美国侵权法中英文

合集下载

(完整版)美国侵权法(中英文)

美国侵权法（中英文）Restatement of the Law，Third，Torts by The American Law Institute美国法学会《侵权法第三次重述》Part One: Intoduction of Torts 侵权法概述Part Two： Apportionment of Liability（Rule Sections）第一部分：责任分担Part Three: Products Liability 产品责任Part One: Intoduction of Torts 侵权法概述在美国，侵权法主要属于各州的法律范畴，而且主要由判例法组成。

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。

Part One: Introduction 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 inmore detail below.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。

美国法学会《侵权法重述》

美国法学会《侵权法重述•第三次•责任分担》（中英文对照参考译本）王竹中国人民大学法学院Restatement of the Law, Third, Torts: Apportionment of Liability（Rule Sections）Copyright © 2000 by The American Law Institute译者说明：本文系作者参与2006年中国法学会部级法学研究课题“中国侵权责任法立法研究”（立项编号：CLS（2006）YB14）过程中，为学习和研究目的而进行的翻译。

本文件仅供个人学习、研究之用，仅供参考，请勿作他用，后果自负。

本文件部分条文的翻译参考了许传玺、石宏等译《侵权法重述——纲要》（法律出版社2006年版）1-4、7、8、10-12、14-17、23、26条条文和相应条文的部分“COMMENTS & ILLUSTRATIONS”、“REPORTERS NOTES”的译文，特此致谢。

相关译文具体细节请参见注释。

第一题[1]：比较责任的基本规则Topic 1- Basic Rules of Comparative Responsibility第一条本重述所涉及的问题与诉因本重述讨论在两位或多位责任人之间分配责任的问题。

本重述适用于关于死亡、人身损害[2]（包括精神损害或配偶权），或对有形财产的物理伤害的所有主张（包括法律诉讼与和解），无论其责任基础如何。

1 Issues and Causes of Action Addressed by This RestatementThis Restatement addresses issues of apportioning liability among two or more persons. It applies to all claims [3] （including lawsuits and settlements）for death, personal injury （including emotional distress or consortium）, or physical damage to tangible property, regardless of the basis of liability.第二条责任的合同性限制在合同法、诉讼请求的实体法规则和可适用的解释规则允许的情况下，原告与他人之间免除该他人对未来伤害负责的合同，将阻碍原告从该他人处获得对该伤害的赔偿。

美国侵权法律规定(3篇)

第1篇一、引言侵权法是美国法律体系中的一个重要组成部分，它旨在保护个人和实体的合法权益，确保人们在日常生活中能够享有安全和安宁。

侵权法律规定的核心是“责任原则”，即当一个人或实体因自己的行为造成他人损害时，应当承担相应的法律责任。

本文将详细阐述美国侵权法律的基本原则、类型、构成要件以及责任承担等方面的规定。

二、侵权法律的基本原则1. 责任原则责任原则是侵权法律的核心，它要求侵权行为人对其行为造成的损害承担法律责任。

在美国，责任原则通常分为过失责任、严格责任和绝对责任三种。

2. 损害赔偿原则损害赔偿原则是侵权法的基本原则之一，它要求侵权行为人赔偿受害人所遭受的损失。

损害赔偿通常包括直接损失和间接损失。

3. 预期利益原则预期利益原则要求侵权行为人对其行为可能造成的损害后果承担预见和防范义务。

4. 公平原则公平原则要求侵权法律在处理案件时，应当充分考虑各方利益，实现公平、公正。

三、侵权法律类型1. 过错侵权过错侵权是指行为人因故意或过失行为造成他人损害，应当承担侵权责任。

过错侵权包括以下几种：（1）普通过失侵权：行为人未履行应有的注意义务，导致他人损害。

（2）重大过失侵权：行为人明显违反注意义务，导致他人损害。

（3）故意侵权：行为人明知自己的行为可能造成他人损害，仍然故意为之。

2. 严格责任严格责任是指在某些特定领域，行为人即使没有过错，也要对其行为造成的损害承担侵权责任。

严格责任适用于以下几种情况：（1）产品责任：生产者、销售者因产品缺陷造成消费者损害，应当承担侵权责任。

（2）高度危险作业责任：从事高度危险作业的行为人，即使没有过错，也要对其行为造成的损害承担侵权责任。

3. 绝对责任绝对责任是指在某些特定情况下，行为人无论是否有过错，都要对其行为造成的损害承担侵权责任。

绝对责任适用于以下几种情况：（1）环境污染责任：污染者因环境污染造成他人损害，应当承担侵权责任。

（2）危险活动责任：从事危险活动的行为人，即使没有过错，也要对其行为造成的损害承担侵权责任。

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。

权利法案(美国)-the Bill of Rights(中英文)

