UNIT 2 THE LAW OF TORTS

In 1932, May Donoghue made legal history. She didn?t mean to. All she wanted was a nice drink of Ginger Beer on a warm August night. Unfortunately her chosen refreshment at the Wellmeadow Cafe in Paisley, Scotland came with a free decomposed snail. The snail enhanced beverage was manufactured by David Stevenson of Paisley. Snails were not a normal part of his range of aerated waters. And Mrs Donoghue came over quite ill, requiring immediate medical attention. She sought £500 restitution and the case of Donoghue (a pauper) v Stevenson eventually found itself before the House of Lords.

If Ms Donoghue?s beverage were served in a clear glass bottle, a legal rule called caveat emptor (buyer beware) would have kicked into to save Mr Stevenson. But her bottle was opaque and it was impossible to see the snail before drinking the putrefied contents. The result was the birth of new legal principle derived from the Golden Rule (love thy neighbor as you love yourself ? the rule is common to most religions). Their Lordships said ?

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

TORT

Book definition: private wrong committed by one person against another

A funny word: In French (where it originated) a tort means “to wrong someone.”

Interference with another’s rights either by an intentional act or through negligence TORT LAW IS PART OF CIVIL (NONCRIMINAL) LAW IT CONCERNS LAWSUITS (NOT PROSECUTIONS.)

TORT THINK PERSONAL INJURY SOMEONE HAS SUFFERED AN INJURY, WHETHER: 1. INTENTIONAL ACT 2. CARELESSNESS 3. NEGLIGENCE

FIVE AREAS OF TORT LAW

A.

B.

C.

D.

E.

INTENTIONAL NEGLIGENCE (personal injury) STRICT LIABILITY (hazardous) TRUE LEGAL ACCIDENT (no fault) Others: Nuisance, fraud, invasion of privacy, defamation

INTENTIONAL TORT 1

st

area of tort law 1. Must prove INTENT to harm someone OR 2. Person (tortfeasor) knew with substantial certainty that what they were doing would harm someone.

FYI

Examples (battery): punches, kicks, stabbing and shooting, pulling a chair out just as someone is sitting down, pushing someone off a ride, poisoning, an unwanted hug or kiss

All examples of possible tort claims

Ziggy locks his shop at the end of the day. Unknown to Ziggy, Moondust was in the restroom. As a result, Moondust could not exit the store until Ziggy returned the next day. Has Ziggy committed an intentional tort? Unintentional tort?

Has Ziggy committed a false imprisonment? Why or why not?

Intentional Tort cont.

TAKE THE VICTIM AS YOU FIND THEM

1. Did your actions make a condition worse?

2. If so, you may be liable for almost all the consequences.

Unintentional Tort

NEGLIGENCE

Second area of Tort Law Unintentional Tort —caused by carelessness Failure to exercise reasonable care under the circumstances so that a foreseeable risk to the other person is created resulting in an injury to the plaintiff.

Unintentional Tort

STRICT LIABILITY

Third area of Tort Law Unintentional Tort — Injury caused by individual’s participation in

ultrahazardous

activity.

FEBRUARY 2009

Nash lost both her hands in the attack, and only recently did she learn she'll no longer be able to see. She now drinks her meals "with a straw through a small hole where her mouth used to be March 2009 The $50-million lawsuit alleges that Herold "possessed a wild animal which she knew had exhibited aggressive behavior to one or more other persons and failed to take sufficient actions to safeguard third parties from the wild animal" and accuses her of in effect causing the attack through her own negligence. May 2010 Sandra Herold dies from ruptured aortic aneurysm. Sandra Herold’s attorney, Joseph Gerardi of Stamford, believes that his client and the chimp’s owner is not at all responsible for the attack. He said that Sandra Herold should not be held liable for the attack. “I believe it was a tragic accident,” he said.

TRUE LEGAL ACCIDENT

Rare Situation Accident happens – no fault of anyone.

