1. Tort Law and Product Liability
Chapter 2

2. Tort Law
Tort – Conduct that is either careless or intentional that results in harm or injury to a person or property
Torts often result in a payment of monetary damages to the injured party (Plaintiff) by the causing party (Defendant)
Torts include negligence, intentional torts, and product liability

3. Negligence
Negligence - Unintentional tort that results in personal injury
Requires that four key elements are proved
Standard of Care
Breach of duty
Causation
Injury

4. Standard of Care
Defined as the duty or responsibility of the Defendant for the protection of others
Based on –
Case precedent
Rules and Regulations or State/Federal Laws
Community Practice/Industry Standard
Professional associations’ position statements
Agency and Organization Manuals
Expert opinions

5. Standard of Care
Standard of care may also be triggered by relationship to injured party (e.g., lifeguard to swimmer)
Once you begin to render aid, you have a duty to proceed with reasonable care
If standard of care is based on a statute, violation of the statute is negligence per se (as a matter of law)

6. Breach of Duty Means that the standard of care was not met
Can arise out of
Case precedent
Rule, guideline, or statute violation
Failure to follow position statement
Breach of agency policy

7. Causation
Requires a connection between the breach of duty and the resulting injury
Two types of causation
Cause in fact
Requires direct connection between Plaintiff’s injury and the Defendant’s action or omission
Can allow recovery from multiple Defendants
Proximate cause
Requires that the Defendant’s action or omission and the injury are strongly, if not directly, linked
Commonly requires foreseeability

8. Injury
Requires actual harm – clear and convincing proof of physical or emotional injury
More than just hurt feelings or upset
Damages
Compensatory
Pain and suffering, economic loss, loss of consortium, wrongful death
Punitive
Meant to punish Defendant

9. Gross Negligence
Still unintentional, but requires a higher degree of carelessness
Some districts define it as willful, wanton, and reckless conduct which shows a disregard for the safety of another

10. Negligence Defenses Assumption of risk Risk is inherent to the sport
Inherent risk is one which cannot be removed without fundamentally altering the activity
Participant must voluntarily consent to be exposed to the risk
Consent may be express or implied
Consent is only within rules of activity
Participant must know, understand, and appreciate the inherent risk of the activity
Difficult to prove with regards to children

11. Negligence Defenses Express v. Implied Assumption of Risk Express
Signed, written waiver which spells out risks
Verbally – activity leader discusses risks, and participant acknowledges those risks and chooses to go forward with participation
Implied
Return participant, or one who has participated in identical activity previously
Spectators impliedly assume risk of injury from flying objects (e.g., baseballs, hockey pucks, etc.)

12. Negligence Defenses
Contributory negligence – only in a handful of districts
Focuses on the negligent conduct of the Plaintiff
Is an absolute defense, regardless of how “guilty” each side is
Comparative negligence – in the majority of districts
Apportions damages based on percentage of fault

13. Intentional Torts A tort committed with intent to harm
Can be broken into categories – harm to persons and harm to property
Harm to Persons
Assault and battery
Battery – intentional, harmful or offensive touching of another without their consent
Assault – the threat of a battery

14. Intentional Torts Harm to persons (cont’d.) Defamation Must be:
Untrue/False
Harmful
Made to a third party
Includes:
Slander – Verbal defamation
Libel – Written defamation
Public figures have less protection against defamation
Requires showing of actual malice or reckless disregard for truth

15. Intentional torts Harm to persons (cont’d.) False Imprisonment
Requires intentional, wrongful, and unreasonable imprisonment of another
“Imprisonment” merely means the “victim” believes he cannot leave
As a sport manager, beware of the reasonableness of your actions when detaining somebody

16. Intentional Torts Harm to persons (cont’d.)
Intentional Infliction of Emotional Distress
Requires a person to intentionally commit an act so extreme and outrageous that it results in severe emotional distress to another person
Sometimes arises out of sexual harassment and/or out of practical jokes gone wrong…

17. Intentional Torts Harm to persons (cont’d.)
Invasion of the right to privacy
Right to privacy stems from several amendments to the U.S. Constitution
Includes
Appropriation – when someone uses, without permission and for their own benefit, the likeness, or other identifying characteristics of another person
Intrusion – Invasion of a person’s home or personal belongings without permission
False Light – virtually identical to defamation
Public Disclosure of Private Facts – when facts about a person’s private life

18. Intentional Torts Harm to Property
Includes personal property, as well as real property
Trespass to Real Property
When a person intentionally enters the land of another, or causes another person or object to enter the land of another without permission or necessity
Does not require actual harm to the property

19. Intentional Torts Harm to Property (cont’d.)
Trespass to Personal Property
The initial non-permitted taking of one’s personal property
If the property is not returned, the tort is switched to conversion
Conversion is the taking and depriving another of his right to the exclusive possession of personal property

20. Intentional Torts Harm to Property (cont’d.) Disparagement of Property
When someone makes a false comment about the property of another, which results in harm to the owner
Slander of title – pertains to the ownership or title of someone’s property (false accusation that so and so’s property is actual stolen goods)
Slander of quality - pertains to the quality of goods (false accusation that diamonds being sold are fake)

21. Product Liability
Liability associated with harm caused by a consumer product
Initially, only seller was at risk – now liability extends through entire chain of manufacture
When suing manufacturers under product liability, you can claim negligence, strict liability, and/or breach of warranty

22. Product Liability Negligence of manufacturer Strict liability
Requires all four elements of negligence be claimed
Very difficult to win this type of case (one element is often difficult to prove)
Strict liability
Concept where liability results, regardless of fault
Only requires Plaintiff to show product was defective when it left the Defendant’s hands and that the defect caused the Plaintiff’s injuries
Puts onus on manufacturer to anticipate hazards and guard against them

23. Product Liability Breach of warranty
Not a tort theory, but a contractual remedy
Commonly used when consumer is dissatisfied and wants product repaired or replaced
Based on premise of contract between manufacturer and consumer to provide a product that meets certain requirements
Generally not used in PI cases
Warranty can be express or implied

24. Product Liability Breach of Warranty Implied warranty fitness
Exists when retailer, distributor, or manufacturer knows goods are meant for a certain purpose, and the consumer is relying on that purpose in purchasing the goods
Implied warranty of merchantability
An implied promise by the seller that the product is reasonably appropriate for the general purpose for which it was sold.
All warranties can be modified, disclaimed, and/or limited

25. Product Liability Types of defects Manufacturing defect Design defect
Exists when a product is manufactured incorrectly
A certain “lot” may be defective
Design defect
Exists when a product is unreasonably designed
Means all such products are defective
Requires a risk-utility approach
Foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design

26. Product Liability
Manufacturers have a duty to warn consumers of dangers that are inherent in the reasonable use of the product
Must also warn customers of dangers resulting from foreseeable misuses of the product
Warnings must be reasonable, easy to read and comprehend, and conspicuous