Examples of Torts versus Contract Law

Basics

What is a ‘contract’?

What are torts?


VideoJug: Tort Law Terms

Torts are civil wrongs other than breaches of contracts, for which the law provides a remedy. Traditionally these were when someone invoked the phrase “I am going to sue you.” A tort is a general term for a civil action in which one party seeks a result from a court. Some examples of torts are: negligence, battery, false imprisonment, and assault.

What kinds of situations does tort law deal with?

Tort laws deal with situations where one party has wrong another party in some fashion. These are typically claims for damages or one party claims a violation of rights. The injured party can be asserting a criminal action as well, but this is usually not the case.

Is a tort a crime?

Tort laws and criminal laws may overlap in some instances, but torts are civil actions distinct from criminal actions. For example, a battery may occur and the injured party may press charges criminally and also file a claim against the aggressor for damages. These damages could be for pain and suffering or medical bills. These are distinct from the punishment aspect of the criminal action.

What is the tort litigation system?

The tort litigation system is a legal framework in which lawyers operate to effectuate and settle tort claims. Typically litigation involves filing a claim, performing discovery, attempting to settle the case and, if necessary, take the case to trial.

What are mass torts?

Mass torts are a special type of tort action that is filed. Effectively, a mass tort is one claim joining a large group of people to sue an entity for a wrong that has affected them all in some common fashion. Typically the group is larger than 25 people and the group has a representative that has interests common to all of those in the group.

Why do we need tort law?

We need tort law because there are several situations where mere punishment of the criminal does not provide an adequate remedy. While reforming or punishing the interests of the criminal and society at large, it fails to remedy the wrong created. Tort law creates remedies to make parties whole again in the form of injunction or damages.

What is a tort liability?

Tort liability is what results when a party has violated tort law. Put simply, if one party has injured another in an economic fashion, it is likely that they have violated tort law. For example, if A were to steal B’s jacket, he would be liable under tort liability for the value of the jacket, in this instance, for the tort of conversion.

What is a tortfeasor?

A tortfeasor is one who violates tort law by injuring another in some fashion. This injury can by physical, economic, or mental. For example, when someone strikes you in the mouth, you are the injured party, and the aggressor is the tort feasor, in this instance, for the tort of battery.

Intentional Tort

What is an intentional tort?

An intentional tort is one where one has the volition to commit a certain act and another is harmed by it. All intentional torts require four things: 1) act 2) intent 3) causation and 4) consequence. A person must perform an action, with an intent, this intent need not necessarily be the one the results, must cause some result and create harm as a consequence.

What are common law intentional torts?

Here are some common law torts: conversion, trespass to land, trespass to chattel, battery, assault, false imprisonment and intentional infliction of emotional distress.

What is battery under intentional common law?

Battery, put simply, is unjustified or improper touching. The aggressor acts intentionally to cause harmful or offensive contact with the victim’s person. The tortfeasor must have the intent to cause harmful or unjustified contact at the outset, and harm must result.

What is assault under intentional common law?

Assault defined is when a defendant acts intentionally cause the victim’s reasonable apprehension of immediate harmful or offensive contact. The questions to ask are: Was the Plaintiff aware of the harm? Was the harm imminent? If the answer is yes to both of these questions, then assault has occurred. However, the Defendant must desire or be substantially certain that his action will cause the apprehension of immediate harmful or offensive contact.

What is false imprisonment under intentional tort law?

False imprisonment defined is the direct restraint of someone without adequate legal justification or an assault on dignity. This occurs when a Defendant intentionally causes confinement or restraint of the victim within a bounded area, victim must be aware of the confinement at time of restraint However, the Defendant must act intending to confine the P w/in certain “fixed” boundaries. Additionally, there must be no reasonable means of escape.

What is intentional emotional distress under tort law?

Intentional Infliction of Emotional Distress, or IIED, occurs when Plaintiff intentionally or recklessly causes the victim severe mental distress by extreme and outrageous conduct. The victim usually doesn’t have to suffer physical manifestations of the mental distress. This is a difficult standard to fulfill, the conduct must be beyond all possible bounds of decency and to re: as atrocious, and utterly intolerable in a civilized community.

What is a consent law tort?

I have no idea what this question is asking. I will assume it is talking about the defense of consent. Consent is a defense to intentional torts. Consent occurs when the asserted victim gives permission what would otherwise be tortuous is instead privileged. This assent can be express or implied by law, community customs, or merely apparent from conduct.

What is necessity under tort law?

The law allows one to do certain actions which would be unlawful otherwise, if it is absolutely necessary. The tort defense of necessity allows a Defendant to interfere with the property interests of an innocent party to avoid a greater injury. The justification for this lies in social policy. An action that is socially necessary is beneficial because the action minimizes the overall loss. The necessity may be to protect a public interest or a private interest.

What is self-defense under intentional tort law?

One may use self-defense to defend oneself from the commission an intentional tort. However, a victim may only respond with reasonable force. Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. The requirements are that 1) the threat must be immediate, 2) one must reasonably believe it is about to occur and 3) only reasonable proportional force is allowed.

