法律英语专题侵权法tort law
Tort Law 侵权法
在美国，侵权法主要属于各州的法律范畴，而且主要由判例法组成。
在联邦法律中1946年的Federal Tort Claims Act (联邦侵权索赔法）是最主要的一个法律。
侵权行为可分为故意侵权行为（intentional tort)、过失侵权行为（negligence or negligent tort)和严格责任侵权行为(strict liability tort). 对侵权行为的一般救济方法是对侵权行为所造成的损害予以一定的金钱补偿，在涉及交通事故等领域的侵权赔偿已广范采用了保险赔偿的方式。
Text 课文Part One: Introduction第一部分基本概念1. The law of tort is still the source of most civil suits in the United States, with damage claims for automobile accidents taking first place. Many circumstances contribute to this: (a) the plaintiff in an American civil suit is ordinarily entitled to try his claim before a jury which will often--and understandably--rely more on human than on legal considerations, for instance when a child has been injured in an automobile accident or through a defective product of a large enterprise; (b) Compensation and damages include not only the actual loss but also the intangible damage. A plaintiff can therefore often play on the human reaction of the jury: for instance, what is appropriate compensation for a permanent disability such as the loss of a limb? (c) American law permits the participation of the attorney in the plaintiff’s recovery (contingent fee) which not uncommonly amounts to 25 to 33 percent of the verdict. As a result of all of these factors, a tort action may be a lengthy proceeding, result in large expenses, for instance through honoraria for experts (which may deter the "small "plaintiff from suing at all), and may end in the award of a very large verdict. It is no linger uncommon that a jury will aware a verdict in excess of＄100,000. These conditions have been the touchstone for several reform endeavors which will be discussed in more detail below.1．在美国，侵权行为法产生的诉讼仍是大多民事诉讼案件的主要来源，其中基于交通事故产生的损害赔偿案件居于首位。
法律英语侵权法法律术语
legally recognized right法律认可的权利
a legally protected interest法定权益
an absolute defense绝对抗辩
intentional/unintentionaltorts故意侵权/过失侵权
right of action诉讼权
reversed and remanded撤销原判、发回重审
affirmed维持原判
dismiss不受理
in good-faith善意
good intention良好的意图（好心）
bounds of immunity免受侵犯的权利范围
make good赔偿
trademark/service mark商标/服务商标
false imprisonment非法监禁
false arrest非法拘留
reasonable grounds/probable cause合理的理由（充分的证据）
the appellate court上诉法院
infliction of mental distress故意施加精神痛苦
defame（v.）/defamatory（adj.）/defamation（n.）诽谤
confirmed banker’s letter银行保兑信用证
a bill of lading提单
policy of insurance保单
insurance premium保险费
invoice发货单
insurance proceeds保险金赔偿
documentary sale跟单买卖
cost诉讼费
法律英语侵权法法律术语
法律英语-侵权
★以下是⽆忧考英⽂写作翻译频道为⼤家整理的《法律英语-侵权》，供⼤家参考。
更多内容请看本站频道。
1.In tort law the duty is imposed by the law.在侵权法中，责任是由法律规定的。
2.Some jurisdictions have established this tort to provide a remedy for malicious deeds.有些司法管辖区规定了此种侵权⾏为，⽬的是对恶意⾏为受害⼈提供救济。
3.Such tort-feasors are jointly and severally liable.此种侵权⾏为为要承担共同和连带责任。
4.The law of tort provides rules of conduct that regulate how members fo society interact and remedies if the rules are breached and damage is suffered.侵权⾏为法提供⾏为规则，规范社会成员的相互交往，以及在该规则被违反和损害发⽣是，如何进⾏救济。
5.The law of tort aims to compensate those who have suffered as a result of a tort.侵权⾏为法的⽬的在于补偿被侵害⼈。
6.Tort law is a branch of civil law that is connected with civil wrongs, but not contract actions.侵权法属于民法的⼀部分，其与民事过错相关，与合同⾏为⽆关。
7.Tort liability for negligence presupposes causality between the negligent act and the injury to person or property.过失侵权责任以过失⾏为与对⼈⾝或财产的侵权之间的因果关系为前提。
Tort Law侵权法英文版
侵权责任法Tort Liability Law第一章一般规定General Provisions第一条为保护民事主体的合法权益，明确侵权责任，预防并制裁侵权行为，促进社会和谐稳定，制定本法。
In order to protect the legitimate rights and interests of civil subjects, clarify the tort lability, prevent and punishtortious conduct, and promote the social harmony and stability, this Law is formulated.第二条侵害民事权益，应当依照本法承担侵权责任。
本法所称民事权益，包括生命权、健康权、姓名权、名誉权、荣誉权、肖像权、隐私权、婚姻自主权、监护权、所有权、用益物权、担保物权、著作权、专利权、商标专用权、发现权、股权、继承权等人身、财产权益。
Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law.“Civil rights and interests” in this Law include the right to life, right to health, right to name, right to reputation, right to honor, right to portrait, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discover, equities, right of succession, and other personal and property rights and interests.第三条被侵权人有权请求侵权人承担侵权责任。
TortLaw（美国侵权法）.-1doc
TortLaw（美国侵权法）.-1docTort law is a body of law that deals with civil wrongs, except those that arise from contract problems.The purpose of tort law is to compensate an injured party through the award of damages for the injuries incurred during a tortious act.CategoriesThere are three broad categories of torts:1. Intentional torts:2. negligence3. strict liability1. Intentional torts:Intentional torts are ones where the defendant desires to bring about a particular result.Intentional torts include actions that the layperson often associates with criminal law but are also covered by tort law.The main intentional torts against persons are:a. battery.b. assault.c. false imprisonment.d. intentional infliction of emotional distress.The main intentional torts against property are:a. trespass to land.b. trespass to chattels.c. conversion2. Negligence:The defendant has not intended to bring about a certain result, but has merely behaved carelessly.There are no