Bus Law 201 Chapter 6

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Tort Cases tend to arise from what?
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unexpected circumstances that involve momentary carelessness or bad behavior
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Leave a wet spot on the floor of your business and….
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you may face a tort case from a customer who slips and falls
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What was the biggest jury verdict in history?
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1984 Penzzoil vs Texaco Penzzoil agreed to buy large share of Getty Oil Texaco, knowing the agreement, offered Getty Oil more money and got the owners to refuse Penzzoil for breach of contract Penzzoil filed a common law tort of inducement of breach of contract jury granted penzzoil 10.5 billion dollars Texaco agreed to pay 1/3 and not appeal to a higher court.
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What does tort law evolve through?
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a case decision that reflects social values, community standards, and the way we deal with each other in the current environment.
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Tort liability is a significant ____ and some claim that tort judgments bear little relation to reality.
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Expense
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What does the word tort mean?
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derived from tortus or twisted and means “wrong” in french. Generally defined as a civil wrong, other than a breach of contract, for which the law provides a remedy a breach of duty owed to another that causes harm liability that is imposed for conduct that unreasonably interferes with the legally protested interests of another.
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What are the three types of torts?
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megligence intentional strict liability
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What are three ways someone can be involved in a tort lawsuit?
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1. person is harmed by actions of a business or employees 2. a person is harmed by a product manufactured or distributed by the business 3. a business is harmed by the wrongful actions of another business or person.
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How can you have legal action in a tort?
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the injury suffered by the plaintiff to themselves or their property must legally be the consequence of the actions of another. In the tort action, the party whose interests have been injured sue the party who is responsible.
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Can an act be both criminal and tort?
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yes. Most criminal cases are also tort cases. But many criminals do not have enough assets to be worth suing in court. not many tort cases are criminal cases.
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Who was the famous football player who was seen as “not guilty” for murder in the criminal case but was then seen as guily to assualt and battery in the tort case?
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OJ simpson tried in the state of California
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what is a criminal case?
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criminal case is brought by the government against someone who allegedly broker the laws of legislature the victim, if alive, serves as a witness does not result in compensation for the injured party although if convicted the defendant may need to pay restitution
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What are some more characteristics of tort cases?
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involves private law plantiff is the injured party rules vary from state to state
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What is the purpose of tort cases?
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to place the injured party back to the state they were previously in before the tort act occurred.
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Are punitive damages usually awarded in tort cases?
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in a small percent intended to punish defendant for malicious behavior and send a message that such behavior will not be tolerated
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What are torts based on negligence?
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protect people from harm from another’s unintentional actions but legally careless conduct Business have the responsibility to not create an unreasonable risk of harm, including financial harm, or injury to others.
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what elements must be proven by the injured party to determine negligence?
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1. The wrongdoer owed a duty to the injured party. the legal standard created is often called due care or ordinary care. 2. the duty of care owed to the injured party was breached through some act or omission on the part of the wrongdoer. 3. there is a casual connection between the wrongdoer’s negligent conduct and the resulting harm to the injured party. 4. The injured party suffered actual harm or damage recognized as actionable by law as a result of the negligent conduct.
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Negligence is?
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conduct—an act or omission (a failure to act)—by a person or business that results in harm to another to whom the person owes a duty of care If conduct creates an unreasonable risk of harm to others, such conduct may be found to be negligent even though there was no intent to cause harm.
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difference between Intentional Tort and Negligence (Car Example)
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the harmful results of a party’s conduct are not based on an intended invasion of another person’s rights or interests. Thus, the person who intentionally runs over another person while driving has committed the intentional tort of battery. A person who unintentionally runs over another while driving carelessly has committed a tort of battery based on negligence.
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What is gross negligence?
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If negligence is based on a conscious and voluntary disregard for the need to use reasonable care, then there may be a gross negligence. This is a stronger claim than ordinary negligence involves an assertion that the defendant was engaged in willful and wanton misconduct. more likely to lead to the imposition of punitive damage
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No Litigation Jackpots in New Zealand
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Events that are classified as torts in the United States also occur in New Zealand, but the consequences are very different. Although New Zealand is a common-law nation with an English legal heritage, it abandoned tort suits for damages in personal injuries. Tort litigation was replaced by the Accident Compensation Corporation (ACC), a body that makes payments to people injured in accidents. Personal injury tort suits for damages are not allowed. Instead, an injured party is compensated for injuries, including lost wages, from a social insurance fund. Hence, there are no mega-damage awards as occur now and then in the U.S. Those injured, regardless of fault, receive compensation based on cost recovery of losses incurred. There is no waiting for years for cases to come to trial; ACC payments come quickly by comparison. Coverage applies to mental injury (similar to mental distress) and medical misadventure (similar to medical malpractice). Because there is a “single-payer” health care system in New Zealand, recovery for medical expenses is generally not an issue. While no one gets a giant damage award in New Zealand, people who have the misfortune to be the victim of an injury caused by a negligent party with no money have their costs covered. In the United States, if you suffer an injury at the hands of a party with little cash, you bear your own costs. The ACC makes payments on a consistent basis, so there is not the wide disparity observed in the United States, and many fewer lawyers are needed.
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What is the duty of care?
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Exercise the amount of care as would be exercised by a REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES
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What standard does the law apply to determine reasonableness/duty of care?
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In determining whether a person’s conduct is negligent, that is, whether it violates the duty of care in any given situation, the law applies a standard of reasonableness.
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What is the reasonable person?
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hypothetical person the standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions.
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What does the resonable person represent?
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The reasonable person standard represents how persons in the relevant community ought to behave.
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What is an example of the resoanble person?
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if the person is a skilled professional, such as a doctor, engineer, or financial consultant, the standard is that of a reasonably skilled, competent, and experienced person in that profession.
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what is the main question to determine negligence?
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To decide if a person’s conduct was negligent, the question is, what would a reasonable, qualified person have done under the same or similar circumstances? If the conduct was not what is expected of such a person in the eyes of the court, the person has failed the reasonableness test and acted negligently.
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True or False Tort law does not make us responsible for every injury our actions cause, only those that result from unreasonable behavior.
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True
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Other Characteristics of the reasonable standards?
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theoretical concept. describes a hypothetical person who acts in a reasonable manner under the circumstances. Perfection is not required errors in judgment must be reasonable or excusable under the circumstances, or negligence will be found.
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What Occurred in the Squish La Fish Case?
answer

