Monday, October 21, 2013

ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

In negligent torts the liability of a manufacturer will be limited to physical injuries and possibly also property damage, i.e. corporeal damages. No recovery for purely economic losses is. Wyatt v. Cadillac Motor Car Division, 145 Cal. App. 2d 423, 426, 302 P.2d 665, disapproved on other grounds in Sabella v. Wisler, 59 Cal. 2d 21, 31, 27 Cal. Rptr. 689, 377 P.2d 889. (Dicta).

The difficult issue is whether property damage should be compensated and if so whether consequential damages arising out of property damage should be compensated.

The issue of consequential damages for a tort arises out of eight possible basic cases:

Strict       Negligence
Liability
I) Personal Injury
II) No Personal Injury
III) Corporeal Property Damage
IV) No corporeal property damage

Any of these eight cases can be litigated under a theory of tort or breach of contract. In theory purely economic losses will be recovered under a theory of warranty and personal injury or corporeal property damage will be remedied under a theory of tort. The confusion arises however – aside from the variety of possible fact patterns – in the case of consequential damages. The best guiding principle is that contractual losses are governed by the theory of contractual freedom: that parties to a contract can negotiate the terms thereof. Thus under a theory of contract a plaintiff would not be able to recover for their economic losses due to understimating the economic worth of their bargain. In contrast tort’s are predicated upon a non-consenting relationship. Thus where there is an injury to the person, and even to the persons property, they should be allowed the consequential damages flowing therefrom. However concerns over adequate compensation of plaintiffs and deterrence of defendants lurk behind these principles. The case law in this field is in fact contradictory, see e.g. J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799 [157 Cal. Rptr. 407, 598 P.2d 60].


Loss of Consortium : Verlust des Liebespartners

The right of a spouse to an award of damages for the loss of services and affection in cases where their spouse was the victim of a tort; Abgeleitete Anspruch des Ehemanns im Fall der Tötung oder Verletzung seiner Ehefrau.

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Malice | Arglist

The intentional doing of an act without justification or excuse and intending to do harm. Malice is one of the preconditions which if found will support an award of punitive damages.

in Libel:
Becker v. Brinkop, 230 Mo.App. 871, 78 S.W.2d 538,

in defamation:
Rice v. Winkelman Boys Apparel, Inc., 13 Mich.App. 281,
New York Times Corp. v. Sullivan, 11 L.Ed.2d 686.

Market share liability | Marktanteilshaftung

See: proportional liability

Mass torts | Massenschadensfälle

A mass tort is a collective tort, that is an injury to a group of persons. Factually speaking there appear to be two instances of mass torts: one source of injury at one point in time, such as an airline accident, or several victims with several tort-feasors but one common instrumentality such as a defective medicine.

Master and servant | Arbeitgeber und Arbeitnehmer

The relation of employment wherein one person, the master, bids and controls the other, the servant, to do their will in exchange for remuneration. Master’s will ordinarily be liable for the torts of their employees committed in the scope of their employ.

An employer can be liable for the torts of their employee committed in the scope of their employment under a theory of vicarious liability (see: respondeat superior).

Whether an employer will be liable for the tort committed against their employee will depend partly on the circumstances. At common law the fellow servant rule (q.v.) denied such liability where the tort was committed by a co-worker. The fellow servant rule has been abrogated in most if not all jurisdictions.

See also: Employee vs. Independent Contractor, Fellow servant rule, respondeat superior, vicarious liability.

Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171, 174. I75; Relling v. Missouri Ins. Co., 153 S.W.2d 79;
Pantell v. Shriver Allison Co., 61 Ohio App. 115, 22 N.E.2d 497, 499.

See: Agency

Means of proof | Beweismittel

The material method used to prove a fact asserted, e.g an affidavit (d. Bestätigung; fr. attestation). See: evidence.

Medical malpractice | Medizinische Behandlungsfehler

A tort committed by a physician against their patient. Unless a patient consents to being treated by their physician the physicians act would constitute battery. Naturally patient’s consent, but such consent must be informed (see informed consent). Even if the patient has given informed consent they have consented only to non negligent treatment: that is the physician still has a duty to perform their service non-negligently.

Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C.  322, 394 F.2d 947, 949.

Mere Negligence

See: Negligence, Due care

Minor children | Minderjährige

See Children

Misrepresentation

See deceit

Mitigation | Schadensminderung

A synonym for avoidable consequences (q.v.) Mott v. Persichetti, Colo.App., 534 P.2d 823, 825. Also see:
damages, mitigation of.

Monetary Damages | Schadensersatz in Geld / Geldentschädigung (?)

Monetary damages are the ordinarily presumed remedy in the common law. They seek to compensate the injury of the plaintiff via a determination of the cash equivalent of the loss to the defendant, the interest thereon, and the pain and suffering suffered by the defendant. They must be distinguished from real restitution.

The usual meaning is ''pertaining to coinage , but it has been held to include personal property.
In re Kipp's Will, 37 N.Y.S.2d 541, 543

See damages, monetary

Moral injuries | Normativer Schaden

Injuries to rights other than economic rights. Thus injuries to one’s personal honour (Ehre) but also injuries to other non-material interests such as the pain and suffering arising from a tort. Such injuries give rise to at least nominal damages (q.v.). See also: damnum sine injuria,

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Necessity | Notstand [?]

Where a defendant is compelled by overwhelming force to commit a tort that compelling force provides the excuse (q.v.) of necessity. The defendant will be exonerated C.f. justification.
Bykofsky v. Borough of Middletown, D.C.Pa.,
401 F.Supp. 1242, 1250.

Negligence | Fahrlässigkeit (als Delikt) / Fahrlässigkeit (als Schuldform)

The failure to meet the duties of social obligation, general judged by the standard of a reasonably prudent person. See standard of care, due care.

Amoco Chemical Corp. v. Hill, Del.Super., 318 A.2d 614, 617.
Pence v. Ketchum , 326 So. 2d 831, 836 (La. 1976)

Comparative negligence | Mitverschulden (am: Quotelung)

See liability: proportional – contributory negligence / comparative fault

Contributory negligence

See liability: proportional – contributory negligence / comparative fault

Criminal negligence | Fahrlässigkeit als strafrechtliche Schuld

Criminal negligence is that negligence which willful, wanton and malicious. A higher standard than ordinary negligence which is the failure to act as a reasonably prudent person. To impute a criminal as opposed to civil liability this standard must be greater than recklessness but must display some culpable intent, i.e. wanton indifference or malice.

Slight negligence | Leichte Fahrlässigkeit

Contresens: Slight negligence means failure to exercise the foresight and circumspection that an extraordinarily prudent person would exercise.

Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

Ordinary negligence | Normale Fahrlässigkeit

The standard of ordinary negligence is the failure to act as a reasonably prudent person. Failure to meet this standard of care (q.v.) will lead to a finding of negligence in tort.
Briggs v. Spaulding, 141 U.S. 132, ll S.Ct. 924, 35 L.Ed. 662.

Gross negligence | Grobe Fahrlässikeit
Gross negligence is negligence which while reckless and indifferent is not sufficiently malicious as to rise to criminality. It is however a higher standard of negligence than mere negligence.

Glaab v. Caudill, Fla.App., 236 So.2d 180, 182, 183, 185.
Claunch v. Bennett, Tex.Civ.App., 395 S.W.2d 719, 724;
Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, 505, 507.

Per se negligence | Per se Fahrlässigkeit

Should be seen as a form of strict liability: an imputation of negligence where there is no showing of fault. Statutes sometimes impose per se negligence for certain acts or ommissions. Ironically as strict liability in commerce, i.e. products liability is being adopted, instances of per se negligence in the non-commercial context have diminished as they are formalistic, inflexible and substantively unfair.

Negligent infliction of emotional distress

This claim, a very recent development in the common law, purports to create a claim for purely emotional losses due to the negligence of another. It is not recognized in all jurisdictions.

No-fault Liability | Gefärdungshaftung

Liability without fault. Liability where there is no negligence or no need to prove negligence on the part of the tort-feasor.
See: strict liability, absolute liability

Non-delegable duties | Nicht delegierbare Pflichten [???]


