Business Law

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Tort liability

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Liability that is involuntarily assumed, as imposed by law

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Tort law

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gives persons relief from civil wrongs or injuries to their persons, property, and economic interests.

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3 objectives of tort law

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1) Compensate persons who sustain harm or loss resulting from another's conduct
2)place the cost of that compensation only on those parties who should bear it
3) prevent future harms and losses

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4 components of a tort

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1) a duty is owed by one person to another
2) this duty is breached
3) proximate cause
4) injury/damage to the owner of a legally protected interest

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3 levels of tort liability

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1) Intentional
2) Negligent
3) Without fault (strict liability)

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Punitive Damages

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Damages over and above the amount necessary to compensate the plaintiff.

Awarded for intentional and outrageous torts, showing malice/fradulent/evil motive

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Tort law: common or statutory?

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Common Law

-The restatments present many important areas of common law, including torts (persuasive but not binding)

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Intent

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the actor desires to cause the consequences of his act or believes the consequences are substantially certain.

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Privileged conduct

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Furthers an interest of social importance:
-self-defense
-defense of property
-defense of others
-plaintiff's consent to defendant's conduct

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Harm to the person (Intentional)

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-Battery
-Assault
-False Imprisonment
-Infliction of emotional distress

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Battery

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intentional infliction of harmful or offensive conduct (offensive conduct would offend a reasonable person's sense of dignity)

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Assault

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intentional conduct that places another in apprehension of immediate bodily harm or offensive conduct

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False Imprisonment (false arrest)

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intentionally confining a person against herwill within fixed boundaries if the person is conscious of the confinement or harmed by it.

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Merchants protected for detaining suspected shoplifters if:

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1)probable cause
2)reasonable manner
3)not for more than a reasonable time

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Infliction of Emotional Distress

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when a person, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress

-liable for emotional distress and resulting bodily harm

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Recklessness

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conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed

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Harm to the right of dignity covers ...

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1)repuation
2)privacy
3)freedom from unjustifiable litigation

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Defamation

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false communication that injures a person's reputation by disgracing him and diminishing the respect in which he is held

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Elements of Defamation

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1)false and defamatory statement concerning another
2)unprivileged publication(communication) to a 3rd party
3)sometimes- some degree of fault on her part in knowing or failing to ascertain the falsity of the statment
4)sometimes- proof of special harm caused by the publication

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Libel

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defamatory communication that is handwritten, type-written, printed, pictorial, or in any other medium with similar commicative power

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Slander

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spoken or oral defamatory communication

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Publication

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communication of defamatory information to person(s) other than the one who is defamed

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Types of Defense to Defamation

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1)Absolute privilege
2)Conditional Privilege
3)Constitutional Privilege

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Absolute privilege

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protects defendant from defamation suit regardless of his motive or intent
1)statements made by participants in a judicial proceeding, regarding that proceeding; 2)statements made by members of Congress on the floor of congress; 3)statements made by certain executive branch officers while performing their governmental duties; 4)statements regarding a third party made between spouses when they are alone

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Conditional privilege (qualified privilege)

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A person has a conditional privilege to publish defamatory matter to protect her own legitimate interests, or (sometimes) the interests of another

Also extends to cases where publisher and recipient have a common interest (reference letters)

Forfeited when publisher acts in an excessive manner, without probable cause, or for an improper purpose

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Constitutional Privilege

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privilege extended by the first amendment to protect statements made about public officials or public figures so long as it is done without malice

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Malice (concerning constitutional privilege)

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not ill will, but clear and convincing proof of the publishers knowledge of falsity or reckless disregard of the truth.