权利法案（美国）（中英文）1787年在费城起草的宪法，在各州审议批准的过程中，也有不少美国公民感到不安，因为宪法中并没有明确保障个人的权利。

因此，《宪法》补充了10条修正案，统一称为《权利法案》，英文叫The Bill of Rights。

由于补充了《权利法案》，《宪法》在13个州均获批准，并于1789年生效。

　（左下图：美国威廉姆斯堡总督府的一个小会议室，就是《弗吉尼亚州权利法案》－后来成为美国宪法中《权利法案》蓝本的制定地）第一条 Amendment II . F reedom of Speech, Press, Religion and Petition Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 译文：国会不得制定关于下列事项的法律：确立国教或禁止信教自由；剥夺言论自由或出版自由；或剥夺人民和平集会和向政府请愿伸冤的权利。

第二条 Amendment IIII . Right to keep and bear arms A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 译文：纪律严明的民兵是保障自由州的安全所必需的，人民持有和携带武器的权利不可侵犯。

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.。

法律英语第十课译文

法律英语第十课译文第十课介绍第一部分基本问题1.在美国，侵权法仍是美国民事诉讼的最大组成部分，其中因机动车事故的要求赔偿金案件量居首位。

这里面是有很多原因的：a，美国民事诉讼中的原告通常会向陪审团提出索赔的主张，这主要是出于人道的考虑而不是法律上的考虑。

例如当一个小孩子在一起机动车事件中撞伤或者被有瑕疵的商品弄伤时。

b，补偿费和损害赔偿金不仅包括了实际损失还包括了无形的伤害，原告因此会常常利用陪审团的人性反应。

例如，造成一个人永久的残疾，比如让他失去一条腿，多少才是合理的补偿金呢？c，美国法律允许律师分享原告所获得的赔偿金（胜诉酬金）。

这种酬金达到法院判付金额的25%--33%的情况并不罕见。

基于所有这些因素，一起侵权诉讼可能会经历漫长的诉讼程序，产生巨大的花费。

例如通过给一些专家证人酬金，可以使一些原告彻底的放弃控诉，也可能使陪审团做出一个高额赔付的裁决。

一起伤害案件获得超过100,000美元的赔偿是很正常的。

这些情况成为了若干改革努力的试金石，接下来我们会做更详细的分析。

2.侵权法和合同法经常重叠。

受害方通常有两种选择：侵权诉讼（如非法占有、使用他人财产和人身伤害）和合同诉讼。

例如，违反默示合同中的担保承诺或造成人身伤害。

由于侵权法允许恢复无形损害（根据合同法通常不可用），第件允许的情况下受到人身伤害的原告通常都会选择侵权之诉。

3.每一个人都应该为自己的侵权行为负责，在有限的形式下儿童亦然。

（但是，父母仅当其作为该儿童之代理人或未能按照其监护义务行事时才负此责任），但国家不在此列，除非法律明文规定取消了国家的豁免权。

4.每个人都有免受侵犯的权利，包括胎儿。

继承人或者近亲属因故意或者过失侵权行为致使其已故亲属死亡或者立遗嘱人死亡（非正常死亡的情况下），可以请求赔偿。

在一些国家的法律中，所谓的《小酒店法》规定了第三方酒后侵权的保护和侵权诉讼请求。

因侵权人醉酒而受损害的一方有权像导致侵权人醉酒的人一样提出索赔。

美国统一州法委员会《统一侵权责任分担法》(中英文对照参考译本)

美国统一州法委员会《统一侵权责任分担法》（中英文对照参考译本）（2003年最后修订版）Uniform Apportionment of Tort Responsibility Act（Rule section•Last Revised or Amended in 2003）Copyright ©2003 byNCCUSL（National Conference of Commissioners on Uniform State Laws）译者说明：本文系作者参与2006年中国法学会部级法学研究课题“中国侵权责任法立法研究”（立项编号：CLS（2006）YB14）过程中，为学习和研究目的而进行的翻译。

本文件仅供个人学习、研究之用，仅供参考，请勿作他用，后果自负。

相关译文具体细节请参见注释。

第1条简称本“法”被引用时应被称为《统一侵权责任分担法》SECTION 1. SHORT TITLE.This [act] may be cited as the Uniform Apportionment of Tort Responsibility Act.第2条定义在本“法”中：（1）“混合过错[1]”包括混合过失、产品误用、不合理的未能避免或者减轻损害，以及自甘风险除非该风险已经在某一具有法律强制力的免责或者类似协议中被明示。

