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Intentional Torts. “Intended” Private Wrongs. OBE 118, Section 10, Fall 2004 Professor McKinsey. Understanding Torts. Torts are private wrongs Torts have elements that essentially must be memorized Definitions often contain the elements.

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Intentional torts

Intentional Torts

“Intended” Private Wrongs

OBE 118, Section 10, Fall 2004

Professor McKinsey


Understanding torts
Understanding Torts

  • Torts are private wrongs

  • Torts have elements that essentially must be memorized

  • Definitions often contain the elements.

  • Elements are like the ingredients in cake, skip one and you do not have a cake (or a tort)


Intentional torts1
Intentional Torts

  • Wrongs where the person intends to do an act which will invade an interest of another and either knows or should know there is an appreciable risk to another from the act


Assault
Assault

  • An intentional, un-privileged, un-excused, non-consensual act that (the act)

  • creates in the mind of another person apprehension or fear of an immediate harmful and offensive touching (the injury).


Battery
Battery

  • An intentional, un-privileged, un-excused, non-consensual harmful or offensive contact of another.


False imprisonment
False Imprisonment

  • The intentional un-privileged, non-consensual, confinement of another by physical barriers or by physical force or threats of force

Injury? –

Shopkeepers Privilege:


Intentional infliction of emotional distress iied
Intentional Infliction of Emotional Distress (IIED)

  • Outrageous behavior resulting in severe emotional distress to another

  • Usually physical symptoms required

Intent? –


Defamation
Defamation

  • A false, unprivileged statement of fact communicated to a third person, which causes damage to a person’s or a product’s reputation.

  • Slander- transitory, oral or spoken

  • Libel – more permanent, written form

Intent? –

Injury? – To reputation by exposing to hatred, ridicule or contempt


Defamation privilege
Defamation- Privilege

  • Absolute privilege

  • Governmental official performing duty

  • Members of congress

  • Judicial proceedings

  • Qualified privilege(“lose if abused”)

  • Protect legitimate business interests

  • Protect ones own personal interests


Defamation public figures
Defamation- Public Figures

  • Public figures: must show actual malice on the part of tortfeasor

Actual malice:

  • Media has a qualified privilege to defame public figures


Fraud
Fraud

  • Intentional misrepresentation of a material fact which is justifiably relied upon by another and causes damages.

  • Intent?- Two of them!

    • Intent to mislead, (knowledge of falseness)

    • Intent to induce reliance on misrepresentation


Business torts
Business Torts

  • Tortious Interference with a Contract

    (getting someone to breach a contract)

    • Requires knowing inducement of a party to breach a contract

  • Tortious Interference with a Prospective Advantage

    (getting someone to drop out of a probable or existing business relationship with another)

    • The plaintiff must have a definite and reasonable expectation of gaining an economic advantage


Invasive torts
Invasive Torts

  • Intrusion

    (ex:

  • Disclosure of Embarrassing Private Facts

    (ex:

  • False Light

    (ex:

  • Commercial Exploitation

    (ex:


Damages
Damages

Two basic categories of damages

  • Punish- “Punitive Damages”

  • Compensate for injuries- “Compensatory Damages”


The bigger picture of torts

When people can require compensation for injuries caused by another

The Bigger Picture of Torts

Traditional “Common Law” Torts

New

“Statutory”

Torts


Elements of negligence
Elements of Negligence another

Duty of care

Breach of the duty of care

Injury (Actual cause)

Proximate cause

(Damages)


Duty of care
Duty of care another

  • Act as carefully as The Reasonable Person would under similar circumstances

  • Was the harm that resulted foreseeable?


Proximate cause
Proximate Cause another

Is it fair to say the act was the cause?

“Fairness”

Factors


Summary of basic negligence
Summary of Basic Negligence another

  • Duty of care

  • Breach of the duty of care

  • Injury (Actual cause)

  • Proximate cause

  • (Damages)


Special effects on liability
Special Effects on Liability another

  • Intervening Causes

A separate event between defendants act and plaintiff’s injury

  • Shared Responsibility


Special forms of negligence
Special Forms of Negligence another

  • Res ipsa loquitor

The thing speaks for itself –

  • Negligence per se

An act that is “automatically” negligence

  • Premises Liability


Premises liability
Premises Liability another

  • Duty of care is determined with an additional factor: the injured person’s status on the premises:

    • Trespasser to land

    • Licensee (Guests of homeowners)

    • Invitees (Customers at business premises)


Premises negligence
Premises Negligence another

Trespassers

Minimal duty

Must warn of human-made risks not likely to discover

No traps or spring guns

Young children are exception

Licensee

  • Must warn of known risks or fix them

Invitee

High duty of care

  • Must inspect premises


Defenses to negligence
Defenses to Negligence another

  • Assumed the risk

  • Comparative negligence


Strict liability vs other types of torts
Strict Liability vs. Other Types of Torts another

  • Intentional Torts

Did Actor Intend Act or the Harm that resulted from the act?

  • Negligence

Would a Reasonable Person Do the act that caused the harm?

  • Strict Liability

Did an injury occur?


Strict liability
Strict Liability another

  • No need to prove intent or negligence

  • Often no concern about fault at all

  • Three Basic Examples


Ultra hazardous activities
Ultra-hazardous Activities another

  • Harboring wild animals

  • Mining

  • Explosives


Pl based on strict liability
PL based on Strict Liability another

(Based on the Restatement (2nd) of Torts)

1. D sold product in defective condition

2. D normally in business of selling product

3. Product unreasonably dangerous*

4. P suffers physical harm through use of product

5. Defective condition is proximate cause

6. No substantial changes to product since sold


What is a defective product
What is a Defective Product another?

3 General Ways a Product can be Defective

1) Actual defect (flaw in manufacturing).

Product not built as intended.

2) Design defect.

Product built as designed, design had defect.

3) Failure to warn.

A different approach usually used when product had dangers inherent to purpose or type of product.


Torts review
Torts Review another

  • Intentional Torts

    Elements! (and don’t forget how intent works)

    Traditional Torts

    Newer Torts

  • Negligence

    Basic Negligence

    Special situations (Neg per se, res ipsa loquitor, premises liability

    Defenses and Liability (Assumed the risk, Comparative neg, JSL)

  • Strict Liability

  • Damages


Course review
Course Review another

  • Basic Legal Principles

    Law versus Ethics, what law is

    Authority of law

    Constitution and Governmental Organization

  • Sources and Types of Law

    Legislative versus Judicative versus Administrative

    Federal versus State

    Courts versus ADR versus Agency proceedings

  • Torts

    Intentional Torts

    Negligence

    Strict Liability

    Damages


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