Chapter 5
TORTS: AN INTRODUCTION
• Tort (a “wrong”): An actionable
civil wrong, not arising from a breach
of contract or other agreement. A breach of legal duty (imposed by law) that
proximately (i.e., DIRECTLY) causes
harm or injury to another. Some useful
definitions:
• Actionable Civil Wrong: A
wrongful act or omission capable
as serving as the basis for a lawsuit.
• Civil vs. Criminal
Wrong: A tort is a “civil” wrong, punishable by compensating, or paying damages to,
the injured party, rather than a “criminal” wrong, punishable by paying a fine
to the government and/or being imprisoned. Some torts may also serve as the
basis for separate criminal prosecution by the state.
• Tort vs. Contract:
A tort, with a few well-defined exceptions, does not
arise from a breach of contract or other agreement. Therefore, the duty that is
violated by the tortfeasor (i.e., the “wrongdoer”) must exist as a
matter of law, not as a consequence of any agreement between
the tortfeasor and the injured party.
• Proximate Cause:
An injury or harm is proximately caused by an act or omission if it appears
that the injury or harm was either a direct result or a reasonably
probable consequence of the act or omission.
INTENTIONAL
TORTS: PHYSICAL ACTS
[Here against a person or business]
• Assault: An intentional,
unexcused act creating in another person reasonable apprehension or fear of
immediate harmful or offensive contact (e.g., pointing a gun at someone). It is
Non Contact: i.e., freedom
from having to expect harmful or offensive contact.
•
• False
Imprisonment: The intentional confinement of another person or restraint of another
person’s activities without justification. The confinement may occur through
the use of physical barriers, physical restraint, and/or threats of physical
force. Note: Shoplifters often use this
as a method to sue but lose due to probable cause.
• Intentional
Infliction of Emotional Distress: An intentional
act that amounts to extreme and outrageous conduct resulting
in severe emotional distress to another. Consider: death
of a family member. Continued
extreme methods to collect debts. See case 5.1 Roach v. Stern.
INTENTIONAL TORTS:
LEGAL DEFENSES Against An Otherwise Tortuous
Act
• Consent:
When a plaintiff consents to the act that damages him or her, the alleged
tortfeasor generally is not liable for any damage done.
• Self-Defense: An individual defending his or her
life or physical well-being, either from real or apparent danger,
may use reasonably necessary force, or resort to reasonably necessary
action, to prevent harmful contact. This
included killing the other person IF necessary (deadly force). Note: this defense
is NOT available when the danger has passed. In other words, revenge is not acceptable.
• Defense of Property: An individual may use reasonable force to remove an
intruder from the individual’s home or to restrain the intruder for a
reasonable time. Force that is likely to cause death or serious bodily injury
(i.e., deadly force) normally may not
be used solely to protect property.
• Defense
or Assistance of Others: An individual can
act in a reasonable manner to protect or assist others who are in real or
apparent danger.
• Necessity:
An otherwise tortuous act may be excused if the tortfeasor acted in accordance
with law or the public good.
DEFAMATION
• Defamation:
Anything published or publicly spoken that injures another’s character,
reputation, or good name.
• Libel:
Defamation in written
form. Includes pictures, signs, statutes, films.
• Slander:
Defamation in oral
form.
• ABSOLUTELY
ESSENTIAL:
The “Publication” Requirement: To be actionable, the statement must
have been communicated to persons other than the defamed party.
Examples
of “publication”: Dictation
to Secretary
Internet
chat room
Newspaper/newsletter
Private
meetings of more than just the two persons involved
LEGAL
DEFENSES TO DEFAMATION
• Truth: Truth is normally an absolute defense.
In other words, if the allegedly defamatory words were objectively true,
the defendant cannot be held liable for publishing them.
• Privilege: The ability to act
contrary to another person’s right without giving legal redress for such acts.
• Absolute
Privilege: Statements made and/or actions taken in judicial and certain
legislative proceedings (e.g., statements made by attorneys during trial,
statements made by legislators during floor debate) are privileged against any
claim of wrongful conduct.
• Qualified
Privilege: In other situations, statements or actions made in good faith and,
in the case of statements, made only to those who have a legitimate interest in
the statement, are privileged.
·
Statements in evaluations: if made in
good faith and limited to only those who need to know, they are ok.
• Absence (or lack) of Malice:
Generally speaking, otherwise false and defamatory statements made about public
figures are privileged unless they are made with actual malice that
is, with either knowledge of falsity or reckless disregard of the truth
or falsity.
DEFAMATION
PER SE
• Defamation Per Se: Common law
recognizes four types of false
utterances that constitute defamation without defense or
justification:
(1) that another has a loathsome communicable disease (e.g., a
sexually-transmitted disease);
(2) that
another has committed improprieties while engaging in a profession or trade;
(3) that
another has committed or has been imprisoned for a serious crime; and
(4) that
an unmarried woman is unchaste.
Let’s Consider: On-line (computer) defamation – what is it
really??
