沙丽金版法律英语.ppt

Tort Law.GeneralDefinitionlTort law is the body of law that deals with civil wrongs,except those that arise from contract problems.Purposelto compensate an injured party through the award of damages for the injuries incurred during a tortious act.GeneralUnderlying policy considerationslmaintenance of a peaceful societyldeterrencelsocial responsibilitylthe balancing of economic interests against societal benefits.Intentional Torts.GeneralDefinitionlany intentional acts that are reasonably foreseeable to cause harm to an individual,and that do soIntentlIntent is most often proved through circumstantial evidencethe defendants conduct,in the context of his or her surroundings and what he or she presumably knew and perceived.GeneralTransferred intentlTransferred intent is a doctrine used in both criminal law and tort law when the intention to harm one individual inadvertently causes a second person to be hurt instead.lUnder the law,the individual causing the harm will be seen as having intended the act by means of the transferred intent doctrine.GeneralSubcategorieslTorts against the personassaultbatteryfalse imprisonmentintentional infliction of emotional distresslProperty tortstrespass to landtrespass to chattels(personal property)conversion.AssaultDefinitionl(in common law)an intentional act that creates an apprehension of an imminent harmful or offensive contactAssault and batterylAs distinguished from battery,assault need not involve actual contactit only needs intent and the resulting apprehension.wielding a knife.Assaultyelling the word snake to a person whom you know is in fear of snakesCriminal assault and tortious assaultlIn criminal law,an assault can result from an attempted battery.Since some attempted batteries might theoretically occur when the victim is sleeping,unconscious,or unaware of the threat,criminal assault can occur even when no threat is perceived by the victim.AssaultlWith the tort of assault,a perceived threat by the victim is paramount.A defendant throws a rock at a sleeping victim.He can only be guilty of the attempted battery assault,since the victim would not be aware of the possible harm.BatteryDefinitionl(at common law)an intentional act causing an unconsented harmful or offensive contact with a personCriminal battery and tortious batterylCriminal law recognizes degrees of crimes involving physical contact.lThere is but a single tort of battery.Battery“Harmful contactlcontact that objectively intends to injure,disfigure,impair,or cause pain“Offensive contactlcontact that would offend a persons sense of personal dignityExampleslspitting in someones face.Batterylintentionally knocking a hat off someones head or knocking a glass out of some-ones handlwhipping a horse on which a plaintiff was riding,causing the plaintiff to fall and be injuredl(a nurse)failing to warn a blind patient that he is headed toward an open window,causing him to fall and injure himself.False ImprisonmentDefinitionlthe detention of a person in a bounded area without justification or consentElementslintent to confine a person within a certain arealactual confinementlawareness of the confinement by the person so confined.False Imprisonmentlabsence of a reasonable means of escapeRemedieslA court may issue a writ of habeas corpus to release a party from unlawful restraint.lThe person falsely imprisoned may sue the offender for damages.IIEDDefinitionshort for intentional infliction of emotional distressreferred to as the tort of outrage in some jurisdictionslintentional conduct that results in extreme emotional distressElementslThe defendant must act intentionally or recklessly;.IIEDlthe defendants conduct must be extreme and outrageous;andlthe conduct must cause the plaintiff to suffer severe emotional distress.ExampleslA defendant refused to inform a plaintiff of the whereabouts of the plaintiffs child for several years,though that defendant knew where the child was the entire time.IIEDlA defendant sent a letter to a plaintiff falsely informing the person that a close family member had been killed in an accident.Statute of LimitationsDefinitionlan enactment that restricts the time within which legal proceedings may be initiatedObjectiveldesigned to 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 witnesses.Statute of LimitationsFunctionlThe statute of 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 regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.Tolling the statutelMost jurisdictions provide that limitations are tolled under certain circumstances.The aggrieved party(plaintiff)is a minor.The plaintiff has filed a bankruptcy proceeding.Shopkeepers PrivilegeGenerallIn some jurisdictions of the US,the courts recognize a common law 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 cause to believe that the person detained in fact committed,or attempted to commit,theft of store property.Shopkeepers PrivilegeRequisite 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 particular person detained is shoplifting.lReasonable force only.Shopkeepers PrivilegeOnly 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.Property Torts.GeneralDefinitionlProperty torts are a specific class of intentional torts which arise when the right invaded is a property right rather than a personal right.Typesltrespass to landentering someones land without permission.Generalltrespass to chattelshandling items owned by another without permissionlconversiontaking possession of someone elses property with the intent not to return it.Trespass to LandDefinitionlthe wrongful interference with ones possessory rights in(real)propertyIt is actionable per se.