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Requirements for defamation suit brought by private person against member of news media

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plaintiff must prove that the defendant published the defamatory and false comment with malice and negligence

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Requirements for defamation suit brought by private person against another who is not a member of the news media

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Currently unresolved as to whether the plaintiff must prove anything beyond the fact that a defamatory statement has been made

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Invasion of privacy torts

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1)(appropriation)appropriation of a person's name or likeness; 2)(intrustion) unreasonable intrusion on the seclusion of another; 3)(public disclosure) unreasonable public disclosures or private facts; 4) (false light)unreasonable publicity the places another in a false light in the publict eye

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Appropriation

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appropriation of a person's name or likeness for one's own benefit

-promoting/advertising a product or service, also known as "right of publicity"

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Intrusion

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unreasonable and highly offensive intrusion on the seclusion of another

-improper entry into another's dwelling
-eavesdropping
-examination of private papers and records

Publicity not required

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Public Disclosure of Private Facts

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unreasonable public disclosures or private facts

Requires publicity, unlike intrusion

Publicized- communicated to public at large

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False Light

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unreasonable publicity the places another in a false light in the publict eye

Must be publicized and objectionable to a reasonable person, although need not be defamatory

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Defenses for invasion of privacy torts

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Same as defamation (absolute, conditional, and constitutional)

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Misuse of Legal Procedure

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1)Malicious prosecution
2)wrongful civil proceedings
3)Abuse of process

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Intentional Harm to Property Torts

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1)Trespass to real property
2)Nuisance
3)Trespass to personal property
4)Conversion

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Real Property

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Land and anything attached to it, such as buildings, trees, and minerals

Owner has right to exclusive use and quiet enjoyment of

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Trespass to real property

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Liable if:
1) enters or remains on land in the possession of another
2)causes a thing/person to so enter or remain
3)fails to remove from the land a thing that he is under a duty to remove.

No damage required

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Is an intruder liable for trespassing if they are unaware they are trespassing?

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Yes

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Nuisance to real property

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non-trespassory invasion of another's interest in the private use and enjoyment of land.

(unpleasant odors, smoke, dust, gas, pollution of water)

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Personal property

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any type of property other than an interest in land

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Trespass to personal property

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intentional dispossession or unauthorized use of the personal property of another

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Liability for trespass to personal property if...

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1)dispossesses the other of the property; 2)substantially impairs the condition, quality, or value of the property; 3)deprives the possessor of use of the property for a substantial time

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Conversion to personal property

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intentional excercise of dominion or control over another's personal property that so seriously interferes with the other's right of control as to justify payment of full value for the property

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Economic (pecuniary) interests

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1)existing and prospective contractual relations
2)business reputation
3)name and likeness
4)freedom from deception

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Interference with contractual relations

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interfering intentionally and improperly with the performance of a contract by inducing one of the parties not to perform it, extends to prospective contractual relations (lease renewal/financing for construction)

Must act with purpose or motive of interfering with another's contract, or with the knowledge will result in probable impairment of contract

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Inducement

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Offer of a better contract that interferes with an existing contract

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Disparagement (Injurious Falsehood)

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Imposes liability upon one who publishes a false statement that results in harm to another's monetary interests if the publisher knows that the statement is false or acts in reckless disregard of its truth or falsity

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Defenses to disparagement

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Same as defamation (absolute, conditional, constitutional)

Competitor has conditional privilege to compare her products favorably to those of a competitor

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Damages plaintiff entitled to recover for disparagement

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1)pecuniary loss immediately resulting from impairment of the marketability of the property disparaged
2)Expenses necessary to counteract the false publication, including litigation expenses, cost of notifying customers, and the cost of publishing denials

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Fraudulent Misrepresenation

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imposes liability for the monetary loss caused by a justifiable reliance on a misrepresentation of fact intentionally made for the purpose of inducing the relying party to act.

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Negligence

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conduct that creates an unreasonable risk of harm
Failure to exercise reasonable care.

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Strict liability

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based on the nature of the activity in which one is engaging

Defendants are liable, even if they maintain utmost care, for injuries they cause if they engage in certain activities (keeping animals, maintaining abnormally dangerous conditions, etc.)

