Transcript Chapter 12: Torts and Strict Liability 1

Chapter 12:
Torts and Strict Liability
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©2001 West Legal Studies in Business. All Rights Reserved.
§1: Basis of Tort Law
• Doing business today involves risks, both
legal and financial.
• A tort is a civil injury designed to provide
compensation for injury to a legally
protected, tangible or intangible, interest.
• There are intentional and unintentional
(negligence) torts.
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§2: Intentional Torts
• The person committing the tort, the Tortfeasor
or Defendant, must “intend” to commit the
act. Intend means:
– Tortfeasor intended the consequences of her act;
or
– She knew with substantial certainty that certain
consequences would result.
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Types of Intentional Torts
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Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.
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Assault and Battery
• ASSAULT: Intentional, unexcused act that
creates a reasonable apprehension of fear of
immediate harmful or offensive contact.
– NO CONTACT NECESSARY
• BATTERY: Intentional or unexcused
harmful, offensive or unwelcome physical
contact.
– The completion of the Assault.
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Defenses to
Assault & Battery
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Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.
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False Imprisonment
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The Intentional confinement or restraint.
Of another person’s activities.
Without justification.
Merchants may reasonably detain customers
if there is probable cause.
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Intentional Infliction of
Emotional Distress
• An intentional act that is
• Extreme and outrageous that
• Results in severe emotional distress in
another.
• Most courts require some physical symptom
or illness.
– Case 12.1: Roach v. Stern (1998).
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Defamation
• Right to free speech is constrained by duty
we owe each other to refrain from making
false statements.
• Orally breaching this duty is slander;
• Breaching this duty in print or other audiovisual media is libel. (Today, this would
include bulletin boards, chatrooms and the
internet in general.)
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“Publication”
• Gravamen of defamation is the
“publication” of a false statement that holds
an individual up to hatred, contempt or
ridicule in the community.
• Publication requires communication to a 3rd
party.
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Defamation-Damages [1]
• Damages for Libel:
– General Damages are presumed; Plaintiff does
not have to show actual injury.
– General damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.
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Defamation-Damages [2]
• Damages for Slander.
– Rule: Plaintiff must prove “special damages”
(actual economic loss), unless it is slander per
se, which presumes damages:
» Loathsome disease;
» Business improprieties;
» A serious crime; or
» A woman who is unchaste.
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Defamation-Defenses
• Truth is generally an absolute defense.
• Privileged (or Immune) Speech:
– Absolute: judicial & legislative proceedings.
– Qualified: Employee Evaluations.
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Defamation-Public Figures
• Public figures exercise substantial
governmental power or are otherwise in the
public limelight.
• According to N.Y. Times v. Sullivan (1964)
Plaintiff must show “actual malice”: that
statement was made with either knowledge
of falsity or reckless disregard for the truth.
– See Falwell v. Hustler (1988).
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Invasion of Privacy
Every person has a fundamental right to solitude
freedom from public scrutiny. Person commits tort if
she:
– Uses a person’s name or likeness for commercial purposes
without permission;
– Intrudes into a person’s private affairs or seclusion;
– Publishes information that places a person in a false light; or
– Publishes private facts that are objectionable.
• See Emerging Trends: Privacy Online.
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Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.
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Fraud
• Fraudulent misrepresentation involves
intentional deceit:
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Misrepresentation of material fact;
Intent to induce another to rely;
Justifiable reliance by innocent party;
Damages as a result of reliance; and
Causal connection to injuries.
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Wrongful Interference [1]
• Tort that interferes with a contractual relationship.
• Occurs when:
– Defendant knows about contract between A and B;
– Intentionally induces either A or B to breach the contract;
and
– Defendant benefits from breach.
• Case 12.2: Kallok v. Medtronic (1998).
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Wrongful Interference [2]
• With a Business Relationship occurs when:
– Given an established business relationship;
– A tortfeasor, using predatory methods, causes
relationship to end; and
– Plaintiff suffers damages.
• Bona fide competitive behavior is a defense
to this tort.
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§3: Intentional Torts
to Property
• Trespass to land occurs when a person,
without permission:
– Physically enters onto, above or below the
surface of another’s land; or
– Causes anything to enter onto the land; or
– Remains, or permits anything to remain, on the
land.
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Intentional Torts to Property [2]
• Trespass to personal property is the
intentional interference with another’s use
or enjoyment of personal property without
consent or privilege.