(It is not necessary to prove that harm was suffered to bring a claim.)Interferencelany physical entry to landlthrowing anything on the land.Trespass to Landlthe abuse of a right of entry,when a person who has the right to enter the land does something not covered by the permissionLandlthe surfacelanything permanently attached to the land,such as houseslthe subsoillthe airspace.Trespass to ChattelsDefinitionlthe intentional interference with another persons lawful possession of a chattel(movable personal property)Interferencelany physical contact 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 ChattelsElementslLack of consentThe interference with the property must be non-consensual.lActual harmThe interference with the property must result in actual harm.lIntentionalityThe interference must be intentional.ConversionDefinitionlthe wrongful disposition of anothers property as if it were ones ownProperty subject to conversionlIt must be personal property:Real property cannot be lost and then found.lIt must be tangible:an animal,money,furniture,tools,or receipts;.Conversioncrops or timber(after they are severed from the ground)the rights in a paper,such as a life insurance policy,a stock certificate,or a promissory noteElementslThe plaintiff owns or has the right to possess the property in question at the time of the interference;lthe defendant intentionally interfered with the plaintiffs property;.Conversionlthe interference deprived the plaintiff of possession or use of the property in question;andlthe interference caused damages to the plaintiff.Traditional defenseslAbandonmentThe property had been abandoned before it was taken by the defendant.ConversionlAuthority of lawThe property was taken by authority of law,a court order or valid process.lConsentThe property was taken with consent of the plaintiff,either express or implied.lFraud of the plaintiffThe plaintiff conveyed property to a third person for purposes of evading creditors.Trespass to Chattels and ConversionSimilaritylBoth include the wrongful,intentional interference of personal property.DifferencelThe difference between them is one of degreethe degree of possession the interfering person has assumed.In general,when an object is damaged but repairable,trespass to chattels is the more appropriate tort.When something is destroyed or stolen,conversion is more appropriate.Trespass to Chattels and ConversionWhen trespass is found,a person can recover the value of the lost use of the itemand recover the item itself.Conversion,on the other hand,allows a person to recover the full value of the item.ExamplelIf someone steals property from you and you are able to recover it with minimal or no damages,you may have a cause of action in trespass to chattel.lIf the same person steals the property and sells it to another,you will have a cause of action in conversion.Negligence.GeneralDefinitionlconduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harmElementslThe defendant owed a duty to the plaintiff;lthe defendant breached that duty;.Generallas a result of the defendants breach of that duty,the plaintiff suffered injury;andlthe injury was a reasonably foreseeable consequence of the defendants action or inaction.Duty of CareDefinitionlIn tort law,a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.Foreseeability.Duty of CarelIn many states,the only test is whether the harm to the plaintiff from the defendants actions was foreseeable.Standard of CareDefinitionlthe degree of prudence and caution required of an individual who is under a duty of careThe reasonable person standardlEach person owes a duty to behave as a reasonable person would under the same or similar circumstances.Standard of CareFactors involved:lthe knowledge,experience,and perception of the personlthe activity the person is engaging inlthe physical characteristics of the personlthe circumstances surrounding the persons actions.NIEDGenerallshort for negligent infliction of emotional distressla controversial cause of actionContrast with IIEDlThere is no need to prove intent to inflict distress.(That is,an accidental infliction,if negligent,is sufficient to support a cause of action.).NIEDUnderlying conceptlOne has a legal duty to use reasonable care to avoid causing emotional distress to another individual.lIf one fails in this duty and unreasonably causes emotional distress to another person,that actor will be liable for monetary damages to the injured individual.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 a plaintiff or claimant.lIn others,the burden is on a plaintiff to disprove his own negligence.Contributory NegligenceDefectlIt 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.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 negligenceIf 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 in the law of torts,which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury.Assumption of RiskTheorylUpon assumption of the risk,there is no longer a duty of care running from the defendant to the plaintiff.lWithout a duty owed by the defendant,there can be no negligence on his part.ApplicationlThis defense is commonly used in cases of injuries occurring during risky recreational activities.Strict Liability Torts.GeneralStrict liabilitylIn tort law,strict liability is liability without fault(such as negligence or tortious intent).Policy basislUnder certain circumstances,a plaintiff may be allowed recovery even though there is no fault on the part of the defendant.GeneralApplicationlStrict liability often applies to those engaged in hazardous or inherently dangerous activities:blastingstoring inherently dangerous substanceskeeping wild animalslIt also applies to sellers and manufacturers.Product LiabilityDefinitionlthe responsibility of a manufacturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for saleProduct liability claims in the USlnegligence claimslstrict liability claimslbreach of warranty claimslvarious consumer protection claims.Product LiabilityTypes of liabilitylManufacturing defectManufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship.lDesign defectDesign defects occur where the product design is inherently dangerous or useless(and hence defective)no matter how carefully manufactured.Product LiabilitylFailure-to-warn defect(also known as marketing defect)Failure-to-warn defects arise in products that carry inherent nonobvious dangers which could be mitigated through adequate warnings to the user,and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose.Ultra-hazardous ActivityGenerallAn ultra-hazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person,even if the person engaged in the activity took every reasonable precaution to prevent others from being injured.Ultra-hazardous ActivityCategorieslTransportation,storage,and use of ultra-hazardous materialsdynamite and other explosivesradioactive materialscertain hazardous chemicalslKeeping of dangerous animalswild animals(i.e.animals that are not normally domesticated in that area)domesticated animals that ha