Chapter 6 Flashcards
(117 cards)
1
Q
Torts
A
Civil Wrongs other than breech of contract
2
Q
Damages Available in Tort Actions
A
Civil law is trying to get compensatory damages (money)
3
Q
Classifications of Torts
A
Intentional Torts
Negligence
Strict Liabilities
4
Q
Affirmative Defenses of Torts
A
Statute of Limitations and Self Defense
(Even if the plaintiff can prove the tort they allege, they don’t always win) Defendants can excuse their actions legally if they prove a defense… then they are legally excused under the law and no damages are required.
5
Q
Intentional Torts
A
Intent is required to do the ACT that causes the harm
(No motive/malice is required)
Only have to prove the INTENT of the act that results in the harm; not the intent to do the harm itself
6
Q
Tortfeasor
A
Person committing the tort
7
Q
Intentional Torts against Persons (Personal Torts)
A
- Assault
- Battery
- False Imprisonment
- Intentional Infliction of Emotional Distress
- Defamation
- Invasion of the Right to Privacy
- Fraudulent Misrepresentation
- Abusive/Frivolous Litigation
8
Q
Assault
A
An intentional, unexcused act that creates in another persona a reasonable apprehension or fear of immediate harmful or offensive contact
(AWARENESS is necessary)
9
Q
Battery
A
An unexcused and harmful or offensive physical contact intentionally performed
10
Q
No malice is necessary for…
A
Battery or Assault
11
Q
Battery can _____ an Assault, and an Assault can _____ to a Battery.
A
Battery can include an assault and an assault can lead to a battery (but they are two separate torts)
12
Q
Defenses to Assault and Battery
A
Consent
Self-Defense or the Defense of Others
13
Q
Self-Defense or the Defense of Others in Assault and Battery situations must…
A
Be reasonable defense in both real and apparent danger
AND the force must be reasonably necessary (gender, height, and weight could matter)
14
Q
False Imprisonment
A
Intentional confinement or restraint of another
15
Q
What are the elements of false imprisonment?
A
- Barriers/restraints can be physical or oral threats of physical force
- Person being restrained must not agree to the restraint
- Shoplifters - businesses are allowed to detain shoplifters
16
Q
Shoplifters and False Imprisonment
A
Some states statutorily give businesses defense to allow them to detain shoplifters for a reasonable time and in a reasonable manner, if the business has probable cause to justify the delay
(IF all of these things are followed, summary judgement, and case dismissed)
17
Q
Intentional Infliction of Emotional Distress
A
Involves an intentional act that amounts to EXTREME and OUTRAGEOUS conduct resulting in severe emotional distress to another
18
Q
What is needed to be proven to win an emotional distress claim?
A
- Difficult to prove in Texas, must be truly outrageous
- In Texas: must show evidence of PHYSICAL symptoms or illness or some emotional disturbance documented by medial or psychiatric evidence
(Defense used by the Media = Outrageous Conduct)
19
Q
Hustler v. Jerry Falwell
A
Example of 3 different Torts:
1. Emotional Distress
2. Invasion of Privacy
3. Defamation
Hustler magazine published a caricature of Falwell in a “drunken insestual rondavue with his mother.” He is a famous baptist preacher.
