Intent
| Vorsatz
The
autonomous individual – despite the fact of mutual dependance of people on
others - is the centerpiece of the liberal notion of humanity. Thus the legal
concept of intent, i.e. volition is central to an understanding of law in the
liberal regimes. Intent is that state of
minde
which is determined to do a certain thing.
Reinhard
v. Lawrence Warehouse Co., 41 Cal. App.2d 741, 107 P.2d 501, 504.
State
v. Gantt, 26 N.C. App. 554, 217 S.E.2d 3, 5.
Intentional
infliction of emotional distress
The
common law would not have recognized a claim for IIED as such, though such a
claim could have been made using the general claim of action on the case or
trespass on the case (q.v.) which are synonymous terms for the same action.
Alternatively an IIED claim could have been – and as case, could be – made on a
theory of assault if the victim were placed in fear of imminent bodily harm.
This claim – where recognized – requires an intent on the part of the tort
feasor, and an intent to harm the person. Thus there is less concern with
fraudulent or exageratted claims that inheres in claims of negligent infliction
of emotional distress (q.v.).
Even
where this claim is recognized it is limited. E.g.,
“In
our view, allowing emotional distress claims
against a municipality for an official's negligent failure to transmit correct
information to law enforcement authorities conducting criminal investigations
in this case will have far-reaching effects in future cases.”
Lauer,
Respondent, v. City of New York
95
N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112; 2000 N.Y. LEXIS 907
Intentional
Interference With Prospective Economic Advantage
This
tort protects the relationship of trust and confidence between two persons as
regards a third person. To prove a tort of intentional interference with
prospective economic advantage the plaintiff must show:
1)
An economic relationship between themselves and another person
2)
A potential future benefit arising out of the relation
3)
That defendant knew of the relationship
4)
Action or intent to commit acts designed to disrupt the relationship
5)
Damages caused by the defendant’s acts.
Buckaloo
v. Johnson (1975) 14 Cal.3d 815, 827.
Essentially
this tort remedies situation where a contract would have been formed but for
the tortious interference of the defendant.
See
Besicorp Ltd. v Alan R. Kahn, 2002 N.Y. App. Div. LEXIS 77, * ; 736 N.Y.S.2d
708; 2002 N.Y. App. Div. LEXIS 77
Intentional
Interference with Contract
The
tort of intentional interference with contract grew out of the tort of
'inducing breach of contract.'' (Seaman's Direct Buying Service Inc. v.Standard
Oil Co. (1984) 36 Cal.3d 752, 765.) and is in fact one type thereof.
Essentially
this tort remedies situation where a contract has been formed but is repudiated
because of the tortious interference of the defendant.
See,
e.g. Builders Corporation ofAmerica v. U.S. (N.D.Cal.'57 148 F.Supp. 482, 484,
fn. 1, revd. on other grounds (9th Cir.'58) 259 F.2d 766, see also Pacific Gas
& ElectricCo. v. Bear Stearns & Co.(1990) 50 Cal.3d 1118, 1126.)
'The
actionable wrong lies in the inducement to break thecontract or to sever the
relationship, not in the kind of contract or relationship so disrupted, whether
it is written or oral, enforceable or notenforceable.' ' Pacific Gas &
Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at 1127.
The
act of inducing breach of contract must be intentional. Thus an act which
unintentionally leads to the breach of contract would not be grounds for a
cause of action.
Intentional
torts | Vorsätzliche Delikte
For
every intentional tort there is a corresponding crime. Thus the tort of assault
/ the crime of assault, the tort of battery / the crime of battery etc. The
intentional torts are those torts committed not through negligence or under a
theory of strict liability but deliberately.
Intervening
cause / Intervening Efficient Cause
Where
a necessary cause to a tort occurs and where a superseeding sufficient cause
intervenes that intervening cause will clearly be a tort. The question then is
what of the underlying necessary cause? Will it also be a tort? If the
necessary cause was not however sufficient then it will not be a legal cause
and will not give rise to a cause of action. If on the other hand the necessary
cause was in fact sufficient but did not occur due to the intervening cause
liability for the earlier necessary cause will also lie.
For
example imagine a person has been poisoned: because of the poison they will
die. However before they die a second tort feasor shoots them to death. Clearly
the second party is liable. The first party is also liable – strictly speaking
the second cause is not an intervening cause.