Nominal damages | Nominal Schadensersatz / symbolischer Schadensersatz

An award to a plaintiff of a symbolic sum to fullfil the satisfaction interest (Genugtuung) of the injured plaintiff; Purely symbolic damages awarded to remedy an injury to a plaintiff where no damages occur. Q.v. damnum sine injuria. The objective of nominal damages is to provide emotional satisfaction (Genugtuung) to the plaintiff.

Non-Pecuniary Losses | Nicht Vermögensschäden

Those injuries which have a material existence but to which no monetary value can be ascribed, e.g. antique family posessions.

Non-material damages | Immaterialler Schäden

Those injuries which may or may not have an economic value but which in all cases do not concern material things such as personal or real property.

Nuisance

Unreasonable unlawful or unwarranted use of one’s property such that it injures or obstructs the rights of another. Nuisances can be the basis for an injunction (q.v.). Nuisances may be public, private, or mixed. Public nuisances interfere with the rights of all though possibly to a different degree. (Kelley v. New York, 6 Misc. 516, 27 N.Y.S. 164.) Private nuisances interfere with the rights of a single individual or a very few persons. (Mandell v. Pasquaretto, 76 Misc.2d 405, 350 N.Y.S.2d 561, 566; pur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700, 705.) Mixed nuisances do both, for example the defendants polluting activity creates both noxious odors, a public nuisance, and destroys the fish in a private lake owned by one person, a private nuisance.

It is possible for plaintiff to prevail on causes of action for public nuisance and for negligence where it has suffered economic loss, but no personal or property damage.

Herman v. Cardon, 23 Ariz.App. 78, 530 P.2d 1115, 1118.
Awad v. McColgan, 357 Mich. 386, 98 N.W.2d 571, 573.

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Occupiers’ Liability | Haftung von Grundbesitzern

The liability of a landowner for a tort occuring on his or her property was dependant at common law  upon a distinction between trespassers, licensees, invitees and guests. Trespassers would have virtually no rights, whereas guests would. Statute and case law have sometimes dropped this distinction.

See: License

Ommission

The failure to act. Just as an action can be negligent a failure to act can also be negligent if the law imposes a duty to act. See: act.

Ordinary Negligence

Failure to exercise the care of a reasonably prudent person. See due care (syn.). Also: Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662.

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Patent | Patent

An exclusive right of the owner of the patent to enjoy a monopoly over the use of their invention for a limited period in time.

Per Quod (Libel Per Quod, Slander Per Quod)

Per quod in slander means proof of special damages is required. Libel per quod means the requirement of proof of extrinsic circumstances

General Motors Corp. v. Piskor, 27 Md.App. 95, M0 A.2d 767, 783.

Per Se (Slander Per Se, Libel Per Se)

Slanderous or libelous statements are considered “per se” under the following four circumstances. 1) False accusation of criminality 2) False mputation of loathesful or offensive disease 3) False accusation of the unchastity of a woman 4) False statements which tend to injure a person in their trade, business, or office.

In such cases proof of particular damages, i.e. of ‘special damages’ will not be required.

Munafo v. Helfand, D.C.N.Y., 140 F.Supp. 234, 238.

Personality rights | Persönlichkeitsrechte

Personality rights were not a concept of the common law: however the growth of an information society with instant production, reproduction, and dissemination of writings, images, and sounds has led to the creation of a concept of the rights of the person.

These rights can be understood first as certain of the classic common law torts: defamation; action on the case; and then later the actions for deceit and passing off. More recently, either by decisions of high courts or statute, rights of privacy are also included in the concept of personality rights.

See also: Right to Privacy

Plaintiff | Kläger

The party which initiates a lawsuit against a defendant. Ordinarily the plaintiff bears the burden of proof as to the elements of their claim.

City of Vancouver v. Jarvis, 155 P.2d 591, 593 (Wash.).

Pollution | Umweltverschmutzung

The contamination of air, water and soil by poisonous or noxious substances or noises. Some nuisances cause pollution. Toxic torts (q.v.) are examples of pollution as are some mass torts (q.v.).