*Dr. Falwell loses on all 3 torts! the media has the 1st amendment right to publish what they want
20
Q
Defamation
A
Wrongfully harming a person’s good reputation
21
Q
Types of Defamation
A
Libel: written words
Slander: oral words
22
Q
Elements of Prima Facie Case of Defamation
A
- Defendant made a false statement of fact
- The statement was understood as being about the plaintiff and intended to harm the plaintiff’s reputation
- Published to a third party - post on social media, could be an eavesdropper
- If plaintiff is a public figure: he/she must also prove “actual malice” to win
23
Q
“actual malice”
A
(for celebrities) making statements knowing it is false or with reckless disregard for the truth
24
Q
Damages for Libel
A
Proof of the libel; general damages are presumed; proof of special damages is not necessary (don’t have to prove you lost money)
Essentially: admissible hearsay
Overpublication of opinion can become classified as “fact”
25
Damages for Slander
Plaintiff must prove that he suffered "special damages" before defendant is liable
26
Exceptions to Defamation
Slander per se
27
Slander per se
false statement is actionable without proof of "special damages"
28
4 types of false statements that are per se slanderous
1. Statement that person has loathsome, communicable disease (EX: Aides)
2. statement that person has committed improprieties in their profession or trade (EMBEZZLEMENT)
3. Statement that person has committed or been imprisoned for a SERIOUS crime (EX: Murder, rape, sexual assault, child molestation)
4. Statement that unmarried woman is unchaste (sleeps around)
29
Defenses to Defamation
1. Truth - if what was said was TRUE
2. Privileged Speech
30
Privileged Speech - Defenses to Defamation
1. Absolute
Judicial proceedings (attorneys)
Legislative proceedings (congress)
2. Qualified (conditional)
Made in good faith
Made to those with legitimate interest in the communication
31
Public Figure Plaintiffs (Defamation)
1. Public figures have higher burden in proving defamation
2. Must prove "actual malice"
32
Actual Malice
A statement was made with reckless disregard for the truth
33
David Beckham v In Touch Magazine
Beckham sues In Touch for libel for saying that he slept with another woman. Case dismissed. Beckham could not prove "actual malice"
34
Invasion of the Right to Privacy
Right to solitude and freedom from prying public eyes
35
4 Acts Qualify as Invasion of the Right to Privacy:
1. Intrusion
2. False Light
3. Public disclosure of private facts
4. Appropriation of Identity
36
Intrusion
"Intrusion on your seclusion"
- Wire tapping, peeping toms, video surveillance inside your apartment, hacking into private accounts
37
False Light
Publication of information that might be true but that casts false light (casting doubt on your beliefs, could affect your reputation)
38
Public Disclosure of Private Facts
Like grade information or medical information
39
Appropriation of Identity
Use of a person's name, picture, likeness or other identifiable characteristic for commercial purposes without permission
- right to the exclusive use of his/her identity
- appropriation statutes
40
Fraudulent Misrepresentation
1. Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth
2. Intent to induce another to rely on the misrepresentation
3. Justifiable reliance by the deceived party
4. Damages suffered as a result of the reliance
5. A causal connection between the misrepresentation and the injury
41
Puffery
Seller's talk - only involves subjective terms; opinions rather than facts
42
Reliance on a statement of opinion may be fraud if the person making the statement has...
a superior knowledge of the subject matter
43
Negligent Misrepresentation
The person making the misrepresentation had knowledge of its falsity
44
Abusive/Frivolous Litigation
Filing a lawsuit without a legitimate basis for a cause of action (often used as a counterclaim by defendant)
45
Intentional Torts against Business Interests (Business Torts)
1. Wrongful Interference with a Contractual Relationship
2. Wrongful Interference with a Business Relationship
46
Wrongful Interference with a Contractual Relationship
Any lawful contract can be the basis for this action
Plaintiff must prove that defendant actually knew of the contract's existence and induced the breach of the contractual relationship
47
What are the 3 elements of Wrongful Interference of a Contractual Relationship
1. Valid, enforceable contract between two parties;
2. Third party knew of the contract; AND
3. Third party intentionally caused either of the two parties to the contract to break the contract
48
Wrongful Interference with a Business Relationship
1. Individuals may not interfere unreasonably with another business to gain market share
49
"interfere unreasonably" in a business relationship
Predatory behavior
50
Predatory Behavior
Soliciting only those customers who have already shown an interest in the similar product or service of a specific competitor
51
What are the 3 elements of Wrongful Interference with a Business Relationship?
