1. UT-Austin Edinburgh Summer Program 2002 Tort Means “Wrong” Defamation -- making a false statement about someone - written or verbal Negligence -- performing wrong surgery Interference with contract -- stealing a client away from a competitor Fraud -- offering to sell something that doesn’t exist A tort is a violation of a duty imposed by civil law.

2. UT-Austin Edinburgh Summer Program 2002 Tort vs. Criminal or Contract Law Criminal Law -- behavior classified as dangerous to society; prosecuted by the government, whether victim wants to prosecute or not; money award goes to the government Contract Law -- based on breach of an agreement between the two parties; victim prosecutes and receives compensation or restitution. Tort Law -- based on an obligation imposed by the law with no agreement needed between parties; victim prosecutes and receives compensation or restitution.

3. UT-Austin Edinburgh Summer Program 2002 Categories of Tort Law: Based on Defendant’s State of Mind Intentional Torts –Does not necessarily require an intention to harm the victim, only an intention to perform the act which caused the injury. (Intentionally throwing an object, but not meaning to hit anyone is a tort if it causes injury to someone.) Negligence and Strict Liability –Unintentional torts

4. UT-Austin Edinburgh Summer Program 2002 Categories of Tort Law: Based on Rights at Stake Infringements of personal rights (assault, battery, false imprisonment, defamation, intentional infliction of emotional distress and invasion of privacy) vs. Infringements of property rights (trespass, nuisance, fraud, conversion, product disparagement and interference with contract)

5. UT-Austin Edinburgh Summer Program 2002 Trespass is intentionally entering land that belongs to someone else or remaining after being asked to leave. –Keeping an object, such as a vehicle, on someone else’s land and refusing to move it is also trespassing. –You may be trespassing if you enter someone’s property mistakenly believing it is public property. Trespass, Conversion, and Fraud Intentional Torts Against Property:

6. UT-Austin Edinburgh Summer Program 2002 Conversion is taking or using someone’s property without consent (civil law version of theft). Trespass, Conversion, and Fraud Fraud is injuring another person by deliberate deception. (We will discuss fraud in more detail in the context of contract law.) Intentional Torts Against Property:

7. UT-Austin Edinburgh Summer Program 2002 Battery is a touching of another person in a way that is unwanted or offensive. –The touch does not have to hurt the victim -- sexual touching that is offensive, but not painful, is battery. –An intentional action that does hurt someone may be battery even if the injury is unintentional. Intentional Torts against Persons: Assault and Battery Assault is an action that causes the victim to fear an imminent offensive contact. –Assault can occur without the contact ever happening. –Pulling a gun on someone -- even if it is unloaded -- is usually considered assault. –Fear must be reasonable.

8. UT-Austin Edinburgh Summer Program 2002 Historically, no recovery was allowed if the injury was only emotional instead of physical. Today, most courts allow a plaintiff to recover from a defendant who intentionally causes emotional injury. –Behavior causing injury must be extreme and outrageous. –Must have caused serious emotional harm. Some courts allow recovery for emotional injury caused by negligent behavior. Intentional Infliction of Emotional Distress Roach v. Stern

9. UT-Austin Edinburgh Summer Program 2002 Intentional Torts Against Persons False Imprisonment An employer who doesn’t let a sick employee go home might be guilty of false imprisonment. If the police detain a person with no reason to suspect him of any crime, it could be false imprisonment. In general, a store may detain a person suspected of shoplifting if there is a reasonable basis for the charge and the detention is done reasonably (in private and for a reasonable time). False imprisonment is the restraint of someone against their will and without reasonable cause.

10. UT-Austin Edinburgh Summer Program 2002 Intentional Torts Against Persons: Defamation Defamation is irresponsible speech to harm another’s reputation. –Written defamation is libel. –Verbal defamation is slander.

