1. Chapter 5 Torts and Strict Liability Part I Intentional Torts (Against Persons and Property)

2. Introduction to Torts Tort is the French word for a “wrong”. Tort law protects a variety of injuries and provides remedies for them. Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or to the party’s property. Many torts have their origin in common law. The courts and legislatures have extended tort law to reflect changes in modern society. Tort damages are monetary damages that are sought from the offending party. They are intended to compensate the injured party for the injury suffered. Such injury may consist of past and future medical expenses, loss of wages, pain and suffering, mental distress, and other damages caused by the defendant’s tortious conduct. If the victim of the tort dies, his or her beneficiaries can bring a wrongful death action to recover damages from the defendant. Punitive damages, which are awarded to punish the defendant, may be recovered in intentional tort and strict liability cases. Other remedies, such as injunctions may be available, too.

3. Intentional Torts Against Persons The law protects a person from unauthorized touching, restraint, or other contact. In addition, the law protects a person’s reputation and privacy. Violation of these rights are actionable as torts. Intentional torts against persons are discussed in what follows. Assault Assault is (1) the threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary. Threats if future harm are not actionable. Battery Battery is unauthorized and harmful or offensive physical contact with another person. Basically, the interest protected is each person’s reasonable sense of dignity and safety.

4. Intentional Torts Against Persons Transferred Intent Doctrine Sometimes a person acts with the intent to injure one person but actually injures another. The transferred intent doctrine applies to such situations. Under this doctrine, the law transfers the perpetrator’s intent from the target to the actual victim of the act. False Imprisonment The intentional confinement or restraint of another person without authority or justification and without that person’s consent consitutes false imprisonment. The victim may be restrained or confined by physical force, barriers, threats of physical harm, or the perpetrator’s false assertion of legal authority (i.e. false arrests). A threat of future harm or moral pressure is not considered false imprisonment. (See p 114 of the book for “Merchant Protection Statutes”)

5. Intentional Torts Against Persons Misappropriation of the Right to Publicity Each person has the exclusive legal right to control and profit from the commercial use of his or her name and personality during his or her lifetime. This is a valuable right, particularly to well-known persons such as sports figures and movie stars. Any attempt by another person to appropriate a living person’s name or identity for commercial purposes is actionable. The wrongdoer is liable for the tort of misappropriation of the right to publicity (also called the tort of appropriation). In such cases, the plaintiff can (1) recover the unauthorized profits made by the offending party and (2) obtain an injunction against further unauthorized use of his or her name or identity. Many states provide that the right to publicity survives a person’s death and may be enforced by the deceased heirs.

6. Intentional Torts Against Persons Invasion of the Right to Privacy The law recognizes each person’s right to live his or her life without being subjected to unwarranted and undesired publicity. A violation of this right constitutes the tort of invasion of the right to privacy. If a fact is public information, there is no claim to privacy. However, a fact that was once public (e.g. commission of a crime) may become private after passage of a time. Defamation of Character A person’s reputation is a valuable asset. Therefore, every person is protected from false statements made by others during his or her lifetime. The protection ends upon a person’s death. The tort of defamation of character requires a plaintiff to prove that: 1. The defendant made an untrue statement of fact about the plaintiff and 2. The statement was intentionally or accidentally published to a third party.

7. Intentional Torts Against Persons In this context, publication simply means that a third person heard or saw the untrue statement. It does not just mean appearance in newspapers, magazines, or books. The name for an oral defamatory statement is slander. A false statement that appears in a letter, newspaper, magazine, book, movie, video, and the like is called libel. Most courts hold that defamatory statements in radio and television broadcasts are considered libel because of the permanency of the media. The publication of an untrue statement of fact is not the same as the publication of an opinion. The publication of opinions is usually not actionable. Because defamation is defined as an untrue statement of fact, truth is an absolute defense to a charge of defamation.

8. Intentional Torts Against Persons Public Figures as Plaintiffs In New York Times Co v. Sullivan, the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with “actual malice”. Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity. This requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities.

9. New York Times Co v. Sullivan (1964) New York Times Co. v. Sullivan The Case that Changed First Amendment History by Ronald K.L. Collins Ronald K.L. Collins One cannot talk about the First Amendment without talking about New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In that landmark opinion, the principle of freedom of the press bolstered the principle of equality. The case also marked a turning point in the history of the First Amendment, one that promised a new day for freedom of expression in America. ……………New York Times Co. v. Sullivan What made the case a “landmark” opinion was the fact that this was the first time that the Court invoked the First Amendment to check libel actions. Such actions, wrote Brennan, could no longer claim “talismanic immunity from constitutional limitations.” The Court also questioned the legitimacy of seditious libel, of liability based on criticism of public officials. The “attack upon its validity,” Brennan noted, “has carried the day in the court of history.” In a turn of phrase destined to become the most celebrated line in First Amendment history, Justice Brennan boldly declared: “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and

