Tort Law and Product Liability Chapter 2. Tort Law Tort – Conduct that is either careless or intentional that results in harm or injury to a person or

Tort Law and Product Tort Law and Product LiabilityLiability

Chapter 2Chapter 2

Tort LawTort Law

Tort – Conduct that is either careless Tort – Conduct that is either careless or intentional that results in harm or or intentional that results in harm or injury to a person or propertyinjury to a person or property

Torts often result in a payment of Torts often result in a payment of monetary damages to the injured monetary damages to the injured party (Plaintiff) by the causing party party (Plaintiff) by the causing party (Defendant)(Defendant)

Torts include negligence, intentional Torts include negligence, intentional torts, and product liabilitytorts, and product liability

NegligenceNegligence

Negligence - Unintentional tort that Negligence - Unintentional tort that results in personal injuryresults in personal injury

Requires that four key elements are Requires that four key elements are provedproved Standard of CareStandard of Care Breach of dutyBreach of duty CausationCausation InjuryInjury

Standard of CareStandard of Care

Defined as the duty or responsibility of Defined as the duty or responsibility of the Defendant for the protection of the Defendant for the protection of othersothers

Based on –Based on – Case precedentCase precedent Rules and Regulations or State/Federal LawsRules and Regulations or State/Federal Laws Community Practice/Industry StandardCommunity Practice/Industry Standard Professional associations’ position Professional associations’ position

statementsstatements Agency and Organization ManualsAgency and Organization Manuals Expert opinionsExpert opinions

Standard of CareStandard of Care

Standard of care may also be triggered Standard of care may also be triggered by relationship to injured party (e.g., by relationship to injured party (e.g., lifeguard to swimmer)lifeguard to swimmer)

Once you begin to render aid, you have Once you begin to render aid, you have a duty to proceed with reasonable carea duty to proceed with reasonable care

If standard of care is based on a statute, If standard of care is based on a statute, violation of the statute is negligence per violation of the statute is negligence per se (as a matter of law)se (as a matter of law)

Breach of DutyBreach of Duty

Means that the standard of care was Means that the standard of care was not metnot met

Can arise out ofCan arise out of Case precedentCase precedent Rule, guideline, or statute violationRule, guideline, or statute violation Failure to follow position statementFailure to follow position statement Breach of agency policyBreach of agency policy

CausationCausation

Requires a connection between the Requires a connection between the breach of duty and the resulting injurybreach of duty and the resulting injury

Two types of causationTwo types of causation Cause in factCause in fact

Requires direct connection between Plaintiff’s Requires direct connection between Plaintiff’s injury and the Defendant’s action or omissioninjury and the Defendant’s action or omission

Can allow recovery from multiple DefendantsCan allow recovery from multiple Defendants Proximate causeProximate cause

Requires that the Defendant’s action or Requires that the Defendant’s action or omission and the injury are omission and the injury are stronglystrongly, if not , if not directly, linkeddirectly, linked

Commonly requires foreseeabilityCommonly requires foreseeability

InjuryInjury

Requires actual harm – clear and Requires actual harm – clear and convincing proof of physical or convincing proof of physical or emotional injuryemotional injury More than just hurt feelings or upsetMore than just hurt feelings or upset

DamagesDamages CompensatoryCompensatory

Pain and suffering, economic loss, loss of Pain and suffering, economic loss, loss of consortium, wrongful deathconsortium, wrongful death

PunitivePunitive Meant to punish DefendantMeant to punish Defendant

Gross NegligenceGross Negligence

Still unintentional, but requires a Still unintentional, but requires a higher degree of carelessnesshigher degree of carelessness

Some districts define it as willful, Some districts define it as willful, wanton, and reckless conduct which wanton, and reckless conduct which shows a disregard for the safety of shows a disregard for the safety of anotheranother

Negligence DefensesNegligence Defenses

Assumption of riskAssumption of risk Risk is inherent to the sportRisk is inherent to the sport

Inherent risk is one which cannot be removed Inherent risk is one which cannot be removed without fundamentally altering the activitywithout fundamentally altering the activity

Participant must voluntarily consent to be Participant must voluntarily consent to be exposed to the riskexposed to the risk

Consent may be express or impliedConsent may be express or implied Consent is only within rules of activityConsent is only within rules of activity

Participant must know, understand, and Participant must know, understand, and appreciate the inherent risk of the activityappreciate the inherent risk of the activity

Difficult to prove with regards to childrenDifficult to prove with regards to children


