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:
Ex contractu = cause of action resulting from ______________ between the parties
A legal action for breach of contract is ex contractu.
Ex delicto = cause of action based on _____________, no prior contact needed
A legal action for trespass or negligence is ex delicto.
There is a significant difference in the way damages are measured in the two types of action.
Ex contractu damages are calculated based solely on ___________.
Ex delicto damages can include _____________________________
(____________________ ) losses – and (rarely) punitive damages.
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I.
TORTS — IN GENERAL
A .
Common Law civil action between individuals to recover damages ($$)
1. Recovery (in any action) requires proof of a RECOGNIZED legal right that has been harmed, invaded, damaged a.
“Cause of Action” — the descendant of C.L. Writs b. Common Law allows a remedy only in specific circumstances c.
A “cause of action” normally consists of __________ that states when a person may recover:
E.G. A person has a cause of action for ************* when ********.
OR A person is liable for *********** when ****************.
d.
The “elements” of a cause of action (what must be proven) are stated or implied in the definition.
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2.
Defenses may be: a.
The plaintiff’s inability to prove ___________ of the cause of action alleged by the plaintiff b.
The defendant’s proof of a set of circumstances that the law recognizes as excusing liability (“_________________”)
» Burden on _______________ to prove affirmative defense
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B. Causes of action evolve over time (part of how Common Law works)
1.
Mostly through incremental changes / additions, not radical
2.
The types of injuries that the law will compensate has increased
C.
All Causes of Action:
1. Require proof of each ___________ of a recognized cause of action
2. One element of every cause of action is a recognized type of injury
3.
____________ of damages is a separate issue
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D.
Types of Issues (“Legal” or “of Law” and “Fact”)
1.
“_________” issues relate to what the applicable legal rules are
E.G.
Elements of a cause of action
Types of injury compensable
2.
“________” issues relate to what happened in the objective world
E.G.
Who had the green light, etc.
“What a reasonable person would do under the circumstances”
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E.
TORTS: Two very general categories:
1.
Intentional torts
2.
Unintentional torts (“Negligence”)
II. INTENTIONAL TORTS
A.
In early English law, all injuries were compensable, without regard to “fault”
1.
If a person did an act that resulted in an injury, he was liable
2.
Only question was ________________
3.
Intentional torts essentially continue that rule
4.
Then little (or no) distinction between criminal and civil liability
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B. Trespass to Real Property
1.
First tort recognized by Common Law a.
Other intentional torts are a variation on trespass b.
Primary difference = “legal right” protected
2.
Trespass to real property = Any ______________ of any part of the real property without permission.
» Physically walking over grass in yard
» Shooting an arrow across a field
» Throwing dirt (other things) onto property
» Running a pipe underground (3 inches or 300 feet down)
3.
Legal right protected = undisturbed, _________________________ a.
Common Law courts originally had no jurisdiction to try title to real property (very early, individuals could not have title) b.
“_______________” is not necessarily physical
(property law definition )
» Right to determine who can be physically present
» Can have/exercise right to possession through others
» Right exists even in holder’s absence (theft when not home)
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4.
If interference with possession proven, damages awarded a.
of possession that was wrongfully appropriated b.
PLUS physical damage to the property (if any)
5.
“Intentional” Tort a.
Required = Intention to _________________
(e.g. walk in a particular place) b.
Person could honestly believe she/he was on own property
» Still trespass if legally possessed by another
6.
Proving Intention (or any other subject state of mind)
» Same as discussed concerning criminal intent a.
Easier with trespass – only need to prove act done b.
Lack of voluntary-ness ________________ to be proven by the defendant
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D.
Other Trespass-type Torts:
1.
______ = Interference with exclusive possession of one’s body
(and extensions of it, things attached)
» Generally called “offensive or objectionable touching” a.
Physical damage is____________________ b. Any contact is assumed “offensive” if not permitted (by person touched) or “normal” in limited circumstances
(crowded bus) c.
Does not require that the victim be aware of the impending touch d.
“Intention” to do the act is required (not intention to do harm)
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2.
EXCEPTION to “Trespass” concept = Assault a.
__________________________ of immanent battery b.
Does not require that the battery actually results c.
Intent to batter includes sufficient _________________
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3.
Trespass to personal property and “__________________” a.
Same elements as trespass to real property b.
Normally requires bad guy to take some physical possession of item (“electronic trespass” will become an exception) c.
Length of time is ________________ to trespass d.
“Conversion” usually limited to _____________ deprivation of use
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4.
Others: a.
Defamation (libel, slander) - damage to possession of good reputation b. False Imprisonment = interference with ability to move as desired c.
Invasion of privacy = self-explanatory
(What one can reasonably expect to be “private” is a different problem)
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E.
Defenses to Trespass-Type Torts
1.
Lack of intent a. Did not intend to _____________
(E.G. Physically propelled onto the property by some other person) b. Jumping off a bridge and landing on someone in a boat,
“lack of intent” is not a defense to battery liability c. Lack of knowledge of other person’s right does not show lack of intent to do the act
2.
_____________ (Sometimes granted by law) a. __________________________ is up to the person with the right of possession b.
Can be withdrawn at any time
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3. LEGAL PERMISSION: a.
Police have legal permission to trespass to catch criminals b.
Firemen (Fire persons?) have the right to go onto other’s property to combat fire (even if on adjacent property) c.
Self-defense = legal permission to commit battery
(1) Degree of permission depends on the harm threatened
(2) Cannot significantly exceed level of harm threatened
(3) Apprehension of, or actual, trespass to property is not sufficient to support legal permission to use deadly force d.
If one has legal permission to some degree of possession
(or interference with possession), no trespass
» Cannot exceed scope of permission (time, location, etc.)
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NOTE: “Citizen’s arrest” is permitted – IF the person so arrested is actually guilty of the crime. Legal permission to “imprison”.
4.
Shopkeepers have legal permission to detain persons suspected of shoplifting (trespass to personalty). Actual guilt is not necessary a.
Permission is STATUTORY b.
If conditions provided in statute are not followed, no permission c.
General requirements:
(1) Reasonable grounds_________________________
___________________________
(2) Reasonable _________________ of detention
(3) Reasonable period for investigation, contacting police
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II. BUSINESS TORTS
A. In General
1. Any type of tort can occur in a business setting (and does) a. Negligent operation of vehicles, equipment, etc.
b. Employees doing things they have been told not to do c. Accidents happening despite all efforts to prevent, court finding not enough was done
2. “Business torts” normally do not occur outside a business setting.
Example: Failure of store security to follow statutory rules.

