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,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,Tort Law,General,Tort,a,civil wrong,which unfairly causes someone else to suffer loss or harm,It does not include,breach of contract,or trust. (A,civil wrong can be a,tort,breach of contract,or,breach of trust,.),Purpose of tort law,to provide relief to the injured party through the award of damages for the injuries incurred during a tortious act,General,to deter others from committing the same act,US tort law,Tort law in the U. S. is largely common law.,Courts have the power to shape and change the elements of claims and defenses of existing torts and the power to create new torts.,Statutes have been passed in attempts to reform the tort system.,General,Most of them have related to procedural matters and amounts and categories of damages.,Many judges utilize the,Restatement of Torts,(2nd) as an influential guide.,The,Restatement,is an influential treatise issued by the,American Law Institute, which summarizes the general principles of common law,United States tort law,.,Categories of torts,intentional torts,General,negligence,strict liability,torts,Intentional Torts,General,Definition,An intentional tort is a,tort,resulting from an intentional act on the part of the,tortfeasor,.,Subcategories,torts against the person,assault,battery,false imprisonment,intentional infliction of emotional distress,General,property torts,trespass to land,trespass to chattels (personal property),conversion,dignitary torts,defamation,invasion of privacy,Torts Against the Person,Assault,Definition,an intentional act that causes an apprehension of,immediate,harmful or offensive contact,Apprehension is not the same as fearhere it means awareness that an injury or offensive contact is imminent.,Requirements,The act must be overt.,Mere words do not constitute an assault.,Assault,There must be an accompanying act.,The defendant must have the apparent ability to carry out the,contact,.,Actual ability to carry out the,contact,is not necessary.,The plaintiff,must have a reasonable apprehension of such contact.,Actual fear on the plaintiffs part is not required.,Examples,Assault,swinging a baseball bat at someone,holding a rock and threatening to throw it at,someone,pointing a gun at someone,pointing a realistic toy gun at someone,Criminal assault and tortious assault,Criminal assault can occur even when no threat is perceived by the victim.,With the tort of assault, a perceived threat by the victim is paramount.,Assault,A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.,Battery,Definition,an intentional act that causes,a,harmful,or,offensive,contact,Harmful contact,contact that objectively intends to injure, disfigure, impair, or cause pain,Offensive contact,contact that would offend a persons sense of personal dignity,Battery,Examples,beating someone with a tire iron,spitting in someones face,knocking a hat off someones head,whipping a horse on which,someone,was riding, causing him to fall and be injured,mixing something offensive in food that he knows another will eatthe other does in fact eat the offensive matter,Battery,digging a pit with the intent that another will fall into it laterthe other does in fact fall into it,Criminal and tortious battery,Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.,Criminal law,recognizes degrees of crimes involving physical contact.,There is but a single tort of battery.,False Imprisonment,Definition,the detention of a person in a bounded area without justification or consent,The essence of the tort is the natural mental harm that results when ones freedom is restricted without justification.,Elements,intent to confine a person within a certain area,False Imprisonment,actual confinement,awareness of the confinement by the person so confined,no reasonable means of escape,False arrest,False arrest occurs when someone arrests another individual without the legal authority to do so, which becomes false imprisonment the moment he or she is taken into custody.,IIED,Definition,short for,intentional infliction of emotional distress,referred to as,the tort of outrage,in some jurisdictions,intentional conduct that results in extreme emotional distress,Elements,The defendant must act intentionally or recklessly.,IIED,The defendants conduct must be extreme and outrageous.,The conduct must cause the plaintiff to suffer severe emotional distress.,Severe emotional distress,This tort involves more than hurt feelings, disappointment, or worry.,There must be severe mental suffering, i.e. such that no reasonable person should be expected to endure it.,IIED,This standard is quantified by the intensity, duration, and any physical manifestations (ulcers or headaches, for example) of the distress.,Examples,A person refused to inform another of the whereabouts of that others child for several years, though the person knew where the child was the entire time.,IIED,A person sent a letter to another falsely informing him that a close family member of his had been killed in an accident.,Statute of Limitations,Definition,an,enactment,that restricts the time within which legal proceedings,may be initiated,Objective,to prevent claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time, or the death or disappearance of witnesses,Statute of Limitations,Function,The statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him after the appropriate time has elapsed.,Application,The defendant must raise the defense before the court upon answering the plaintiffs complaint.,Statute of Limitations,If not, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.,Tolling the statute,When the statute is tolled, the running of,limitations,is suspended until some event specified by law takes place.,Most jurisdictions provide that,the statute of,limitations is,tolled,under certain circumstances:,Statute of Limitations,The plaintiff is a,minor,.,The plaintiff has been deemed,insane,.,The plaintiff has been convicted of a,felony,and is imprisoned.,The defendant is in,bankruptcy,.,Shopkeepers Privilege,General,In some jurisdictions of the US, the courts recognize a,common law,shopkeepers privilege, under which a shopkeeper is allowed to detain a suspected,shoplifter,on store property for a reasonable period of time, so