individually-named torts in this category,merely the general concept of "negligence." (generic tort)3. Strict liability:The defendant is held liable even though he did not intend to bring about the undesirable result, and even though he behaved with utmost carefulness.INTENTIONAL TORTSAssaultBatteryFalse imprisonmentIntentional infliction of emotional distressTrespass to landTrespass to chattels, andConversionAssault and batteryAssault and battery are intentional torts, meaning that the defendant actually intends to put the plaintiff in fear of an imminent battery, or intends to wrongfully touch the plaintiff.The wrongful touching need not inflict physical injury, and may be indirect. (contact through a thrown stone, spitting) Assault occurs when the defendant's acts intentionally cause the victim's reasonable apprehension of immediate harmful or offensive contact.In other words, the defendant has committed the tort of assault if he has intentionally caused the plaintiff to think that she will be subjected to a harmful or offensive contact.The interest being protected is plaintiff's interest in freedom from apprehension of the contact; thus the tort can exist even if the contact itself never occurs.Apprehension:The victim must perceive that harmful or offensive contact isabout to happen to him.Imminent Harmful or Offensive Contact:For assault to be actionable the victim's apprehension must be of imminent harmful or offensive contact."Words alone" rule:Ordinarily, words alone are not sufficient, by themselves, to give rise to an assault.Normally there must be some overt act – a physical act or gesture by defendant – before plaintiff can claim to have been assaulted.Castiglione v. Galpin, 325 So.2d 725 (1976)Plaintiffs, sewerage and water board employees, brought suit for damages resulting from an alleged assault in which defendant allegedly pointed a shotgun at them after being informed that his water would be turned off because of nonpayment of a water bill.The Civil District Court for the Parish of Orleans rendered judgment in favor of each plaintiff in the sum of $750, and defendant appealed.Holding: The Court of Appeal held that where defendant threatened plaintiffs with bodily harm in the event they turned the water off and where defendant had a shotgun at the time, whether gun remained on defendant's lap or was pointed at plaintiffs, plaintiffs were in reasonable apprehension of receiving a battery, and thus defendant was liable for assault; that the award to each plaintiff in the sum of $750 was not excessive.BatteryBattery occurs when the defendant’s acts intentionally cause harmful or offensive contact with the victim’s person.Accidental contact, by contrast, must be analyzed undernegligence or strict liability.Harmful or Offensive Contact:Battery encompasses either harmful or offensive contact.Even trivial offensive contact can constitute a battery.An offensive touching can constitute a battery even if it does not cause injury, and could not reasonably be expected to cause injury.Mohr v. Williams, 104 N.W. 12 (Minn. 1905). P consults D, an ear doctor, about her right ear. She consents to an operation on that ear, but does nothing about her left ear. During the operation, D discovers that the left ear (but not the right ear) needs surgery, and performs it.Held, the surgery on the left ear was an unauthorized, offensive contact, and constituted battery even though it was not in fact harmful to P's health.Reasonableness standard for "offensive" contact:In determining whether a particular contact is "offensive," the standard is not whether the particularplaintiff was offended, but whether "an ordinary person not unduly sensitive as to his dignity" would have been offended.Extends to personal effects:A battery may be committed not only by a contact with the plaintiff's body but also by a contact with her clothing, an object she is holding, or anything else that is so closely identified with her body that contact with it is as offensive as contact with the body would be.Unforeseen consequences:Once it is established that the defendant intended to commit a harmful or offensive touching and such a contact occurs, the defendant is liable for any consequences which ensue, eventhough he did not intend them, and in fact could not reasonably have foreseen them.Damages:If the plaintiff can establish that the intentional harmful or offensive contact occurred, she may recover nominal damages even if she suffered no physical injury.This might be the case, for instance, where the contact is "offensive" but not "harmful."Mental disturbance:She may also recover compensation for any pain, suffering, embarrassment, or other mental effect, even in the absence of physical harm.Punitive damages:If the defendant's conduct was particularly outrageous, the court may award punitive damages.Cole v. Turner (1704)522 U.S. 1056 118 S. Ct. 711 139 L. Ed. 2d 652 1998 U.S.No facts are given.The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery.Any degree of touching coupled with angry mindset qualifies as battery.Talmage v. Smith, 101 Mich. 370, 59 N.W. 656 (Mich. 1894).Facts. Defendant