1. Established business relationship;
2. Tortfeasor used "predatory behavior"; AND
3. Tortfeasor intentionally caused the business relationship to end
52
Defenses to Wrongful Interference
1. Bona fide competitive behavior (non-competes)
2. Aggressive marketing and advertising strategies (good advertising is not a violation of a tort)
53
Intentional Torts against Property (Property Torts)
Wrong is committed against the individual who has legally recognized rights with regard to real or personal property
54
Types of Property Torts
1. Trespass to land
2. Trespass to property
3. Conversion
4. Disparagement of property
55
Trespass to Land
A person, WITHOUT PERMISSION, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave
56
Is harm to the land necessary in order for something to be classified as trespass to land?
No
57
Reasonable intrusion into airspace is...
permitted
(however, you own more than just the surface of the land)
58
What are the damages if trespass to land is proven?
Nominal damages
59
How is someone classified as a trespasser?
The owner must implicitly or expressly establish that the person is a trespasser
60
Expressly
1. Tell a guest to leave and they won't
2. Post "no trespassing" signs
61
Implicitly
Anyone on the property to commit an illegal act
62
Trespasser is liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains, except:
1. Reasonable Duty
2. Attractive Nuisance
63
Reasonable Duty
Some jurisdictions, by statute, are replacing common law rule with a "reasonable duty" rule that varies depending on the status of the parties. In other words, the owner would have to duty to warn in certain circumstances trespassers.
64
Attractive Nuisance Doctrine
Young Children (9 years or younger in TX) do not assume the risk if they are attracted to the premises by some object (land owners are responsible for a child that has trespassed and is harmed)
65
Owner can remove trespasser from the premises through the use of _______ _____ without being liable for assault or battery.
Reasonable Force
66
Defenses to Trespass to Land
1. Trespasser enters to assist someone in danger even if that person is a trespasser
2. Trespasser enters to protect property
67
Trespass to Personal Property
Wrongfully hammering or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property
(involves intentional meddling)
68
Defense to Trespass to Personal Property
Meddling was warranted
69
Conversion
Any act that deprives an owner of personal property without the owner's permission and without just cause that places the property in the service of the trespasser or other person
70
What is another way to describe conversion
Civil theft (but cases aren't limited to theft)
71
Conversion can include
action for trespass to personal property
72
What are non-defenses for conversion?
1. Good intentions
2. The good you purchased was stolen
73
Disparagement of Property (2 types)
1. Slander of Quality (Trade Libel)
2. Slander of Title
74
Slander of Quality - Trade Libel
Publication of false information about another's product, alleging it is not what the seller claims
75
What must be proven for slander of quality?
Actual damages must be proven to have proximately resulted from the statements about a competitor's products
76
Slander of Title
Publication denies or casts doubt on another's legal ownership of property, which results in financial loss to the owner - someone knowingly publishes an untrue statement with the INTENT to discourage a third party from dealing with the person slandered
77
Negligence (Unintentional Tort)
1. Unintentional
2. Merely creates a foreseeable risk of harm
3. Failure to live up to a required duty of care (reckless behavior)
78
Elements of Negligence
1. Duty
2. Breach
3. Causation
- Fact Causation and Proximate Causation
4. Damages
79
Duty of Care and Its Breach
1. Reasonable Person Standard
2. Duty of Landowners
3. Duty of Professionals
4. Duty of Employers
5. No duty to Rescue
80
Reasonable Person Standard
How people should behave (circumstances dictate behavior)
81
Duty of Landowners (really high duty)
Landowners must exercise reasonable care to PROTECT business invitees from harm including
1. Foreseeable risks that the owner knew about
2. risks the owner should have known about
3. Obvious dangers
82
Business Invitees
People present on the land to do business with the landowners
83
Martin v. Wal-Mart Stores, Inc.
"Slip and Fall Cases"
The law says that since Martin is an invitee, Wal-Mart is liable
84
What is a defense to a slip and fall case?
Comparative or Contributory Negligence (sometimes it reduces the amount of money the plaintiff is entitled to or erases the case all together)
TX is a comparative negligence state
85
Liebeck v McDonalds, Inc.
