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.
-M-
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,
-N-
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.
-O-
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.
-P-
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.
-Q-
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
-R-
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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