What are intentional torts to property?

Humans are not the only parties who may be afflicted by intentional conduct of another that causes harm. Land and property may be violated as well. Violations or injuries against property as called trespasses. While these torts traditionally are not looked upon as severely as harms to humans, one may still recover large amounts for damage or trespasses to valuable property.

What is “trespass to land?”

To show a trespass to land, a Plaintiff must show Plaintiff must show:

  • An invasion affecting an interest in the exclusive possession of his property
  • An intentional doing of the act which results in the invasion
  • Reasonable foreseeability that the act done could result in an invasion of possessory interest, AND
  • Substantial harmÔøto receive compensatory damages

What is “trespass to chattels”?

A trespass to chattels is the intentional interference with the right of possession of personal property. There must be actual damage to the property or a significant deprivation of use or dispossession. The Defendant’s acts must: 1) Intentionally damage the chattel 2) Deprive the possessor of its use for a substantial period of time, OR 3) Totally dispossess the chattel from the victim. However, Bad faith is NOT required, and also, the Plaintiff Does NOT need to intend to interfere with the rights of others.

What is a “nuisance” under intentional tort law?

Nuisance occurs when a Defendant creates an unreasonable interference with the use or enjoyment of the owner or possessors property interest. This includes smoke, offensive odors, noise or vibrations that materially interfere with the possessors ordinary comfort. There are different types, public and private. Public Nuisance is an interference with a right common to the general public. This entails substantial interference with public health, safety, peace, comfort, convenience health hazards, maintenance of whore houses or casinos, obstruction of public streets. Private Nuisance is an unreasonable interference with one’s right to use and enjoy his property. A Plaintiff can sue ONLY if he has an interest in the land current possessory or beneficial interest in property. The Plaintiff must show Use and enjoyment of land was interfered with in a substantial way. The standard is according to person of normal sensitivity in community.

What is an “attractive nuisance”?

The Attractive Nuisance Doctrine is when an artificial condition where children are likely to trespass creates a temptation to people, often children. One must use ordinary care to protect others from harm. This is especially so when the nuisance involves unreasonable risk of death or serious bodily injury and children would not appreciate the danger. For example, suppose a party maintains a pool, a sign is not enough one needs a gate around the pool to ensure that he or she does not invite trespassers to harm themselves.

What is a tort of “conversion”?

Conversion is an intentional interference with P’s possession or ownership of property that is so substantial that D should be required to pay the property’s full value.

This can occur when one has an Intentional exercise of dominion over chattel, the creates a serious interference with rights or owner or possessor, and it is justifiable to require a Defendant to pay the full value of the chattel.

Strong>There are several Ways to commit conversion: Acquiring possessionÔø a Defendant takes possession of the property from the Plaintiff. However, A bona fide purchaser of stolen goods is a converter even if there is NO way he could have known that they were stolen. Another method to perform conversion is by a Transfer to a 3rd person. Defendant transfers chattel to someone who is not entitled to it. Additionally one may convert chattels by Withholding goods. This occurs when Defendant refuses to return goods to their owner for a substantial time. For Example: Defendant, a parking garage, refuses to give P back her car for a day. Finally and most simply, Destruction. This occurs when a Defendant destroys goods or fundamentally alters them.

Negligent Torts

What is a tort of negligence?

The tort of negligence occurs when a Defendant has a duty of care and through his actions or inactions violates that duty of care. Through this violation of the established duty, the Plaintiff is injured or harmed. Negligence differs from intentional torts in that it does not require that the Defendant intentionally desire to harm the Plaintiff, all that must initially occur is a breach of a duty that the Defendant owed to the Plaintiff.

What are the elements of negligent torts?

Elements of a Tort Claim

To recover for negligence P must establish each of the following elements by a preponderance of the evidence (by more than 50%)

1. Duty: A legally recognized relationship between the parties’ question of law

2. Standard of Care: The required level of expected conduct

3. Breach of Duty: This is the Failure to meet the standard of care

4. Cause-in-fact: The Plaintiff’s harm must have the required nexus to the Defendant’s breach of duty

5. Proximate Cause: There are no policy reasons to relieve the Defendant of liability

6. Damages: this is the requirements that the Plaintiff suffered a cognizable injury

What is standard of care in negligent tort cases?

The Standard of Care is the level of conduct demanded of a person so as to avoid liability for negligence. The Defendant must act as a reasonably prudent person would under the same or similar circumstances. This is an Objective test. It compares Defendant’s conduct to the external standard of a “reasonable prudent person.” This is NOT strict liability, that is, it does not impose liability as a necessity, it holds it to an objective standard to determine if the party is liable.

What is malice?

In some instances, an added element of MALICE must be met. To do so Plaintiff must prove that Defendant did something with actual malice. Malice is Knowledge that a statement was false; or a Reckless disregard of whether it was true or false. In issues of malice, the Plaintiff must show that Defendant in fact entertained serious doubts about the truth of the statement. However, a common issue for malice to consider is that Public figures have access to mass media to counter any defamatory statements. In the famous case of NY times v. Sullivan, A false statement about the official conduct of public officials is defamatory if made w/ actual malice.

