Transcript Chapter 1
Chapter 5
Torts: Intentional, Negligent, and Strict Liability
Torts
A
TORT
is a civil wrong based on the breach of duty not created in contract or criminal law A
TORT
is a wrong against an individual versus a
CRIME
which is against a society as a whole For a
TORT
to exist, there must be a duty owed from the defendant to the plaintiff
INTENTIONAL UNINTENTIONAL
I. Intentional Torts Against Persons
Fraud/Deceit
Remedies
Defamation
Intentional Infliction of Emotional Distress
Assault and Battery
False Imprisonment
Invasion of Privacy
A. Fraud / Deceit
FRAUD
is the misrepresentation of a material fact made with both the knowledge of falsity and the intent to deceive, as well as damages suffered [CC § 1709]
1.
MISREPRESENTATION
The representation made by the defendant must be proved to be false If a fiduciary relationship exists, then you must tell the other person of relevant information even though they don’t ask for it It is possible for fraud to be committed through conduct
A. Fraud / Deceit
(cont.)
2.
MATERIAL –
something is material if it would influence a reasonable person’s decision
3.
FACT –
the misrepresentation must be a fact, not of an opinion [CC § 1572(1)]
When one party possesses superior knowledge or special information regarding the subject of representation, a representation made by that party will be treated as a representation of fact
A. Fraud / Deceit
(cont.)
4.
KNOWLEDGE –
often referred to as
SCIENTER
or “Guilty Knowledge”
5.
INTENT –
the court determines whether the representation was made with the purpose of getting the person to take action based on the representation
6.
RELIANCE –
if there is no reliance upon the representation by the plaintiff, there is no fraud, even if the representation is false
A. Fraud / Deceit
(cont.)
7.
INJURY –
if the plaintiff has not suffered any damages, there is no cause of action for fraud
8.
NEGLIGENT MISREPRESENTATION –
occurs if a person makes a statement of fact that is not true, having no reasonable ground for believing it to be true
B. Remedies
There are 2 remedies (rescission and affirmance) available to a victim of fraud
RESCISSION OF THE CONTRACT
AFFIRMANCE OF THE CONTRACT
PUNITIVE DAMAGES
C. Defamation
1.
DEFAMATION –
occurs when a person’s reputation is harmed
DEFENSES –
The best defense to a claim of defamation is that the statement was true
PRIVILEGE
ABSOLUTE PRIVILEGE
– exists where publication has been made in the proper discharge of an official duty or in any legislative, judicial, or other official proceeding authorized by law
QUALIFIED PRIVILEGE
present
-
offers protection only if malice is not
MALICE
– a feeling of hatred or ill will toward the plaintiff
Slander
– is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1.
2.
3.
4.
5.
Charges a person with a crime, or with having been indicted, convicted, or punished for crime Imputes in him the present existence of an infectious, contagious, or loathsome disease Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits Imputes to him impotence or a want of chastity Which, by natural consequence, causes actual damage [CC § 46]
D. Intentional Infliction of Emotional Distress
This tort is of increasing importance to business people today More and more people claim actions of others have caused them extreme stress When mental suffering has been caused by intentional and outrageous conduct, damage may be awarded
E. Assault and Battery
1.
ASSAULT –
of a battery occurs when a person is in apprehension
2.
BATTERY –
occurs when the defendant intentionally, and without consent or privilege, commits an act that results in a harmful or offensive contact with the plaintiff that causes damage, loss or harm
3.
Both assault and battery are crimes as well as torts
DEFENSES – Consent Privilege
F. False Imprisonment
Seldom arises in a business setting “the unlawful violation of the personal liberty of another” [PC § 236]
G. Invasion of Privacy
1.
2.
3.
4.