（2）“人”是指一个自然人[2]、法人、企业联合[3]、遗产[4]、信托、合伙、有限责任公司、协会、合资企业、公众公司、政府，或者政府部门、代理以及所属分支机构，或者其他任何法律或商业实体。

（3）“被免责人”是指如果未因第8条（或第9条）被免除责任则要对请求权人[5]关于人身损害或者财产损失的赔偿金负责的人（4）“责任”，就关于人身损害或者财产损失的赔偿金而言，是指作为责任基础或者全部或部分抗辩的作为或者不作为的法律后果。

立法指南：如果本法第9条被采纳作为本法的一部分，第3款对“被免责人”定义中的括号就应该被去掉。

tortlawpassage美国侵权法概论

tortlawpassage美国侵权法概论@1、An overview of tort lawGood morning,everyone. Today let us talk about tort law. And through our speech so that you have a general understanding of tort law. In China, our tort law promulgated in 2009,the tort law is a new things.Generally speaking, tort law is a civil areas and tort is the law of civil wrongs. Tort law usually provides people with the rights to compensation when another person harms their legally protected interests.Its general characteristics are:(1)Tort is a certain civil legal consequences that between Infringer and the infringed party(2) infringement of a crime against a civil statutory right of the main or absolute power,mainly referring to property rights,personal rights and intellectual property rights,the claims can not be a tort of infringement of the object;A tort is to harm other people's civil rights and interests,such as personal rights, property rights are civil rights;other than the legitimate interests of the civil rights,such as the reputation of the deceased, name,etc(3)tort perpetrator consciously behavior,unilateral implementation of wrongdoing by the infringe statutory civil rights and obligations, tort is a legal fact.Now ,lets my teammate give us an introduction about the s cope of the T ort Liability Act@2、The scope of the Tort Liability ActGood morning everyone,now I will tell your something about Scope of the T ort Liability Act.First ,I will tall you what is Tort Liability,tort liability is tortfeasor against civil rights and interests of others Infringement of civil rights and interests shall bear the civil legal consequences.It belongs to one of civil liability.Tort liability applicable to a wide range ,such as The right to life, the right to health,the right to a name,the right of reputation ,PortraitFor Example:marital autonomy means citizens have the right to freedom of marriage,and that the citizens in accordance with the law according to their own will,voluntarily married or divorced own right,free from interference by others.Male and female citizens of their own marriage or divorce,comply with the conditions of the law, there is complete freedom to express their true meaning,anyone can not use the right to replace them to make a decision,or force them to make a decision against their will;Not only parents the right to interfere in the freedom of their children's marriage or divorce, and that their children have no right to interfere with the freedom oftheir parents divorce,remarriage and widowhood party freedom.Personal rights associated with personal or an inalienable right to direct property content,also known as personal non-property rights.Personal rights and property rights constitute the two major categories of basic civil rights in civil law.The two major categories of personal rights, including the right of personality and the right to identity,personality rights,including the right to life, physical power, the right to health,the right to a name,the name of rights,the right of reputation, honor and image rights.The right to an identity, including parental rights,spouse rights,the right of kinship.@3The principle of Tort LiabilityUnder civil law principle,the principle of attribution of tort have three principles:namely:the principle of fault liability,liability without fault principle and the principle of equitable responsibility.Fault liability principle,refers to the fault of the perpetrator is to accept the principle of attribution of civil liability Elements,general tort for fault liability principle,the principle as a principle of our tort law generally attributable status.liability without fault principle in case law,not whether the perpetrator should bear the Civil Responsibility of the judge in the presence of fault of the perpetrator,usually limit the scope of the principle of responsibility applies only to special provisions in thelaw situation,the"Civil Law"and"personal damages to explain" expressly provided.The principle of equitable responsibility in the law does not provide for the principle of liability without fault,apply the principle of fault liability of the unconscionability of the victim, according to the principle of fairness between the parties assigned damage assumed responsibility principle.The implementation of the principle of fault liability under civil law for the general tort and implement who advocate who is the burden of proof;special tort,product liability,liability for damage of the highly dangerous job,environmental pollution damages the animals cause damage responsibility,the responsibility of guardianship,the implementation of the principle of liability without fault;cause damage to buildings, etc.,and the ground construction cause damage to the implementation of the principle of presumption of fault.In thecase of the parties no fault of the law did not require the implementation of no-fault liability for damage caused applicable, based on the concept of social equity,the principle of equitable responsibility.Ok,next welcome to my teammate.thank you@4 The Concurrence between tort liability and libility for breach of contractHello,everyone,just now,my teammates had told something about the Overview,scope,and principle of Tort Liability.now I will tell your The Concurrence between tort liability and libility for breach of contract.The Concurrence between tort liability and libility for breach The Concurrence between tort liability and libility for breach means the behavior of a person for a violation include a double feature of infringement and breach the law on tort liability at the same time. knowing what kind of law should apply phenomenon is becoming important.Being in real life, due to the diversity and complexity of wrongdoing, tort liability and liability for breach of competition and cooperation is inevitable.For example, the civil medical liability.Medical tort is the responsibility of behavior by medical institutions due to the fault of the medical institutions and their medical staff, resulting in compromised patients in treatment activities. medical malpractice tort liability is assumed by the medical institutions due to their infringement and adverse consequences. Medical liability for breach of contract party shall bear civil liability for breach of contractual obligations. Medical institutions should bear the liability for breach of medical behavior as a contractual relationship; When we focus only onthe results ofthe patient's actual damages, medical institutions should bear tort liability for their actions. Liability for breach of contract and tort liability are two basic types of civil liability, due to the multiplicity of the complexity of the civil relations, the nature of the civil offense, these two types of responsibility often occurred competing.In China, it is generally applicable in practice is to request the right to freedom of competing. allowing the parties to free choice of the right of claim of damages for infringement and breach of the right to claim damages.Ok,that is all,thank you for your listen.Question:1/What is tort? If a dog bite you,can you say tort?2/The principle of Tort Liability have three main category,how do you distinguish them?3/Do you know the he Concurrence between tort liability and liability for breach of contract?。