Imagine
the opposite case: defendant is drunk, and drives with a passanger. At a
traffic light, the passenger gets out of the stopped car, and crosses the
street against the signal – and is struck by another driver. Clearly the
drunken driver is negligent and is also factually a cause, i.e. a necessary
cause. However his action is not sufficient: once the passenger got out of the
car and crossed the street the second car acts as an intervening cause.
Phillabaum
v. Lake Erie & W. R. Co., 315 Ill. 131, 145 N.E. 806, 808.
Coyle
v. Stopak, 86 N.W.2d 758, 768;
-J-
Joint
and Several Liability | Mitverschuldung
/ Mitgefährdung / Gesamtschuldnerische Haftung
Where
two plaintiffs contribute to the defendants injury and where either plaintiffs
conduct would have led to the injury they are both liable as as
joint-tortfeasors. The plaintiff can recover against either of them for the
entire cost of their injury, though the joint tort-feasors may have causes of
action inter se.
Joint
tortfeasors:
See
concurrent tortfeasor
Justification
| Rechtsertigungsgrund
The
act by which a party accused shows and maintains a good and legal reason in
court, why he did the thing he is called upon to answer. Justifiable actions
include self defence, or even defence of one’s house or property. Libel and
slander can be justified by proving the truth of the assertion or because the
defendant had the write to publish, for example before a government inquiry.
Justification
must be specially pleaded. When proven however it is a completely bars the
action.
Young
Women's Christian Ass'n of Princeton, N.J. v. Kugler, D.C.N.J., 342 F.Supp.
1048, 1062.
-L-
Law
See
: action at law
Legal
Cause / Proximate Cause | Zurechnungsgrund
Causation
in tort is divided between factual cause, i.e. those necessary causes but for
which the tort would not have occurred, and proximate or legal cause, which
concerns those causes which were not only necessary but sufficient (or
sometimes efficient) and thus which will give rise to legal liability in tort.
See:
causation, legal cause
Krauss
v. Greenbarg, C.C.A.Pa., 237 F.2d 569, 572
Giles
v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 750.
Liability
| Haftung
Liability
is the legal obligation of a person to be held responsable for the injury to
another whether that injury is contractual (breach of contract) or tortious
(negligence, strict liability, intentional tort).
The
consequence of a finding of a prima facie tort if unrefuted by some affirmative
defence rise to legal liability in tort.
Mayfield
v. First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn., 131 F.2d 1013, 1019.
Insurance,
liability | Haftpflichtversicherung
See
insurance
Extent
of liability | Haftungsausfüllung
In
German law the court distinguishes between a finding of negligence and a
determination of the extent of damages. The determination of the extent of damages
establishes what remedies the defendant has against the plaintiff, e.g. how
much she will be compensated. The common law does this as well though is not as
doctrinally strict in that the German determination of negligence and its
extent corresponds also to another principle which does not appear to have an
analogue in the common law that injury and damage be united in one person
(Tatbestandprinzip). The common law reaches the same result albeit using a
slightly different conceptual apparatus. In a case where there was no unity of
injury and damages, that is where there is an injury but no damages (damnum
sine injuria) the common law would award nominal damages.
Foundation
of liability | Haftungsgrund
The
foundation of liability is the determination of the negligence of the tort
feasor and the injury arising therefrom to the plaintiff. It does not however
concern the determination of the extent of liability (q.v.). In German law that
is a separate inquiry, though in the common law the separation is not as
distinct.
Joint
and several liability | Gesamtschuldnerische Haftung
When
several tort-feasors actions result in a tortious injury to the plaintiff and
where each of their actions independantly would have led to the injury they
shall be considered jointly and severally liable. The plaintiff may further
choose to sue any or all of them either individually or as a group.
Insurance
liability | Haftpflichtversicherung
See
liability insurance
Proportional
liability | Anteilshaftung
At
common law the all-or-nothing rule (q.v.) required that a plaintiff have either
a full recovery against defendant or none at all. This was seen to have led to
substantive injustice in that somewhat negligent defendants would be able to
avoid liability entirely – or be implicated for the entirety of the damages
plaintiff suffered.
