Torts

Chapter 5

Terminology

• Intentional tort – a wrongful act that was knowingly committed

• Tortfeasor – one who commits a tort• Assault – a combination of actions and words

intended to make another person fearful of immediate physical harm; a reasonably believable threat

• Battery – the unconsented to and intentional touching of another person

Assault and Battery

• No need to show motive just that it was intentional• Objective threat standard – why not subjective?• Defenses:

– Consent

– Self defense

– Defense of others

– Defense of property

– These come with a reasonableness standard

In Class Problem

• Jane and Dan have been dating for two years. Dan has a bad temper and often threatens Jane. One day he holds a clenched fist in her face and says “I oughta.” As he says the words, Jane’s brother Bruno walks in and seeing what is happening knocks Dan out with one punch?– Of what crimes are Dan guilty?– What about Bruno?

More Torts

• False Imprisonment– The intentional confinement or restraint of

another person’s activities without justification– Cannot have an escape– May be detained by threat of physical harm but

the threat must be in the present• E.g. I will beat you up the next time I see you if you

leave is not false imprisonment

False Imprisonment

• Store owners often want to detain shoplifters– May be false imprisonment– Some states have passed laws allowing shop

keepers to detain people they suspect of shoplifting if the shop keeper has reasonable cause and does not keep the person for an unreasonable amount of time.

Infliction of Emotional Distress

• In most jurisdictions you have to prove some type of physical pain or suffering

• Behavior has to be outrageous and intentional

• Why the second requirement?

• Under restatement you can be liable to a third person if they are harmed

Defamation

• Wrongfully hurting a person’s good reputation– Slander – oral defamation– Libel – written statement

• Common law has four false utterances which require no proof of being actionable– Utterance that an other has a communicable disease– Statement that another has committed an impropriety in

business– Statement that another has committed a serious crime– A statement that an unmarried woman is unchaste

Defamation

• Has to be publicized– Writing a letter won’t be enough– Dictating a letter may be enough– Any conversation in which a third person

overhears it may be enough to make it public

• Defenses– Truth– Privileged statements – absolute or qualified

Invasion of the right of privacy

• Four major acts constitute a violation– The use of a person’s name, picture, other other

likeness for commercial purposes without permission

– Intrusion into another’s affairs

– Publication of information that places a person in a false light

– Public disclosure of private facts about a person that an ordinary person would find objectionable

Appropriation

• The use of another person’s name or likeness

• Example Vanna White

Misrepresentation

• Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth

• Intent to induce another to rely on the misrepresentation

• Justifiable reliance by the deceived party• Damages suffered as result of reliance• Casual connection between the misrep and the

injury

Wrongful Interference

• 3 elements that must exist– A valid enforceable contract must exist between

the two parties– A third party must know the contract exists– The third party must intentionally cause either

of the two parties to breach the contract

Wrongful interference Cont.

• Can engage in competitive behavior but not behavior that is predatory

• Critical question are you soliciting customers or trying to get customers that are interested in only your competitor

• Defenses– Interference must be justifiable or permissable

Intentional Torts Against Property

• Trespass – occurs when a person without permission enters above or below the surface or causes something to enter above or below the surface of another’s property– Normally you are not liable for the injuries of

trespassers• This is changing and a reasonable care standard is

being established• Attractive nuisance: sand pile that attracts children

Problem 5-3

Defenses to Trespass

• Invited

• Licensee• Walmart Case – if defendant store has actual or

constructive notice of dangerous situation they owe duty of care– However if self service store then they must anticipate

the situation

• Problem 4-2

Trespass to personal property

• The taking or interfering with another’s personal property– Exceptions provided by statute (artisans lien)

• Conversion – the unlawful taking and putting to use of another’s personal property

• Defenses– Necessity– Superior right to property

Disparagement of Property

• Slander of quality (Trade Slander)– Must show proximate cause such as a person

not buying because of the slander– Must prove that there were damages– Oprah Winfrey

• Slander of Title– X publishes false statement’s about Y’s title to

land and therefore no one will buy

Negligence

• Tort of negligence occurs when someone is injured because of someone’s failure to abide by a duty of care

• Four questions– Did the defendant’s owe a duty of care

– Did the defendant breach that duty

– Did the plaintiff suffer a recognizable injury

– Did the defendant’s breach cause the plaintiff’s injury

Duty of Care

• Usually involves a reasonable person standard

• Definition: the duty of all persons established by tort law to exercise a reasonable amount of care in dealings with others.

Reasonable Care

• Do you have to come to someone’s aid?• What about landowners?

– Is there a different standard for when someone is a trespasser?

– What if you are a business owner?

Negligence

• 5-1

Duty of Professionals

• Duty of care takes into consideration minimum standards of competence– Accountants cannot say I did not know that

principle of accounting existed

• Malpractice is often the resulting claim

Injury Requirement and Damages

• Injury has to result for damages to be awarded– Damages may be compensatory or punitive

• Have to also prove causation– Causation in fact – act or omission caused the

damage• “But for” test

– Proximate Cause = strong enough connection to justify holding the defendant responsible

Proximate Cause

• Two standards– 1) Reasonably foreseeable consequence– 2) Responsible for all consequences no matter

how remote

• Problem 5-2

Special Negligence Standards

• Res Ispa Loquitor– The facts speak for themselves– Example: can’t move knee after a knee surgery– Defendant must have controlled instrumentality and

must be an injury that would not have happened but for negligence

• Negligence Per Se– P must prove three things

• That they were owed a duty of care under the statute• That the statute clearly sets out the conduct required by the

defendant• Statute was designed to prevent the type of injury inflicted

Defenses to Negligence

• Assumption of Risk– Plaintiff entered into the situation knowing the

risks• Need to show 1) knowledge of the risk 2)

assumption of risk which can be inferred from conduct

• Exceptions are employees and those acting in emergency situations

– Superseding Cause – something that breaks the chain of causation.

Contributory Negligence

• You have to exercise reasonable care in watching out for dangerous situations

• Under common law any contributory negligence would prevent recovery by Plaintiff

• In some states contributory negligence is not a bar to recovery if there is a “last clear chance” for the defendant to avoid the harm

Comparative Negligence

• Most states now allow for comparative negligence

• In these cases the court looks at the fault of the defendant and compares is the fault of the plaintiff and if defendant is more at fault they have to pay up

• Some states use an 80/20 rule

Comparative Fault

• Contributory negligence allowed even if strict liability

• 50% limit

• Have to name defendants or lose claim against them

• Defendants more than 50% at fault are jointly liable for all economic damages

Other Special Standards

• “Danger Invites Rescue” – just because a third party was negligent does not relieve the defendant of liability if he created the danger that invited rescue by a third party

• Good Samaritan Laws: protect good samaritans• Dram Shop Acts: Cannot serve those who are

intoxicated or you may be liable for their damages– Social hosts may be included