In California, the right of privacy is a constitutional right. The
RIGHT OF PRIVACY
entitles us to be free from physical or electronic intrusions or invasions
INTRUSION –
plaintiff must show that invasion or intrusion was highly offensive to a reasonable person
PUBLIC DISCLOSURE OF PRIVATE FACTS
PLACED IN FALSE LIGHT – Equivalent to a libel claim
Highly offensive to a person of ordinary sensibilities and broadly published COMMERCIAL APPROPRIATION OF PLAINTIFF’S NAME OF LIKENESS
II. Intentional Torts Against Property
Trespass to Land
Nuisance
Conversion
A. Trespass to Land
When there is an unlawful interference with another person’s property, a trespass has occurred May be intentional, negligent, or reckless
ACTUAL DAMAGES
NOMINAL DAMAGES
DEFENSES –
Consent Necessity
B. Nuisance
Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, or any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance [CC § 3479]
C. Conversion
Exercising the wrongful dominion over the personal property of another
DOMINION
refers to the person’s ownership of the property or his or her right to the property A conversion infers that the person committing the conversion has not simply damaged the property but has impaired the ownership or right to the property
III. Negligence
Duty
Breach
Causation
Injury to the Plaintiff
Negligence Per Se
Defenses
Assumption of the Risk
Negligence
The tort of
NEGLIGENCE
occurs when someone fails to exercise care under circumstances where they owe a duty of reasonable care to those around them The 4 basic elements that must be proved in a successful claim of negligence are: 2.
3.
4.
1.
Defendant owed a legal duty to the plaintiff to use ordinary care; Defendant breached that duty that was owed to plaintiff; The breach was the cause, and The plaintiff suffered injury as a result of the breach
A. Duty
Civil Code Section 1714 imposes a duty on all of us to use ordinary care in our activities and daily life When the defendant is able to foresee a risk, he is expected to mitigate his actions so that the plaintiff is not harmed
B. Breach
When the defendant fails to exercise the level of care called for under the circumstances, he will be found to have
BREACHED
his duty
C. Causation
The plaintiff must also prove that the defendant’s carelessness caused the injuries suffered In California, the
SUBSTANTIAL FACTOR
standard is used to determine cause in fact (“but for” test)
PROXIMATE CAUSE
is the other part of causation which simply stated, if the injuries of the plaintiff were foreseeable to the defendant, there is proximate cause.
D. Injury to the Plaintiff
If the plaintiff suffers no harm from the defendant’s action, liability will not be present Without damages, negligent acts do not lead to a legal cause of action
E. Negligence Per Se
Where the defendant’s actions violate a statute, ordinance, or regulation of a public entity, it will be presumed that the defendant failed to exercise due care This presumption will be made when the following are present: 1.
2.
3.
If the violation caused death or injury to a person or property; The death or injury resulted from an occurrence of the nature that the statute, ordinance, or regulation was designed to prevent; The person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted [EvC § 669]
F. Defenses
COMPARATIVE NEGLIGENCE
the plaintiff.
is the predominant defense used in California. In determining the liability of the defendant under pure comparative negligence, the damages will be diminished in proportion to the amount of fault attributable to
CONTRIBUTORY NEGLIGENCE
is an “all or nothing” rule that prevents the plaintiff from recovering any damages from a negligent defendant if the plaintiff has also failed to exercise due care and this failure contributes to his injuries.
G. Assumption of the Risk
PRIMARY ASSUMPTION OF THE RISK
harm occurs when the plaintiff voluntarily participates in the activity and there is no legal duty owed by the defendant to protect the plaintiff from
SECONDARY ASSUMPTION OF THE RISK
negligent actions occurs when the defendant owes the plaintiff a duty of care but the plaintiff knowingly encounters the risk created by the defendant’s
IV. Strict Liability
Strict Liability
When one engages in an ultra-hazardous or abnormally dangerous activity, the courts will impose liability regardless of fault
Chapter Summary
Intentional Torts Against Persons
Fraud / Deceit Remedies Defamation Intentional Infliction of Emotion Distress Assault & Battery False Imprisonment Invasion of Privacy
Negligence
Duty Breach Causation Injury to the Plaintiff Negligence Per Se Defenses Assumption of the Risk
Intentional Torts Against Property
Trespass to Land Nuisance Conversion
Strict Liability