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Law and Justice
CJUS / POLS 110
Chapter 10: Torts
1.
Private wrongs
- individuals / institutions
- believe they have been wronged
a. Types of harm
- physical harm / mental harm
- financial harm / property harm
- harm to reputation
(1) Private wrong
- law allows legal remedy
- monetary damages
(a) Plaintiff = victim
- individual / association / business
(b) Defendant
- individual / association / business
(2) Classification
- intentional / negligent / strict liability
(a) Intentional tort
- purposely commits some act
- injures the victim
- criminal = intended / injure
- criminal court / civil court
(b) Negligence
- carelessness
- failure to act = reasonable /
prudent person
- under same circumstances
- inadvertently cause injury
- should have been foreseeable
(c) Strict liability
- need not prove negligence
- need not prove intentional act
- it is product liability
(i) “Liability without fault”
(ii) Firestone Tire / Ford Motor Co.
2.
Intentional Conduct
- conduct wrong by law
- injury to person / property
- eight types:
a. Assault
- sue = personal injury
- crime
- wrongful act (operate on wrong knee)
(1) Injury occurs
- person of another
(2) Intent
- part of the act
- intentional conduct
- medical / police / school
b. Conversion (civil theft)
- constructive bailee
- entrusted with goods / services
- unauthorized taking
- property of another
(1) Stealing
- cost of item / loss of use)
(2) Finding property of another
- fail to return
- keep / use items
(3) Temporary interference
- property of another
- trespass to chattel (property
owned other than real estate)
- block driveway / protest business
c. False imprisonment / arrest
(1) Imprisonment
- limit freedom = access / regress
- detain / confine
- kidnapping
- restraining
(2) Arrest
- applies to police / security
- limiting freedom of movement
- security = hold for shoplift
- police = no reasonable suspicion
d. Intentional infliction of mental distress
- “outrageous conduct”
- intentionally acts in a manner
- reasonably may be expected
- cause severe mental distress
- to another (victim)
(1) Harassment due to:
- race / gender / sexual orientation
- religion / body type / mental condition
(2) Harassment by police
- selective enforcement
(3) Must be intentional
- cause mental distress
e. Defamation
- hurt one’s reputation
-
spreading false / harmful statements
“defamation of character”
two methods = slander / libel
communicated to third party = told to
plaintiff
(1) Slander = false statements
- prove actual monetary loss
- special damages
(a) Slander per se
- statement obviously harmful
- defamatory = matter of law
- special damages = exist
- need not be proven
(b) Exists
- falsely communicates
- committed crime
- existing venereal disease
- unfit for job / business / etc
- guilty of sexual misconduct
(2) Libel = falsely written / printed
-
more durable form
seen by more people
easier to prove
wording / pictures / video
something permanent
(3) Defenses against defamation
- truth = absolute defense
- privilege = legal right to speak
(a) Absolute privilege
- right under all circumstances
-
elected officials / judges
administrative appointees
official capacity
false / leading / self-serving
newspapers who quote
(b) Conditional (qualified) privilege
- right under certain conditions
- creditor = exchange information
- employer = leave for new job
- act in good faith / non-negligent
- held liable = false “good worker”
(c) Newspapers = special status
- libel = superseded by 1st / 14th
- public officials / public figures
- almost absolute privilege
(d) Statement made “with malice”
- considered defamatory
(e) Private figure
- must prove wrongfulness
- no punitive damages
- only monetary
(f) Retraction
- can mitigate damages
f. Invasion of privacy
- federal / states = insure your right
- 4 broad categories = privacy invasion
(1) Unreasonable intrusion on seclusion of
another
- listening to phone calls
- reading mail
- observing with telescope
(2) Appropriation of another’s name/likeness
- endorse product without consent
- facsimile in their business
(3) Unreasonable publicity to private life
- listing addresses on web
- sue to remove / no damages
(4) Placing in a false light before public
- rich = gives to charity
- drug dealer = users / police
- psychologist = free therapy
g. Fraud
- tort = sale of goods / services
- deceit / misrepresentation
- following elements:
(1) False representation
- you lie
(2) Factual matter
- about item
- not a personal opinion
- unless expert
(3) That is material
- relevant to item
- affects decision to buy
(4) Known to be false
- know it is a lie
- or with reckless indifference
- to the truth
(5) Intent to induce action
- lie so they buy
- victim unaware of falsity
(6) Rely on lie
- in decision
- buy because of lie
(7) Injured as a result
- item does not perform
h. Bad faith
- contracts = not fulfilled
- insurance / stocks / loans / construction
- courts impose = “good faith / fair dealing”
- business / individuals = contracts
3.
