Fin240 Torts; Exam 2

Front 1

define tort

Back 1

an injury to another’s person or property; a civil wrong.

a civil wrong or law suit of another person. Or your well being is harmed.
ex. stealing someone else trait secret. oj simpion..being sued for wrongful death

Front 2

what are the goals of tort law?

Back 2

compensate victims as a result of the conduct of another

discourage private retaliation

promote a sense of justice

deter future wrongs: because wrongdoers (tortfeasor) knows that they’ll have to pay for their wrongdoing.

Front 3

What are the damages in tort law? 3

Back 3

Compensatory

Nominal

Punitive

Front 4

what is compensatory damages?

Back 4

i. Most common, design to make victim whole again…putting them back to the position where they would have been if tort didn’t happen

ii. Will cover medical bills, lost wages, property repair bills, compensation from pain and suffering. However, attorney fees are not included. Additionally, plaintiff would have to give their attorney part of their compensatory damages awarded to them

class notes:
where the person is compensating for the damages…car accident… for medical care, rehab. Also…Pain and suffering compensatory… it’s hard to quantified.

Front 5

What is Nominal damages?

Back 5

When plaintiff is unable to prove damages that would necessitate compensation. Court would award victim minuscule amount of $$ ex. $1. However, this will allow plaintiff to seek punitive damages.

class notes:
Prove that the other party have injured you but couldn’t prove damages. Ex. defamation…being defame… but can’t prove damage. Where you economically damage?? So you won, but couldn’t prove any damage so the court award you $1.

Front 6

What is punitive damages?

Back 6

i. when act of tortfeasor is flagrant, unconscionable, or egregious… court will award punitive damages
ii. to punish tortfeasor for engaging in harmful conduct
iii. to set as an example and deter others from engaging in the same conducts

class notes:
uncommon in breach of contract. However, common in tort case. This is beyond the compensatory. Because of the conduct of the defendant was way beyond bad….the court can reward the plaintiff more money. It’s to set an example. Big case…

Front 7

case
Bmw of N. America, inc. v. Ira Gore

Back 7

Punitive damages:
1. bmw car dealer sold a car to Gore. Car had been repainted after damage. Did not disclose with Gore. Sued for $4,000, but got a punitive damage from jury of $4 million. Defendant appeal for due process clause of the 14th amendment which prohibits state from imposing a “grossly excessive” punishment on a tortfeasor. Court reversed and remanded in favor of appellant, BMW. $ 4 mil to $2 mil

class notes:
involves a dealership. Gore bought it new and in the transaction, found out that the car had some damages but the dealer didn’t tell him. He sue for damages under compensatory and punitive. The actual damage was $4000, but the punitive was $4 million dollars. Question is…if the amount is soo much….it violates the equal protection claws. What’s the right decision for punitive. They did a three part test.

Front 8

What’s the right decision for punitive damages???

Back 8

They do a three part test:
1. in the degree of reprehensive…the more, the higher the punitive. What did they do? Bmw has a policy that if there’s damage that the car has a 3% damage.. they don’t bother to tell the seller. However, it would be reprehensible if the car gets into an accident and folds up into a box because of the damage… but in this case…it wasn’t so.
2. comparing the actual damage to the punitive… it shouldn’t be more than 10 to 1. in this case…it was far more than 10 to 1.
3. what happen if this was in civil vs. criminal. Civil…then won $4 millions. If this was in a criminal case than it would be around $10,000 in damages. So then… how was soo much for the damage?? Something is out of whack.

Front 9

Should we have tort reform...for punitive damages? what does teacher think??

Back 9

Yes. some awards to punitive damages are unreasonable. It gives juries too much power.

he thinks the money should go to gov. not the plaintiff and attorneys

Front 10

what are the three cateories of torts?

Back 10

Intentional torts

negligent torts

strict liability torts

Front 11

what is intentional tort?

Back 11

where defendant took some purposeful action they know would harm the plaintiff.

i. does not mean… something specific to cause harm to plaintiff, but determination to do a specific physical act that may lead to harming the plaintiff’s person, property, or economic interests

Front 12

Name the 5 most common intentional torts against persons

Back 12

assault and battery

defamationt

privacy torts

false imprisonment

intentional infliction or emotional distress

Front 13

intentional torts against persons:
What defines assault and battery?

