1. Elements of Torts
Chapter 6

2. Business and Torts Arises from careless errors or intentional actions
Lawsuits involving businesses often have large awards, i.e. Pennzoil-Texaco case: Jury awarded $10.5 billion to the plaintiff
Plaintiffs think of businesses as “deep pockets”
Business liable under agency law if tort results in activity “within the scope of worker’s employment”
Types
Negligence (Unintentional)
Intentional
Strict Liability (Without fault) (Ch. 7)
Torts Particular to Property (Ch. 8)

3. The Role of Tort Law Means “wrong” from French originally:
A civil wrong, other than a breach of contract, for which the law provides a remedy
A breach of a duty owed to another that causes harm
Compensation for injuries wrongfully inflicted by the defendant on the plaintiff
Civil, not criminal law
Law is determined in each state--rules vary
However, the basic principles are similar among all states
Remedies should place injured party in the position he/she would have been in prior to the tort
Fear of tort action deters injurious behavior by others
Punitive damages punish malicious behavior

4. TORTS BASED ON NEGLIGENCE
Unintentional careless conduct that creates an unreasonable risk of harm to others
Breach of duty of care
Owed to the plaintiff
Breach through an act or omission
Causation (causal connection to the injury)
Injury/Damages
There can be a negligence action even if there was no intent to do harm

5. Negligence: Duty of Care and the Reasonable Person Standard
The standard is how persons in the relative community ought to behave
One must be reasonable at all times, under all circumstances
Standard: “What a reasonable person would do in same or similar circumstances”
Applies to professions--Reasonable CPA, MD, attorney, etc.

6. Squish La Fish v. Thomco Specialty Products
Squish holds patent on “Tuna Squeeze” (squeezes water & oil from tuna cans); ProPack is hired to assist with store displays
ProPack brings in Thomco for advice on adhesive for the displays
Thomco says recommended adhesive would wash off; Squish relies on the advice, but adhesive won’t wash off
A Squish distributor is not happy with the situation; cancels its contract
Squish sues Thomco for negligent misrepresentation
District Court grants summary judgment for Thomco; Squish appeals
Held: Reversed and remanded for disputed issues to go to trial. There may be reliance by Squish through ProPack on Thomco’s representations

7. Causation Causation between a party’s act & another’s injury
Cause in fact shows defendant’s conduct is the actual cause of the event that created the injury (some courts call this the “but for” test)
Proximate cause indicates that the liability bears a reasonable relationship to the negligent conduct
In some cases, case is so obvious, res ipsa loquitur (the thing speaks for itself) applies
If consequences are too remote -- no liability
If there is an intervening or superseding event--no liability
Chain of events created by a party’s actions must be foreseeable
Some states replace proximate cause with legal cause that creates a substantial factor in bringing about the injury

8. Goldberg v. Florida Power & Light Co.
Storm caused electric line to fall.
Homeowner called Florida Power & Light (FPL).
Six FPL trucks and a police officer arrived; FPL crew told officer he could leave.
Crew turned off power in the area, which included a traffic signal. Crew aware that signal was off; did nothing about traffic.
Goldbergs driving in traffic toward turned-off light. Car coming from side street caused an accident. Goldberg’s daughter was killed.
Sued FPL for negligence – breach of duty to control traffic at the intersection.
Jury awarded $37 million; trial judge reduced to $10 million.
Appeals court reversed, holding FPL was not negligent – that the cause of the accident was driver who entered traffic, not the fact the traffic signal was out.
Goldbergs appealed

9. Goldberg v. Florida Power & Light Co.
Duty of Care: whether defendant’s conduct foreseeably created a broader ‘zone of risk’ that posed a general threat of harm to others.
FPL had common law duty to warn of hazardous condition it created.
FPL’s actions created a foreseeable zone of risk to motorists
FPL had a duty to warn motorists of danger – reasonable precautions to alert and protect drivers – notify police, road flares, direct traffic, etc.
Proximate Cause: Standard of foreseeability. Human foresight would lead a person to expect that harm could be possible because of an omission (here failure to protect motorists).
Fact finder decides proximate cause and foreseeability.
HELD: Reversed. Defendant FPL breached duty of care and it was foreseeable that the omissions of care would reasonably place motorists at risk. Therefore proximate cause was established.

10. Defenses To A Negligence Action
Comparative Negligence
Damages are reduced by the % of injuries caused by plaintiff’s own negligence
Pure Comparative Negligence
Comparative Negligence 50% Rule
Assumption of Risk
The injured party knew or should have known of risk and voluntarily assumed it
Complete bar to the plaintiff’s case
Contributory Negligence
Plaintiff’s action contributed to the injuries
Plaintiff’s case is completely barred

11. McCune v. Myrtle Beach Indoor Shooting Range
McCune with others played paintball at Myrtle Beach Indoor Shooting Range.
Used protective face mask provided by the Range.
She signed a general liability waiver, releasing the Range from all known or unknown dangers, with the exception of gross negligence on the part of the Range.
She complained that mask did not fit well; restricted her range of vision.
Mask caught on branch of a tree, lifting it off her face.
She was hit in eye by paintball and blinded.
Sued Range for negligence of not providing a mask that would fit better and give her protection.
Trial court granted summary judgment in favor of Range. She appealed.