Tort of negligence
- duty to act in responsible manner
- due care and caution
- “ordinary care”
a. Auto accident
- drive too fast on icy road
- at / below speed limit
- cause accident = negligence
- no malicious intent
- not exercise usual standard of care
b. Dog bite
- running loose / bites neighbor
- sued for negligence
- no malicious intent
- not exercise usual standard of care
c. Customer falls
- fail to cleanup spill
- slips / falls
- sued for negligence
- no malicious intent
- not exercise usual standard of care
(1) Questions court wants to know:
- did you owe a duty of care?
- did you violate that duty?
- was your conduct unreasonable?
- was someone injured?
- was it physical / mental / property?
- are you liable for all injuries
(2) “Reasonably prudent person” standard
- fictitious person created by the courts
- measure a defendant’s actions
- to ideal person
(3) A.P. Herbert, London commentator
- Uncommon Law
“He is an ideal, a standard, the embodiment of all those qualities
which we demand of the good citizen. He is one who invariably
looks where he is going, and is careful to examine the immediate
foreground before he executes a leap or bound; who never
mounts a moving bus and does not alight from any car while the
train is in motion, and will inform himself of the history and habits
of a dog before administering a caress, who never from one year’s
end to another makes an excessive demand upon his wife, his
neighbors, his servants, his ox, his ass. Who never swears,
gambles or loses his temper; who uses nothing except in
moderation. This excellent but odious character stands like a
monument in our Courts of Justice vainly appealing to his fellow
citizens to order their lives after his own example.”
d. To have negligence = must have:
- duty of care = legally recognized duty
- breach of duty = standard of care violated
- causation = action / inaction proximate
cause of injury
- damages = amount to fairly compensate
(1) Must be cause / causative factor
- actual / proximate
(a) Actual = a direct relationship
- act cause injury
(b) Proximate = main factor
- not involved personally
- caused the injury
(2) Violating statutes
- proof of negligence
- res ipsa loquitor = “the thing speaks
for itself”
(3) Malpractice
- negligence by professionals
- doctors / dentists / lawyers / etc.
e. Premises liability
(1) Trespassers on land
- cannot try to injure
- not have to warn of natural dangers
(a) Attractive nuisance
- draws children
- injured
(b) Can be sued
- you are libel
(2) Guests of homeowner
- right to be on property (licenses)
- guests / mail person / police / fire
(a) Must be protected
- no negligent actions
(b) Unless = unaware of danger
- unknown problem
(3) Businesses
- high degree = care for customers
(a) Invitees
- fail to protect
(b) Must be a negligence
- can be sued
f. Defenses to negligence
(1) Assumption of risks
- injured person know the risks
- saw beware sign = went in anyway
- knew potential problem
(2) Comparative negligence
- recover damages = more negligent
- hot coffee / paper cup
(3) Contributory negligence
- both contributed to the act
- cross in mid-block = hit by speeder
4.
Strict liability
- originally law would not pose liability
- unless found “fault”
- on part of defendant
a. Court developed new doctrine
- strict liability
- defendant responsible = loss / injury
- no violation = reasonable person standard
- legislators = ratified by statute
(1) Initially applied to animal owners
- escaped / damaged other property
- expanded = hazardous activities
- moving explosives / flammables
(2) Expanded = product liability
- those who profit
- assume liability
- any injury
(3) Strict liability torts
- certain businesses
- compensate
- injured: product / service / activity
b. Whether libel or not
- must protect customers / employees
- Firestone Tire / Ford Motor Company
(1) Workers compensation
- insurance to protect
- compensate family
- medical / re-training / disability /
legal services
(2) Defective products
- product negligently made
- know product defective
(3) Class-action lawsuit
- all who were injured
c. Two basic premises: American jurisprudence
- no one is above the law
- one is not liable for another’s actions
(1) Not true in tort law
(a) Theory of Vicarious Liability
- parents = actions of children
- employers = employees
(b) Shifts responsibility
- one who profits: deepest pockets
(2) Compensatory damages
- money awarded = loss / injury
- special / punitive
(a) General damages
- money lost due to injury
- past / present / future
(i) Hospital stay
- all services
(ii) Damage to property
(iii) Lost wages
- spouse = damages
- loss of future earnings
(b) Special damages
- punitive / exemplary
- other than out-of-pocket
- pain / suffering
(i) Paid in criminal matter
(ii) Punish / deter
(3) Barriers to collection
- statute of limitations
- judgment proof (no means to pay)