Unit 1 Assignment

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Feb 20, 2024

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Unit 1 Assignment Jessica Hall There are four types of wrongfulness in torts. Those four are intent, recklessness, negligence, and strict liability. Intent is the desire to cause certain consequences on the substantial certainty that it will result from ones behavior. (Jamie Darin Prenkert, 2021) Recklessness is form of intent, called “willfull and wanton conduct”, a conscious indifference to a known and substantial risk of harm created by ones behavior. (Jamie Darin Prenkert, 2021) Negligence is a failure to use reasonable care with harm to another party occurring as a result and negligent behavior is showing less than necessary level to protect others against harm. (Jamie Darin Prenkert, 2021) Strict liability is a liability without fault. In strict liability cases the plaintiff doesn’t have to prove intent, recklessness, negligence or any kind of wrongfulness. Strict liability is not automatic liability. The plaintiff has to prove some things in a strict liability case but fault isn’t one of them. (Jamie Darin Prenkert, 2021) So, we have covered the four types of wrongfulness in torts and now we will discuss the elements of a tort. The elements of a tort are duty, breach, cause, and damages. The first element of a tort is duty, which is basically that there is a responsibility to exercise reasonable care. If a defendant doesn’t exercise reasonable care, then a breach has occurred, which is the second element of a tort. To determine if a breach has occurred there is the reasonable person test. The test can take the actions of the defendant and compare it to that of actions of a hypothetical person with normal caution and awareness would take. In order for you to win a negligence case you have to have the causation link. This link is determined by answering was the breach an actual or proximate cause of the

injury? The last element of a tort is damages. Damages can be personal injury or property damage. (Jamie Darin Prenkert, 2021) In discussing the elements of a tort we touched on the area of cause. There is proximate and actual cause that can be in a tort case. Actual cause is pretty self explanatory, it is the actual cause of the injury or damages. Proximate cause refers to a primary cause or incident that set everything in motion. (Jamie Darin Prenkert, 2021) Now a tort isn’t just something that happens in person. You can have a tort occur online. This is called a cyber tort. A cyber tort is when an organization or individual suffers a legal injury online. The types of online injury can be using social media to destroy a person or organization’s image. It can also be trademark infringement, illegal downloading of intellectual property, or having domain names stolen. (LLP, 2016) As mentioned previously as one of the types of wrongfulness, we will expand on strict liability. Strict liability is the duty placed on someone for the result of their actions of whether they are culpable or at fault. (Jamie Darin Prenkert, 2021) Then you have product liability which when you hold a manufacturer liable for an injury you sustained while using their product. Unlike strict liability, you have to be able to show negligence. Proving negligence can be done through design defect, manufacturing defect or failure to warn. (Weycer, 2019) Then you have strict product liability which really melds these two together. With strict product liability it allows those that are hurt by a product to pursue a case for compensation without showing negligent acts. (Bieber, 2023a)

In determining liability rule 402A lays out the requirements. Those requirements are that the seller must be selling the product that harmed someone. The product must have been in defective condition when it was sold. Now a defendant can avoid liability if the product was modified, and that modification was the reason for the injury. (Jamie Darin Prenkert, 2021) When talking about negligence there are two types. There is contributory and comparative negligence. Contributory negligence is when a plaintiff fails to act reasonably in regards to their safety. (Jamie Darin Prenkert, 2021) In the state that I live in, South Dakota, there is no contributory negligence. ( Negligence Laws by State (2024): A Complete Guide , n.d.) Comparative negligence is the replacement for the traditional doctrine of contributory negligence. (Jamie Darin Prenkert, 2021) The next topic is negligence per se. “Negligence per se is doctrine that provides conclusive presumption of breach of duty arises, when a defendant has violated a statute and thereby caused a harm the statute was designed to prevent to a person that statute was designed to protect”. (Jamie Darin Prenkert, 2021) This basically means that the act is negligent because it violates a statute. (LaMance, 2011) We have talked a lot about the duty that is owed to the plaintiff. We will dive deeper into what those duties are to different groups. The first group we will discuss is invitees. There are two types of invitees: “business visitor” and “public.” A business visitor is someone who is invited to enter the property for the purposes connected with the possessors business. A public invitee are those that are invited to property that is open to the public such as parks. A possessor of the property must take reasonable care to protect their invitees. (Jamie Darin Prenkert, 2021)

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The next group we are going to look into is licensees. In this case the person enters the property, with consent, for their own purpose. In this case the possessor of the property usually is required to warn them of dangerous on-premises conditions. (Jamie Darin Prenkert, 2021) The last group is trespassers. The people enter the property without consent or any other privilege, the possessor of the property owes them no duty to their safety. They are also expected not to act willfully and wantonly in injuring the trespassers once they know about their presence. (Jamie Darin Prenkert, 2021) When looking at all this information one would think that a tort is the crime. In all actuality torts are not crimes even though harm and damages are a result of a negligent act. However, negligent acts can be both a crime and a tort. (braddocklaw, 2021)

References Bieber, C. (2023a, January 18). What Is Strict Product Liability? Definition & Examples – Forbes Advisor . Www.forbes.com. https://www.forbes.com/advisor/legal/product-liability/strict- product-liability/ Bieber, C. (2023b, January 27). What Is Proximate Cause? Definition & Examples – Forbes Advisor . Www.forbes.com. https://www.forbes.com/advisor/legal/personal-injury/proximate-cause/ braddocklaw. (2021, December 3). What’s the Difference Between a Crime and a Tort? Braddock Law Firm, PLLC. https://braddocklaw.com/blog/whats-the-difference-between-a-crime-and-a-tort/ Jamie Darin Prenkert. (2021). Business Law . Mcgraw-Hill Us Higher Ed. LaMance, K. (2011, January 27). Negligence Per Se Laws . LegalMatch Law Library. https://www.legalmatch.com/law-library/article/negligence-per-se-laws.html LLP, P. W. L. G. (2016, June 17). What is a cyber tort? Peterson Watts Law Group, LLP. https://www.petersonwatts.com/blog/what-is-a-cyber-tort/#:~:text=A%20cyber%20tort%2C %20then%2C%20is

Negligence Laws By State (2024): A Complete Guide . (n.d.). Retrieved January 17, 2024, from https://1800lionlaw.com/negligence-laws-by-state-in-the-united-states/#:~:text=This%20rule %20is%20considered%20harsh Weycer, M. (2019, August 10). Strict Liability vs Product Liability: What’s the Difference? The Weycer Law Firm. https://weycerlawfirm.com/blog/product-liability-vs-strict-liability/

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Unit 1 Assignment

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