Squish La Fish v. Thomco Specialty Products United States Court of Appeals, Eleventh Circuit, 149 F.3d 1288 (1998) Case Icon Case Background Squish La Fish holds a patent on a plastic device called “Tuna Squeeze” that squeezes oil and water from cans of tuna. A distributor ordered two million units. Squish hired ProPack to affix each Tuna Squeeze to preprinted cardboard “point of purchase” cards for display in stores. Pro-Pack brought in Thomco to advise it as to the kind of adhesive to use to make the Tuna Squeeze stick to the cardboard. The Thomco representative recommended a 3M adhesive called Extra High Tack Adhesive Transfer and said that the adhesive would easily wash off of the Tuna Squeeze in warm water. Pro-Pack and Squish relied on Thomco’s advice. After units had been produced, it was discovered that the adhesive would not wash off of the Tuna Squeeze and the distributor was not happy with the results. The adhesive was replaced with two-sided tape, but the distributor wanted a guarantee that the product would be delivered on time and that there would not be adhesive problems. Squish could not make the promise because there were problems finding a proper adhesive. The distributor canceled the contract. Squish sued Thomco for negligent misrepresentation. The district court granted summary judgment for Thomco; Squish appealed. Case Decision Cohill, Senior District Judge * * * The Georgia Supreme Court adopted the “negligent misrepresentation exception” from the Restatement (Second) of Torts § 522 (1977). Under this now well-established rule, One who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. The elements of this cause of action have recently been formulated as follows: the negligent supply of false information to foreseeable persons, known or unknown; such persons’ reasonable reliance upon that false information; and economic injury approximately resulting from such reliance. * * * We find that the district court committed an error of law when it failed to acknowledge that Squish La Fish’s indirect reliance, through ProPack, on Thomco’s alleged representations concerning the … adhesive, were sufficient to bring the company within the negligent misrepresentation rule…. Applying the three-part test for negligent misrepresentation to the facts before the district court, it is clear that Squish La Fish, as the manufacturer of the product being affixed by Thomco’s adhesive, was a foreseeable user of Thomco’s representations concerning that adhesive. The parties dispute the remaining two prongs of the analysis: whether any false information was conveyed about the adhesive’s removability, and whether Squish La Fish indirectly relied upon any such information. The record shows that disputed issues of material fact remain for trial as to both issues. * * * Reversed and remanded.
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What does causation refer to?
answer

A basic element of a tort based on negligence is causation between one party’s act and another’s injury. For a party to have caused an injury to another and be held negligent, the act must have been the cause of the other’s injury.
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what does res ipsa loquitur refer to?
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“the thing speaks for itself”—applies It does not always mean the plaintiff wins the case, but the showing is strong enough to prevent dismissal of the claim without further examination. (scalpel in surgery example)
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cause in fact?
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Cause in fact is established by evidence showing that a defendant’s action or inaction is the actual cause of an injury that would not have occurred but for the defendant’s behavior.
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How do courts express cause in fact?
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Courts express this in the form of a rule commonly referred to as the “but for” or sine qua non rule. (fire at the hotel example)
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What is proximate cause?
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In most jurisdictions, the injured party must prove that the defendant’s act was not only the cause in fact of the injury but also the proximate cause or legal cause of the injury. Proximate cause limits liability to consequences that bear a reasonable relationship to the negligent conduct. Consequences that are too remote or too far removed from negligent conduct will not result in liability.
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What does it mean that the chain of events must be forseeable?
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The principal cause in fact of the Great Chicago Fire of 1871 that destroyed much of the city may have been Mrs. O’Leary’s negligent conduct of leaving an oil lamp in the barn that her cow kicked over, but no court would hold her liable for the full consequences of her initial act. The results were too far-fetched. The chain of events must be foreseeable, as New York’s highest court explained in the famous Palsgraf case.
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Plasgraf v. Long Island Railroad
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Palsgraf v. Long Island Railroad Company Court of Appeals of New York 48 N.Y. 339, 162 N.E. 99 (1928) Case Icon Case Background Helen Palsgraf was waiting at a train station platform for her train. While she was there, another train stopped and then began to leave. A man who was late for the train ran to catch it and jumped on the moving train while holding a package. A train guard helped pull the man onto the train and another guard helped push him from behind. The man dropped his package. It fell and was run over by the train. The package was full of fireworks, which exploded. The explosion caused some scales on the platform to fall, striking Palsgraf in the head, seriously injuring her. Palsgraf sued the railroad for negligence by its employees during the event. The jury found for the plaintiff and the appellate division affirmed the judgment. The railroad appealed to the New York high court. Case Decision Justice Cardozo * * * Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do.” “Negligence is the absence of care, according to the circumstances.” The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged…. If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless … with reference to her, did not take to itself the quality of a tort because it happened to be a wrong…. “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.” The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another. … The argument for the plaintiff is built upon the shifting meanings of such words as “wrong” and “wrongful,” and shares their instability. What the plaintiff must show is “a wrong” to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct “wrongful” because unsocial, but not “a wrong” to anyone…. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent. Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary…. The judgment … should be reversed, and the complaint dismissed, with costs in all courts.
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Following the Plasgraf case, how did the idea of proximate causation change?
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The Missouri high court has held that the duty owed by the plaintiff to the defendant “is generally measured by whether or not a reasonably prudent person would have anticipated danger and provided against it….” The New Mexico supreme court explained that “A duty to the individual is closely intertwined with the foreseeability of injury to that individual resulting from an activity conducted with less than reasonable care….” And the Texas high court stated that “before liability will be imposed, there must be sufficient evidence indicating that the defendant knew of or should have known that harm would eventually befall a victim.”
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What was the criticism against proximate cause?
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Proximate cause has been criticized as difficult to understand and apply.
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The California Supreme Court, in Mitchell v. Gonzales (819 P.2d 872), joined some other states in replacing the traditional proximate cause rule in negligence actions in favor of ______________
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the substantial factor test.
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What is the substantial factors test?
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“A legal cause of injury is a cause which is a substantial factor in bringing about the injury.” as the Pennsylvania Supreme Court has explained, the jury is asked to determine whether a defendant’s conduct “has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense.”
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defendants could be liable even if their negligent behavior was only _____ factor contributing to an injury, so long as the behavior was found to be a _________in causing the injury.
answer