11. UT-Austin Edinburgh Summer Program 2002 There are four facts to prove to win a defamation suit: –Defamatory statement: injury to reputation. –Falsity: The statement is false. –Publication/communication: The statement was communicated to a third party. –Injury: must be proven in slander cases; assumed in libel cases. Intentional Torts Against Persons Defamation (cont’d)

12. UT-Austin Edinburgh Summer Program 2002 Defamation (cont’d) Slander per se -- some statements are so harsh and potentially damaging that the plaintiff is assumed to be damaged and does not have to prove injury. –Accusations of committing a serious crime –Claims of having a sexually transmitted disease or of being an unchaste woman (gender bias in the law) –Alleged professional incompetence

13. UT-Austin Edinburgh Summer Program 2002 Defamation (cont’d) Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion. –Vague terms in the statement usually indicate it is an opinion, not a provable fact. –Extreme exaggerations are usually not taken as fact.

14. UT-Austin Edinburgh Summer Program 2002 Defamation (cont’d) Public Personalities –Includes: public officials (police and politicians) and public figures (movie stars and other celebrities) –Public personalities have a harder time winning a defamation case because they have to prove that the defendant acted with actual malice.

15. UT-Austin Edinburgh Summer Program 2002 Defamation (cont’d) Privilege –Defendants receive extra protection in special cases. –In courtrooms and legislatures, speakers have absolute privilege. They may speak freely, as long as it is true. –When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a suspected criminal act.

16. UT-Austin Edinburgh Summer Program 2002 Privacy and Publicity Intrusion (prying into someone’s private life) is a tort if a reasonable person would find it offensive. –Examples: wiretapping, stalking, peeping –Would this include buying your personal information from your credit card company? Disclosure of Embarrassing Private Facts is when something extremely embarrassing is made public with no need for the public to know.

17. UT-Austin Edinburgh Summer Program 2002 Privacy and Publicity False Light is when something false and offensive is told about someone. –Midler case – False light privacy, defamation, and parody: Flynt v. Falwell – Waits v. Frito-Lay (not in your readings) Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission.

18. UT-Austin Edinburgh Summer Program 2002 Compensatory Damages Damages may include money for three purposes: –to restore any loss (such as medical expenses) caused by the illegal action –to restore lost wages if the injury kept the defendant from working –to compensate for pain and suffering A jury may award compensatory damages -- payment for injury --to a plaintiff who prevails in a civil suit. The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely.

19. UT-Austin Edinburgh Summer Program 2002 Punitive Damages While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party. –Intended for conduct that is outrageous and extreme –Designed to “make an example” out of the defendant and to deter others Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded. BMW v. Gore

20. UT-Austin Edinburgh Summer Program 2002 Business Torts Interference with business relations –Interference with a contract –Interference with a prospective advantage The rights to privacy and publicity Violations of the Lanham Act Intentional torts that occur almost exclusively in a business setting are called business torts.

21. UT-Austin Edinburgh Summer Program 2002 Interference with Business Relations Interference with a contract exists if the plaintiff can prove these elements: –There was a contract between the plaintiff and a third party and the defendant knew of the contract. –The defendant induced the third party to breach the contract or make performance impossible. –There was injury to the plaintiff. Texaco v. Pennzoil Kallok v. Medtronic

22. UT-Austin Edinburgh Summer Program 2002 Interference with Business Relations Interference with prospective advantage exists: –when there is a relationship which gives the plaintiff a reasonable expectation of economic advantage, even though no contract exists –when the defendant maliciously interferes and prevents the relationship from developing

23. UT-Austin Edinburgh Summer Program 2002 Interference with Business Relations The defendant can justify the interference if he can prove one or more of these elements: –He was protecting an existing economic interest. –He was protecting a public interest.

