1. UT-Austin Edinburgh Summer Program 2008 Tort Law

2. UT-Austin Edinburgh Summer Program 2008 Tort Means “Wrong” Defamation -- making a false statement about someone - written or verbal Defamation -- making a false statement about someone - written or verbal Negligence -- performing wrong surgery Negligence -- performing wrong surgery Interference with contract -- stealing a client away from a competitor Interference with contract -- stealing a client away from a competitor Fraud -- offering to sell something that doesn’t exist Fraud -- offering to sell something that doesn’t exist A tort is a violation of a duty imposed by civil law. E.g.,

3. UT-Austin Edinburgh Summer Program 2008 Categories of Tort Law: Based on Defendant’s State of Mind Intentional Torts 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.) 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 Negligence and Strict Liability Unintentional torts Unintentional torts

4. UT-Austin Edinburgh Summer Program 2008 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 business or property rights (trespass, nuisance, fraud, conversion, product disparagement and interference with contract)

5. UT-Austin Edinburgh Summer Program 2008 Businesses and Tort Liability Why should businesspeople (or business students) care about personal torts? What do they have to do with business? Businesses can be vicariously liable for torts committed by their employees during the course of their employment, under the doctrine of “respondeat superior.”

6. UT-Austin Edinburgh Summer Program 2008 Compensatory Damages Damages may include money for three purposes: Damages may include money for three purposes: to restore any loss (such as medical expenses) caused by the illegal action 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 restore lost wages if the injury kept the defendant from working to compensate for pain and suffering to compensate for pain and suffering A jury may -- payment for injury --to a plaintiff who prevails in a civil suit. A jury may award compensatory damages -- payment for injury --to a plaintiff who prevails in a civil suit. The that the court must decide all damages -- past, present and future -- at one time and settle the matter completely. The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely.

7. UT-Austin Edinburgh Summer Program 2008 Punitive Damages While the purpose of compensatory damages is to help the victim recover what was lost, are intended to punish the guilty party. 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 Intended for conduct that is outrageous and extreme Designed to “make an example” out of the defendant and to deter others 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. 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

8. UT-Austin Edinburgh Summer Program 2008 is a touching of another person in a way that is unwanted or offensive. 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. 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. An intentional action that does hurt someone may be battery even if the injury is unintentional. Intentional Torts against Persons: Assault and Battery is an action that causes the victim to fear an imminent offensive contact. Assault is an action that causes the victim to fear an imminent offensive contact. Assault can occur without the contact ever happening. Assault can occur without the contact ever happening. Pulling a gun on someone -- even if it is unloaded -- is usually considered assault. Pulling a gun on someone -- even if it is unloaded -- is usually considered assault. Fear must be reasonable. Fear must be reasonable.

9. UT-Austin Edinburgh Summer Program 2008 Intentional Torts Against Persons False Imprisonment An employer who doesn’t let a sick employee go home might be guilty of 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. 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). 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 2008 Historically, no recovery was allowed if the injury was only emotional instead of physical. 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. Today, most courts allow a plaintiff to recover from a defendant who intentionally causes emotional injury. Behavior causing injury must be extreme and outrageous. Behavior causing injury must be extreme and outrageous. Must have caused serious emotional harm. Must have caused serious emotional harm. Some courts allow recovery for emotional injury caused by negligent behavior. Some courts allow recovery for emotional injury caused by negligent behavior. Intentional Infliction of Emotional Distress Roach v. Stern

11. UT-Austin Edinburgh Summer Program 2008 Intentional Torts Against Persons: Defamation Defamation is irresponsible speech to harm another’s reputation. Defamation is irresponsible speech to harm another’s reputation. Written Written defamation is libel. Verbal defamation is slander.

12. UT-Austin Edinburgh Summer Program 2008 There are four facts to prove to win a defamation suit: 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. be proven in slander cases; assumed in libel cases. Injury: must be proven in slander cases; assumed in libel cases. Intentional Torts Against Persons Defamation (cont’d)

13. UT-Austin Edinburgh Summer Program 2008 Defamation (cont’d) Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion. 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. Vague terms in the statement usually indicate it is an opinion, not a provable fact. Extreme exaggerations are usually not taken as fact. Extreme exaggerations are usually not taken as fact. “Mr. Smith is a jerk. He is insufferable. I think he is the stupidest, meanest person I have ever met.”

14. UT-Austin Edinburgh Summer Program 2008 Defamation (cont’d) Public Personalities Public Personalities Includes: 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 2008 Defamation: Defenses Truth Truth

16. UT-Austin Edinburgh Summer Program 2008 Defamation: Defenses Truth Privilege Privilege Defendants receive extra protection in special cases. Defendants receive extra protection in special cases. Sigal Construction Corp. v. Stansbury In courtrooms and legislatures, speakers have absolute privilege. They may speak freely, as long as they reasonably believe what they are saying is true.. This may happen when someone reports a suspected criminal act. When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a suspected criminal act.

