chapter 5: torts

©2001 West Legal Studies in Business. All Rights Reserved.1

Chapter 5:Chapter 5:TortsTorts


§1: Basis of Tort Law§1: Basis of Tort Law

• Doing business today involves risks, both legal and financial.

• A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest.

• There are intentional and unintentional (negligence) torts.


§2: §2: Intentional TortsIntentional Torts

• The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means:– Tortfeasor intended the consequences of her act;

or– She knew with substantial certainty that certain

consequences would result.


Types of Intentional TortsTypes of Intentional Torts

• Assault and Battery.• False Imprisonment.• Infliction of Emotional Distress.• Defamation.• Invasion of Privacy.• Business Torts.


AssaultAssault

• Intentional, unexcused act that:– Creates a reasonable apprehension of fear, or– Immediate harmful or offensive contact.

• NO CONTACT NECESSARY.


BatteryBattery

• Battery is the completion of the Assault:– Intentional or Unexcused.– Harmful, Offensive or Unwelcome.– Physical Contact.


Defenses to Defenses to Assault & BatteryAssault & Battery

• Consent.• Self-Defense (reasonable force).• Defense of Others (reasonable force).• Defense of Property.


False ImprisonmentFalse Imprisonment

• The Intentional confinement or restraint.• Of another person’s activities.• Without justification. • Merchants may reasonably detain

customers if there is probable cause.


Intentional Infliction of Intentional Infliction of Emotional DistressEmotional Distress

• An intentional act that is:– Extreme and outrageous, that– Results in severe emotional distress in another.

• Most courts require some physical symptom or illness.– Case 5.1: Roach v. Stern (1998).


DefamationDefamation

• Right to free speech is constrained by duty we owe each other to refrain from making false statements.

• Orally breaching this duty is slander; breaching it in print or media is libel.


DefamationDefamation

• Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community.

• Publication requires communication to a 3rd party.


Defamation-Damages Defamation-Damages [1][1]

• Damages for Libel.– General Damages are presumed; Plaintiff does

not have to show actual injury. – General damages include compensation for

disgrace, dishonor, humiliation, injury to reputation and emotional distress.


Defamation-Damages Defamation-Damages [2][2]

• Damages for Slander.– Rule: Plaintiff must prove “special damages”

(actual economic loss).– Exceptions for Slander Per Se (loathsome

disease, business improprieties, serious crime, non-chaste).


Defamation-DefensesDefamation-Defenses

• Truth is generally an absolute defense.• Privileged (or Immune) Speech.

– Absolute: judicial & legislative proceedings.– Qualified: Employee Evaluations.


Defamation-Public FiguresDefamation-Public Figures

• Public figures exercise substantial governmental power or are otherwise in the public limelight.

• To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.– See Falwell v. Hustler (1988).

http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=46

http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=46


Invasion of PrivacyInvasion of Privacy

Every person has a fundamental right to solitude freedom from public scrutiny.– Privacy and the Internet:

Federal Trade Commission issues final report on privacy (May 15, 2000).

– Children’s Online Privacy Protection Act of 1998 for websites whose primary purpose is information from children (13 and under).

http://www.ftc.gov/acoas/papers/acoasfinal1.pdf

http://www.ftc.gov/acoas/papers/acoasfinal1.pdf

http://www.ftc.gov/ogc/coppa1.htm

http://www.ftc.gov/ogc/coppa1.htm


AppropriationAppropriation

Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.


FraudFraud

• Fraudulent misrepresentation involves intentional deceit:– Misrepresentation of material fact;– Intent to induce another to rely;– Justifiable reliance by innocent party;– Damages as a result of reliance;– Causal connection.


Wrongful InterferenceWrongful Interference

• Tort that interferes with a contractual relationship.

• Occurs when:– Defendant knows about contract between A and B; – Intentionally induces either A or B to breach the

contract; and– Defendant benefits from breach.

