Torts

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CHAPTER 6
Torts
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Quotes of the Day

• If thou dost marry, Ill give thee this plague
  for thy dowry be thou as chaste as ice, as pure
  as snow, thou shall not escape calumny.
• Hamlet, in William Shakespeares Hamlet, Act III,
  scene 1

It is perfectly monstrous the way people go
about nowadays saying things behind ones back
that are absolutely true. Lord Henry, in Oscar
Wildes The Picture of Dorian Gray
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Tort Means Wrong
A tort is a violation of a duty imposed by civil
law.

• Defamation -- making a false statement about
  someone - written or verbal
• Negligence -- performing wrong surgery
• Interference with contract -- stealing a client
  away from a competitor
• Fraud -- offering to sell something that doesnt
  exist

Examples
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Tort vs. Criminal or Contract Law

• Criminal Law -- behavior classified as dangerous
  to society prosecuted by the government, whether
  victim wants to prosecute or not money award
  goes to the government

• Contract Law -- based on breach of an agreement
  between the two parties victim prosecutes and
  receives compensation or restitution.

• Tort Law -- based on an obligation imposed by the
  law with no agreement needed between parties
  victim prosecutes and receives compensation or
  restitution.

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Categories of Tort Law

• Intentional Torts
• Does not necessarily require an intention to harm
  the victim, only an intention to perform the act
  which caused the injury. (Intentionally throwing
  an object, but not meaning to hit anyone is a
  tort if it causes injury to someone.)
• Includes business torts, a category of torts
  perpetuated almost exclusively by business
  entities.

• Negligence and Strict Liability
• Tort injuries caused by neglect.

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Intentional Tort - Defamation

• Defamation is irresponsible speech to harm
  anothers reputation.
• Written defamation is libel.
• Verbal defamation is slander.

• There are four facts to prove to win a defamation
  suit
• The defamatory statement was actually made.
• The statement is false.
• The statement was communicated to someone other
  than the plaintiff.
• In slander cases, the plaintiff must show some
  injury that resulted from the defamation.

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Defamation (contd)

• Opinion -- to be defamation, the statement must
  be provable and not simply someones opinion.
• Vague terms in the statement usually indicate it
  is an opinion, not a provable fact.
• Extreme exaggerations are usually not taken as
  fact.
• Public Personalities
• Includes public officials (police and
  politicians) and public figures (movie stars and
  other celebrities)
• Public personalities have a harder time winning a
  defamation case because they have to prove that
  the defendant acted with actual malice.

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Defamation (contd)

• Privilege
• Defendants receive extra protection in special
  cases.
• In courtrooms and legislatures, speakers have
  absolute privilege. They may speak freely, as
  long as it is true.
• When information is legitimately needed, the
  speaker giving it has qualified privilege. This
  may happen when someone reports a suspected
  criminal act.

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Intentional Tort - False Imprisonment
False imprisonment is the restraint of someone
against their will and without reasonable cause.

• An employer who doesnt let a sick employee go
  home might be guilty of false imprisonment.
• If the police detain a person with no reason to
  suspect him of any crime, it could be false
  imprisonment.
• In general, a store may detain a person suspected
  of shoplifting if there is a reasonable basis for
  the charge and the detention is done reasonably
  (in private and for a reasonable time).

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Intentional Tort --
Intentional Infliction of Emotional Distress

• Historically, no recovery was allowed if the
  injury was only emotional instead of physical.
• Today, most courts allow a plaintiff to recover
  from a defendant who intentionally causes
  emotional injury.
• Behavior causing injury must be extreme and
  outrageous.
• Must have caused serious emotional harm.
• Some courts allow recovery for emotional injury
  caused by negligent behavior.

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Intentional Tort --
Battery and Assault

• Battery is a touching of another person in a way
  that is unwanted or offensive.
• The touch does not have to hurt the victim --
  sexual touching that is offensive, but not
  painful, is battery.
• An intentional action that does hurt someone may
  be battery even if the injury is unintentional.

• Assault is an action that causes the victim to
  fear an imminent battery.
• Assault can occur without the battery ever
  happening.
• Pulling a gun on someone -- even if it is
  unloaded -- is usually considered assault.

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Compensatory Damages

• A jury may award compensatory damages -- payment
  for injury --to a plaintiff who prevails in a
  civil suit.
• The Single Recovery Principle mandates that the
  court must decide all damages -- past, present
  and future -- at one time and settle the matter
  completely.
• Damages may include money for three purposes
• to restore any loss (such as medical expenses)
  caused by the illegal action
• to restore lost wages if the injury kept the
  defendant from working
• to compensate for pain and suffering

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Punitive Damages

• While the purpose of compensatory damages is to
  help the victim recover what was lost, punitive
  damages are intended to punish the guilty party.
• Intended for conduct that is outrageous and
  extreme
• Designed to make an example out of the
  defendant
• Should deter others from doing same conduct and
  prevent this defendant from repeating actions
• Sometimes punitive damage awards are huge, but in
  most cases they are close to or less than the
  amount of compensatory damages awarded.

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Business Torts
Intentional torts that occur almost exclusively
in a business setting are called business torts.

