Term
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Definition
A civil wrong
plaintiff is after money
purpose is financial recovery |
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Definition
Designed to compensate
Medical Expenses |
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Term
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Definition
Damages that are designed to punish
Paying additional damages to punish |
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Term
| Who is the plaintiff in torts? |
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Definition
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Term
| What is the burden of proof in torts? |
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Definition
| preponderance of the evidence (51%) |
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Term
| What is the jury vote in a tort? |
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Definition
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Term
| What are the 3 types of torts? |
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Definition
Intentional
Negligence
Strict Liability |
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Term
| What are the requirements of Battery? (Intentional Tort) |
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Definition
-Intentional
-Harmful or offensive CONTACT
-With another
-Without Consent |
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Term
| What are the requirements of Assault? |
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Definition
-Intentinally
-Placing another
-In APPREHENSION (belief that contact is about to happen)
-Of imminent (immediate) battery |
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Term
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Definition
-Intentional
-Knowing complete confinement
-Appreciable period of time
-Without consent
Ex. Locking up someone in a trunk |
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Term
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Definition
-Intentional
-Publication (has to be heard or read by a third party)
-False and defamatory statement(people think less of you)
-About another
Caused by false statements about them
Designed to protect a person's reputation from damage |
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Term
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Definition
Defamation in permanent form (writing)
Can be radio or television broadcast or internet communications also |
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Definition
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Term
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Definition
Dealing with someone who is open to a higher level of scrutiny (the president)--Public figures or elected officials
-Intentional
-Publication
-False and defamatory statement
-About another
----AND----
-Actual Malice
(Either a person published it knowing it was false, and published it anyways, or they didn't bother to check it out to see if what they heard was factual)
If they want to sue, they have a higher burden |
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Term
| what is an absolute defense in a defamation case? |
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Definition
TRUTH
You cannot be sued and lose in defamation if the story is true
It HAS to be a false statement
Libel Example:
I go to a game and a picture of me holding a Budweiser beer shows up in the paper the next day. My dad sees the paper and thinks less of me. If I sue them in libel, do I win or lose? LOSE because Truth is an absolute defense. |
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Term
| In libel your question is: |
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Definition
Is this accusation true?
Yes
So she can't win in libel
Have to sue in something called "invasion of privacy" |
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Term
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Definition
INTENTIONALLY intruding upon seclusion of another
----(How the Royal family is suing because the photographs taken were intruding on seclusion)
Intentional public disclosure of private facts
Ex. "susan victim cannot balance a checking account"
--Has a printout of the 150 checks she has bounced in the past year
--People now think less of her
--Can't get into libel because it's true, so you go into invasion of privacy |
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Term
| Examples of Intentional commercial publication of names or likeness without consent |
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Definition
Nescafe--- contracts out picture for a certain amount of time and find pictures on a product years after the contract is up. Sued and won for $2-3 million
Girls Gone Wild-- Does girls gone wild get written consents from all the girls? If they publish without consent can people sue with libel? NO, they have to do invasion of privacy |
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Term
| What's an exception to invasion of privacy? |
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Definition
THE PUBLIC'S RIGHT TO KNOW
This is a defense that can get around invasion of privacy |
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Term
| Trespass to Land Examples |
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Definition
Ex. 1:
-Wyatt throws parties at 11pm on Friday
-Neighbor taps on door to tell him to quiet down
-Throws another loud party the next week
-Neighbor comes again
-Neighbor tired of it, shoots Wyatt's house with a cannon and the house falls down
-Didn't go on his property
-Trespassing? Yes.
