Download ppt - UT-Austin Edinburgh Summer Program 2008 Tort Law

UT-Austin Edinburgh Summer Program 2008

Tort Law


Tort Means “Wrong”

Defamation -- making a false statement Defamation -- making a false statement about someone - written or verbal about someone - written or verbal

Negligence -- performing wrong surgeryNegligence -- performing wrong surgery Interference with contract -- stealing a client Interference with contract -- stealing a client

away from a competitoraway from a competitor Fraud -- offering to sell something that Fraud -- offering to sell something that

doesn’t existdoesn’t exist

A tort is a violation of a duty imposed by civil law. E.g.,


Categories of Tort Law: Based on Defendant’s State of Mind

Intentional TortsIntentional TortsDoes not necessarily require an intention to Does not necessarily require an intention to

harmharm the victim, only an intention to the victim, only an intention to perform the perform the actact which caused the injury. which caused the injury. (Intentionally (Intentionally throwing an object, but not meaning to hit throwing an object, but not meaning to hit anyone is a tort if it causes injury to someone.)anyone is a tort if it causes injury to someone.)

Negligence and Strict LiabilityNegligence and Strict LiabilityUnintentional tortsUnintentional torts


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)


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.”


Compensatory Damages

Damages may include money for three purposes:Damages may include money for three purposes:to restore any loss (such as medical expenses) to restore any loss (such as medical expenses)

caused by the illegal actioncaused by the illegal actionto restore lost wages if the injury kept the defendant to restore lost wages if the injury kept the defendant

from workingfrom workingto compensate for pain and sufferingto compensate for pain and suffering

A jury may A jury may award compensatory damages -- payment -- payment for injury --to a plaintiff who prevails in a civil suit.for injury --to a plaintiff who prevails in a civil suit.

The The Single Recovery Principle mandates that the court must that the court must decide all damages -- past, present and future -- at one time decide all damages -- past, present and future -- at one time and settle the matter completely.and settle the matter completely.


Punitive Damages While the purpose of compensatory damages is to While the purpose of compensatory damages is to

help the victim recover what was lost, help the victim recover what was lost, punitive damages are intended to punish the guilty party. are intended to punish the guilty party.Intended for conduct that is outrageous and Intended for conduct that is outrageous and

extremeextremeDesigned to “make an example” out of the Designed to “make an example” out of the

defendant and to deter othersdefendant and to deter others

Sometimes punitive damage awards are huge, but in most cases they Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded.are close to or less than the amount of compensatory damages awarded.

BMW v. Gore


Battery is a touching of another person in a way that is is a touching of another person in a way that is unwanted or offensive.unwanted or offensive.The touch does not have to hurt the victim -- sexual The touch does not have to hurt the victim -- sexual

touching that is offensive, but not painful, is battery.touching that is offensive, but not painful, is battery.An intentional action that does hurt someone may be An intentional action that does hurt someone may be

battery even if the injury is unintentional.battery even if the injury is unintentional.

Intentional Torts against Persons: Assault and Battery

Assault is an action that causes the victim to fear an is an action that causes the victim to fear an imminent offensive contact.imminent offensive contact.Assault can occur without the contact ever happening.Assault can occur without the contact ever happening.Pulling a gun on someone -- Pulling a gun on someone -- even if it is unloadedeven if it is unloaded -- is -- is

usually considered assault.usually considered assault.Fear must be reasonable.Fear must be reasonable.


Intentional Torts Against Persons False Imprisonment

An employer who doesn’t let a sick employee go An employer who doesn’t let a sick employee go home might be guilty of false imprisonment.home might be guilty of false imprisonment.

If the police detain a person with no reason to suspect If the police detain a person with no reason to suspect him of any crime, it could be false imprisonment.him of any crime, it could be false imprisonment.

In general, a store may detain a person suspected of In general, a store may detain a person suspected of shoplifting if there is a reasonable basis for the charge shoplifting if there is a reasonable basis for the charge and the detention is done reasonably (in private and and the detention is done reasonably (in private and for a reasonable time).for a reasonable time).

