Class 17 - Negligence-based Torts

General comment from midterm:

You can't collect money unless there's some legal basis to do so:
negligence
intentional, without lawful justification

But simple accidents don't necessarily qualify. Example: Woman who tripped over a parking barrier at the American Legion.

Negligence-based / Unintentional Torts

There are conditions, just like in Intentional Torts. 4 elements (possibly a fifth):
1. Duty of ordinary care is owed by the wrongdoer. It all depends on the situation. Ex: driving. You owe a duty of care to others of an ordinary, reasonable, prudent driver. Howver, the duty of care is owed only if engaged in an activity. No duty is owed to engage in an activity. Unless a parental, public or contractual obligation - those people have a duty to engage in action. Failure to do so may be considered negligence. Only owed to parties who could forseeably be injured by your actions, not to their second cousins.

See Bethlehem Steel v. Ernst & Whinney. E&W had a client EL Jackson who wanted to purchase steel on credit. E&W exaggerated the worth of EL Jackson. When EL Jackson defaulted on the payments to Bethlehem, Bethlehem came after E&W. Court ruled that E&W owed a duty of care also to Bethlehem because it was foreseeable that they would be injured by their actions.

Similar thing happened with Enron and Anderson.


2. The injury was a result of an action or omission that was a breach of the duty of care. Some careless behavior. Establish negligence by showing a duty of care and also an act or omission that was a breach of that duty of care. The act/omission can sometimes be difficult to identify and pinpoint. Ex: medical malpractice.

See res ipsa loquitur ("the thing speaks for itself") on page 130 - obvious case of something having gone wrong due to negligence. If the instrumentality is under wrongdoers control exclusively and this type of injury does not occur unless there is some negligence, then the wrongdoer must disprove that they were not negligent. A shift in the burden of proof to the accused.

Ex: case of airplane that crashed due to engine falling off.

If no duty of care or no breach, there's no case.

Causation

Two areas to look at.

3. The "but for" test. Ex: fire in a hotel room with no fire escapes. Ex: broken down car, not all the way on the shoulder, hit by a speeding truck. Would have still been injured, even if they were not speeding or negligent. Therefore, there is no basis for the tort.

4. Harm must be foreseeable. The chain of causation. Proximate cause.
Ex: car crash - window washer falls. not forseeable. Ex: Chicago fire. Oleary can't be held responsible for the whole fire.
You can only extend the chain so far. Foreseeable by a reasonable person.

Also,
5. Must be the victim of real harm. Bumping into someone's car without damage/injury doesn't qualify.

See Palsgraf v. Long Island Railroad
Cardozo ruled that the railroad employee's negligence was not the proximate cause of the injury to the woman.

Class 16 - Midterm Review

Midterms will be returned on Thursday.

Midterm Review

Discrimination
Levels of governmental interest required for laws which discriminate between
Racial: Overwhelming
Sex: Sustantial
Age: Minor

4th Amendment
Exceptions to the warrant requirement:
Exegency
Plain view

Malicious Prosecution
People lie about what they witnessed someone else do.

Business Jurisdiction - only "minimal contact" is required

Comparative Negligence

Proximate Cause - read Palsgraf v Long Island Railroad
Also read Wassell v Adams

Read negligence

Class 15 - Intentional Torts (cont.) and Review

Midterm will cover chapters 1-5 and the second half of chapter 6.
It will be essays.

Know the definitions.

Assault: Intentional conduct which places another in apprehensive of a battery without lawful justification. Words alone are not an assault. There must be some physical action.

Battery: An unlawful touching. The intentional physical contact with another which is either harmful or offensive without lawful justification.

Offensive - objective standard, to an ordinary reasonable person. However, if the offended person has notified the offender, then continued touching would be offensive to an ordinary person.

Even a joke can be a battery. Remember the case of Southwest Airlines.

Self-defense - can only use the force necessary to stop the offender. Excessive force is a battery.

False Imprisonment

Intentional tort. aka false arrest. Intentional confinement of a person to a bound/confined area, without lawful justification.

Sometimes happens with store security.

Ex: Guy keeps someone on a boat against that person's will. Even though there was no weapon or threats, it still constituted "confinement".

See Russell v. Kinney Contractors pg 139

Shoplifting - security can't search you for no reason. that detention could be false imprisonment. touching could be battery. they can't just say you looked suspicious. they must have some reasonable reason for detaining and searching you.