long as the shopkeeper has probable cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.,Shopkeepers Privilege,This privilege does not include the power of search.,Requisite conditions,Investigation on or near premises,The detention itself should be effected either on the store premises or in the immediate vicinity thereof.,Reasonable suspicion,The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting.,Shopkeepers Privilege,Reasonable force only,Only reasonable, non-deadly force is used to effect the detention.,Reasonable period and manner of detention,The detention itself may be for only the time necessary to make a reasonable investigation of the facts.,Property Torts,Trespass to Land,General,Trespass to land occurs when a person directly enters upon anothers land without permission, or remains upon the land, or places or projects any object upon the land.,The basis for this tort is the right to exclusive possession of the land.,Nature,This tort is,actionable per se,.,Trespass to Land,Damages are not required to be proven for intentional trespass.,Only when the entry is negligent is there any need to prove damages.,Intent,The intent requirement of trespass is only that the person intended to enter the property.,It is irrelevant whether or not the entry is a mistake, caused by ignorance of the ownership or the boundaries.,Trespass to Land,Note,The rights inherent in the possession of land extend above and below the surface.,Trespass to Chattels,Definition,the intentional interference with another persons lawful possession of a,chattel,(movable personal,property,),Interference,any physical contact (intermeddling) with the chattel in a quantifiable way,any dispossession of the chattel (whether by taking it, destroying it, or barring the owners access to it),Trespass to Chattels,Note,In cases of intermeddling, there needs to be actual harm sustained by the plaintiff in order for him to sue.,Damages,are limited to the actual harm (which can include economic loss as a result of the trespasse.g. loss of profit on a damaged chattel).,In cases of dispossession, the plaintiff is always entitled to damages even if no quantifiable harm can be proven.,Trespass to Chattels,Example,Herman sees his,War and Peace,sitting on a table. He picks up the book, puts it in his bag and goes home. In fact, the book belongs to Leon and Herman has mistaken it for his own copy.,In this case, Herman is liable for a trespass to chattels because he intended to take Leons book, even though his action was based on a reasonable mistake.,Conversion,General,Conversion occurs when someone wrongfully takes or uses property of another for their own purposes or destroys it or alters its nature.,Conversion and theft,Theft will also be conversion.,But not all conversions are thefts because conversion requires no element of dishonesty.,Conversion,Property subject to conversion,It must be personal property.,Real property cannot be lost and then found.,It must be tangible.,money, an animal, furniture, or tools,crops or timber (after they are severed from the ground),rights in a paper, such as a life insurance policy, a stock certificate, or a promissory note,Conversion,Examples,A person has anothers car towed away in order to take the parking place.,A dry cleaner mistakenly delivers a suit to the wrong customer.,A mechanic borrows a sports car he is supposed to repair without permission.,A neighbor lends her hedge trimmer to a friend, but the friend uses it to cut down a tree.,Trespass to Chattels,and,Conversion,General,The two concepts are closely related.,Similarity,Both include the wrongful, intentional interference of personal property.,Difference,They are different in degreethe damage done to the plaintiffs possession in a,conversion,case is more severe than in a,trespass,case.,Trespass to Chattels,and,Conversion,Application,In general, when an object is damaged but repairable,trespass to chattels,is the more appropriate tort. When something is destroyed or stolen,conversion,is more appropriate.,When,trespass,is found, a person can recover the value of the lost use of the itemand recover the item itself.,Conversion, instead, allows a person to recover the full value of the item.,Trespass to Chattels,and,Conversion,Example,Daphne hits Martys dog with her car. The dog suffers a broken leg. This would be an actionable,trespass to chattels,and Marty would be awarded damages commensurate with the harm done by Daphne.,Daphne hits Martys dog with her car. The dog dies. This would be an actionable,conversion,. Marty would be awarded,the dogs,full value.,Dignitary Torts,Defamation,Definition,the communication of a false statement that harms a persons reputation,Defamatory information must be communicated to a third person.,Types,slanderoral defamation (,spoken statements),libelwritten defamation (written, printed or broadcast words),Defamation,Public figure law of defamation,A public figure alleging libel must prove actual malice.,Public figures voluntarily place themselves in a position that invites close scrutiny.,Defamation,per se,Some categories of statements are considered defamatory,per se,injury is presumed and neednt be proven.,Defamation,a statement that negatively affects a persons reputation relating to his business or profession,allegations that a person is unchaste,allegations that a person is infected with a sexually transmitted disease,allegations that a person has committed a crime of moral turpitude (such as rape or incest),Defenses to claims of defamation,truth,Defamation,opinion,privilege,evidence given in court,statements made in a session of the legislature,Invasion of Privacy,Definition,the intrusion into the personal life of another, without just cause,Categories,intrusion of,solitude,actual physical or electronic intrusion into a persons private quarters,A person was undressing at home, and someone filmed this without telling the person.,Invasion of Privacy,public disclosure of private facts,the dissemination of truthful private information which a reasonable person would find objectionable,An unscrupulous reporter rummaged through a public figures garbage to find evidence of prescription drug use or other highly personal matters.,false light,the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory,Invasion of