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72 Cards in this Set

  • Front
  • Back

A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability. A civil wrong, not a criminal wrong, that is punishable by paying damages to the injured party(ies).

Tort

Concerned with providing remedies (monetary damages) for wrongs committed in society when a person suffers injury as a result of the wrong.

Tort Law

Wrongful interference with another's business rights and relationships

Business Tort

a tort committed in cyberspace

Cyber Tort

one who commits a tort

Tortfeasor

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

Intentional Tort

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

Unintentional Tort




aka




Negligence

a reason offered and alleged by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what she or he seeks.

Defense

Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action.

Actionable

a monetary award sought as a remedy for a breach of contract or a tortious actions.

Damages

a monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party. Attempt to reimburse the injured party for the actual value of her injury or loss.

Compensatory Damages

Monteary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future. Attempt to punish the tortfeasor for particularly egregious conduct, and, in so doing, to deter similar conduct in the future.

Punitive Damages

Any word or action intended to make another person fearful of immediate physical harm - a reasonably believable threat. An intentional, unexcused act creating in another person a reasonable apprehension or fear of immediate harmful or offensive contact (Pointing a gun at someone)

Assault

Intentional, unexcused and harmful or offensive physical contact with another (firing the gun)

Battery

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

False Imprisonment

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

Infliction of Emotional Distress

anything published or publicly spoken that injures another's character, reputation, or good name

Defamation

Defamation in oral form

Slander

Defamation in written form or another permanent form (digital)

Libel

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

Publication

Common law recognizes 4 types of false utterances that constitute indefensible defamation: 1- that another has a communicable 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, 4- that an unmarried woman is unchaste

Defamation Per Se

Truth


Privelage


Absolute Privelage


Qualified Privelage


Actual Malice


Absense of Malice

Defense against Defamation

A defamation defense that is normally absolute. If the alleged defamatory words were objectively true, defendant cannot be held liable for publishing them

Truth

In tort law, immunity from liability for an action that would otherwise be a tort. The ability to act contrary to another person's right without owing legal redress for the act

Privelage

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 privelaged

Qualified Privelage

the deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth. Required to establish defamation against public figures.

Actual Malice

Otherwise false or defamatory statements made about public figures are privileged unless they are made with actual malice.

Absense of Malice

Common law recognizes 4 acts that qualify as improperly infringing on another's privacy:


1- Appropriation


2- Intrusion


3- Publication


4- Public disclosure of private facts that an ordinary person would find objectionable.

Invasion of Privacy

the use by one person of another person's name, picture, or other likeness for commercial purposes without their permission and for the benefit of the user

Appropriation

Intrusion in an individual's affairs or seclusion in an area in which the person has a reasonable expectation of privacy

Intrusion

Publication of info that places a person in false light

Publication

Intentional deceit, usually for personal gain

Fraud

Requires the following elements:


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

Actionable Fraud (requirements)

any misrepresentation, either by misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment

Fraudulent Misrepresentation

A salesperson's often exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties

Puffery

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

Negligent Misrepresentation

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

Predictions OR Expressions of Opinion

using a legal process against someone in an improper manner or to accomplish a purpose for which the legal process was not designed

Abuse of Process

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

Malicious Prosecution

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.

Frivolous Litigation

Federal Rule of Civil Procedures 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

Sanctions

Tort that requires proof that:


a valid contract exists between 2 parties


a 3rd party knew about said contract


and that 3rd party intentionally causes the parties involved to breach the contract

Wrongful Interference with a Contract

Interference with a prospective business relationship that is actionable if:


a 3rd party has reason to believe 2 parties might enter into a business relationship (even though a contract currently doesn't exist)


and they intentionally interfere with one party's attempt to establish a business relationship with the other party

Interference with Business Relationship




(*excused if 3rd party can prove it was privileged or justified to act that way)

Entry onto, above, or below the surface of land without the owner's permission or legal authorization.

Trespass to Land




Owner must prove "no trespassing" signs were ignored & owner or legal occupant's requests to leave were ignored.




If entry to another's property was to commit an illegal act, it's deemed trespassing as a matter of law.

a landowner may be liable for injuries to children enticed to enter the property (a swimming pool or abandoned building)

"Attractive Nuisance"

Trespass may be justified if trespasser can prove:


1- Neccesity (trying to rescue someone or save another's life or property) OR


2- License (she was invited, and entered before owner revoked the license)

Defense to Trespass

wrongfully taking or harming another's personal property, without the owner's permission or legal authorization.




*injury to owner's enjoyment of his personal property, not the injury to the property itself

Trespass to Personal Property

wrongfully taking, using, selling, or retaining possession of personal property that belongs to another without permission or legal authorization.