Posession | Besitz

Posession is the fact of occupation or use of an object without regard to the legal right to do so. Thus posession is either rightful or wrongful. Rightful posession is one of the rights of property (q.v.), namely the right of use or usus. The right of property consists in the absolute and exclusive control of the object and  includes the rights of usus, use, abusus, abuse, and fructus, fruits, that is all that grows thereon. Posession is the right of usus i.e. to enjoy and dispose of an object or right.

Field  Furniture Co. v. Community Loan Co., 257 Ky. 825, 79 S.W.2d 211, 215.

Prescription / Statute of Limitations |Verjährung

See: statute of limitations.


Prescription Period | Verjährungsfrist

See statute of limitations.

Prima Facie | Anscheinsbeweis

A prima facie proof is one where the plaintiff has met their burden of production, having introduced evidence which tends to prove their case such that if unrefuted the defendant will suffer a directed verdict. The defendant is of cours afforded the opportunity to rebut that evidence.

Cartwright v. Golub Corp., 51 A.D.2d 407, 381 N.Y.S.2d 901.
White v. Abrams, C.A.Cal., 495 F.2d 724, 729.
Husbands v. Com. of Pa., D.C.Pa., 395 F.Supp. 1107, 1139.

Prima Facie Tort

A facial tort, that is a rebuttable determination of the existence of a legal duty, breach of that duty, and damages which flow therefrom due to proximate and legal causation.

Every prima facie tort consists of the following elements:

1) The existence of a legally recognized (as opposed to moral) duty of the defendant to the plaintiff
2) A breach of that duty by the plaintiff
3) But-for Causation (sometimes known as cause in fact or causa sine-qua-non): that is that the defendants breech was a fact which caused the plaintiff’s injury
Legal Causation (sometimes known as proximate cause): that is that the defendants act was also so close in time to the plaintiffs injury that it is a sufficient cause to create that injury a nd that there was no intervening or superseding cause resulted independantly in the accident.

In order to avoid a directed verdict the plaintiff must establish a prima facie case. That is he must introduce sufficent evidence such that the fact finder could reasonably decide one way or another on the basic elements of the tort. So a prima facie tort is the introduction of sufficient evidence such that a finder of fact could reasonably decide one way or the other on each of the above four elements of the tort.

See also: duty, breach, cause-in-fact, proximate cause.

Principal | Geschäftsherr

One who employs an agent or a servant. See master and
servant, agency, agent.

Private Nuisance

See Nuisance, Private.

Privacy | Privatheit / privater Bereich

The notion that the individual has a legal right to be let alone. See: Right to Privacy

Privilege

A relative subjective legal right particular to an individual person rather than to persons generally.

The tort of libel or slander will not lie where the communication was privileged.

Privilege is either absolute or conditional. Absolute privilege protects the speaker regardless of their motive. It exists in cases of legislative debates, judicial arguments, and military service. Conditional or qualified privileg protects statements where there is no showing of actual malice on the part of the speaker. Qualified privilege may be claimed in matters of public interest or where necessary to protect one’s private interests and mate to a person having an interest in the same matter.
Saroyan v. Burkett, 57 Cal.2d 706, 21 Cal.Rptr. 557, 558, 371 P.2d 293.

Privileges are generally based either on consent or law. Legal privileges exist generally because of some overriding public interest.

Sims v. United Pacific Ins. Co., D.C. Idaho, 51 F.Supp. 433, 435
Brooks v. Texas Employer’s Ins. Ass'n, Tex.Civ,App. 358 S.W.2d 412, 414.

Privity of contract | Rechtsverhältnis zwischen Vertragspartnern

At common law for tort or contractual liability to flow there was a requirement of privity, i.e. direct negotiation, between the victim and tort feasor. Thus a manufacturer would not have been liable for a defective good. This rule has changed in late capitalism. Today a finding of privity is not necessary in a claim on a theory of strict liability for a defective product which causes an accident. Thus not only the retailer but also the manufacturor and possibly even the wholesaler can be sued on a theory of strict negligence.

Presentation of evidence | Beweisaufnahme

The hearing before the court of the methods of proof.

Procedure

Those rules of the law which determine the existence or not of other rights. Procedure is the framework within substance is set. Substantive rights are the actual claim on the merits as opposed to the rules which condition and determine the enforcement of those rights.

