© 2004 West Legal Studies in Business A Division of Thomson Learning 1 I. Basis for Tort Liability I. Basis for Tort Liability  A. Intentional Torts  B. Negligence  C. Strict liability (Chapter 13) II. Intentional Torts II. Intentional Torts  A. Meaning of intent  B. Interference with the person »(l) Assault »(2) Battery. »(3) False Imprisonment. »(4) Infliction of Emotional Distress. »(5) Defamation. »(6) Invasion of Privacy. »(7) Interference with contractual relationship/expectancy »(8) Malicious prosecution of civil/criminal lawsuit.. I. Basis for Tort Liability I. Basis for Tort Liability  A. Intentional Torts  B. Negligence  C. Strict liability (Chapter 13) II. Intentional Torts II. Intentional Torts  A. Meaning of intent  B. Interference with the person »(l) Assault »(2) Battery. »(3) False Imprisonment. »(4) Infliction of Emotional Distress. »(5) Defamation. »(6) Invasion of Privacy. »(7) Interference with contractual relationship/expectancy »(8) Malicious prosecution of civil/criminal lawsuit..

© 2004 West Legal Studies in Business A Division of Thomson Learning 2 C. Interference with property (1) Trespass to real property (2) Nuisance (3) Trespass to personal property (4) Conversion (5) Defenses: Public vs. private necessity Consent C. Interference with property (1) Trespass to real property (2) Nuisance (3) Trespass to personal property (4) Conversion (5) Defenses: Public vs. private necessity Consent

© 2004 West Legal Studies in Business A Division of Thomson Learning 3 III. Negligence III. Negligence  A. Elements of: »1. Duty defined »2. Breach of duty -a. Reasonable person -b. Examples of duty and breach »(1) Land occupier »(2) Professional »3. Damage »4. Causation  B. Defenses »1. Assumption of risk »2. Contributory and comparative negligence  C. Special Negligence doctrines »1. Res ipsa locquitur »2. Negligence per se »3. Respondeat superior III. Negligence III. Negligence  A. Elements of: »1. Duty defined »2. Breach of duty -a. Reasonable person -b. Examples of duty and breach »(1) Land occupier »(2) Professional »3. Damage »4. Causation  B. Defenses »1. Assumption of risk »2. Contributory and comparative negligence  C. Special Negligence doctrines »1. Res ipsa locquitur »2. Negligence per se »3. Respondeat superior

© 2004 West Legal Studies in Business A Division of Thomson Learning 4 IntroductionIntroduction An injury can involve both civil (tort) and criminal liability. An injury can involve both civil (tort) and criminal liability. In a civil action, the plaintiff hires her own lawyer. In a civil action, the plaintiff hires her own lawyer. In a criminal action, the state prosecutes the injury to the community.. In a criminal action, the state prosecutes the injury to the community.. An injury can involve both civil (tort) and criminal liability. An injury can involve both civil (tort) and criminal liability. In a civil action, the plaintiff hires her own lawyer. In a civil action, the plaintiff hires her own lawyer. In a criminal action, the state prosecutes the injury to the community.. In a criminal action, the state prosecutes the injury to the community..

© 2004 West Legal Studies in Business A Division of Thomson Learning 5 Basis of Tort Law A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. Civil injury to person or property not based upon agreement (contract) Civil injury to person or property not based upon agreement (contract) Three basis for tort liability Three basis for tort liability  Intentional acts  Negligence  Strict liability.. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. Civil injury to person or property not based upon agreement (contract) Civil injury to person or property not based upon agreement (contract) Three basis for tort liability Three basis for tort liability  Intentional acts  Negligence  Strict liability..

© 2004 West Legal Studies in Business A Division of Thomson Learning 6 Intentional Torts Against Persons and Business Relationships “Intent” means: “Intent” means:  Tortfeasor intended the consequences of her act; or  She knew with substantial certainty that certain consequences would result.. “Intent” means: “Intent” means:  Tortfeasor intended the consequences of her act; or  She knew with substantial certainty that certain consequences would result..

© 2004 West Legal Studies in Business A Division of Thomson Learning 7 Assault and Battery ASSAULT is an intentional, unexcused act that: ASSAULT is an intentional, unexcused act that:  Creates a reasonable apprehension or fear, of  Immediate harmful or offensive contact.  Words alone are not an assault  NO CONTACT NECESSARY. BATTERY is the completion of the Assault: BATTERY is the completion of the Assault:  Intentional or Unexcused.  Harmful, Offensive or Unwelcome.  Physical Contact.. ASSAULT is an intentional, unexcused act that: ASSAULT is an intentional, unexcused act that:  Creates a reasonable apprehension or fear, of  Immediate harmful or offensive contact.  Words alone are not an assault  NO CONTACT NECESSARY. BATTERY is the completion of the Assault: BATTERY is the completion of the Assault:  Intentional or Unexcused.  Harmful, Offensive or Unwelcome.  Physical Contact..