threw a stick toward one member of a group of several boys to get them to leave his property. The stick missed the first boy and struck Plaintiff in the eye. Plaintiff sued and recovered on a jury verdict.The jury was instructed that Defendant could be liable if he threw the stick with the intent to hit the first boy or Plaintiff anddid so with force that was unreasonable under the circumstances.Issue. Was the jury properly instructed that Defendant could be liable if he intended to hit either boy and used unreasonable force?Held. Yes. The judgment was affirmed, with costs.When a Defendant intends to inflict harmful or offensive contact upon one party but instead inflicts such contact upon another, he is liable for the resulting injury.Fisher v. Carrousel Motor Hotel, Inc.Facts: The plaintiff was approached while standing with a plate. One of the defendant’s employees snatched the plate out of his hand and made a racist remark. The plaintiff was not touched and didn’t suffer physical injur y, but was hurt emotionally.The jury in the trial found for the plaintiff and awarded damages. The trial court set aside the verdict and found for the defendants. The Court of Civil Appeals upheld the ruling, and the plaintiff appealed to the Texas Supreme Court.Issue: Can a plaintiff have a cause for battery if he or she was neither touched nor in apprehension of physical injury?Rule: The basis of an action for battery is the ―unpermitted and intentional invasion of the plaintiff’s person and not the ac tual harm done to the plaintiff’s body‖.Analysis: The rule is clear in saying that ―it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from the plaintiff’s body or touching anything connected with his perso n, when done in an offensive manner, is sufficient.‖The court says that ―personal indignity‖ is the essence of battery, so it doesn’t matter whether or not there was physicalcontact or injury.Conclusion: The court held that snatching the plate away from the plaintiff constituted battery and that the plaintiff was entitled to damages for mental suffering, ―even in the absence of any physical injury‖.The court reversed the judgments of the lower courts and awarded damages to the plaintiff. He was allowed to recover $400 in compensatory damages for his "humiliation and indignity" even though he suffered no physical injury. He also recovered $500 in punitive damages.False ImprisonmentFalse imprisonment is a restraint of a person in a bounded area without justification or consent.In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area.Bounded Area:The victim must be confined within an area bounded in all directions.The bounded area can be, however, a large area, even an entire city.The plaintiff must be confined within definite physical boundaries.Blocking of the plaintiff's path is not enough: it is not enough that the path the plaintiff wishes to travel is obstructed by the defendant, or that the plaintiff is prevented from entering a particular place. Awareness of Confinement:False imprisonment requires that the victim be conscious of the confinement at the time of imprisonment.The Restatement §42 modifies this requ irement and wouldfind liability for false imprisonment, even when the victim is not aware of the confinement, if the victim is harmed by the confinement.Contrary to the Restatement, some authorities hold that a child can be subject to false imprisonment even if the child was neither aware of the confinement nor harmed.Big Town Nursing Home, Inc. v. Newman,461 S.W.2d 195 (1970)Facts: Newman was admitted to the defendant’s nursing home. Newman decided he wanted to leave and made several attempts to do so. He was forcibly restrained by the defendants. There was no court order for him to be restrained.Issue:Did the nursing home falsely imprison Newman? If so, is the nursing home liable for punitive damages?Held: Yes. The jury’s verdict was upheld, except t he award was found excessive.Rule:False imprisonment occurs when one person directly restrains another person’s physical freedom without legal justification. Punitive damages can be awarded if the defendant intentionally violates the rights of the plaintiff.Discussion. This is a rather straightforward false imprisonment case. Plaintiff was even able to identify a contractual provision specifically demonstrating the Defendant’s knowledge that it acted in disregard of his rights. The relative simplicity of the case allows the Court to set forth the precise elements of the tort of false imprisonment.Hardy v. LaBelle’s Distributing Co, 203 Mont. 263, 661 P.2d 35, 1983 Mont.Facts. An employee of Defendant informed Defendant that Plaintiff, a recently hired te mporary employee at Defendant’sjewelry department, had stolen a watch. The store manager invited Plaintiff into his office, claiming she was being given a tour as a new employee.The manager closed the door behind him, and Plaintiff was ultimately questioned in the room for 20 to 45 minutes by the manager, at least one uniformed police officer, and others, during which time Plaintiff did not ask or attempt to leave and was not told she could not