Chapter 4

• Tort – Wrongful Actions

• Tort Law – addresses those who have suffered injuries as a result of the wrongful conduct of others.

• Tort Law provides remedies in regard to “protected interests.”

• These include

– Physical Safety (physical injuries)

– Emotional Distress

– Real and Personal Property (damage to)

– Intangible Interests

– Privacy

– Family Relationships (invasion of)• (adultery)

– Reputation

Two Broad Classifications:

• Intentional vs. Negligent

– Intentional – the tortfeasor (one committing the tort) must intend to commit the act, the consequences of which interfere with the personal or business interests of another that are not permitted by law.

***evil motive is not required (i.e. pushing)

Assault and Battery

• Assault – any intentional, unexcused act that creates in another a reasonable apprehension or fear of immediate harm

• Apprehension vs. fear – apprehension is the expectation of a harmful act

• Battery – the completion of that act that caused fear or apprehension

• Unexcused and harmful or offensive physical contact intentionally

• Compensation – plaintiff may receive compensation for actual harm or emotional harm

• Defenses against Assault & Battery• Consent – other person consented to the act that damages

them• Self-Defense – a persons action was done to protect

themselves from harm• Defense of Others – a person can act in a reasonable

manner to protect others who are in real or apparent danger• Defense of Property – Reasonable force may be used in

attempting to remove intruders from personal property through force …force that is likely to cause death or great injury cannot be used to protect property.

• False Imprisonment – the intentional confinement or restraint of another person without justification.

– Probable Cause – enough evidence to question

reasonable manner and reasonable time

• Emotional Distress – intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

– Difficult to prove

• Defamation – involves wrongfully hurting a person’s good reputation

– Libel – written

– Slander – verbal

– Something other than the defamed person. (product or business)

• Publication – means the defamatory statements have been made to someone other than the individual

– Damages for Defamation – • Slander- Plaintiff must prove “Special Damages” –

– the defamation causes actual Economic or monetary losses (temporary)

• Libel – general damages – written is permanent, can be circulated

• Four types of utterances considered slander:

– A statement that another has a loathsome communicable disease.

– A statement that another has committed improprieties while engaging in a profession or trade.

– A statement that another has committed or has been imprisoned for a serious crime.

– A statement that a woman had engaged in serious sexual misconduct.

• TRUTH is the only Defense.

– Privileged Communications are exempt

– Absolute – government proceedings» Courtroom

» Legislative debates

– Qualified/conditional – • related to a matter of public interest

• when statement is necessary to protect a person’s private interest

• made to another person with an interest in the same subject matter.

• Public Figures – as long as statements are not made with “malice” they will not be subject to defamation

» “publicity”

Celebrity Defamation

• http://www.personal-injury-info.net/celebrity-lawsuits.htm

• Invasion of the right to Privacy –

• Four Acts qualify as this:• Use of a person’s name, picture or other likeness for

commercial purpose without permission. (called appropriation)• Intrusion into an individual’s affairs or seclusion.(wire tapping)• Publishing of information that places a person in a false light.• Public disclosure of private facts about an individual that an

ordinary person would find objectionable (financial/medical)

• Fraudulent Misrepresentation (fraud) – intentional deceit for personal gain

– Elements of fraud:– Misrepresentation of facts or conditions with

knowledge that they are false or with reckless disregard for the truth

– An intent to induce another to rely on the misrepresentation

– Justifiable reliance by the deceived party– Damages suffered as a result of the reliance.– A casual connection between the

misrepresentation and the injury suffered.» Puffery – seller’s talk (i.e “best”)

Wrongful Interference• Contractual relationship

– Elements:

• A valid enforceable contract must exist between two parties

• A third party must know that the contract exists.• The third party must intentionally cause either of

the two parties to breach the contract.

• Business relationship

• Predatory vs. competitive – predatory involves unlawful actions that drive competitors completely out of the market

– Defense – if they can prove it was justified• (Marketing was so good a business chooses to

cancel a contract)

Intentional Torts against Property

• Real – attached to the land

• Personal – removable

• Trespass – occurs whenever a person without permission enters onto, above, or below the surface of land that is owned by another, causes anything to enter onto the land, or permits anything to remain on it.

• Criteria:

• if there is posting

• Refuses to leave

• Enters without permission

• Trespasser is liable for any damages to the property and generally cannot hold the landowner liable or any injuries sustained on the premises.

• Reasonable duty of care – guard dogs• Attractive nuisance – children

– Defenses – » Warranted (helping someone in danger) or Licensed

(central hudson, purchase of a ticket to sporting event)

• Trespass to Personal Property

• When an individual unlawfully harms the personal property of another or otherwise interferes with the personal property owner’s rights to possession or enjoyment of that property (trespass to personalty)

• Conversion – personal property is wrongfully taken and placed in the service of another

» Can be innocent – stolen goods

– Defense – necessity

• Disparagement of Property

– Economic injury when falsehoods are made about another’s product or property (not reputation)

• Slander of Quality – publication of false information about another’s product alleging that it is not what it claims. *Must prove economic injury

• Slander of Title – a publication denies or casts doubt on another’s legal ownership of any property that results in financial loss

• Unintentional Torts (Negligence)

– Someone suffers injury because of another’s failure to live up to the required duty of care. The tortfeasor neither wished to bring about the consequences of the act or believes that they will occur. The tortfeasor merely creates a risk.

• Elements– Did the defendant owe a duty of care to the plaintiff?– Did the defendant breach that duty?– Did the plaintiff suffer a legally recognizable injury as a result of

the defendant’s breach of the duty of care?– Did the defendant’s breach cause the plaintiff injury?

– Duty of Care – when someone fails to comply with the duty of exercise reasonable care a tort may have been committed.

• Can be direct action or careless

• Courts consider the nature of the act • Determining breach of duty of care…

– Reasonable Person Standard – how a person should act (versus would act)

• Duty of landowners – exercise reasonable care for anyone who comes onto the premises – personal and business

• Duty of Professionals – usually a code of ethics accepted by the profession

• Hippocratic Oath – medical• GAAP – Generally accepted Accounting Principles

(Arthur Anderson---Enron)

• Compensatory Damages – reimbursement for actual losses

• Punitive Damages – “extra” compensation due to the severity of the negligence

• Also called gross negligence

• Causation – for a tort to be committed it must have been “caused” by the defendant or could it have happened anyway

(camp fire)

– Proximate cause – is there a strong enough connection between the act and the injury?

• Forseeability – could someone “see” that the action may cause injury

• Defenses to Negligence• Assumption of risk – the plaintiff voluntarily enters the risky

situation. (race car driver)

• Superseding Cause – an unforeseeable intervening event may break the connection to the act and the injury (lightning)

• Contributory Negligence – when a plaintiff did not use reasonable care

• Comparative Negligence – looks at the responsibility of both sides when deciding a case

• Special Negligence Doctrines and Statutes• Res Ipsa Loquitur – (the facts speak for themselves)

the defendant must prove there was no negligence• Negligence per se – if an individual violates a statute or

an ordinance providing for a criminal penalty and that violation causes another to be injured

– the statute clearly sets out what standard of conduct is expected

– that the plaintiff intended to be protected by the statute– statute was intended to protect such an injury

• Danger invites Rescue Doctrine

– If someone is “helping” or rescuing another in harm’s way or danger

• Special Negligence Statutes

– Good Samaritan statutes – mainly for medical professionals offering emergency help

– Dram Shop Acts – responsible for intoxicated persons

– Strict Liability – other than fault situations