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Restatement definition of negligence

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"conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm"

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General rule concerning negligence

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a person is under duty to all others at all times to exercise reasonable care for the safety of other persons and their property

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3 elements of negligence

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1)Breach of duty of care
2)proximate cause
3)Injury

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Breach of duty of care (component of negligence)

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that a legal duty required the defendant to conform to the standard and conduct established for the protection of others and that the defendant failed to conform to that standard

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Proximate Cause (component of negligence)

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that the defendant's failure to conform to the required standard of conduct proximately caused the injury and harm the plaintiff sustained

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Injury (component of negligence)

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that the injury and harm is of a type protected against the defendant's negligent conduct

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Factors when evaluating risk of harm (negligence)

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1)probability the harm would occur
2)the gravity or seriousness of the resulting harm
3)the social utility of the conduct creating the risk
4)the cost of taking precautions that would have reduced the risk

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Reasonable Person

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a fictitious individual who is always careful and prudent, and never negligent

external and objective

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Reasonable person (children)

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compared to child of like age, intelligence, and experience under circumstances

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Reasonable person (Physical disability)

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compared to reasonable person having like disability

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Reasonable person (mental deficiency)

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court does not allow for the insanity, volunary intoxication, or other mental deficiency of a defendant

Compared to a reasonable person who is not insane, etc.

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Reasonable person (Superior Skill or Knowledge)

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Persons who are qualified are required to use the same care and skill that members of their profession or trade normally possess.

Applies to physicians, dentists, etc.

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Reasonable person (emergency)

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emergency = sudden and unexpected event that calls for immediate action and permits no time for deliberation

the standard is that of a reasonable person under the circumstances

exception: defendant always liable if they created the emergency

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Reasonable person (Violation of statute)

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Standard may be established by legistlation, so long as:
1)the legislation provides for civil liability,
2)the statute is intended to protect a class of citizens that includes the plaintiff

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Negligence per se

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if an action violates a statute that applies, many courts hold that the violation shows negligence conclusively

legislative standards form minimum standards

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Duty to act

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No one is required to aid another in peril

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Exceptions to duty to act

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1)Parental relationship
2)Babysitter
3)carrier-passenger
4)innkeeper-guest
5)employer-employee
6)store-customer

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Extended duty to act

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duty to act also imposed on those whose conduct, whether tortious or innocent, has injured another and left him helpless and in danger of further harm

a person who has come to the voluntary assistance of another incurs the duty to exercise care

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Duties of possessors of land

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Right to use land for benefit/enjoyment restricted by duty to do so in a reasonable manner

1)Duty to trespassers
2)Duty to licensees
3)Duty to invitees

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Trespasser

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a person who enters or remains on land without the permission or privilege to do so

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Duty to trespasser

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Lawful possessor of the land not liable to trespassers for failure to maintain the land in a safe condition

Not free to inflict intentional injury on trespasser

Upon discovery of trespasser, possessor required to exercise reasonable care/warn trespassers of unsafe conditions of which they are unlikely to discover

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Licensee

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a person who is privileged to enter or remain on land only by virtue of the lawful possessor's consent

(members of the possessor's household, social guests, and salespersons calling at private homes)

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Duty to licensee

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Possessor must warn licensee of dangerous activities and conditions of which the possessor has knowledge and the licensee does not and is not likely to discover

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Invitee

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A person invited upon land as a member of of the public or for a business purpose

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Public invitee

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a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public (parks, beaches, pools, post office

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Business visitor

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a person invited to enter or remain on premises for a purpose directly or indirectly concerning business dealings with the possessor of the land (someone who enters a store, worker who enters a residence to make repairs)

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Duty to invitees

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to exercise reasonable care to protect against dangerous conditions about which the possessor should reasonably know and which the invitee is unlikely to discover

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Res Ipsa Loquitur

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"the thing speaks for itself"

applies when the event is of a kind that ordinarily would not occur in the absence of negligence and other possible causes are sufficiently eliminated by the evidence

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Proximate cause

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consists of the judicially imposed limitations on a person's liability for the consequences of his negligence

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causation in fact

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Defendant's conduct must be shown to be the cause of the injury