• Case 5.2: Kallok v. Medtronic (1998).

http://www.state.mn.us/courts/library/archive/ctapun/9701/1598.htm

http://www.state.mn.us/courts/library/archive/ctapun/9701/1598.htm


Wrongful InterferenceWrongful Interference

• With a Business Relationship occurs when:– Established business relationship;– Tortfeasor, using predatory methods, causes

relationship to end; and– Plaintiff suffers damages.

• Bona fide competitive behavior is a defense to this tort.


§3: Intentional §3: Intentional Torts to Torts to PropertyProperty

• Trespass to land occurs when a person, without permission:– Physically enters onto, above or below the

surface of another’s land; or– Causes anything to enter onto the land; or– Remains, or permits anything to remain, on the

land.


Intentional Intentional Torts to Property Torts to Property [2][2]

• Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.

• Disparagement of property.• Slander of title or quality.


§4: §4: NegligenceNegligence

• Tortfeasor does not intend the consequences of the act or believes they will occur.

• Actor’s conduct merely creates a foreseeable risk of injury. Analysis:– Defendant owed Plaintiff a duty of care;– Defendant breached that duty;– Plaintiff suffered legal injury;– Defendant’s breach caused the injury.


Duty of CareDuty of Care

• Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.

• Courts use reasonable person standard (jury) to determine whether duty exists.


• The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event.

• Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury).

Duty of Care: ForeseeabilityDuty of Care: Foreseeability


Duty of CareDuty of Care

• Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff.– Case 5.3: Martin v. Wal-Mart (1999).

• Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.

http://www.ca8.uscourts.gov/opndir/99/07/983543P.pdf




Injury and DamagesInjury and Damages

• To recover, Plaintiff must show legally recognizable injury.

• Compensatory Damages are designed to reimburse Plaintiff for actual losses.

• Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.


CausationCausation

Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries.– Causation in Fact, and– Proximate Cause.


Causation in FactCausation in Fact

• Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?

• Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.


Proximate CausationProximate Causation• An act is the proximate (or legal) cause of

the injury when the causal connection between the act and injury is strong enough to impose liability. Foreseeability of injury is an important factor.

• Think of proximate cause as an unbroken chain of events.

• Case 5.4: Palsgraf v. Long Island RR (1928).


Defenses to NegligenceDefenses to Negligence

• Assumption of Risk.• Superceding Intervening Cause.• Contributory or Comparative Negligence.


Assumption of RiskAssumption of Risk

If Plaintiff has adequate notice and understanding of the risks associated with an activity, but knowingly and willingly engages in the act anyway, Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.

– Case 5.5: Crews v. Hollenbach (1999).


Superceding CauseSuperceding Cause

• A unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability.

• If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.


Contributory Negligence Contributory Negligence [1][1]

• Under common law, if Plaintiff if any way caused his injury, he was barred from recovery.

• Most states have replaced contributory negligence with the doctrine of comparative negligence.

• The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.


Comparative NegligenceComparative Negligence

• In determining liability, the amount of damages a Plaintiff causes to herself are subtracted from the amount of damages suffered by the Plaintiff, and only the remainder is recoverable from the Defendant.

• However, if Plaintiff is more than 50% liable, she recovers nothing.


Special Negligence DoctrinesSpecial Negligence Doctrines

• Res Ipsa Loquiter.• Negligence Per Se occurs when Defendant

violates statute that causes injury to Plaintiff:– Statute sets out standard of care.– Plaintiff is member of class intended to be

protected by statute.– Statute designed to prevent Plaintiff’s injury.


Special Negligence StatutesSpecial Negligence Statutes

• “Danger Invites Rescue” Doctrine.• Good Samaritan Statutes.• Dram Shop Acts.


Law on the WebLaw on the Web

• Law Guru’s Law Library Website.

• Legal Research Exercises on the Web.

http://www.lawguru.com/ilawlib

chapter 5: torts

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