17. UT-Austin Edinburgh Summer Program 2008 Privacy and Publicity Intrusion (prying into someone’s private life) is a tort if a reasonable person would find it offensive. Intrusion (prying into someone’s private life) is a tort if a reasonable person would find it offensive. Examples: wiretapping, stalking, peeping Examples: wiretapping, stalking, peeping Disclosure of Embarrassing Private Facts is when something extremely embarrassing is made Disclosure of Embarrassing Private Facts is when something extremely embarrassing is made public with no need for the public to know. So how do shock TV shows get away with humiliating people for fun and profit? False Light is when something false and offensive is told about someone. False Light is when something false and offensive is told about someone. Parody defense to defamation and false light torts: Flynt v. Falwell. Why is this a defense?

18. UT-Austin Edinburgh Summer Program 2008 False Advertising Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission. Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission. Midler case (not in your readings) Waits v. Frito-Lay

19. UT-Austin Edinburgh Summer Program 2008 Product Defamation State Statutes outlawing “defamation” of products Oprah and Texas beef Honda and emu ranchers

20. UT-Austin Edinburgh Summer Program 2008 Interference with Business Relations (a/k/a Interference with Contract) 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. 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. The defendant induced the third party to breach the contract or make performance impossible. There was injury to the plaintiff. There was injury to the plaintiff. Texaco v. Pennzoil

21. UT-Austin Edinburgh Summer Program 2008 Negligence Duty of due care -- there must be a duty owed to the plaintiff. Breach -- duty must be breached. Proximate cause -- it must have been foreseeable that the action would cause this kind of harm, AND action was actual cause of harm -- the plaintiff must have been hurt. Injury -- the plaintiff must have been hurt. Paintiff must prove:

22. UT-Austin Edinburgh Summer Program 2008 Duty of Care Foreseeable plaintiff Foreseeable plaintiff Dramshop/Social Host cases Dramshop/Social Host cases Minority view: social host is liable Minority view: social host is liable Is majority view when drinker is child Is majority view when drinker is child Landowner cases Landowner cases Trespasser Trespasser Licensee Licensee Invitee Invitee Izquierdo v. Gyroscope, Inc.

23. UT-Austin Edinburgh Summer Program 2008 Breach of Duty A defendant breaches his duty of due care by failing to behave the way a would under similar circumstances. What about: 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? Absent-minded defendants? Not very smart defendants? Not very smart defendants? Children? Children? Physical disabilities? Physical disabilities? Intoxicated defendants? Intoxicated defendants? Professionals? Professionals? Circumstances count Circumstances count Knowledgeable plaintiff Knowledgeable plaintiff Stressful situations Stressful situations

24. UT-Austin Edinburgh Summer Program 2008 Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers. 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. Analyze these situations using “reasonable person” standard. Breach of Duty (cont’d)

25. UT-Austin Edinburgh Summer Program 2008 Breach of Duty (cont’d) Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people. When a violation of that statute hurts a member of that group, the duty is breaof behavior. Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people. When a violation of that statute hurts a member of that group, the duty is breaof behavior. E.g., violation of regulatory standard of care E.g., violation of regulatory standard of care Outlawed behavior Outlawed behavior OSHA standards OSHA standards

26. UT-Austin Edinburgh Summer Program 2008 Causation -- if the defendant’s breach ultimately led to the injury, he is liable. 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. 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 Intervening causes can break the direct line Factual Cause + Foreseeable Harm = “Proximate Cause ”

27. UT-Austin Edinburgh Summer Program 2008 Factual Cause + Foreseeable Harm = “Proximate Cause ” Foreseeable Harm -- to be liable, this type of harm must have been foreseeable. 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. The defendant does not have to know exactly what would happen -- just the type of event. Palsgraf v. Long Island RR Ozzie Osbourne

28. UT-Austin Edinburgh Summer Program 2008 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...

29. UT-Austin Edinburgh Summer Program 2008 Injury & Damages Injury -- plaintiff must show genuine injury Injury -- plaintiff must show genuine injury Future injury may be compensated, but must be determined at the time of trial. 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. Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

30. UT-Austin Edinburgh Summer Program 2008 Defenses to Negligence Contributory Negligence Assumption of Risk Comparative Negligence

31. UT-Austin Edinburgh Summer Program 2008 Defenses to Negligence Contributory Negligence Contributory Negligence In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant. In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant. Assumption of Risk Assumption of Risk No recovery if plaintiff voluntarily assumed risk No recovery if plaintiff voluntarily assumed risk Comparative Negligence Comparative Negligence In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff. 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. In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.

32. UT-Austin Edinburgh Summer Program 2008 MORE EXAMPLES

33. UT-Austin Edinburgh Summer Program 2008 Strict Liability Defective Products-- may incur strict liability. Defective Products-- may incur strict liability. Ultrahazardous Activities -- defendants are virtually always held liable for harm. Ultrahazardous Activities -- defendants are virtually always held liable for harm. What is ultrahazardous? What is ultrahazardous? Plaintiff does not have to prove breach of duty or foreseeable harm. 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. 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.

34. UT-Austin Edinburgh Summer Program 2008 Strict Liability: “ultrahazardous” or “unreasonably dangerous” activity Historically Modern applications

35. UT-Austin Edinburgh Summer Program 2008 TORT REFORM: a good idea?