At common law there was a unity of procedural write and substantive action. Thus substance and procedure were unified. However the limitations on the number of writs and strict legalism led first to the creation of courts of equity and ultimately to the introduction of codes of civil and criminal procedure which replaced the formalistic writs of the common law. Despite this fact the actions which those writs served still exist. Thus while some modern torts such as negligent infliction of emotional distress or strict liability did not exist at the common law others such as trespass, action on the case, trover, conversion etc. did – and still do. The extinction of a common law right must be by express legislative act.

Civil

The rules governing procedures in all fields other than criminal law. Even administrative law is governed by rules of civil procedure, but only indirectly: special administrative courts do exist, with relaxed rules of procedure, but they may always be appealed from to the civil courts and employ rules which while simplified for lay persons nevertheless paralell the rules of civil procedure.

Criminal

Those rules of procedure which govern the law of crimes, i.e. those rules which may deprive a person of life or liberty. Criminal procedure has, like civil procedure, been almost universally codified. Under criminal procedure higher standards of proof are invoked than in civil cases. See: standard of proof.

Products Liability | Produkts(gefährdungs)haftung

That field of law which addresses defective products. A defective product gives rise to a presumption of negligence and the plaintiff may have a cause of action against the producer as well as against the seller and possibly even against intermediaries in the chain of commerce. The presumption is irrebutable. Thus product liability is in fact a form of per se liability. All other elements of a prima facie tort must be proven to prove a claim of strict product liability, and the defendant can avail themselves of the usual defenses.

It is clear that a defectively manufactured product will give rise to a claim in products liability. It is less clear, though often admitted, that a defectively designed product will also give rise to such strict liability.

Cobbins v. General Acc. Fire & Life Assur. Corp., 3 Ill.App.3d 379, 279 N.E.2d 443.

See: strict liability, mass torts, class action, toxic torts.

Prohibition of Enrichment | Bereicherungsverbot | Ni Perte Ni Profite

The principle that the reparation to a plaintiff shall not work an advantage to the plaintiff greater than their injury. In the common law however this principle is riddled with exceptions.

Proof by a preponderance of the evidence (lit. Reasonably probable). | Überwiegende Wahrscheinlichkeit

The legal standard of proof in a civil (i.e. non criminal) trial: the plaintiff must prove the events that they assert are more likely than not.

State v. Dubina, 318 A.2d 95, 97.

Property | Eigentum

Property is the absolute right to use, abuse and enjoy profits from an object whether corporeal (material) or incorporeal (abstract). These rights are enjoyed against all persons other than the sovereign.

Labberton v. General Cas. Co. of America, 53 Wash.2d 180, 332 P.2d 250.

See: also posession, property damage


Property Damage

Strictly speaking property damage should include damages both to immaterial noncorporeal abstract property rights – such as good-will or copyright – and also concrete material things, whether movable (personal) or real (land or appurtenances thereto). Unfortunately the English legal terminology uses these terms with less precision than the civil law which distinguishes between abstract non-material property rights such as patents and copyrights on the one hand and material corporeal property, of which there are two types, movables (personal property) and immovables (real property) on the other. Because of this imprecision in the legal language property damage is often used as short-hand for material damage, whether to real property (immovables) or personal property (movables) but not damage to abstract or speculative rights – though logically speaking an injury to good will, an abstract immaterial right can be economically valued and strictu sensu is a property. Property damage in the sense of damages to material things is clearly a form of economic loss.

The relevance of the distinction arises in the context of the question of whether consequential damages shall be awarded in cases of pure economic loss. Whether speculative or contingent future rights such as lost wages are also an economic loss could be questioned depending on the definition of property and economic value.

Travelers Indem. Co. v. Chumbley. Mo.App., 394 S.W.2d 418, 422

See: property, pure economic loss, consequential damages.


Proximate Cause | Nicht zu entfernte Ursache

Synonym for legal cause or legal causation. See: Causation

Wisniewski v. Great Atlantic & Pac. Tea Co,, 226 Pa.Super. 574, 323 A.2d 744, 748.
Herron v. Smith Bros., 116 Cal.App. 518, 2 P.2d 1012, 1013.

