Chapter 5 Torts

2 §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.

3 §2: Intentional Torts Against Persons and Business Relationships The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: Tortfeasor intended the consequences of her act; or She knew with substantial certainty that certain consequences would result.

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

5 Assault Intentional, unexcused act that: Creates a reasonable apprehension of fear, or Immediate harmful or offensive contact. NO CONTACT NECESSARY.

6 Battery Battery is the completion of the Assault: Intentional or Unexcused. Harmful, Offensive or Unwelcome. Physical Contact.

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

8 False Imprisonment The Intentional confinement or restraint. Of another person’s activities. Without justification. Merchants may reasonably detain customers if there is probable cause.

9 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 illness.

10 Defamation Right to free speech is constrained by duty we owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel.

11 Defamation 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 3 rd party.

12 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.

13 Defamation-Damages [2] Damages for Slander. Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se (loathsome disease, business improprieties, serious crime, non-chaste).

14 Defamation-Defenses Truth is generally an absolute defense. Privileged (or Immune) Speech. Absolute: judicial & legislative proceedings. Qualified: Employee Evaluations.

15 Defamation-Public Figures 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.

16 Invasion of Privacy Every person has a fundamental right to solitude freedom from public scrutiny. Use of Person’s Name or Likeness. Intrusion on Individual’s Affairs or Seclusion. Publication of Information that Places a Person in False Light. Public Disclosure of Private Facts.

17 Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

18 Fraud Fraudulent misrepresentation involves intentional deceit: Misrepresentation of material fact; Intent to induce another to rely; Justifiable reliance by innocent party; Damages as a result of reliance; Causal connection.

19 Wrongful Interference Tort that interferes with a contractual relationship. 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.

20 Wrongful Interference 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.

21 §3: Intentional Torts to Property 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.

22 Intentional Torts to Property [2] Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege. Disparagement of Property. Slander of Title or Quality.

23 §4: Negligence Tortfeasor does not intend the consequences of the act or believes they will occur. 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.

24 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.

25 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: Foreseeability

26 Duty of Care Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff. Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.

27 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.

28 Causation 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.

29 Causation in Fact Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

30 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 events.

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

32 Assumption of Risk Plaintiff has adequate notice and understanding of the risks associated with an activity. He 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.

33 Superceding Cause A unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability. If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.

34 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.

35 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 Defendant. However, if Plaintiff is more than 50% liable, she recovers nothing.

36 Special Negligence Doctrines Res Ipsa Loquiter. 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.

37 Special Negligence Statutes “Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts.

38 §5: Cyber Torts Who should be liable for online defamation? Communications Decency Act shields online providers from liability. Zeran v. America Online (1997). Piercing Veil of Anonymity—ISP’s can disclose personal info if ordered by a court. Liability for SPAM. CompuServe v. Cyber Promotions (1997). Liablility for computer virus?

39 Case 5.1: Roach v. Stern (Intentional Infliction of Emotional Distress) FACTS: Roach (“Debbie Tay”) was a guest on The Howard Stern Show on which she discussed her purported sexual encounters with female aliens. After Tay’s death, her sister had Tay’s body cremated and gave a portion of the remains to Tay’s friend, Chaunce Hayden. Hayden later appeared on Stern’s show and the participants in the program handled and joked about Tay’s remains. Tay’s brother and sister sued Stern for intentional infliction of emotional distress. Court dismissed the case and Plaintiffs appealed.

40 HELD: REVERSED. FOR TAY/PLAINTIFFS. “[T]o impose liability for the tort of intentional infliction of emotional distress, the conduct complained of must be: so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” In this case, the plaintiffs sufficiently pleaded a cause of action, including the element of outrageous conduct. Case 5.1: Roach v. Stern (Intentional Infliction of Emotional Distress)

41 5.2: Tiberino v. Spokane County (Invasion of Privacy) FACTS: Tiberino worked for Spokane County, Washington. According to county policy, the employer could monitor all and county equipment was not for personal use. Tiberino was later discharged for unsatisfactory work performance related to her use of for personal matters and threatened to sue the county. The media asked ex-employer for copies of the e- mail. Tiberino sued the county to stop the release. The court refused to stop it. Tiberino appealed.

42 HELD: REVERSED. FOR TIBERINO. Although Tiberino’s messages were “public records,” that they were exempt from public disclosure as personal information. “[T]he public has an interest in seeing that public employees are not spending their time on the public payroll pursuing personal interests. But it is the amount of time spent on personal matters, not the content of personal s or phone calls or conversations, that is of public interest.” 5.2: Tiberino v. Spokane County (Invasion of Privacy)

43 5.3: Martin v. WalMart Stores (Duty of Care) FACTS: While shopping at Wal-mart, Martin slipped on some loose shotgun shell pellets next to a display of the shells in the main aisle (“action alley”) and fell. At the time, the department was understaffed. Martin suffered permanent injuries. to his legs and feet that doctors diagnosed as permanent. Martin sued Wal-Mart and the jury found for Martin. Wal-mart appealed. seeking damages. The jury found in his favor, and the court denied Wal-Mart’s motion for a directed verdict. Wal-Mart appealed.

44 HELD: AFFIRMED. FOR MARTIN. Eight Circuit held this case involved the self- service store exception to the traditional slip-and- fall rule. A self-service store has notice that certain dangers arising through customer involvement are likely to occur and has a duty to anticipate them. Here, Wal-Mart had constructive notice of the pellets on the floor in the main aisle because it was foreseeable that merchandise would spill. Wal-Mart owed duty of care to maintain sufficient staffing and protect the aisles. 5.3: Martin v. WalMart Stores (Duty of Care)

45 Case 5.4: Palsgraf v. Long Island RR (Foreseeability and Proximate Cause) FACTS: Man carrying a unmarked package tried to board a moving train from a crowded station platform, railroad employees on the train and the platform tried to help him. The man dropped his package, which contained fireworks, and it exploded, causing scales on the platform to fall on Mrs. Palsgraf, injuring her. Palsgraf sued. Court held for Palsgraf. Railroad appealed.

46 HELD: REVERSED. FOR RAILROAD. The question before the appellate court was as follows: Does the duty of care extend only to those who may be injured as a result of a foreseeable risk, or does it extend also to a person who is outside the zone of danger and whose injury could not reasonably have been foreseen? The railroad was not negligent toward her because “[n]othing in the situation gave notice ” of the risk to Palsgraf. The conduct of the railroad employees may have been negligent to­ward the man with the package, but it was not a wrong in relation to Palsgraf who was standing far away. Case 5.4: Palsgraf v. Long Island RR (Foreseeability and Proximate Cause)