侵权法文献翻译稿(中英对照)

Numerous writers have proposed modifying traditional tort rules [FN1] to permit plaintiffs to recover from a defendant who contributed to the risk of causing the plaintiff's harm without proving that the defendant actually caused the harm. [FN2] These proposals would determine recovery *1202 by multiplying the plaintiff's total damages by the percentage chance that the defendant caused the damages, thereby giving her a portion of her damages.许多学者建议改变传统的侵权规则，以使在被告引起了原告的损害的危险而原告不能证明被告确实引起了损害的情况下，原告能够获得赔偿。

[fN2]这些建议通过增加被告可能造成的损失占原告总损失的百分比乘，从而决定赔偿的范围，以赔偿受害者部分损失。

Although these proposals for proportional liability take many forms, they may be divided into three major categories. The "proportional damage recovery" category would permit a plaintiff to recover a portion of her damages only after she has suffered the injury or acquired the disease. [FN3] Thus, if a defendant created a twenty percent probability of having caused the harm, an injured plaintiff would recover twenty percent of her damages. If a defendant created a sixty percent probability of having caused the harm, the plaintiff would recover sixty percent of her damages. By contrast, the "proportional risk recovery" category would permit a plaintiff to recover a portion of her prospective damages before she has been injured or made ill. Thus, if a defendant exposed ten persons to a toxin that created a ten percent risk of causing a certain disease in the future, each exposed person would recover ten percent of her prospective damages in advance.[FN4]虽然这些比例责任的建议采取许多形式，它们仍可以被分为三种主要的类型。

权利法案(美国)-the Bill of Rights(中英文)