10. New York Times Co v. Sullivan (1964) public officials” (emphasis added). With those 44 words Brennan captured the essence of freedom of expression, a principle born out of centuries of struggle. Against that backdrop, Justice Brennan stressed that though some of the statements in the Times advertisement were false, that could not be the end of the matter, if only because “erroneous statement is inevitable in free debate.” He then drew on James Madison, the mind behind the First Amendment: “‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’” Given that, even certain false statements “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need... to survive.’” Brennan then articulated a rule best suited, he thought, to safeguarding freedom of speech and press without granting unbridled reign to intentional falsehoods: a public official cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Justice Black, the godfather of First Amendment absolutism, had some bold words of his own about freedom of the press: “The half-million-dollar verdict does give dramatic proof... that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to

11. New York Times Co v. Sullivan (1964) criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.” Such threats contravened the very principle of a free press in a free society. Stepping back, the Alabama-born justice then took a long look: “To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.” The law of land had been revolutionized – the people and the press were now free to speak up and out about racial injustice and other public wrongs without fear of oppressive damage awards being awarded by Alabama-like juries. Now, their “rising voices” could indeed be “heeded.” It was a great day for the First Amendment. In the words of the famous free- speech scholar, Alexander Meiklejohn, New York Times Co. v. Sullivan was “an occasion for dancing in the streets.”Alexander Meiklejohn

12. Intentional Torts Against Persons Disparagement or Trade Libel Business firms rely on their reputation and the quality of their products and services to attract and keep customers. That is why state unfair competition laws protect businesses from disparaging statements made by competitors or others. A disparaging statement is an untrue statement made by one person or business about the products, services, property, or reputation of another business. To prove disparagement (also called trade libel, product disparagement, and slander of title), the plaintiff must show that the defendant (1) made an untrue statement about the plaintiff’s products, services, property, or business reputation; (2) published that untrue statement to a third party; (3) knew the statement was not true; and (4) made the statement maliciously (i.e. with intent to injure the plaintiff).

13. Intentional Torts Against Persons Intentional Misrepresentation (Fraud) One of the most common business torts is intentional misrepresentation. This tort is also known as fraud or deceit. It occurs when a wrongdoer deceives another person out of money, property, or something else of value. The victim of this tort can recover damages from the wrongdoer. Four elements are required to find fraud: 1.The wrongdoer made a false representation of material fact. 2.The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party. 3.The innocent party justifiably relied on the misrepresentation. 4.The innocent party was injured. Item 2, which is called scienter, includes situations in which the wrongdoer recklessly disregards the truth in making a representation that is false. Intent or recklessness can be inferred from the circumstances.

14. Intentional Torts Against Persons Intentional Infliction of Emotional Distress (Tort of Outrage) In some situations, a victim may suffer mental or emotional distress without first being physically harmed. A person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for that emotional distress. The plaintiff must prove that the defendant’s conduct was “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 society”. An indignity, an annoyance, rough language, does not constitute outrageous behavior.

15. Intentional Torts Against Persons Malicious Prosecution A losing plaintiff in a case may have to worry about being sued by the defendant in a second lawsuit for malicious prosecution, which is a civil action for damages, if certain elements are met. To succeed in a malicious prosecution lawsuit, the courts require the plaintiff to prove all of the following: 1.The plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit. 2.There was no probable cause for the first lawsuit (that is, it was a frivolous lawsuit). 3.The plaintiff in the original action brought it with malice. 4.The original lawsuit was terminated in favor of the original defendant. 5.The current plaintiff suffered injury as a result of the original lawsuit. The courts do not look favorably on malicious prosecution lawsuits because they feel such lawsuits inhibit the original plaintiff’s incentive to sue.

16. Intentional Torts Against Property There are two general categories of property: real property and personal property. Real property consists of land and anything permanently attached to that land. Personal property consists of things that are movable, such as cars, books, clothes, and such. The law recognizes certain torts against real and personal property. Trespass to Land Interference with an owner’s right to exclusive possession of land constitutes the tort of trespass to land. There dose not have to be any interference with the owner’s use or enjoyment of the land; the ownership itself is what counts. Thus, unauthorized use of another person’s land is trespass even if the owner is not using it. Actual harm to the property is not necessary. (Entering another person’s land without permission, remaining on the land after permission to do so has expired, and causing something or someone to enter another’s land are examples of trespass to land).

17. Intentional Torts Against Property Trespass to and Conversion of Personal Property The tort of trespass to personal property occurs when one person injures another person’s personal property or interferes with that person’s enjoyment of his or her personal property. The injured party can sue for damages. For example, breaking another’s car window is trespass to personal property. Depriving a true owner of the use and enjoyment of his or her personal property and exercising ownership rights over it constitutes the tort of conversion of personal property. Conversion also occurs when someone who originally is given possession of personal property fails to return it. The rightful owner can sue to recover the property. If the property was lost or destroyed, the owner can sue to recover its value.