法律英语专题：侵权法(tort law).ppt

1、a,1,Tort Law,a,2,General,Tort a civil wrong which unfairly causes someone else to suffer loss or harm It does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.) Purpose of tort law to provide relief to the injured party through the award of

2、 damages for the injuries incurred during a tortious act,a,3,General,to deter others from committing the same act US tort law Tort law in the U. S. is largely common law. Courts have the power to shape and change the elements of claims and defenses of existing torts and the power to create new torts

3、. Statutes have been passed in attempts to reform the tort system.,a,4,General,Most of them have related to procedural matters and amounts and categories of damages. Many judges utilize the Restatement of Torts (2nd) as an influential guide. The Restatement is an influential treatise issued by the A

4、merican Law Institute, which summarizes the general principles of common law United States tort law. Categories of torts intentional torts,a,5,General,negligence strict liability torts,a,6,Intentional Torts,a,7,General,Definition An intentional tort is a tort resulting from an intentional act on the

5、 part of the tortfeasor. Subcategories torts against the person assault battery false imprisonment intentional infliction of emotional distress,a,8,General,property torts trespass to land trespass to chattels (personal property) conversion dignitary torts defamation invasion of privacy,a,9,Torts Aga

6、inst the Person,a,10,Assault,Definition an intentional act that causes an apprehension of immediate harmful or offensive contact Apprehension is not the same as fearhere it means awareness that an injury or offensive contact is imminent. Requirements The act must be overt. Mere words do not constitu

7、te an assault.,a,11,Assault,There must be an accompanying act. The defendant must have the apparent ability to carry out the contact. Actual ability to carry out the contact is not necessary. The plaintiff must have a reasonable apprehension of such contact. Actual fear on the plaintiffs part is not

8、 required. Examples,a,12,Assault,swinging a baseball bat at someone holding a rock and threatening to throw it at someone pointing a gun at someone pointing a realistic toy gun at someone Criminal assault and tortious assault Criminal assault can occur even when no threat is perceived by the victim.

9、 With the tort of assault, a perceived threat by the victim is paramount.,a,13,Assault,A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.,a,14,Battery,Definition an intentional a

10、ct that causes a harmful or offensive contact 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,a,15,Battery,Examples beating someone with a tire iron spitting in someones face

11、knocking a hat off someones head whipping a horse on which someone was riding, causing him to fall and be injured mixing something offensive in food that he knows another will eatthe other does in fact eat the offensive matter,a,16,Battery,digging a pit with the intent that another will fall into it

12、 laterthe other does in fact fall into it Criminal and tortious battery Usually battery is prosecuted as a crime only in cases involving serious harm to the victim. Criminal law recognizes degrees of crimes involving physical contact. There is but a single tort of battery.,a,17,False Imprisonment,De

13、finition the detention of a person in a bounded area without justification or consent The essence of the tort is the natural mental harm that results when ones freedom is restricted without justification. Elements intent to confine a person within a certain area,a,18,False Imprisonment,actual confin

14、ement awareness of the confinement by the person so confined no reasonable means of escape False arrest False arrest occurs when someone arrests another individual without the legal authority to do so, which becomes false imprisonment the moment he or she is taken into custody.,a,19,IIED,Definition

15、short for intentional infliction of emotional distress referred to as the tort of outrage in some jurisdictions intentional conduct that results in extreme emotional distress Elements The defendant must act intentionally or recklessly.,a,20,IIED,The defendants conduct must be extreme and outrageous.

16、 The conduct must cause the plaintiff to suffer severe emotional distress. Severe emotional distress This tort involves more than hurt feelings, disappointment, or worry. There must be severe mental suffering, i.e. such that no reasonable person should be expected to endure it.,a,21,IIED,This standa

17、rd is quantified by the intensity, duration, and any physical manifestations (ulcers or headaches, for example) of the distress. Examples A person refused to inform another of the whereabouts of that others child for several years, though the person knew where the child was the entire time.,a,22,IIE

18、D,A person sent a letter to another falsely informing him that a close family member of his had been killed in an accident.,a,23,Statute of Limitations,Definition an enactment that restricts the time within which legal proceedings may be initiated Objective to prevent claims from arising after all e

19、vidence has been lost or after the facts have become obscure through the passage of time, or the death or disappearance of witnesses,a,24,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

20、 the appropriate time has elapsed. Application The defendant must raise the defense before the court upon answering the plaintiffs complaint.,a,25,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

21、 statute When the statute is tolled, the running of limitations is suspended until some event specified by law takes place. Most jurisdictions provide that the statute of limitations is tolled under certain circumstances:,a,26,Statute of Limitations,The plaintiff is a minor. The plaintiff has been d