False imprisonment is the restraint of someone against their will and without reasonable cause.


Historically, no recovery was allowed if the Historically, no recovery was allowed if the injury was only emotional instead of physical.injury was only emotional instead of physical.

Today, most courts allow a plaintiff to recover Today, most courts allow a plaintiff to recover from a defendant who intentionally causes from a defendant who intentionally causes emotional injury.emotional injury.Behavior causing injury must be extreme and Behavior causing injury must be extreme and

outrageous.outrageous.Must have caused serious emotional harm. Must have caused serious emotional harm.

Some courts allow recovery for emotional injury Some courts allow recovery for emotional injury caused by negligent behavior.caused by negligent behavior.

Intentional Infliction of Emotional Distress

• Roach v. Stern


Intentional Torts Against Persons: Defamation

Defamation is irresponsible speech Defamation is irresponsible speech to harm another’s reputation.to harm another’s reputation.

Written Written defamation is libel.Verbal defamation is slander.


There are four facts to prove to win a There are four facts to prove to win a defamation suit:defamation suit:Defamatory statement: injury to reputation.Falsity: The statement is false.Publication/communication: The statement

was communicated to a third party.Injury: must be proven in slander cases; be proven in slander cases;

assumed in libel cases.assumed in libel cases.

Intentional Torts Against Persons Defamation (cont’d)

Intentional Torts Against Persons Defamation (cont’d)


Defamation (cont’d)

Opinion -- to be defamation, the statement must Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion.be provable and not simply someone’s opinion.Vague terms in the statement usually indicate it is an Vague terms in the statement usually indicate it is an

opinion, not a provable fact.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.”


Defamation (cont’d)

Public PersonalitiesPublic PersonalitiesIncludes: 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.


Defamation: Defenses

TruthTruth


Defamation: Defenses

Truth PrivilegePrivilege

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.

When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a . This may happen when someone reports a suspected criminal act.suspected criminal act.


Privacy and Publicity IntrusionIntrusion (prying into someone’s private life) is a (prying into someone’s private life) is a

tort if a reasonable person would find it offensive.tort if a reasonable person would find it offensive.Examples: wiretapping, stalking, peepingExamples: wiretapping, stalking, peeping

Disclosure of Embarrassing Private FactsDisclosure of Embarrassing Private Facts is when something is when something extremely embarrassing is made 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 LightFalse Light is when something false and offensive is told about someone. 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?


False Advertising

Commercial ExploitationCommercial Exploitation is when a person’s image or voice is used for is when a person’s image or voice is used for commercial purposes without that person’s permissioncommercial purposes without that person’s permission..Midler case (not in your readings) Waits v. Frito-Lay


Product Defamation

• State Statutes outlawing “defamation” of products

• Oprah and Texas beef

• Honda and emu ranchers


Interference with Business Relations (a/k/a Interference with Contract)

Interference with a contract exists if the plaintiff can prove Interference with a contract exists if the plaintiff can prove these elements:these elements:There was a contract between the plaintiff and a third party and There was a contract between the plaintiff and a third party and

the defendant knew of the contract.the defendant knew of the contract.The defendant induced the third party to breach the contract or The defendant induced the third party to breach the contract or

make performance impossible.make performance impossible.There was injury to the plaintiff.There was injury to the plaintiff.

• Texaco v. Pennzoil


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

Injury -- the plaintiff must have been hurt. -- the plaintiff must have been hurt.

Paintiff must prove:


Duty of Care

Foreseeable plaintiffForeseeable plaintiff Dramshop/Social Host casesDramshop/Social Host cases

Minority view: social host is liableMinority view: social host is liable Is majority view when drinker is childIs majority view when drinker is child

Landowner casesLandowner casesTrespasserTrespasserLicenseeLicensee InviteeInviteeIzquierdo v. Gyroscope, Inc.