Apply the "but for" rule

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"but for" rule

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a person's conduct was the cause of an event if the event would not have occurred but for the person's negligent conduct

An act/omission is not the cause in fact if the event would have occurred regardless of the act/omission

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Substantial factor

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Addresses situations with more than 1 contributing party

negligent conduct is a legal cause of harm to another if the conduct is a substantial factor in bringing about the harm

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Limitations on Causation in Fact

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1)Unforseeable consequences
2)Superseding cause

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Unforseeable consequences

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even if the defendant's negligent conduct is a cause in fact of harm to the plaintiff, the conduct is not the proximate cause unless the defendant could have reasonably anticipated injuring the plaintiff or a class of persons of which the plaintiff is a member

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Superseding cause

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an intervening cause that occurs after the defendant's negligent conduct and with that negligence causes the injury

Public sidewalk excavation (darkness - not superseding, Carson hurls bogues - superseding)

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Injury

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Plaintiff must prove that the defendant's negligent conduct proximately caused harm to a legally protected interest

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Defenses to negligence not available for intentional torts

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1)Contributory negligence
2)Comparative Negligence
3)Assumption of Risk

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Contributory Negligence

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defined as conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection and that is a legal cause of the plaintiff's harm

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Last clear chance

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associated with contributorily negligence

plaintiff may still recover if the defendant had a "last clear chance" to avoid injury to the plaintiff but did not avail himself of such a chance

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Pure comparative negligence

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damages are divided between the parties in proportion to the degree of fault or negligence found against them

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Modified comparitive negligence

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the plaintiff recovers as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the defendant, in which case the plaintiff recovers nothing

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Express assumption of risk

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the plaintiff expressly agrees to assume the risk of harm from the defendant's conduct

usually agreed to by contract

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Implied assumption of risk

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the plaintiff voluntarily proceeds to encounter a known danger

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Current State of Implied Voluntary Assumption

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The third restatement has abandoned the doctrine of implied voluntary assumption of risk: it is no longer a defense that the plaintiff was aware of a risk and confronted it

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Strict liability (absolute liability, liability without fault)

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A person may be held liable for injuries he has caused even though he has not acted intentionally or negligently

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Activities that give rise to strict liability

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1)performing abnormally dangerous activities
2)keeping animals
3)selling defective, unreasonably dangerous products

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Abnormally dangerous activities

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(1)necessarily involves a high degree or risk of serious harm to the persons and this risk cannot be eliminated by the exercise of reasonable care

and

(2) is not a matter of common usage.

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Examples of abnormally dangerous activities

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-storing explosives or flammable liquids
-blasting or pile driving
-crop dusting
-drilling/refining oil in populated areas
-emitting gases/fumes into a community

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Keeping of Animals

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Those who possess animals must protect against harm those animals may cause to people and property

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Trespassing animals

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Holders of animals are held liable for any damage their animals cause by trespassing on the property

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Exceptions to trespassing animals

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1)keepers of cats and dogs are liable only for negligence, except where a statute or ordinance imposes strict liability
2)keepers of animals are not strictly liable for animals straying from a highway on which are being lawfully driven (owner may be held for negligence)
3)in some western states, keepers of farm animals (cattle) are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely

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Nontrespassing animals

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Keepers of wild animals are strictly liable for harm caused by such animals, whether or not they are trespassing

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Wild Animals

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defined as those that, in the region they're kept, are known to be likely to inflict serious damage and that cannot be considered safe
(bears, lions, monkeys, tigers, deer, raccoons)

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Domestic Animals

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are those animals that are traditionally devoted to the service of humankind and that is a class that are considered safe

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Liability and domestic animals

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Keepers of domestic animals are liable if they knew, or should have known, of an animal's dangerous propensity

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Products liability

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limited form of strict liability on manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user or consumer

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Defenses to strict liability

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Contributory negligence not a defense

Some states apply comparative negligence, most states apply it to strict product liability

Voluntary assumption of risk is a defense to an action based on strict liability