one substantial factor
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What are the elements of negligence?
answer

Duty to Use Reasonable Car (Depending on cirumstances) Breach of duty of care (by act or omission) Proximate cause of injury and loss (of substantial factor) Damages
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What is intervening conduct?
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One issue in determining proximate cause is the possibility of intervening conduct. Even if negligence occurred, if the causal connection to the resulting harm is broken by an intervening act or event, there is a superseding cause. If the causal relationship between the defendant’s act and resulting harm is broken by the intervening act, which was unforeseeable under the circumstances, the defendant will likely not be liable.
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Example of Intervening Conduct?
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Suppose Colbert Construction has dug a ditch across a sidewalk to lay some pipe. When the workers quit for the night, they left the ditch uncovered and did not place any warnings around the hole. That night, if Lady Gaga shoves Jay-Z into the ditch and Jay-Z is hurt, Gaga’s act is intervening conduct that relieves Colbert of liability. However, suppose Jay-Z had accidentally fallen into the ditch at night and was drowning because the ditch was filled with rainwater. Tiger Woods dives into the ditch to save Jay-Z and Woods drowns. Colbert Construction may well be liable to Jay-Z and Woods. Because of the danger-invites-rescue doctrine, the common law holds the negligent party responsible for the losses suffered by those who attempt to save people who are in danger as the result of the torts of others.
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What is the danger invited rescue doctrine?
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the principle that a tortfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger.
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What is superseding cause?
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the act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence.
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Evolving Changes in the Law of Negligence
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the Restatement of Torts is an authoritative secondary source on the law of torts (case law being primary source). While the Restatement (Second) of Torts is still the source most cited, we see increasing references to the newer Restatement (Third) of Torts. Over time, that will mean new interpretations of some of tort law.
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Thompson vs. Kaczinski
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the Iowa Supreme Court decided, in a case involving negligence, to adopt some portions of the Restatement (Third) of Torts. That means some changes in how negligence is viewed. The Court held that, henceforth, in Iowa, courts need not focus on the ordinary duty of reasonable care because the duty is presumed to almost always exist where there is a risk of physical harm. Instead, the courts should “proceed directly to the elements of liability.” The Court also noted that there is less reliance on the notion of proximate cause, as it “has been the source of significant uncertainty and confusion.”
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There is also a move away from ______
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There is also a move away from the notion of “substantial factor” that is used in some states. Instead, the Restatement (Third) refers to the “scope of liability” related to the risks present in a specific situation. Considering a situation, the court will use a “risk standard” to help judge when liability should be imposed.
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What are some Defenses to a Negligence Action?
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assumption of risk and comparative negligence.
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What is Assumption of Risk?
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common-law doctrine under which a plaintiff may not recover for the injuries or damages that result from an activity in which the plaintiff willingly participated. A defense used by the defendant in a negligence case, when the plaintiff had knowledge of the danger, voluntarily exposed himself to the danger, and was injured.
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What does the assumption at risk defense require?
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The defense requires that the injured party knew or should have known of the risk and that the risk was voluntarily assumed.
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What may assumption of risk be based off of?
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Assumption of risk is an affirmative defense. It may be based on a liability waiver or an exculpatory clause in a contract by which the plaintiff promised not to sue in case of injury.
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What is a waiver?
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similar to an exculpatory clause, in that a party contracts to waive certain tort rights that may otherwise exist against another party; these can be valid if limited in scope and the risks involved are clearly understood by the party who agrees to the waiver, which is found to be reasonable by the court.
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What is an exculpatory clause?
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a part of a contract that releases one of the parties from liability for their wrongdoings; not favored at laws. See also Liability waiver.
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Geczi v. Lifetime Fitness
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Court of Appeals of Ohio, 973 N.E.2d 801 (2012) Case Icon Case Background Jodi Geczi was a member of Lifetime Fitness in Columbus, Ohio. One day when she was using a treadmill, it began to jerk violently. When she tried to steady herself, she was pulled sideways and suffered an arm injury. Two Lifetime employees told her they knew the machine was broken, but no sign had been put on it to indicate that it did not work properly. Geczi sued Lifetime for negligence and gross negligence, claiming she suffered lost income, pain, and medical expenses as a result of the injury caused by the malfunctioning machine. Lifetime defended that as part of the membership agreement, Geczi agreed to an exculpatory clause that barred her claim. She admitted she knew of the clause, which stated that Lifetime was not liable for any negligence on its party that resulted in injury to her while using equipment. Geczi claimed that Lifetime was liable for willful and wanton behavior for failure to warn of the danger posed by the malfunctioning machine. The jury held for Lifetime. Geczi appealed. Case Decision Dorrian, Justice * * * In the case at bar, the parties agree concerning the material facts. The determinative issue is whether reasonable minds can only conclude that the documents Geczi signed constituted a valid release of her claims against Lifetime. This court has previously considered releases executed in favor of recreational facilities, including fitness centers. We have recognized that the law does not favor releases from liability for future tortious conduct, which will be narrowly construed. … But clear and unambiguous contract clauses relieving a party from liability for its own negligence are generally upheld in Ohio. * * * [In addition to other discussion of the risk of injury, including injury from use of machines] the new member policy checklist Geczi signed contained the following provision: I accept full responsibility for my use, as well as the use by any other person under my membership, of any and all equipment and fixtures as well as for any participation in the activities provided by the Club. I agree that I will hold the Club, its shareholders, directors, officers, employer’s representative, agents and landlord harmless from any and all loss, claim, injury, damage, or liability incurred by me or any other person using the Club under my membership. I further agree that I fully understand all of the Club’s policies and agree to abide by them at all times while using the Club…. The only reasonable interpretation of Lifetime’s release is that it reflected the parties’ intent to release Lifetime from negligence claims of the nature asserted by Geczi…. The release did not distinguish between types of negligence, exempting some types of negligence from liability while preserving liability for other types of negligence. Rather, the clause extended to liability for any injury resulting from Lifetime’s negligence. The scope of that broad language extends to negligence in maintaining equipment, negligence in leaving defective equipment available to users, and negligence in failing to warn patrons of defective equipment. The trial court did submit to the jury the question whether Lifetime’s failure to act or failure to warn rose to the level of willful or wanton conduct, liability for which would not have been affected by the release signed by Geczi. But the jury did not find Lifetime to have acted willfully or wantonly. Judgment affirmed.
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What is comparative negligence?
answer

