write an one page reflection

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When such a wrong—a tort--has occurred, it happens either intentionally – meaning the wrongful conduct was committed on purpose – or negligently – meaning the conduct was an accident. The law also recognizes a third category of tort where the responsible party neither intentionally or accidentally did anything wrong. The law recognizes certain times where tort liability will be imposed on a party even though they did not act wrongfully. This is called strict liability. We’ll look some more at all three categories.

Intentional Torts

Deliberate

Action

Causes

INJURY

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Intentional Torts Against Persons

• Law protects a person from unauthorized touching, restraint, or other contact (assault, battery, false imprisonment)

• Law protects a person’s reputation and privacy (defamation – libel and slander)

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Intentional Torts Against Persons (continued)

• Assault
• Threat of immediate harm or offensive contact; or
• Any action that arouses reasonable apprehension of imminent harm.
• Actual physical contact is unnecessary.

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Intentional Torts Against Persons (continued)

• Battery
• Unauthorized and harmful or offensive physical contact with another person.
• Direct physical contact between victim and perpetrator unnecessary.
• E.g., throwing a rock, poisoning a drink as battery.
• May accompany assault.

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Intentional Torts Against Persons (continued)

• False Imprisonment
• Intentional confinement or restraint of another person without authority or justification and without that person’s consent.
• Physical force
• Barriers
• Threats of physical violence
• False arrest

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Intentional Torts Against Persons (continued)

• False Imprisonment (continued)
• Threat of future harm or moral pressure not enough.
• Must be complete imprisonment.
• Locking only one of several doors not sufficient.

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Intentional Torts Against Persons (continued)

• False Imprisonment (continued)
• Merchant Protection Statutes - merchants may stop, detain, and investigate suspected shoplifters if:
• There are reasonable grounds for suspicion,
• Suspects are detained for only reasonable time, and
• Investigations are conducted in reasonable manner.

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Intentional Torts Against Persons (continued)

• Invasion of Privacy
• Violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity (right to be left alone).
• E.g., secretly taking photos with cell phone camera in locker room; wiretapping a telephone; or reading person’s email without authorization
• Placing person in a “false light.”
• E.g. “Hurt Locker” case; signing a person’s name to objectionable letter.

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Intentional Torts (cont.)

• Misappropriation of the right to publicity
• Attempt by another person to appropriate a living person’s name or identity for commercial purposes
• Also called tort of appropriation
• Plaintiff’s recourse – Recover the unauthorized profits made by the offender
• Obtain an injunction preventing further unauthorized use of his or her name or identity

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Intentional Torts Against Persons (continued)

• Defamation
• Plaintiff must prove:
• Defendant made an untrue statement of fact about plaintiff; and
• Statement was intentionally or accidentally published to a third party.

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Intentional Torts Against Persons (continued)

• Defamation (continued)
• Slander – spoken defamation.
• Libel – written/published defamation (false statement appears in a letter, newspaper, magazine, book, photo, video, etc.)

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Intentional Torts Against Persons (continued)

• Defamation (continued)
• Public officials, public figures cannot recover for defamation unless they can prove that the defendant acted with actual malice.
• Elected officials, movie stars, sports figures, other celebrities

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“Comes Now, Plaintiff, Jack Ass”

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Intentional Torts Against Persons (continued)

• Fraud (Intentional Misrepresentation):
• Defendant made a false representation of material fact.
• Defendant knew representation was false and intended to deceive (scienter).
• Plaintiff justifiably relied on misrepresentation.
• Plaintiff actually injured/incurred monetary losses.

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Intentional Torts Against Persons (continued)

• Intentional Infliction of Emotional Distress
• Defendant’s extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person.
• E.g., outrageous collection agency practices
• Also known as tort of outrage.

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Intentional Torts Against Persons (continued)

• Malicious Prosecution
• Frivolous lawsuit maliciously brought.
• Prevailing defendant sues original plaintiff to recover damages for injuries.
• Difficult to prove.

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Business Torts

• Product Disparagement, Trade Libel, Slander of Title
• Untrue statement made about products, services, property, or reputation of a business.
• False comparative advertising and product disparagement actionable under Lanham Trademark Act.
• Intentional Interference with Business/Contractual Relations

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Unintentional Torts (Negligence)

• Unintentional Tort
• A person is liable for harm that is the foreseeable consequence of his or her actions.
• Usually involves careless conduct (e.g., speeding)

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Unintentional Torts (Negligence) (continued)

• Negligence
• Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do.

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Unintentional Torts (Negligence) (continued)

Elements:

The defendant owed a duty of care to the plaintiff.

The defendant breached the duty of care.

The plaintiff suffered injury/damages.

The defendant’s negligent act caused the plaintiff’s injury.

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Unintentional Torts (Negligence) (continued)

• Duty of Care
• Obligation not to cause any unreasonable harm or risk of harm.
• Reasonable person standard.
• Defendants with a particular expertise or competence are measured against a reasonable professional standard (e.g., accountants, lawyers, doctors)

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Unintentional Torts (Negligence) (continued)

• Breach of Duty – a failure to exercise care or to act as a reasonable person would act.
• E.g., driver exceeding speed limit, camper throwing lit match on ground in forest, or surgeon failing to “scrub up” before surgery.

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Unintentional Torts (Negligence) (continued)

• Injury to Plaintiff:
• Personal injury or damage to the plaintiff’s property.
• Damages cannot be recovered if the plaintiff suffered no injury.
• Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession.

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Unintentional Torts (Negligence) (continued)

• Causation
• Causation in Fact (actual cause) and
• Proximate Cause (legal cause)

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Unintentional Torts (Negligence) (continued)

• Actual Cause – It must be true that “but for defendant’s negligent act, injury would not have occurred.”
• E.g., if plaintiff was in poor health and likely would have had the heart attack whether or not he had taken the defendant’s drug product, the drug is not the actual cause, and therefore, defendant shall not be held liable.

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What caused this accident?

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Unintentional Torts (Negligence) (continued)

• Proximate Cause (legal cause):
• Defendant not necessarily liable for all damages set in motion by his or her negligent act.
• Liable only for foreseeable injury/consequences (reasonable to expect)
• E.g., Palsgraf. “Nothing in the situation gave notice that the … package [posed a] peril to persons thus removed.”

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Special Negligence Doctrines

• Professional Malpractice
• The liability of a professional who breaches his or her duty of ordinary care.
• Reasonable professional standard
• Medical malpractice
• Legal malpractice
• Accounting malpractice

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Special Negligence Doctrines (continued)

• Negligence Per Se
• Violation of a safety statute or regulation that proximately causes an injury
• Plaintiff must be within class intended to be protected
• Statute enacted to prevent the type of injury suffered
• Example: contractor violates building code, house collapses, somebody is injured. The violation of the building code establishes negligence per se on the contractor so long as the contractor's breach of the code was the cause of the injury.

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Special Negligence Doctrines (continued)

• Good Samaritan Laws
• Protects medical professionals who stop and render emergency first aid
• Relieves them from liability for ordinary negligence
• No relief for gross negligence or intentional or reckless conduct
• Laypersons not trained in CPR not covered