法律英语专题：侵权法(tort law)

1、Tort LawGeneralTortla civil wrong which unfairly causes someone else to suffer loss or harmIt does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.)Purpose of tort lawlto provide relief to the injured party through the award of damages for

2、 the injuries incurred during a tortious actGenerallto deter others from committing the same actUS tort lawlTort law in the U. S. is largely common law.Courts have the power to shape and change the elements of claims and defenses of existing torts and the power to create new torts.lStatutes have bee

3、n passed in attempts to reform the tort system.GeneralMost of them have related to procedural matters and amounts and categories of damages.lMany judges utilize the Restatement of Torts (2nd) as an influential guide.The Restatement is an influential treatise issued by the American Law Institute, whi

4、ch summarizes the general principles of common law United States tort law.Categories of tortslintentional tortsGenerallnegligencelstrict liability tortsIntentional TortsGeneralDefinitionlAn intentional tort is a tort resulting from an intentional act on the part of the tortfeasor.Subcategoriesltorts

5、 against the personassaultbatteryfalse imprisonmentintentional infliction of emotional distressGenerallproperty tortstrespass to landtrespass to chattels (personal property)conversionldignitary tortsdefamationinvasion of privacy Torts Against the PersonAssaultDefinitionlan intentional act that cause

6、s an apprehension of immediate harmful or offensive contactApprehension is not the same as fearhere it means awareness that an injury or offensive contact is imminent.RequirementslThe act must be overt.Mere words do not constitute an assault.AssaultThere must be an accompanying act.lThe defendant mu

7、st have the apparent ability to carry out the contact.Actual ability to carry out the contact is not necessary.lThe plaintiff must have a reasonable apprehension of such contact.Actual fear on the plaintiffs part is not required.ExamplesAssaultlswinging a baseball bat at someonelholding a rock and t

8、hreatening to throw it at someonelpointing a gun at someonelpointing a realistic toy gun at someoneCriminal assault and tortious assaultlCriminal assault can occur even when no threat is perceived by the victim.lWith the tort of assault, a perceived threat by the victim is paramount.AssaultA defenda

9、nt who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.BatteryDefinitionlan intentional act that causes a harmful or offensive contactHarmful contactlcontact that objectively intends to injure

10、, disfigure, impair, or cause painOffensive contactlcontact that would offend a persons sense of personal dignityBatteryExampleslbeating someone with a tire ironlspitting in someones facelknocking a hat off someones headlwhipping a horse on which someone was riding, causing him to fall and be injure

11、dlmixing something offensive in food that he knows another will eatthe other does in fact eat the offensive matterBatteryldigging a pit with the intent that another will fall into it laterthe other does in fact fall into itCriminal and tortious batterylUsually battery is prosecuted as a crime only i

12、n cases involving serious harm to the victim.Criminal law recognizes degrees of crimes involving physical contact.There is but a single tort of battery.False ImprisonmentDefinitionlthe detention of a person in a bounded area without justification or consentThe essence of the tort is the natural ment

13、al harm that results when ones freedom is restricted without justification.Elementslintent to confine a person within a certain areaFalse Imprisonmentlactual confinementlawareness of the confinement by the person so confinedlno reasonable means of escapeFalse arrestlFalse arrest occurs when someone

14、arrests another individual without the legal authority to do so, which becomes false imprisonment the moment he or she is taken into custody.IIEDDefinitionshort for intentional infliction of emotional distressreferred to as the tort of outrage in some jurisdictionslintentional conduct that results i

15、n extreme emotional distressElementslThe defendant must act intentionally or recklessly.IIEDlThe defendants conduct must be extreme and outrageous.lThe conduct must cause the plaintiff to suffer severe emotional distress.Severe emotional distresslThis tort involves more than hurt feelings, disappoin

16、tment, or worry.lThere must be severe mental suffering, i.e. such that no reasonable person should be expected to endure it.IIEDThis standard is quantified by the intensity, duration, and any physical manifestations (ulcers or headaches, for example) of the distress.ExampleslA person refused to info

17、rm another of the whereabouts of that others child for several years, though the person knew where the child was the entire time.IIEDlA person sent a letter to another falsely informing him that a close family member of his had been killed in an accident.Statute of LimitationsDefinitionlan enactment

18、 that restricts the time within which legal proceedings may be initiatedObjectivelto prevent claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time, or the death or disappearance of witnessesStatute of LimitationsFunctionlThe statute o

19、f limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him after the appropriate time has elapsed.ApplicationlThe defendant must raise the defense before the court upon answering the plaintiffs complaint.Statute of LimitationslIf not, he is regard

20、ed as having waived the defense and will not be permitted to use it in any subsequent proceedings.Tolling the statutelWhen the statute is tolled, the running of limitations is suspended until some event specified by law takes place.Most jurisdictions provide that the statute of limitations is tolled

