法律英語專題侵權(quán)法(tortlaw)市公開課金獎市賽課一等獎?wù)n件

1、Tort Law第1頁GeneralTorta civil wrong which unfairly causes someone else to suffer loss or harmIt 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 lawto provide relief to the injured party through the award of damages fo

2、r the injuries incurred during a tortious act第2頁Generalto deter others from committing the same actUS tort lawTort 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.Statutes have be

3、en passed in attempts to reform the tort system.第3頁GeneralMost 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 American Law Institute,

4、which summarizes the general principles of common law United States tort law.Categories of tortsintentional torts第4頁Generalnegligencestrict liability torts第5頁Intentional Torts第6頁GeneralDefinitionAn intentional tort is a tort resulting from an intentional act on the part of the tortfeasor.Subcategori

5、estorts against the personassaultbatteryfalse imprisonmentintentional infliction of emotional distress第7頁Generalproperty tortstrespass to landtrespass to chattels (personal property)conversiondignitary tortsdefamationinvasion of privacy 第8頁Torts Against the Person第9頁AssaultDefinitionan intentional a

6、ct that causes an apprehension of immediate harmful or offensive contactApprehension is not the same as fearhere it means awareness that an injury or offensive contact is imminent.RequirementsThe act must be overt.Mere words do not constitute an assault.第10頁AssaultThere must be an accompanying act.T

7、he 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 required.Examples第11頁Assaultswinging a baseball bat at someonehold

8、ing a rock and threatening to throw it at someonepointing a gun at someonepointing a realistic toy gun at someoneCriminal assault and tortious assaultCriminal assault can occur even when no threat is perceived by the victim.With the tort of assault, a perceived threat by the victim is paramount.第12頁

9、AssaultA 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.第13頁BatteryDefinitionan intentional act that causes a harmful or offensive contactHarmful contactcontact that objectively

10、 intends to injure, disfigure, impair, or cause painOffensive contactcontact that would offend a persons sense of personal dignity第14頁BatteryExamplesbeating someone with a tire ironspitting in someones faceknocking a hat off someones headwhipping a horse on which someone was riding, causing him to f

11、all and be injuredmixing something offensive in food that he knows another will eatthe other does in fact eat the offensive matter第15頁Batterydigging a pit with the intent that another will fall into it laterthe other does in fact fall into itCriminal and tortious batteryUsually battery is prosecuted

12、 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.第16頁False ImprisonmentDefinitionthe detention of a person in a bounded area without justification or consentThe essence of the tor

13、t is the natural mental harm that results when ones freedom is restricted without justification.Elementsintent to confine a person within a certain area第17頁False Imprisonmentactual confinementawareness of the confinement by the person so confinedno reasonable means of escapeFalse arrestFalse arrest

14、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.第18頁IIEDDefinitionshort for intentional infliction of emotional distressreferred to as the tort of outrage in some jurisdictionsintentional

15、 conduct that results in extreme emotional distressElementsThe defendant must act intentionally or recklessly.第19頁IIEDThe defendants conduct must be extreme and outrageous.The conduct must cause the plaintiff to suffer severe emotional distress.Severe emotional distressThis tort involves more than h

16、urt feelings, disappointment, or worry.There must be severe mental suffering, i.e. such that no reasonable person should be expected to endure it.第20頁IIEDThis standard is quantified by the intensity, duration, and any physical manifestations (ulcers or headaches, for example) of the distress.Example

17、sA 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.第21頁IIEDA person sent a letter to another falsely informing him that a close family member of his had been killed in an accident.第22頁Statute of Li

18、mitationsDefinitionan enactment that restricts the time within which legal proceedings may be initiatedObjectiveto 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第23頁Statute of

19、 LimitationsFunctionThe 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.ApplicationThe defendant must raise the defense before the court upon answering the plaintiffs complaint.第24頁Statute

20、 of LimitationsIf not, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.Tolling the statuteWhen the statute is tolled, the running of limitations is suspended until some event specified by law takes place.Most jurisdictions provide that th