BATTERY

Definition — Unlawful, unprivileged contact (touching) of another person

Intentional Tort cont.

Gist word of battery – contact

Every tort has a gist word (key word)

Intentional Tort cont.

ASSAULT

DEFINITION: threatening to strike or harm with a weapon or physical movement, resulting in fear.

GIST WORD: Fear and apprehension

Intentional Tort cont.

FALSE IMPRISONMENT

DEFINITION: Unlawful confinement of a person whether in prison or otherwise.

example: false arrest GIST WORD: Confinement

Intentional Tort cont.

THREE ELEMENTS MUST BE PRESENT TO CLAIM FALSE IMPRISONMENT

1. IS THERE CONFINEMENT?

2. IS THERE KNOWLEDGE OF THE CONFINEMENT?

3. IS THERE NO REASONABLE MEANS OF ESCAPE?

Intentional Tort cont.

INFLICTION OF MENTAL DISTRESS

DEFINITION: Extreme and outrageous conduct, intentional or recklessly causing emotional or mental suffering to others. Could be charged with negligent infliction of mental distress.

GIST WORDS: Extreme and Outrageous (Ex: If I know you are petrified of snakes and I leave one in your desk--that may be grounds for a suit based on intentional infliction of emotional/mental distress.)

Intentional Tort cont.

TRESPASS TO PROPERTY

DEFINITION: Wrongful injury or intrusion onto another’s property.

GIST WORD: Intrusion

(EX: If a neighbor builds a fence but it happens to sit on part of your property, that’s a trespass, even if he did it unintentionally—referred to as trespass to land.)

TRESPASS TO CHATTELS

DEFINITION: Minor interference with someone else's property/possessions (taking it, destroying it, barring owner’s access to it) CHATTELS: Personal Property EX: The mechanic at the

.

car, has an accident along the way, and returns to the garage with your “wrecked” car.

CONVERSION

Unauthorized taking or borrowing of personal property of another for the use of the taker.

Major interference with another’s property

DEFENSES TO INTENTIONAL TORT

CONSENT – permission SELF-DEFENSE – right to defend self with as much force as used against you.

DEFENSE OF OTHERS – knowing circumstances, come to another’s aid DEFENSE OF PROPERTY – defense of what is yours PRIVATE/PUBLIC NECESSITY – Public – for the greater good Private – damage to save one’s self SOUND SIMILAR TO DEFENSES USED IN CRIMES???

NUISANCE

DEFINITION: Anything that interferes with your enjoyment of life or property.

ADDITIONAL TORTS

ADDITIONAL TORTS cont.

INVASION OF RIGHT TO PRIVACY

DEFINITION: Interference with a person’s right to be left alone: a.

b.

c.

Unwarranted appropriation or exploitation of one’s personality.

Publicizing of private affair with which the public has no legitimate concern.

Wrongful intrusion into one’s private activities, which would be highly offensive to a reasonable person.

MARCH 2006 March Playboy Issue (2006) Jessica Alba is suing Playboy for unauthorized use of her image for commercial purposes.

AUGUST 2007 Miss New Jersey Says She's Being Blackmailed Threats Say They'll Make Personal Photos Public

Amy Polumbo's lawyer said the pictures were probably posted years ago on a private Internet site. He's describing them as not that bad.

ADDITIONAL TORTS cont.

DEFENSES

1. Consent to invasion of right to privacy 2. Qualified Privilege – invasion of privacy granted to teachers (as long as about school and to parents) 3. Absolute Privilege – granted to Congressmen in Congress

FRAUD

INTENTIONAL MISREPRESENTATION

ADDITIONAL TORTS cont.

FRAUD?

 A salesman lies about his name, eye color, place of birth and family. He sells you a product and is truthful about the product he sells.

 WAS THERE INTENTIONAL MISREPRESENTATION?

ADDITIONAL TORTS cont.

