can some one help me with this exam .i will attach all the notes that you need to answer the questions.

Intentional Torts and Negligence

“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.”

C. J. Cardozo

I. Teacher to Teacher Dialogue

In designing my undergraduate course, I call the opening chapters on our legal history, court system, and constitutional law the “Rules of the Road.” These materials prepare students for later test applications by way of showing them where laws originated and what constitutional ground rules are to be used in the resolution of conflicts. With this chapter, the process evolves into the next stage, the legal environment. This material provides students with their first real personal opportunity to resolve conflicts placed before them by weighing the respective rights, duties, and obligations that arise from a civil dispute in tort.

I start by providing some background on the origins of the word “tort” and where it fits into the legal landscape vis-à-vis crimes and other disturbances of the peace. I also introduce students to the concept of the big picture where they will be asked to look at the variety of resolution paths available to them rather than just one “right” answer. This is done through the introduction of various classifications of torts with case illustrations for each classification. For example, with regard to the intentional tort of abuse of process, I tell them the story of how a group of militant tax protesters, calling themselves the Posse Comitatus, placed liens on the personal homes of IRS agents in Colorado. In addition, I remind them of the interrelationship between tort law and criminal law and how both may arise from the same act yet create entirely separate legal actions.

The other interesting aspect of teaching this material is that it introduces students to the concept of elements or components of a tort or crime or, for that matter, most legal doctrines. I encourage them to think in terms of negligence as not the first answer, but rather as the result of a component building block process where negligence is the product of showing the elements are in place. Many students have stated that this approach not only helped them make difficult legal doctrines more comprehensible, but it also introduced them to the underlying logic of “thinking like a lawyer.” All in all, tort law is really fun to teach because the human condition not only gives us so much incredible raw material to work with but also gives us, as teachers, real positive feedback that it is working in the minds of our students. As it was described once by a former student, after learning about how our tort system works, she now sees her legal environment with much wider eyes.

II. Chapter Objectives

List and describe intentional torts against persons.
List and explain the elements necessary to prove negligence.
Describe the business-related torts of disparagement and fraud.
Describe special negligence doctrines.
Describe and apply the doctrine of strict liability.

III. Key Question Checklist

How would you classify this tort—intentional, negligence, strict liability?
Is this an intentional tort and if so, are there any appropriate defenses?
Is this negligence and if so, are there any appropriate defenses?
Is duty of care an obligation? How severe is a breach of this duty?

IV. Text Materials

The key objectives of this chapter are to itemize the classifications of tort law as used in our system and to help students become familiar with the building block process used to construct each case.

Tort is the French word for a wrong.

Tort law allows an injured party to bring a civil action seeking compensation for wrongs done to the party or their property. Monetary damages are sought in order to compensate the injured party. Punitive damages may be awarded to punish the defendant in the case of intentional torts or strict liability. Non-monetary remedies like injunctions may also be sought.

Intentional Torts

Assault – Assault is an action that causes a reasonable apprehension and threat of imminent harm or offensive contact. It does not require actual physical contact.

Battery – The unauthorized and harmful or offensive physical contact with another person, whether direct or indirect is considered to be a battery. The doctrine of transferred intent applies when the acts of one person against another actually harm a third person.

False Imprisonment – The intentional restraint or confinement of a person without their consent by another who lacks the authority to take that action is known as false imprisonment. Most states have merchant protection statutes that allow a shopkeeper to stop and detain shoplifters under specific circumstances.

Shoplifting and Merchant Protection Statutes – Almost every state allows merchants to stop, detain, and investigate suspected shoplifters, provided that there are reasonable grounds, they are detained for only a reasonable time, and the investigation is conducted in a reasonable manner.