21、e statute of limitations is tolled under certain circumstances:第25頁Statute of LimitationsThe plaintiff is a minor.The plaintiff has been deemed insane.The plaintiff has been convicted of a felony and is imprisoned.The defendant is in bankruptcy.第26頁Shopkeepers PrivilegeGeneralIn some jurisdictions o

22、f 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 probable cause to believe that the person detained in fact committed, or attempted

23、to commit, theft of store property.第27頁Shopkeepers PrivilegeThis privilege does not include the power of search.Requisite conditionsInvestigation on or near premisesThe detention itself should be effected either on the store premises or in the immediate vicinity thereof.Reasonable suspicionThe shopk

24、eeper has reasonable grounds to suspect the particular person detained is shoplifting.第28頁Shopkeepers PrivilegeReasonable force onlyOnly reasonable, non-deadly force is used to effect the detention.Reasonable period and manner of detentionThe detention itself may be for only the time necessary to ma

25、ke a reasonable investigation of the facts.第29頁Property Torts第30頁Trespass to LandGeneralTrespass to land occurs 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 exclus

26、ive possession of the land.NatureThis tort is actionable per se.第31頁Trespass to LandDamages are not required to be proven for intentional trespass.Only when the entry is negligent is there any need to prove damages.IntentThe intent requirement of trespass is only that the person intended to enter th

27、e property.It is irrelevant whether or not the entry is a mistake, caused by ignorance of the ownership or the boundaries.第32頁Trespass to LandNoteThe rights inherent in the possession of land extend above and below the surface.第33頁Trespass to ChattelsDefinitionthe intentional interference with anoth

28、er persons lawful possession of a chattel (movable personal property)Interferenceany physical contact (intermeddling) with the chattel in a quantifiable wayany dispossession of the chattel (whether by taking it, destroying it, or barring the owners access to it)第34頁Trespass to ChattelsNoteIn cases o

29、f intermeddling, there needs to be actual harm sustained by the plaintiff in order for 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 t

30、o damages even if no quantifiable harm can be proven.第35頁Trespass to ChattelsExampleHerman 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 f

31、or a trespass to chattels because he intended to take Leons book, even though his action was based on a reasonable mistake.第36頁ConversionGeneralConversion occurs when someone wrongfully takes or uses property of another for their own purposes or destroys it or alters its nature.Conversion and theftT

32、heft will also be conversion.But not all conversions are thefts because conversion requires no element of dishonesty.第37頁ConversionProperty subject to conversionIt must be personal property.Real property cannot be lost and then found.It must be tangible.money, an animal, furniture, or toolscrops or

33、timber (after they are severed from the ground)rights in a paper, such as a life insurance policy, a stock certificate, or a promissory note第38頁ConversionExamplesA 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 m

34、echanic borrows a sports car he is supposed to repair without permission.A neighbor lends her hedge trimmer to a friend, but the friend uses it to cut down a tree.第39頁Trespass to Chattels and ConversionGeneralThe two concepts are closely related.SimilarityBoth include the wrongful, intentional inter

35、ference of personal property.DifferenceThey are different in degreethe damage done to the plaintiffs possession in a conversion case is more severe than in a trespass case.第40頁Trespass to Chattels and ConversionApplicationIn general, when an object is damaged but repairable, trespass to chattels is

36、the more appropriate tort. When something is 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.第41頁Trespass to C

37、hattels and ConversionExampleDaphne hits 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

38、 conversion. Marty would be awarded the dogs full value.第42頁Dignitary Torts第43頁DefamationDefinitionthe communication of a false statement that harms a persons reputationDefamatory information must be communicated to a third person.Typesslanderoral defamation (spoken statements)libelwritten defamatio

39、n (written, printed or broadcast words)第44頁DefamationPublic figure law of defamationA public figure alleging libel must prove actual malice.Public figures voluntarily place themselves in a position that invites close scrutiny.Defamation per seSome categories of statements are considered defamatory p

40、er seinjury is presumed and neednt be proven.第45頁Defamationa statement that negatively affects a persons reputation relating to his business or professionallegations that a person is unchasteallegations that a person is infected with a sexually transmitted diseaseallegations that a person has commit