Industry Standards
Liebeck won, McDonalds had a duty to warn her that the coffee was hotter than industry standards permits
86
Obvious Dangers
Generally, no duty to warn, but still may be liable for failure to maintain safe premises
- Exception, you may have the duty to warn children
87
Landowner has a duty to WARN licensees of known risks
Social guests
88
Landowner has a duty to not WILLFULLY INJURE a trespasser
Katko v. Briney
89
Duty of Professionals (CPAs, Doctors, Attorneys, Engineers)
Professionals are held to a higher standard
(how would a reasonable person working in the industry act?)
90
What does a violation of a duty of care for professionals lead to?
Malpractice
91
Duty of Employers
"Negligent Hiring/Retention"
You don't want to hire unsafe workers
92
No Duty to Rescue
You are not legally responsible to be a Good Samaritan - it is not necessary to go to the aid of a stranger
93
What is an exception to no duty to rescue?
If you put them in that situation
(Hit and runs are not allowed)
94
Causation for Negligence (2 types)
Plaintiff must prove BOTH types or they lose the case
1. Is there cause in fact?
2. Is there proximate cause?
95
Is there cause in fact?
"But for" test - but for the breach of duty, the injury would not have occurred
Burden on party claiming harm by preponderance of the evidence
96
What does the "But for" test lead to?
Limitless liability potentially
97
Is there Proximate Cause?
Is the casual connection between the act and an injury strong enough to justify imposing legal liability?
98
What is the test for proximate cause?
Foreseeability: after Palsgraf - if the consequences of the harm done to the victims of the harm is unforeseeable, no proximate cause
99
If no proximate cause...
No legal liability
100
Palsgraf v Long Island Railroad Co.
THIS CASE RESULTED IN THE FORESEEABILITY TEST
Passenger helped onto train, drops explosives, scale hits Mrs. Palsgraf.
Palsgraf wins based on fact, at appellate court, can't win because of foreseeability
101
Injury Requirement and Damages for Negligence
Must have legally recognizable injury (suffer some loss, harm, wrongful, or invasion of a protected interest)
If there is no injury, there is no recovery
102
Special Negligence Statutes
Dram Shop Act
Good Samaritan Statute
103
Dram Shop Act
If bar owner or bartender serves drinks to an intoxicated person, he may be liable to personas who are injured by the intoxicated person
104
Social Hosts (Dram Shop Act)
People hosting parties may be liable for injuries caused by guests who became intoxicated at the host's home
105
Good Samaritan Statute
Persons who are aided voluntarily by others cannot sue the person who aided them for negligence
106
Why was the Good Samaritan statute passed?
Primarily to encourage health care professionals to voluntarily stop and render aid at accident without fear of liability
107
Defenses to Negligence
1. Assumption of the Risk
2. Superseding Intervening Force
3. Contributory Negligence
4. Comparative Negligence
108
Assumption of the Risk
If the plaintiff voluntarily enters into a risky situation knowing the risk involved, you are not allowed to recover damages you may incur
109
Requirements of Assumption of the Risk
1. Knowledge of the Risk
2. Voluntary assumption of the risk (can be expressed by agreement through a waiver or consent form) (can be implied by actions - reasonable people should know)
110
Only assume normal risk carried by
the activity
111
Risks are not deemed assumed in
emergencies
112
Superseding Intervening Force
Defendant is arguing that there is an outside force (that the defendant cannot control and does not set into motion) that is intervening with the casual connection between the breach of the duty and the damages that the plaintiff suffers
113
Contributory Negligence
If the plaintiff is also negligent, then plaintiff has breached a duty and does not recover anything (only minority of states use this defense)
114
Comparative Negligence
Abolishes contributory negligence
More states use this
Trier of fact (judge or jury) determines both the plaintiff and the defendant's negligence percentage and the liability for damages is assessed accordingly
115
"Pure Form" Comparative Negligence
Plaintiff recovers damages based on defendant negligence percentage
116
"50% Rule" Comparative Negligence
Plaintiff still recovers based on "Pure Form" analysis. But if the plaintiff is MORE THAN 50% at fault, the plaintiff recovers nothing
117
In Texas, they are a _____ _____ for comparative negligence
50% Rule State