Privacy,False light cases are about damage to a persons personal feelings or dignity, whereas defamation is about damage to a persons reputation.,A reporter returned to the scene of a massive bridge collapse several years after the tragedy. The reporter attempted to interview the widow of a man who died in the crash. The widow and her children were not at home so the reporter fabricated a story about them which placed them in a false light in the public eye.,Invasion of Privacy,appropriation,the unauthorized use of a persons name or likeness to obtain some benefits,A local restaurant used a celebritys name or image in a commercial and implied an official endorsement.,Negligence,General,Definition,conduct,that breaches a standard of care deemed by the law as necessary to protect others from unreasonable risks of harm,generally expressed as a ,breach of a duty,Elements,The defendant owed a duty of care to the plaintiff;,General,the defendant,breached,that duty; and,as a result of the defendants,breach,of that duty, the plaintiff suffered injury.,Standard of Care,General,All people are under a duty to conduct themselves in such a manner as not to create unreasonable risks of physical harm to others.,During a trial, the conduct of the defendant is reviewed to determine if he or she has met the,reasonable person standard,.,Would a reasonable person have acted similarly under similar circumstances?,Standard of Care,Reasonable person,a hypothetical person in society who shows average care, skill or judgment in conduct,It is not an average or typical person.,It is a composite of a communitys judgment as to how a typical member of that community should behave in situations that might pose a threat of harm to the public.,Standard of Care,Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person.,Reasonable person standard,A person has acted negligently if she has departed from conduct expected of a reasonably prudent person acting under similar circumstances.,Standard of Care,It is a completely objective test under which subjective elements are normally not taken into account.,Subjective traits of the tortfeasor may be considered, but they are considered according to an objective standard.,Causation,General,To establish causation in negligence cases the plaintiff must prove that the defendants act was both the cause-in-fact and the proximate cause of his injuries.,Cause-in-fact,The but-for test,Would the plaintiff have been injured but for the act of the defendant?,Causation,The substantial factor test,Was the defendants action a substantial factor in causing the plaintiffs injury?,Proximate cause,The directness test,The defendants act is the proximate cause of the plaintiffs injury if there is an unbroken sequence of events between the act and the harm.,The foreseeability test,Causation,It is sufficient if a reasonable person would have foreseen the harmful results.,Intervening cause,an event which occurs after the defendants negligent act has occurred and which contributes to the injury,If the intervening cause was the proximate cause of the plaintiffs injury, the defendants act will not be considered the proximate cause.,Causation,If the intervening cause was foreseeable, the defendant will often be held liable for this additional harm.,NIED,General,short for,negligent infliction of emotional distress,a controversial,cause of action,available in nearly all,US states,but severely constrained and limited in the majority of them,NIED and IIED,In an action for NIED there is no need to prove intent to inflict distress.,NIED,An accidental infliction, if negligent, is sufficient to support a,cause of action,.,Underlying concept,One has a,legal duty,to use reasonable care to avoid causing,mental,distress,to another individual.,If one breaches this duty and unreasonably causes,mental,distress to another individual, he will be,liable,for,damages,to the injured individual.,Contributory Negligence,Definition,a,defense,that bars a,plaintiff,from recovery if his or her own acts or omissions contribute to the injury,Burden of proof,In some jurisdictions, the defendant has to prove the,negligence,of the plaintiff or claimant.,In others, the burden is on the plaintiff to disprove his own negligence.,Contributory Negligence,Disadvantage,It is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely.,Result,It has been deleted as a defense from the vast majority of statutes and replaced with comparative negligence.,Comparative Negligence,Definition,a defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiffs own negligence contributed to the injury,Types,Pure comparative negligence,If a plaintiff is 90% at fault he or she can still recover 10% of his losses.,Comparative Negligence,Partial comparative negligence,If a plaintiff is more than 50% at fault he or she can not recover.,Assumption of Risk,Definition,a,defense,that bars a,plaintiff,from recovery against a negligent tortfeasor if the plaintiff voluntarily and knowingly assumed the risks inherent to the activity in which he participated,Rationale,Upon assumption of the risk, there is no longer a,duty of care,running from the defendant to the plaintiff.,Assumption of Risk,Without a duty owed by the defendant, there can be no negligence on his part.,Classifications,Express assumption of risk,occurs when a plaintiff explicitly agrees to take on a risk.,This is often done through a contract.,Implied assumption of risk,occurs when the plaintiffs actions imply that he has consented to assume the risk.,Assumption of Risk,Example,Joe broke his arm when he fell into a manhole while walking down the street in a town. The area where the manhole was had been roped off and large signs posted warning pedestrians to avoid it.,In its defense, the town may raise the doctrine of assumption of risk.,Strict Liability,Torts,General,Strict liability,Strict liability is liability without fault (such as negligence or tortious intent).,Under certain circumstances, a plaintiff may be allowed recovery even if there is no fault on the part of the defendant.,Application,Strict liability is often imposed on those engaged in abnormally dangerous activities.,General,Strict liability is also imposed on sellers and manufacturers of products.,
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