Ch 4 Vocab Bus Law

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Tort

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A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability. Tort is French for “wrong.” Tort law is concerned with providing remedies (monetary damages) for wrongs committed in society when a person suffers injury as a result of the wrong. Unlike a criminal wrong (a crime, see Chapter 6), punishable by paying a fine to the government or being imprisoned, a tort is a civil wrong, punishable by paying damages to the injured party or parties.

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Intentional Tort

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A wrongful act the tortfeasor committed voluntarily and with the intent to so act (but not necessarily with the intent to do harm).

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Unintentional Tort (Negligence)

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A wrongful act the tortfeasor committed due to their failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.

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Compensatory Damages

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attempt to reimburse the injured party for the actual value of her injury or loss.

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Punitive Damages

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attempt to punish the tortfeasor for particularly egregious conduct and, in so doing, to deter similar conduct in the future

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Assault

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An intentional, unexcused act creating in another person a reasonable apprehension or fear of immediate harmful or offensive contact (e.g., pointing a gun at someone).

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Battery

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Intentional, unexcused and harmful or offensive contact (e.g., firing the gun).

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False Imprisonment

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The intentional confinement of another person or restraint of another person’s activities without justification. The confinement may occur through the use of physical barriers, physical restraint, or threats of physical force

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Infliction of Emotional Distress

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An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

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Defamation:

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Anything published or publicly spoken that injures another’s character, reputation, or good name.

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Slander

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Defamation in oral form.

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Libel

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Defamation in written form.

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Publication

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The speaker must have communicated the statement to persons other than the defamed party.

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Defamation Per Se

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Common law recognizes four types of false utterances that constitute indefensible defamation: (1) that another has a loathsome communicable disease (e.g., a sexually-transmitted disease); (2) that another has committed improprieties while engaging in a profession or trade; (3) that another has committed or has been imprisoned for a serious crime; and (4) that an unmarried woman is unchaste.

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Truth

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Truth is normally an absolute defense. In other words, if the allegedly defamatory words were objectively true, the defendant cannot be held liable for publishing them.

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Privilege

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The ability to act contrary to another person’s right without owing legal redress for the act.

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Absolute Privilege

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Statements made or actions taken in judicial and certain legislative proceedings (e.g., statements made by attorneys during trial, statements made by legislators during floor debate) are privileged against any claim of wrongful conduct.

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Qualified Privilege

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In other situations, statements or actions made in good faith and, in the case of statements, made only to those who have a legitimate interest in the statement, are privileged.

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Absence of Malice

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Generally speaking, otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice – that is, with either knowledge of falsity or reckless disregard of the truth or falsity.

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Invasion of Privacy: Common law recognizes four acts that qualify as improperly infringing on another’s privacy:

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(1) Appropriation: the use of a person’s name, picture, or other likeness for commercial purposes without their permission;
(2) Intrusion: Intrusion in an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy;
(3) Publication: Publication of information that places a person in false light; and
(4) Public disclosure of private facts about an individual that an ordinary person would find objectionable.

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Fraud

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Generally defined as Intentional deceit, usually for personal gain.

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Actionable fraud requires the following elements:

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(1) a misstatement or omission
(2) of one or more material facts,
(3) made knowingly and with the intent to deceive the innocent party,
(4) on which a reasonable person would rely,
(5) and the innocent party actually relied to her detriment,
(6) causing the innocent party loss.

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Negligent Misrepresentation

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A material misrepresentation made without knowledge of its falsehood or intent to deceive.

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Predictions and Expressions of Opinion

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Generally, these will not give rise to an actionable misrepresentation, unless the person making the statement has a particular expertise and knows or has reason to know that the listener intends to rely on the statement.

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Abuse of Process

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Using a legal process (e.g., seeking a temporary restraining order or an injunction, subpoenaing testimony or records, garnishing wages) against someone in an improper manner or to accomplish a purpose for which the legal process was not designed.

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Malicious Prosecution

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Initiating a lawsuit out of malice and without a legitimate legal reason.

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Frivolous Litigation

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Asserting a claim or defense the party knows to be groundless, and impossible to prove to the extent necessary to satisfy the relevant burden of proof, for the purpose of causing the accused to incur litigation and other expenses to dispense with the claim or defense and its broader ramifications, if any

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Sanctions

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Federal Rule of Civil Procedure 11 (to which all states have a counterpart) sets forth an array of sanctions a judge may impose on a party, it attorney(s), or both for, inter alia, asserting a baseless claim or defense or otherwise misleading the court into abetting a party’s abuse of process.

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Wrongful Interference with a Contract: The tort of interference with contract requires proof of the following:

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(1) a valid contract exists between parties X and Y;
(2) a third party, Z, knows that said contract exists; and
(3) Z intentionally causes X or Y to breach the contract.

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Interference with Business Relationship: Interference with a prospective business relationship is also actionable, where:

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(1) While no contract or other business relationship presently exists between X and Y, Z knows or has reason to believe that X and Y might enter into a business relationship, by contract or otherwise; and
(2) Z intentionally interferes with X’s attempt to establish a business relationship with Y.
In either case, Z’s interference will be excused if Z can establish that it was privileged or justified to act as it did. Thus, for example, bona fide competitive behavior (e.g., non-predatorily underselling a competitor) will not support a claim of tortious interference.