因此，《宪法》补充了10条修正案，统一称为《权利法案》，英文叫The Bill of Rights。

由于补充了《权利法案》，《宪法》在13个州均获批准，并于1789年生效。

美国侵权法案例1（英文）

美国侵权法案例1（英⽂）Question #1Every Saturday morning, Peter takes his six-year-old daughter to swimming lessons at Briarwood Fitness Center. He and his daughter are not members of the Center: he has merely bought a series of swimming lessons given in the Center’s teaching pool by Center staff. Normally, Peter sits beside the swimming pool while his daughter’s lesson proceeds. One Saturday morning, he leaves the side of the pool while his daughter is swimming. He wanders around the Center, inspecting the facilities. He watches some racketball games, looks into the beauty shop and cafeteria, then goes into the weight room. He decides to try out one of the weight machines.Remembering his healthy youth, Peter selects a very heavy weight. He releases the brake on the machine, which sustains the weight until the user is ready to exercise. He rapidly discovers that he cannot sustain the weight that he has selected. His body crumples under the weight. Peter finds that he can only get out from underneath the weight by twisting and falling out of the machine. In doing so, he severely injures his back.The weight machine in question is manufactured by DominaFlex, Inc. It bears a warning sticker next to the place where the user selects the weight to be lifted. The warning says: “WARNING. Always use spotters when you lift. Do not use this equipment without first receiving instruction or reading the information booklet.”A “spotter” is someone who stands by the machine while the user is using it, to watch, encourage and give assistance if needed. Peter says he did not know what the term means.Members of the Center are given instruction in how to use the weight machines before they are allowed to use the weight room. Although use of the weight room is supposed to be confined to Center members, there is no sign on the door of the weight room to that effect, nor has the Center put up any warning sign of its own by the machine. The instruction booklet was not left by the machine.Peter wishes to sue both Briarwood Fitness Center and DominaFlex, Inc. Advise Peter about the issues that would be raised in these actions.(Assume that the incident occurred in a jurisdiction that has not modified the traditional rules of occupier’s liability in any way, and where the law of products liability is based on the Restatement (Second) of Torts, Section:402A.). Peter v. Briarwood1. Occupier’s liabilityBecause Peter was injured in a jurisdiction that has not modified the traditional rules of occupier’s liability, the first question must be what kind of ent rant he was, because Briarwood’s duty as occupier of the premises in question is different for different classes of entrant.The highest duty of care is owed to invitees. An invitee is either someone who uses a public space made generally available to the public at large (a public invitee) or someone who enters private premises to engage in some kind of business transaction that might benefit the occupier (a business invitee). Although many entrants use it, Briarwood Fitness Center is not a public building,so Peter cannot be a public invitee. Like many businesses, the Center is open to any member of the public who wishes to enter, but it is privately owned. If Peter is to be classed as an invitee, he can only be a business invitee.Peter is in the Center building to attend his daughter’s swimming lessons. He has paid the Center for those lessons, so he is plainly a business invitee when attending the lessons, even though he is not a member of the Center. However, Peter’s injuries were not sustained in the pool area. It is quite possible for a person’s entrant status to change from one part of a building to another. For example, if a hotel guest walks through a door clearly marked “No Entry: Staff Only”, he or she would cease to be an invitee and would become a trespasser.In the present case, Peter has left the part of the Center where he was clearly a business invitee and has gone into a part of the building that was only open to members. The fact that Peter was not a member does not necessarily mean that he became a trespasser when he entered the weight room. There was no sign on the door stating that the weight room was only open to members. Other parts of the Center, such as the beauty shop and cafeteria, were obviously operating as businesses with a general invitation to members of the public to go inside and do business. There was no visible sign to distinguish the weight room from those other businesses.A person can be a business invitee without actually conferring a benefit on the occupier, if the c ircumstances are such thatthe occupier’s premises are open to anyone who might confer a benefit. For example, any person who walks into a store during regular business hours is a business invitee whether or not he or she intends to buy a particular item and whether or not he or she actually buys anything. Peter would plainly have been a business invitee in the beauty shop and cafeteria. If he entered the weight room to check it out, possibly with a view to becoming a member, then he would be a business inv itee in the same way. The Center’s rule is that the weight room should only be used by members; it does not preclude non-members from even entering the room. Peter may well have remained a business invitee when entering the weight room. At the very least, it seems likely that he was a licensee, which is someone who enters premises with the permission of the occupier but for his or her own purposes, without the intention to confer a benefit on the occupier. The door of the weight room was open and there was no sign indicating that it was any more private than any of the other spaces in the Center. That should be enough to establish the Center’s permission for entrants like Peter to enter the room. Implied permission to use the machines in the room would be slightly more difficult to find, but in the circumstances it seems unlikely that Peter would be considered a trespasser. That is a possibility, however. He did not actually have permission to use the machines. The mere fact that he could walk freely into the room would not automatically create the impression that he could freely use the machines in the room.2. Occupier’s standard of careIf Peter was a business invitee in the weight room, then Briarwood owed him a duty of reasonable care, which would extend to warning him of any of the dangers of the property and also to making reasonable efforts to determine whether any such dangers existed. The machine had no warningsigns and there is nothing to indicate that Briarwood had made any effort to determine whether passers-by like Peter were using the machines. It may, however, have been an “open and obvious danger”, in which case Briarwood would have owed no duty to take protective steps in relation to it. The heaviness of the weights was obvious and the risk of lifting them should have been clear to Peter as well as Briarwood.If Peter was merely a licensee in the weight room, Briarwood’s duty would be confined to one of warning him about concealed dangers known to it but not him. As noted above, the dangerousness of the machine does not seem to be particularly concealed. An occupier is not liable to a licensee who is injured by a condition of the premises of which both are aware.If Peter was a trespasser when using the weight machine, Briarwood’s duty is on ly to avoid willful and wanton misconduct designed deliberately to harm him. Peter’s action against Briarwood would obviously fail if he fell into this category. There is nothing about the presence of the machine that amounts to a deliberate attempt by Briarwood to harm trespassers.3. Comparative faultIf Peter is entitled to recover from Briarwood for a breach of any of the occupier’s duties, his recovery may be reduced on account of his own contributory negligence. His decision to lift without a spotter was unwise, even though he says that he did not know what the warning sign about “spotters” meant. A reasonable person would realize the dangers in lifting a heavy weight without practice or training. It seems likely that Peter failed to take reasonable care for his own safety. If the injury occurred in a jurisdiction with a modified comparative fault regime, which denies recovery altogether if the plaintiff’s fault is greater than the defendant’s, Peter’s action may fail completely.II. Peter v. Dominaflex1. Design defectBecause Peter suffered his injury in a state where products liability is governed by Section:402A of the Restatement (Second) of Torts, his action against Dominaflex will allege that the weight machine was a product “in a defective condition unreasonably dangerous to the user”. There is nothing to indicate that the machine was badly manufactured, so his action would have to allege that it was poorly designed. It operated exactly as intended: the whole purpose of the machine is to put some amount of stress on the user’s muscles. The design defect, if any, could only be the absence of some kind of fail-safe mechanism to take the place of a “spotter” for lone users, supporting the weight if the user could no longer handle it.Some Section:402A states test the defectiveness of product design by reference to the expectations of “ordinary consumers”, some by reference to a “risk-utility” standard, and some by a combination of both for different kinds of product (”ordinary consumer expectation” for simpleeveryday products, “risk-utility” for more complex ones). We do not know what test is applied in the jurisdiction where Peter was injured.The question whether an “ordinary consumer” would expect the machine to have a fail-safe mechanism would be one for the jury to answer applying common sense standards. Some weight machines do have foot-operated levers that support the weight, so an “ordinary consumer” might have the expectation that all machines should be equipped with something similar.If the “risk-utility” standard is applied, it will be necessary to determine whether the risks posed by the machine could have been reduced without lessening its utility. That will involve consideration of the cost of installing a fail-safe mechanism and its effect on the operation and ease of use of the machine.2. Effect of warningWarning labels can be sufficient to render safe a product that carries some inherent risk of harm. The weight machine in the present case bore such a warning label. However, that label used a rather technical term (”spotters”) and it referred to an instruction booklet. There was an obvious risk that the instruction booklet would not be kept with the machine at all times and that the machine might be used by users who would not able to consult the booklet first. In the circumstances, it seems unlikely that the warning would be sufficient to relieve Dominaflex from liability if the design of the machine were to be held to be defective.3. Comparative faultLastly, it is necessary again to consider the possibility that Peter may have failed to take reasonable care for his own safety. Any comparative fault on his part would have a different effect in the action against Dominaflex than it would in the action against Briarwood. In General Motors v. Sanchez (Tex, 1999), it was held that comparative negligence of a product user should only operate to reduce recovery if it goes beyond a failure to discover and guard against the defect in the product. Peter’s mistake was to use the machi ne without realizing that it could harm him if he chose too heavy a weight, because there was no fail-safe device. If the Dominaflex machine was defectively unsafe, Peter’s fault therefore seems to have been only a failure to recognize and guard against the defect. Applying the Sanchez test, that would not lead to a reduction of his recovery. His recovery would only be reduced if he had used the machine in some way that went beyond a failure to identify the danger created by its defect.。

