Torts study guide

Torts study guide

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Type	Essay
Writer Level	Masters
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Description/Paper Instructions

 

TORTS STUDY GUIDE

I. What are the General Characteristics and General Principles of Tort Law?

A. What is a tort?

1. A tort is a violation of a private duty

2. From Latin “tortus” for crooked, dubious or twisted

3. Interference with property or person

B. Tort and crime distinguished

1. A crime is a violation of public duty that imposes a sentence of a fine and/or jail time

2. Tort is a violation of private duty that gives a right of compensation – remember O.J. Simpson

C. Types of torts

1. Intentional torts

a. Intentional conduct
b. Voluntary act, even though consequences may not have been intended

2. Negligence

a. Careless actions
b. Produce injury
c. Liability imposed for certain careless actions

3. Strict liability

a. Imposed for activity so dangerous that there must be full accountability
b. Dynamiting a building or road, crop dusting
c. Products liability is a form of strict liability

II. What are the Elements and Requirements for Intentional Torts?

A. Assault

1. Intentional act

2. Fear of imminent harm

B. Battery

1. Intentional, wrongful touching of another

2. Damages required

C. False imprisonment

1. Intentional detention of a person without consent

2. Shopkeeper’s Tort: detention of suspected shoplifters

3. Defense is the shopkeeper’s privilege

a. Reasonable basis to detain
b. Reasonable detention
c. Reasonable time
d. Reasonable manner

D. Intentional infliction of emotion distress

1. Conduct beyond the bounds of decency

2. Produces mental anguish (Erica Schoen example at Freightliner)

3. Used as a basis for recovery in outrageous debt collection cases

E. Invasion of privacy

1. Intrusion into private affairs (microphone in an office or home)

2. Public disclosure of private facts (business displays bounced checks)

3. Appropriation of name, image or likeness

F. Defamation

1. Slander – oral or spoken

2. Libel – written (some states include a broadcast)

3. Statement about a person’s honesty, reputation or integrity that is untrue that is heard and understood and causes damage

4. Defenses

a. Truth
b. Privilege such as Congressional debate
c. Qualified media privilege for coverage of celebrities/public figures – must prove malice (knowledge it was false or reckless disregard)
d. Witnesses granted immunity for their testimony have a privilege
e. Qualified privilege for employer references

G. Product disparagement

1. Slander of title or trade libel

2. Product disparagement

3. Same elements as defamation but statement is about product

4. New statutes often called “veggie libel” laws protect generic products such as eggs, beef, broccoli from slander and libel

H. Wrongful interference with contracts (tortious interference)

1. Third party induces breach of contract

2. Uses persuasion to intentionally induce breach – use Disney example in text

I. Trespass

1. Unpermitted entry to land

2. Unauthorized use of personal property (car)

III. What is Negligence?

A. Elements of negligence

1. Duty of reasonable care: the reasonable person
2. Variable character of the standard

a. Does not tell you in advance what should be done
b. Depends on circumstances

3. Degree of care/duty of care

a. Defined as what an ordinary prudent person would exercise under the circumstances
b. Can be professional standards; falling short is malpractice

4. Duty

a. Imposed by statute
b. Imposed by professional standards
c. Imposed by reasonable care

5. Causation

a. “But for” test
b. Failure to warn

6. Damages

a. Medical bills
b. Lost wages
c. Property damages
d. Punitive damages for gross negligence – use Tyson example to discuss damages

B. Defenses to negligence

1. Contributory negligence – defense

a. The plaintiff recovers nothing
b. It’s the last clear chance

 

RUBRIC QUALITY OF RESPONSE NO RESPONSE POOR / UNSATISFACTORY SATISFACTORY GOOD EXCELLENT Content (worth a maximum of 50% of the total points) Zero points:  Student failed to submit the final paper. 20 points out of 50:  The essay illustrates poor understanding of the relevant material by failing to address or incorrectly addressing the relevant content; failing to identify or inaccurately explaining/defining key concepts/ideas; ignoring or incorrectly explaining key points/claims and the reasoning behind them; and/or incorrectly or inappropriately using terminology; and elements of the response are lacking. 30 points out of 50:  The essay illustrates a rudimentary understanding of the relevant material by mentioning but not full explaining the relevant content; identifying some of the key concepts/ideas though failing to fully or accurately explain many of them; using terminology, though sometimes inaccurately or inappropriately; and/or incorporating some key claims/points but failing to explain the reasoning behind them or doing so inaccurately.  Elements of the required response may also be lacking. 40 points out of 50:  The essay illustrates solid understanding of the relevant material by correctly addressing most of the relevant content; identifying and explaining most of the key concepts/ideas; using correct terminology; explaining the reasoning behind most of the key points/claims; and/or where necessary or useful, substantiating some points with accurate examples.  The answer is complete. 50 points:  The essay illustrates exemplary understanding of the relevant material by thoroughly and correctly addressing the relevant content; identifying and explaining all of the key concepts/ideas; using correct terminology explaining the reasoning behind key points/claims and substantiating, as necessary/useful, points with several accurate and illuminating examples.  No aspects of the required answer are missing. 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And/or there is a significant use of highly questionable sources. 15 out 20 points:  Credible Scholarly sources are used effectively support claims and are, for the most part, clear and fairly represented.  APA 6th Edition is used with only a few minor errors.  There are minor errors in reference and/or citations. And/or there is some use of questionable sources. 20 points:  Credible scholarly sources are used to give compelling evidence to support claims and are clearly and fairly represented.  APA 6th Edition format is used accurately and consistently. The student uses above the maximum required references in the development of the assignment. Grammar (worth maximum of 20% of total points) Zero points:  Student failed to submit the final paper. 5 points out of 20:  The paper does not communicate ideas/points clearly due to inappropriate use of terminology and vague language; thoughts and sentences are disjointed or incomprehensible; organization lacking; and/or numerous grammatical, spelling/punctuation errors  10 points out 20:  The paper is often unclear and difficult to follow due to some inappropriate terminology and/or vague language; ideas may be fragmented, wandering and/or repetitive; poor organization; and/or some grammatical, spelling, punctuation errors 15 points out of 20:  The paper is mostly clear as a result of appropriate use of terminology and minimal vagueness; no tangents and no repetition; fairly good organization; almost perfect grammar, spelling, punctuation, and word usage. 20 points:  The paper is clear, concise, and a pleasure to read as a result of appropriate and precise use of terminology; total coherence of thoughts and presentation and logical organization; and the essay is error free. 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The paper has slight errors within the paper. This can include small errors or omissions with the cover page, abstract, page number, and headers. There could be also slight formatting issues with the document spacing or the font Additionally the paper might slightly exceed or undershoot the specific number of required written pages for the assignment. 10 points: Student provides a high-caliber, formatted paper. This includes an APA 6th edition cover page, abstract, page number, headers and is double spaced in 12’ Times Roman Font. Additionally, the paper conforms to the specific number of required written pages and neither goes over or under the specified length of the paper.
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