leave. The manager was eventually satisfied that Plaintiff had not committed the theft.Issue. Was the jury wrong to find that Plaintiff had not been restrained against her will?Held. No. The jury’s verdict was upheld. The Court found that Plaintiff was not unlawfully restrained against her will because she would have entered the office voluntarily, never asked or attempted to leave, and was never told she could not leave.Intentional Infliction of Emotional DistressIntentional infliction of emotional distress (IIED) exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe emotional or mental distress, even in the absence of physical harm .Elements:Defendant acted intentionally or recklessly;Defendant’s conduct was extreme and outrageous;Defendant’s act i s the cause of the distress; andPlaintiff suffers severe emotional distress as a result of defendant’s conduct.Intent:There are three possible types of culpability by Defendant:(1) Defendant desires to cause Plaintiff emotional distress;(2) Defendant knows with substantial certainty that P will suffer emotional distress; and(3) Defendant recklessly disregards the high probability that emotional distress will occur."Transferred intent":The doctrine of "transferred intent" is not generally applicable in cases of intentional infliction of mental distress.That is, if the defendant attempts to cause emotional distress to X, or to commit some other tort upon him, and plaintiff suffers emotional distress (e.g., because he witnesses the defendant's attempt and becomes frightened), P will not usually be able to recover.Immediate family present:The main exception is that the transferred intent doctrine is applied if:(1) Defendant directs his condu ct to a member of Plaintiff’s immediate family;(2) Plaintiff is present; and(3) Plaintiff’s presence is known to Defendant."Extreme and outrageous":Plaintiff must show that Defendant’s conduct was extreme and outrageous, i.e., Defendant’s conduct has to be "beyond all possible bounds of decency."Actual severe distress:Plaintiff must suffer severe emotional distress. Plaintiff must show at least that her distress was severe enough that she sought medical aid. Most cases do not require Plaintiff to show that the distress resulted in bodily harm.Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (1958) Facts: Plaintiff, a customer in Defendant’s store, inquired asto the price of a certain item. The employee responded that ―if you want to know the price, you’ll have to find out the best way you can…‖ because ―you stink to me‖. Plaintiff brought suit for intentional infliction of emotional distress, and claimed the insulting characterization of her bodily scent led to a heart attack and other injuries. The trial court dismissed the case for failure to state a cause of action. The plaintiff appealed.Issue.Was the trial court correct to find that the Plaintiff’s allegations were insufficient to state an independent cause of action?Held. Yes. The judgment was affirmed.Rule: An action for intentional infliction of mental distress may lie if the distress is severe, or if an insult is suffered by a patron/customer of a common carrier such as an employee of a hotel, theater, or telegraph office.Analysis: The court asserts that a line should be drawn between emotional distress that is severe and distress that is not severe.The line that the court chooses is that ―there is liability only for conduct exceeding all bounds which could be tolerate d by society‖.The court further determines that mere vulgar insults do not exceed such bounds.Conclusion: The motion to dismiss is affirmed.Taylor v. Vallelunga, 171 Cal.App.2d 107, 339 P.2d 910 (1959) (bystander claim)Facts. Plaintiff Taylor witnessed Defendants intentionally attacking and beating her father, Plaintiff Gerlach. While Gerlach sued for his physical damages, Taylor sued to recover for the emotional distress she experienced as a result of witnessing theevent.Taylor failed to allege that the Defendants knew she was present for the event or that they intended the beating to cause her to suffer distress. The trial court granted the Defendants’ motion to dismiss Taylor’s claim and Taylor appealed.Issue. Did the trial court err in dism issing Taylor’s complaint for intentional infliction of emotional distress?Held. No. The dismissal was affirmed. When a Plaintiff seeks to recover for emotional distress but does not allege any physical damage, she is required to prove that the emotional distress was intentionally inflicted upon her by the Defendant.When a Defendant is not even aware of the Plaintiff’s presence or does not commit the acts causing the distress with the intention of causing Plaintiff such distress, the Defendant has not intentionally inflicted emotional distress upon the Plaintiff.TrespassTrespass is an area of tort law broadly divided into 3 groups: trespass to the person,trespass to chattels, andtrespass to land.Trespass to the personMost jurisdictions now broadly recognize three trespasses to the person:assault;battery; andfalse imprisonment.。
法律英语专题：侵权法(tort law)资料讲解
Actual fear on the plaintiff’s part is not required.