What is a duty of care?

Duty of Care: the Defendant has a legal duty to protect the Plaintiff against an unreasonable risk of harm. Duty of care determined by:

  • The extent to which the transaction was intended to affect Plaintiff
  • The foreseeability of harm to the Plaintiff
  • The degree of certainty that Plaintiff suffered injury
  • Closeness of connection between Defendant’s conduct and injuries suffered
  • Moral blame attached to Defendant’s conduct
  • Policy of preventing future harm

What is a breach of duty of care in negligent torts?

Put simply, Breach of duty is a DefendantÔøs failure to meet the standard of care. This can be a Failure to act as a reasonable person would have under the same or similar circumstances. The Determination of unreasonableness considers the risks that should have been foreseen at the time of the Defendant’s conduct not through hindsight after the harm occurred.

The degree of care demanded is a result of 3 factors: The likelihood of injury = probability and The seriousness of injury = injury Balanced against The interest which he must sacrifice to avoid the risk= burden.

What is a breach causing harm in fact in negligent torts?

Proof of Breach:

A method to demonstrate that something has cause harm in fact can be done by looking at customs of the activity. A custom is a well-established and consistent way of performing a certain activity in a trade or industry. The Evidence of standard of care (can be used by Plaintiff or the Defendant.) The Plaintiff will try to assert the Plaintiff’s deviation from custom as evidence of lack of due care. Defendant may try to avoid liability by showing compliance with custom. Custom evidence does NOT itself establish a breach of duty or demonstrate harm in fact. The Plaintiff must show that the harm in fact the custom was developed to avoid is the same as that suffered by Plaintiff.

What is proximate cause?

Proximate cause is the demonstration that the harm or injury was not too remote and was directly foreseeable as a result of the DefendantÔøs actions. Cause in fact is usually easier to prove than proximate cause. It is traditionally easier to show what physically cause the harm rather than to demonstrate that the injury was too remote or unforeseeable. Even if Plaintiffs establish a cause-in-fact, Plaintiffs cannot recover if the causal relationship between DefendantÔøs conduct and PlaintiffÔøs injury is too remote or unforeseeable. FORESEEABILITY is whether Defendant should have foreseen, as a risk of its conduct, the general consequences or type of harm suffered by Plaintiff. Defendant is liable only for those consequences of his negligence which were reasonably foreseeable at the time he acted. Also, as long as the type of harm is foreseeable the extent of harm does NOT need to be.

What is negligent emotional distress?

This tort occurs when a party through his actions negligently creates a state of severe mental or emotional distress within another person. The Impact Rule stated at common law, a Plaintiff must suffer physical contact by Defendant’s negligence to recover for mental distress. However a MINORITY of jurisdictions affirm the Zone of Danger analysis. In the Zone of Danger analysis: modified to allow recovery for P in physical zone of danger who showed a physical manifestation of emotional distress must be sufficiently severe to cause physical symptoms of the distress. For example, physical symptoms could include: miscarriage, heart attack, stomach trouble, loss of weight Also, a Plaintiff Can recover for near misses because the Risk of physical impact included.

A Plaintiff does not have to suffer physical impact to recover for emotional distress if there is a definite and objective physical injury produced as a result of the emotional distress. However, in special casesÔøcourts allow recovery for emotional distress like an Erroneous notification of a relativeÔøs death, emotional harm due to negligent handling of a chattel with a lot of sentimental value or things of that nature.

Strict liability

What is strict liability?

Put simply, strict liability is Liability without fault. A person will be held liable for damages for injury or loss even if exercised all possible care to prevent it. This is an incentive to prevent accidents by a greater exertion of care to reduce frequency of choosing high-risk activities. These claims usually arise in three

  • Categories: Animals, Abnormally Dangerous Activities and products liability.

Ultra hazardous activities examples of strict liability

Some examples of ultra hazardous activities include: storage of explosives, fumigation, crop dusting, storage of flammable liquids, pile-driving, maintenance of hazardous waste site, blasting, or transportation of explosive liquids.

What is product liability?

A product liability claim is Money damages from manufacturers and sellers of defective products that injure persons or property. Every Products Liability case has 3 common elements: A Defective Product, this can be due to Defective design, Defective manufacturing Defective warning. An Injury and a Causal relationship between the two. Claims may arise under three different theories: Negligence, Breach of Warranty Strict Liability.

What is vicarious liability?

Vicarious liability claims arise when One person is liable for the conduct of another. It is essentially liability without direct fault. First a Plaintiff must establish special relationship. The most common relationship asserted is the

Employer-Employee Relationship.

This in turn invokes the Respondeat superior doctrine

Employer is liable for tortuous acts of his employees which are committed within the scope of employment and which cause injuries or property damage to a 3rd person. Additionally, Employers who have neither acted nor intended the action may be liable for their employee’s negligence precautions taken have no effect. This is because Employers have a duty to the community must take reasonable steps to prevent employee from harming others. The tort must occur within the Scope of employment. If tortfeasor was acting with an intent to further his employer’s business purpose even if the means he chose were indirect, unwise, or forbidden then the employer is liable.

