Chapter 8Tort Law

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Introduction

o An injury can involve both civil (tort) and criminal liability.

o In a civil action, the plaintiff hires her own lawyer.

o In a criminal action, the state prosecutes the injury to the community.

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Basis of Tort Law

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

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

o There are intentional and unintentional (negligence) torts.

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Types of Torts

o Intentional torts – arise from an act defendant consciously performs; key is the intent to perform the act and not necessarily the intent to do harm (e.g., shooting gun into the air), though proof of intent to cause harm is the best way to prove an intentional tort.

o Negligence – no intent required; act (or omission) creates risk of harm; accident, careless, mistake, misjudgment.

o Strict liability – liability without fault; traditionally, harm caused by ultrahazardous activity or consumption of drugs/food/beverages; theory extended to product liability starting in the mid-20th Century.

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Causation & Damage Required for All Tortso Causation

o The “bridge” between the defendant’s bad act and injury/damages suffered by the plaintiff.

o Requires a reasonable relationship between defendant’s bad act and plaintiff’s damage.

o Damage

o Also called “injury” or “loss.”o Tort law is based on compensation for a loss

that can somehow be measured in money.o If no damage, then no compensation is

necessary and the defendant will win.o “Damage” includes any kind of measurable

financial loss; e.g., physical injury, loss of business, emotional distress.

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Intentional Torts Against Persons

o The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means:o Tortfeasor intended the

consequences of her act; oro She knew with substantial

certainty that certain consequences would result.

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Types of Intentional Torts

o Assault and Battery.o False Imprisonment.o Infliction of Emotional Distriess.o Defamation.o Invasion of Privacy.o Business Torts.

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Assault and Battery

o ASSAULT is an intentional, unexcused act that:o Creates a reasonable apprehension of

fear, oro Immediate harmful or offensive contact.o NO CONTACT NECESSARY.

o BATTERY is the completion of the Assault:o Intentional or Unexcused.o Harmful, Offensive or Unwelcome.o Physical Contact.

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Defenses to Assault & Battery

o Consent.o Self-Defense (reasonable force).o Defense of Others (reasonable

force).o Defense of Property.

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False Imprisonment

o False Imprisonment is the intentional:o Confinement or restraint.o Of another person’s activities.o Without justification.

o Merchants may reasonably detain customers if there is probable cause.

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Intentional Infliction of Emotional Distress

o Intentional infliction of emotional distress – “outrageous” conduct by defendant causes plaintiff to suffer severe emotional distress

o An intentional act that is:o Extreme and outrageous, thato Results in severe emotional

distress in another.

o Most courts require some physical symptom or illness.

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Defamation

o Defamation – based on defendant’s false statement of fact to 3rd party causes damage to plaintiff; statement can be spoken (slander) or written or on the internet (libel).

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

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

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Defamation

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

o Publication requires communication to a 3rd party.

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Damages for Libel

o General Damages are presumed; Plaintiff does not have to show actual injury.

o General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

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Damages for Slander

o Rule: Plaintiff must prove “special damages” (actual economic loss).

o Exceptions for Slander Per Se. No proof of damages is necessary:o Loathsome disease, o Business improprieties, o Serious crime, o Woman is non-chaste.

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Defenses to Defamation

o Truth is generally an absolute defense.

o Privileged (or Immune) Speech.o Absolute: judicial & legislative

proceedings.o Qualified: Employee Evaluations.

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Public Figures

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

o To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.

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Invasion of Privacy

o Invasion of privacy o Appropriation.o Intrusion into a person’s private

life.o Publication of Information that

Places a Person in False Light.o Public Disclosure of Private Facts.

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Appropriation

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

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Intentional Torts Against Property

o Trespass to land occurs when a person, without permission:o Physically enters onto, above or

below the surface of another’s land; or

o Causes anything to enter onto the land; or

o Remains, or permits anything to remain, on the land.

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Trespass to Personal Property

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

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Torts Against Property

o Conversion: civil side of criminal theft.o (includes embezzlement) – defendant

initially entrusted with plaintiff’s property (e.g., car, money) for a certain purpose but defendant then converts property to own use (e.g., unpermitted use of car, spending money on personal matters).

o Disparagement of Property.o Slander of Quality (trade libel).o Slander of Title (ownership).

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Fraudulent Misrepresentation

o Fraud (also called misrepresentation or deceit) – defendant’s false statement of fact made with knowledge of falsity and intent to deceive plaintiff; plaintiff’s reasonable reliance on this statement causes damage to plaintiff.

o Elements:o Misrepresentation of material fact;o Intent to induce another to rely;o Justifiable reliance by innocent party;o Damages as a result of reliance;o Causal connection.

o Fact vs. Opinion.

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Business Torts

o Wrongful interference with contractual or business relationship/wrongful interference with prospective economic advantage – defendant’s wrongful act interferes with relationship between plaintiff and 3rd party.o Occurs when:

oDefendant knows about contract between A and B;

o Intentionally induces either A or B to breach the contract; and

oDefendant benefits from breach.

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Wrongful Interference

o With a Business Relationship occurs when:o Established business relationship;o Tortfeasor, using predatory

methods, causes relationship to end; and

o Plaintiff suffers damages.

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

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Damages in a Tort Caseo Compensatory - designed to compensate the

victim for all harm caused by the tortfeasor.o Special damages – can be measured in exact terms; easiest

to prove since usually documentation and/or other clear way to show nature/amount; e.g., medical bills re personal injury case, contract re fraud case or to show loss of income.

o General damages – intangible “quality of life” damages, so harder to prove with any precision; e.g., emotional distress or pain and suffering; not available for Br/K but could be available for fraud based on contract.

o Nominal damages – small amount of money to recognize that a defendant committed a tort, but there were no compensable damages suffered by the plaintiff

o Punitive damages – assessed as punishment in addition to special and general damages; based on (1) defendant’s oppression, fraud or malice (how “bad” was the defendant?), and (2) defendant’s wealth (in order to truly punish the defendant); not available for negligence or Br/K; subject of much political debate re “tort reform” though rarely awarded; recent U.S. Supreme Court case says there should be a single-digit ratio between (1) amount of punitive damages and (2) amount of general and special damages.