Examples
Assault
swinging a baseball bat at someone holding a rock and threatening to throw
Subcategories
torts against the person
assault battery false imprisonment intentional infliction of emotional distress
General
property torts
trespass to land trespass to chattels (personal property) conversion
dignitary torts
defamation invasion of privacy
Torts Against the Person
Assault
Definition
an intentional act that causes an apprehension of immediate harmful or offensive contact
法律英语专题：侵权法(tort law)
General
to deter others from committing the same act
US tort law
Tort law in the U. S. is largely common law.
法律英语专题：侵权法(tort-law)
Tort Law
General
Tort
a civil wrong which unfairly causes someone else to suffer loss or harm
★It does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.)
Many judges utilize the Restatement of Torts (2nd) as an influential guide.
The Restatement is an influential treatise issued by the American Law Institute, which summarizes the general principles of common law United States tort law.
With the tort of assault, a perceived threat by the victim is paramount.
Assault
＊A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.
法律英语第十课 Tort Law
2020/12/11
法律英语
4
Federal Tort claims Act
A statute which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government.
法律英语
25
Contributory negligence 共同过失
a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.
2020/12/11
法律英语
23
No claim for compensation不能要求赔偿
The injured party has been guilty of contributory negligence – 共同过失 has assumed the risk – 预计到有危险
2020/12/11
Amount to 25 to 33% of the verdict 酬金达到法院判付金额的25-33%。
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General
Tort
a civil wrong which unfairly causes someone else to suffer loss or harm
★It does not include breach of contract or trust. (A civil wrong can be a tort, breach of contract or breach of trust.)
Purpose of tort law
to provide relief to the injured party through the award of damages for the injuries incurred during a tortious act
General
to deter others from committing the same act
Assault
There must be an accompanying act.
The defendant must have the apparent ability to carry out the contact.
Actual ability to carry out the contact is not necessary.
Subcategories
torts against the person
assault battery false imprisonment intentional infliction of emotional distress
General
property torts
trespass to land trespass to chattels (personal property) conversion
US tort law
Tort law in the U. S. is largely common law.
Courts have the power to shape and change the elements of claims and defenses of existing torts and the power to create new torts.
dignitary torts
defamation invasion of privacy
Torts Against the Person
Assault
Definition
an intentional act that causes an apprehension of immediate harmful or offensive contact
it at someone pointing a gun at someone pointing a realistic toy gun at someone
Criminal assault and tortious assault
Criminal assault can occur even when no threat is perceived by the victim.
With the tort of assault, a perceived threat by the victim is paramount.
Assault
＊A defendant who throws a rock at a sleeping victim and misses can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.
Statutes have been passed in attempts to ‘reform’ the tort system.
General
Most of them have related to procedural matters and amounts and categories of damages.
Many judges utilize the Restatement of Torts (2nd) as an influential guide.
The Restatement is an influential treatise issued by the American Law Institute, which summarizes the general principles of common law United States tort law.
The plaintiff must have a reasonable apprehension of such contact.
Actual fear on the plaintiff’s part is not required.
Examples
Assault
swinging a baseball bat at someone holding a rock and threatening to throw
★Apprehension is not the same as fear— here it means awareness that an injury or offensive contact is imminent.
Requirements
The act must be overt.
Mere words do not constitute an assault.
Categories of torts
intentional torts
General
negligence strict liability torts
Intentional Torts
General
Definition
An intentional tort is a tort resulting from an intentional act on the part of the tortfeaБайду номын сангаасor.