What is joint liability?

Joint liability most commonly occurs under a Joint Enterprise. This effectively means that both parties in the enterprise are liable for the end that they are pursuing. In this relationship, Partners and those participating in temporary joint enterprise are vicariously liable for torts committed by each other when acting in furtherance of the partnership.

What are disclaimers and waivers?

A disclaimer is a written or oral instruction that attempts to limit the liability of the party providing the service or product. Some examples include the Disclaimer of merchantability. Under the UCC a Seller can disclaim/limit the remedies available to the buyer. Additionally, a Seller may make a written disclaimer of warranty. It Must be conspicuous bold print, capital letters. It Must specifically mention word “merchantability.” As is is another type of disclaimer. This basically tells consumers that no further warranties are provided. “As-is” does NOT need to mention “merchantability.”

How enforceable are disclaimers and waivers?

Disclaimers and waivers are not a panaceas to ensure that no one may sue the producer of the product. They may provide mere instructions to assist someone who is going to be using the product or to attempt to mitigate the frequency of injury. If the injury is particularly foreseeable or the product is patently dangerous, it is unlikely that a court will uphold a disclaimer or a waiver as a means of denying recovery to the wronged party.

What is culpability in strict liability cases?

Culpability is the level of guilt or blameworthiness that can be attributed to the producer of the product. Mere Injury resulting from the use of the product is NOT sufficient to impose liability upon seller. A Plaintiff MUST show: 1) Product was defective this is the BREACH 2) Item was manufactured/sold by D this is the duty DUTY that is, to put safe product on market and finally that the 3) Defect was a cause of the injuries factual and proximate this is the causation. Additionally, the Plaintiff must have been injured while using the product in a way it was intended to be used. A further problem that arises for a Plaintiff is proving that the Defect existed at the time product left D’s hands. Put another way, that the Consumer did not substantially change product OR put it to an abnormal use.

Defamation

What is the tort of defamation?

Defined defamation is any statement that subjects a person to distrust, hatred or ridicule. This can be written, printed, online, spoken, broadcast on radio or in a physical medium. The core of the tort is that someone’s reputation has suffered due to information communicated by another.

What is libel?

Libel is the Publication of defamatory matter by written or printed words. This is traditionally communicated by sight. However it also may be communicated by permanent expression. Permanent expression includes photos, writing, statue, sculpture embodied in physical form. Plaintiff does NOT need to prove special harm with libel cases. Exceptions exist, a Plaintiff MUST prove special damages if “libel per quod” extrinsic facts are required to establish defamatory meaning. BUT if libel falls into 1 of 4 categories of slander per se Plaintiff does NOT need to prove special damages

What is slander?

Slander is the publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those constituting libel. With slander, a Plaintiff must show that he suffered special (pecuniary) harm. However an Exception exists with Slander per se. These statements traditionally involve one being riddled with disease, an unscrupulous businessman or sexual unscrupulous. These do not require proving special damages.

What are the basic laws of defamation?

Defamation requires:

Defamatory statement that is a false and defamatory statement of FACT concerning him, Publication’s communicating of that statement to a person other than the P (3rd party) this includes: Statement was seen or heard by someone other than P, D’s publication must have been either intentional or negligent, Any repetition of a defamation is considered publication ( also note that the Single publication rule’s an entire edition of book or periodical constitutes a single publication.

This is because Publishers held liable b/c have ability to control what is published 2ndary publishers distributors, vendors, mere conduits NOT liable b/c don’t have knowledge of defamation in publication and have no reason to be put on guard. You also need Fault on part of Defendant. This may be Negligence when speaking about a private person or Actual malice for a public figure. And in some circumstances Special harm either special harm of a pecuniary nature (slander) or the actionability of the statement despite the non-existence of such special harm

What are the common law rules of defamation?

The law is quite different now than it was in the days of Justice Brandeis. The common law largely favored allowing actions against those who would seek to degrade the reputation of another. Furthermore, the protections afforded today for public figures were far diminished as well. Under the common law, reputation was seen as far more valuable and easy to damage, so one would have to speak and write with discretion.

What are the basic issues in right to privacy?

The basic issues that are involved in the right to privacy are the reasonable expectation of a person in relation to their right to privacy. If a party violates a common level of decency and invades his or her privacy, they will likely be held liable. Privacy violations can range from public disclosure of a private fact, aggressive paparazzi, or intrusion upon seclusion.

What is the “requirement of fault”?

The requirement of fault is that a person must have made an error in publishing the information. This standard of fault differs depending on the class of person who is spoken about. Private figures are given more protection while public or political figures have a higher standard or fault.

What must I prove if I am the plaintiff in a defamation case?