a defense to negligence whereby the plaintiffs damages are reduced by the proportion his fault bears to the total injury he has suffered.
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What is contributory negligence?
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as a complete defense to negligence, an act or a failure to act that produces a lack of reasonable care on the part of the plaintiff that is the proximate cause of the injury incurred.
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Most states now use the rule of ________. A few states still retain the traditional rule of contributory negligence.Under that rule, if a plaintiff who contends that a defendant inflicted a tort injury can be shown to have contributed his or her own negligence to the situation, there may be no recovery.
answer

Comparative negligence
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What does comparative negligence hold?
answer

More common now is comparative negligence, which is a form of modified contributory negligence. It holds that the court, in evaluating the actions, should compare the possible negligence of both parties and allocate the liability.
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What is an intentional tort?
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a wrong committed upon the person or properly of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury. classified on the basis of the interests the law seeks to protect: personal rights and property rights.
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What is a tortfeasors?
answer

an individual or business that commits a tort. The law imposes a greater degree of responsibility on tortfeasors, persons who commit torts, for intentional acts that harm legally protected interests than is imposed for unintentional or negligent acts.
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What are the three factors for establishing intent?
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First is the state of mind of the defendant, which means that the person knew what he was doing. Second is that the person knew, or should have known, the possible consequences of his act. The third factor is knowing that certain results are likely to occur.
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Differences between act, intent and motive?
answer

to be liable, a defendant must have acted; that is, there must have been voluntary action. An act is to be distinguished from its consequences Intent is the fact of doing an act, such as firing a gun. The motive—why the person wanted to fire the gun—is legally distinct.
question

What are intentional torts based on an when do they occur?
answer

Intentional torts are based on willful acts that invade protected interests. Intentional torts occur when a jury finds that, under the circumstances, a reasonable person would have known that harmful consequences were likely to follow from the act.
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Which matters more intent or the act of invading the interests of another person?
answer

Intent matters much less than the act of invading the interests of another person. Even in cases in which the defendant did not have a bad motive (such as when the defendant was playing a trick), if the tortfeasor intended to commit the act that inflicted injury on another, the willful intent would be present for tort liability.
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What are the major categories of intentional tort?
answer

Assault Battery False Imprisonment or False Arrest Emotional or Mental Distress Invasion of Privacy Defamation: Libel and Slander
question

What is assault?
answer

intentional conduct directed at a person that places the person in fear of immediate bodily harm or offensive contact. That is, a person is subject to liability if he or she intends to act to cause a harmful or offensive contact, or an immediate apprehension of such contact, and the other person is thereby put in imminent apprehension or fear. Actual contact with the body is not necessary.
question

What battery
answer

Battery is an unlawful touching, which is intentional physical contact without consent. In such cases, a defendant would be subject to liability to another if he acted intending to cause a harmful or offensive contact and such contact actually resulted. There is a protected interest in freedom from unpermitted contact with one’s person. Even if the contact does not cause actual physical harm, it is unlawful if it would offend a reasonable person’s sense of dignity.
question