Infliction of Emotional Distress
This is a new tort (100-120 yrs old). Not in English common law. Due to growth of the field of psychology.
Definition: Extreme and outrageous intentional conduct which results in severe emotional distress with physical manifestations, without lawful justification.

See White vs Monsanto - the conduct did not meet the test of extreme and outrageous conduct, although it did involve severe emotional distress with physical manifestations.

Collections agency once told a woman that her husband was in a car accident in order to lure her into that situation and approach her about the account. It was ruled to be extreme and outrageous conduct.

All elements of the law must be met in order to be guilty of the offense.

Invasion of Privacy
Four torts rolled into one:
1. Use of a person's name or likeness (including voice) without permission. Joan Rivers once sued for voice impersonation.
2. Intrusion into a person's solitude. Includes harassment and unwanted phone calls, wiretapping and searches.
3. Putting someone in a false light. not defamation. defamation is false information. this is misinformation. ex: photo with caption of "alcohol ruining sports"
4. Public exposure of private information. includes drug use and debts. any public records are fair game, including court suits.

Defamation
There are 3 elements to defamation
1. a false and defamatory statement about another person
2. communicated to a 3rd party
3. causes harm to the person about whom the statement was made

and additional element:
Malice - if the person defamed is a public official or figure (sports, entertainer, politician), they must show actual malice, i.e. with the knowledge of its falsity or that the communicator didn't care. This is frequently difficult to prove.

You are presumed damaged by certain types of defamation.

Privilege - things said in a court room are not subject to defamation. Congressmen also have a protection of privilege for what they say on the floor of the Congress.

Malicious prosecution - giving false info to the police so others will be arrested. Similarly, frivolous law suits.

Review:
7 essay questions.
Spelling and grammar are not important.

Some questions on the first amendment
commercial speech and political speech protection - regulated in time, place and manner
limitation on commercial speech (substantial govtal interest) and political speech (high bar)

4th amendment - s&s - two questions
criminial investigatory search
osha type search
warrant requirements
4th amendment protection
probable cause - what does the govt
exegency - w/o a warrant

giant tort question
what are the issues/torts?
numerous issues - is there a tort there?
what is the rule of law

14th amenedment - equal protection
different standards
sex, age

jurisdiction
long arm of the courts to reach out to other states and hear cases
minimal contact - incorporate, some biz in the state, headquarters

Class 14 - Intentional Torts

Midterm will be next Thursday, Oct 22. Includes everything through the second half of Ch 6 (intentional torts), but not the first half of Ch 6. Review will be on Tuesday.

Many different types. Wrongful conduct against a person or property. Many of these are also crimes. Know the definitions of these torts - assault, battery, false imprisonment, intentional inflictions of emotional distress.

Battery: unlawful touching which is intentional physical contact without consent. Punitive damages would only be applied if it was intentional. Only compensatory - medical, rehab, lost future wages.

Intentional torts always carry a punitive damage award.

Battery - intention physical contact which is either harmful or offensive without lawful justification. Self defense is considered lawful justification. Throwing an object is also a battery. Direct contact is not necessary.

Assault - intentional which places another person in apprehension of an imminent physical contact without lawful justification. Words alone and oral threats are not an assault. Physical conduct coupled with words is an assault.

Assault and battery are separate and each can occur without the other.

Intent travels with the object. If you throw something and it hits an unintended target, it's still a battery against that unintended target. Ex: drive-by shooting which hits an innocent bystander.

Assault must be immediate. Threatening someone with harm at a later time is not assault.

Assault only applies if the victim sees it coming. If not, there's no apprehension. In the criminal area, there does not need to be apprehension.

Battery can be offensive, not just harmful. Ex: Groping. Offensive has an objective standard based on an ordinary, reasonable person in contemporary American society. If the person is personally offended and has notified the offender, any further contact may be a battery.

See Fuerschbach v Southwest Airlines pp 137-138 - sometimes jokes and pranks can be assault and battery. You don't have to intend to harm. The intent is only required on the contact. You don't have to know how much harm will come from the contact. Only intent for the contact is required for it to be considered battery.