DEFAMATION OF CHARACTER

Wrongful act of injuring another’s reputation by making false statements

TYPES OF DEFAMATION

SLANDER – spoken words LIBEL – written words/pictures/ broadcast over radio or TV A case of poison E-mail? (Sidney Blumenthal sues America Online for libel and slander) | From: U.S. News & World Report | Date: September 8, 1997 | Author: Simons, John White House aide Sidney Blumenthal last week filed a lawsuit alleging libel, slander, and invasion of privacy, seeking $30 million from America Online and Internet gossip reporter Matt Drudge. The case charges that last month, Drudge erroneously labeled Blumenthal a wife abuser in the Drudge Report, a daily dispatch transmitted on AOL. Drudge later apologized, but Blumenthal wasn't satisfied….

REQUIREMENTS FOR DEFAMATION

1. Plaintiff must show that the defendant communicated a defamatory statement about plaintiff 2. 2. The plaintiff must show that the statement was published or communicated to a third party.

3. Plaintiff must show that the communication was about the plaintiff and that third receiving the communication could identify the plaintiff as the subject of the defamatory message .

4. Plaintiff must show communication injured plaintiff’s reputation.

Time Limits for Filing a Defamation Lawsuit: State Statutes of Limitation - Accidents and Injuries HOW LONG IN OHIO TO FILE A DEFAMATION LAWSUIT?

DEFENSES TO DEFAMATION

1. CONSENT to say what was said 2. TRUTH in what was said 3. ABSOLUTE PRIVILEGE or QUALIFIED to say what was said

DIFFERENCE BETWEEN PUBLIC VS. PRIVATE PERSON

1. Must show actual malice for the public person 2. Statements made knowing it was false with reckless disregard for its falsity PUBLIC PERSON – (politicians, judges, entertainers, athletes) --must show more damage to their reputation than average person to win suit PRIVATE PERSON – YOU AND ME ACTUAL MALICE – Statements made either with knowledge it was false or with reckless disregard of whether true or false.

FYI

INNOCENT CONSTRUCTION RULE

If a statement is reasonably susceptible of both a defamatory and an innocent meaning, the innocent meaning is to be adopted as a matter of law

NEGLIGENCE

Failure to exercise reasonable care under the circumstances so that a foreseeable risk to another person is created resulting in an injury to the plaintiff.

2007--Woman dies in ER lobby as 911 refuses to help UPDATE: 2008--$45M lawsuit by family Has not gone to trial yet

EDITH RODRIGUEZ, 43

4-STEP MODEL TO UNDERSTANDING NEGLIGENCE

1. WAS THERE DUTY? –duty not to hurt a person 2. DID YOU BREACH THAT DUTY? – broken rule 3. WAS THERE CAUSATION? – point the finger 4. WERE THERE DAMAGES? – how responsible are you?

EXAMPLE: A colleague from your previous employer publishes false statements about you to your friends Gist word: Causation —act that produces an effect

Police Investigate Response To 911 Call Young Boy's Attempt To Save His Mother Fails POSTED: 6:11 pm EDT April 7, 2006 Detroit police are investigating a 911 call that hurt rather than benefited a mother and her child.

Robert Turner, 5, called 911 when his mother, who suffered from a heart condition, collapsed in their Detroit home. When a 911 operator answered the call, she didn't take Robert's claims seriously.

Operator: "Where's the grown-ups at?" Robert: Inaudible Operator: “Now put her on the phone before I send the police out there to knock on the door and you gonna be in trouble." Operators told Local 4 they take nearly 2 million 911 calls every year, and nearly 40 percent of them are not emergencies.

UPDATE: A lawsuit has been filed against two Detroit police dispatchers who refused to send help for Robert Turner's dying mother. The family is asking for more than a million dollars.

ANALYSIS OF DUTY REQUIREMENTS

Must be to a foreseeable plaintiff Was there a reasonable standard of care?