© 2004 West Legal Studies in Business A Division of Thomson Learning 8 Defenses to Assault & Battery Consent. Consent.  Words  Conduct  Implied consent Self-Defense (reasonable force). Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Others (reasonable force). Defense of Property.. Defense of Property.. Consent. Consent.  Words  Conduct  Implied consent Self-Defense (reasonable force). Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Others (reasonable force). Defense of Property.. Defense of Property..

© 2004 West Legal Studies in Business A Division of Thomson Learning 9 False Imprisonment False Imprisonment is the intentional: False Imprisonment is the intentional:  Confinement or restraint. »Total restraint »Must be conscious of restraint »Restraint may be use of force or threat of force »Restraint of articles closely associated with the person is a restraint of the person.  Of another person’s activities.  Without justification. Merchants may reasonably detain customers if there is probable cause.. Merchants may reasonably detain customers if there is probable cause.. False Imprisonment is the intentional: False Imprisonment is the intentional:  Confinement or restraint. »Total restraint »Must be conscious of restraint »Restraint may be use of force or threat of force »Restraint of articles closely associated with the person is a restraint of the person.  Of another person’s activities.  Without justification. Merchants may reasonably detain customers if there is probable cause.. Merchants may reasonably detain customers if there is probable cause..

© 2004 West Legal Studies in Business A Division of Thomson Learning 10 Intentional Infliction of Emotional Distress An intentional act that is: An intentional act that is:  Extreme and outrageous, that  Results in severe emotional distress in another. Most courts require some physical symptom or illness.. Most courts require some physical symptom or illness.. An intentional act that is: An intentional act that is:  Extreme and outrageous, that  Results in severe emotional distress in another. Most courts require some physical symptom or illness.. Most courts require some physical symptom or illness..

© 2004 West Legal Studies in Business A Division of Thomson Learning 11 DefamationDefamation We owe each other to refrain from making false statements. We owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel.. Orally breaching this duty is slander; breaching it in print or media is libel.. We owe each other to refrain from making false statements. We owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel.. Orally breaching this duty is slander; breaching it in print or media is libel..

© 2004 West Legal Studies in Business A Division of Thomson Learning 12 DefamationDefamation Defamatory language is a false statement that holds an individual up to hatred, contempt or ridicule in the community. Defamatory language is a false statement that holds an individual up to hatred, contempt or ridicule in the community. “Publication” requires communication to a 3 rd party. “Publication” requires communication to a 3 rd party. Identification Identification Damage.. Damage.. Defamatory language is a false statement that holds an individual up to hatred, contempt or ridicule in the community. Defamatory language is a false statement that holds an individual up to hatred, contempt or ridicule in the community. “Publication” requires communication to a 3 rd party. “Publication” requires communication to a 3 rd party. Identification Identification Damage.. Damage..

© 2004 West Legal Studies in Business A Division of Thomson Learning 13 Damages for Libel General Damages are presumed; Plaintiff does not have to show actual injury. 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.. General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.. General Damages are presumed; Plaintiff does not have to show actual injury. 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.. General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress..

© 2004 West Legal Studies in Business A Division of Thomson Learning 14 Damages for Slander Rule: Plaintiff must prove “special damages” (actual economic loss). Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se. No proof of damages is necessary: Exceptions for Slander Per Se. No proof of damages is necessary:  Loathsome disease,  Business improprieties,  Serious crime,  Woman is non-chaste.. Rule: Plaintiff must prove “special damages” (actual economic loss). Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se. No proof of damages is necessary: Exceptions for Slander Per Se. No proof of damages is necessary:  Loathsome disease,  Business improprieties,  Serious crime,  Woman is non-chaste..

© 2004 West Legal Studies in Business A Division of Thomson Learning 15 Defenses to Defamation Truth is generally an absolute defense. Truth is generally an absolute defense. Privileged (or Immune) Speech. Privileged (or Immune) Speech.  Absolute: judicial & legislative proceedings.  Qualified: Employee Evaluations.. Truth is generally an absolute defense. Truth is generally an absolute defense. Privileged (or Immune) Speech. Privileged (or Immune) Speech.  Absolute: judicial & legislative proceedings.  Qualified: Employee Evaluations..

© 2004 West Legal Studies in Business A Division of Thomson Learning 16 Public Figures Public figures exercise substantial governmental power or are otherwise in the public limelight. Public figures exercise substantial governmental power or are otherwise in the public limelight. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.. Public figures exercise substantial governmental power or are otherwise in the public limelight. Public figures exercise substantial governmental power or are otherwise in the public limelight. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth..