Fuerschbach v. Southwest Airlines
answer

United States Court of Appeals, Tenth Circuit, 439 F.3d 1197 (2006) Case Icon Case Background Fuerschbach worked as a customer service representative for Southwest Airlines at the Albuquerque airport. The airline prides itself on being a “fun-loving, spirited company.” When new employees successfully complete a probationary period, they may be subject to a prank to celebrate the event. Some pranks have been elaborate, and Fuerschbach was aware that one might be pulled on her. Her supervisor had been subject to a mock arrest once, and thought it was fun, so she set one up for Fuerschbach. Supervisors got two Albuquerque police to come and pretend to arrest Fuerschbach. The officers approached her at the ticket counter, told her she had outstanding warrants against her, and that she was under arrest. They handcuffed her. She began to cry, so the officers took her to the back, where other employees yelled “congratulations for being off probation.” The handcuffs were removed so a little party could begin. But Fuerschbach could not stop crying and was eventually sent home. She saw a psychologist who said she suffered from post-traumatic stress disorder. Fuerschbach sued everyone connected with the event on numerous grounds, including assault and battery. The district court granted summary judgment for defendants. Fuerschbach appealed. Case Decision Lucero, Circuit Judge * * * Fuerschbach’s claim of assault and battery by [the police officers] survives summary judgment…. For there to be an assault, there must have been an act, threat, or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery. Battery occurs when an individual acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and … an offensive contact with the person of the other directly or indirectly results. The district court granted the defendants’ motion for summary judgment, finding that the officers did not intend to cause an offensive contact, but rather that “the officers were courteous and professional,” and that in any event, placing an individual in handcuffs is not an offensive contact. Any bodily contact is offensive if it offends a reasonable sense of personal dignity. Viewing the evidence in the light most favorable to Fuerschbach, a jury could conclude that the officers’ actions offended a reasonable sense of personal dignity. A jury could find that placing a person’s hands in position to be handcuffed, handcuffing the individual, and then leading the individual to walk feet offends a reasonable sense of personal dignity. Moreover, the officers’ demeanor is not probative of their intent to cause an offensive contact. Nor is the officers’ intent merely to pull a prank on Fuerschbach an excuse. The record reveals that the officers intended to touch Fuerschbach’s arms, to place her arms in position to be handcuffed, and to then handcuff her tightly, thus intending to cause an offensive contact. Viewing the evidence in the light most favorable to Fuerschbach, the officers intended to cause an offensive contact with Fuerschbach’s person and did cause an offensive contact. Accordingly, we reverse the district court’s grant of summary judgment to the officers on Fuerschbach’s assault and battery claim.
question

What are the difference between assault and batter?
answer

Assault and battery are often the same, although they are separate offenses in some states. The principal distinction is the difference between the requirements of apprehension of an offensive physical contact for an assault and of actual physical contact for a battery. Either of the torts may exist without the other. An individual may strike another who is asleep, for example, thus committing battery but not assault. On the other hand, an individual may shoot at another and miss, thereby creating an assault but no battery. In common discussion, and in some states, the term “assault” is used to cover both assault and battery.
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What does the intentional tort defense of consent refer to?
answer

occurs when the injured party gave permission to the alleged wrongdoer to interfere with a personal right. Consent may be either expressed or implied by words or conduct. An example of consent in battery includes voluntary participation in a contact sport, such as boxing or football.
question

what is the intentional tort defense of privilege refer to?
answer

A privilege can give immunity from liability. It can excuse what would have been a tort had the defendant not acted to further an interest of social importance that deserves protection. For example, breaking into a burning store to save someone trapped inside would not be trespass because of the privilege to save someone.
question