24. UT-Austin Edinburgh Summer Program 2002 The Lanham Act (passed in 1946, amended in 1988) This statute prohibits -- and provides punishment for -- false statements made by a business intended to hurt another business. To win a case under this act, the plaintiff must prove three things: –The defendant made false or misleading fact statements about the plaintiff’s business –The defendant used the statements in commercial advertising or promotion –The statements created a likelihood of harm to the plaintiff

25. UT-Austin Edinburgh Summer Program 2002 Product Defamation State Statutes outlawing “defamation” of products Oprah and Texas beef Honda and emu ranchers

26. UT-Austin Edinburgh Summer Program 2002 Negligence - - Duty of due care -- there must be a duty owed to the plaintiff. Breach -- duty must be breached. Factual cause -- the injury must have been caused by the defendant’s actions. Foreseeable harm -- it must have been foreseeable that the action would cause this kind of harm. Injury -- the plaintiff must have been hurt. To win a negligence case, the plaintiff must prove that the defendant failed in five areas: “The Unintentional Tort”

27. UT-Austin Edinburgh Summer Program 2002 Duty of Care Foreseeable plaintiff Dramshop/Social Host cases –Minority view: social host is liable –Is majority view when drinker is child Landowner cases –Trespasser –Licensee –Invitee Martin v. Walmart Stores

28. UT-Austin Edinburgh Summer Program 2002 Breach of Duty A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. What about: –Absent-minded defendants? –Not very smart defendants? –Children? –Physical disabilities? –Intoxicated defendants? –Professionals? Circumstances count –Knowledgeable plaintiff –Stressful situations

29. UT-Austin Edinburgh Summer Program 2002 Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers. Analyze these situations using “reasonable person” standard. Breach of Duty (cont’d)

30. UT-Austin Edinburgh Summer Program 2002 Breach of Duty (cont’d) Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people (esp. children). When a violation of that statute hurts a member of that group, the duty is breached. E.g., violation of regulatory standard of care –Outlawed behavior –OSHA standards

31. UT-Austin Edinburgh Summer Program 2002 Causation “proximate causation”  what is it?

32. UT-Austin Edinburgh Summer Program 2002 Factual Cause + Foreseeable Harm = “Proximate Cause” Factual Cause -- if the defendant’s breach ultimately led to the injury, he is liable. –Does not have to be the immediate cause of injury, but must be the first in the direct line. –Intervening causes can break the direct line Foreseeable Harm -- to be liable, this type of harm must have been foreseeable. –The defendant does not have to know exactly what would happen -- just the type of event. –Palsgraf v. Long Island RR Res Ipsa Loquitur

33. UT-Austin Edinburgh Summer Program 2002 Ex: Factual Cause & Foreseeable Harm Mechanic fails to fix customer’s brakes, which causes... Car accident, car hitting bicyclist Mechanic is liable to cyclist Car accident, car hitting bicyclist Noise from accident startles someone who falls out a window Mechanic is NOT liable for falling person Factual cause and foreseeable type of injury Factual cause, but no foreseeable type of injury Mechanic fails to fix customer’s brakes, which causes...

34. UT-Austin Edinburgh Summer Program 2002 Injury & Damages Injury -- plaintiff must show genuine injury –Future injury may be compensated, but must be determined at the time of trial. Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

35. UT-Austin Edinburgh Summer Program 2002 Defenses to Negligence Contributory Negligence –In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant. Assumption of Risk –No recovery if plaintiff voluntarily assumed risk Comparative Negligence –In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff. –In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.

36. UT-Austin Edinburgh Summer Program 2002 Defenses to Negligence EXAMPLE #1: Crews v. Hollenbach

37. UT-Austin Edinburgh Summer Program 2002 MORE EXAMPLES

38. UT-Austin Edinburgh Summer Program 2002 Strict Liability Defective Products-- may incur strict liability. Ultrahazardous Activities -- defendants are virtually always held liable for harm. –What is ultrahazardous? Includes using harmful chemicals, explosives and keeping wild animals. –Plaintiff does not have to prove breach of duty or foreseeable harm. –Comparative negligence does not apply -- defendant engaging in ultrahazardous activity is wholly liable. Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability.

39. UT-Austin Edinburgh Summer Program 2002 TORT REFORM: a good idea?