2 §1: Basis of Tort Law Doing business today involves risks, both legal and financial. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. There are intentional and unintentional (negligence) torts.
3 §2: Intentional Torts Against Person and Business Relationships The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: üTortfeasor intended the consequences of his/her act; or üHe/she knew with substantial certainty that certain consequences would result.
4 Types of Intentional Torts Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts.
5 Assault Intentional, unexcused act that: üCreates a reasonable apprehension of fear, or üImmediate harmful or offensive contact. NO CONTACT NECESSARY.
6 Battery Battery is the completion of the Assault: üIntentional or Unexcused. üHarmful, Offensive or Unwelcome. üPhysical Contact.
7 Defenses to Assault & Battery Consent. Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Property.
8 False Imprisonment The Intentional confinement or restraint. Of another person’s activities. Without justification. Merchants may reasonably detain customers if there is probable cause.
9 Intentional Infliction of Emotional Distress An intentional act that is: üExtreme and outrageous, that üResults in severe emotional distress in another. Most courts require some physical symptom or illness.
10 Defamation Right to free speech is constrained by duty we owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel.
11 Defamation Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. Publication requires communication to a 3rd party.
12 Defamation-Damages [1] Damages for Libel. üGeneral Damages are presumed; Plaintiff does not have to show actual injury. üGeneral damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.
13 Defamation-Damages [2] Damages for Slander. üRule: Plaintiff must prove “special damages” (actual economic loss). üExceptions for Slander Per Se (loathsome disease, business improprieties, serious crime, non-chaste).
14 Defamation-Defenses Truth is generally an absolute defense. Privileged (or Immune) Speech. üAbsolute: judicial & legislative proceedings. üQualified: Employee Evaluations.
15 Invasion of Privacy Every person has a fundamental right to solitude freedom from public scrutiny. üUse of Person’s Name or Likeness. üIntrusion on Individual’s Affairs or Seclusion. üPublication of Information that Places a Person in False Light. üPublic Disclosure of Private Facts.
16 Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.
17 Fraud Fraudulent misrepresentation involves intentional deceit: üMisrepresentation of material fact; üIntent to induce another to rely; üJustifiable reliance by innocent party; üDamages as a result of reliance; üCausal connection.
18 Wrongful Interference Tort that interferes with a contractual relationship. Occurs when: üDefendant knows about contract between A and B; üIntentionally induces either A or B to breach the contract; and üDefendant benefits from breach.
19 Wrongful Interference With a Business Relationship occurs when: üEstablished business relationship; üTortfeasor, using predatory methods, causes relationship to end; and üPlaintiff suffers damages. Bona fide competitive behavior is a defense to this tort.
20 §3: Intentional Torts to Property Trespass to land occurs when a person, without permission: üPhysically enters onto, above or below the surface of another’s land; or üCauses anything to enter onto the land; or üRemains, or permits anything to remain, on the land.
21 Intentional Torts to Property [2] Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege. Disparagement of Property. Slander of Title or Quality.
22 Criminal v Tort? 1. At a downtown bar, Walter drinks to excess. As he is driving home, at the first intersection, he strikes and injures a pedestrian who was crossing with the light. Walter’s blood alcohol level proves to be twice the legal limit. 2. Believing he is entitled to Paula’s typewriter, Ralph takes it.. 3. A mugger, gun drawn, sneaks up behind Steve on the street. A police officer seizes the mugger before Steve realizes what is happening.. 4. Tina is dying. Victor refuses to donate blood to save him.
23 §4: Negligence Tortfeasor does not intend the consequences of the act or believes they will occur. Actor’s conduct merely creates a foreseeable risk of injury. Analysis: üDefendant owed Plaintiff a duty of care; üDefendant breached that duty; üPlaintiff suffered legal injury; üDefendant’s breach caused the injury.
24 Donoghue V Stevenson case
25 Vietnamese case The fly-in-bottle lawsuit Tan Hiep Phat
40 Duty of Care Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. Courts use reasonable person standard (jury) to determine whether duty exists.
26 Duty of Care: Foreseeability The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury).
27 Duty of Care Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff. Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.
28 Injury and Damages To recover, Plaintiff must show legally recognizable injury. Compensatory Damages are designed to reimburse Plaintiff for actual losses. Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.
29 Causation Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. üCausation in Fact, and üProximate Cause.
30 Causation in Fact Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.
31 Proximate Causation An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. Foreseeability of injury is an important factor. Think of proximate cause as an unbroken chain of events.
32 Ex: Factual Cause & Foreseeable Harm Mechanic fails to fix Car Factual Mechanic cause and customer’s accident, is liable to foreseeable brakes, which car hitting cyclist type of causes... bicyclist injury
Noise from Factual
Car Mechanic is cause, but accident startles accident, NOT liable no someone who car hitting for falling foreseeable falls out a person bicyclist type of window injury
Car accident, Mechanic No
car Bicyclist hits is NOT pothole and factual does not hit liable to cause bicyclist crashes cyclist Defenses to Negligence
Assumption of Risk. Superseding Intervening Cause. Contributory or Comparative Negligence.
34 Assumption of Risk Plaintiff has adequate notice and understanding of the risks associated with an activity. He knowingly and willingly engages in the act anyway. Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.
35 Superseding Cause act and Plaintiff’s injury relieving DeA unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s fendant of liability. If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.
36 Contributory Negligence [1] Under common law, if Plaintiff if any way caused his injury, he was barred from recovery. Most states have replaced contributory negligence with the doctrine of comparative negligence. The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.
37 Comparative Negligence In determining liability, the amount of damages a Plaintiff causes to himself are subtracted from the amount of damages suffered by the Plaintiff, and only the remainder is recoverable from the Defendant. However, if Plaintiff is more than 50% liable, he recovers nothing.
38 Discussion Driving in a car, at a blind spot in the road, Walter honks his horn three times. Two blocks away, an elderly woman believes the horn is an air raid siren and suffers a heart attack. Walter honked his horn, and the honking caused the woman’s death.
