沙丽金版法律英语ppt课件.ppt

1、Tort Law,1,General,Definition Tort law is the body of law that deals with civil wrongs, except those that arise from contract problems. Purpose to compensate an injured party through the award of damages for the injuries incurred during a tortious act,2,General,Underlying policy considerations maint

2、enance of a peaceful society deterrence social responsibility the balancing of economic interests against societal benefits,3,Intentional Torts,4,General,Definition any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so Intent Intent is most often proved

3、through circumstantial evidencethe defendants conduct, in the context of his or her surroundings and what he or she presumably knew and perceived.,5,General,Transferred intent Transferred intent is a doctrine used in both criminal law and tort law when the intention to harm one individual inadverten

4、tly causes a second person to be hurt instead. Under the law, the individual causing the harm will be seen as having intended the act by means of the transferred intent doctrine.,6,General,Subcategories Torts against the person assault battery false imprisonment intentional infliction of emotional d

5、istress Property torts trespass to land trespass to chattels (personal property) conversion,7,Assault,Definition (in common law) an intentional act that creates an apprehension of an imminent harmful or offensive contact Assault and battery As distinguished from battery, assault need not involve act

6、ual contactit only needs intent and the resulting apprehension. wielding a knife,8,Assault,yelling the word snake to a person whom you know is in fear of snakes Criminal assault and tortious assault In criminal law, an assault can result from an attempted battery. Since some attempted batteries migh

7、t 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.,9,Assault,With the tort of assault, a perceived threat by the victim is paramount. A defendant throws a rock at a sleeping victim. He c

8、an only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.,10,Battery,Definition (at common law) an intentional act causing an unconsented harmful or offensive contact with a person Criminal battery and tortious battery Criminal law recognizes degre

9、es of crimes involving physical contact. There is but a single tort of battery.,11,Battery,“Harmful contact contact that objectively intends to injure, disfigure, impair, or cause pain “Offensive contact contact that would offend a persons sense of personal dignity Examples spitting in someones face

10、,12,Battery,intentionally knocking a hat off someones head or knocking a glass out of some-ones hand whipping a horse on which a plaintiff was riding, causing the plaintiff to fall and be injured (a nurse) failing to warn a blind patient that he is headed toward an open window, causing him to fall a

11、nd injure himself,13,False Imprisonment,Definition the detention of a person in a bounded area without justification or consent Elements intent to confine a person within a certain area actual confinement awareness of the confinement by the person so confined,14,False Imprisonment,absence of a reaso

12、nable means of escape Remedies A court may issue a writ of habeas corpus to release a party from unlawful restraint. The person falsely imprisoned may sue the offender for damages.,15,IIED,Definition short for intentional infliction of emotional distress referred to as the tort of outrage in some ju

13、risdictions intentional conduct that results in extreme emotional distress Elements The defendant must act intentionally or recklessly;,16,IIED,the defendants conduct must be extreme and outrageous; and the conduct must cause the plaintiff to suffer severe emotional distress. Examples A defendant re

14、fused 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.,17,IIED,A defendant sent a letter to a plaintiff falsely informing the person that a close family member had been killed in an accident.,18,Statut

15、e of Limitations,Definition an enactment that restricts the time within which legal proceedings may be initiated Objective designed 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 wit

16、nesses,19,Statute of Limitations,Function The 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. Application The defendant must raise the defense before the court upon answering the plaintif

17、fs complaint.,20,Statute of Limitations,If not, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings. Tolling the statute Most jurisdictions provide that limitations are tolled under certain circumstances. The aggrieved party (plaintiff) is a

18、minor. The plaintiff has filed a bankruptcy proceeding.,21,Shopkeepers Privilege,General In 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, s

19、o long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.,22,Shopkeepers Privilege,Requisite conditions Investigation on or near premises The detention itself should be effected either on the store premises or in the im

20、mediate vicinity thereof. Reasonable suspicion The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting. Reasonable force only,23,Shopkeepers Privilege,Only reasonable, non-deadly force is used to effect the detention. Reasonable period and manner of detention T

21、he detention itself may be for only the time necessary to make a reasonable investigation of the facts.,24,Property Torts,25,General,Definition Property torts are a specific class of intentional torts which arise when the right invaded is a property right rather than a personal right. Types trespass

22、 to land entering someones land without permission,26,General,trespass to chattels handling items owned by another without permission conversion taking possession of someone elses property with the intent not to return it,27,Trespass to Land,Definition the wrongful interference with ones possessory

23、rights in (real) property It is actionable per se. (It is not necessary to prove that harm was suffered to bring a claim.) Interference any physical entry to land throwing anything on the land,28,Trespass to Land,the abuse of a right of entry, when a person who has the right to enter the land does s

24、omething not covered by the permission Land the surface anything permanently attached to the land, such as houses the subsoil the airspace,29,Trespass to Chattels,Definition the intentional interference with another persons lawful possession of a chattel (movable personal property) Interference any

25、physical contact with the chattel in a quantifiable way any dispossession of the chattel (whether by taking it, destroying it, or barring the owners access to it),30,Trespass to Chattels,Elements Lack of consent The interference with the property must be non-consensual. Actual harm The interference