Back 13

assault – intentional placing of a person in fear or apprehension of an immediate, offensive bodily contact. not assult if you're joking. or if threat to commit harm in a week (it's not immediate)

ii. battery
1. intentional, unwanted, and offensive bodily contact
2. ex. punching someone

defense to battery
1. self-defense, but only with necessary force to protect oneself
2. third party…defend that person with the same degree of force that one would reasonably use to defend oneself.
3. deadly force is rarely considered justified

Front 14

intentional torts against persons:
What defines Defamation?

Back 14

intentional publication of a false statement that is harmful to the plaintiff’s reputation.

libel - written
slander - oral

Front 15

intentional tort; defamation
define Libel

Back 15

publication in permanent form
1. ex. piece of writing or on TV
2. damages could be feeling of humiliation/ loss of standing in the community

Front 16

intentional tort; defamation
define slander

Back 16

spoken
1. plaintiff must prove “special damages.” Must demonstrate actual monetary loss flow from slanderous statement

Front 17

case

Cubby v. compuserve

Back 17

Intentional torts: defamation
Internet case. Someone defaming a competitor company. The plaintiff sued both the other company and the server provider. Defendant (internet server) said that it only upload thing for their customers…like a library. Defendant wins

Front 18

Intentional torts: defamation
case

Stratton Oakmont v. Prodigy service

Back 18

Intentional torts: defamation
A subscriber uploaded defamation. Like the case above, but prodigy service had a review function and claim as a family website. Court said that they should have seen it and stop it, but they didn’t. They are then liable. Similar to contributor defamation.

Front 19

Intentional torts: defamation - public figures

Back 19

1. public figures for all purpose
a. movie stars, musicians, politicians
2. public figures for a limited purpose
a. private figure who achieves substantial media attention for a specific activity. Leader of an abortion group.

toward public figure and want to win a case. If they want to prove that the statement is faults and malice (knowledge of the falsity of the statement or reckless disregard for the truth)…. And economic cost. They have to prove that it’s not true and what the defendant did was intentional. That can be hard to prove…since the person saying it may not know that it is true or false. It might just be a roomer that the defendant is going off of.

Public figures can go on tv and prove that the statement is faults.

Front 20

intentional torts: Privacy torts. what is it?

Back 20

Used to keep private matters confidential. Four torts: public disclosure of private facts, false light, appropriation, and invasion of privacy

Front 21

intentional tort --> Privacy tort:

Define False Light

Back 21

1. a privacy tort that consists of intentionally taking actions that would lead observers to make false assumptions about that person. Ex. newspaper about gangs in neighborhood along with pictures of random ppl sitting on a car

Front 22

intentional tort --> Privacy tort

define Public disclosure of private facts

Back 22

1. a privacy tort that consists of unwarranted disclosure of a private fact about a person. Ex. revealing the name of a patient who obtained an abortion at the clinic.

class notes:
usually with HR. They usually have private info. They have files with everyone in the company. Are u entitle to have it private? Yes… supposed someone looked at ur file and left it on your desk. Anyone who happens to be around the desk can look at your file and find something that u want private. U then have a cause of action

Front 23

intentional tort --> Privacy tort

define Appropriation

Back 23

1. a privacy tort that consists of using a person’s name or likeness for commercial gain w/out the person’s permission. Ex. prohibits a cereal company from putting an athlete’s picture on its cereal box without their permission.

class notes:
when using other ppl’s image on a product…ex. u want to sell cereal so you photoshop a picture of tiger wood on to the cereal box. Cant do that. Can sue to make u stop

Front 24

intentional tort --> Privacy tort

Invasion of privacy

Back 24

1. a privacy tort that consists of encroaching on the solitude, seclusion, or personal affairs of someone who has the right to expect privacy. Ex. wiretapping or using someone’s email without their consent. Also, having a two way mirror in bathrooms

class notes:
it’s kinda new…don’t know where this is going. Ex. taping of lockeroom. Or you’re going to lunch with a female employee and u make a turn. At the same time, the camera took a picture and sent it home to you. Your wife sees it. A lot of ppl file lawsuit; therefore, some state have blocked out the passenger.

