October 27th Notes

Fundamentals of Legal Practice
October 27, 2009

Homework #2:
-All you need to do this assignment is in the book
-Intentional? How is that an accident?  You are acting volitional but was it intentional
-Harry was hunting and shot at what he THOUGHT was a quail
--No idea what he was hunting, does not say he was hunting quail
--He could have been hunting panthers
-Break down word for word (state game preserve area) that's 4 elements

Torts        Chapter 7 page 213
-"Wrong"
-Torts are civil wrongs, between or amongst ourselves
-Society as a whole is not diminished by it
-Not contractual


Intentional Torts

Property
1. Conversion
---Interference with personal property is complete and total
---You break it, You buy it!

2. Trespass to Land (if you just say trespass, assume it is about land)
---Interference with the use and enjoyment of property

3. Trespass to Chattel
---Interference with personal property is brief (lesser interference than conversion)
---Needs to still have value (borrowed textbook, returned after test)

4. Nuisance (2)
---Does not have a substance (light, sound, smell)
--Public: affects multiple people
------must be abated by city, state, county, by the government
------no private right to sue
---Private: just affects you
------can sue, needs to be a unique harm

Emotional
1. Outrage: intentionally interference with emotional distress
---causes average person to say "Outrageous!"
----example: showing women her aborted fetus, taking gold fillings from corpses
--Utterly intolerable in a civilized society
----example: throwing ashes in garbage not at sea,

Legal Process
1. Abuse of Process
---use the legal system to cause most harm to someone, inconvenience, malicious prosecution

2. Malicious Prosecution
---causing frivolous lawsuits

Business
1. Interference with Contract
---trying to break contracts with others

2. Interference with Prospective
---preventing contract formation

3. Business Advantage

4. Product Disparagement
---run down someone's product
---Lanham Act if Commercial- defamation for products

Personal
1. Fraud  (7 elements)
---1. Intentional misstatement of material fact
---2. False
---3. Scienter (Knowledge of falsity; its the tort of "misrepresentation" and no punitive damages if in a state that allows them)
---4. Intent to induce reliance
---5. Does induce reliance
---6. Reliance is reasonable
---7. Damages
----Need to prove all elements to be fraud
----Is an extremely difficult tort to prove

2. False Imprisonment - with no SAFE means of escape & must be aware of loss of freedom of movement
--Usually a shoplifter case
--Must be reasonable

3. Battery
--Battery means harmful or offensive touching non-consented to touching
--All the law requires is volition(the physical act), doesn't matter if you did not intend
--There is no Assault & Battery (this is civil)
--Of the person or something intimately connected to the person (like purse, car, clothes)
--Intentional = Volitional

4. Assault
--Apprehension of an imminent battery, needs to have the physically ability and an overt act to solidify
--Imminent needs to be happening now, not later
--Also needs to physically be able to happen (paraplegic threating to kick you)
--Overt act, needs to have a physical act to back it up (clench fist, threatening stance)
--Apprehension does not mean fear, It is still assault because you have awareness of battery
--Assault and no battery when there is no touching, just a threat to injure
--No assault when there is no awareness, just battery, like when you come up behind someone unsuspecting

5. Invasion of Privacy
-Relatively new tort, came about from "can't be true" clause in defamation
--This is about true facts being spread
---1. Intrusion on Seclusion (high powered photograph, hidden cameras, hidden recorders) The right to be let alone
---2. Publication of Private Facts (health records, student records)  Not public records
---3. False Light (giving the impression) Seen at abortionist office, hate rally
---4. Appropriation (image used to sell something) Here's Johnny Portapotties (Johnny Carson)

6. Defamation
-Can be defaming or spreading untrue rumors
-The two types: slander verbal or libel in writing
-Needs to be severed enough to have people to shun you
-Apprehension = awareness
-Publication = telling someone , communicating
-Malice = knowledge of falsity
-Nature of the harm, there must be a loss to the person
-Protects your reputation
-If it is true, then they would already be ruining their reputation
-Public figures have access to the media that can clear their reputations
---1. The average, reasonable person needs to shun you
---2. Must be communicated to a third person, published
---3. Can't be true, with malice

7 Major Torts
"All torts can be fun, including old torts"
 
Assault
Trespass to land
Conversion
Battery,
False Imprisonment
Outrage
Trespass to Chattel


Unintentional Torts

Negligence
1. Duty
-can not be negligent if you had no duty to act
-we all have a different duty
-children, are not fully functioning adults (child standard), lower standards
-no negligence under 6
-physical handicap are lower standards
-there is no "stupid" standard or elderly standard
---example: "social contract"

2. Breach
-Breaching of the Duty
-TARP in SOSC = the average reasonable person in the same or similar circumstances

3. Causation
-Did the breach of your duty lead to the harm?
--Approximate: requires a link from activity to result, foreseeable
---Actual: "but for" - attenuated
---Most Famous Case of Causation: Palsgraf v. Long Island Railroad (1928),
------Scale falls on Palgraf after fireworks go off on platform
---Benjamin Cardozo and William Andrews disagreed on foreseeable
----Andrews: negligence in the air, enough to be stupid
----Cardozo: negligence in the air is not enough, not fair to see specifics
---Legal standard is reasonably foreseeable, not elaborate
--Chaos Theory

4.  Damages
-Did that cause damages?

Comparable Negligence
--Supposed the infered party is responsible for their own harm

3 forms
1. Pure
-recover up to % you were not at fault
--99% at fault, you can recover 1% of damages (WA is one of these states)

2. 50-50
-as long as you are not more at fault
-plaintiff is 50% or less they can sue

3. 49% or less