12. McCune v. Myrtle Beach Indoor Shooting Range
HELD: Affirmed.
Agreement was voluntarily signed that she: 1) assumed the risks, known or unknown and 2) she released Range from liability, even injuries sustained because of Range’s own negligence.
McCune voluntarily entered into the release of liability.
This is not construed as an exculpatory agreement.

13. INTENTIONAL TORTS Intent Person knew what he/she was doing
Intent to do the act which reasonably would result in harm to the plaintiff
Knew /should have known the possible consequences of an action
Willful misconduct

14. Intentional Torts Against Persons
Assault
Battery
False Imprisonment
Infliction of Emotional Distress
Invasion of Privacy
Defamation: Libel and Slander

15. Intent State of mind of defendant Person knew what he/she was doing
Person “knew, or should have known, the possible consequences of the act”
Knowledge that certain results would likely occur
Willful acts invading protected interests
A reasonable person would have known that the action would create harmful circumstances

16. ASSAULT Placing plaintiff in fear of immediate bodily injury
Fear: If a reasonable person under the same or similar circumstances would have apprehension of bodily harm or offensive contact
Threats? May be an assault
Pointing a gun? Yes
Point a gun while other person sleeps? No assault
Letter threats? No assault (“immediate” requirement usually not met)
Phone threats? Maybe. How close is the caller? On a cell phone outside the door or in another city?

17. BATTERY
Assault & Battery may or may not be linked together in a lawsuit
Defenses
Consent
Privilege
Self defense
Defense of others/Defense of property
Unlawful “touching”
Intentional physical contact without consent
Use of fist, hand, or kicking
Use of weapons, i.e. guns or stick
Unwanted kiss? Has been held in some states to constitute battery

18. Fuerschbach v. Southwest Airlines Company
Fuerschbach was a customer service representative for Southwest Airlines at Albuquerque airport.
Airline prides itself on being “fun-loving, spirited company”.
After new employees finish probation, they are often subject to a prank to celebrate the event.
Her supervisor thought would be fun to set up a mock arrest.
Albuquerque police officers came to the counter, told her she was under arrest and handcuffed her.
She began to cry, so officers took her to the back.
All the employees jumped and yelled “congratulations for being off probation.”
Handcuffs removed; party began. She kept crying and was sent home.
Psychologist said she suffered post-traumatic stress disorder.
Fuerschbach sued everyone connected with the event on many grounds, including assault and battery.

19. Fuerschbach v. Southwest Airlines Company
District court granted summary judgment for defendants and did not allow the matter to go to trial.
District court: Officers were courteous and professional.
HELD: Reversed on appeal. Summary judgment vacated on assault and battery claims. She can go to trial.
Issue: Did the actions offend “a reasonable sense of personal dignity”?
HELD: Jury might find that being handcuffed and leading a person in front of others offends a reasonable sense of personal dignity. Police handcuff – offensive contact.
Side Note: Some other claims allowed to go forward; others were denied. The only claim against Southwest Airlines was a Workers’ Compensation claim because there was no intent by anyone to harm her at work.

20. False Imprisonment (False Arrest)
Defense by businesses regarding detention of shoplifters
Restraint was in a reasonable manner
Restraint was in a reasonable time
Basis for the detention was valid
Intentional holding or detaining
Freedom to come and go is restrained
Restraint
May be physical
May be mental (i.e., by verbal threats)
Lawsuits often arise from detention of suspected shoplifters

21. Russell v. Kinney Contractors, Inc.
Kinney Contractors advertised jobs in construction.
Russell and others belong to construction union applied.
Kinney didn’t want union workers.
Workers arrived at Kinney’s offices, walked through an open gate, and went to an office to submit applications.
Kinney closed the gate behind workers, blocking the exit, called police and claimed they were trespassing.
Police arrived and workers were let out. Workers sued Kinney for false imprisonment, saying they were on property legitimately.
Trial court dismissed the suit, saying this was a labor dispute under federal labor law and jurisdiction was with the National Labor Relations Board. Said this was not a common law tort for state courts to settle.

22. Russell v. Kinney Contractors, Inc.
Russell Appealed.
HELD: Reversed and case remanded.
Court weighed the federal interest of labor disputes vs. the state’s interest to protect its citizens from wrongful conduct.
Indignity, humiliation and disgrace suffered by plaintiffs would not be considered by NLRB, and NLRB cannot award compensatory damages as can the state.
State court will look at whether the personal liberty was restrained and if false imprisonment occurred.