P must prove that D made statement with actual malice. Plaintiff must have had Knowledge that it was false; or Reckless disregard of whether it was true or false. Plaintiff must show that D in fact entertained serious doubts about the truth of the statement. Additionally, Public figures have access to mass media to counter any defamatory statements. For example in NY Times v. Sullivan P, commissioner in charge of Police dept., sued NY Times for publishing a defamatory ad regarding police dept’s treatment of black student’s A false statement about the official conduct of public officials is defamatory if made w/ actual malice

With Private Figures a Plaintiff does not have to prove that D knew his statement was false or recklessly disregarded whether it was true or false. A Private figure Can recover for actual injury impairment of reputation and standing in the community, personal humiliation, mental anguish, suffering. The Court looks at content, form and context of communication. However, a Plaintiff must prove that D made statement w/ reckless disregard OR negligence

What is the procedure for suing for libel?

What are matters of public interest?

Matters of public interest are matters that generally applicable to public interest or within the ambit of what the public would want to know about. The courts have given this phrase wide latitude and nearly everything involving a public figure, aside from their extremely personal lives is public interest.

What is the legal definition of absolute privilege?

With Absolute Privileges a D may escape liability even if he knew that the statement was false or published it in order to hurt P’s reputation. The policy behind this is that people have the right to speak their minds as long as statement occurs w/in context of meeting and relates to mtg’s subject matter. For example in Judicial proceedings Judges, lawyers, parties and witnesses all privileged in what they say during course of judicial proceedings. Also in Legislative proceedings, Govt. officials’ federal and high state officials, and Husband and wife.

What is the legal definition of qualified privilege?

Qualified Privileges are conditional privileges depending on the subject matter or timing. Protecting communications made in connection w/ the speaker’s moral, legal or social obligations require correct or reasonable belief. For example, Protection of publisher’s (D’s) interests a Defendant is conditionally privileged to protect his own interests if they are sufficiently important and defamation is directly related to those interests. For example, If D reasonably believes that his property has been stolen by P he may tell the policeÔøif DÔøs belief is reasonable he is protected against a slander action by P even if he is wrong. Alternatively, a privilege is given for the Interest of others. A Defendant may act fo
r the protection of the recipient of his statement or some other 3rd party. For Example: an ex-boss has the right to give info about his ex-employee to a new, prospective boss. Finally Public Interest a Defendant may be privileged to act in the public interest. For example, A private citizen’s reasonable but mistaken accusation made to police that P committed a crime would be covered.

Defamation Defenses

What are the defenses to defamation?

Some defenses to defamation include: the TRUTH of the statement, privileges, both qualified and absolute and disproving actual malice.

What is actual malice?

With defamation actions a Plaintiff may be required to prove actual malice was present when the statement was made. A may prove that D made statement with actual malice by demonstrating that the Knowledge that it was false; or Reckless disregard of whether it was true or false. Generally, a P must show that D in fact entertained serious doubts about the truth of the statement.

What must the victim prove to establish that defamation occurred?

He must show that there was a publication and that this statement somehow harmed his reputation in a substantial way in the community. This may be done with circumstantial evidence, or by showing the physically representation of the statement in media.

Why do public figures and officials have a harder time proving defamation?

The public interest lies in preserving the first amendment. The concept Public figures and officials should be open to criticism lies at the heart of the tenants of the first amendment. Greater latitude is given to defame them additionally because they have interjected themselves into the public sphere and must therefore accept whatever consequences come with it.

Who is a public official?

A public official can be a governmental figure or someone who has significant authority in the managerial aspects of the legislation. For example, a congressman could be a public official but a secretary to a senator would likely not be a public official.

Who is a public figure?

A public figure may either be a celebrity, person of public concern, or a private figure who has interjected him or herself into a public controversy willingly.

What legal arguments are available to defendants in a libel case?

Defendants may argue that the statement is simply a true statement. This is an absolute defense to defamation actions. Alternatively the Defendant could argue that the statements were made pursuant to an absolute qualification. Finally the Libel defendant could assert that the statement was made under a limited qualified privilege.

What are the common law defenses against defamation cases?

Some common law defense include truth or the involuntary nature of the statement at the time it was made due to duress or coercion. A common law defense that was traditionally invoked was the defense of PURE opinion. That is a statement that is not offering any truth but is presented solely as a commentary.

Does the constitution offer any protection for defamatory statements?

The constitution offers the ultimate protection for defamatory statements in the first amendment. Many defamation laws have a difficult time providing substantial bite due to the wide latitude given to free speech in the first amendment. Additionally, some Defendants choose to countersue with SLAPP suits, further adding a level of free speech protection.

What is defamation “per se”?

Defamation Per Se are statements that do not require proof of special damages. They can be classified into four categories for defamation: Crime statements imputing morally culpable criminal behavior to P, Loathsome disease statements alleging that P currently suffers from a venereal or other loathsome and communicable disease, Business, profession, trade or office an allegation that adversely reflects on P’s fitness to conduct her business, trade, profession or office, Sexual misconduct: statement imputing serious sexual misconduct to P (refers to a woman’s lack of chastity)

Additionally Libel Per Se exists as well. This is any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy. However, you do NOT need to prove actual damages presume such statement will cause damages to reputation of the average person

What is a libel-proof plaintiff?