21、 under certain circumstances:Statute of LimitationsThe plaintiff is a minor.The plaintiff has been deemed insane.The plaintiff has been convicted of a felony and is imprisoned.The defendant is in bankruptcy.Shopkeepers PrivilegeGenerallIn some jurisdictions of the US, the courts recognize a common l

22、aw shopkeepers privilege, under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has probable cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.Shopke

23、epers PrivilegeThis privilege does not include the power of search.Requisite conditionslInvestigation on or near premisesThe detention itself should be effected either on the store premises or in the immediate vicinity thereof.lReasonable suspicionThe shopkeeper has reasonable grounds to suspect the

24、 particular person detained is shoplifting.Shopkeepers PrivilegelReasonable force onlyOnly reasonable, non-deadly force is used to effect the detention.lReasonable period and manner of detentionThe detention itself may be for only the time necessary to make a reasonable investigation of the facts.Pr

25、operty TortsTrespass to LandGenerallTrespass to land occurs when a person directly enters upon anothers land without permission, or remains upon the land, or places or projects any object upon the land.lThe basis for this tort is the right to exclusive possession of the land.NaturelThis tort is acti

26、onable per se.Trespass to LandDamages are not required to be proven for intentional trespass.Only when the entry is negligent is there any need to prove damages.IntentlThe intent requirement of trespass is only that the person intended to enter the property.It is irrelevant whether or not the entry

27、is a mistake, caused by ignorance of the ownership or the boundaries.Trespass to LandNotelThe rights inherent in the possession of land extend above and below the surface.Trespass to ChattelsDefinitionlthe intentional interference with another persons lawful possession of a chattel (movable personal

28、 property)Interferencelany physical contact (intermeddling) with the chattel in a quantifiable waylany dispossession of the chattel (whether by taking it, destroying it, or barring the owners access to it)Trespass to ChattelsNotelIn cases of intermeddling, there needs to be actual harm sustained by

29、the plaintiff in order for him to sue.Damages are limited to the actual harm (which can include economic loss as a result of the trespasse.g. loss of profit on a damaged chattel).lIn cases of dispossession, the plaintiff is always entitled to damages even if no quantifiable harm can be proven.Trespa

30、ss to ChattelsExamplelHerman sees his War and Peace sitting on a table. He picks up the book, puts it in his bag and goes home. In fact, the book belongs to Leon and Herman has mistaken it for his own copy.lIn this case, Herman is liable for a trespass to chattels because he intended to take Leons b

31、ook, even though his action was based on a reasonable mistake.ConversionGenerallConversion occurs when someone wrongfully takes or uses property of another for their own purposes or destroys it or alters its nature.Conversion and theftlTheft will also be conversion.lBut not all conversions are theft

32、s because conversion requires no element of dishonesty.ConversionProperty subject to conversionlIt must be personal property.Real property cannot be lost and then found.lIt must be tangible.money, an animal, furniture, or toolscrops or timber (after they are severed from the ground)rights in a paper

33、, such as a life insurance policy, a stock certificate, or a promissory noteConversionExampleslA person has anothers car towed away in order to take the parking place.lA dry cleaner mistakenly delivers a suit to the wrong customer.lA mechanic borrows a sports car he is supposed to repair without per

34、mission.lA neighbor lends her hedge trimmer to a friend, but the friend uses it to cut down a tree.Trespass to Chattels and ConversionGenerallThe two concepts are closely related.SimilaritylBoth include the wrongful, intentional interference of personal property.DifferencelThey are different in degr

35、eethe damage done to the plaintiffs possession in a conversion case is more severe than in a trespass case.Trespass to Chattels and ConversionApplicationlIn general, when an object is damaged but repairable, trespass to chattels is the more appropriate tort. When something is destroyed or stolen, co

36、nversion is more appropriate.lWhen trespass is found, a person can recover the value of the lost use of the itemand recover the item itself. Conversion, instead, allows a person to recover the full value of the item.Trespass to Chattels and ConversionExamplelDaphne hits Martys dog with her car. The

37、dog suffers a broken leg. This would be an actionable trespass to chattels and Marty would be awarded damages commensurate with the harm done by Daphne.lDaphne hits Martys dog with her car. The dog dies. This would be an actionable conversion. Marty would be awarded the dogs full value.Dignitary Tor

38、tsDefamationDefinitionlthe communication of a false statement that harms a persons reputationDefamatory information must be communicated to a third person.Typeslslanderoral defamation (spoken statements)llibelwritten defamation (written, printed or broadcast words)DefamationPublic figure law of defa

39、mationlA public figure alleging libel must prove actual malice.Public figures voluntarily place themselves in a position that invites close scrutiny.Defamation per selSome categories of statements are considered defamatory per seinjury is presumed and neednt be proven.Defamationa statement that nega

