Chapter 5 - Intentional Torts and Negligence Flashcards Preview

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Flashcards in Chapter 5 - Intentional Torts and Negligence Deck (43)
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Tort

A wrong. There are three categories of torts: (1) intentional torts, (2) unintentional torts (negligence), and (3) strict liability.

1

Intentional tort

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff's injuries.

2

Assault

(1) The threat of immediate harm or offensive contact of (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary.

3

Battery

Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury.

4

Transferred intent doctrine

Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim.

5

False imprisonment

The intentional confinement or restraint of another person without authority of justification and without that person's consent.

6

Merchant protection statutes (shopkeeper's privilege)

Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) suspects are detained for only a reasonable time, and (3) investigations are conducted in a reasonable manner.

7

Misappropriation of the right to publicity (tort of appreciation)

An attempt by another person to appropriate a living person's name or identity for commercial purposes.

8

Invasion of the right to privacy

the unwarranted and undesired publicity of a private fact about a person. The fact does not have to be untrue.

9

In cases of misappropriation of the right to publicity (tort of appropriation) the plaintiff can:

1.) recover the unauthorized profits made by the offending party and
2.) obtain an injunction preventing further unauthorized use of his or her name or identity.

11

Defamation of character

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally of accidentally published to a third party.

12

Libel

A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

13

Slander

Oral defamation of character

14

To prove disparagement (trade libel, product disparagement, and slander of title) the plaintiff must show the defendant:

1.) made an untrue statement about the plaintiff's products, services, property, or business reputation
2.) published that untrue statement to a third party
3.) knew that statement was not true
4.) made that statement maliciously (intent to injure the plaintiff)

15

Disparagement (trade libel, product disparagement, and slander of title)

False statements about a competitor's products, services, property, or business reputation.

16

To prove intentional misrepresentation (fraud or deceit) what elements are required (4 items):

1.) The wrongdoer made a false representation of a material fact.
2.) The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party.
3.) The innocent party justifiable relied on the misrepresentation.
4.) The innocent party was injured.

18

Intentional misrepresentation (fraud or deceit)

The intentional defrauding of a person out of money, property, or something else of value.

20

To prove malicious prosecution, the plaintiff is required to show (5 items):

1.) The plaintiff in the original lawsuit (now defendant) instituted or was responsible for instituting the original lawsuit.
2.) There was no probable cause for the first lawsuit (frivolous lawsuit)
3.) The plaintiff in the original action brought it with malice. (Caution: this is a very difficult element to prove.)
4.) the original lawsuit was terminated in favor of the original defendant (now the plaintiff).
5.) The current plaintiff suffered injury as a result of the original lawsuit.

21

Scienter

The wrongdoer has knowledge that the representation was false and intended to deceive the innocent party (intentional conduct).

22

Intentional infliction of emotional distress (tort of outrage)

A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress.

23

Malicious prosecution

A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.

25

Unintentional tort (negligence)

A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

26

To prove negligence the plaintiff must prove (5 items):

1.) The defendant owed a duty of care to the plaintiff
2.) The defendant breached this duty
3.) The plaintiff suffered injury
4.) The defendant's negligent act was the actual cause (or causation in fact) of the plaintiff's injuries.
5.) the defendant's negligent act was the proximate cause (or legal cause) of the plaintiff's injuries. The defendant is liable only for the foreseeable consequences of his or her negligent act.

28

Duty of care

The obligation people owe each other not to cause any unreasonable harm or risk of harm.

29

Reasonable person standard

A test used to determine whether a defendant owes a duty of care. This test measures the defendant's conduct against how an objective, careful, and conscientious person would have acted in the same circumstances.

30

Breach of the duty of care

A failure to exercise care or to act as a reasonable person would act.

31

Injury

A plaintiff's personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant's negligence.

32

Actual cause (causation in fact)

The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven.

33

To prove negligence per se, the plaintiff must show (3 items):

1.) a statute existed
2.) the statute was enacted to prevent this type of injury suffered
3.) the plaintiff was within a class of persons meant to be protected by the statute.

34

Res ipsa loquitur

A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone's negligence. The burden switches to the defendant to prove that he or she was not negligent.