26、with the property must result in actual harm. Intentionality The interference must be intentional.,31,Conversion,Definition the wrongful disposition of anothers property as if it were ones own Property subject to conversion It must be personal property: Real property cannot be lost and then found. I

27、t must be tangible: an animal, money, furniture, tools, or receipts;,32,Conversion,crops 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 note Elements The plaintiff owns or has the right to possess the pr

28、operty in question at the time of the interference; the defendant intentionally interfered with the plaintiffs property;,33,Conversion,the interference deprived the plaintiff of possession or use of the property in question; and the interference caused damages to the plaintiff. Traditional defenses

29、Abandonment The property had been abandoned before it was taken by the defendant.,34,Conversion,Authority of law The property was taken by authority of law, a court order or valid process. Consent The property was taken with consent of the plaintiff, either express or implied. Fraud of the plaintiff

30、 The plaintiff conveyed property to a third person for purposes of evading creditors.,35,Trespass to Chattels and Conversion,Similarity Both include the wrongful, intentional interference of personal property. Difference The difference between them is one of degreethe degree of possession the interf

31、ering 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.,36,Trespass to Chattels and Conversion,When trespass is found, a person can recover the value of t

32、he 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. Example If 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. If t

33、he same person steals the property and sells it to another, you will have a cause of action in conversion.,37,Negligence,38,General,Definition conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm Elements Th

34、e defendant owed a duty to the plaintiff; the defendant breached that duty;,39,General,as a result of the defendants breach of that duty, the plaintiff suffered injury; and the injury was a reasonably foreseeable consequence of the defendants action or inaction.,40,Duty of Care,Definition In tort la

35、w, 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,41,Duty of Care,In many states, the only test is whether the harm to the plaintiff from the defend

36、ants actions was foreseeable.,42,Standard of Care,Definition the degree of prudence and caution required of an individual who is under a duty of care The reasonable person standard Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.,43,Standard of

37、Care,Factors involved: the knowledge, experience, and perception of the person the activity the person is engaging in the physical characteristics of the person the circumstances surrounding the persons actions,44,NIED,General short for negligent infliction of emotional distress a controversial caus

38、e of action Contrast with IIED There is no need to prove intent to inflict distress. (That is, an accidental infliction, if negligent, is sufficient to support a cause of action.),45,NIED,Underlying concept One has a legal duty to use reasonable care to avoid causing emotional distress to another in

39、dividual. If 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.,46,Contributory Negligence,Definition a defense that bars a plaintiff from recovery if his or her own acts or omissions contribu

40、te to the injury Burden of proof In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden is on a plaintiff to disprove his own negligence.,47,Contributory Negligence,Defect It is often regarded as unfair because under the doctrine a victim w

41、ho is at fault to any degree, including only 1% at fault, will be denied compensation entirely.,48,Comparative Negligence,Definition a 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 cont

42、ributed to the injury Types Pure comparative negligence If a plaintiff is 90% at fault he or she can still recover 10% of his losses.,49,Comparative Negligence,Partial comparative negligence If a plaintiff is more than 50% at fault he or she can not recover.,50,Assumption of Risk,Definition a defens

43、e 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,51,Assumption

44、 of Risk,Theory Upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff. Without a duty owed by the defendant, there can be no negligence on his part. Application This defense is commonly used in cases of injuries occurring during risky recreational

45、 activities.,52,Strict Liability Torts,53,General,Strict liability In tort law, strict liability is liability without fault (such as negligence or tortious intent). Policy basis Under certain circumstances, a plaintiff may be allowed recovery even though there is no fault on the part of the defendan

46、t.,54,General,Application Strict liability often applies to those engaged in hazardous or inherently dangerous activities: blasting storing inherently dangerous substances keeping wild animals It also applies to sellers and manufacturers.,55,Product Liability,Definition the responsibility of a manuf

47、acturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale Product liability claims in the US negligence claims strict liability claims breach of warranty claims various consumer protection claims,56,Product Liability,Types of liability Manufact

48、uring defect Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. Design defect Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufact

49、ured.,57,Product Liability,Failure-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 manu

50、factured and designed for its intended purpose.,58,Ultra-hazardous Activity,General An 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 p

51、erson engaged in the activity took every reasonable precaution to prevent others from being injured.,59,Ultra-hazardous Activity,Categories Transportation, storage, and use of ultra-hazardous materials dynamite and other explosives radioactive materials certain hazardous chemicals Keeping of dangero

52、us animals wild animals (i.e. animals that are not normally domesticated in that area) domesticated animals that have a known propensity for dangerous behavior,60,Nuisance,61,General,Definition something that causes offence, annoyance, trouble or injury The law of nuisance Under the common law, pers

53、ons in possession of real property are entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, the affected party may make a claim in nuisance.,62,General,Types Private nuisancea civil wrong a violation of ones use or quiet enjoyment of land Public nuisancea criminal wrong an unreasonable interference with the publics right to property It includes conduct that interferes with public health, safety, peace or convenience.,63,Private Nuisance,Definition an interference with a persons use or quiet enjoyment of his land Requirements C