© 2004 West Legal Studies in Business A Division of Thomson Learning 17 Invasion of Privacy Every person has a fundamental right to solitude freedom from public scrutiny. Every person has a fundamental right to solitude freedom from public scrutiny.  Public Disclosure of Private Facts.  Intrusion on Individual’s Affairs or Seclusion.  Use of Person’s Name or Likeness for business purposes  Publication of Information that Places a Person in False Light.. Every person has a fundamental right to solitude freedom from public scrutiny. Every person has a fundamental right to solitude freedom from public scrutiny.  Public Disclosure of Private Facts.  Intrusion on Individual’s Affairs or Seclusion.  Use of Person’s Name or Likeness for business purposes  Publication of Information that Places a Person in False Light..

© 2004 West Legal Studies in Business A Division of Thomson Learning 18 AppropriationAppropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.. Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent..

© 2004 West Legal Studies in Business A Division of Thomson Learning 19 Fraudulent Misrepresentation Fraud is intentional deceit. Elements: Fraud is intentional deceit. Elements:  Misrepresentation of material fact;  Intent to induce another to rely;  Justifiable reliance by innocent party;  Damages as a result of reliance;  Causal connection. Fact vs. Opinion.. Fact vs. Opinion.. Fraud is intentional deceit. Elements: Fraud is intentional deceit. Elements:  Misrepresentation of material fact;  Intent to induce another to rely;  Justifiable reliance by innocent party;  Damages as a result of reliance;  Causal connection. Fact vs. Opinion.. Fact vs. Opinion..

© 2004 West Legal Studies in Business A Division of Thomson Learning 20 Wrongful Interference Tort that interferes with a contractual relationship. Tort that interferes with a contractual relationship. Occurs when: 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.. Tort that interferes with a contractual relationship. Tort that interferes with a contractual relationship. Occurs when: 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..

© 2004 West Legal Studies in Business A Division of Thomson Learning 21 Wrongful Interference With a Business Relationship occurs when: With a Business Relationship occurs when:  Established business relationship;  Tortfeasor, using predatory methods, causes relationship to end; and  Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort.. Bona fide competitive behavior is a defense to this tort.. With a Business Relationship occurs when: With a Business Relationship occurs when:  Established business relationship;  Tortfeasor, using predatory methods, causes relationship to end; and  Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort.. Bona fide competitive behavior is a defense to this tort..

© 2004 West Legal Studies in Business A Division of Thomson Learning 22 Malicious Prosecution Lawsuit initiated without reasonable (probable) cause Lawsuit initiated without reasonable (probable) cause Defendant of lawsuit found not liable (innocent) Defendant of lawsuit found not liable (innocent) Defendant incurred damages Defendant incurred damages  Damages assumed in criminal action Lawsuit initiated without reasonable (probable) cause Lawsuit initiated without reasonable (probable) cause Defendant of lawsuit found not liable (innocent) Defendant of lawsuit found not liable (innocent) Defendant incurred damages Defendant incurred damages  Damages assumed in criminal action

© 2004 West Legal Studies in Business A Division of Thomson Learning 23 Trespass to land Trespass to land occurs when a person, without permission: Trespass to land occurs when a person, without permission:  Physically enters onto, above or below the surface of another’s land; or  Causes anything to enter onto the land; or  Remains, or permits anything to remain, on the land. Technical damages vs. actual.. Technical damages vs. actual.. Trespass to land occurs when a person, without permission: Trespass to land occurs when a person, without permission:  Physically enters onto, above or below the surface of another’s land; or  Causes anything to enter onto the land; or  Remains, or permits anything to remain, on the land. Technical damages vs. actual.. Technical damages vs. actual..

© 2004 West Legal Studies in Business A Division of Thomson Learning 24 NuisanceNuisance Interference with the enjoyment of real property.. Interference with the enjoyment of real property..

© 2004 West Legal Studies in Business A Division of Thomson Learning 25 Trespass to Personal Property Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.. Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege..

© 2004 West Legal Studies in Business A Division of Thomson Learning 26 ConversionConversion Substantial interference with the use of personal property Substantial interference with the use of personal property Forces the defendant to pay full value of the property when it was taken (converted). Forces the defendant to pay full value of the property when it was taken (converted). Intent is irrelevant.. Intent is irrelevant.. Substantial interference with the use of personal property Substantial interference with the use of personal property Forces the defendant to pay full value of the property when it was taken (converted). Forces the defendant to pay full value of the property when it was taken (converted). Intent is irrelevant.. Intent is irrelevant..

