THE LEGAL ENVIRONMENT TODAY, 8E ROGER LEROY MILLER / FRANK B. CROSS © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

CHAPTER 5 TORTS AND STRICT LIABILITY © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

LEARNING OBJECTIVES 1.What is the purpose of tort law? What type of damages are available in tort lawsuits? 2.What are two basic categories of torts? 3.What is defamation? Name two types of defamation. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

LEARNING OBJECTIVES (CONT’D) 4.Identify the four elements of negligence. 5.What is meant by strict liability? In what circumstances is strict liability applied? © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

THE BASIS OF TORT LAW A tort is a civil wrong that results in harm or injury to another. The Purpose of Tort Law Tort law compensates those that have suffered a loss due to another’s wrongful conduct. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use. LO-1

THE BASIS OF TORT LAW Damages Available in Tort Actions Compensatory damages – reimburses the plaintiff for actual losses Special: Quantifiable monetary losses General: Compensate for non-monetary aspects of harm suffered, such as pain and suffering. Not available for businesses Punitive damages – monetary damages used to punish the defendant Only allowed in circumstances where the conduct was particularly bad © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

THE BASIS OF TORT LAW Tort Reform Critics of tort law argue that it leads to unnecessary lawsuits and clogs the courts. Some jurisdictions are have taken steps to decrease the number of lawsuits, such as: Limiting the amount of damages that can be awarded Capping the amount that lawyers can accept on contingency fees Requiring the losing party to pay both parties’ legal fees © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

THE BASIS OF TORT LAW Classifications of Torts Intentional torts Unintentional torts (negligence) Defenses Even if the elements of the tort have been met, there may be a defense that prevents recovery of damages. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use. LO-2

INTENTIONAL TORTS AGAINST PERSONS The tortfeasor must intend to commit an act which interferes with another’s interests. Intended the consequences of the act; or Knew with substantial certainty that certain consequences would result. The intent can be transferred if the tortfeasor intended to harm one person and harmed another instead. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PERSONS Types of Torts Against Persons Assault – putting another in fear of receiving an immediate harm Battery – harmful or offensive contact False imprisonment – confining or restraining another Intentional infliction of emotional distress – outrageous conduct that causes emotional harm © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PERSONS Defamation Wrongfully hurting another’s reputation by making false statements of fact The statement must be “published,” or told to someone other than the plaintiff. Opinions are protected free speech and not defamation. If the statement was true, there is no defamation. If the plaintiff is a public figure, the statement must be made with actual malice to qualify as defamation. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use. LO-3

INTENTIONAL TORTS AGAINST PERSONS Libel: statements that are written or through other media Slander: oral statements Invasion of Privacy Invading another’s home or personal belongings Public disclosure of private facts Appropriation of identity © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PERSONS Fraudulent Misrepresentation Intentional deceit of another for personal gain The person must misrepresent a fact he or she knows to be true. Abusive or Frivolous Litigation If legal claims are completely unfounded or the court process is being misused. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PERSONS Wrongful Interference With a Contractual Relationship Occurs when a person intentionally encourages a party to break a contract With a Business Relationship When a person uses predatory tactics to take another business’s customer Defenses If the interference with justified or permissible, there is no wrongful interference. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PROPERTY Types of property Real property – land, and everything attached to land Personal property – movable, tangible items Trespass to Land Occurs when one enters another’s real property without permission © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PROPERTY Trespass to Personal Property Wrongfully taking or harming the personal property of another Conversion Wrongfully using or possessing the personal property of another There is usually overlap between trespass to personal property and conversion © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

INTENTIONAL TORTS AGAINST PROPERTY Disparagement of Property Occurs when a person makes economically injurious statements about another’s product or property Akin to defamation, but the statements are made about the property instead of the person © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE Negligence defined The failure to exercise a duty of care that a reasonable person would exercise in the same situation Elements Duty – the defendant owed a duty of care to the plaintiff Breach – the defendant breached this duty Causation – this breach led to the defendant’s injury Damages – an injury occurred © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use. LO-4

NEGLIGENCE The Duty of Care and Its Breach Reasonable person standard The defendant is held to the same standard as a reasonably objective person in the defendant’s same situation would have acted. The duty of landowners People who invite others onto property have a duty to keep the premises safe. The duty of professionals Professionals have a duty of care towards their clients. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE Causation The plaintiff must prove two different types of causation. Causation in fact – the harm would not have occurred “but for” the conduct of the defendant Proximate cause – the link between the action and the cause was sufficiently strong to warrant liability It must have been foreseeable that the defendant’s actions would have caused the harm for liability to be imposed. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE The Injury Requirement and Damages The plaintiff must have suffered actual harm. The purpose of tort law is to compensate people through monetary damages. If there is no harm, there is no violation. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE Defenses to Neglience Assumption of risk : a plaintiff who voluntarily enters a risky situation is not allowed to recover Superseding cause: if an intervening event broke the chain of causation between the defendant’s act and the injury, there is no recovery. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE Contributory and comparative negligence Contributory neglience – used in a few states; if the plaintiff is also negligent, it bars recovery Comparative neglience – used in most states; if the plaintiff is also negligent, then the plaintiff’s level of fault determines whether and how much is recovered © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE Special Neglience Doctrines and Statutes Res ipsa locquitur “The facts speak for themselves.” Negligence can be inferred based upon the circumstances, and the burden shifts to the defendant. Negligence per se If the defendant violated a statute where a duty of care was imposed, the negligence is assumed to have occurred. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

NEGLIGENCE “Danger Invites Rescue” A wrongdoer is held culpable for ensuing rescues that cause harm. Good Samaritan Statutes Someone who tried to aid another cannot be sued for negligence unless their aider acted recklessly. Dram Shop Acts Bar owners and bartenders can be held liable for serving intoxicated persons who then harm others. Some states impose liability on “social hosts” who over- serve guests. © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use.

STRICT LIABILITY Strict liability, or liability without fault, is imposed for certain activities. Abnormally Dangerous Activities Other Applications of Strict Liability People who knowingly keep dangerous animals Product liability – liability for manufacturers of defective or harmful products © 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website for classroom use. LO-5