The Common Law

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Tort Law
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Tort Means Wrong
A tort is a violation of a duty imposed by civil
law. E.g.,

• 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

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Categories of Tort Law Based on Defendants
State of Mind

• 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.)

• Negligence and Strict Liability
• Unintentional torts

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Categories of Tort LawBased on Rights at Stake
Infringements of personal rights (assault,
battery, false imprisonment, defamation,
intentional infliction of emotional distress and
invasion of privacy) vs. Infringements of
business or property rights (trespass, nuisance,
fraud, conversion, product disparagement and
interference with contract)
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Businesses and Tort Liability Why should
businesspeople (or business students) care about
personal torts? What do they have to do with
business? Businesses can be vicariously liable
for torts committed by their employees during the
course of their employment, under the doctrine of
respondeat superior.
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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 and to deter others

• Sometimes punitive damage awards are huge, but in
  most cases they are close to or less than the
  amount of compensatory damages awarded.
• BMW v. Gore

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Intentional Torts against Persons Assault and
Battery

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

• 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.

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Intentional Torts Against Persons 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 Infliction of Emotional Distress

• Roach v. Stern

• 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 Torts Against Persons Defamation

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

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Intentional Torts Against Persons Defamation
(contd)

• There are four facts to prove to win a defamation
  suit
• Defamatory statement injury to reputation.
• Falsity The statement is false.
• Publication/communication The statement was
  communicated to a third party.
• Injury must be proven in slander cases assumed
  in libel cases.

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Defamation (contd)
Mr. Smith is a jerk. He is insufferable. I
think he is the stupidest, meanest person I have
ever met.

• 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.

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Defamation (contd)

• 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 Defenses

• Truth

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Defamation Defenses

• Truth
• Privilege
• Defendants receive extra protection in special
  cases.
• Sigal Construction Corp. v. Stansbury
• In courtrooms and legislatures, speakers have
  absolute privilege. They may speak freely, as
  long as they reasonably believe what they are
  saying 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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Privacy and Publicity

• Intrusion (prying into someones private life) is
  a tort if a reasonable person would find it
  offensive.
• Examples wiretapping, stalking, peeping

• Disclosure of Embarrassing Private Facts is when
  something extremely embarrassing is made public
  with no need for the public to know. So how do
  shock TV shows get away with humiliating people
  for fun and profit?

• False Light is when something false and offensive
  is told about someone.
• Parody defense to defamation and false light
  torts Flynt v. Falwell. Why is this a defense?

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False Advertising

• Commercial Exploitation is when a persons image
  or voice is used for commercial purposes without
  that persons permission.
• Midler case (not in your readings)
• Waits v. Frito-Lay

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Product Defamation

• State Statutes outlawing defamation of
  products
• Oprah and Texas beef
• Honda and emu ranchers

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Interference with Business Relations (a/k/a
Interference with Contract)

• Texaco v. Pennzoil

• 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.

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Negligence
Paintiff must prove

• Duty of due care -- there must be a duty owed to
  the plaintiff.
• Breach -- duty must be breached.
• Proximate cause -- it must have been foreseeable
  that the action would cause this kind of harm,
  AND action was actual cause of harm
• Injury -- the plaintiff must have been hurt.

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Duty of Care

• Foreseeable plaintiff
• Dramshop/Social Host cases
• Minority view social host is liable
• Is majority view when drinker is child
• Landowner cases
• Trespasser
• Licensee
• Invitee
• Izquierdo v. Gyroscope, Inc.

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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. What about
• Absent-minded defendants?
• Not very smart defendants?
• Children?
• Physical disabilities?
• Intoxicated defendants?
• Professionals?
• Circumstances count
• Knowledgeable plaintiff
• Stressful situations

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Breach of Duty (contd)

• Companies and Employees -- courts have found
  companies liable for hiring and retaining
  employees known to be violent, when those
  employees later injured co-workers.
• Analyze these situations using reasonable
  person standard.

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Breach of Duty (contd)

• Negligence per se -- in special cases,
  legislatures set a minimum standard for certain
  groups of people. When a violation of that
  statute hurts a member of that group, the duty is
  breaof behavior.
• E.g., violation of regulatory standard of care
• Outlawed behavior
• OSHA standards

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Causation
Factual Cause Foreseeable Harm Proximate
Cause

• 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.
• Intervening causes can break the direct line

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Factual Cause Foreseeable Harm Proximate
Cause

• 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.
• Palsgraf v. Long Island RR
• Ozzie Osbourne

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Ex Factual Cause Foreseeable Harm
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
Car accident, car hitting bicyclist
Noise from accident startles someone who falls
out a window
Mechanic is NOT liable for falling person
Factual cause, but no foreseeable type of injury
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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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Defenses to Negligence

• Contributory Negligence
• Assumption of Risk

• Comparative Negligence

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Defenses to Negligence

• Contributory Negligence
• In a few states, if the plaintiff is AT ALL
  negligent, he cannot recover damages from the
  defendant.
• Assumption of Risk
• No recovery if plaintiff voluntarily assumed risk

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

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MORE EXAMPLES
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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?
• 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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• Strict Liability
• ultrahazardous or unreasonably dangerous
  activity
• Historically
• Modern applications

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TORT REFORM a good idea?