沙丽金版法律英语

TortLaw2021/10/10

1o

Definition·

Tort

law

is

the

body

of

law

that

deals

with

civil

wrongs,

except

those

thatarise

from

contract

problems.o

Purpose●

to

compensate

an

injured

partythrough

the

award

of

damages

for

the

injuries

incurred

during

a

tortious

act2021/10/10

2Generalo

Underlying

policy

considerations●

maintenance

of

a

peaceful

society●

deterrence●

social

responsibility●

the

balancing

of

economic

interestsagainst

societalbenefits2021/10/10

3GeneralIntentional

Torts2021/10/10

4o

Definition●

a

ny

intentional

acts

that

are

reasonablyforeseeable

to

cause

harm

to

ano

Intent●

Intent

is

mostoften

proved

throughcircumstantial

evidence—thedefendant's

conduct,

in

the

context

ofhis

or

her

surroundings

and

what

he

orshe

presumably

knew

and

perceived.individual,

and

that

do

so2021/10/10

5Generalinadvertently

causes

a

second

persono

Transferred

intent●

Transferred

intent

is

a

doctrine

used

inboth

criminal

law

and

tort

law

when

theintention

to

harm

one

individualto

be

hurt

instead.●

Under

the

law,

the

individual

causingthe

harm

will

be

seen

as

having"intended"

the

act

by

means

of

the"transferred

intent"

doctrine.2021/10/10

6Generalo

Subcategories●

Torts

against

the

persono

assaulto

batteryo

false

imprisonmento

intentional

infliction

of

emotional

distress●

Property

tortso

trespass

to

lando

trespass

to

chattels

(personal

property)o

conversion2021/10/10

7Generalo

Definition(in

common

law)

an

intentional

act

that●

As

distinguished

from

battery,

assaultcreates

an

apprehension

of

animminent

harmful

or

offensive

contact

o

Assault

and

batteryneed

not

involve

actual

contact—

it

onlyneeds

intent

and

the

resulting2021/10/10

8apprehension.o

wielding

a

knifeAssaulto

yelling

the

word

snake

to

a

person

whomyou

know

is

in

fear

of

snakeso

Criminal

assault

and

tortious

assault●

In

criminal

law,

an

assault

can

resultfrom

an

attempted

battery

.

Since

someattempted

batteries

might

theoreticallyoccur

when

the

victim

is

sleeping,unconscious,

or

unaware

of

the

threat,criminal

assault

can

occur

even

whennothreat

is

perceived

bythevictim.2021/10/10

9Assault●

With

the

tort

of

assault,

a

perceived

threat

by

the

victim

is

paramount.*A

defendant

throws

a

rock

at

asleeping

victim.o

He

can

only

be

guilty

of

the

attemptedbattery

assault,

since

the

victim

would

not

be

aware

of

the

possible

harm.2021/10/10

10Assaulto

Definition(at

common

law)an

intentional

actcausing

an

unconsented

harmful

or●

There

is

but

a

single

tort

of

battery.2021/10/10

11offensive

contact

with

a

persono

Criminal

battery

and

tortiousb

l

law

recognizes

degrees

ofCriminaatterycrimes

involving

physical

contact.Battery

Battery

o

"Harmful"

contact●

contact

that

objectively

intends

toinjure,

disfigure,

impair,

or

cause

paino

"Offensive"

contact●

contact

that

would

offend

sense

of

personal

dignityo

Examples●

spitting

in

someone's

face2021/10/10

12a

person's

Battery

●

intentionally

knocking

a

hat

offsomeone's

head

or

knocking

a

glassout

of

some-one's

hand●

whipping

a

horse

on

which

a

plaintiffwas

riding,

causing

the

plaintiff

to

falland

be

injured(a

nurse)