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Trespass to Land: Entry onto, above, or below the surface of land without the owner’s permission or legal authorization. Any person who enters onto another’s property to commit an illegal act is deemed to have trespassed as a matter of law. Otherwise, the owner or legal occupant of the real property must establish that

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(1) the trespasser ignored a posted “no trespassing” sign (or comparable notice), or
(2) the trespasser ignored the owner’s or legal occupant’s request to leave the property.

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“Attractive Nuisance”:

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A landowner may be liable for injuries to children enticed to enter the property by, e.g., a swimming pool or an abandoned building

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Defense to Trespass: Trespass may be justified or excused if the trespasser can prove

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(1) Necessity: she was trying to rescue another or save another’s life or property, or
(2) License: she was invited, and entered before the owner revoked the license.

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Trespass to Personal Property

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Taking or harming another’s personal property, in a way that interferes with her right to exclusive possession, without the owner’s permission or legal authorization. The key is injury to the owner’s enjoyment of his personal property, not injury to the property itself.

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Conversion

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Taking, using, selling, or retaining possession of personal property that belongs to another without the other’s permission or legal authorization. Conversion assumes that the purported owner has a superior right of possession.

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Consent:

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When a plaintiff consents to the act that damages him or her, the alleged tortfeasor generally is not liable for any damage done.

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Self-Defense

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An individual defending his or her life or physical well-being, either from real or apparent danger, may use reasonably necessary force, or resort to reasonably necessary action, to prevent harmful contact.

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Defense or Assistance of Others

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An individual can act in a reasonable manner to protect or assist others who are in real or apparent danger.

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Defense of Property

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An individual may use reasonable force to remove an intruder from the individual’s home or to restrain the intruder for a reasonable time. Force that is likely to cause death or serious bodily injury (i.e., deadly force) normally may not be used solely to protect property.

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Necessity

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An otherwise tortious act may be excused if the tortfeasor acted in accordance with law or the public good.

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Negligence

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Negligence: Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances. Negligence requires no intent on the part of the tortfeasor, nor does it require that the tortfeasor know or believe the consequences that his act or omission may cause. Negligence merely requires that the tortfeasor’s act fell below the appropriate standard of care, Reasonably Prudent Person Standard (RPP),or omission create a risk of the consequences complained of by the injured party.

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Elements: Actionable negligence requires the following:

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(1) Duty: the tortfeasor owed the plaintiff a duty of care,
(2) Breach: which the tortfeasor breached,
(3) Causation: actually causing the plaintiff
(4) Damages/Injury: a legally recognizable injury.

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Duty of Care

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The duty of all persons to exercise reasonable care in their dealings with others

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Professionals’ Duty of Care

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If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a “reasonable professional” can result in the professional being subject to liability for professional malpractice.

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Reasonable Care

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The degree of care expected of a hypothetical “reasonable person”; not necessarily how a reasonable person would act, rather how a reasonable person should act. Tort law presumes that the reasonable person will be, at a minimum, reasonably; (1) attentive, (2) aware of his or her environs, (3) careful, (4) conscientious, (5) even tempered, and (6) honest.

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Landowners’ Duties

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Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property – even trespassers.

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Business Invitees

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Retailers and other business that explicitly or implicitly invite persons to come onto their premises are expected to exercise reasonable care toward these business invitees.

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Obvious Risks

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Some risks are so obvious that the owner need not warn even invitees.

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The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.

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The purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.

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Causation in Fact

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An act or omission without which the plaintiff’s injury would not have occurred. This is a “but for” test for causation. But for the act would the injury have resulted? If yes, this part of causation test is satisfied.

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Proximate Cause

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Also known as legal cause. Proximate cause exists when the connection between an act and an injury is direct enough to impose liability. By direct, the case law has focused on the concept of foreseeability of the injury. If the type of harm suffered was foreseeable from the act, proximate cause is satisfied. If the consequence of the act or omission or the victim who is harmed by the act or omission is unforeseeable, no proximate cause exists.

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Res Ipsa Loquitur

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A court may infer that negligence caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence

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Superseding Cause

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The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s control, which supersedes the original wrongful act or omission as the cause of plaintiff’s injury or loss.

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Assumption of Risk

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A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor. Risk may be assumed by express agreement or be implied by the plaintiff’s knowledge and conduct. Plaintiffs do not assume risks other than those inherent in the situation. Assumption of risk will not arise in emergencies. Assumption of risk will not arise when the plaintiff is a member of a statutorily-protected class of persons.

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Contributory Negligence

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No matter how insignificant the plaintiff’s own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.

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Comparative Negligence

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More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiff’s own negligence. California is Pure Comparative Negligence state, meaning that Plaintiff can recover even if there are found 99% at fault. However, their award will be reduced according to the determined fault.

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Negligence Per Se: An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party. The plaintiff must prove that:

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(1) the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected,
(2) the plaintiff is in the class of persons intended to be protected by the statute or ordinance, and
(3) the statute or ordinance was intended to prevent the type of injury that the plaintiff suffered as a result of the defendant’s wrongful act.