Case 5.1. False Imprisonment: Wal-Mart Stores, Inc. v. Cockrell

61 S.W.3d 774, 2001 Tex. App. Lexis 7992 (2001), Court of Appeals of Texas

Facts: Karl Cockrell was stopped by Raymond Navarro, a Walmart loss-prevention officer while shopping in the store. He was escorted to the manager’s office, where he was asked to drop his pants, remove his shirt, and even remove a bandage that was covering a surgical wound on his abdomen. After explaining that it was a sterile environment from a liver transplant, he was still pressured into removing the bandage. Navarro then apologized, having found no stolen merchandise, and let Cockrell go.

Cockrell sued for false imprisonment; Walmart countered that they were protected under the shopkeeper’s privilege. The trial court found in favor of Cockrell; Walmart appealed.

Issue: Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of the case?

Decision: No.

Reason: The Court of Appeals upheld the trial court’s finding that Walmart had falsely imprisoned Cockrell and had not proved the shopkeeper’s privilege, allowing the award to Cockrell of $300,000 for mental anguish.

Ethics Questions

Navarro did not act responsibly. Neither he nor any other employee saw Cockrell steal anything. Further, the students should question why the bandage had to be removed, since it is highly unlikely that Cockrell would have had the time to pace anything under the bandage, nor would anything fit under it. Asking him to empty his pockets or lift his shirt might have been acceptable. The shopkeeper’s privilege allows a merchant to stop, detain, and investigate suspected shoplifters, provided that these activities are done reasonably.

Misappropriation of the Right to Publicity – The tort of appropriation occurs when another person uses a living person’s name or identity for commercial purposes without permission.

Invasion of the Right to Privacy – The law protects each person’s right to not be subjected to intrusions into their private lives.

Defamation of Character – This tort requires that the plaintiff prove that the defendant made an untrue statement of fact about the plaintiff that was, intentionally or accidentally, published to a third party. Oral defamation is slander, while written defamation is libel. In the case of public figures, in order to prove defamation, the element of actual malice is added.

Disparagement – Disparagement, trade libel, product disparagement, and slander of title are all names for the act of making an untrue statement about the products, services, property, or reputation of a business.

Intentional Misrepresentation (Fraud) – Fraud or deceit occurs when one deceives another out of money, property, or something else of value. The four elements of fraud are that the wrongdoer made a false representation of a material fact, made with the knowledge of the falsity of the remark and with the intent to deceive; the innocent party justifiably relied upon the misrepresentation, and was injured.

Intentional Infliction of Emotional Distress – If the intentional or reckless extreme and outrageous conduct of another person causes severe emotional distress, it is known as the tort of outrage.

Malicious Prosecution – In a lawsuit for malicious prosecution, the original defendant sues the original plaintiff. In this second lawsuit, which is a civil action for damages, the original defendant is the plaintiff and the original plaintiff is the defendant.

Critical Legal Thinking – This question addresses the American Rule of damages. In some states and with some statutes, there is cost shifting available for legal expenses. Other countries appear to have more significant cost shifting mechanisms in place in their countries for frivolous or malicious lawsuits.

Unintentional Torts (Negligence)

To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty of care which he breached, and that the defendant’s negligent action caused their injury. In judging this, the court will apply the reasonable person standard, the reasonable professional standard, or the reasonable child standard.

Duty of Care – To determine whether a defendant is liable for negligence, it must first be ascertained whether the defendant owed a duty of care to the plaintiff. Duty of care refers to the obligation people owe each other—that is, the duty not to cause any unreasonable harm or risk of harm.

Breach of the Duty of Care – A breach of the duty of care is the failure to exercise care. In other words, it is the failure to act as a reasonable person would act. A breach of this duty may consist of an action.

Injury to Plaintiff – Even if the court finds that there is a duty to care, the plaintiff must suffer an injury in order to bring suit.

Ethics: Ouch! McDonald’s Coffee’s is Too Hot!

Stella Liebeck purchased a cup of coffee at McDonald’s drive-through window. While adding sugar and cream to the coffee, it spilled in her lap, giving her third-degree burns, requiring hospitalization and skin grafts.