Tort Law(美国侵权法).-1 doc

Tort 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 is about 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 under negligence 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, even though 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 and did 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 injury, 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 actual 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 physical contact 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 requirement and would find 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 the 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 temporary employee at Defendant’s jewelry 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 is 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 as to 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 the event.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.。

侵权法词汇(英汉)

侵权法词汇英汉对照restatement of torts 侵权法重述writs 令状the action of trespass 直接侵权诉讼the action on the case 间接侵权诉讼intentional torts 故意侵权battery 殴打harmful and offensive contact 伤害性和冒犯性接触punitive damage 惩罚性赔偿assault 威吓apprehension 警觉false imprisonment 非法监禁boundary 监禁的区域intentional infliction of mental distress 故意精神伤害fault 过错trespass to land / chattels 侵犯他人土地/财产wrongful life 错误生存possessory rights 占有权conversion 侵占他人财产consent 原告同意self-defense 自我防卫defense of others 防卫他人defense of property 保护财产recovery of chattels 夺回财产re-entry on land 恢复失地public/priviate necessity 公共/私人紧急避难necessity 紧急避难discipline 管教negligence 过失侵权reasonable man 合理人unreasonable risk 不合理风险duty 责任wrongful birth 错误出生breach of duty 不履行责任proximate cause 最近原因legal cause 法律原因actual loss or damage实际损失或伤害the duty of care 谨慎的责任foreseeable plaintiff 可预见的原告unforeseeable plaintiff 不可预见的原告zone of danger 危险区professionals informed consentmalpractice professional negligence。