Proportional
liability proposes to remedy the all-or-nothing rule by permitting a defendant
to be held liable for damages only in proportion to their fault in creating the
accident. Thus if the defendant were found only to have contributed to 20
percent of the tort (leaving aside for the moment the question of how that
determination is made and whether a sufficient cause can only be partially
responsible for a consequence) the defendant would be only liable for twenty
percent of the damages. Thus proportional liability often arises in questions
of joint and several liability.
Contributory
negligence vs. comparative fault
Proportional
liability also arises in cases of contributory negligence / comparative fault.
At common law the rule of contributory negligence held that if the plaintiff
were at all responsible for their misfortune – that is if the plaintiff’s own
negligence contributed to the tort – be that contribution ever so small the
plaintiff would have no recovery because of the all-or-nothing rule. This rule
was also seen to be injust and in some jurisdictions has been replaced with the
rule of comparative fault. According to the rule of comparative fault a finding
of plaintiff’s negligence will reduce the award of damages to the plaintiff.
Thus if plaintiff were ten per cent at fault for creating their injury then the
damage award to the plaintiff would be reduced by ten percent.
In
cases of products liability liability according to market share and
epedemiological proof can be used to avoid the problems of causal
indeterminicity – although they raise other problems of indeterminicity and may
undermine legal certainty. In those cases proof is obtained via statistical
evidence and thus the rationale of proportional liability appears again.
Market
share liability
The
rationale of proportional liability can arise first in cases where it is known
that the plaintiff was injured by a product, but not known which manufacturer
created the product. There a proportional market share liability may be
applied, at least where it is known that all such products were in fact
defective. Thus if plaintiff ingests a defective drug, and a certain
corporation has fifteen percent of the market share then the defendant would be
fifteen per cent liable for the damages arising out of their injury. See, e.g.
Hamilton
v. Beretta U.S.A. Corp., 2001 N.Y. LEXIS 946, *; 96 N.Y.2d 222; 750 N.E.2d
1055; 727 N.Y.S.2d 7 (Market share liability where handgun manufacturer unknown
due to negligence of manufacturer).
Epedemiological
Proof
The
second instance, epedemiological proof, arises where it is certain that the
plaintiff was injured but uncertain what the cause was. For example a
corporation negligently dumps toxic wastes. As a result the rate of cancer in
that zone doubles. Plaintiff might be able to argue that the defendant should
be fifty per cent liable for their cancer.
Libel
| Mündliche Beleidigung
Libel
is written defamation of the defendant by the plaintiff. As the defamation is
in writing there is less cause for doubt as to the statement and the statement
can be presumed to have had greater impact than unpublished spoken words. For
these reasons damages in cases of libel are presumed.
Truth
is an affirmative defence to libel, and must be proven by the plaintiff.
Bright
v. Los Angeles Unified School Dist., 51 Cal.App.3d 852, 124 Cal.Rptr. 598, 604.
Washer
v, Bank of America Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 136 P.2d 297,
300.
N.
Y. Times v. Sullivan, 376 U S. 254. 11 L.Ed.2d 686.
Libel
Per Se
One
need not prove damages in cases of libel per se. Falsely accusing another of
being stricken by a loathesome disease, of sexual immorality, of professional
incompetence, or having committed a crime
Robinson
v. Nationwide Ins. Co., 273 N.C. 391, 159 S.E.2d 896, 898.
Licence
| Lizenz
A
limited right to travel over or use the property of another. A licence may be
the object of a contract or gratuitous. A gratuitous licensee may have
difficulty bringing an action in tort against the licensor unless the licensor
was grossly negligent in failing to reveal some hidden danger on their property
which they reasonably ought to have indicated.
The
common law distinguished between invitee, licensee, and trespasser in cases of
torts against an owner.
An
invitee is one who goes onto another's premises in response [*5]
to an express or implied invitation and does so for the mutual benefit
of both the owner and himself. A licensee, on the other hand, "is one who
enters onto another's premises with the possessor's permission, express or
implied, solely for his own purposes rather than the possessor's benefit."
Mazzacco, 303 N.C. at 497, 279 S.E.2d at 586-87. The classic example of a
licensee is a social guest. See, e.g., Crane v. Caldwell, 113 N.C. App. 362,
366, 438 S.E.2d 449, 452 (1994). Lastly, a trespasser is one who enters
another's premises without permission or other right.