22、eemed insane. The plaintiff has been convicted of a felony and is imprisoned. The defendant is in bankruptcy.,a,27,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 shoplif

23、ter on store property for a reasonable period of time, so long as the shopkeeper has probable cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.,a,28,Shopkeepers Privilege,This privilege does not include the power of search. Requisite condit

24、ions Investigation on or near premises The detention itself should be effected either on the store premises or in the immediate vicinity thereof. Reasonable suspicion The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting.,a,29,Shopkeepers Privilege,Reasonable

25、 force only Only reasonable, non-deadly force is used to effect the detention. Reasonable period and manner of detention The detention itself may be for only the time necessary to make a reasonable investigation of the facts.,a,30,Property Torts,a,31,Trespass to Land,General Trespass to land occurs

26、when a person directly enters upon anothers land without permission, or remains upon the land, or places or projects any object upon the land. The basis for this tort is the right to exclusive possession of the land. Nature This tort is actionable per se.,a,32,Trespass to Land,Damages are not requir

27、ed to be proven for intentional trespass. Only when the entry is negligent is there any need to prove damages. Intent The intent requirement of trespass is only that the person intended to enter the property. It is irrelevant whether or not the entry is a mistake, caused by ignorance of the ownershi

28、p or the boundaries.,a,33,Trespass to Land,Note The rights inherent in the possession of land extend above and below the surface.,a,34,Trespass to Chattels,Definition the intentional interference with another persons lawful possession of a chattel (movable personal property) Interference any physica

29、l contact (intermeddling) 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),a,35,Trespass to Chattels,Note In cases of intermeddling, there needs to be actual harm sustained by the plaintiff in order for

30、him to sue. Damages are limited to the actual harm (which can include economic loss as a result of the trespasse.g. loss of profit on a damaged chattel). In cases of dispossession, the plaintiff is always entitled to damages even if no quantifiable harm can be proven.,a,36,Trespass to Chattels,Examp

31、le Herman sees his War and Peace sitting on a table. He picks up the book, puts it in his bag and goes home. In fact, the book belongs to Leon and Herman has mistaken it for his own copy. In this case, Herman is liable for a trespass to chattels because he intended to take Leons book, even though hi

32、s action was based on a reasonable mistake.,a,37,Conversion,General Conversion occurs when someone wrongfully takes or uses property of another for their own purposes or destroys it or alters its nature. Conversion and theft Theft will also be conversion. But not all conversions are thefts because c

33、onversion requires no element of dishonesty.,a,38,Conversion,Property subject to conversion It must be personal property. Real property cannot be lost and then found. It must be tangible. money, an animal, furniture, or tools crops or timber (after they are severed from the ground) rights in a paper

34、, such as a life insurance policy, a stock certificate, or a promissory note,a,39,Conversion,Examples A person has anothers car towed away in order to take the parking place. A dry cleaner mistakenly delivers a suit to the wrong customer. A mechanic borrows a sports car he is supposed to repair with

35、out permission. A neighbor lends her hedge trimmer to a friend, but the friend uses it to cut down a tree.,a,40,Trespass to Chattels and Conversion,General The two concepts are closely related. Similarity Both include the wrongful, intentional interference of personal property. Difference They are d

36、ifferent in degreethe damage done to the plaintiffs possession in a conversion case is more severe than in a trespass case.,a,41,Trespass to Chattels and Conversion,Application In general, when an object is damaged but repairable, trespass to chattels is the more appropriate tort. When something is

37、destroyed or stolen, conversion is more appropriate. When trespass is found, a person can recover the value of the lost use of the itemand recover the item itself. Conversion, instead, allows a person to recover the full value of the item.,a,42,Trespass to Chattels and Conversion,Example Daphne hits

38、 Martys dog with her car. The dog suffers a broken leg. This would be an actionable trespass to chattels and Marty would be awarded damages commensurate with the harm done by Daphne. Daphne hits Martys dog with her car. The dog dies. This would be an actionable conversion. Marty would be awarded the

39、 dogs full value.,a,43,Dignitary Torts,a,44,Defamation,Definition the communication of a false statement that harms a persons reputation Defamatory information must be communicated to a third person. Types slanderoral defamation (spoken statements) libelwritten defamation (written, printed or broadc

40、ast words),a,45,Defamation,Public figure law of defamation A public figure alleging libel must prove actual malice. Public figures voluntarily place themselves in a position that invites close scrutiny. Defamation per se Some categories of statements are considered defamatory per seinjury is presume