权利法案(美国)-the Bill of Rights(中英文)

因此，《宪法》补充了10条修正案，统一称为《权利法案》，英文叫The Bill of Rights。

由于补充了《权利法案》，《宪法》在13个州均获批准，并于1789年生效。

美国过失侵权制度中注意义务的一般标准

美国过失侵权制度中注意义务的一般标准作者：汤文华来源：《英语世界》2021年第09期过失侵权（negligence）是美国侵权法的核心领域，也是最常见的侵权形式。

过失侵权的总体原则是，一个人有责任不对他人产生不合理的危险或损害。

如果该人违反这一责任而给他人带来伤害，那么就应为自己的过失行为负责。

根据过失侵权的总体原则，可以将过失侵权的要件归纳为：（1）被告对原告负有注意义务（duty of care）;（2）被告违反了该注意义务（breach of that duty）;（3）原告遭受了损害（sufferance of an injury）;（4）被告的行为与原告受到的损害存在因果关系（causation）。

其中，被告的注意义务是过失侵权产生的前提。

在大多数案件中，行为人过失责任认定的一般标准是：一个人在类似环境中应当具有合理注意（reasonable care）。

在侵权责任制度中，合理注意是一个模糊且笼统的概念，没有绝对标准，主要根据一般人的常识、当时的情况、风险大小以及规避风险所要付出的代价等因素来判断。

在司法实践中，理性人（reasonable man）和“风险—收益检测”（risk-benefit test）是判断行为人是否具有合理注意义务以及该义务是否被违反的常见标准。

一、理性人标准（reasonable man）《侵权法重述·第二次》第283条规定：“一个人必须遵守的避免存在过失的行为标准是类似环境中的理性人标准”。

1这一标准通常用来确定被告是否具有注意义务（duty of care）。

理性人是法律上被理想化和标准化的假象人，具有法律所期望的一般人所应具有的谨慎和理性。

当判断被告的行为是否谨慎合理时，我们需要将一个理性人置于被告所处的环境中;如果在类似情形之下，被告没有如同理性人那样行动，那么被告的行为就不符合理性人的标准，被告违反了合理的注意义务，应当承担过失责任。

需要注意的是，理性人并不是一个完美、一成不变的人，他的行为在不同环境中会有不同的表现。

1、下载文档前请自行甄别文档内容的完整性，平台不提供额外的编辑、内容补充、找答案等附加服务。
2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
3、如文档侵犯您的权益，请联系客服反馈,我们会尽快为您处理(人工客服工作时间：9:00-18:30)。

美国侵权法(中英文)Restatement of the Law , Third , Torts by The American Law Institute美国法学会《侵权法第三次重述》Part One: In toduction of Torts 侵权法概述Part Two : Apportionment of Liability ( Rule Sections )第一部分：责任分担Part Three: Products Liability 产品责任Part One: In toduction of Torts 侵权法概述在美国，侵权法主要属于各州的法律范畴，而且主要由判例法组成。

侵权行为可分为故意侵权行为(intentional tort) 、过失侵权行为(negligenee 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。

Part One: In troductio n 基本概念1. The law of tort is still the source of most civil suits in the Un ited States,with damageclaims for automobile accidents taking first place. Manycircumstances con tribute to this: (a) the plai ntiff in an America n civil suit is ordin arilyentitled to try his claim before a jury which will often--and understandably--rely more on huma n tha n on legal con siderati ons, for in sta nee whe n a child has bee n injured in an automobile accide nt or through a defective product of a largeen terprise; (b) Compe nsati on and damages in clude not only the actual loss but also the intangible damage. A plaintiff can therefore often play on the humanreactionof the jury: for instanee, what is appropriate compensation for a permanent disability such as the loss of a limb? (c) American law permits the participation of the attor ney in the pla in tiff ' s recovery (con ti ngent fee) which not un com monly amounts to 25 to 33 perce nt of the verdict. As a result of all of these factors, a tort actio n m ay be a len gthy proceedi ng, result in large expe nses, for in sta nee through hono raria for experts (which may deter the "small "plai ntiff from suing at all), and may end in the award of a very large verdict. It is no lin ger un com mon that a jury will aware a verdict in excess of $ 100,000. These con diti ons have bee n the touchst one for several reform en deavors which will be discussed in more detail below.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。