If someone has a terrible reputation that is incapable of being further damaged, some courts deem these parties to be libel-proof. Defamation laws allow people to sue for statements that damage their reputations and expose them to hatred, ridicule or contempt. However, some courts have ruled people can have such poor reputations they cannot sue for libel. Courts have contended that because the best result these “libel-proof plaintiffs” could obtain would be nominal-damage judgments.

What does it mean when a defamatory statement was published to a third person?

Publication is a communication of a statement to a person other than the Plaintiff (3rd party.) Also, it can be that Statement was seen or heard by someone other than P. The Defendant’s publication must have been either intentional or negligent. Any repetition of a defamation is considered publication as well. However, Single publication rule: an entire edition of book or periodical constitutes a single publication. Publishers are held liable b/c have ability to control what is published. 2ndary publishers, distributors, venders, mere conduits NOT liable b/c don’t have knowledge of defamation in publication and have no reason to be put on guard.

What are some practical methods of reducing liability for defamation?

Some simple practical methods for reducing exposure to libel and defamation cases would be to attempt to ensure the truth of all statements that are made when published to a large public. Alternatively, if it is a commentary, make sure to designate that statements as opinions.

What is due diligence?

Due diligence means expending a reasonable amount of effort to ensure that the information presented is true. This is not an exhaustive or overly demanding standard, it merely entails performing a good faith effort to ensure that the information that is presented is true and not recklessly publishing false information.

Breach of Contract

What is a contract?

A contract is an agreement between two or more persons (individuals, businesses, organizations or government agencies) to do, or to refrain from doing, a particular thing in exchange for something of value. Contracts generally can be written, using formal or informal terms, or entirely verbal.

What is a breach of contract?

breach of contract. Violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. “A breach may be one by non-performance, or by repudiation, or by both. Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises.”

What is a breach of confidence?

Breach of confidence is a common law tort. This usually involved one party conveying some information that was provided in confidence and then later disclosed to unprivileged parties. Usually this requ
ired that the disclosing party disclosed the information to the detriment of a confiding party.

What is a breach of promise?

A breach of promise is an antiquated tort that is no longer used in modern legal systems. It was commonly used in engagement contracts between a man and a woman. A promise to marry was a form of a quasi-legal contract. If a man were to repudiate his promise to marry it would be viewed as a form of constructive breach

What is fraud?

Fraud is defined to be “an intentional perversion of truth” or a “false misrepresentation of a matter of fact” which induces another person to “part with some valuable thing belonging to him or to surrender a legal right”. Fraud is usually making a material misstatement that another person relies upon to their detirment. The hardest part of proving fraud is proving the required element of Ôøscienter.Ôø Scienter is proving that the person had knowledge of the falsity when he made the statement. Fraud may be actionable both criminally and civilly.

What is duress?

Duress is a potential defense to a breach of contract. This is usually seen as a type of an excuse for invalidating the contract from its inception. Blacks law dictionary defines duress as any unlawful threat of coercion used to induce another to act or not act in a manner they otherwise would

What is impossibility of performance?

Impossibility of performance if a party is entirely incapable of performing his or her part of the contract due to extraneous forces beyond his or her control. This is often used as a means to attempt to mitigate the damages in a breach, or as an attempt to withdraw from the contract.

What is commercial frustration?

Commercial frustration is an unforeseen uncontrollable event which occurs after a written or oral contract is entered into between parties, and makes it impossible for one of the parties to fulfill his/her duties under the contract. This is similar to impossibility of performance except that it usually occurs within the business context.

Defenses in Civil Claims

What is “Volenti Non Fit Injuria“?

volenti non fit injuria is Law Latin “to a willing person it is not wrong,” i.e., a person is not wronged by that to which he or she consents. The principle is that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.

What is voluntary assumption of risk?

Assumption of Risk is a defense in tort law. It is the principle that the Plaintiff assumed the risk based on showing that he know the danger, understood the risk involved and chose to encounter it voluntarily. Accordingly, if the court finds that this is so, they may reduce the Plaintiff’s damages or simple dismiss the claim.

What is contributory negligence?

Contributory Negligence is the concept that a Plaintiff who is negligent and whose negligence contributes proximately to his injuries is totally barred from recovery. This concept is an all or nothing meaning that if a Plaintiff is 1% negligent cannot recover anything. This doctrine Encourages forum shopping. Some jurisdictions embrace the Last Clear Chance limit on this defense. This is the concept that If just before the accident, D had an opportunity to prevent the harm, and P did not have such an opportunity D becomes liable For example, P crossed street without looking. D saw P and tried to avoid hitting him but stepped on the gas instead of the brakes. D’s discovery of the danger gave him a last clear chance to avoid the accident which he failed to take advantage of. This last clear chance wipes out the effect of P’s contributory negligence P can recover against D.

What is a civil action?

A civil action is usually referred to in the colloquy “suing someone.” It is traditionally, going in front of a judge or a magistrate and seeking some kind of remedy or damages for someone who has wronged you.

What does it mean to “settle out of court”?

Settling out of court means that you have chosen to accept a sum or action in exchange for signing an agreement to dismiss the claim and never bring it back to court. Some settlements may occur on the courthouse steps or even during the course of trial, however, there are far less likely.

What is small claims court?