What is self-defense?
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is a privilege based on the need to allow people who are attacked to take steps to protect themselves. The force allowed is that which a reasonable person may have used under the circumstances. A person may take a life to protect his own life, but the measures used in self-defense should be no more than are needed to provide protection. If an attacker has been stopped and made helpless, a person has no right to continue to inflict a beating on the attacker as punishment. Most states have “stand your ground” doctrines, by common law or statute. A person need not retreat in the face of danger and may meet force with force. As explained by the Washington State Supreme Court, “there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.” Similarly, in defense of other persons or in defense of property, one may use force reasonable under the circumstances. If someone is being threatened with an attack, other persons have a privilege to defend the victim by using force. We have the right to defend our property to keep others from stealing or abusing it, but again, the force used must be reasonable under the circumstances. Because the law places a higher value on human life than on property, it is unlikely that killing or inflicting serious bodily injury on someone invading property will be allowed. It is not reasonable to shoot a person stealing a smartphone from a store.
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What is False imprisonement?
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The tort of false imprisonment, or false arrest, is the intentional holding, detaining, or confining of a person that violates the protected interest in freedom from restraint of movement. The detention need not be physical; verbal restraints, such as threats, may be the basis of an action for false imprisonment. This often arises in retail businesses when employees or customers are detained by store security personnel. Most states have anti-shoplifting statutes, which provide businesses with an affirmative defense to a charge of false imprisonment for detaining a shoplifter. However, the store must have reasonable cause to believe the person has shoplifted, and the person must be delayed for a reasonable time and in a reasonable manner. One employer was successfully sued for keeping an employee in an office for an hour, accusing her of stealing, while a security guard stood by. She probably could have walked out, but in such situations, people tend to submit to those in positions of authority. Hence, discussions should be professional, to the point, and not threatening. In the Forgie-Buccioni case, we see what happens when the line is crossed.
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Forgie-Buccioni v. Hannaford Brothers
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Case Background Forgie-Buccioni went into a grocery store. He paid for various items and left the store. He realized he bought the wrong kind of Drixoral, a cold medication, so left the other items in his car and went back into the store. He told a clerk he was going to exchange the Drixoral and left the box he had paid for on a counter. Buccioni found the box of Drixoral he wanted and picked up some other items to buy. He told the clerk, who was different than the one he had seen before, that he had already paid for the Drixoral and he paid for the new items. When he left the store, the manager went out to the parking lot and asked him to come back in the store because he did not pay for the Drixoral. The manager, Frender, took Buccioni back to the store’s security room to discuss the matter and called the police. The officer was called and arrested Buccioni but the charges were later dropped. He sued for false imprisonment and the jury awarded him $. Hannaford Brothers appealed. Case Decision Baldock, Senior Circuit Judge * * * Under New Hampshire law, “false imprisonment is the unlawful restraint of an individual’s personal freedom” (citing Restatement (Second) of Torts § 35). The essential elements of false imprisonment are: defendant acted with the intent to restrain or confine plaintiff within boundaries fixed by the defendant; defendant’s act directly or indirectly resulted in such restraint or confinement of plaintiff; and plaintiff was conscious of and harmed by the restraint or confinement. Confinement can be imposed by physical barriers or physical force. The district court did not err when it denied Defendant’s motion for judgment as a matter of law on Plaintiff’s false imprisonment claim. Drawing all reasonable inferences in Plaintiff’s favor and assuming the jury resolved credibility issues consistent with the verdict, a reasonable jury could have concluded: Defendant’s employees intended to confine Plaintiff; Defendant’s actions resulted in such confinement; and Plaintiff was aware of the confinement. Plaintiff testified that Frender escorted him back into Defendant’s store with his hand on his arm. Although Plaintiff testified he voluntarily returned to the store, he later explained that he did not feel free to leave the store any time thereafter. Once inside the store, Frender “kept pushing” Plaintiff towards the store’s security room. Plaintiff explained: “I wasn’t free to leave, and I was being very matter of factly taken to the back of this area of the store escorted by not one but two people.” Frender sat Plaintiff in the back of the security room and a store employee sat next to Plaintiff “the entire time.”… Plaintiff again explained: “I was being detained. I wasn’t free to leave.” Plaintiff also explained that he waited thirty to forty minutes until Officer Tompkins arrived…. Based upon this and other evidence in the record, a reasonable jury could have easily concluded that Defendant unlawfully restrained or confined Plaintiff. * * * Based upon the evidence in the record, the jury’s damage award of $ is not so grossly excessive that justice would be denied if we permitted the award to stand…. Affirmed.
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emotional (or mental distress)
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also called mental distress; a tort action for damages to compensate a person for mental injury suffered due to another’s actions. The tort of intentional infliction of emotional (or mental) distress involves conduct that is so outrageous that it creates severe mental or emotional distress in another person. The protected interest is peace of mind. This cause of action protects us from conduct that goes way beyond the bounds of decency, but not from annoying behavior, petty insults, or bad language. Many states also provide compensation to third parties based on emotional distress. For example, a Louisiana court provided compensation for emotional distress to a woman who found her comatose husband being chewed on by rats while in a hospital. Bill collectors, landlords, and insurance adjusters are often involved in emotional-distress suits. Badgering, late-night phone calls, profanity, threats, and name calling lay the groundwork for potential emotional distress suits. Employers have been sued for the distress suffered by employees, as the Lawler v. Montblanc case discusses.
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Lawler v. Montblanc North America
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nited States Court of Appeals, Ninth Circuit, 704 F.3d 1235 (2013) Case Icon Case Background Montblanc makes high-end writing implements, jewelry, and other luxury products that it sells wholesale and at boutique retail stores. Cynthia Lawler was manager of a retail store in California for eight years. As the manager, she was expected to work full time. In her eighth year at the store, Lawler developed medical conditions that her doctor said meant she could only work hours a week. She informed Montblanc of this and was told that, as manager, she had to work at least hours a week. Soon after, the president of the company, Schmitz, visited and was critical of the way the store was run. Lawler testified that he was unpleasant. She again told the company her doctor said she should not work full time. The company said that was part of her position, so offered her severance pay. She refused and sued for disability discrimination and intentional infliction of emotional distress. The district court held for Montblanc. Lawler appealed. Case Decision Duffy, Judge [First, the appeals court affirmed that Lawler had no claim for disability discrimination, as she was unable to perform the duties of her job. It then turned to the emotional distress claim.] * * * California recognizes a cause of action for intentional infliction of emotional distress when there is: extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; the plaintiff’s suffering severe or extreme emotional distress; and actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Here, Schmitz’s “gruff,” “abrupt,” and “intimidating” conduct cannot be characterized as exceeding all bounds of that tolerated in a civilized community. His conduct and criticisms relate to the store’s business operations and Lawler’s performance as a manager. While Schmitz may have inconsiderately and insensitively communicated his dissatisfaction of Lawler’s managerial performance, this is not conduct from which California tort law protects employees. Lawler’s alleged emotional distress is not “severe.” Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. Lawler testified that her emotional injuries manifest as “anxiety, sleeplessness, upset stomach, and sometimes muscle twitches.” Clearly, these injuries alone do not rise to the level of “severe.”… For the foregoing reasons, we affirm the district court’s order granting summary judgment to Defendants on each of Lawler’s claims.
