance, or inconvenience¡The law of nuisancelThe law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners or with the rights of the general public. General¡Under the common law, persons in possession of real property are entitled to the quiet enjoyment of their lands.¡If a neighbor interferes with that quiet enjoyment, the affected party may make a claim in nuisance.¡TypeslPrivate nuisance¡a civil wronglPublic nuisance¡a criminal wrong Private Nuisance¡Definitionlconduct that interferes with a person's use or quiet enjoyment of his land¡Categorieslinterference with the physical condition of the land itself¡vibration or blasting that damages a house¡the pollution of soil, a stream, or an underground water supply Private Nuisancelinterference with the health, comfort, or convenience of an occupant¡foul odors¡noxious gases¡smoke¡dust¡loud noises¡excessive light¡high temperatures¡repeated telephone calls Private Nuisanceldisturbance of an occupant's mental tranquility¡a contagious disease hospital¡stored explosives¡a vicious dog¡Trespass and nuisancelA trespass interferes with the right to exclusive possession of land.lA nuisance interferes with the use and enjoyment of the land. Private Nuisance★If a landowner drops a tree across her neighbor's boundary line she has committed a trespass.★If her dog barks all night keeping the neighbor awake, she may be liable for nuisance.¡Remedieslmonetary damageslinjunction—an equitable remedylabatement—a self-help remedy Public Nuisance¡Definitionlconduct that unreasonably interferes with the public's right to property¡Categorieslinterference with public health¡keeping diseased animals or a malarial pondlinterference with public safety¡shooting fireworks in the streets¡storing explosives Public Nuisancelinterference with public morals¡houses of prostitution¡gaming houseslinterference with public convenience¡obstructing a highway or creating a condition to make travel unsafe or highly disagreeable¡RemedylNo civil remedy exists for a private citizen harmed by a public nuisance. Public NuisancelA criminal prosecution is the exclusive remedy.lHowever, if the individual suffers harm that is different from that suffered by the general public, the individual may maintain a tort action for damages.¡Mixed nuisancelSome nuisances can be both public and private in certain circumstances.¡pollution of a river 。