Liebeck asked McDonald’s to cover her medical expenses. They refused and offered her a much smaller amount as a settlement. She sued. McDonald’s denied any negligence and asserted that she had caused her injuries by removing the top from the cup.

McDonald’s quality-control rule requires that the restaurant serve coffee at 180-190 degrees, but third degree burns occur at 185 degrees. It was shown at trial that the coffee had to be at least 20 degrees hotter than it should have been. Additionally, there had been over 700 prior complaints from people who had been scalded.

Based on the evidence, the jury awarded $200,000 to Liebeck and $2.7 million in punitive damages; the latter was reduced by the judge to $480,000.

Ethics Questions: This classic case has received a great deal of reporting and seems to be a rather exceptional situation. Apparently, McDonalds received notice that $800 is too low of a settlement in this case. Student answers will vary.

Case 5.2 Negligence: Jones v. City of Seattle, Washington

314 P.3d 380, 2013 Wash. Lexis 955 (2013), Supreme Court of Washington

Facts: A firefighter was hurt very badly while sliding down a pole in the fire station.

Issue: Are the damages proper in this instance?

Decision: Plaintiff wins on appeal and trial court decision is upheld.

Ethics Questions: Perhaps a study regarding safety and the need for poles in fire stations ought to be examined. This case is a very sympathetic situation where a city worker was permanently impaired from an on the job injury. This is a very bad set of facts in a union friendly state. Perhaps not trying this case and settling it would have been a better option for the defense.

Actual Cause – The act of the defendant must be the actual cause of the plaintiff’s injury.

Proximate Cause – This act must be the proximate or legal cause of the injuries, and the courts will apply the test of forseeability to determine if it is the actual cause.

Critical Legal Thinking Case Proximate Cause

Palsgraf v. The Long Island Railroad Company, 248 NY 339

This case examines the issue of proximate cause. The court determined that negligence is actionable only if it involves the invasion of a legally protected interest.

Critical Thinking Question – There must be both actual cause as well as proximate or legal cause in a negligence suit. This means that the cause of the injury must have a legal basis and violation as well as a basis in fact and an actual connection.

Case 5.3 Duty of Care: James v. Meow Media, Inc.

300 F.3d 683, 2002 USApp. Lexis 16185 (2002), United States Court of Appeals for the Sixth Circuit

Facts: The parents of the three dead children sued the producers and distributors of the violent video games and movies that Carneal had watched prior to the shooting. The parents sued to recover damages for wrongful death, alleging that the defendants were negligent in producing and distributing such games and movies to Carneal. The U.S. District Court applied Kentucky law and held that the defendants did not owe or breach a duty to the plaintiffs and therefore were not liable for negligence. The plaintiffs appealed.

Issue: Are the video and movie producers liable to the plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs’ three children?

Decision: The Court of Appeals held that the defendants’ video game and movie producers and distributors were not liable to the plaintiffs. The court cites a requirement that it be reasonable that these games, movies, and Internet sites would incite a young person to violence. The Court stated that individuals are generally entitled to assume that third parties will not commit intentional criminal acts.

Ethics Questions: A proximate cause is a point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions. The general test of proximate cause is foreseeability. A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff. A moderate view of the forseeability factor was used to decide the case. Producers and distributors of video games and movies owe a duty to some extent to society. The First Amendment rights shields the free speech factor in this case and is a factor.

Special Negligence Doctrines

Professional Malpractice – If a professional breaches the reasonable profession duty of care standard, it is called professional malpractice.

Negligent Infliction of Emotional Distress – This tort is an extension of emotional distress covering those who have witnessed a relative killed or injured by the defendant, causing them severe emotional distress.

Negligence Per Se – This form of negligence is based upon statutes that are enacted to prevent the type of injury suffered by an individual intended to be protected by the statute.

Res Ipsa Loquitur – Res ipsa loquitur requires that the defendant had exclusive control over the situation that caused the plaintiff’s injury, which could not have occurred except for someone’s negligence.