A small claims court in many jurisdictions is a court that handles matters where the sums involved are less than $5000. These courts are traditionally slower and less formal than the unlimited jurisdiction courts. People are free to represent themselves without a lawyer in these courts and, given the amount that is usually at stake, the parties usually do not retain counsel.

Who can start a civil action?

Any citizen of the state may file a civil action in the state that they reside in. Paying taxes in a given state makes them able to avail themselves of the benefits that court may provide. If the wrong occurred outside of the state, it may be more difficult to file a civil action where one lives.

What if a civil action is started against me?

If a civil action is started against you, you should determine whether or not you can represent yourself. The first thing you should ask is “What is this person seeking?” if the case is going to involve complicated legal matters or a large sum of money, it is usually advisable to retain counsel for a matter of such import. If the issues are small or insignificant, one may decide to proceed by representing his or her self.

How do I defend myself

There is a bromide that one who defends himself has a fool for a lawyer, however this is not always the case when legal matters are simple or can best be handled by he who was affected by the controversy. To defend yourself you effectively choose to respond to all letters personally and show up in court by yourself and will bear the burden of all matters involved in litigation including but not limited to filing a complaint with the court, performing discover, deposing witnesses, and developing legal arguments.

How do I defend myself if I am sued for nuisance?

You would first want to argue that whatever harm you are creating is not substantial or that it has not produced a long lasting effect. Next you should attempt to show that your activity has not created an unreasonable interference with the right to use and enjoy the property. Finally, you could attempt to show that the party CAME to the nuisance, that is, they were aware of the nuisance and still chose to come to it and beat its effects.

How do I defend myself if I am sued for defamation?

The first step in a defamation case should be to attempt to prove that the statement that was made is true, Truth is an absolute defense to defamation claims. Next, one should attempt to disprove that absolute malice was used if the statement involves a public figure or a public official. Finally you would want to look into any possible privileges, whether it be qualified or absolute to justify the statement.

If a plaintiff is awarded compensation, how is the amount decided?

Damages can be computed on a variety of factors, one type is computing damages to compensate for a previous wrong. These are called compensatory. Under compensatory, a Plaintiff Can recover if harm has already occurred, however Plaintiff cannot recover for continuing damages must bring successive actions for subsequent harm.

Other times a Plaintiff will be awarded damages for a Diminished value of property. The damages are calculated using the Depreciation of property and diminished value
of use of property. Alternatively, courts may ask, If nuisance won’t go away, how much has the value of the property been decreased permanently? Finally courts may award damages for medical bills, pain and suffering, or punitive damages to prevent that conduct from occurring.

Can decisions be appealed?

Decisions may be appealed if a party is unsatisfied with a lower court’s decision. However, this process may be costly and may not generate the desired results. Parties should really consider why it was they lost in the trial court before they hastily attempt to appeal the decision because investing a large amount of time and money for a similar result would be wasteful to the parties and the judicial system itself.

Can I be held responsible for my children’s actions?

Your children, by operation of the law, are seen effectively by the law as your property. Their actions will be imputed to you if repayment is demanded. In the case of torts that they commit, some jurisdictions require that you be aware of have constructive knowledge of your child’s propensity for performing that tort before you are held strictly liable for his or her actions.

How can I protect myself against a civil action?

Several devices may be used to shield yourself from liability for civil actions. Some familiar ones may include using a disclaimer when selling an item or providing a service. Notifications and signs disclaiming services or implied warranties can serve to limit liability and mitigate legal arguments should a Plaintiff decide to sue you.

Damages in Civil Claims

What are nominal damages?

Nominal damages are exactly what they sound like in name only. These type of damages are typically a very small amount that the court or jury may award to a party that, while successful, they feel for whatever reason does not deserve large damages. This may be because they felt that one party exercised bad faith or simply because they felt that no real harm occurred.

What are punitive damages?

Punitive damages or sometimes referred to as exemplary damages are damages that are awarded by the discretion of the court for particularly egregious activity. The purpose of these damages is to discourage further conduct by the violating party. For example, if repaying a customer for fraud was the only damage available, business could build it into their expenses to break the law, punitive damages could award up to nine times the damages to teach the company a lesson.

What are compensatory damages?

Damages can be computed on a variety of factors, one type is computing damages to compensate for a previous wrong. These are called compensatory. Under compensatory, a Plaintiff Can recover if harm has already occurred, however Plaintiff cannot recover for continuing damagesÔømust bring successive actions for subsequent harm.

What are penal damages?

Penal damages can be ultimately be understood as excessive contracted for damages in a contract. A good way to think of a penal damage is an excessive or aggressive liquidated damages clause. These damages are often seen as “in terrorum” and will not be enforced by the courts. These types of damages not only seek to redress, they seek to build in punitive damages into the contract to disincentivize breach. They do this by assigning penalties that are far more than the party that suffers the breach will suffer.

What are general damages?

General damages traditionally cannot be calculated with certainty. Pain and suffering, emotional distress or NON-economic losses are examples of general damages.