There
is a descending degree of duty owed by a
landowner based upon the plaintiff's status. Id. at 561, 467 S.E.2d at
63.
The
highest degree of care a landowner owes is the duty of reasonable care toward
those entrants classified as invitees. See Roumillat, 331 N.C. at 64, 414
S.E.2d at 342. Specifically, a landowner owes an invitee a duty to use ordinary
care to keep his property reasonably safe and to warn of hidden perils or
unsafe conditions that could be discovered by reasonable inspection and
supervision. See Pulley, 326 N.C. at 705, 392 S.E.2d at 383.
A
landowner's duty toward a licensee, on the other hand, is significantly less
stringent. The duty of care owed to a licensee by an owner or possessor of land
ordinarily is to refrain from doing the licensee willful injury and from
wantonly and recklessly exposing him to danger. McCurry v. Wilson, 90 N.C. App.
642, 645, 369 S.E.2d 389, 392. Thus, a licensee enters another's premises at his own risk and enjoys
the license subject to its concomitant perils.
See Turpin v. Our Lady of Mercy Catholic Church, 20 N.C. App. 580, 583,
202 [*7]
S.E.2d 351, 353 (1974).
Finally,
with respect to trespassers, a landowner need only refrain from the willful or
wanton infliction of injury. See Bell v.
Page, 271 N.C. 396, 156 S.E.2d 711 (1967). Willful injury constitutes actual
knowledge of the danger combined with a design, purpose, or intent to do wrong
and inflict injury. See Howard v. Jackson, 120 N.C. App. 243, 246, 461 S.E.2d
793, 797 (1995). Similarly, a wanton act
is performed intentionally with a reckless indifference to the injuries likely to result. Id.
Those
jurisdictions which reject the traditional rule
generally adopt a “reasonably prudent person under the circumstances”
test – which would still distinguish between invited and uninvited guests.
The
harder case is that of liability for a tenant who is the victim of a burglary.
There, landlords have a "common-law duty to take minimal precautions to
protect tenants from foreseeable harm," including a third party's
foreseeable criminal conduct ( Jacqueline S. v
City
of New York, 81 NY2d 288, 293-294, rearg denied 82 NY2d 749; see, Nallan v
Helmsley-Spear, Inc., 50 NY2d 507, 519-520). A tenant may recover damages,
however, only on a showing that the landlord's negligent conduct was a
proximate cause of the injury ( Miller v State of New York, 62 NY2d 506, 509).
Burgos
v. Aqueduct Realty, 92 N.Y.2d 544; 706 N.E.2d 1163; 1998 N.Y. LEXIS 4039; 684
N.Y.S.2d 139
Loss
| Schaden
The
fact of no longer having the disposition of an object or right. Thus loss is
synonymous to damages (q.v.). Mason v. City of Albertville, 276 Ala. 68, 158
So.2d 924, 927.
Economic
/ pecuniary | Vermögensschaden
Economic
losses are those losses objectively measurable. They certainly include all
material objects, i.e. chattel and real property. Under the better view losses
to abstract non-corporeal rights such as patent, one’s reputation and goodwill
will also be considered economic losses provided one can prove a lost stream of
future income resulting from the injury. Economic losses do not however include
any compensation for pain and suffering, emotional distress or other
non-material rights which cannot be valued by the market.
Pure
economic | Reiner Vermögensschaden
Pure
economic loss has been defined as "damages for inadequate value, costs of
repair and replacement of the defective product or consequent loss of
profits--without any claim of personal injury or damages to other property . .
. ." ' [Citations.]" (Sacramento Regional Transit Dist. v. Grumman
Flxible (1984) 158 Cal. App. 3d 289, 294 [204 Cal. Rptr. 736].
In
cases of strict products liability the tort feasor will be held liable for
direct injuries to the person but not for purely economic injuries i.e. torts
where there is no injury to the person. The difficult cases are where there is
damage to corporeal property but no personal injury. There the line between
contract (economic loss) and tort (material damage) proves hardest to draw.
Decisions generally allow recovery for consequential corporeal property damage.
Seely v. White Motor Co. (1965) 63 Cal. 2d 9 [45 Cal. Rptr. 17, 403 P.2d 145]
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