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What is invasion of privacy?
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in tort, the encroachment on the right of a person to their solitude, the appropriation of a person’s reputation for commercial purposes, or the public disclosure of facts that the person had a legal right to keep private.
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How is invasion of privacy committed?
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The use of a person’s name or picture without permission (which can make advertisers and marketing companies liable). The intrusion into a person’s solitude (illegal wiretapping or searches of a residence; harassment by unwanted and continual telephoning). The placing of a person in a false light (publishing of a story with serious misinformation). The public exposure of facts that are private in nature (such as public disclosure of a person’s drug use or debts).
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James v. Bob Ross Buick, Inc.
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Case Background James worked at a Mercedes dealership owned by Bob Ross Buick (BRBI). In 2002, James was named sales representative of the year. None of the sales representatives met sales quotas established for 2003. James was fired in January 2004. Soon after, BRBI sent batches of letters to customers who had dealt with James, encouraging them to shop for Mercedes. The letters were addressed as if they were from James, and a clerk at BRBI signed James’s name to the letters. James became aware of the letters when a number of former clients told him they had received them. He sued for misappropriation of his name, a form of invasion of privacy. The trial court granted summary judgment in favor of BRBI. James appealed. Case Decision Wolff, Judge * * * The tort of invasion of privacy includes four separate torts: ” intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; public disclosure of embarrassing private facts about the plaintiff; publicity which places the plaintiff in a false light in the public eye; and appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” The forgery of the signature of another is a recognized variant of the tort known generally as invasion of privacy. More specifically, forgery amounts to the appropriation of the name or likeness of another. Ohio has adopted the tort of misappropriation of the name or likeness of another…. The [Ohio] Supreme Court has distinguished “the mere incidental use of a person’s name and likeness, which is not actionable, from appropriation of the benefits associated with the person’s identity, which is.” The court cited with approval the Restatement of the Law 2d, Torts (1965), Section 652C, including the portion regarding the incidental use of name or likeness. That portion reads: The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. In our view, BRBI’s conduct cannot reasonably be viewed as the incidental use of James’s name. [BRBI employees] stated in their affidavits that, pursuant to BRBI policy, batches of these form letters were printed out on a daily basis and given to the salespeople to sign and mail to their assigned customers to maintain a relationship with them. James’s name was signed to correspondence that was sent to his former clients at BRBI. In this context, his name clearly had a commercial value, as personal letters are used to induce future sales to customers who have established a client relationship with the dealership. * * * The monetary benefit that BRBI received as a result of its wrongful use of James’s name is an appropriate (although not exclusive) measure of James’s actual damages…. BRBI could have benefited from the use of James’s name. Accordingly, upon remand, James may seek nominal, compensatory, and, if appropriate, punitive damages at trial…. [Reversed and remanded.]
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Defenses to right to privacy?
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In addition to common-law protection, some states have statutes to recognize a right to privacy. In either case, the right to privacy is largely waived when a person becomes a public figure, such as an entertainer, a politician, or a sports personality. In addition, the publication of information about an individual taken from public files and records does not constitute an invasion of privacy.
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What is defamation?
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Defamation The tort of defamation is an intentional false communication that injures a person’s reputation or good name. If the defamatory communication was spoken, slander is the tort. If the communication was in the form of a printing, a writing, a picture, or a radio or television broadcast, the tort is libel. The elements that must be shown to exist for both torts to be actionable are: Making a false or defamatory statement about another person. Publishing or communicating the statement to a third person. Causing harm to the person about whom the statement was made. If a false statement is said directly to a person about that person, there is no defamation because the false information was not communicated to a third party. If the person who had the false statement said to them tells a third party what was said, it is “self-publication” of the defamatory information, and there is no tort. Some statements are considered defamation per se. That is, they are presumed by law to be harmful to the person to whom they were directed and therefore require no proof of harm or injury. Statements, for example, that a person has committed a crime or has engaged in shady business activities can be defamatory per se. Defamation does not only include damage to the reputation of a person; it can involve damage to the good name of a business. Therefore companies must be careful about what they say about competitors and their products.
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Worplace defamtion?
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Most defamation suits come about from former employees suing for negative statements made about them by their ex-bosses. As a result, many companies have a policy of providing no information about job performance, good or bad, for current or past employees to outsiders who inquire about performance. When managers talk about the negative aspects of an employee’s performance, they must remember that if the information is spread to those who do not have a business reason to know the information, then the company could be exposed to tort liability. An employer does have the right to share negative information for business purposes with people within an organization who should know why someone was fired or involved in some other negative event that has consequences for the company and is useful information for other employees.
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Defencses against defamtion?
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Truth and privilege are defenses to an action for defamation. If the statement that caused harm to a person’s reputation is in fact the truth, some states hold that truth is a complete defense regardless of the purpose or intent in publishing the statement. Truth is an important defense in a defamation suit. Depending on the circumstances, three privileges—absolute, conditional, and constitutional—may be used as a defense to a defamation action. Absolute privilege is an immunity applied in those situations where public policy favors complete freedom of speech. For example, state legislators in legislative sessions, participants in judicial proceedings, and government executives in the discharge of their duties have absolute immunity from liability resulting from their statements. A conditional (or qualified) privilege eliminates liability when the false statement was published in good faith and with proper motives, such as for a legitimate business purpose. Individuals have a conditional privilege to publish defamatory matter to protect their legitimate interests, such as to defend their reputation against defamation by another. Businesses have a privilege to communicate information believed to be true. Hence, businesses generally have a qualified privilege to share information about employees’ As discussed in Chapter 4, the First Amendment to the Constitution guarantees freedom of speech and freedom of press. This constitutional privilege protects members of the press who publish “opinion” material about public officials, public figures, or persons of legitimate public interest. This privilege is lost if the statement was made with actual malice, that is, the false statement was made with reckless disregard for the truth.
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Chambers v. Travelers Companies, Inc