很多因素造成了这一现象：( a)在美国民事诉讼案件中的原告通常利用法律赋予他的诉讼权利主张赔偿，因为陪审团更多的是基于可以理解的人性考虑而非法律考虑，例如当一个孩子在一起交通事故或因购买大公司的瑕疵产品而受到伤害往往能得到陪审团的同情理解。

(b)补偿费和损害赔偿金不仅包括实际的损害而且包括了无形损害。

原告经常可以利用陪审团的人性反应：比如，当永久的失去肢体时怎样才算是一个适当的赔偿金额。

(c)美国法律允许律师分享原告所获得的赔偿金(胜诉酬金)。

这种酬金达到法院判付赔偿金金额的百分之二十五到百分之三十的情况并非罕见。

由于以上所有因素的存在，在侵权案件中若想获得巨额的赔偿金必将经历一个冗长的审判过程。

这方面的一个例子是在陪审团对一个重大的侵权案件做出裁决后，专家(证人)的酬金可能是“渺小”的原告所获得的损害赔偿金的全部。

陪审团做出一个超过100，000美元的裁决已不再是不可能的，而是极其常见的。

这些因素都将成为若干改革努力的试金石，我们将在下文中更多的讨论其细节。

2. Tort law and the law ofc on tracts ofte n overlap since an injured party freque ntlyhas the choice between a tort claim(for instanee, unauthorized use of property--c on versi on--or pers onal injury)a nd a suit in con tract, for in sta nee,in implied con tract or, in the case of pers onal in juries, for breach of warra nty.Si nee the law of torts permits the recovery of in ta ngible damage(which is usuallynot the case with respect to con tract claims), the pla in tiff will ordin arily choose the tort claim for pers onal in juries whe n the facts so permit.侵权行为法常常与合同法产生竞合，受损害的一方也常常在侵权之诉(例如将未经授权使用的财产转移和因非法占有他人财产所造成的个人损害)和违约之诉中做出选择。

比如，在格式合同及在个人损害赔偿案件中或因为违反保证诺言的案例中。

因为侵权行为法还将赔偿无形损失(而违约责任往往不赔偿无形的损失)，因为侵权行为法如此的规定，在现实生活中原告往往选择它提起个人损害赔偿。

3. Every one is liable for his tortious act, in limited form also childre n (however,pare nts only the n whe n they acted as the child ' s age nt or did not comply withtheir duty to supervise), but not the state uni ess express statutory provisi onhas abolished state immun ity.每个人都要对其侵权行为承担责任，在有限的形式下儿童亦然(但是，父母仅当其作为该儿童之代理人或未能按照其监护义务行事时才负此责任)，但国家不在此例，除非法律明确规定取消了国家的豁免权。

4. Every one is protected aga inst tortious acts, i ncludi ng the embryo. The heirs or n ext of kin may have a damage claim for the inten ti onal or n eglige nt death of their relative or testator (wron gful death action ).The statutes of some States provide protecti on, and a tort claim, to third parties for injuries aris ing outof the in toxicatio n of the tortfeasor; un der these so-called "dram-shop acts", a party injured as a result of the intoxication of the tortfeasor has a claim againsthim who con tributed to the tortfeasor's in toxicati on.每个人包括婴儿都受到侵权法的保护。

继承人或近亲属可以提起损害赔偿之诉，当其被继承人或近亲属被故意或过失导致死亡时(非正常死亡之诉)。

一些州的法律规定，对于第三方的行为使侵权行为人醉酒从而导致受害人受伤的可以提起侵权之诉，这些规定被称为“小酒店法令”，作为侵权行为人醉酒之结果而受到伤害的一方有权向那些造成该侵权行为人醉酒的人提出索赔请求。

5. Fin ally it should be emphasized aga in that the law of torts is, in the main, State Law.最后需要强调的是侵权行为法主要是各州的立法。

Part Two: Inten ti onal Torts 故意侵权The case law contains the usual catalogue of inten ti onal torts. For in sta nee: battery, assault, conversion of property, false imprisonment, trespass to personal and real property. Some torts, for in sta nee, alie nati on of affecti on have bee n abolished by statute in many States. Others, such as defamati on, have rece ntly bee n modified sig nifica ntly through eon stituti onal case law. New torts, unknown to the traditional com mon law, have also been introduced by the case law;particularly importa nt among them are the torts for inv asi on of privacy and for products liability.以往的判例包含了各类故意侵权。