Parties usually assert that the parties seek a recovery for a loss that is not specialized in any manner and that the party has been wronged for of a general sum. Usually general damages only seek recovery to the extent that the court will allow.

What are special damages?

Special damages are damages that can be objectively measured. These damages are usually calculated with certainty. Some examples include, out of pocket, lost wages, medical bills, etc.

What are consequential damages?

Consequential damages are one kind of damages that can be awarded in a case for an agreement where one party feels that the other side of obligations were not entirely fulfilled. Consequential damages (also sometimes referred to as indirect or ÔøspecialÔø damages), include loss of product and loss of profit or revenue and may be recovered if it is determined such damages were reasonably foreseeable or “within the contemplation of the parties” at the time of the contract.

What are liquidated damages?

Liquidated damages are usually created by contract. Liquidate damages accelerate the amount of damages that a party will foreseeably incur and then provide that the breaching party will pay that amount in the event of breach.

Do most cases go to trial to recover damages?

Contrary to what television would have you believe, only approximately 9% of cases seeking damages go to trial. Most cases are settled in the pre-trial litigation phases. Taking a case to trial is expensive and usually only occurs between extremely contentious opponents, it is usually more economically efficient for both parties to settle out of trial.

What is “pain and suffering”?

Pain & Suffering can include damages for physical and emotional distress. However, these damages can only testify to the past. In some instances, the Plaintiff can use actuarial tables to show what his life expectancy is must be compensated for that many years of pain and suffering. Additionally a Plaintiff may recover for Loss of enjoyment of life that is, loss of enjoyment of activities the injury prevents the victim from pursuing. Victims cannot recover if they are unconscious not aware of or distressed by loss of enjoyment. Additionally, must be conscious for an appreciable period of time before death to recover

What is subrogation?

Subrogation is the substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. For example, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any judgment the creditor has against the debtor, and may proceed against the debtor as the creditor would.

What does “preponderance of the evidence” mean?

This is the standard of proof used in civil cases. This standard basically asks that a judge or jury find that it is more likely than not that what the Plaintiff is asserting is true and this it is more than 50% likely that he or she is entitled to damages.

How does a prior injury affect the value of my claim?

Prior injuries or “pre-existing ailments” may affect the amount of recovery that is awarded. Ailments may offset the amount that is awarded and result in a lower pay off than a full healthy person would have received. If a plaintiff previously had a broken arm and got in a car crash, and exited with a broken arm, it is unlikely that a court would award him full damages for a broken arm that he previous was already afflicted with.

What is included in a bodily injury claim settlement?

A bodily injury claim settlement may include many elements but some common damages include medical bills, future damages, pain and suffering, loss of wages, loss of consortium and loss of enjoyment.

Wrongful Death

What is wrongful death? (Learn More)

Personal Injury Settlements

Is there a minimum personal injury settlement amount?

No, there is no minimum amount that a person may receive when they have been personally injured. The settlement amount is determined by a variety of factors including the medical bills, the future damages, the extent of harm, the loss in wages and the loss in future earnings.

Are medical bills included in a bodily injury award?

Bodily injury claims and Ôøpersonal injury claimsÔø and ÔøPI awardsÔø are usually used synonymously. Medical bills are often aggregated into the settlement amount with the lost earnings, the loss of consortion if appropriate and any other incidental expenses like purchasing wheel chair accessible vehicles, etc.

Chances are if you settle your personal injury claim, your settlement may include all or only one of these kinds of damages. It is usually a good idea to attempt to determine what recovery is provided for what in the interest of tax reasons, repayment, and determining the rights to recovery on other expenses incurred.

Can I ask my lawyer for a copy of my settlement check?

Your lawyer is your agent and is an employee and accordingly, you certainly can ask that he show you a copy of the settlement check. Your lawyer owes you fiduciary duties to disclose amounts that you have been awarded. Additionally, the insurance company will usually make the check out to you and your attorney as cosigners, so not only are you allowed to see the check, but your attorney will likely have to get you to sign it before it may be cashed. It would also be a good idea to ask for a copy of EVERY check written by the insurance company to your lawyer to determine if the full amount has been paid. The sum of all of the checks should total the final settlement amount, if not you may have grounds for bringing a claim against your lawyer for malpractice.

What is a proper personal attorney contingency fee?

Personal attorney contingency fees can vary determining on the skill and ability of the lawyer that you retain. Often times more complicated cases will demand higher percentages as an incentive for a lawyer to take them. Under CA law, a lawyer cannot charge more than 40% of the contingency as his fee, otherwise he will be subject to the BAR for a violation of fiduciary duties and you may have a claim against him for malpractice. However all fee agreements are negotiable so do you best to lower your percentage before you sign your lawyer on to your case. If it is relatively simple case with no complicated legal issues, you may be able to find a lawyer to take for anywhere around 33 and 1/3% of your settlement. In large settlements, that 6 and 2/3% can mean all the difference!

Can my lawyer settle my personal injury case without my consent?

Traditionally lawyers owe their clients a fiduciary duty and a duty of full disclosure, so this would likely not occur however, some attorney write this power in as a term of their fee agreement. If you find that your attorney has attempted to