Ex. 2:
-Cutting through yard but didn't disturb anything
-Trespass? Yes
Ex. 3:
-Threw something over shoulder and it landed in the yard of another
-Trespass? NO, not intentional |
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Term
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Definition
-Intentional
-Intrusion
-Upon the real property of another
-Without consent
To clarify: Intrusion is phyically entering upon the property of another (land) causing something to enter and remaining unlawfully (legal to be there at first but not legal for you to stay) |
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Term
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Definition
Things attached to the ground or something so close that's attached to it (i.e. the roof of a building still counts because it's attached to the floor that's attached to the ground)
Does NOT count mobile things |
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Term
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Definition
-Intentionally causes
-Substantial and unreasonable interference
-With plaintiff's used and enjoyment of their land
Ex. building a hog farm right across the property line and it's smell causes you to not enjoy your land |
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Term
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Definition
-Intentionally
-Exercise possession or control
-Over plaintiff's personal property
-Without plaintiff's consent
(deciding you don't want to walk home so you hop in someone else's car and drive home) |
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Term
| Negligence is a higher/lower level tort? |
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Definition
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Term
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Definition
Aiming to shoot Megan, but misses and hits Troy.
NOT assault or battery because it wasn't intentional |
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Term
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Definition
Have to prove:
-A NEGLIGENT ACT
-Which was the
-Proximate cause of injury/damage/loss |
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Term
| Reasonable Person Standard |
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Definition
-If the Defendant did LESS
-Than what a REASONABLE person would do
-in the same or similar circumstances
-Less=breach of duty
Ex. Banana Example: Pick up banana's vs. wiping the floor vs. mopping the floor |
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Term
| What are the exceptions to the Reasonable Person Test? |
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Definition
Children
Physical Limitation |
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Term
| Children: Exception to the reasonable person test |
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Definition
Test: reasonable child of same age, intelligence
-Compare to other 7 year olds |
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Term
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Definition
Test: Reasonable person with the same limitation
-Blind person: don't compare him to sighted people
-Wheelchair bound: don't compare him to people with full walking ability |
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Term
| Duties to those on property: What are the 3 categories? |
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Definition
Invitee
Licensee
Trespasser |
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Term
| What is an Invitee and what DUTY does the company have to their invitees? |
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Definition
Someone who enters for a business or public purpose- store has to be open
DUTY:
-Must PROTECT them or warn the of KNOWN conditions or
-Conditions that you should REASONABLY DISCOVER
Warnings:
-Pictures help protect ocmpany from people who can't read
-Warning signs with multiple languages on it |
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Term
| What is a licensee and what is the DUTY of the person who invites a licencee? |
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Definition
Licencee: Enter for their own personal purpose with the CONSENT of the landowner
DUTY:
-Warn/Protect from KNOWN dangerous conditions
-That the licensee is UNLIKELY to discover
EX. Covering a big hole up with a rug; had a condition he knew about but didn't warn him; liable
EX. Walking onto a covered up hole in the floor; NOT: seeing a hole in the floor and knowing it's there; unlikely to discover: ice patch in the middle of driveway==you're liable if someone gets hurt
Can't sue if there is a 4x4 box in the middle of the room and you trip over it |
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Term
| What is a trespasser and what is the DUTY of the property owner a trespasser is on? |
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Definition
Trespasser: Enter without consent of owner
DUTY:
Cannot willfully injure the trespasser
Ex. I break in, he blows my legs off. The homeowner cannot willfully injure; use deadly force to protect property |
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Term
| In order to recover in negligence you have to have 2 things: |
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Definition
Negligent act
AND
Actual and proximate cause of injury (did the act lead to the injury) |
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Term
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Definition
The actual action that caused the injury
We don't use this as much as proximate, b/c with actual cause, you can trace actions waaay back and make someone guilty of what happened as a result of a huge chain reaction |
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Term
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Definition
Is it the kind of injury that you can expect from the actual act?