• Interference with business relations
• Interference with a contract
• Interference with a prospective advantage
• The rights to privacy and publicity
• Intrusion
• Disclosure of embarrassing private facts
• False light
• Commercial exploitation

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Interference with Business Relations

• Interference with a contract exists if the
  plaintiff can prove these elements
• There was a contract between the plaintiff and a
  third party and the defendant knew of the
  contract.
• The defendant induced the third party to breach
  the contract or make performance impossible.
• There was injury to the plaintiff.

• The defendant can justify the interference if he
  can prove one or more of these elements
• He was protecting an existing economic interest.
• He was protecting a public interest.
• The existing contract could be terminated at will
  by either party.

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Interference with Business Relations

• Interference with prospective advantage exists
• when there is a relationship which gives the
  plaintiff a reasonable expectation of economic
  advantage, even though no contract exists
• when the defendant maliciously interferes and
  prevents the relationship from developing

• The defendant can justify the interference if he
  can prove one or more of these elements
• He was protecting an existing economic interest
• He was protecting a public interest
• He was simply competing for the same business in
  an allowable business situation

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Privacy and Publicity

• Intrusion (prying into someones private life) is
  a tort if a reasonable person would find it
  offensive.
• Examples wiretapping, stalking, peeping
• Would this include buying your personal
  information from your credit card company?

• Disclosure of Embarrassing Private Facts is when
  something extremely embarrassing is made public
  with no need for the public to know.

• False Light is when something false and offensive
  is told about someone.

• Commercial Exploitation is when a persons image
  or voice is used for commercial purposes without
  that persons permission.

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Negligence --
The Unintentional Tort
To win a negligence case, the plaintiff must
prove that the defendant failed in five areas

• Duty of due care -- there must be a duty owed to
  the plaintiff.
• Breach -- duty must be breached.
• Factual cause -- the injury must have been caused
  by the defendants actions.
• Foreseeable harm -- it must have been foreseeable
  that the action would cause this kind of harm.
• Injury -- the plaintiff must have been hurt.

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Duty of Due Care

• If a defendant could have foreseen injury to a
  particular person, she has a duty to him.
• In some states, a social host serving alcohol to
  an adult may be found liable for harm done by the
  person drinking the alcohol.
• Many states have a dram act, making liquor
  stores, bars and restaurants liable for serving
  drinks to intoxicated customers who later cause
  harm.

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Breach of Duty

• A defendant breaches his duty of due care by
  failing to behave the way a reasonable person
  would under similar circumstances.

• Companies and Employees -- courts have found
  companies liable for hiring and retaining
  employees known to be violent, when those
  employees later injured co-workers.

• Negligence per se -- in special cases,
  legislatures set a minimum standard for certain
  groups of people (esp. children). When a
  violation of that statute hurts a member of that
  group, the duty is breached.

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Factual Cause Foreseeable Harm

• Factual Cause -- if the defendants breach
  ultimately led to the injury, he is liable.
• Does not have to be the immediate cause of
  injury, but must be the first in the direct line.

• Foreseeable Harm -- to be liable, this type of
  harm must have been foreseeable.
• The defendant does not have to know exactly what
  would happen -- just the type of event.

• Res Ipsa Loquitur -- in a few cases, the
  defendant must prove he was NOT negligent or the
  facts imply that his negligence caused the injury.

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Ex Factual Cause Foreseeable Harm
DO NOT CLICK! Let slide build on its own.
Mechanic fails to fix customers brakes, which
causes...
Mechanic fails to fix customers brakes, which
causes...
Mechanic fails to fix customers brakes, which
causes...
Car accident, car hitting bicyclist
Mechanic is liable to cyclist
Factual cause and foreseeable type of injury
Factual cause, but no foreseeable type of injury
Car accident, car hitting bicyclist
Noise from accident startles someone who falls
out a window
Mechanic is NOT liable for falling person
Car accident, car does not hit bicyclist
Mechanic is NOT liable to cyclist
Bicyclist hits pothole and crashes
No factual cause
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Injury Damages

• Injury -- plaintiff must show genuine injury
• Future injury may be compensated, but must be
  determined at the time of trial.
• Damages -- are usually compensatory, designed to
  restore what was lost. In unusual cases, they
  may be punitive.

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Negligence

• Contributory Negligence
• In a few states, if the plaintiff is AT ALL
  negligent, he cannot recover damages from the
  defendant.

• Comparative Negligence
• In most states, if the plaintiff is negligent, a
  percentage of negligence is applied to both the
  defendant and the plaintiff.
• The plaintiff can recover from the defendant to
  the percentage that the defendant is negligent.
• In some cases, a plaintiff found to be more than
  50 negligent cannot recover at all.

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Strict Liability
Some activities are so dangerous that the law
imposes a high burden on them. This is called
strict liability.

• Defective Products-- may incur strict liability.
• Ultrahazardous Activities -- defendants are
  virtually always held liable for harm.
• What is ultrahazardous? Includes using harmful
  chemicals, explosives and keeping wild animals.
• Plaintiff does not have to prove breach of duty
  or foreseeable harm.
• Comparative negligence does not apply --
  defendant engaging in ultrahazardous activity is
  wholly liable.

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A wide variety of intended acts can have
unintended consequences. With intentional torts,
the defendant may not have intended to harm the
plaintiff, but her deliberate actions have
resulted in the alleged injury. Anticipating the
harm that can result enables us to consider
carefully the actions themselves.
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