Reasonable Person Standard--Provided reasonable standard of care under normal circumstances Horrendous Circumstances – choosing who should live or die

NEGLIGENCE CONTINUED

HOW DO YOU COMPARE CHILDREN WITH NEGLIGENCE?

Children under 4 incapable of negligence Children over 4 – compare with similar attributes

A door with a bullet hole in Landover, Md., after shooting that left 5-year-old Kimberly Brice dead and her 7-year-old brother injured.

Boy, 4, 'Sorry' He Shot Siblings LANDOVER, Md. , Sept. 29, 2003 (AP)

A 4-year-old boy who shot and killed his sister and wounded his brother understands what he has done, his father said. He knows," Gregory Thigpen Sr. told The Washington Post for a story in Monday's editions. "He's very remorseful. He was apologizing to me." Da'Joun Brice was crying when police arrived Saturday after the boy picked up a .45 caliber semiautomatic handgun and pulled the trigger, shooting 5-year-old Kimberly Brice and 7-year-old Gregory Thigpen Jr. "He kept asking if everybody was okay," said spokeswoman Cpl. Diane Richardson. An older sister, 10-year-old Katina Brice, had gotten Kimberly and Gregory out of the home when she saw Da'Joun with the gun, but the bullet pierced the front door and tore through Gregory's back and hit Kimberly's upper body, police said. The 4-year-old cannot be held criminally responsible, but charges may be filed against the parents or others who left the gun within reach, police said. The mother, Jennifer Brice, also could face charges for leaving the children at home without adult supervision. Thigpen said he was working when the shooting occurred. He declined to say where Brice was. Brice is not married to Thigpen but lives with him and his brother.

PROFESSIONALS – Doctors judged by average doctor in community Specialists judged by national standards COMMON CARRIERS – Bus INNKEEPERS - Hotel

Slight negligence makes them libel

GUEST STATUTES - non-paying guests Host/Hostessmust show complete reckless disregard for guest safety.

Analysis of Causation Requirements Actual Causation But for the defendant’s negligent conduct, would the injury have occurred?

Proximate Causation (legal causation ) Trier of fact can let a negligent defendant off, whose negligence actually caused the injury based on lack of foreseeability.

Negligence of Owners and Occupiers of Land

– standard of care to apply.

Undiscovered Trespasser

– no basic duty of care

Discovered Trespasser Licensee

– give adequate warning – Salesman – responsible for concealed damages

Invited Guests

– responsible for concealed dangers and duty of reasonable inspection.

Attractive nuisance

– swimming pools, old railroad cars, refrigerators —you are responsible if an injury occurs.

STRICT LIABILITY No amount of care will eliminate risk and liability if someone is hurt.

ANIMALS – dog bite EXOTIC PETS – crocodile ULTRA HAZARDOUS ACTIVITIES – dynamite manufacturer PRODUCT LIABILITY: (With products, must prove that the product was not safe for its intended use and that he was injured by it.

 

Outrageous lawsuits

OUTRAGEOUS LAWSUIT: In October, 2000, a Knoxville (Tenn.) woman sued McDonald's, seeking $110,000 in damages, claiming she was disfigured by a scalding pickle that fell from her hamburger. She claimed that the pickle was unreasonably dangerous. The woman's husband also sued, for $15,000, claiming he had been deprived of his wife's companionship during the ordeal. What happened?

A. The couple won their case, just like that lady with the coffee in her lap B. The judge tossed the couple out of court after upbraiding them for their frivolous lawsuit C. McDonald's settled to avoid a lengthy trial D. None of the above

Defenses to Negligence

Contributory Negligence

– if you show both parties contributed to injury, no one collects

Comparative Negligence

– plaintiff’s recover reduced by % of own negligence (if 51% at fault, cannot collect damages)

Assumption of Risk

– assumed risk of getting hurt so should not collect

Last Clear Chance Doctrine

– chance to avoid accident and don’t—you are held solely responsible