Front 25

intentional tort

what is false imprisonment?

Back 25

i. protects freedom of movement
ii. can not be moral force alone… either physical restraint or force. Ex. looking someone up or holding someone down.
iii. Common in security guard/retailers… also known as shopkeepers’ tort. However, there is shopkeepers’ privilege which allows owner to detain suspected shoplifters…but only for a certain hours.

Front 26

intentional tort;

what is Intentional infliction of emotional distress?

Back 26

i. Intentionally engaging in outrageous conduct that is likely to cause extreme emotional pain to the person toward whom the conduct is directed. Ex. having beef with someone and calling them and telling that their love ones died… have to prove damage…like heart attack or headache..etc.

Front 27

intentional tort: Intentional infliction of emotional distress

case
[Knierem v. Izzo] (Little league)

Back 27

a parent called another parent and said that their kid was killed just to get back at the parent

Front 28

what is intentional torts against property?

Back 28

Trespass to real property
Trespass to personal property
Conversion

Front 29

intentiona torts against property:

what is trespass to realty or trespass to real property?

Back 29

i. person enters land or home w/out permission
person has permission to enter…but when asked to leave…they don’t.

Front 30

intentiona torts against property:

define Trespass to personal property

Back 30

i. Intentionally interferes w/ another’s use and enjoyment of their property. Trespasser is liable for any harm caused on property or loss suffered by owner.

Front 31

intentional tort against property:

what is Conversion?

Back 31

i. Intentional permanent removal of property from the rightful owner’s possession and control. Ex. taking a car from someone and selling it to the salvage firm…car is ripped to pieces… person who sold the car have committed conversion and is liable to replace the car

Front 32

what are some intentional trots against economic interest?

Back 32

2 most important ones

1. disparagement
2. interference with contract

others are

3. unfair competition
4. misappropriation

Front 33

intentional trots against economic:

what is disparagement?

Back 33

intentionally defaming a business product or service

class notes:
like defamation. It’s toward a product or service. Making a statement of a service that is false…libel or slander. This can cause a great lost of profit.

Front 34

intentional trots against economic:

what is interference with contract?

Back 34

intentional interference with a contract

class notes:
it’s intentional and must know that there’s a contract. ex. companies luring ppl from competitive companies to work for them and contract stated that the employee can’t work for another competitive companies over certain years

Front 35

intentional trots against economic:

what is unfair competition?

Back 35

i. entering into business for the sole purpose of causing a loss of business to another firm. Ex. father wants son to go to college… but son opens paint shop…father opens a competitive paint shop as well and underbid every job his son bid. Father willing to loss profit to force son out of business

Front 36

intentional trots against economic:

what is misappropration?

Back 36

i. use of an unsolicited idea for a product, service or marketing method w/out compensating the originator of the idea
ii. hard to prove.
iii. Ex. selling an idea to a firm. Firm use it without compensation to inventor

class notes:
sealing someone else’s idea. Ex. sending in an idea for a movie…the producer wont open it because they are afraid that their future idea might be the same as yours.
Ex. Bee gee… made a song that sounds like another song a person made and sent to bee gee. There was a lawsuit. The bee gee won the case.

Front 37

what is negligent torts?

Back 37

carelessness on part of the defendant. Failure to live up to the standard of care that a reasonable person would meet to protect others from an unreasonable risk of harm

class notes:
where you do not intend but you were not paying attention. Ex. texting while driving

Front 38

what are things to prove negligence? 4

Back 38

duty

breach of duty

causation

damages

example:
Negligence involve breach of duty…ex. driving… if you hit someone…
1. u’ve breach duty of care because u were not paying attention. Establish a duty
2. Have to establish that the duty was breach
3. Establish that the breach of duty was the cause of the damage…accident.. Two kinds of cause
1. actual causation – is a factual matter of whether the defendant’s conduct resulted in the plaintiff’s injury.
2. proximate causation - It is foreseeability. Was it forseeable. Ex. car hits pedestrian… pedestrian has dynamite and blows up a block which shattered windows hurting a secretary. Secretary can not file suit cause it’s not foreseen, but the pedestrian can.

