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