B.
Business – Related Intentional Torts
1.
Defamation (“_____” if written, “_______” if oral) a.
“Property right” involved = good reputation & credit b.
Must be “published” (some third person hears or reads) c.
Must have adverse effect on “property” interests
» Credit rating
» Employability d. Business setting = employment recommendations or information e.
Defenses
(1) Truth
(2) Privileged (not employment recommendations)
(3) Special rule for public figures (no actual malice)
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2.
Invasion of [Right to] Privacy a.
Use of name, etc., for commerce without permission
(one type of “appropriation”) b.
Invasion of personal affairs or “seclusion”
(true invasion of privacy in person, financial affairs) c. Publication of information that puts person in “false light”
(1) Usually involves true info, therefore not defamation
(2) Lack of full information concerning situation
» Reader’s Digest – did not mention when crime was committed or that person had finished prison sentence many years earlier d. Public disclosure of private facts e.
Continuing issues about extent of privacy of employee
» email
» Things in desk
» Observation of work
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3.
Wrongful Interference (with contract, business relationship, etc.) a.
Requirements
(1) ________________________________________ developed at a cost
(2) Knowing, intentional appropriation of information for personal business benefit
(3) Something beyond _________________ involved b.
Damages
(1) Amounts reasonably lost due to breach of contract, luring away customers
(2) Cost of creating now valueless property/information
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4. Intentional interference with “prospective advantage” a. Not so clearly defined in text (or most cases) as contract interference cases b. Requires proof that some type of economic advantage existed, then same additional elements c. How and when economic advantage existed is the problem
(1) Business operation does something to advance business prospects (expending funds, etc., in process)
(2) Actions produce third party response (or information) that places business in a better position to realize business goals
(3) Business efforts have created a type of “property” that has value (Lehigh Valley Realty case) d. Most significant problem/issue is defining or identifying when normal competition becomes an intentional tort.

I. TORTS AND DAMAGES
A. Types (Categories) of Damages
1. ______________ damages
2. ______________ damages
3. ________________ damages

B. Special Damages
1. Generally, any out-of-pocket expense resulting from the tort, plus any not-into-pocket lost income a. Medical, dental, hospital, medication, doctor, vet for injured pet b. Repair or replacement of property damaged or lost (car dents, cell phone smashed, lost books, cosmetics, clothing ruined, cleaning bills, new weave) c. Lost income from work (if working), including any benefits lost d. Wages, etc., paid to do things injured person would normally do (yard work, cooking, cleaning, grocery shopping, partying – not!)
2. All of those things for which one would normally receive a receipt for payment or a statement showing the amount paid
3. Includes costs for injuries not yet healed, or property not repaired or replaced, or injury that will require continuing care, estimated future costs of these things (can not go back to court later)

C. General Damages (a/k/a “Pain and Suffering”)
1. Money to compensate for the pain, discomfort, restrictions, inabilities, resulting from the tort a. Physical pain b. Physical disability c. Related emotional trauma (fear of freeways or open spaces) d. Loss of body parts (permanent or temporary) e. Loss of ability to do “normal” things f. Particular losses to injured person (e.g. smashed hand of professional drummer)
2. Money to compensate for those things in the future
3. None of these things are normally evidenced by receipts or billing statements

D. Punitive Damages (like the title – intended to punish, deter)
1. Some amount intended to encourage the defendant and others in its position to be more careful in the future a. Not normally awarded in any kind of case b. VERY rarely awarded in anything other than intentional tort cases c. Might be awarded in a contract-type case, but only when there is proof of acts that would also support a cause of action for intentional tort
(1) Fraud relating to making or performing contract
(2) Bad faith in making or performing contract
(3) Breach of fiduciary duty (insurance company, doctor, accountant, etc.)

2. No consistent method or theory about how amount should be decided – some courts use: a. Some significant portion of defendant’s income or net worth b. Some multiple of other damages awarded to the plaintiff c. Some multiple/estimate of the money made by the defendant from the sort of thing found liable for doing d. Anything not “totally unreasonable” in light of the defendant’s actions
3.
The U.S. Supreme Court recently held that federal appeals courts must carefully examine all punitive damages awards.
(Contrary to usual rule for review of damage awards)