Defenses:
Consent - ex: sporting events. But only reasonable contact that can be expected in the sport.
Privilege
Self defense - only if your act of defense is reasonable in the circumstances. Only use deadly force if you are in danger of death or great bodily harm.
Cannot cause great bodily harm in defense of property. However, you may protect your house from intruders with deadly force.
See case of Iowa farmer who set up a shotgun to shoot a burgler - there was no threat of harm.
Defense of Others - if you do, you step into that person's shoes.

Class 13 - Equal Protection

Proximate cause in the area of negligence law - Palsgraf v Long Island Railroad Company
Intentional infliction of emotional distress - White v Monsanto
Comparative negligence - Wassell v Adams

Equal protection
Comes from 14th amendment. End of civil war - 3 amendments: 13, 14 and 15.
14th section 1 - all persons born or naturalized in the US are citizens of the US.

In practice, the 14th amendment was not used to end discrimination. It furthered it.

See Plessy v Ferguson. Plessy was of mixed race and considered himself as Caucasian. He wanted to ride in the "Whites Only" railroad car, but was denied. SCOTUS ruled that "separate but equal" facilities were considered equal protection.

Over the next several years and decades, SCOTUS wittled away at Plessy. See Sweatt v Painter.

In 1954, Brown v Board of Education decision reversed this.

Not all discriminatory laws violate equal protection. There's a test. If there's a race-based law, it's suspicious, but not necessarily invalid. Affirmative action is an example of a valid race-based law. Another discriminatory law example is the drinking age requirement. Govt must have a rational basis and an overwhelming interest to institute these laws.

See pg 97 US v Virginia.

Chapter 5 - Criminal Law

Intent. You can't be held responsible unless you have the mental ability to form intent.

See People v Salas, pg 105

Generally 3 year statute of limitation. Forgery and arson have none. Misdemeanors are usually 1.5 years.

Insanity is a defense. They don't have legal intent.

See list of white collar crimes on pp 110-116.

Midterm will be on Thursday 10/22 and cover through intentional torts (second half of ch 6). Based exclusively on the lecture. Tuesday 10/20 will be the review. Negligence will be on the final.

Class 12 - Eminent Domain

Midterm will be on Oct 20.

When we get to torts (Ch. 6), we'll be doing the second half of the chapter first. Start at pg 135 - Intentional Torts. Finish the chapter and then do the first half - negligence and duty of care.

It's easier to understand intentional torts first and then negligence and it's taught that way in law school.

Review of eminent domain - 5th amendment. This amendment includes several unrelated issues. The taking of private property for public use: usually for highways, schools, airports, etc. Generally, the government pays good money for it. There were some exceptions where the people protested: Midway expansion, cross-town expressway. Daley's legacy was moving UIC from Navy Pier to Circle Campus. The people who lived there and got moved, made lots of money.

Some cases don't require a physical taking to be considered a "taking" of the property and requiring compensation. An easement may require compensation. Ex: Martin Gerber's land in central Florida which was declared a state wildlife refuge. Trial, appelate and state supreme courts ruled that it wasn't a "taking", but the US Supreme Court said that it was and required compensation.

See Kelo pg 91.

8th amendment - prohibits cruel and unusual punishment. Are excessive fines c&u punishment? They can't fine you out of business. Most fines have a statutory minimum and maximum. Forfeiture - sometimes your illegal actions are punishable by forfeiture of your property. Ex: a car that was involved in committing a crime, a house in which drugs are dealt. Forfeiture is not a fine and can be very excessive.

5th amendment right to not self-incriminate only applies to people, not businesses. 5th amendment only applies in criminal cases, not civil. "nor shall be compelled in any criminal case to be a witness against himself." This is where the Miranda rights come from.

Punitive damages can sometimes be far above the actual damages. Gore v BMW - car had acid rain damage and had been repainted to cover it up. SCOTUS decided that this was not an 8th amendment issue - it was a 14th amendment issue of due process.

14th amendment requires fundamental fairness. Substantive due process - Michigan tried to require 2 year residency in order to collect welfare. Procedural due process - Driver's license can't be taken away without a hearing.

Class 11 - Review of Search & Seizure and Eminent Domain

Placeholder. Notes will be transcribed soon.

Class 10 - Eminent Domain

Eminent Domain

Gov't can't take your property unless it's for public use and with just compensation. This power ensures that a single person won't be more powerful than the government.

Rich Karwaczka

Cruel and Unusual Punishment

Aim high!