Tort Law and Contract Law

MBA 507V 001

Summary

Chapter 7

Torts

In the introduction, the author firstly illustrates the differences between tort law and contract law. A tort can be defined as not breach of contract, but a civil wrong. In tort law, anyone can sue you as long as they can establish legally recognized duty that you owe them while only persons who you have a contract with or you are a third-party-beneficiary can sue you in contract law. In addition, compensatory damages apply in tort law are hard to calculate while they are usually easy to calculate in contract law. Moreover, tort law generally allows for the award of punitive damages but contract law doesn't permit it.

Then the author explores an intentional tort. The tort is considered intentional when the tortfeasor has acted intentionally. The tortfeasor knew certain consequences would result from the act. For example, someone hit or use baseball to hit a victim of a tort. In addition to physical pain, assault is also an intentional and unexcused act, creating a sense of apprehension. A battery is a completed assault, which is any unconsented touching. The assault and battery aren't always present together. For example, shooting someone in back leads to not assault but battery. When someone is sued for assault or battery, consent, self-defense, and defense of others are available defenses. A battery can result in not only some forms of physical touching but also battery to emotion, which is intentional infliction of emotional distress (IIED). A typical example of IIED is that a prank phone call made by someone to a mother, telling the mother her son has been killed. Invasion of privacy is also an intentional tort. It could be misappropriation other's voice, name, likeness, identifying characteristic. False imprisonment is another intentional tort, which occurs when someone intentionally confines or restrains other's movement or activities without justification. For example, a professor restrains students' freedom in a classroom. And a threat detains personal property. However, in business, when they confront with potential thieves, they can detain suspects until police come, which is shopkeeper's privilege. Trespass to land and trespass to personal property are also intentional torts. For trespass o land, the trespass can be momentary or fleeting soot, smoke, noise, odor, or a flying arrow or bullet. However, if someone is invited to a land or someone has a license to trespass the land; the trespass can be considered justified. For trespass to personal property, someone who takes your property permanently can be defined as conversion, which is also considered a crime of the theft. Defamation is another intentional act including slander that is oral defamation and libel that is written defamation. In addition to against person, defamation also takes place when someone publishes false information about other's products, which is injurious falsehood. In business, companies often make claims about their products. However, misrepresentation would happen when the claims are false, which is also called fraud. Sometime, the representation is just a puffery, not an actual lie. The final intentional tort is tortious interference with a valid and enforceable contract, which varies widely by state.

Second, the author discusses negligence, which applies to all persons who are involved in tort without intent. There are four elements plaintiffs have to demonstrate and prove. First, defendant owing a duty to plaintiff needs to be proved. If the risk of harm is foreseeable, the dusty will exist. In business, companies have a duty to warn or protect customers. Professional negligence can be defined as malpractice. Second, defendant breaching that duty needs to be proved. In reality, if the duty has been established, the presence of injury or harm is usually enough to satisfy the breach of duty requirement. Third, defendant's conduct causing injury needs to be proved. There are two questions should be asked: the causation is but-for causation or proximate causation. Foreseeability test can help determine which kind of causation. If an injury is foreseeable, the causation is proximate cause. However, in mass tort, it is difficult to prove what exact cause is. But you can pursue a claim against any party liable for the claim under the doctrine of joint and several liabilities. Fourth, legally recognizable injuries need to be proved. If someone has been injured, award damages may be calculated by the jury. There are two types of damages: compensatory damage that is awarded for medical injuries, economic injuries, and pain and suffering, and punitive damage that is awarded a sum of money to deter the defendant from ever engaging in similar conduct. There are three affirmative defenses here. First is assumption of risk, if the plaintiff has known the risk in a dangerous activity, the defendant is not liable for the injury. Second is contributory negligence and comparative negligence that the jury will decide which extent the parties are at fault. Third is the Good Samaritan law, which is mostly used in medical actions.

Finally, the author talks about strict liability that requires neither intent nor carelessness. It applies in only a few limited circumstances. One is an ultrahazardous activity that the person carrying out the activity is held strictly liable. It can also apply to restaurants, bars, and taverns serving alcohol to minors or visibly intoxicated persons, which is known as dram shop acts. Another is strict product liability applying to any retailer, wholesaler, or manufacturer selling unreasonably dangerous product. There are two theories to demonstrate the unreasonably dangerous product: a flaw in the manufacturing process and a design defect. Most cases result from the defective design theory because warning labels are also a part of a product's design. There are three defenses to strict product liability: assumption of risk, product misuse, and danger doctrine.

Chapter 8

The Property System

This chapter discusses the property system. There are two classifications of property: real property and personal property. At first, the author introduces personal property. There are several different personal properties: tangible property, chattel, fungible property and intangible property. Property could also be classified by ownership to be private property and public property. There are four methods to acquire personal property: production, purchasing, gifting, and find. Production is to create property. Purchasing is viewed as a trade of valuable consideration. Gifting is

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