41、d and neednt be proven.,a,46,Defamation,a statement that negatively affects a persons reputation relating to his business or profession allegations that a person is unchaste allegations that a person is infected with a sexually transmitted disease allegations that a person has committed a crime of m

42、oral turpitude (such as rape or incest) Defenses to claims of defamation truth,a,47,Defamation,opinion privilege evidence given in court statements made in a session of the legislature,a,48,Invasion of Privacy,Definition the intrusion into the personal life of another, without just cause Categories

43、intrusion of solitude actual physical or electronic intrusion into a persons private quarters A person was undressing at home, and someone filmed this without telling the person.,a,49,Invasion of Privacy,public disclosure of private facts the dissemination of truthful private information which a rea

44、sonable person would find objectionable An unscrupulous reporter rummaged through a public figures garbage to find evidence of prescription drug use or other highly personal matters. false light the publication of facts which place a person in a false light, even though the facts themselves may not

45、be defamatory,a,50,Invasion of Privacy,False light cases are about damage to a persons personal feelings or dignity, whereas defamation is about damage to a persons reputation. A reporter returned to the scene of a massive bridge collapse several years after the tragedy. The reporter attempted to in

46、terview the widow of a man who died in the crash. The widow and her children were not at home so the reporter fabricated a story about them which placed them in a false light in the public eye.,a,51,Invasion of Privacy,appropriation the unauthorized use of a persons name or likeness to obtain some b

47、enefits A local restaurant used a celebritys name or image in a commercial and implied an official endorsement.,a,52,Negligence,a,53,General,Definition conduct that breaches a standard of care deemed by the law as necessary to protect others from unreasonable risks of harm generally expressed as a b

48、reach of a duty Elements The defendant owed a duty of care to the plaintiff;,a,54,General,the defendant breached that duty; and as a result of the defendants breach of that duty, the plaintiff suffered injury.,a,55,Standard of Care,General All people are under a duty to conduct themselves in such a

49、manner as not to create unreasonable risks of physical harm to others. During a trial, the conduct of the defendant is reviewed to determine if he or she has met the reasonable person standard. Would a reasonable person have acted similarly under similar circumstances?,a,56,Standard of Care,Reasonab

50、le person a hypothetical person in society who shows average care, skill or judgment in conduct It is not an average or typical person. It is a composite of a communitys judgment as to how a typical member of that community should behave in situations that might pose a threat of harm to the public.,

51、a,57,Standard of Care,Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of the reasonable person. Reasonable person standard A person has acted negligently if she has departed from conduct expected of a reasonably prudent

52、 person acting under similar circumstances.,a,58,Standard of Care,It is a completely objective test under which subjective elements are normally not taken into account. Subjective traits of the tortfeasor may be considered, but they are considered according to an objective standard.,a,59,Causation,G

53、eneral To establish causation in negligence cases the plaintiff must prove that the defendants act was both the cause-in-fact and the proximate cause of his injuries. Cause-in-fact The but-for test Would the plaintiff have been injured but for the act of the defendant?,a,60,Causation,The substantial

54、 factor test Was the defendants action a substantial factor in causing the plaintiffs injury? Proximate cause The directness test The defendants act is the proximate cause of the plaintiffs injury if there is an unbroken sequence of events between the act and the harm. The foreseeability test,a,61,C

55、ausation,It is sufficient if a reasonable person would have foreseen the harmful results. Intervening cause an event which occurs after the defendants negligent act has occurred and which contributes to the injury If the intervening cause was the proximate cause of the plaintiffs injury, the defenda

56、nts act will not be considered the proximate cause.,a,62,Causation,If the intervening cause was foreseeable, the defendant will often be held liable for this additional harm.,a,63,NIED,General short for negligent infliction of emotional distress a controversial cause of action available in nearly al

57、l US states but severely constrained and limited in the majority of them NIED and IIED In an action for NIED there is no need to prove intent to inflict distress.,a,64,NIED,An accidental infliction, if negligent, is sufficient to support a cause of action. Underlying concept One has a legal duty to

58、use reasonable care to avoid causing mental distress to another individual. If one breaches this duty and unreasonably causes mental distress to another individual, he will be liable for damages to the injured individual.,a,65,Contributory Negligence,Definition a defense that bars a plaintiff from r

59、ecovery if his or her own acts or omissions contribute to the injury Burden of proof In some jurisdictions, the defendant has to prove the negligence of the plaintiff or claimant. In others, the burden is on the plaintiff to disprove his own negligence.,a,66,Contributory Negligence,Disadvantage It is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely. Result It has been deleted as a defense from the vast