Punitive Damages : Strafschadensersatz

Damages awarded to a plaintiff where the defendant's tortious action is determined to have been willful, wanton and malicious. Ordinarily the award is thrice the value of the injury, in addition to the injury itself. The value of punitive damages may vary by statute and can also include the costs and fees of counsel and interest.

Synonym for exemplary damages (q.v.)
James v. Public Finance Corp., 47 C.A.3d 995, 121  Cal.Rptr. 670, 675.
Joseph v. Hustad Corp., 454 P.2d 916, 918.

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Quasi-Contract
A quasi-contract is the legal act of a person, by which he obligates himself towards another without any agreement between them. For example, a physician who treats an unconscious patient at the scene of an accident will have an action in quasi-contract for the cost of her services.

Andrews v. O'Grady,
44 Misc.2d 28, 252 NYS.2d 814, 817

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Real Restitution

The material replacement of a material object damaged or destroyed by the tort of the defendant.
See damages, restitution (~syn.)

Recklessness | Rücksichtslosigkeit / Willful Negligence / Wanton Negligence.

Having a wanton disregard for the lives and property of others. An indifference beyond mere error recklessness manifests a willful indifference to the consequences of one’s actions. Can be the basis for a determination of punitive damages (q.v.)

Duckers v. Lynch, 465 P.2d 945 (Kans.),
Tyndall v. Rippon, 61 A.2d 422 (Del.)
Wolters v. Venhaus, 350 Ill.ApP. 322, 112 N.E.2d 747; Clarke v.
Storchak, 52 N.E.2d 229 (Ill.), appeal dismissed 322 U.S. 713, 88 L.Ed. 1555.
Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, 37 O.O. 243
Duncan v. Lumbermen's Mut. Casualty Co., 91 N.H. 15, 23 A.2d 325, 326. (1941)

Reduction of the burden of proof | Beweiserleichterung

In German law it is possible to reduce the standard of proof during trial. That is not only can the burden of proof shift, it can also be reduced. This is not the case in the common law.

Regulatory Agencies

Mass industrial society has created mass accidents and grave injuries. To attempt to govern this reality regulatory agencies exist which first propose to guaranty standards to consumers and second to provide remedies under universal insurance programs such as accident, unemployment, and health insurance. Their proceedings are governed by administrative regulation rather than statute. See: procedure.



Remedies | Sanktionen

It is a maxim of law that for every wrong there is a remedy. Remedies are those legal aids that may be invoked by plaintiffs to cure the injuries done to them by defendants. There are a variety of remedies: monetary damages, injunctions, specific performance, and replevin among others such as writs of mandamus and habeas corpus. The remedies which most concern tort and contract law are money damages, injunction, and specific performance. Because the common law prefers money damages and does not ordinarily award specific performance these three remedies are listed in decreasing order of frequency.

Long Leaf Lumber, Inc. v. v. Svolos, La.App., 258 So.2d 121, 124
Chelentis v. Luckenbach 247 U.S. 372, 38 S.Ct. 501, 503, 62 L.Ed- 1171.

Res ipsa loquitor | Anscheinsbeweis

Literally ”the thing speaks for itself”.
A fact pattern which being so obvious facially as having resulted from negligence that the court infers negligence from the very facts. This can also be seen as a form of reductio ad absurdam. Legally speaking the rebuttable presumption that where the instrumentality in the defendants posession is implicated in the destructive injury that would not ordinarily happen without negligence the defendant will be presumed to have been negligent according to this principle.

Hillen v. Holker Const. Co., Tex.Civ.App., 4M S.W.2d
113, 115.

Respondeat superior | Haftung des Arbeitgebers für die Delikte seiner Arbeitnehmer (ohne eigenes Verschulden)

A doctrine of vicarious liability of an employer for the torts committed by his or her employee in the course of their employment.

Burger Chef Systems, Inc. v. Govro, C.A.Mo., 407 F.2d 921, 925.
Shell petroleum Corporation v. Magnolia Pipe Line Co., Tex.Civ.App., 85 S.W.2d 829, 832.