Good Samaritan Laws – These laws relieve medical professionals and trained laypersons from liability for injuries for ordinary negligence when they stop and render aid at accidents.

Gross Negligence – A person is liable for harm that is caused by his or her own willful misconduct or reckless behavior. Gross negligence opens the door to punitive damages for a plaintiff.

Critical Legal Thinking – Gross negligence is more severe than simple negligence. Ordinary negligence is an accident, gross negligence is when your conduct is clearly the cause of the accident.

Case 5.4 Gross Negligence: Aleo v. SLB Toys USA, Inc.

995 N.E. 2d 740, 2013 Mass. Lexis 709 (2013), Supreme Judicial Court of Massachusetts

Facts: A child died from a slide with an electric current made in China and sold by Toys “R” Us.

Issue: Is the defendant grossly negligent?

Decision: Yes, the appellate court upheld the trial court’s decision.

Ethics Questions: The lack of federal testing seems to have been a factor in making the punitive damage judgment and determination. This case is from a fairly liberal jurisdiction and the concept of the United States being a first world type of nation in terms of human life and not selling defective products made overseas probably contributed to the determination that the toy retailer should be punished and held accountable. A case like this certainly gets the message across that defective toys are not going to be tolerated in the United States.

Critical Legal Thinking – Public policy exists to encourage medical professionals, especially doctors who have taken the Hippocratic oath, to use their skills to assist Americans who are in emergency situations. To encourage such performance of services, they are released from liability in performing medical “duties.”

Attractive Nuisance Doctrine – A rule that imposed liability on a landowner to children who have been attracted onto the landowner’s property and who are injured on the property. A trampoline, a swimming pool with no fence, etc. are examples of attractive nuisances.

Defenses Against Negligence

Superseding or Intervening Event – Negligence law holds people liable for only foreseeable events. Superseding or intervening events are viable defenses to liability.

Assumption of Risk – Defendants can raise the issue that the plaintiff assumed the risk by voluntarily and knowingly entering into risky activities.

Case 5.5 Obvious Danger: Martinez v. Houston McLane Company, LLC

414 S.W.3d 219, 2013 Tex. App. Lexis 2420 (2013), Court of Appeals of Texas

Facts: A child was hit in the face by a fly ball at a professional baseball game.

Issue: Was the owner of the baseball team liable for the child’s injuries?

Decision: No, this is an example of obvious danger and assumption of the risk by the parents who took the child to the game.

Ethics Questions: Personally, I am surprised that this concept is still accepted in our litigious society and I am surprised that fans are allowed to sit so close to the open baseball field. I wonder whether this liability excuse will continue to exist in our American society.

Contributory Negligence – Common law states that a plaintiff that is partially at fault for his own injury cannot recover against a negligent defendant, unless the defendant has violated the last clear chance rule, which states that you have a duty to avoid an accident if at all possible.

Comparative Negligence – The doctrine of pure comparative negligence apportions the negligence between the plaintiff and defendant, and the defendant is responsible for his percentage share of the award amount. Some states apply the doctrine of partial comparative negligence, which holds that the plaintiff must be less than 50% responsible for their injuries in order to recover under comparative negligence, and the doctrine of comparative negligence is then applied, granting the plaintiff no recovery.

Critical Legal Thinking – Comparative negligence seems to more fairly allocate risk across parties. The difference is that in contributory negligence, the plaintiff is shut out of recovering any damages if he is partially at fault in a negligence situation.

Strict Liability

Strict liability is a tort that involves liability without fault. There are certain activities that are so dangerous, that even if reasonable care is taken, injury may occur. This doctrine allows for recovery in those situations.