41、ted a crime of moral turpitude (such as rape or incest)Defenses to claims of defamationtruth第46頁Defamationopinionprivilegeevidence given in courtstatements made in a session of the legislature第47頁Invasion of PrivacyDefinitionthe intrusion into the personal life of another, without just causeCategori

42、esintrusion of solitudeactual physical or electronic intrusion into a persons private quartersA person was undressing at home, and someone filmed this without telling the person.第48頁Invasion of Privacypublic disclosure of private factsthe dissemination of truthful private information which a reasona

43、ble person would find objectionableAn unscrupulous reporter rummaged through a public figures garbage to find evidence of prescription drug use or other highly personal matters.false lightthe publication of facts which place a person in a false light, even though the facts themselves may not be defa

44、matory第49頁Invasion of PrivacyFalse 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 interview the

45、 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.第50頁Invasion of Privacyappropriationthe unauthorized use of a persons name or likeness to obtain some benefitsA local

46、restaurant used a celebritys name or image in a commercial and implied an official endorsement.第51頁Negligence第52頁GeneralDefinitionconduct that breaches a standard of care deemed by the law as necessary to protect others from unreasonable risks of harmgenerally expressed as a breach of a dutyElements

47、The defendant owed a duty of care to the plaintiff;第53頁Generalthe defendant breached that duty; andas a result of the defendants breach of that duty, the plaintiff suffered injury.第54頁Standard of CareGeneralAll people are under a duty to conduct themselves in such a manner as not to create unreasona

48、ble 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?第55頁Standard of CareReasonable persona hypothetical person in soci

49、ety who shows average care, skill or judgment in conductIt 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.第56頁Standard of CareEven though the majori

50、ty 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 standardA person has acted negligently if she has departed from conduct expected of a reasonably prudent person acting under similar circumstances.第57

51、頁Standard of CareIt 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.第58頁CausationGeneralTo establish causation in negligence cases the

52、plaintiff must prove that the defendants act was both the cause-in-fact and the proximate cause of his injuries.Cause-in-factThe but-for testWould the plaintiff have been injured but for the act of the defendant?第59頁CausationThe substantial factor testWas the defendants action a substantial factor i

53、n causing the plaintiffs injury?Proximate causeThe directness testThe 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第60頁CausationIt is sufficient if a reasonable person would have foreseen

54、 the harmful results.Intervening causean event which occurs after the defendants negligent act has occurred and which contributes to the injuryIf the intervening cause was the proximate cause of the plaintiffs injury, the defendants act will not be considered the proximate cause.第61頁CausationIf the

55、intervening cause was foreseeable, the defendant will often be held liable for this additional harm.第62頁NIEDGeneralshort for negligent infliction of emotional distressa controversial cause of actionavailable in nearly all US states but severely constrained and limited in the majority of themNIED and

56、 IIEDIn an action for NIED there is no need to prove intent to inflict distress.第63頁NIEDAn accidental infliction, if negligent, is sufficient to support a cause of action.Underlying conceptOne has a legal duty to use reasonable care to avoid causing mental distress to another individual.If one breac

57、hes this duty and unreasonably causes mental distress to another individual, he will be liable for damages to the injured individual.第64頁Contributory NegligenceDefinitiona defense that bars a plaintiff from recovery if his or her own acts or omissions contribute to the injuryBurden of proofIn some j

58、urisdictions, 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.第65頁Contributory NegligenceDisadvantageIt is often regarded as unfair because under the doctrine a victim who is at fault to any degree, inclu

59、ding only 1% at fault, will be denied compensation entirely.ResultIt has been deleted as a defense from the vast majority of statutes and replaced with comparative negligence.第66頁Comparative NegligenceDefinitiona defense that reduces the amount of damages that a plaintiff can recover in a negligence

60、-based claim based upon the degree to which the plaintiffs own negligence contributed to the injuryTypesPure comparative negligenceIf a plaintiff is 90% at fault he or she can still recover 10% of his losses.第67頁Comparative NegligencePartial comparative negligenceIf a plaintiff is more than 50% at f