Is it Libel? “published”- data
may be stored
Is it Slander? (arguably spontaneous)- spoken with fingers not unlike sign
language
What is considered
to be spoken? What is the difference
between TTY and a chat room?
INTENTIONAL
TORTS: PRIVACY
• Invasion
of Privacy: Common law recognizes four acts that qualify as improperly
infringing on another’s privacy:
(1) Appropriation: the
use of a person’s name, picture, or other likeness for commercial purposes
without their permission;
(2) Intrusion in an individual’s
affairs or seclusion in an area in which the person has a reasonable
expectation of privacy
For
example, Searching a home? Drug tests? Blood testing? Window peeping?
(3) Publication of information that places a person in false light
(includes defamation) ; and
(4) Public disclosure of private facts about an individual that an ordinary
person would find objectionable.
i.e., review of person’s spending habits
without their permission.
INTENTIONAL
TORTS: FRAUD
• Fraud/Fraudulent Misrepresentation:
Intentional deceit,
usually for personal gain. Actionable fraud
consists of the following elements:
(1) A misstatement or omission of a material fact,
(2) made knowingly or with reckless disregard for the truth,
(3) and with the intention of deceiving
another by inducing them to rely on the misrepresentation,
(4)
on which a
reasonable person would justifiably rely to his or her detriment, and
(5)
on which the injured party
did, in fact, rely to his or her detriment.
Compare:
Mere puffery, or “seller’s talk,” will not
give rise to a cause of action for fraud, because such claims involve opinions,
not facts, and therefore cannot be justifiably relied upon by a reasonable
person. However, statements of opinion may give rise to a claim of fraud
if the party expressing the opinion has a superior knowledge of the subject
matter. (i.e., a CPA, attorney, doctor or other professional)
Wrongful
Interference
Interference
with (existing) Contract: The tort of
interference with contract requires proof of the following:
1. A valid contract exists between the parties X and Y;
2. A third party, Z, KNOWS that the contract exists, AND
3. Z intentionally causes X or Y to breach the contract.
See
Case 5.2, Kallok v. Medtronic, Inc.
Interference
with Business Relationship: Interference with a prospective business relationship is
also actionable, where
1. While no contract or other business relationship presently exists between X and Y, Z
knows or has reason to believe that X and Y might enter into a business
relationship, by contract or otherwise AND
2. Z intentionally interferes with X’s attempt to
establish a business relationship with Y.
In
either case, Z’s interference will be justified only if Z can establish that it
was privileged or justified to act as he did.
For example, effective advertising is usually not an actionable matter.
INTENTIONAL TORTS AGAINST
PROPERTY:
TRESPASS & CONVERSION
• Trespass to Land: Entry onto, above, or
below the surface of land owned by another without the owner’s permission or
legal authorization. Consider oil
wells- drainage. Also, compare airplanes.
• Trespass to Personal Property: Taking
or harming another’s personal property, in such a way as to interfere with the
other person’s right to exclusive possession of his or her personal property,
without the owner’s permission or legal authorization.
Consider: The focus of trespass is injury to the landowner’s enjoyment of his or her real or
personal property, not injury to the property itself.
Taking property is trespass/ Retaining property is
Conversion
• Conversion: Taking, using,
selling, or retaining possession of personal property that belongs to another
without the other's permission or legal authorization for the benefit of the tortfeasor.
Consider: Each of the foregoing assume that the
purported owner has a superior right of possession.
NEGLIGENCE:
BASIC PRINCIPLES
Negligence: Failing to exercise the standard of care that a reasonable
person would exercise in similar circumstances. ç EXTREMELY
IMPORTANT!!!
• In contrast to intentional torts,
negligence requires no intent on the part of the
tortfeasor, nor does it require that the tortfeasor know or believe the
consequences that his or her act or omission may cause. Negligence merely requires that the tortfeasor’s act or omission create a risk of the
consequences complained of by the injured party. ç ALSO
EXTREMELY IMPORTANT J
In
other words, negligence involves NO intent and/or NO knowledge or belief. Point: It is the act that creates the risk,
not what the person’s intent was. (i.e., YOU: I didn’t mean to hit her with my car. ME: Probably ever so true, but it is still negligence.)
• Actionable negligence requires that: (i.e., the plaintiff must prove)
(1) the tortfeasor owed a duty of care to the plaintiff,
(2) which the tortfeasor breached, (causation) and
(3) which
(a) actually causes
(b) a
legally recognizable injury to the plaintiff.
NEGLIGENCE:
DUTY OF CARE
• Duty
of Care: The duty of
all persons to exercise reasonable care in their dealings with others.
• Reasonable
Care: The degree of care expected of a hypothetical “reasonable
person”; not necessarily how a reasonable person would act, rather how a
reasonable person should act. (i.e., moral)
• Tort law
presumes
that the reasonable person will be:
• attentive,
aware of his or her environs,
• careful,
• conscientious,
• even
tempered, and
• honest.
