03 Oct Deal with the subject of Torts & Negligence Strict Liability and Product Liability which is best described as wrongs. You are to respond to this assignment by telling me, IN DETAIL, what you learn
Deal with the subject of Torts & Negligence Strict Liability and Product Liability which is best described as wrongs. You are to respond to this assignment by telling me, IN DETAIL, what you learned from each chapter separately. Again, BE COMPLETE. This assignment will be graded with points. Therefore, it is in your best interest to complete it.
200 words or more
Intentional Torts
OBE 118, Section 10, Fall 2004
Professor McKinsey
“Intended” Private Wrongs
Understanding Torts
Torts are private wrongs
Torts have elements that essentially must be memorized
Definitions often contain the elements.
Elements are like the ingredients in cake, skip one and you do not have a cake (or a tort)
Intentional Torts
Wrongs where the person intends to do an act which will invade an interest of another and either knows or should know there is an appreciable risk to another from the act
Assault
An intentional, un-privileged, un-excused, non-consensual act that (the act)
creates in the mind of another person apprehension or fear of an immediate harmful and offensive touching (the injury).
4
Mere words not usually enough
Battery
An intentional, un-privileged, un-excused, non-consensual harmful or offensive contact of another.
5
Cal State typical of state differences
Contact rules
Transferred intent doctrine
False Imprisonment
The intentional un-privileged, non-consensual, confinement of another by physical barriers or by physical force or threats of force
Shopkeepers Privilege:
Injury? –
6
Confinement can be via threat
Intentional Infliction of Emotional Distress (IIED)
Outrageous behavior resulting in severe emotional distress to another
Usually physical symptoms required
Intent? –
Defamation
A false, unprivileged statement of fact communicated to a third person, which causes damage to a person’s or a product’s reputation.
Slander- transitory, oral or spoken
Libel – more permanent, written form
Intent? –
Injury? – To reputation by exposing to hatred, ridicule or contempt
Defamation- Privilege
Absolute privilege
Governmental official performing duty
Members of congress
Judicial proceedings
Qualified privilege (“lose if abused”)
Protect legitimate business interests
Protect ones own personal interests
9
Conditional priv= to interested person by person in position that makes inquiry reasonable; credit report
Defamation- Public Figures
Public figures: must show actual malice on the part of tortfeasor
Media has a qualified privilege to defame public figures
Actual malice:
10
Conditional priv= to interested person by person in position that makes inquiry reasonable; credit report
Fraud
Intentional misrepresentation of a material fact which is justifiably relied upon by another and causes damages.
Intent?- Two of them!
Intent to mislead, (knowledge of falseness)
Intent to induce reliance on misrepresentation
Business Torts
Tortious Interference with a Contract
(getting someone to breach a contract)
Requires knowing inducement of a party to breach a contract
Tortious Interference with a Prospective Advantage
(getting someone to drop out of a probable or existing business relationship with another)
The plaintiff must have a definite and reasonable expectation of gaining an economic advantage
Invasive Torts
Intrusion
(ex:
Disclosure of Embarrassing Private Facts
(ex:
False Light
(ex:
Commercial Exploitation
(ex:
Damages
Two basic categories of damages
Punish- “Punitive Damages”
Compensate for injuries- “Compensatory Damages”
The Bigger Picture of Torts
Traditional “Common Law” Torts
New
“Statutory”
Torts
When people can require compensation for injuries caused by another
Elements of Negligence
Duty of care
(Damages)
Breach of the duty of care
Injury (Actual cause)
Proximate cause
Duty of care
Act as carefully as The Reasonable Person would under similar circumstances
Was the harm that resulted foreseeable?
Proximate Cause
Is it fair to say the act was the cause?
Factors
“Fairness”
Summary of Basic Negligence
Duty of care
Breach of the duty of care
Injury (Actual cause)
Proximate cause
(Damages)
Special Effects on Liability
Intervening Causes
Shared Responsibility
A separate event between defendants act and plaintiff’s injury
Special Forms of Negligence
Res ipsa loquitor
Negligence per se
An act that is “automatically” negligence
The thing speaks for itself –
Premises Liability
Premises Liability
Duty of care is determined with an additional factor: the injured person’s status on the premises:
Trespasser to land
Licensee (Guests of homeowners)
Invitees (Customers at business premises)
Premises Negligence
Licensee
Invitee
Trespassers
Minimal duty
Young children are exception
No traps or spring guns
Must warn of human-made risks not likely to discover
Must warn of known risks or fix them
High duty of care
Must inspect premises
Defenses to Negligence
Assumed the risk
Comparative negligence
Strict Liability vs. Other Types of Torts
Intentional Torts
Negligence
Strict Liability
Did Actor Intend Act or the Harm that resulted from the act?
Would a Reasonable Person Do the act that caused the harm?
Did an injury occur?
Strict Liability
No need to prove intent or negligence
Often no concern about fault at all
Three Basic Examples
Ultra-hazardous Activities
Harboring wild animals
Mining
Explosives
PL based on Strict Liability
3. Product unreasonably dangerous*
1. D sold product in defective condition
2. D normally in business of selling product
4. P suffers physical harm through use of product
5. Defective condition is proximate cause
6. No substantial changes to product since sold
(Based on the Restatement (2nd) of Torts)
What is a Defective Product?
1) Actual defect (flaw in manufacturing).
3 General Ways a Product can be Defective
2) Design defect.
3) Failure to warn.
Product built as designed, design had defect.
Product not built as intended.
A different approach usually used when product had dangers inherent to purpose or type of product.
Torts Review
Intentional Torts
Elements! (and don’t forget how intent works)
Traditional Torts
Newer Torts
Negligence
Basic Negligence
Special situations (Neg per se, res ipsa loquitor, premises liability
Defenses and Liability (Assumed the risk, Comparative neg, JSL)
Strict Liability
Damages
Course Review
Basic Legal Principles
Law versus Ethics, what law is
Authority of law
Constitution and Governmental Organization
Sources and Types of Law
Legislative versus Judicative versus Administrative
Federal versus State
Courts versus ADR versus Agency proceedings
Torts
Intentional Torts
Negligence
Strict Liability
Damages
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