Tort Law: Understanding Civil Wrongs and Legal Remedies - Prof. Alvin Stauber, Study notes of Business and Labour Law

Download Tort Law: Understanding Civil Wrongs and Legal Remedies - Prof. Alvin Stauber and more Study notes Business and Labour Law in PDF only on Docsity! Test 3 Review : Bul 3310 Alvin Stauber MWF 10:10-11:00 Tort 1. Tort (p 47) – a CIVIL crime other than breach of contract (and can sue for money) - Primarily a “fault-based law”, determines who is responsible for what, and the corresponding money damages. 2. A tort involves a direct interference with ANY of the following three: a. Person (body) - Ex: swinging a baseball bat at someone’s head or driving 80 mph in a 40 mph zone and getting in a wreck that hurts another’s body, shows negligence/ car wreck is the most common b. Property - Ex: vandalism , trespassing c. Intangible Interests - This means “incapable of touching” or non-physical harm - Ex: slander (spoken) or libel (written) against one’s reputation. Key = the information spread must be false; if it is true then there is no tort. - Another example is privacy, we allow some interferences of privacy with cameras and such, but a jury will decide what is “unreasonable” In Class Tort example: (Ft. Lauderdale) A man sues a strip club, “Booby Trap” after receiving an injury. An exotic dancer’s shoe flew off during performance and broke the mirror ceiling resulting in broken glass shards falling on the man and causing injury. It was found that the employee failed to reasonably perform in a safe manner. The Booby Trap was at fault for negligence. Tort Liability 1. Intentional Tort - Meant to hurt, ex: swinging a baseball bat at someone’s head 2. Negligence - Fault based, but not intended, looked at as “careless” ex: speeding or stripper from above reference/ most common tort! 3. Strict Liability - Even if you did not intend, or were not careless, if your action injures someone, the injured can still sue. This is usually associated with very dangerous activities. In Class Example: explosives, we know that they have advantages, and we know that they are dangerous. Construction companies are at fault even if they take every precaution possible against injury with explosives. This is considered a “cost of doing business” because some things require responsibility (explosives). I. Intentional Torts A. Assault – INTENTIONAL act of putting another person in apprehension for his physical safety 1. Actual, physical contact is NOT required - Ex: point a gun with no bullets loaded at someone, this IS a tort because it was done intentionally to make someone afraid. 2. There must be present, apparent ability to carry out the “threat” - Key = apparent, what it looks like at that present time, it is assault because it instills fear, even a squirt gun robbery of a bank is an assault if it instills fear “If you point an object and someone reasonably believes it is a gun, then it is a felony of assault.” In Class Example: Guy said if it were not Sunday he would ram an object through someone’s gut. On Monday a suit was filed against the threatening guy, it was dropped because there was no “future apparent ability” shown because it was stated “if it were not Sunday” but it was Sunday at the time, therefore no present fear could be shown. B. Battery – Intentional touching of another person without consent or justification - Key difference from assault is that touching IS required, it does not have to be the hand, it could be touching of the foot, or any objects thrown. 4 states include second hand smoke as battery. Emotional and mental injuries are considered. - In class ex: Man swung and hit a woman with an alligator; he got 6 months in jail for battery. - Can you have Assault without Battery? Yes, point but do not shoot a gun - Can you have Battery without Assault? Yes, attacking from behind or in one’s sleep, the victim never saw so they did not have a chance to have fear - Police grabbing is an exception, the key = justification, if something is not justified and force is abused, it can be “excess of force” and is a battery. Fireman and health officials are justified as they could sometimes be dealing with unconscious people. 1. Consent (important because battery is without consent) a. Expressed Consent – Given by words (verbal or written) ex: boxing match, it is agreed in writing that the opponents can hit each other (going past the contract, Tyson biting part of an ear off) b. Implied Consent (most used way) – Shown through conduct (determined by the jury) ex: in a pickup football game all players do not specifically have to tell every other player that they can touch them, it is implied - Why do we waive some people from defamation? We don’t want people to be afraid of saying the truth in the courtroom. Immunity is given in the courtroom to provide as much incentive for the truth as possible without repercussion. b. Qualified – even if the statement is false, the speaker/writer is immune from liability if ALL of the following three are correct: i. The statement is made in good faith, and, ii. The statement was made with legitimate interest iii. The statement was made in a reasonable manner - The story on p. 51 in the target packet regarding slander: the cashier suing her boss won because of the tone of the boss’s voice and his lack of denying her accusation. 