Front 39

negligence torts: causation
what is actual causation?

Back 39

i. is a factual matter of whether the defendant’s conduct resulted in the plaintiff’s injury.
ii. Asked “if defendant had obeyed his duty, would the plaintiff still be injured?”

class notes:
is a factual matter of whether the defendant’s conduct resulted in the plaintiff’s injury

Front 40

negligence torts: causation
what is proximate causation?

Back 40

i. It is foreseeability.
ii. Ex. car hits pedestrian… pedestrian has dynamite and blows up a block which shattered windows hurting a secretary. Secretary can not file suit cause it’s not foreseen, but the pedestrian can.

class notes:
It is foreseeability. Was it forseeable. Ex. car hits pedestrian… pedestrian has dynamite and blows up a block which shattered windows hurting a secretary. Secretary can not file suit cause it’s not foreseen, but the pedestrian can.

Front 41

negligence torts: proximate casusation case... Palsgraf??

Back 41

rail road company…lady waited for a train…exploding occurred many feet away and a scale flew and hit her. Two boys attempt to get on the train and one boy carried fireworks, drop it and train…ka-boom. The issues is that is the rail road accountable. Is it forseeable?? No.

Front 42

negligence torts:

what is Res Ipsa Loquitur?

Back 42

res ipsa loquitur (things speak for itself)
a. legal doctrine allows a judge or jury to infer negligence on the basis of the fact that accidents of the type that happened to the plaintiff generally do not occur in absence of negligence on part of someone in the defendant’s position

Front 43

case

escola vs coca cola

Back 43

negligence torts: Res Ipsa Loquitur

waitress, holding a coke bottle and it exploded in her hand. She won, coca cola negligence in filling the bottle resulted in ka-boom.

Front 44

negligence torts:

what is negligence per se?

Back 44

a. legal doctrine that says when a statue has been enacted to prevent a certain type of harm and the defendant violates that statute, causing that type of harm to befall the plaintiff, the plaintiff may use proof of the violation as proof of negligence.
i. Ex. unlawful to sell certain types of glue where kids can get high on. It’s sold anyways and kid dies.

Front 45

defense to negligence:

contributory negligence

Back 45

a. a defense to negligence that consists of proving that plaintiff didn’t exercise the ordinary degree of care to protect against an unreasonable risk of harm and that this failure contributed to causing the plaintiff’s harm
b. however, there’s the last-clear-chance where a plaintiff can claim that the last clear opportunity to avoid the accident falls on the defendant which resulted in injury for plaintiff
2. pure comparative negligence defense

class notes:
a defense to negligence that consists of proving that plaintiff didn’t exercise the ordinary degree of care to protect against an unreasonable risk of harm and that this failure contributed to causing the plaintiff’s harm.

Front 46

defense to negligence:

what is Assumption of risk?

Back 46

Defendant must show that plaintiff voluntary and unreasonably encountered a known risk

class notes:
Defendant must show that plaintiff voluntary and unreasonably encountered a known risk

Front 47

defense to negligence:

what is comparative negligence?

Back 47

defendant must be more than 50% at fault before plaintiff can recover.

Front 48

defense to negligence:

what is pure comparative negligence defense?

Back 48

a. court determines percentage of fault of the defendant and percentage of damage which defendant is liable.

class notes:
court determines percentage of fault of the defendant and percentage of damage which defendant is liable.

California has this

Front 49

what is strict liability torts?

Back 49

involve inherently dangerous actions and impose liability on defendant regardless of how careful they are can make it safe
i. not restricted because we do not want to prohibit it entirely
ii. allow ppl to engage in activities but hold them strictly liable for any damage.
iii. Ex. blasting in populated area?? Don’t know what that’s supposed to be and keeping non-domesticated animals

class notes:
means the defendant is liable even if they didn’t do anything wrong