failing

to

warn

a

blind

patientthat

he

is

headed

toward

an

openwindow,

causing

him

to

fall

and

injurehimself2021/10/10

13o

Definition●

the

detention

of

a

person

in

a

bounded

area

without

justification

or

consento

Elements●

intent

to

confine

a

person

within

a

certain

area●

actual

confinement●

awareness

of

the

confinement

by

theperson

so

confinedFalse

Imprisonment2021/10/10

14●

absence

of

a

reasonable

means

ofescapeo

Remedies·

A

court

may

issue

a

writ

of

habeascorpus

to

releasea

party

from

unlawful

restraint.●

The

person

falsely

imprisoned

may

sue

the

offender

for

damages.False

Imprisonment2021/10/10

15o

Definition★

short

for

intentional

infliction

ofemotional

distress★referred

toasthe

tort

of

outrage

insome

jurisdictions●

intentional

conduct

that

results

inextreme

emotional

distresso

Elements●

The

defendant

must

act

intentionally

orrecklessly;2021/10/10

16IIED●

the

defendant's

conduct

must

be●

A

defendant

refused

to

inform

aextreme

and

outrageous;

and●

the

conduct

must

cause

the

plaintiff

toplaintiff

of

the

whereabouts

of

theplaintiff's

child

for

several

years,though

that

defendant

knew

where

thesuffer

severe

emotional

distress.child

was

the

entire

time.2021/10/10

17o

ExamplesIIED●

A

defendant

sent

a

letter

to

a

plaintiffan

accident.falsely

informing

the

person

that

aclose

family

member

had

been

killed

in2021/10/10

18IIEDo

Definition●

an

enactment

that

restricts

the

time●

designed

to

prevent

claims

from

arisingafter

all

evidence

has

been

lost

or

afterthe

facts

have

become

obscure

throughwithin

which

legal

proceedings

may

bethe

passage

of

time,

or

the

death

ordisappearance

of

witnessesStatute

of

Limitations2021/10/10

19initiatedo

Objectiveo

Function●

The

statute

of

limitations

is

a

defenseo

Application●

The

defendant

must

raise

the

defensethat

is

ordinarily

asserted

by

thedefendant

to

defeat

an

action

broughtagainst

him

after

the

appropriate

timebefore

the

court

upon

answering

theplaintiff's

complaint.Statute

of

Limitations2021/10/10

20has

elapsed.Statute

of

Limitations●

If

not,

he

is

regarded

as

having

waivedo

Tolling

the

statute·

Most

jurisdictions

provide

thatlimitations

are

tolled

under

certaincircumstances.o

The

aggrieved

party

(plaintiff)

is

a

minor.o

The

plaintiff

has

filed

a

bankruptcy

proceeding.the

defense

and

will

not

be

permittedto

use

it

in

any

subsequent

proceedings.2021/10/1021o

General●

In

some

jurisdictions

of

the

US,

thecourts

recognize

a

common

lawshopkeeper's

privilege,

under

which

ashopkeeper

is

allowed

to

detain

asuspected

shoplifter

on

store

propertyfor

a

reasonable

period

of

time,

so

longas

the

shopkeeper

has

cause

to

believethat

the

person

detained

in

factcommitted,

or

attempted

to

commit,Shopkeeper's

Privilegetheft

of

store

property.2021/10/10

22Shopkeeper's

Privilegeo

Requisite

conditions●

Investigation

on

or

near

premiseso

The

detention

itself

should

be

effectedeither

on

the

store

premises

or

in

theimmediate

vicinity

thereof.●

Reasonable

suspiciono

The

shopkeeper

has

reasonable

groundsto

suspect

the

particular

person

detainedis

shoplifting.●

Reasonable

force

only2021/10/10

23o

Only

reasonable,

non-deadly

force

is

usedto

effect

the

detention.·

Reasonable

period

and

manner

of

detentiono

The

detention

itself

may

be

for

only

thetime

necessary

tomake

areasonableinvestigation

of

the

facts.Shopkeeper's

Privilege2021/10/10

24Property

Torts2021/10/10

25o

Definition●

Property

torts

are

a

specific

class

ofintentional

torts

which

arise

when

thethan

a

personal

right.o

Types●

trespass

to

lando

entering

someone's

land

withoutpermissionright

invaded

is

a

property

right

rather2021/10/10

26General●

trespass

to

chattelso

handling

items

owned

by

another

without

permission●

conversiono

taking

possession

of

someone

else'sproperty

with

the

intent

not

to

return

it2021/10/10

27Generalo

Definition●

the

wrongful

interference

with

one'spossessory

rights

in

(real)