V. Key Terms and Concepts

Abnormally dangerous activities—Strict liability is imposed for abnormally dangerous activities that cause injury or death.
Actual cause—The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven.
Assault—(1) The threat of immediate harm or offensive contact, or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is not necessary.
Assumption of the risk—A defense in which the defendant must prove that (1) the plaintiff knew and appreciated the risk, and (2) the plaintiff voluntarily assumed the risk.
Battery—Unauthorized and harmful or offensive physical contact with another person. Direct physical contact is not necessary.
Breach of the duty of care—A failure to exercise care or to act as a reasonable person would act.
Comparative negligence—A doctrine that applies to negligent actions that says a plaintiff who is contributorily negligent for his injuries is responsible for a proportional share of the damages.
Contributory negligence—A doctrine that says a plaintiff who is partially at fault for his own injury cannot recover against the negligent defendant.
Defamation of character—False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff, and (2) the statement was intentionally or accidentally published to a third party.
Disparagement—False statements about a competitor’s products, services, property, or business reputation.
Duty of care—The obligation people owe each other not to cause any unreasonable harm or risk of harm.
False imprisonment—The intentional confinement or restraint of another person without authority or justification and without that person’s consent.
Good Samaritan law—Statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations.
Gross negligence—Reckless disregard of the law that renders an act to be worse than ordinary negligence.
Injury—The plaintiff must suffer personal injury or damage to his or her property in order to recover monetary damages for the defendant’s negligence.
Intentional infliction of emotional distress—A tort that says a person whose extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. Also known as the tort of outrage.
Intentional misrepresentation—(1) Tort that occurs when a wrongdoer deceives another person out of money, property, or something else of value. Also known as fraud or deceit; (2) when a seller or lessor fraudulently misrepresents the quality of a product and a buyer is injured thereby.
Intentional tort—Occurs when a person has intentionally committed a wrong against (1) another person or his or her character, or (2) another person’s property.
Invasion of the right to privacy—A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwarranted and undesired publicity.
Libel—A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, etc.
Malicious prosecution—A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.
Merchant protection statute—Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) suspects are detained for only a reasonable time, and (3) investigations are conducted in a reasonable manner.
Misappropriation of the right to publicity—An attempt by another person to appropriate a living person’s name or identity for commercial purposes.
Negligence per se—Tort where the violation of a statute or ordinance constitutes the breach of the duty of care.
Negligent infliction of emotional distress—A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct.
New York Times Co. v. Sullivan—In this case, the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with “actual malice.”
Ordinary negligence—Simple negligence which is more compatible to an unintentional accident than to a reckless disregard of the law by a party.
Palsgraf v. The Long Island Railroad Company—The landmark case establishing the doctrine of proximate cause is Palsgraf v. The Long Island Railroad Company, a New York case decided in 1928.
Partial comparative negligence—Several states have adopted partial comparative negligence, which provides that a plaintiff must be less than 50 percent responsible for causing his or her own injuries to recover under comparative negligence; otherwise, contributory negligence applies.
Professional malpractice—The liability of a professional who breaches his duty of ordinary care.
Proximate cause or legal cause—A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions.
Public figure—Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity. This requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities.
Reasonable person standard—A test used to determine whether a defendant owes a duty of care. This test measures the defendant’s conduct against how an objective, careful, and conscientious person would have acted in the same circumstances.
Reasonable professional standard—Defendants with a particular expertise or competence are measured against a reasonable professional standard.
Res ipsa loquitur—Tort where the presumption of negligence arises because (1) the defendant was in exclusive control of the situation, and (2) the plaintiff would not have suffered injury but for someone’s negligence. The burden switches to the defendant(s) to prove they were not negligent. The “thing speaks for itself.”
Scienter—Refers to intentional conduct.
Slander—Oral defamation of character.
Strict liability—Liability without fault.
Superseding event—A defendant is not liable for injuries caused by a superseding or intervening event for which he or she is not responsible.
Tort—A civil wrong. There are three categories: (1) intentional torts, (2) unintentional torts (negligence), and (3) strict liability.
Transferred intent doctrine—Under this doctrine, the law transfers the perpetrator’s intent from the target to the actual victim of the act.
Unintentional tort—A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.