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Chapter 12: Torts and Strict Liability


1: Basis of Tort Law. Doing business today involves risks, both legal and financial. ... (or legal) cause of the injury when the causal connection between the ... – PowerPoint PPT presentation

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Title: Chapter 12: Torts and Strict Liability

Chapter 12Torts and Strict Liability
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.

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
  • She knew with substantial certainty that certain
    consequences would result.

Types of Intentional Torts
  • Assault and Battery.
  • False Imprisonment.
  • Infliction of Emotional Distress.
  • Defamation.
  • Invasion of Privacy.
  • Business Torts.

Assault and Battery
  • ASSAULT Intentional, unexcused act that creates
    a reasonable apprehension of fear of immediate
    harmful or offensive contact.
  • BATTERY Intentional or unexcused harmful,
    offensive or unwelcome physical contact.
  • The completion of the Assault.

Defenses to Assault Battery
  • Consent.
  • Self-Defense (reasonable force).
  • Defense of Others (reasonable force).
  • Defense of Property.

False Imprisonment
  • The Intentional confinement or restraint.
  • Of another persons activities.
  • Without justification.
  • Merchants may reasonably detain customers if
    there is probable cause.

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
  • Case 12.1 Roach v. Stern (1998).

  • Right to free speech is constrained by duty we
    owe each other to refrain from making false
  • Orally breaching this duty is slander
  • Breaching this duty in print or other
    audio-visual media is libel. (Today, this would
    include bulletin boards, chatrooms and the
    internet in general.)

  • 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.

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.

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.

  • Truth is generally an absolute defense.
  • Privileged (or Immune) Speech
  • Absolute judicial legislative proceedings.
  • Qualified Employee Evaluations.

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).

Invasion of Privacy
  • Every person has a fundamental right to
    solitude freedom from public scrutiny. Person
    commits tort if she
  • Uses a persons name or likeness for commercial
    purposes without permission
  • Intrudes into a persons private affairs or
  • Publishes information that places a person in a
    false light or
  • Publishes private facts that are objectionable.
  • See Emerging Trends Privacy Online.

  • Use of anothers name, likeness or other
    identifying characteristic for commercial
    purposes without the owners consent.

  • Fraudulent misrepresentation involves intentional
  • 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.

Wrongful Interference 1
  • Tort that interferes with a contractual
  • 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).

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.

3 Intentional Torts to Property
  • Trespass to land occurs when a person, without
  • Physically enters onto, above or below the
    surface of anothers land or
  • Causes anything to enter onto the land or
  • Remains, or permits anything to remain, on the

Intentional Torts to Property 2
  • Trespass to personal property is the intentional
    interference with anothers use or enjoyment of
    personal property without consent or privilege.
  • Conversion wrongful taking.
  • Disparagement of property economically injures
    property (slander of title or quality).

4 Negligence
  • Tortfeasor does not intend the consequences of
    the act or believes they will occur.
  • Tortfeasors conduct merely creates a foreseeable
    risk of injury to Plaintiff.
  • To succeed in his claim, Plaintiff must show
  • Defendant owed Plaintiff a duty of care
  • Defendant breached that duty
  • Plaintiff suffered legal injury
  • Defendants breach caused the injury.

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

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).

Duty of Care
  • Duty of care varies, based on the Defendants
    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

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.

  • Even though a Tortfeasor owes a duty of care and
    breaches the duty of care, the act must have
    caused the Plaintiffs injuries.
  • Causation is both
  • Causation in Fact and
  • Proximate Cause.

Causation in Fact
  • Did the injury occur because of the Defendants
    act, or would the injury have occurred anyway?
  • Usually determined by the but for test, i.e.,
    but for the Defendants act the injury would not
    have occurred.

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
  • Case 12.4 Palsgraf v. Long Island RR (1928).

Defenses to Negligence
  • Assumption of Risk.
  • Superceding Intervening Cause.
  • Contributory or Comparative Negligence.

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).

Superceding Cause
  • A unforeseeable, intervening act that occurs
    after Defendants act that breaks the causal
    relationship between Defendants act and
    Plaintiffs injury relieving Defendant of
  • If the intervening act was foreseeable, however,
    Defendant may be liable for Plaintiffs injuries.

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.

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
  • However, if Plaintiff is more than 50 liable,
    she recovers nothing.

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 Plaintiffs injury.

Special Negligence Statutes
  • Danger Invites Rescue Doctrine.
  • Good Samaritan Statutes.
  • Dram Shop Acts.

Strict Liability
  • Defendants liability for strict liability is
    without regard to
  • Fault.
  • Foreseeability.
  • Standard of Care.
  • Causation.
  • Liability is based on creation of extraordinary

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

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).

Law on the Web
  • Law Gurus Law Library Website
  • Legal Research Exercises on the Web

Emerging Trends Internet Privacy
  • Privacy and the Internet Federal Trade
    Commission issues final report on privacy (May,
  • Childrens Online Privacy Protection Act of 1998,
    (April, 2000) for websites whose primary purpose
    is information from children (13 and under).