1. Torts Chapter 6

2. 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.

3. 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.

4. Basis of Tort Law Damages Available in Tort Actions. –General: non-monetary, such as pain and suffering, reputation. –Punitive: punish the wrongdoer.

5. 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.

6. 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

7. 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.

8. Intentional Torts: A tort intentionally or knowingly committed. It can be to a person or to property.

9. 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.

10. 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.

11. Intentional Torts: Assault –An intentional act that creates a reasonable apprehension of immediate harmful contact. –For example, pointing a gun at someone.

12. Intentional Torts: Battery –An intentional harmful or offensive contact. –For example, getting hit by the bullet.

13. 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.

14. 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

15. 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.

16. Intentional Torts: Privacy Invasion of Privacy –Four acts generally qualify as improperly infringing on another’s privacy:

17. 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.

18. 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

19. 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.

20. 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

21. 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

22. Intentional Torts: Trespass Entry 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

23. Intentional Torts: Conversion Wrongfully taking or retaining another’s property and placing it in service of another.

24. 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.

25. 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.

26. 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

27. Duty of Landowners Trespassers –Duty not to intentionally or recklessly cause them harm.

28. Duty of Landowners Licensees - social guests and other persons not on the premises for any business purpose –Duty to warn of any known dangers

29. 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

30. 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.

31. 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.

32. Negligence Proximate Cause. –When the causal connection between the act and injury is strong enough to impose liability. –CASE 6.2 P ALSGRAF V. L ONG I SLAND R AILROAD C O. (1928).

33. Defenses to Negligence Assumption of Risk Superseding Cause

34. 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.

35. 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.

36. 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.

37. 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. 

38. 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).

39. Torts Chapter 6