definition of a tort
breach of duty owed to another but not arising from contract
goal- punish to compensate victims
same/different as crimes- harm done to individual- torts punished by paying for damages
b. categories:
intentional- voluntary act to harm, conscious choice
negligence- failure to exercise due care
strict liability- liable regardless of fault
intentional torts against persons
battery: make contact, intentionally touching another in a harmful/offensive way
assault: intentionally causing another to believe he is going to be the victim of a battery- threat of battery
intentional infliction of emotional distress
- the defendant must act intentionally or recklessly
- the defendants conduct must be extreme and outrageous
- the conduct must be the cause
- of severe emotional distress (may need to show physical symptoms)
invasion of privacy
- appropriation: of a person’s name or likeness: schwarzenegger vs. fred martin motor co
- intrusion: a physical, electronic or mechanical intrusion into someone’s private space (opening someone’s mail, take photos through windows
a. often filed with trespass
b. publication not necessary; just information gathering
public disclosure of private facts
publication of non-newsworthy, private facts about an individual that would be highly offensive to a reasonable person (true defamation)- true info but offensive
a. facts must be so intimate that publication outrages the public’s sense of decency.
b. hard to invoke because defenses are easy to prove (the public has interest in the truth)
false imprisonment
intentionally confining another against his/her will- physically or threaten
defamation
slander (spoken) or libel(all other forms of communication- print, picture)
- a false statement
- causing harm to the victim’s reputation
- through publication of the statement
- public figures must also prove malice-knowledge of falsehood or reckless disregard for the truth- the speaker knew it was false and is out to get them
defenses:
a. truth-if not false then it’s not defamation
b. absolute/qualified privilege- complete defense giving testimony under oath, won’t be liable if you say false thing under oath, ask to get recommendation letter, authorized to talk about her, if you maliciously say bad things you can still sue
intentional torts against property
trespass: intentional entry onto land without owners consent
conversion: any unauthorized act that deprives an owner of his/her personal property without his/her consent-stole something
injurious falsehood- form of defamation but about someone’s property-product disparagement
nuisance
owners ability to enjoy his land is impaired because of interference (light, noise, smell vibration etc) caused by another- farms and suburbs
intentional interference with contractual relations
when one party causes another to breach his/her contract with a third party - texaco convinced getty to breach contract
common defenses to intentional torts
a. consent: plaintiff gave permission
b. mistake: defendant acted under mistaken belief that his conduct was justified- in good faith
c. necessity: in emergency situations
d. self-defense
negligence
failure to exercise reasonable care number one tort
elements:
1. duty of due care
2. breach of that duty, not acting like a reasonable person exercising due care
3. causation; defendants breach was the actual or proximate cause of harm
4. injury; often must prove physical injury
duty of care
- if acting, have duty to act carefully
- if not acting, no duty to warn or act unless have a relationship with person in harm’s way (like business relationship)- babysitter
breach of duty of care
unreasonable behavior
- “reasonable person:” standard- don’t have standard of perfection
- willful and wanton negligence-extreme lack of due care, if you can prove these, prerequisite for punitive damages
causation
- cause in fact: was this breach substantial and material in bringing an injury
- proximate cause: only liable for foreseeable risk of harm- reasonable to expect could be harmed (without outside intervention)- if your actions were too remote for injury
defenses to negligence
comparative negligence: most states- the plaintiffs recovery is reduced by the percentage that the plaintiff was at fault
- if plaintiff’s fault greater than 50%, no recovery
- example, coffee drinker, 1.2 million punitive, 300,000 compensatory
contributory negligence
few states- if the plaintiff is at all at fault, plaintiff cannot recover anything from the defendant
assumption of risk
if plaintiff 1. knows of a risk and 2. voluntarily assumes that risk, proceeds, then plaintiff is barred from recovering from any injuries resulting from the risk.
