Transcript Tort Law
TORT LAW Introduction THREE TYPES OF TORTS Intentional Negligence Strict Liability RELATIONSHIP BETWEEN TORTS AND CONTRACTS Contract law marked by a voluntary relationship Three key freedoms of contract law Free to choose partner Free to choose terms Free not to contract Torts Mandatory civil obligations Cannot get out of them “Tort” means wrong in French language Tort is not a pastry CIVIL ACTIONS What is a civil action? Can you think of any examples? Definition of a civil action: “An action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation” Compare to the definition for a criminal action: “An action instituted by the government to punish offenses against the public” INTENTIONAL TORTS Assault Battery False Imprisonment Misappropriation of Right to Publicity Invasion of Right of Privacy Defamation Disparagement of Competitor product Fraud and deceit Infliction of emotional distress Malicious prosecution Interference with prospective economic benefit COMMON DENOMINATOR INTENTIONAL TORTS Intent of wrongdoer Wrongdoer must intend to cause the act that resulted in injury Note the wrongdoer need not intend the actual result [harm] to the person injured Intended act causes the harm ASSAULT Threat of immediate physical harm or offensive contact Elements The threat must be made Person must reasonably believe that imminent harm takes place Actual injury or contact is not necessary Imminent FACT SCENARIO X owes Y 500 EUR. “Y telephones X and says if you don’t pay the 500 EUR by next Saturday, I will kill you” Y is known as violent person X is afraid Has Y committed an assault? ANSWER: NO The facts satisfy all elements of an assault except for the element of “imminence”. Imminence means the assault is about to happen “now” Since the threat was remote in time, an assault did not occur as all elements were unfulfilled However I have probably committed a crime called “terroristic threats” The legal consequence would vary from system to system BATTERY Unauthorised harmful, offensive or physical contact Elements Unauthorised Touching Harmful or Offensive Direct or Indirect physical contact Injury Intent is predicated on causing an act to happen Motive is irrelevant [For most “torts”, simple intent is enough] FACT SCENARIO A beautiful Princess is sleeping A Prince kisses her while she is asleep Has Prince committed Battery How would you analyse Personal integrity of one’s body Is consciousness necessary? ANALYSIS The Princess could not have given consent as she was asleep Therefore the “kiss” was an “non-consensual touching” The next question Was the “kiss” – harmful or offensive This element of the Tort is a matter of ambiguity Harmful or Offensive generally is not measured in terms of the subjective opinion/judgment of the individual, but upon the standard of a “reasonable person” Q. Would a reasonable person have been offended by a kiss given while asleep? This would be a factual matter. Injury Refers back to harm or offense HARMFUL OR OFFENSIVE In a crowded tram, I tap you on shoulder and say, please move so I can get out at next stop You scream and are outraged that I touched you Have I committed a Battery? ANSWER: NO In an urban society, inadvertent touching must be permitted without legal sanction It is part of everyday life in a city where a certain level of “touching” accidental or otherwise must be tolerated for society to function However, consider a twist on the case: In wanting to exit the tram, I do not touch you on the shoulder or arm, but on a private section of the body I have committed a battery and probably a criminal action such as sexual assault TRANSFERRED INTENT A person acts to harm one person but ends up harming another Intent is transferred Easy example I fire a gun wanting to hit a person named “Ahto Orav” and instead I hit his wife I have committed a battery My intent to shoot my target is transferred to the victim injured by my action of firing the gun FALSE IMPRISONMENT Intentional Restraint or confinement of another person No justification or lack of authority No consent by person For merchants comes into play when merchant thinks a shopper has stolen merchandise TORT OF APPROPRIATION Appropriation of living person’s image or name to make a profit [commercial use] without that person’s consent Advertiser uses photograph of Angelina Jolie to sell perfume without her consent Jolie can get damages for any profits the advertiser made, plus get an injunction [order to stop the publication] WHAT ABOUT PAPARAZZI They take photos of Celebrities? Do they commit the Tort of misappropriation? Explain INVASION OF THE RIGHT OF PRIVACY Intrusion upon person’s seclusion Example of Intrusion situation Set up a camera with a telescopic lens to view person while in a private E.g., photographing a person while in his home or on his private property Public disclosure of private fact Certain facts are protected, e.g. personal finances, except for politicians, in some municipal situations Other facts are not: e.g. matters of public record, ownership of Land, juridical person DEFAMATION Protects attack against person’s reputation Elements Statement of an untrue fact Person making statement knew it was untrue [specific intent designed to injure] Publication In writing defamation is called “libel” Truth is an absolute defence Read about Enimem Numerous cases have been brought against this “Rap Star” based on his lyrics PUBLIC FIGURES Public figures cannot recover for defamation unless statement is made with “actual malice” N.Y Times v Sullivan Note this is an American concept Premised on freedom of expression, rights of the press, and diminished protection afforded public figures “Actual malice” means deliberate false statement or one made with reckless disregard for the truth [E.g., NY Times fails to fact check story] Public figures include politicians, but also movie stars, sport celebrities and other famous people TRADE LIBEL Object: Protect business firm reputation Elements [Competitor] Untrue Statement Published statement [3rd party] Knew statement was untrue Maliciously – intent to injure But note If claims are true, then there is no libel INFLICTION OF EMOTIONAL STRESS Requires an outrageous act or conduct Intentional acct Out of bounds of all decency Actual severe mental distress Often distress must manifest physical symptom E.g. A is driving recklessly and hits B and kills him C, the mother of B, witnesses the death and freaks out C may recover for intentional infliction of emotional distress against A Very unlikely to find A NEGLIGENCE Four Elements Duty of Care Breach of Duty of Care Causation [Must be proximate cause of injury] Damage/injury DUTY OF CARE Established by juridical authority Objective test: the reasonable person What would a reasonable person do under like circumstances Determined often by what is “foreseeable” The Learned Hand formula 159 F. 2d 169 Duty is result of 3 variables The probability of event happening The gravity of the resulting injury if the event happens The burden of adequate precautions Algebraic expression Probability = P, Injury = L, Burden = B Liability predicated on whether B < L*P Those with expertise judges against higher standard BREACH OF DUTY Person fails to act as reasonable person would under like circumstances as established by juridical authority Failure to exercise that care is breach of the duty of care INJURY Person must suffer an injury to person or property Damages recoverable turn on effect on person’s life Damages recoverable are money damages CAUSATION Cause in fact or actual cause of injury The test is “but for” the actions of the wrongdoer the innocent person would not have been hurt PROXIMATE CAUSE Nebulous concept derived from a famous case Palzgraf Tries to draw a line in chain of events where to stop liability A person is not liable for all damages set in motion by the breach SPECIFIC DOCTRINES Professional malpractice Negligent infliction of emotional distress DEFENCES Intervening event Assumption of the risk Contributory negligence Last clear chance rule Comparative negligence STRICT LIABILITY Switch LIABILITY WITHOUT FAULT Injured party does not prove fault Tort applies mainly to makers and sellers/lessors of goods, not services, introduced into the stream of commerce All parties in distribution scheme are liable Note: no privity, as required in contract law DIAGRAM M D R C Negligence Strict Liability DEFECTIVE PRODUCT Defect in Manufacture Defect in Design Failure to Warn Defect in Packaging Faire to Provide Instructions DEFENCES Generally known dangers Assumption of risk [rarely works] Misuse of the product Correction of product defect E.g., Recall User ignores notice and fails to have product repaired PUNITIVE DAMAGES Must prove wrongdoer’s conduct was committed with intent or reckless disregard for human life