6. Suits by public officials/ public figures require a showing of malice – malice = a reckless disregard for the truth, public figures and celebrities chose to put themselves in the limelight and can attract more attention because of it, it is for this reason that malice must be proven. In class Ex = a famous actor was portrayed on the cover of a hustler magazine having sex with his own grandma on a commode. This went all the way to Supreme Court and they ruled that it was obviously a joke, satire, so it was dropped. G. Intentional Infliction of Emotional Distress – BOTH of the following must exist 1. Outrageous conduct 2. Severe emotional distress - This law is difficult to enact because if we allowed anyone in emotional distress to sue, too many people would be doing so. The act must be way beyond wrong, “Horribly wrong” In Class Ex = An old man was in a nursing home and when his wife came to visit him one day noticed all these small cuts and bruises on him all over. The nursing home said they were trying to shave him, but after some investigating the wife found out it was rodent bites, they had been biting him when nobody was there and he could not defend himself. She sued for intentional infliction of emotional distress. It was not directly intentional, but it was a reckless disregard for safety which is equal to intentional conduct. H. Invasion of Privacy 1. Appropriation – Unlawful use of a person’s name or likeness ex = putting Tiger Woods name on your golf clubs without his knowledge 2. Intrusion – Unreasonable offensive interference with another’s privacy, ex = Jennifer Anniston suing paparazzi for taking pictures of her sunbathing topless when the pictures were taken from a tree top to see over her privacy wall. She sued for appropriation (because the photos were published in a magazine) and intrusion. This is why baseball tickets have so much writing, waive rights to photos and etc. 3. Public Disclosure of Private Facts – publicity given to private information about another which is offensive / objectionable to that person. Ex = releasing private medical information, giving out other’s SS #, posting bad checks received at the front of the store or by the register, and revealing the identity of rape victims (because it increases their pain and suffering) 4. False Light – publicity that places another in false light. Ex = remember the restaurant case on p. 51, the boss was at fault because of the tone in which he made his comment, false light is “putting one in the appearance of doing something wrong” 5. Remedies a. Damages (money) b. Injunction – a court order commanding an action or the refraining from an action. Ex = Anniston ordering the removal of her topless photos from magazines I. Fraud – intentional misrepresentation of a material fact justifiably relied upon by the injured party – aka lying. Ex = rolling back the odometer on a car to make it appear as having less use and selling for more J. Nuisance – unreasonable interference with a person’s right to use or enjoy his property. The keyword = unreasonable, it will be determined by the jury. In class Ex = a funeral home was next to a neighborhood, and the only way in and out of that neighborhood was to go by the funeral home, the residents claimed it was a nuisance because they thought about death every time they came or left their home. The solution was to build another entrance/exit on the other side of the neighborhood giving the residents options. K. Alienation of Affections – Depriving a husband/ wife of the affections of his/ her spouse. This is relating to an affair with married people, a “stealing” of affections if you will. In 2008 this was abolished in the state of Florida. II. Negligence a. Elements of a negligence lawsuit (must prove all 4 in a negligence lawsuit) 1. Duty of Care – to be careful and follow all rules 2. Breach of Duty of Care (negligent conduct) – violating the duty of care, ex = running a red light 3. Causation – showing that the other caused something to happen 4. Injury b. Types of Business Negligence 1. Manufacturing Negligence a. Negligence in Design (faulty design) b. Negligence in Selection of Materials – ex = when airplane engines were falling off due to weak wing material c. Negligence in packaging (this is why coffee has HOT HOT written all over it) d. Negligence in quality control ( having proper testing and inspection of products, will be determined by jury) 2. Retailing Negligence a. Premises Liability – This says that one is responsible for their own property, it covers a lot of issues, Ex = man bitten by snake in wall mart garden section of store sued for premises liability regarding Negligent security of the property. 3. Service Negligence a. Professional Malpractice (any professional, doctor, accountant) c. Duty of Care: Reasonable Person Standard – This is for the jury to make a comparable of the most general, middle of the road reasonable person so they can tell how the real person acted in comparison. 1. Reasonable person 2. Or ordinary prudence (carefulness) 3. Under like or similar circumstances - Ex = “Case of the Errant Bee” A school bus driver in West Virginia was driving, swatted at a bee while driving and crashed the bus and kids get hurt. The parents sue, but it was determined that the bus driver was instinctive, and not careless at all to swat at the bee, this is a “unavoidable accident” in the eyes of the law; similar to if a 25 y/o person in good health crashes a bus because of a heart attack, nobody is really at fault. Duty: 1) exercise reasonable care for visitor’s safety 2) warn about dangerous conditions (but do not have to fix, ex= hole in yard) - Key word is consent, because of the different types of consent, if someone just drops in unexpectedly, but they do it on a regular basis, they can be considered a licensee. 