Express v. Implied Assumption of RiskExpress v. Implied Assumption of Risk ExpressExpress

Signed, written waiver which spells out risksSigned, written waiver which spells out risks Verbally – activity leader discusses risks, and Verbally – activity leader discusses risks, and

participant acknowledges those risks and participant acknowledges those risks and chooses to go forward with participationchooses to go forward with participation

ImpliedImplied Return participant, or one who has participated Return participant, or one who has participated

in identical activity previouslyin identical activity previously Spectators impliedly assume risk of injury Spectators impliedly assume risk of injury

from flying objects (e.g., baseballs, hockey from flying objects (e.g., baseballs, hockey pucks, etc.)pucks, etc.)


Contributory negligence – only in a Contributory negligence – only in a handful of districtshandful of districts Focuses on the negligent conduct of the Focuses on the negligent conduct of the

PlaintiffPlaintiff Is an absolute defense, regardless of Is an absolute defense, regardless of

how “guilty” each side ishow “guilty” each side is Comparative negligence – in the Comparative negligence – in the

majority of districtsmajority of districts Apportions damages based on Apportions damages based on

percentage of faultpercentage of fault

Intentional TortsIntentional Torts

A tort committed with intent to harmA tort committed with intent to harm Can be broken into categories – harm Can be broken into categories – harm

to persons and harm to propertyto persons and harm to property Harm to PersonsHarm to Persons

Assault and batteryAssault and battery Battery – intentional, harmful Battery – intentional, harmful oror offensive offensive

touching of another without their consenttouching of another without their consent Assault – the threat of a batteryAssault – the threat of a battery


Harm to persons (cont’d.)Harm to persons (cont’d.) Defamation Defamation

Must be:Must be: Untrue/FalseUntrue/False HarmfulHarmful Made to a third partyMade to a third party

Includes:Includes: Slander – Verbal defamationSlander – Verbal defamation Libel – Written defamationLibel – Written defamation

Public figures have less protection against Public figures have less protection against defamationdefamation

Requires showing of actual malice or reckless Requires showing of actual malice or reckless disregard for truthdisregard for truth

Intentional tortsIntentional torts

Harm to persons (cont’d.)Harm to persons (cont’d.) False ImprisonmentFalse Imprisonment

Requires intentional, wrongful, and Requires intentional, wrongful, and unreasonable imprisonment of anotherunreasonable imprisonment of another

““Imprisonment” merely means the “victim” Imprisonment” merely means the “victim” believes he cannot leavebelieves he cannot leave

As a sport manager, beware of the As a sport manager, beware of the reasonableness of your actions when reasonableness of your actions when detaining somebodydetaining somebody


Harm to persons (cont’d.)Harm to persons (cont’d.) Intentional Infliction of Emotional Intentional Infliction of Emotional

DistressDistress Requires a person to intentionally commit an Requires a person to intentionally commit an

act so extreme and outrageous that it act so extreme and outrageous that it results in severe emotional distress to results in severe emotional distress to another personanother person

Sometimes arises out of sexual harassment Sometimes arises out of sexual harassment and/or out of practical jokes gone wrong…and/or out of practical jokes gone wrong…


Harm to persons (cont’d.)Harm to persons (cont’d.) Invasion of the right to privacyInvasion of the right to privacy

Right to privacy stems from several amendments to Right to privacy stems from several amendments to the U.S. Constitutionthe U.S. Constitution

IncludesIncludes Appropriation – when someone uses, without Appropriation – when someone uses, without

permission and for their own benefit, the likeness, or permission and for their own benefit, the likeness, or other identifying characteristics of another personother identifying characteristics of another person

Intrusion – Invasion of a person’s home or personal Intrusion – Invasion of a person’s home or personal belongings without permissionbelongings without permission

False Light – virtually identical to defamationFalse Light – virtually identical to defamation Public Disclosure of Private Facts – when facts about a Public Disclosure of Private Facts – when facts about a

person’s private lifeperson’s private life


Harm to PropertyHarm to Property Includes personal property, as well as Includes personal property, as well as

real propertyreal property Trespass to Real PropertyTrespass to Real Property

When a person When a person intentionallyintentionally enters the land enters the land of another, or causes another person or of another, or causes another person or object to enter the land of another object to enter the land of another without without permission or necessitypermission or necessity

Does not require actual harm to the propertyDoes not require actual harm to the property


Harm to Property (cont’d.)Harm to Property (cont’d.) Trespass to Personal PropertyTrespass to Personal Property