NEGLIGENCE:
PREMISES & PROFESSIONALS
• Duties of Landowners
-- Landowners are expected to exercise reasonable care to protect from harm
those persons coming onto their property è even
trespassers.
• Business Invitees:
Retailers and other business that explicitly or implicitly invite persons to
come onto their premises are expected to exercise reasonable care toward these business
invitees.
CONSIDER: Attractive Nuisance (kids in swimming pool at an apartment)
• “Dram Shop” Liability:
Many jurisdictions hold that a business, and in some jurisdictions an
individual, that served alcoholic beverages to a person after he or she arrived
intoxicated or became intoxicated is liable for any injuries caused by the
intoxicated patron or guest.
Check
out case 5.3, Martin v. Wal-Mart Stores, Inc.
• Duties of Professionals --
If an individual has knowledge, skill, or expertise superior to that of the
ordinary person, the individual is held to that standard of care expected of a
reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a
“reasonable professional” can result in the professional being subject to
liability for professional malpractice.
****NOTE
THAT There is no duty to Rescue: This is an ethical and moral
issue, NOT a legal requirement.*****
Compare: a failure to
stop and aid in an accident IS actionable.
Consider: Good Samaritan
laws designed to protect those who do try to help.
NEGLIGENCE:
INJURY AND DAMAGES
• Recall the purpose of tort law is to
compensate those who suffer legally recognizable injuries. If no such
injury occurs, no tort exists and there is nothing to compensate.
• Damages
-- Tort law recognizes two categories of damages:
• Compensatory
Damages, designed to reimburse the plaintiff for the actual value of the
plaintiffs injury or loss, and
• Punitive
Damages, designed to punish the tortfeasor for particularly egregious conduct
and to deter similar conduct in the future.
Consider: Punitive damages:
This is what caused all the backlash against
the evil lawyers-- $$$$
NEGLIGENCE:
CAUSATION
• Causation in Fact: An act or omission without which
plaintiff’s injury would not have occurred.
• Proximate Cause exists when the connection
between an act and an injury
is direct enough to impose liability.
The act must be the proximate
cause of the injury. i.e., The “But For” Test.
• A common and critical element of
proximate cause is foreseeability: if the consequences
of the act or omission and/or the victim who is harmed by the act or omission is/are unforeseeable, no
proximate cause exists. Consider
Palsgraf – the case which examined the
concept of being outside
the zone of danger nor the danger reasonably foreseen. See Case 5.4, page 102. This case in some
fashion WILL BE on the exam.
• Independent Intervening Force(s) The connection between the wrongful act or omission and the
injury suffered may be broken by the occurrence of another act or omission, not
caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s
control, which supersedes the original wrongful act or omission as the cause of
plaintiff’s injury or loss. Example of bike accident and
airplane crash injury.
• Res Ipsa Loquitur: (the facts speak for themselves) A doctrine under which negligence may be inferred to have caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence.
DEFENSE
TO NEGLIGENCE:
ASSUMPTION OF RISK
·
Assumption of
Risk: A plaintiff who
voluntarily enters a risky situation, knowing the risk involved, may not
recover from the alleged tortfeasor. In
order to establish assumption of risk, the defendant must prove that the
plaintiff:
(1) had knowledge of the risk inherent in a situation and
(2) voluntarily entered into the risky situation.
• NOTICE: Risk
may be assumed
by express agreement or be implied by plaintiffs
knowledge and conduct.
• Plaintiff does not assume risk other than those
inherent in the situation.
• Assumption of risk will not arise in emergencies.
• “Good
Samaritan” Statutes: Many states have passed legislation preventing
those who are aided voluntarily from then suing the person who rendered the
assistance.
• Assumption of risk will not arise when the plaintiff is a
member of a class of persons protected from harm by statute.
Superceding intervening cause.
CONTRIBUTORY
AND
COMPARATIVE
NEGLIGENCE
• Contributory Negligence: No matter how insignificant the
plaintiffs own negligence is when compared to that of the defendant, in a
minority of jurisdictions any negligence on the part of the plaintiff that
contributed in any way to the injury of which plaintiff complains will bar the
plaintiff from recovering damages from defendant.
• Comparative
Negligence: More popular today than contributory negligence, a
comparative negligence scheme permits plaintiff to recover only for the
percentage of his or her injury or loss that was not caused by plaintiffs own
negligence.
• “50% Caps” Some jurisdictions further
refuse to permit a negligent plaintiff from recovering any damages if the
plaintiff is responsible for more than 50% of his or her own injury or loss.
NEGLIGENCE PER SE
Negligence
Per Se: (in and of itself) An act or omission in
violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal
statute or ordinance and causes injury to another party.
• Plaintiff must prove that:
(1) the statute or
ordinance clearly sets out what standard of conduct is expected, when it is
expected, and of whom it is expected,
(2) plaintiff is in the
class of persons intended to be protected by the statute or ordinance, and
(3) the statute or
ordinance was intended to prevent the type of injury which plaintiff suffered
as a result of defendant’s wrongful act.
Recall the good Samaritan
laws.