PA 106 – Unit 4

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A tort is a civil wrong. In other words it is an injury designed to provide compensation for that injury.

There are intentional and unintentional (negligence) torts.

A tortfeasor is one who commits a tort.

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The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means:Tortfeasor intended the consequences of

her act; orShe knew with substantial certainty that

certain consequences would result.

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ASSAULT is an intentional, unexcused act that:Creates a reasonable apprehension or

fear of, Immediate harmful or offensive contact.NO CONTACT NECESSARY.

BATTERY is the completion of the Assault: Intentional or Unexcused.Harmful, Offensive or Unwelcome.Physical Contact.

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False Imprisonment is the intentional:Confinement or restraint.Of another person’s activities.Without justification.

Shopkeepers exception: Merchants may reasonably detain customers if there is probable cause.

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An intentional act that is:Extreme and outrageous, thatResults in severe emotional distress in another.

Most courts require some physical symptom or illness.

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Right to free speech is constrained by duty we owe each other to refrain from making false statements.

Orally breaching this duty is slander; breaching it in print or media is libel.

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Trespass to land occurs when a person, without permission:Physically enters onto, above or below the

surface of another’s land; orCauses anything to enter onto the land; orRemains, or permits anything to remain, on

the land.

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Tortfeasor does not intend the consequences of the act or believes they will occur.

Actor’s conduct merely creates a foreseeable risk of injury. Analysis:Defendant owed Plaintiff a duty of care;Defendant breached that duty;Plaintiff suffered legal injury;Defendant’s breach caused the injury.

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Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.

Courts use reasonable person standard (jury) to determine whether duty exists.

Duty of Landowners to invitees.

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The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event.

Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury).

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Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff.

Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.

No duty to rescue.

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To recover, Plaintiff must show legally recognizable injury.

Compensatory Damages are designed to reimburse Plaintiff for actual losses.

Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.

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Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries.Causation in Fact, andProximate Cause.

Palsgraf v. Long Island Railroad Co. (1928).

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Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?

Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

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An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability.

Foreseeability of injury is an important factor.

Think of proximate cause as an unbroken chain of events.

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Assumption of Risk

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Plaintiff has adequate notice and understanding of the risks associated with an activity.

He knowingly and willingly engages in the act anyway.

Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.

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Res Ipsa Loquiter- Latin for "the thing speaks for itself.“

It is assumed that a person's injury was caused by a negligent action of another party because the accident would not have happened unless that party was negligent.

Byrne v Boadle

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This is the leading case from 1863 that established Res Ipsa Loquitor

Facts: A barrel of flour fell from a second-story window and hit the plaintiff.

Who is responsible if the plaintiff could not prove who breached his duty of care of the barrels?

Conclusion: Who cares!

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“I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. “

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What are “damages?” What is the difference between libel and

slander? What is the difference between

contributory and comparative negligence?

What standard is used to determine whether there has been a breach of duty?

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What are punitive damages and when do they apply?

What is a supervening act and what effect does it have?

What is strict liability and when does it apply?

What is negligence per se?

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For the transcription assignment, you will prepare a complaint as if dictated by an attorney. Drafting a complaint is often a very challenging task. With practice such as this assignment, however, you will gain the confidence to produce polished documents.

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Prior to completing this assignment, review Chapter 1, Initiating a Lawsuit, pages 15-38, from the Legal Transcription textbook. Your assignment is to draft a formal complaint according to the audio dictation.

Check your e-mail and the announcement board for format suggestions.

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