The initial non-permitted taking of one’s The initial non-permitted taking of one’s personal propertypersonal property

If the property is not returned, the tort is If the property is not returned, the tort is switched to conversionswitched to conversion

Conversion is the taking and depriving Conversion is the taking and depriving another of his right to the exclusive another of his right to the exclusive possession of personal propertypossession of personal property


Harm to Property (cont’d.)Harm to Property (cont’d.) Disparagement of PropertyDisparagement of Property

When someone makes a false comment about When someone makes a false comment about the property of another, which results in harm the property of another, which results in harm to the ownerto the owner

Slander of title – pertains to the ownership or Slander of title – pertains to the ownership or title of someone’s property (false accusation title of someone’s property (false accusation that so and so’s property is actual stolen that so and so’s property is actual stolen goods)goods)

Slander of quality - pertains to the quality of Slander of quality - pertains to the quality of goods (false accusation that diamonds being goods (false accusation that diamonds being sold are fake)sold are fake)

Product LiabilityProduct Liability

Liability associated with harm caused Liability associated with harm caused by a consumer productby a consumer product

Initially, only seller was at risk – now Initially, only seller was at risk – now liability extends through entire chain liability extends through entire chain of manufactureof manufacture

When suing manufacturers under When suing manufacturers under product liability, you can claim product liability, you can claim negligence, strict liability, and/or negligence, strict liability, and/or breach of warrantybreach of warranty


Negligence of manufacturerNegligence of manufacturer Requires all four elements of negligence be claimedRequires all four elements of negligence be claimed Very difficult to win this type of case (one element Very difficult to win this type of case (one element

is often difficult to prove)is often difficult to prove) Strict liabilityStrict liability

Concept where liability results, regardless of faultConcept where liability results, regardless of fault Only requires Plaintiff to show product was Only requires Plaintiff to show product was

defective when it left the Defendant’s hands and defective when it left the Defendant’s hands and that the defect caused the Plaintiff’s injuriesthat the defect caused the Plaintiff’s injuries

Puts onus on manufacturer to anticipate hazards Puts onus on manufacturer to anticipate hazards and guard against themand guard against them


Breach of warrantyBreach of warranty Not a tort theory, but a contractual remedyNot a tort theory, but a contractual remedy Commonly used when consumer is Commonly used when consumer is

dissatisfied and wants product repaired or dissatisfied and wants product repaired or replacedreplaced

Based on premise of contract between Based on premise of contract between manufacturer and consumer to provide a manufacturer and consumer to provide a product that meets certain requirementsproduct that meets certain requirements

Generally not used in PI casesGenerally not used in PI cases Warranty can be express or impliedWarranty can be express or implied


Breach of WarrantyBreach of Warranty Implied warranty fitnessImplied warranty fitness

Exists when retailer, distributor, or Exists when retailer, distributor, or manufacturer knows goods are meant for a manufacturer knows goods are meant for a certain purpose, and the consumer is relying certain purpose, and the consumer is relying on that purpose in purchasing the goodson that purpose in purchasing the goods

Implied warranty of merchantabilityImplied warranty of merchantability An implied promise by the seller that the An implied promise by the seller that the

product is reasonably appropriate for the product is reasonably appropriate for the general purpose for which it was sold.general purpose for which it was sold.

All warranties can be modified, All warranties can be modified, disclaimed, and/or limiteddisclaimed, and/or limited


Types of defectsTypes of defects Manufacturing defectManufacturing defect

Exists when a product is manufactured incorrectlyExists when a product is manufactured incorrectly A certain “lot” may be defectiveA certain “lot” may be defective

Design defectDesign defect Exists when a product is unreasonably designedExists when a product is unreasonably designed Means Means allall such products are defective such products are defective Requires a risk-utility approachRequires a risk-utility approach

Foreseeable risks could have been reduced or avoided Foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative designby the adoption of a reasonable alternative design


Manufacturers have a duty to warn Manufacturers have a duty to warn consumers of dangers that are inherent consumers of dangers that are inherent in the reasonable use of the productin the reasonable use of the product

Must also warn customers of dangers Must also warn customers of dangers resulting from foreseeable misuses of resulting from foreseeable misuses of the productthe product

Warnings must be reasonable, easy to Warnings must be reasonable, easy to read and comprehend, and conspicuousread and comprehend, and conspicuous

Documents

Tort Law and Product Liability Chapter 2. Tort Law Tort – Conduct that is either careless or intentional that results in harm or injury to a person or