Conversion

an economically injurious falsehood about another's product or property

Disparage of Property

the publication of false info about another's product, alleging that it's not what it's seller claims

Slander of Quality (Tradel Libel)

publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner

Slander of Title

*Consent- plaintiff consents to act that damages him or her


*Self Defense- individual defending his/her life/physical well-being, either form real or apparent danger (may use reasonable force)


*Defense or Assistance of Others- can act in a reasonable manner to protect or assist others who are in real or apparent danger


*Defense of Property- may use reasonable force to remove intruder from your home or restrain them for a reasonable time. (may Not use deadly force)


*Necessity- otherwise tortious act may be excused if tortfeasor acted in accordance with law or public good

Defenses against Intentional Torts

Failing to exercise the standard of care that a reasonable person would do in similar circumstances.




Requires no intent or knowledge/belief that consequences that his act or omission may cause; only reqs that act failed the RPP and created risk of consequences caused.

Negligence

Negligence reqs:


1- Duty (owned plaintiff duty of care)


2- Breach (breached duty of care)


3- Causation (actually caused Plaintiff..)


4- Damages/Injury (legally recognized injury

Actionable Negligence

the duty of all persons to exercise reasonable amount of care in their dealings with others. Failure to exercise due care (by reasonable person standard) is a tort of negligence

Duty of Care

standard behavior expected of a reasonable person. Negligence is measured against it and must be observed to avoid liability for negligence

Reasonable Person Standard

if someone has a knowledge, skill, or expertise superior to that of an ordinary person, they are held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. May be subject to professional malpractice

Professional Duty of Care

Degree of care expected of a reasonable person (how they should act)




Tort law presumes that a reasonable person will be, at min, reasonably 1- attentive, 2- aware of his or her environs, 3- careful, 4- conscientious, 5- even tempered, 6- honest

Reasonable Care

Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property (trespassers too)

Landowner's Duties

A person who is invited onto business premises by owner for business purposes. Businesses are expected to exercise reasonable care toward all those explicitly/implicitly invited onto their property

Business Invitee

an act or omission without which plaintiff's injury would not have occurred.


Uses the "but for" test.

Causation in Fact

aka Legal Cause


exists when connection between an act and injury is direct enough (forseeable) to impose liability.

Proximate Cause




Forseeable act? Prox. Cause exists


Unforseeable act? No Prox. Cause exists.

a doctrine under which negligence may be inferred which caused an injury or loss if the even resulting in the injury or loss would no occur in the absence of negligence.




"the facts speak for themselves"

Res Ipsa Loquitur

Connection bw wrongful act or omission and injury suffered may be broken by occurrence of another act or omission (not caused by alleged tortfeasor & out of their control), which supersedes the original wrongful act/omission as the cause of plaintiff's injury or loss

Superseding Cause

Defense to Negligence:


a plaintiff who voluntarily enters into a risky situation, knowing the risk, may not recover for injuries or damages suffered. (Risks assumed by express or implied agreement)

Assumption of Risk




Emergencies do not count


Doesn't count if plaintiff is member of a statutorily protected class of persons either

Tort law rule, that completely bars plaintiff from recovering damages if damage suffered is partly their own fault, no matter how insignificant compared to the defendant's fault.




*used only in some states

Contributory Negligence

Tort Law rule, that reduces plaintiff's recovery in proportion to plaintiff's degree of fault. Recovers for the % of his or her injury/loss not caused by their own negligence.




*used in majority of the states

Comparative Negligence

an act or failure to act or omission in violation o f a statutory duty or obligation. Often arises where tortfeasor violates both criminal statute/ordinance and causes injury to another party.

Negligence per Se




*plaintiff must prove:


1- statute/ordinance clearly states standard of conduct expected, when, and of whom


2- plaintiff is protected under statute/ordinance


3- statute/ordinance was intended to prevent type of injury plaintiff suffered as a result of act.

Where individual takes foreseeable action to avoid harm or to rescue another from harm, any injury caused will be attributed to the original wrongdoer whose fault or negligence caused her to take the defensive action.

The "Danger Invites Rescue" Doctrine

Those who are aided voluntarily are prevented from suing person who rendered the assistance. A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly, causing further harm.

"Good Samaritan" Statutes

a state statute that imposes liability on owners of bars and taverns, and bartenders, for injuries resulting from accidents caused by intoxicated persons when sellers or servers contributed to their intoxication

Drama Shop Act

Liability regardless of fault imposed on those engaged in abnormally dangerous activities, those who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective/unreasonably dangerous goods.


* strictly liable for any harm caused

Strict Liability