沙麗金版法律英語

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 a tortious act,General,Underlying policy considerations maintenan

2、ce of a peaceful society deterrence social responsibility the balancing of economic interests against societal benefits,Intentional Torts,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 through

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

4、 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.,General,Subcategories Torts against the person assault battery false imprisonment intentional infliction of emotional distress Prop

5、erty torts trespass to land trespass to chattels (personal property) conversion,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 actual contactit

6、only needs intent and the resulting apprehension. wielding a knife,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 theoretically

7、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 guilty

8、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 Criminal battery and tortious battery Criminal law recognizes degrees of crimes involvin

9、g physical contact. There is but a single tort of battery.,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,Battery,intentionally k

10、nocking 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 and injure himself,False Imp

11、risonment,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,False Imprisonment,absence of a reasonable means of escape Remedies A

12、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.,IIED,Definition short for intentional infliction of emotional distress referred to as the tort of outrage in some jurisdictions intentional conduct that

13、 results in extreme emotional distress Elements The defendant must act intentionally or recklessly;,IIED,the defendants conduct must be extreme and outrageous; and the conduct must cause the plaintiff to suffer severe emotional distress. Examples A defendant refused to inform a plaintiff of the wher

14、eabouts of the plaintiffs child for several years, though that defendant knew where the child was the entire time.,IIED,A defendant sent a letter to a plaintiff falsely informing the person that a close family member had been killed in an accident.,Statute of Limitations,Definition an enactment that

15、 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 witnesses,Statute of Limitations,Function The st

16、atute 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 plaintiffs complaint.,Statute of Limitations,If not, he

17、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 minor. The plaintiff has filed a bankruptcy proceed

18、ing.,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, so long as the shopkeeper has cause to believe that the

19、 person detained in fact committed, or attempted to commit, theft of store property.,Shopkeepers Privilege,Requisite conditions 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 shopke

20、eper has reasonable grounds to suspect the particular person detained is shoplifting. Reasonable force only,Shopkeepers Privilege,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 ma

21、ke a reasonable investigation of the facts.,Property Torts,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 to land entering someones land without permission,General,trespas

22、s to chattels handling items owned by another without permission conversion taking possession of someone elses property with the intent not to return it,Trespass to Land,Definition the wrongful interference with ones possessory rights in (real) property It is actionable per se. (It is not necessary

23、to prove that harm was suffered to bring a claim.) Interference any physical entry to land throwing anything on the land,Trespass to Land,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 permanentl

24、y attached to the land, such as houses the subsoil the airspace,Trespass to Chattels,Definition the intentional interference with another persons lawful possession of a chattel (movable personal property) Interference any physical contact with the chattel in a quantifiable way any dispossession of t

25、he chattel (whether by taking it, destroying it, or barring the owners access to it),Trespass to Chattels,Elements Lack of consent The interference with the property must be non-consensual. Actual harm The interference with the property must result in actual harm. Intentionality The interference mus

26、t be intentional.,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. It must be tangible: an animal, money, furniture, tools, or receipts;,Conversion,crop

27、s 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 property in question at the time of the interference; the defendant intentionally interfe

28、red with the plaintiffs property;,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 Abandonment The property had been abandoned before it was taken by the defendant.,Conversi

29、on,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 The plaintiff conveyed property to a third person for purposes of evading creditors.,Trespas

30、s 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 interfering person has assumed. In general, when an object is damaged but repairable, trespass to chat

31、tels is the more appropriate tort. When something is destroyed or stolen, conversion is more appropriate.,Trespass 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

32、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 the same person steals the property and sells it to another, you will have a cause of action in conv

33、ersion.,Negligence,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 The defendant owed a duty to the plaintiff; the defendant breached that duty;,General,as a result of the de

34、fendants breach of that duty, the plaintiff suffered injury; and the injury was a reasonably foreseeable consequence 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 re

35、asonable care while performing any acts that could foreseeably harm others. Foreseeability,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 indivi

36、dual 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.,Standard of Care,Factors involved: the knowledge, experience, and perception of the person the activity the person is engaging in th

37、e physical characteristics of the person the circumstances surrounding the persons actions,NIED,General short for negligent infliction of emotional distress a controversial cause of action Contrast with IIED There is no need to prove intent to inflict distress. (That is, an accidental infliction, if

38、 negligent, is sufficient to support a cause of action.),NIED,Underlying concept One has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable fo

39、r monetary damages to the injured individual.,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

40、others, the burden is on a plaintiff to disprove his own negligence.,Contributory Negligence,Defect 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.,Comparative Negligence,Definition a

41、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 contributed to the injury Types Pure comparative negligence If a plaintiff is 90% at fault he or she can still recover 10% of his losses.,C

42、omparative Negligence,Partial comparative negligence If a plaintiff is more than 50% at fault he or she can not recover.,Assumption of Risk,Definition a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintif

43、f voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury,Assumption 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

44、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 activities.,Strict Liability Torts,General,Strict liability In tort law, strict liability is liability without fault (such as negligence or tor

45、tious intent). Policy basis Under certain circumstances, a plaintiff may be allowed recovery even though there is no fault on the part of the defendant.,General,Application Strict liability often applies to those engaged in hazardous or inherently dangerous activities: blasting storing inherently da

46、ngerous substances keeping wild animals It also applies to sellers and manufacturers.,Product Liability,Definition the responsibility 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 neglige

47、nce claims strict liability claims breach of warranty claims various consumer protection claims,Product Liability,Types of liability Manufacturing defect Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. Design d

48、efect Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured.,Product Liability,Failure-to-warn defect (also known as marketing defect) Failure-to-warn defects arise in products that carry inherent nonobvious danger

49、s which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose.,Ultra-hazardous Activity,General An ultra-hazardous activity in the common law of torts is one that is so inherent

50、ly 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 took every reasonable precaution to prevent others from being injured.,Ultra-hazardous Activity,Categories Transportation, storage, and

51、 use of ultra-hazardous materials dynamite and other explosives radioactive materials certain hazardous chemicals Keeping of dangerous animals wild animals (i.e. animals that are not normally domesticated in that area) domesticated animals that have a known propensity for dangerous behavior,Nuisance

52、,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 enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, the affected party may make a claim

53、 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.,Private Nuisance,Definition an interference with a persons use or quiet enjoyment of his land Requiremen