Chapter 5 Intentional Torts and Negligence

Introduction to Intentional Torts and Negligence Injured party brings civil lawsuit to seek compensation for a wrong done to the party Damages available Tort damages Punitive damages If the victim of a tort dies, beneficiaries can bring a wrongful death action against defendant 5-2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Assault Threat of immediate harm or offensive contact Any action that arouses reasonable apprehension of imminent harm Actual physical contact is unnecessary 5-3 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Battery Unauthorized and harmful or offensive physical contact with another person Direct physical contact between victim and perpetrator unnecessary May accompany assault 5-4 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Doctrine of transferred intent Party A intends to harm Party B, but actually injures Party C Law transfers perpetrator’s intent from target to actual victim Party C can sue the perpetrator 5-5 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts False imprisonment Intentional confinement or restraint of another person without authority or justification and without that person’s consent Physical force Barriers Threats of physical violence False arrest 5-6 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Shoplifting and merchant protection statutes Merchants may stop, detain, and investigate suspected shoplifters if: There are reasonable grounds for suspicion Suspects are detained for only reasonable time Investigations are conducted in reasonable manner 5-7 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 5.1: False Imprisonment Walmart Stores, Inc. v. Cockrell 61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992 Court of Appeals of Texas Issue Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of the case? 5-8 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Misappropriation of the right to publicity Attempt by another person to appropriate a living person’s name or identity for commercial purposes Tort of appropriation Plaintiff’s recourse: Recover the unauthorized profits made by the offender Obtain an injunction preventing further unauthorized use of his or her identity 5-9 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Invasion of the right to privacy Violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity Placing person in a “false light” 5-10 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Defamation of character Types Slander Libel Plaintiff must prove that: Defendant made an untrue statement of fact about plaintiff Statement was intentionally or accidentally published to a third party 5-11 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Disparagement Untrue statement made about products, services, property, or reputation of a business Intentional misrepresentation (Fraud) Wrongdoer deceives another person out of money, property, or something of value 5-12 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Intentional Torts Intentional infliction of emotional distress Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person Also known as tort of outrage Malicious prosecution Frivolous lawsuit maliciously brought Prevailing defendant sues original plaintiff to recover damages for injuries 5-13 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unintentional Torts (Negligence) Unintentional Tort: A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions Negligence: Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do 5-14 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unintentional Torts (Negligence) Elements of a Negligence Lawsuit The defendant owed a duty of care to the plaintiff The defendant breached the duty of care The plaintiff suffered injury The defendant’s negligent act caused the plaintiff’s injury The defendant’s negligent act was the proximate cause of the plaintiff’s injuries 5-15 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unintentional Torts (Negligence) Duty of care: Obligation not to cause any unreasonable harm or risk of harm Tests used to determine whether a duty of care was owed: Reasonable person standard Reasonable professional standard Breach of duty of care: Failure to exercise care or to act as a reasonable person would act 5-16 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unintentional Torts (Negligence) Injury to plaintiff Personal injury or damage to the plaintiff’s property Damages cannot be recovered if the plaintiff suffered no injury Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession 5-17 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 5.2: Damages for Negligence Clancy v. Goad 858 N.E.2d 653, Web 2006 Ind. App. Lexis 2576 (2006) Court of Appeals of Indiana Issue Were the damages awarded to Dianna Goad excessive? 5-18 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unintentional Torts (Negligence) Causation Causation in fact (actual cause): A person who commits a negligent act is not liable unless actual cause can be proven Proximate cause (legal cause): A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions 5-19 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Case 5.3: Duty of Care Case James v. Meow Media, Inc. 300 F.3d 683, Web 2002 U.S. App. Lexis 16185 (2002) United States Court of Appeals for the Sixth Circuit 5-20 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Case 5.3: Duty of Care Issue Are the video and movie producers liable to the plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs’ three children? 5-21 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Special Negligence Doctrines Professional malpractice The liability of a professional who breaches his or her duty of ordinary care Breach of reasonable professional standard Negligent infliction of emotional distress Permits a person to recover for emotional distress caused by the defendant’s negligent conduct 5-22 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Special Negligence Doctrines Negligence per se Violation of a statute that proximately causes an injury Res ipsa loquitur Defendant had exclusive control of the situation that caused the plaintiff’s injury Injury would not have ordinarily occurred but for someone’s negligence 5-23 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Special Negligence Doctrines Good Samaritan laws Protects medical professionals who stop and render emergency first aid Relieves them from liability for ordinary negligence No relief for gross negligence or intentional or reckless conduct Laypersons not trained in CPR not covered 5-24 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses Against Negligence Superseding or intervening event An event for which defendant is not responsible Assumption of risk Plaintiff knowingly and voluntarily participates in a risky activity that results in injury 5-25 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 5.4: Assumption of the Risk Lilya v. The Greater Gulf State Fair, Inc. 855 So.2d 1049, Web 2003 Ala. Lexis 57 Supreme Court of Alabama Issue Was riding a mechanical bull an open and obvious danger for which Lilya had voluntarily assumed the risk when he rode the mechanical bull? 5-26 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses Against Negligence Contributory negligence Plaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendant Comparative negligence Damages apportioned according to fault Pure comparative negligence Partial comparative negligence (50% rule) 5-27 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Strict Liability Strict liability is liability without fault A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent Abnormally dangerous activities 5-28 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-29 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.