23. Infliction of Emotional Distress
Intentional conduct: So outrageous, it creates severe mental or emotional distress
Petty insults, annoying behavior, bad language? Usually not actionable; we must have “tough skin”
Bill collectors or landlords who badger, are profane, or threaten or lay the background for a lawsuit
See Reynolds v. Ethicon Endo-Surgery, Inc.
See Issue Spotter: “Dealing With the Elderly and their Heirs”

24. Reynolds vs. Ethicon Endo-Surgery, Inc.
Reynolds was sales rep. for Ethicon in In 2002 she was assigned to a new division. Was based in Sioux Falls, S.D.
Company reviewed the sales in her territories and decided her region was weak.
A week after Reynolds told her supervisor, Burns, she was pregnant, he met with her; said Sioux Falls office would be closed; offered her the Louisville office or a severance package.
She was later also offered the St. Louis office.
Several weeks later, she suffered a miscarriage.
Blamed the elimination of her position soon after she became pregnant for the reason of her miscarriage.
She refused to transfer or take severance package. Was fired.
Sued Burns and Ethicon for infliction of mental distress.

25. Reynolds vs. Ethicon Endo-Surgery
District court granted summary judgment for defendant. She appealed.
HELD. Affirmed.
In order to be infliction of emotional distress, conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency atrocious, and utterly intolerable in a civilized community.”
While termination may be upsetting, it does not constitute extreme or outrageous conduct.

26. Invasion of Privacy
Infringement on a person’s right of solitude & freedom from unwarranted public exposure
Use of a person’s name or picture without permission
Intrusion on solitude (i.e. wiretap)
Placing a person in false light (publishing a false story)
Public exposure of private facts (debts, drug use)
Defenses
Right of privacy waived by public figures, politicians, entertainers, sports personalities, etc.
Information about an individual taken from public files or records

27. James v. Bob Ross Buick
James worked at Mercedes dealership owned by Bob Ross Buick. In 2002, he was sales rep. of the year. In 2004 he was fired.
After firing, Buick company sent letters to customers who had worked with James: encouraged them to shop for Mercedes.
Letter addressed as if from James. An assistant at Bob Ross signed James’s name to the letters.
James sued for misappropriation of his name, a form of invasion of privacy.
Trial Court: Summary judgment for Bob Ross. James appealed.

28. James v. Bob Ross Buick HELD: Reversed and remanded.
Forgery of signature is a variant of invasion of privacy.
Mere incidental use of a person’s name or likeness is not actionable.
Can’t object to mere mention of name or appearance brought before the public when they are open to public observation.
Appropriation occurs when there is commercial benefit of value from the use of the name or likeness.
HELD: Reversed and remanded.
This is not mere incidental use of James’s name.
His name had commercial value – letters used to induce future sales for the car company.
Benefit that Bob Ross received as a result of appropriating James’s name can be a part of the actual damages to him.
James may seek nominal, compensatory, and punitive damages, if appropriate.

29. Defamation (Libel/Slander)
Definition: An intentional false communication that injures a person’s or company’s reputation or good name
Elements of the Tort:
False or defamatory statement
Published or communicated to a third person
Causing harm or injury to the plaintiff
Defamation per se: Presumption of harm
No proof of harm/injury is necessary
Examples: person has committed a crime; has a sexually communicable disease; carries out business activities improperly, etc.
Workplace Defamation: Info. given re: job performance
See Issue Spotter: “Say Good Things About A Good Employee?”

30. Republic Tobacco v. North Atlantic Trading Company
Republic and North America (NA) compete for premium roll-your-own cigarette papers, tobacco and other products.
Two letters written by NA to clients were critical of Republic.
First letter: attacked Republic’s business conduct; claimed a display box used by it violated an NA patent and trademark; and that NA had sued Republic for the infringement.
NA had no patent or trademark on a display box; had not sued Republic.
Second Letter: said NA was suing Republic for antitrust violations; that Republic engaged in “unfair competition” and “deceptive trade practices”.
NA had in fact sued Republic for antitrust violations.
Trial Court awarded Republic $3.36 million damages and trial judge reduced punitive damages from $10.2 to $4.08 million.

31. Republic Tobacco v. North Atlantic Trading Company
A defamatory statement causes harm to reputation – false or unprivileged publication to a 3rd party.
Per se: not necessary for a plaintiff to demonstrate actual damage to reputation.
Per quod action: plaintiff must prove there was actual damage of a pecuniary nature.
NA’s first letter was both false and defamatory.
Both letters defamatory.
HELD: $1 million is appropriate damage. Punitive damage reduced to $2 million.

32. “Tort Liability for Internet Servers”
Q: If Internet users are involved in illegal activities, are the Internet servers liable?
A: Generally no, as long as they were not aware of it or had reason to be aware of it.
In Zeran v. America Online: AOL not liable in tort for defamatory message that AOL user sent. Sender is liable.
Doe v. Cahill When defamatory statements are posted, victim of the statements has a right to obtain the identity of the party who sent the material (here Doe, the anonymous defendant).

33. Defenses to Defamation
Truth is a complete defense in some states and is always a very strong defense.
Absolute privilege is an immunity
Legislators in committee sessions
Participants in judicial proceedings
Conditional privilege eliminates liability if the false statement was published in good faith
If there is no malice
In order to protect a person’s legitimate interests
Constitutional privilege
Members of the press may publish “opinion” about public officials, figures, or those of public interest if there is no actual malice (“absence of malice”)