property★

It

is

actionable

per

se.(It

is

notnecessary

to

prove

that

harm

wassuffered

to

bring

a

claim.)o

Interference●

any

physical

entry

to

landthrowing

anything

onthe

landTrespass

to

Land2021/10/10

28Trespass

to

Land●

the

abuse

of

a

right

of

entry,

when

ao

Landthesurfaceanything

permanently

land,

such

as

housesperson

who

has

the

right

to

enter

theland

does

something

not

covered

by●

the

subsoil●

the

airspace2021/10/10

29the

permissionattached

to

the●

●o

Definition●

the

intentional

interference

with●

any

physical

contact

with

the

chattel

ina

quantifiable

way●

(

t

e

i

g

o

t,

st

it,

orngtelitroychadetheifkinontassbyosserisphdwheanyanother

person's

lawful

possession

of

achattel

(movable

personal

property)barring

the

owner's

access

to

it)Trespass

to

Chattels2021/10/10

30o

Interferenceo

Elements●

Lack

of

consento

The

interference

with

the

property

must

be

non-consensual.●

Actual

harmo

The

interference

with

the

property

mustresult

in

actual

harm.●

Intentionalityo

The

interference

must

be

intentional.Trespass

to

Chattels2021/10/10

31o

Definition●

the

wrongful

disposition

of

another's●

It

must

be

tangible:o

an

animal,

money,

furniture,

tools,

orreceipts;property

as

if

it

were

one's

owno

Property

subject

to

conversion●

It

must

be

personal

property:o

Real

property

cannot

be

lost

and

thenfound.2021/10/10

32Conversiono

crops

or

timber

(after

they

are

severedo

Elements·The

plaintiff

owns

or

has

the

right

topossess

the

property

in

question

at

thetime

of

the

interference;the

defendant

intentionally

interferedfrom

the

ground)o

the

rights

in

a

paper,

such

as

a

lifeinsurance

policy,

a

stock

certificate,

or

awith

the

plaintiff's

property;2021/10/10

33promissory

noteConversion●

the

interference

deprived

the

plaintiffof

possession

or

use

of

the

property

inquestion;

and●

the

interference

caused

damages

to

theo

Traditional

defenses●

Abandonmento

The

property

had

been

abandoned

before2021/10/10

34it

was

taken

by

the

defendant.Conversionplaintiff.·Authority

of

lawo

The

property

was

taken

by

authority

oflaw,

a

court

order

or

valid

process.●

Consento

The

property

was

taken

with

consent

of

the

plaintiff,

either

express

or

implied.●

Fraud

of

the

plaintiffo

The

plaintiff

conveyed

property

to

a

third

person

for

purposes

of

evading

creditors.2021/10/10

35Conversion●

The

difference

between

them

is

one

of

degree—the

degree

of

possession

the

interfering

person

has

assumed.o

In

general,

when

an

object

is

damaged

butrepairable,

trespass

to

chattels

is

the

moreappropriate

tort.

When

something

isdestroyedor

stolen,

conversion

is

moreappropriate.·

Both

include

the

wrongful,

intentionalinterference

ofpersonal

property.o

Difference2021/10/10

36o

SimilarityTrespassConversionChattelsandtoo

When

trespass

is

found,

a

person

can

recoverthe

value

of

the

"lost

use"

of

the

item—andrecover

the

item

itself.

