1. Torts Chapter 4

2. Terminology Intentional tort – a wrongful act that was knowingly committed Tortfeasor – one who commits a tort Assault – any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat Battery – the unconsented to and intentional touching of another person

3. Assault and Battery No need to show motive just that it was intentional Objective threat standard – why not subjective? Defenses: –Consent –Self defense –Defense of others –Defense of property –These come with a reasonableness standard

4. More Torts False Imprisonment –The intentional confinement of restraint of another person’s activities without justification –Cannot have an escape –May be detained by threat of physical harm but the threat must be in the present E.g. I will beat you up the next time I see you if you leave is not false imprisonment

5. False Imprisonment Store owners often want to detain shoplifters –May be false imprisonment –Some states have passed laws allowing shop keepers to detain people they suspect of shoplifting if the shop keeper has reasonable cause and does not keep the person for an unreasonable amount of time.

6. Infliction of Emotional Distress In most jurisdiction you have to prove some type of physical pain or suffering Behavior has to be outrageous Why the second requirement? Under restatement you can be liable to a third person if they are harmed

7. Defamation Wrongfully hurting a person’s good reputation –Slander – oral defamation –Libel – written statement Common law has four false utterances which require no proof of being actionable –Utterance that an other has a communicable disease –Statement that another has committed an impropriety in business –Statement that another has committed a serious crime –A statement that an unmarried woman is unchaste

8. Defamation Has to be publicized –Writing a letter won’t be enough –Dictating a letter may be enough –Any conversation in which a third person overhears it may be enough to make it public Defenses –Truth –Privileged statements – absolute or qualified

9. Invasion of the right of privacy Four major acts constitute a violation –The use of a person’s name, picture, other other likeness for commercial purposes without permission –Intrusion into another’s affairs –Publication of information that places a person in a false light –Public disclosure of private facts about a person that an ordinary person would find objectionable

10. Appropriation The use of another person’s name or likeness Example Vanna White

11. Misrepresentation Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth Intent to induce another to rely on the misrepresentation Justifiable reliance by the deceived party Damages suffered as result of reliance Casual connection between the misrep and the injury

12. Wrongful Interference 3 elements that must exist –A valid enforceable contract must exist between the two parties –A third party must know the contract exists –The third party must intentionally cause either of the two parties to breach the contract

13. Wrongful interference Cont. Can engage in competitive behavior but not behavior that is predatory Critical question are you soliciting customers or trying to get customers that are interested in only your competitor Defenses –Interference must be justifiable or permissable

14. Intentional Torts Against Property Trespass – occurs when a person without permission enters above or below the surface or cause something to enter above or below the surface of another’s property –Normally you are not liable for the injuries of trespassers This is changing and a reasonable care standard is being established Attractive nuisance: sand pile that attracts children

15. Defenses to Tresspass Invited Licensee

16. Trespass to personal property The taking or interfering with another’s personal property –Exceptions provided by statute (artisans lien) Conversion – the unlawful taking and putting to use of another’s personal property Defenses –Necessity –Superior right to property

17. Disparagement of Property Slander of quality (Trade Slander) –Must show proximate cause such as a person not buying because of the slander –Must prove that there were damages –Oprah Winfrey Slander of Title –X publishes false statement’s about Y’s title to land and therefore no one will buy

18. Negligence Tort of negligence occurs when someone is injured because of someone’s failure to abide by a duty of care Four questions –Did the defendant’s owe a duty of care –Did the defendant breach that duty –Did the plaintiff suffer a recognizable injury –Did the defendant’s breach cause the plaintiff’s injury

19. Duty of Care Usually involves a reasonable person standard Definition: the duty of all persons established by tort law to exercise a reasonable amount of care in dealings with others.

20. Reasonable Care Do you have to come to someone’s aid? What about landowners? –Is there a different standard for when someone is a trespasser? –What if you are a business owner? Walmart Case – if defendant store has actual or constructive notice of dangerous situation they owe duty of care –However if self service store then they must anticipate the situation

21. Duty of Professionals Duty of care takes into consideration minimum standards of competence –Accountants cannot say I did not know that principle of accounting existed Malpractice is often the resulting claim

22. Injury Requirement and Damages Injury has to result for damages to be awarded –Damages may be compensatory or punitive Have to also prove causation – Causation in fact – act or omission caused the damage “But for” test –Proximate Cause = strong enough connection to justify holding the defendant responsible

23. Defenses to Negligence Assumption of Risk –Plaintiff entered into the situation knowing the risks Need to show 1) knowledge of the risk 2) assumption of risk which can be inferred from conduct Exceptions are employees and those acting in emergency situations –Superseding Cause – something that breaks the chain of causation.

24. Contributory Negligence You have to exercise reasonable care in watching out for dangerous situations Under common law any contributory negligence would prevent recovery by Plaintiff In some states contributory negligence is not a bar to recovery if there is a “last clear chance” for the defendant to avoid the harm

25. Comparative Negligence Most states now allow for comparative negligence In these cases the court looks at the fault of the defendant and compares is the fault of the plaintiff and if defendant is more at fault they have to pay up Some states use an 80/20 rule

26. Special Negligence Standards Res Ispa Loquitor –The facts speak for themselves –Example: can’t move knee after a knee surgery Negligence Per Se –P must prove three things That they were owed a duty of care under the statute That the statute clearly sets out the conduct required by the defendant Statute was designed to prevent the type of injury inflicted

27. Other Special Standards “Danger Invites Rescue” – just because a third party was negligent does not relieve the defendant of liability if he created the danger that invited rescue by a third party Good Samaritan Laws: protect good samaritans Dram Shop Acts: Cannot serve those who are intoxicated or you may be liable for their damages –Social hosts may be included

28. Strict Liability Often comes into play when social considerations demand it: keeping of dangerous animals or using dynamite Product liability: Manufacturer is responsible for harmful or defective products –Manufacturer is better equipped to pay the damaes –Manufacture is profiting from sales.