40、tively affects a persons reputation relating to his business or professionallegations that a person is unchasteallegations that a person is infected with a sexually transmitted diseaseallegations that a person has committed a crime of moral turpitude (such as rape or incest)Defenses to claims of def

41、amationltruthDefamationlopinionlprivilegeevidence given in courtstatements made in a session of the legislatureInvasion of PrivacyDefinitionlthe intrusion into the personal life of another, without just causeCategorieslintrusion of solitudeactual physical or electronic intrusion into a persons priva

42、te quartersA person was undressing at home, and someone filmed this without telling the person.Invasion of Privacylpublic disclosure of private factsthe dissemination of truthful private information which a reasonable person would find objectionableAn unscrupulous reporter rummaged through a public

43、figures garbage to find evidence of prescription drug use or other highly personal matters.lfalse lightthe publication of facts which place a person in a false light, even though the facts themselves may not be defamatoryInvasion of PrivacyFalse light cases are about damage to a persons personal fee

44、lings or dignity, whereas defamation is about damage to a persons reputation.A reporter returned to the scene of a massive bridge collapse several years after the tragedy. The reporter attempted to interview the widow of a man who died in the crash. The widow and her children were not at home so the

45、 reporter fabricated a story about them which placed them in a false light in the public eye.Invasion of Privacylappropriationthe unauthorized use of a persons name or likeness to obtain some benefitsA local restaurant used a celebritys name or image in a commercial and implied an official endorseme

46、nt.NegligenceGeneralDefinitionlconduct that breaches a standard of care deemed by the law as necessary to protect others from unreasonable risks of harmgenerally expressed as a breach of a dutyElementslThe defendant owed a duty of care to the plaintiff;Generallthe defendant breached that duty; andla

47、s a result of the defendants breach of that duty, the plaintiff suffered injury.Standard of CareGenerallAll people are under a duty to conduct themselves in such a manner as not to create unreasonable risks of physical harm to others.lDuring a trial, the conduct of the defendant is reviewed to deter

48、mine if he or she has met the reasonable person standard.Would a reasonable person have acted similarly under similar circumstances?Standard of CareReasonable personla hypothetical person in society who shows average care, skill or judgment in conductIt is not an average or typical person.It is a co

49、mposite of a communitys judgment as to how a typical member of that community should behave in situations that might pose a threat of harm to the public.Standard of CareEven though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of

50、 the reasonable person.Reasonable person standardlA person has acted negligently if she has departed from conduct expected of a reasonably prudent person acting under similar circumstances.Standard of CareIt is a completely objective test under which subjective elements are normally not taken into a

51、ccount.Subjective traits of the tortfeasor may be considered, but they are considered according to an objective standard.CausationGenerallTo establish causation in negligence cases the plaintiff must prove that the defendants act was both the cause-in-fact and the proximate cause of his injuries.Cau

52、se-in-factlThe but-for testWould the plaintiff have been injured but for the act of the defendant?CausationlThe substantial factor testWas the defendants action a substantial factor in causing the plaintiffs injury?Proximate causelThe directness testThe defendants act is the proximate cause of the p

53、laintiffs injury if there is an unbroken sequence of events between the act and the harm.lThe foreseeability testCausationIt is sufficient if a reasonable person would have foreseen the harmful results.Intervening causelan event which occurs after the defendants negligent act has occurred and which

54、contributes to the injuryIf the intervening cause was the proximate cause of the plaintiffs injury, the defendants act will not be considered the proximate cause.CausationIf the intervening cause was foreseeable, the defendant will often be held liable for this additional harm.NIEDGenerallshort for

55、negligent infliction of emotional distressla controversial cause of actionlavailable in nearly all US states but severely constrained and limited in the majority of themNIED and IIEDlIn an action for NIED there is no need to prove intent to inflict distress.NIEDlAn accidental infliction, if negligen

56、t, is sufficient to support a cause of action.Underlying conceptlOne has a legal duty to use reasonable care to avoid causing mental distress to another individual.lIf one breaches this duty and unreasonably causes mental distress to another individual, he will be liable for damages to the injured i

57、ndividual.Contributory NegligenceDefinitionla defense that bars a plaintiff from recovery if his or her own acts or omissions contribute to the injuryBurden of prooflIn some jurisdictions, the defendant has to prove the negligence of the plaintiff or claimant.lIn others, the burden is on the plainti

58、ff to disprove his own negligence.Contributory NegligenceDisadvantagelIt is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely.ResultlIt has been deleted as a defense from the vast majority of s

59、tatutes and replaced with comparative negligence.Comparative NegligenceDefinitionla defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiffs own negligence contributed to the injuryTypeslPure comparative neglige

60、nceIf a plaintiff is 90% at fault he or she can still recover 10% of his losses.Comparative NegligencelPartial comparative negligenceIf a plaintiff is more than 50% at fault he or she can not recover.Assumption of RiskDefinitionla defense that bars a plaintiff from recovery against a negligent tortf