Conversion,

on

theo

Example●

If

someone

steals

property

from

you

and

youare

able

to

recover

it

with

minimal

or

nodamages,

you

may

have

a

cause

of

action

intrespass

to

chattel.●

If

the

same

person

steals

the

property

and

sells

it

to

another,

you

will

have

a

cause

ofactioninconversion.other

hand,

allows

a

person

to

recover

the

full

value

of

the

item.2021/10/10

37and

ConversionTrespassChattelstoNegligence2021/10/10

38o

Definition●

conduct

that

is

culpable

because

it

fallso

Elements·

The

defendant

owed

a

duty

to

the

plaintiff;●

the

defendant

breached

that

duty;short

of

what

a

reasonable

personwould

do

to

protect

another

individualfrom

foreseeable

risks

of

harm2021/10/10

39Generalas

a

result

of

the

defendant's

breach

ofandthe

injury

was

a

reasonably

foreseeable

consequence

of

the

defendant's

action

or

inaction.that

duty,

the

plaintiff

suffered

injury;2021/10/10

40Generalo

Definition●

In

tort

law,adutyof

care

is

a

legalobligation

imposed

on

an

individualrequiring

that

they

adhere

to

astandard

of

reasonable

care

whileo

Foreseeabilityperforming

any

acts

that

couldforeseeably

harm

others.2021/10/10

41Duty

of

CareIn

many

states,

the

only

test

iswhether

the

harm

to

the

plaintiff

fromthe

defendant's

actions

wasforeseeable.2021/10/10

42Duty

of

Careo

Definition●

the

degree

of

prudence

and

cautionrequired

of

an

individual

who

is

under

aduty

of

careo

The

reasonable

person

standard●

Each

person

owes

a

duty

to

behave

as

a

reasonable

person

would

under

the

same

or

similar

circumstances.2021/10/10

43Standard

of

Careo

Factors

involved:●

the

knowledge,

experience,

and

perception

of

the

person●

the

activity

the

person

is

engaging

in●

the

physical

characteristics

of

the

person●

the

circumstances

surrounding

the

person's

actions2021/10/10

44Standard

of

Careo

Genera●

short

for

negligent

infliction

of

emotional

distress●

a

controversial

cause

of

actiono

Contrast

with

IIED●

There

is

no

need

to

prove

intent

toinflict

distress.(That

is,

an

accidentalinfliction,

if

negligent,

is

sufficient

tosupport

a

cause

of

action.)2021/10/10

45NIEDo

Underlying

concept·

One

has

a

legal

duty

to

use

reasonable

care

to

avoid

causing

emotionaldistress

to

another

individual.●If

one

fails

in

this

duty

andunreasonably

causes

emotional

distressto

another

person,

that

actor

will

beliable

for

monetary

damages

to

theinjured

individual.2021/10/10

46NIED

Contributory

Negligence

o

Definition●

a

defense

that

bars

a

plaintiff

from

recovery

if

his

or

her

own

acts

or

omissions

contribute

to

the

injuryo

Burden

of

proof●

In

somejurisdictions,

the

defendanthas

to

prove

the

negligence

of

aplaintiff

or

claimant.●

In

others,

the

burden

is

on

a

plaintiff

to

disprove

his

own

negligence.2021/10/10

47o

Defect●

It

is

often

regarded

as

unfair

becauseunder

the

doctrine

a

victim

who

is

atfault

to

any

degree,

including

only

1%at

fault,

will

be

denied

compensationContributory

Negligence2021/10/10

48entirely.o

Definition●

a

defense

that

reduces

the

amount

of'Pure'

comparative

negligenceo

Ifa

plaintiff

is

90%

at

fault

he

or

she

canstill

recover

10%

of

his

losses.damages

that

a

plaintiff

can

recover

ina

negligence-based

claim

based

uponthe

degree

to

which

the

plaintiff's

ownnegligence

contributed

to

the

injuryComparative

Negligence2021/10/10

49o

Typeso

If

a

plaintiff

is

more

than

50%

at

fault

heor

she

can

not

recover.●

'Partial'

comparative

negligenceComparative

Negligence2021/10/10

50o

Definition●

f

laii

tif

h

o

wre

,

a

st

anegligent

tortfeasor

if

the

defendantcan

demonstrate

that

the

plaintiffvoluntarily

and

knowingly

assumed

therisks

at

issue

inherent

to

the

dangerousactivity

in

which

he

was

participating

atthe

time

of

his

injuryainhichgweryortsovtcofmlafreftnna

pensersdebaaAssumption

of

Risk2021/10/10

51o

Theory●

Upon

assumption

of

the

risk,

there

is●

This

defense

is

commonly

used

in

casesno

longer

a

duty

of

care

running

fromthe

defendant

to

the

plaintiff.·

Without

a

duty

owed

by

the

defendant,there

can

be

no

negligence

on

his

part.of

injuries

occurring

during

riskyrecreational

activities.Assumption

of

Risk2021/10/10

52o

ApplicationStrict

Liability

Torts2021/10/10

53o

Strict

liability●

In

tort

law,

strict

liability

is

liabilitywithout

fault

(such

as

negligence

ortortious

intent)

.o

Policy

basis●

Under

certain

circumstances,

a

plaintiffmay

be

allowed

recovery

even

thoughthere

is

no

fault

on

the

part

of

thedefendant.2021/10/10

54Generalo

Applicati