法律英语讲义-民法.ppt

1、Tort Law,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 an act,General,Policy considerations maintenance of a peaceful so

2、ciety deterrence social responsibility the balancing of economic interests against societal benefits,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 to i

3、nvolve actual contactit only needs intent and the resulting apprehension.,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 might theoret

4、ically 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.,Assault,With the tort of assault, a perceived threat by the victim is paramount. A defendant throws a rock at a sleeping victim. He can only be

5、guilty of the attempted battery assault, since the victim would not be aware of the possible harm.,Battery,Definition (at common law) an intentional act causing an unconsented harmful or offensive contact with a person,Battery,intentionally knocking a hat off someones head or knocking a glass out of

6、 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 and injure himself,General,Property torts Definition Property torts are a specific cla

7、ss of intentional torts which arise when the right invaded is a property right rather than a personal right. Types trespass to land entering someones land without permission,General,trespass to chattels handling items owned by another without permission conversion taking possession of someone elses

8、property with the intent not to return it,Trespass to Land,Definition the wrongful interference with ones possessory rights in (real) property 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,Trespass to Land,

9、the abuse of a right of entry, when a person who has the right to enter the land does something not covered by the permission Land the surface anything permanently attached to the land, such as houses the subsoil the airspace,Trespass to Chattels,Definition the intentional interference with another

10、persons lawful possession of a chattel (movable personal property) Interference any 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),Trespass to Chattels,Elements Lack of consent The int

11、erference with the property must be non-consensual. Actual harm The interference with the property must result in actual harm. Intentionality The interference must be intentional.,Conversion,Definition the wrongful disposition of anothers property as if it were ones own Property subject to conversio

12、n It must be personal property: Real property cannot be lost and then found. (Real property is property in the form of land and buildings, rather than personal possessions.) It must be tangible: an animal, money, furniture, or tools;,Conversion,crops or timber the rights in a paper, such as a life i

13、nsurance policy or a stock certificate Elements The plaintiff owns or has the right to possess the property in question at the time of the interference; the defendant intentionally interfered with the plaintiffs property;,Conversion,the interference deprived the plaintiff of possession or use of the

14、 property in question; and the interference caused damages to the plaintiff. Traditional defenses Abandonment The property had been abandoned before it was taken by the defendant.,Conversion,Authority of law The property was taken by authority of law, a court order or valid process. Consent The prop

15、erty was taken with consent of the plaintiff, either express or implied. Fraud of the plaintiff The plaintiff conveyed property to a third person for purposes of evading creditors.,Trespass to Chattels and Conversion,Similarity Both include the wrongful, intentional interference of personal property

16、. Difference The difference between them is one of degreethe degree of possession the interfering 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.,Trespa

17、ss to Chattels and Conversion,When trespass is found, a person can recover the value of the 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 i

18、t with minimal or no damages, you may have a cause of action in trespass to chattel. If the same person steals the property and sells it to another, you will have a cause of action in conversion.,Negligence,General,Definition conduct that is culpable because it falls short of what a reasonable perso

19、n would do to protect another individual from foreseeable risks of harm Elements The defendant owed a duty to the plaintiff; the defendant breached that duty;,General,as a result of the defendants breach of that duty, the plaintiff suffered injury; and the injury was a reasonably foreseeable consequ

20、ence of the defendants action or inaction.,Duty of Care,Definition In tort law, 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. US tests for imposing a duty of care

21、 Foreseeability test,Duty of Care,In many states, the only test is whether the harm to the plaintiff from the defendants actions was foreseeable.,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 p

22、erson owes a duty to behave as a reasonable person would under the same or similar circumstances.,Standard of 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

23、 the persons actions,Contributory Negligence,Definition a defense that bars a plaintiff from recovery 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 a plaintiff or claimant. In others, the burden is on

24、a plaintiff to disprove his own negligence.,Strict Liability Torts,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

25、 the part of the defendant.,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.,Product Liability,Definition the respon

26、sibility of a manufacturer 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,Product Liability,Types of li

27、ability Manufacturing 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 ca

28、refully manufactured.,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 person engaged in the activity

29、 took every reasonable precaution to prevent others from being injured.,Ultra-hazardous Activity,Categories Transportation, storage, and use of ultra-hazardous materials radioactive materials certain hazardous chemicals Keeping of dangerous animals wild animals (i.e. animals that are not normally do

30、mesticated in that area) domesticated animals that have a known propensity for dangerous behavior,Nuisance,General,Definition something that causes offence, annoyance, trouble or injury The law of nuisance Under the common law, persons in possession of real property are entitled to the quiet enjoyme

31、nt of their lands. If a neighbor interferes with that quiet enjoyment, the affected party may make a claim in nuisance.,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.,Pri