• Conversion: wrongful taking.
• Disparagement of property: economically
injures property (slander of title or quality).
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§4: Negligence
• Tortfeasor does not intend the consequences of the
act or believes they will occur.
• Tortfeasor’s conduct merely creates a foreseeable
risk of injury to Plaintiff.
• To succeed in his claim, Plaintiff must show:
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Defendant owed Plaintiff a duty of care;
Defendant breached that duty;
Plaintiff suffered legal injury;
Defendant’s breach caused the injury.
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Duty of Care
• Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant knew
or should have known about.
• Courts use reasonable person standard
(jury) to determine whether duty exists.
• Landowners owe duties to “business
invitees” of tenants.
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Duty of Care: Foreseeability
• The consequences of an act are legally
foreseeable if they are consequences that
typically occur in the course of event.
• Whether an act is foreseeable is generally
considered a matter of fact determined by
the reasonable person standard (jury).
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Duty of Care
• Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
– Case 12.3: Martin v. Wal-Mart (1999).
• Professionals may owe higher duty of care
based on special education, skill or
intelligence. Breach of this duty is called
professional malpractice.
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Injury and Damages
• To recover, Plaintiff must show legally
recognizable injury.
• Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
• Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.
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Causation
• Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the act
must have caused the Plaintiff’s injuries.
• Causation is both:
– Causation in Fact; and
– Proximate Cause.
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Causation in Fact
• Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
• Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.
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Proximate Causation
• An act is the proximate (or legal) cause of
the injury when the causal connection
between the act and injury is strong enough
to impose liability. Foreseeability of injury
is an important factor.
• Think of proximate cause as an unbroken
chain of events.
– Case 12.4: Palsgraf v. Long Island RR (1928).
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Defenses to Negligence
• Assumption of Risk.
• Superceding Intervening Cause.
• Contributory or Comparative Negligence.
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Assumption of Risk
If Plaintiff has adequate notice and
understanding of the risks associated with an
activity, but knowingly and willingly engages
in the act anyway, Plaintiff, in the eyes of the
law, assumes the risk of injuries that fall
within the scope of the risk understood.
– Case 12.5: Crews v. Hollenbach (1999).
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Superceding Cause
• A unforeseeable, intervening act that occurs
after Defendant’s act that breaks the causal
relationship between Defendant’s act and
Plaintiff’s injury relieving Defendant of
liability.
• If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.
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Contributory Negligence [1]
• Under common law, if Plaintiff if any way caused
his injury, he was barred from recovery.
• Most states have replaced contributory negligence
with the doctrine of comparative negligence.
• The operative concept in comparative negligence
is that one cannot recover from another for any
injuries one has caused to oneself.
• “Last clear chance”: Plaintiff can recover all
damages even though she might have contributed
to her injuries.
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Comparative Negligence
• In determining liability, the amount of
damages a Plaintiff causes to herself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
• However, if Plaintiff is more than 50%
liable, she recovers nothing.
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Special Negligence Doctrines
• Res Ipsa Loquiter.
• Negligence Per Se occurs when Defendant
violates statute that causes injury to Plaintiff:
– Statute sets out a standard of care;
– Plaintiff is member of class intended to be
protected by the statute; and
– Statute is designed to prevent Plaintiff’s injury.
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Special Negligence Statutes
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“Danger Invites Rescue” Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.
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Strict Liability
• Defendant’s liability for strict liability is
without regard to:
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Fault.
Foreseeability.
Standard of Care.
Causation.
• Liability is based on creation of
extraordinary risk.
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Abnormally
Dangerous Activities
Defendant is strictly liable for an
“abnormally dangerous activity” if activity:
– Involves serious potential harm;
– Involves high degree of risk that cannot be
made safe; and
– Is not commonly performed in the community
or area.
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Other Applications of Strict
Liability
• Wild vs. Domestic Animals: Persons who
keep wild animals are strictly liable for
injuries caused by the beast. Persons who
keep domestic animals are liable if the
owner knew or should have known that
animal was dangerous.
• Product Liability (Chapter 13).
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Law on the Web
• Law Guru’s Law Library Website
• Legal Research Exercises on the Web
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Emerging Trends:
Internet Privacy
• Privacy and the Internet: Federal Trade
Commission issues final report on privacy
(May, 2000)
• Children’s Online Privacy Protection Act of
1998, (April, 2000) for websites whose
primary purpose is information from
children (13 and under).
RETURN
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