© 2004 West Legal Studies in Business A Division of Thomson Learning 27 NegligenceNegligence Actor’s conduct merely creates a foreseeable risk of injury. Analysis: Actor’s conduct merely creates a foreseeable risk of injury. Analysis:  Defendant owed Plaintiff a duty of care;  Defendant breached that duty;  Plaintiff suffered legal injury;  Defendant’s breach caused the injury.. Actor’s conduct merely creates a foreseeable risk of injury. Analysis: Actor’s conduct merely creates a foreseeable risk of injury. Analysis:  Defendant owed Plaintiff a duty of care;  Defendant breached that duty;  Plaintiff suffered legal injury;  Defendant’s breach caused the injury..

© 2004 West Legal Studies in Business A Division of Thomson Learning 28 Duty of Landowners To trespassers To trespassers  Child trespassers—Attractive nuisance  Older trespassers To licensees To licensees To business invitees.. To business invitees.. To trespassers To trespassers  Child trespassers—Attractive nuisance  Older trespassers To licensees To licensees To business invitees.. To business invitees..

© 2004 West Legal Studies in Business A Division of Thomson Learning 29 Duty of Professionals Professional malpractice: failure to conform to practice of reasonable professional in that area.. Professional malpractice: failure to conform to practice of reasonable professional in that area..

© 2004 West Legal Studies in Business A Division of Thomson Learning 30 Injury Requirement and Damages To recover, Plaintiff must show legally recognizable injury. To recover, Plaintiff must show legally recognizable injury.  Compensatory Damages  Punitive Damages.. To recover, Plaintiff must show legally recognizable injury. To recover, Plaintiff must show legally recognizable injury.  Compensatory Damages  Punitive Damages..

© 2004 West Legal Studies in Business A Division of Thomson Learning 31 CausationCausation Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries.  Causation in Fact, and  Proximate Cause.. Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries.  Causation in Fact, and  Proximate Cause..

© 2004 West Legal Studies in Business A Division of Thomson Learning 32 Causation in Fact “But for” test “But for” test  but for the Defendant’s act the injury would not have occurred.. “But for” test “But for” test  but for the Defendant’s act the injury would not have occurred..

© 2004 West Legal Studies in Business A Division of Thomson Learning 33 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. 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.. Foreseeability of injury is an important factor.. 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. 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.. Foreseeability of injury is an important factor..

© 2004 West Legal Studies in Business A Division of Thomson Learning 34 Defenses to Negligence Assumption of Risk. Assumption of Risk. Superceding Intervening Cause. Superceding Intervening Cause. Contributory or Comparative Negligence.. Contributory or Comparative Negligence.. Assumption of Risk. Assumption of Risk. Superceding Intervening Cause. Superceding Intervening Cause. Contributory or Comparative Negligence.. Contributory or Comparative Negligence..

© 2004 West Legal Studies in Business A Division of Thomson Learning 35 Assumption of Risk Plaintiff has adequate notice and understanding of the risks associated with an activity. Plaintiff has adequate notice and understanding of the risks associated with an activity. He knowingly and willingly engages in the act anyway.. He knowingly and willingly engages in the act anyway.. Plaintiff has adequate notice and understanding of the risks associated with an activity. Plaintiff has adequate notice and understanding of the risks associated with an activity. He knowingly and willingly engages in the act anyway.. He knowingly and willingly engages in the act anyway..

© 2004 West Legal Studies in Business A Division of Thomson Learning 36 Contributory Negligence Under common law, if Plaintiff in any way caused his injury, he was barred from recovery. Under common law, if Plaintiff in any way caused his injury, he was barred from recovery. Most states have replaced contributory negligence with the doctrine of comparative negligence.. Most states have replaced contributory negligence with the doctrine of comparative negligence.. Under common law, if Plaintiff in any way caused his injury, he was barred from recovery. Under common law, if Plaintiff in any way caused his injury, he was barred from recovery. Most states have replaced contributory negligence with the doctrine of comparative negligence.. Most states have replaced contributory negligence with the doctrine of comparative negligence..

© 2004 West Legal Studies in Business A Division of Thomson Learning 37 Special Negligence Doctrines Res Ipsa Loquiter: The things speaks for itself Res Ipsa Loquiter: The things speaks for itself Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff: Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff:  Statute sets out standard of care.  Plaintiff is member of class intended to be protected by statute.  Statute designed to prevent Plaintiff’s injury. Respondeat superior Respondeat superior Res Ipsa Loquiter: The things speaks for itself Res Ipsa Loquiter: The things speaks for itself Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff: Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff:  Statute sets out standard of care.  Plaintiff is member of class intended to be protected by statute.  Statute designed to prevent Plaintiff’s injury. Respondeat superior Respondeat superior