3. Invitee – business customer (this involves the highest duty of care) Duty: Same as licensee, but in ADDITION, to make reasonable inspection of the premises to discover dangerous conditions. ex= Publix has a reasonable plan to keep all isles clean, maybe one person walks around the store at all times, it is unreasonable to have a person assigned to every aisle, will be determined by jury. i. Parents’ Liability for Torts of Their Child a. Rule: Parent is NOT liable for tort of his child, UNLESS: 1. Child is agent of parent (because employer is responsible for employee when on the job) 2. Parent sanctions or directs child’s tort (parent tells kid to throw baseball through neighbor’s window) 3. Parent fails to exercise proper parental control over the child (most used) ex = parents go out of town, kid stays at home throws a party with booze, kids leave party and get hurt drunk driving, the parents ARE liable ONLY if similar parties existed before because then it would be foreseeable, the first party is an exception) III. (P. 63)Strict Liability – liability without fault a. Ultrahazardous Activities (Very dangerous) 1. Use of Explosives 2. Keeping Wild Animals (Legal but liability imposed) 3. Tavern (bar) owner liability- “Dram Shop Laws” - Intentional torts and negligence are fault based, with strict liability fault is irrelevant, even if one is careful or not. Ex = Tiger biting kids head at a school fundraiser, it is KNOWN that wild animals are dangerous, so if anything happens while dealing with them, many people can get in trouble, both the handler and the school were at fault in the tiger case. - The tavern liability is described at length on p. 63, it states that a bar owner IS liable to damages caused to third parties through drunk driving IF the person that caused the accident is either 1) a minor or 2) an alcoholic. It is easy to check for minors, but alcoholics are hard to point out / identify, the law considers an alcoholic someone that is “habitually addicted to the use of any alcoholic beverage.” It is such a grey area as to if someone is an alcoholic or not, so there is a rule saying that family members of alcoholics can submit their name and photo to bars stating that they are alcoholics and that they should not be served, this is about the only real way a tavern owner could get in trouble because it is foreseeable that they could cause a problem, but it is still tough due to changes in appearance and the amount of people that have to know the alcoholics. It should be noted that this applies to tavern owners only, not social hosts. b. Respondeat Supervisor “Vicarious Liability” (the boss is liable for torts committed by employees ON THE JOB) - Employer is liable for employee torts when they are committed within the “course and scope of employment” basically on the job, it is up to a jury to decide whether someone was on the job or not, the job or not, the relating in class example had a truck driver going from Tallahassee to Jacksonville, but the driver went to Gainesville for lunch(courts call this “On a Frolic”, had a wreck, they are obviously not on their job duty so the employer is NOT liable, but if that same wreck happens 5 or 10 miles off the main course, the jury will decide what is and is not reasonable. The owner / employer is ONLY liable when the tort was on the job and within limits. c. Product Liability (must satisfy BOTH of the following) 1. Product is defective, AND… 2. Product is unreasonably dangerous to user OR consumer (notice that it does not have to be the person that bought the item) - In class ex = A knife has a defective screw, someone is going to cut turkey with the knife, the defective screw breaks, the handle falls off, and the user slices a big cut in their hand. The victim would win the suit because the knife is BOTH defective AND unreasonably dangerous. A knife is unavoidably dangerous because of its sharpness, but the defective screw/handle made the knife unreasonably dangerous and defective. Another example is someone finding a dead rat in their salad at McDonalds; it is both defective and unreasonably dangerous. d. Dog Owner Liability (p. 64-65) - “A dog is NOT entitled to one bite.” – This is said to protect the victim, to avoid the owner claiming that they did not know the dog was vicious. - There is Strict Liability for dog damages, “Owners of dogs shall be liable for any damage done by their dogs to a person or animal” Notice it just says “damage”, this is because there is more specific rules for biting. - Dog Bites: An owner is liable for dog bites in public places or if the victim is lawfully in a private place regardless of prior knowledge regarding the dog’s viciousness, BUT, if any negligence by the victim is recognized (taunting the dog), a percentage will be assigned to the victims negligence, and taken away from the owner’s negligence (this makes victim receive less $). - Owners are NOT liable, except for victims under the age of 6 (because they potentially cannot read), IF they have a clearly posted sign with the words “Bad Dog”, the Supreme Court ruled that “Beware of Dog” could work also. IV. Tort Reform in Florida – 2003 a. Medical Malpractice Litigation 1. $500,000 Cap on non-economic damages (so dr’s insurance isn’t as high) 2. Itemized Verdict Requirement a. Past Economic Losses b. Future Economic Losses and Number of Years Award is Intended to Cover c. Past non-economic damages d. Future non-economic losses and Number of Years Award is Intended to Cover e. Punitive damages, if applicable - This was done to simplify the process for jurors, see page 66 in target packet, an example of a confusing to some jurors form that they messed up the total amount compensated with. V. Tort Reform in Florida – 1999 a. Jury Duty and Instructions (jurors are allowed to take notes in certain instances, jurors can ask questions through written paper passed on to the judge) b. Expedited Trials (Both parties must agree, it has a shorter discovery period of 60 days, interrogatories and requests within 10 days of adopting the expedited trial, and all responses to be served within 20 days of receipt. The court determines the number of depositions required, the case may still go to a jury if both sides agree)