Chapter 7 Introduction to Tort Law

Definition of a tort: A wrong, for which the law will provide a remedy, but is not a breach of contract. Both compensatory and punitive damages may be available. Frequently a crime is also a tort. Intentional Torts Assault and Battery: Threat and contact False Imprisonment: If the plaintiff was unlawfully restrained. Lester v. Albers Super Market Inc.(page 262) Intentional Infliction of Emotional Distress: If there is extreme or outrageous conduct. Trespass: Protection of property owners. In some states: a trespasser is only protected against gross negligence of the land owner; in other states, the land owner may owe a duty of due care. Intentional Interference with Contractual Relations: When the defendant improperly introduces a third party to breach a contract or make performance of the contract impossible. Malicious Prosecution: Wrongful civil proceedings for an improper purpose with no reasonable belief that the cause is legally or factually well grounded (strike suits). Defamation: If oral, slander; if written: libel. The harming of another persons reputation. Truth is generally an absolute defense. A. Negligence Negligence is conduct that falls below the level necessary to protect others against unreasonable harm. Elements 1. Standard of care/Breach of duty of care Everybody has a duty to behave in such a manner as to avoid risk of harm to others. Everyone is obliged to act like a reasonable person of ordinary prudence in similar circumstances. The purpose of the negligence standard is to protect others against the risk of injury that foreseeably would ensue from unreasonably dangerous conduct. Whitlock v. University of Denver (page 264) 2. Damages: property, physical damage or death impact rule if the plaintiff wishes to claim for emotional injury the plaintiff must also have physical injuries. 3. Causation a) Actual cause: but for test. b) Proximate Cause: it is unfair to hold a defendant liable for remote, unforeseeable and bizarre results. The court only imposes liability for natural and probable consequences, those within the scope of the foreseeable risk. There is liability only if the damages are a natural and continuous consequence of the act. Palsgraf v. Long Island RR (page 270) Problems of proof: Negligence per se: the violation of a statute is proof of the breach of the duty of care if the person is in the class to be protected and the kind of harm anticipated occurs Res Ipsa Loquitur (the thing speaks for itself): if the defendant had exclusive control of the instrumentality, harm would ordinary not occur without negligence and the plaintiff was not responsible. This shifts the burden of proof to the defendant, who must prove that s/he was not negligent. Negligence defences (excuses) comparative negligence: fault is allocated between the parties assumption of risk: voluntary consent to a known danger B. Strict liability Strict liability is liability without fault imposed for reasons of social policy. Abnormally dangerous activities Holding of inherently dangerous animals Klein v. Pyrodyne Corp.(page 273) Product Liability: If someone places a product, which is defective, into the stream of commerce s/he is liable for injuries caused if it reaches the consumer without substantial change in its condition. A product can be defective due to defective design defective assembly defective warnings defense: abnormal use Respondeat superior the employer is liable for torts committed by his/her employee within the scope of employment detour/frolic coming and going rule lunch hour rule dual purpose rule torts committed on the occasion of employment/torts committed within the scope of employment

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