The doctrine is inapplicable if the servant is acting outside the scope of their authority. (Rogers v. Town of Black Mountain, 224 N.C. 119, 29 S.E.2d 203, 205) But if the deviation from their duties is only slight or incidental the employer may nevertheless be liable. (Klotsch v. P. F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.2d 589, 593, 595)


See also:
Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17, 19, 20; Employee vs. Independent Contractor, Fellow servant rule

Restitution/Restitutionary Rights | Naturalrestitution

The right of the plaintiff to be restored what has been lost to the defendant tort feasor through the defendants tortious conduct. Restitution is an alternative remedy to money damages in anglo-american tort law.

Naturalrestitution seeks to restore the status quo ante and thus defends the victims interest in their integrity. It is not however a unique remedy but can also be used in conjunction with other remedies such as money damages. Naturalestitution is  however one of three alternative remedies in German tort law. The other two are kompensation, which seeks to restore the monetary loss to the plaintiff, and reasonable compensation for non-pecuniary losses, which along with Schmerzengeld would be subsumed into the common law term of an award for damages due to pain and suffering. Kompensation is available when Naturalrestitution is not possible or would be meaningless, for example in cases of injuries to personality rights. In principle in German law only pecuniary injuries (Vermögensschaden) are compensable though in practice  some non-pecuniary injuries can be compensated.

See: Real Restitution

State v. Yarnett, 110 Vt. 221, 3 A.2d 521, 525, 526.

Explorers Motor Home Corp. v. Aldridge, Tex.Civ.App. 541 S.W.2d 851, 852.


Reversal of the burden of proof | Beweislastumkehr

The reversal of the burden of proof ordinarily does not occur in a trial at common law. It can however occur in German law. What reverses in the common law is the burden of production.

Right to an Injunction | Unterlassungsanspruch

An injunction is an order to cease and desist from committing a tort which has already occurred in the past. Injunctions may be preliminary, temporary, or permanent. They are an equitable remedy.
See also: nuisance

Right to Privacy / Right (or rights) of the person (or personality) | Persönlichkeitsrechte: (lit. Right of personality)

In the post war era, first France, and the United States, then Germany, and finally Britain recognized a generalized right of privacy. This right can be said to include a right to one's image (Recht auf eigenes Bild), and a right to non-divulgence of true but personal facts (public disclosure of private facts). American law also includes:

-a right against misappropriation of one's identity,

-a right against intrusion on ones sphere of integrity

-a right against placing the plaintiff in a false light.

With the adoption of the human rights act in Britain American law may (or may not) influence British law in this field. Privacy rights protect against wiretapping and may extend to the heirs of a decedent.

Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869.
Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193.

The American rights are discussed briefly below.

Appropriation / Misappropriation (wrongful publicity)


The right to one’s own image and voice. This right protects against the wrongful acquisition and dissemination of the plaintiff’s image or voice.
Carlisle v. Fawcett Publications, 201 Cal.App.2d 733, 20 Cal.Rptr. 405.

Intrusion

Intrusion is the wrongful collection of information about the plaintiff. (Ford ; Motor Co. v. Williams, 108 Ga.App. 2I, I32 S.E.2d 206). It includes telephone surveillance
(LaCrone v. Ohio Bell Tel. Co., 114 Ohio App. 299, 182 N.E.2d 16, 19 O.O.2d 236), as well as “crank” telephone calls or other persistent and unwanted telephone calls.
(Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 59 O.O. 60).

Public Disclosure of Private Facts

Public disclosure of private facts, even where such facts are true, can be punished as a tort. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91;


Risk distribution | Risikoverteilung

The level of risk and burden of damages which is leveled upon an individual or group.

Tort law seeks to determine the correct distribution of risk and responsability. Are losses better left alone? If they should be redistributed should they be redistributed according to fault or in an effort to spread the risk throughout society? When losses are shifted from the individual to another individual should such be done based on a theory of punishment, retribution/compensation, deterrence? Should losses be redistributed only based on material facts or also on the basis of abstract moral considerations or non-market injuries such as pain and suffering? Risk distribution is the answer that a society develops to those questions: the risk and burden of loss should be placed on whom? The complexity and indeterminicity of these abstract questions explains the theoretical interest of tort law.


Rule-Exception Principle | Regel-Ausnahme Prinzip

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