Breach of Duty A defendant breaches his duty of due care by failing to behave the way a A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. What about: 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 countCircumstances count Knowledgeable plaintiffKnowledgeable plaintiff Stressful situationsStressful situations


Companies and Employees -- courts have found companies Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, liable for hiring and retaining employees known to be violent, when those employees later injured co-workers.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)


Breach of Duty (cont’d)

Negligence per seNegligence per se -- in special cases, legislatures set a minimum standard for certain -- 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 groups of people. When a violation of that statute hurts a member of that group, the duty is breaof behavior.is breaof behavior.

E.g., violation of regulatory standard of careE.g., violation of regulatory standard of care Outlawed behaviorOutlawed behavior OSHA standardsOSHA standards


Causation

Factual Cause -- if the defendant’s breach ultimately led to -- if the defendant’s breach ultimately led to the injury, he is liable.the injury, he is liable.Does not have to be the immediate cause of injury, but must Does not have to be the immediate cause of injury, but must

be the first in the direct line.be the first in the direct line.Intervening causes can break the direct lineIntervening causes can break the direct line

Factual Cause + Foreseeable Harm = “Proximate Cause”


Factual Cause + Foreseeable Harm = “Proximate Cause”

Foreseeable Harm -- to be liable, this type of Foreseeable Harm -- to be liable, this type of harm must have been foreseeable.harm must have been foreseeable.The defendant does not have to know exactly The defendant does not have to know exactly

what would happen -- just the type of event.what would happen -- just the type of event.Palsgraf v. Long Island RROzzie Osbourne


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


causes...


causes...


Injury & Damages

Injury -- plaintiff must show genuine injuryInjury -- plaintiff must show genuine injuryFuture injury may be compensated, but must Future injury may be compensated, but must

be determined at the time of trial.be determined at the time of trial.

Damages -- are usually compensatory, Damages -- are usually compensatory, designed to restore what was lost. In designed to restore what was lost. In unusual cases, they may be punitive.unusual cases, they may be punitive.


Defenses to Negligence

Contributory Negligence

Assumption of Risk

Comparative Negligence


Defenses to Negligence Contributory NegligenceContributory Negligence

In a few states, if the plaintiff is AT ALL negligent, he cannot In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendantrecover damages from the defendant..

Assumption of RiskAssumption of RiskNo recovery if plaintiff voluntarily assumed riskNo recovery if plaintiff voluntarily assumed risk

Comparative NegligenceComparative NegligenceIn most states, if the plaintiff is negligent, a In most states, if the plaintiff is negligent, a

percentage of negligence is applied to both the percentage of negligence is applied to both the defendant and the plaintiff.defendant and the plaintiff.

In some cases, a plaintiff found to be more than In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.50% negligent cannot recover at all.


MORE EXAMPLESScenario #1: Contributory Negl. Comparative Negl. Comparative Negl. Assumption of Risk

(50% cutoff) (no cutoff)

P's Damages $100,000P's fault 49%D's fault 51%D's Liability $0 $51,000 $51,000 $0

Scenario #2:

P's Damages $100,000P's fault 85%D's fault 15%D's Liability $0 $0 15,000.00$ $0


Strict Liability

Defective Products-- may incur strict liability.Defective Products-- may incur strict liability.

Ultrahazardous Activities -- defendants are Ultrahazardous Activities -- defendants are virtually always heldvirtually always held liable for harmliable for harm..What is ultrahazardous? What is ultrahazardous? Plaintiff does not have to prove breach of duty or Plaintiff does not have to prove breach of duty or

foreseeable harm.foreseeable harm.Comparative negligence does not apply -- Comparative negligence does not apply --

defendant engaging in ultrahazardous activity is defendant engaging in ultrahazardous activity is wholly liable.wholly liable.

Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability.


Strict Liability:

• “ultrahazardous” or “unreasonably dangerous” activity

• Historically

• Modern applications


TORT REFORM: a good idea?