This injury occurred because of a negligent act
Ex. Throwing juice into air, hitting ril in face, causing a chain effect causing someone to cut off their finger-- Was somebody losing their finger on a cutting board the normal injury you could expect from someone juggling juice? NO---NOT PROXIMATE CAUSE
- Negligence: you're only liable to proximate cause |
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Term
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Definition
Occurs AFTER defendant's negligent act
Ex. Get hit by a car, get put into an ambulance, drunk ambulance driver speeds and jumps a removed bridge, rolls truck and hurts you more
-Contribues to the injury
-If NOT FORSEEABLE, defendant is not liable for the additional injury
-Ex Raking yard, decides to burn the leaves w/ gasoline and a match, goes inside and leaves the burning pile. Am I negligent? YES
--Same fire- wind comes along and moves fire to someone's house and burns it down. Was it the proximate cause? YES defense: intervening force-wind--- is wond coming along to blow leaves a forceeable force: YES.. Can't use as a defense |
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Term
| What are the 2 types of negligence defenses? |
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Definition
Contributory Negligence
Comparative Negligence |
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Term
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Definition
-Plaintiff was also negligent
-Plaintiff receives NOTHING
Not many states use this anymore
Ex. Ya i was drunk, blew a stop sign and texting, but the plaintiff was also speeding.... result: Plaintiff gets NOTHING |
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Term
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Definition
-We compare the negligence
-What percentage was the plaintiffs/ defendant's fault?
-BOTH parties negligence
-Defendant pays the percentage of damages he caused
-Plaintiff's receives= his amount of damages multiplied by the percentage of fault allocated to the defendant
Ex:
75% defendant's fault
$15,000 Plaintiff's damages
Multiply the 2 |
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Term
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Definition
Liability without determining fault
-Risk of harm
-Risk cannot be eliminated
-Even with reasonable care
If you are in strict liability, the defendant always pays; easiest example is imploding a building
Injury= Defendant pays
Ex. Beneficial Activities
-Imploding buildings
-Anything where you are required to blow something up
-Crop dusting
-Parachuting and Bungee jumping |
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Term
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Definition
| Protection of intellectual property is protected by patents, copyrights, and trademarks |
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Term
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Definition
For an INVENTION or a TANGIBLE THING
Radar detector example
--The problem is that once you create it, you might not want to put it out in the public so nobody takes it; this is why you get patents.
Make public:
-EXCLUSIVE right
-To make, use, and sell
Exclusive for 20 years
---Patent infringement if someone copies your product while under patent
Ex. Apple awarded $1 billion in Samsung patent infringement case. A jur finds that South Korean smartphone company Samsung copied the look and feel of Apple's iPhone, but an appeal is likely |
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Term
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Definition
-Protects an ORIGINAL WORK OF AUTHORSHIP
-Purpose is to protect and give EXCLUSIVE RIGHTS
Lasts life of author plus 50 years
--Sonny Bono Act-- added 20 years--total of 70 years
If violated: sue for copyright infringement |
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Term
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Definition
Used for a word, name, or a symbol
Which is used to DISTINGUISH OR IDENTIFY
Exclusive rights:
10 years (but can renew)
Ex:
Disney trademarked font
McDonald's logo
---Can't use it without permission |
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Term
| Losing Trademark Protection |
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Definition
Not renewed within statutory period
Mark acquires a generic meaning
Ex. Kleenex, Esscalator, Aspirin, Thermos |
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Term
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Definition
What a reasonabe person would do
The line is lower as you move the bar from duties of Invitee, Licencee, and Intruder |
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Term
| Any time you break the law you are ____________. |
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Definition
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Term
| Define a tort and the requirement for an act to be an intentiona tort |
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Definition
Tort: A civil Wrong
Requirement for act to be an intentiona tort: Something that is done on purpose; with intent |
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Term
| List all the intentional torts talked about in class |
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Definition
Assault
Battery
Conversion
Defamation 1
Defamation 2
False imprisonment
Invasion of Privacy
Private Nuisance
Trespass to Land |
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Term
| list to the Defenses to intentional torts |
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Definition
Assalt: Unreasonable apprehension
Battery: Consent
Defamation: Truth
Invasion of privacy: The publics right to know |
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Term
| Explain how an intentinal tort can also cauuse a negligence tort to a third party |
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Definition
| If someone was INTENTIONALLY trying to hurt someone else, but ended up hurting a third party-UNINTENTINALLY instead, you would have both, an intentional tort from the person you meant to hurt and a negligence tort from the person you didn't mean to hurt |
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Term
| Discuss the intervening force rule and how it applies to a tort claim. |
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Definition
Intervening force: Occurs AFTER defendant's negligent act, contributes to the plaintiff's injury
If it is NOT forseeable; the defendant is NOT liable for the additional injury |
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