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Case Background Karen Chambers worked for Travelers from 1987 to 2008. In 2007, employees (underwriters) under her supervision began to file complaints about her. The Human Resources Manager, Cady, investigated the complaints along with Chambers’ superior, Werner. The results were not good. Chambers was warned about her behavior and given specific management issues to address. She was not in agreement. Two months later, her superior asked her if it was true that she took her daughter with her on a business trip. She admitted she did but did not volunteer that her grandson came along too. When that came to light, she was fired. She sued for defamation. The district court held for Travelers; she appealed. Case Decision Loken, Circuit Judge * * * Defamation under Minnesota law requires proof that the alleged defamatory statement was communicated to someone other than the plaintiff, was false, and tended to harm the plaintiff’s reputation and lower her in the estimation of the community. Whether a communication is actionable because it contained a provably false statement of fact is a question of law. If a plaintiff presents sufficient evidence of these three elements, the defendant may nonetheless be entitled to a qualified privilege that defeats the defamation claim if its statement was made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause. The existence of the privilege is a matter of law for the court. The district court concluded that the statements made by Travelers agents … were entitled to a qualified privilege. We agree. An underwriter’s telephone complaint to Cady gave Travelers reasonable ground to investigate staff morale in the unit managed by Chambers. Cady surveyed the entire staff and reported the concerns they expressed about Chambers’ performance to supervisor Werner, who then summarized the negative comments to Chambers and sought her response. Communications between an employer’s agents made in the course of investigating or punishing employee misconduct are made upon a proper occasion and for a proper purpose, as the employer has an important interest in protecting itself and the public against dishonest or otherwise harmful employees. A qualified privilege is abused and therefore lost if the plaintiff demonstrates that the defendant acted with actual malice…. Chambers argues that Travelers lost any privilege through abuse because Cady and Werner did not adequately investigate the truth of the underwriters’ defamatory comments before presenting those statements to Chambers. … Travelers investigated the initial complaint regarding Chambers’ managerial deficiencies by surveying each member of her staff before asking Chambers to respond. Though the underwriters’ survey responses were not uniformly negative, an employer may act on reports of employee misconduct, even if it receives conflicting reports during its investigation. On this summary judgment record, we agree with the district court that Chambers presented no evidence from which actual malice or ill will could reasonably be inferred and therefore Travelers was entitled to the qualified privilege as a matter of law…. The judgment of the district court is affirmed. Questions for Analysis
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Glossary
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Absolute privilege a defense in a defamation suit affirming that the defendant had an unconditional right to make the statements in question and be free from litigation. This most often applies to statements made by members of a legislature as part of the deliberation process. Actual malice the intentional doing of a wrongful act, without a legal excuse, with the intent to inflict injury. Assault any word or action intended to cause another to be in fear of immediate physical harm. Assault and battery intentionally causing another to anticipate immediate physical harm through some threat and then carrying out the threatened activity. Assumption of risk common-law doctrine under which a plaintiff may not recover for the injuries or damages that result from an activity in which the plaintiff willingly participated. A defense used by the defendant in a negligence case, when the plaintiff had knowledge of the danger, voluntarily exposed himself to the danger, and was injured. Battery the intentional unallowed touching of another. The touching may involve a mere touch that is offensive or an act of violence that causes serious injury. Causation the causing or producing of an effect; in law, something that may be related to legal consequences. Cause in fact an act or omission without which an event would not have occurred. Courts express this in the form of a rule commonly referred to as the but for rule: the injury to a person would not have happened but for the conduct of the wrongdoer. Comparative negligence a defense to negligence whereby the plaintiffs damages are reduced by the proportion his fault bears to the total injury he has suffered. Conditional privilege also called qualified privilege; a defense in defamation cases affirming that the defendant published in good faith or as part of a duty to publish; it protects the defendant in a case that may otherwise be actionable. Consent a voluntary agreement, implied or expressed, to submit to a proposition or act of another. Constitutional privilege speech that is protected by the First Amendment; generally applies to members of the media attempting to protect news sources; also applies to comments made about public officials or public figures, who have reduced rights to sue for defamation for comments made about them. Contributory negligence as a complete defense to negligence, an act or a failure to act that produces a lack of reasonable care on the part of the plaintiff that is the proximate cause of the injury incurred. Danger-invites-rescue doctrine the principle that a tortfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger. Defamation an intentional false communication, either published or publicly spoken, that injures another’s reputation or good name. Defamation per se a statement that is libel or slander in and of itself and is not capable of an innocent meaning. Due care the degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken. Emotional distress also called mental distress; a tort action for damages to compensate a person for mental injury suffered due to another’s actions. Exculpatory clause or agreement a part of a contract that releases one of the parties from liability for their wrongdoings; not favored at laws. See also Liability waiver. False imprisonment also called false arrest; the intentional detention or restraint of an individual by another. Gross negligence a conscious and voluntary disregard for the need to use reasonable care, likely to cause foreseeable injury or harm to person, property or both. Intentional tort a wrong committed upon the person or properly of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury. Intervening conduct in tort, an independent cause that comes between the original wrongful act and the injury that relieves liability that would otherwise exist for the original act; a legal break in the causal connection. Invasion of privacy in tort, the encroachment on the right of a person to their solitude, the appropriation of a person’s reputation for commercial purposes, or the public disclosure of facts that the person had a legal right to keep private. Liability waiver similar to an exculpatory clause, in that a party contracts to waive certain tort rights that may otherwise exist against another party; these can be valid if limited in scope and the risks involved are clearly understood by the party who agrees to the waiver, which is found to be reasonable by the court. Libel a defamation that is in the form of a printing, writing, pictures, or broadcast on radio or television. Mental distress see Emotional distress. Negligence the failure to do something that a reasonable person, guided by the ordinary considerations that regulate human affairs, would do or the doing of something that a reasonable person would not do. Omission a failure to do something, especially a neglect of duty; leaving something out that may be critical to a decision. Ordinary care see Due care. Privilege in tort law, the ability to act contrary to another’s legal right without that party having legal redress for the consequences of that act; usually raised as a defense. Proximate cause in tort law, the action of the defendant that produces the plaintiffs injuries, without which the injury or damage in question would not have existed. Qualified Privilege see conditional privilege. Reasonable person the standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions. Res ipsa loquitur Latin for the thing speaks for itself; given the facts presented, it is clear that the defendant’s actions were negligent and were the proximate cause of the injury incurred. Self-defense generally, a legal excuse for the use of force to resist an attack on one’s person or to defend another person who is under attack or properly that is under attack. This defense may apply in common-law cases and in criminal cases. Sine qua non Latin for without which not; an indispensable thing; something on which something else relies upon. Sine qua non rule see Cause in fact. Slander an oral defamation of one’s reputation or good name. Substantial factor a standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant’s conduct was a major cause of the injury in question. Superseding cause the act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence. Tort an injury or wrong committed with or without force against another person or his properly; a civil wrong that is a breach of a legal duty owed by the person who commits the tort to the victim of the tort. Tortfeasor an individual or business that commits a tort.

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