1. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Torts

2. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Definition Torts are civil wrongs, other than a breach of contract, for which the law will provide a remedy Protected interests –Personal - physical and emotional –Property - tangible and intangible –Economic

3. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Purpose of Tort Law Compensation for injuries Deterrence of unsafe or uneconomic behavior Punishment of wrongdoing Protection of social norms

4. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Types of Torts Intentional Torts Negligence Strict Liability Product Liability Defamation Business Torts Quasi-Intentional Torts

5. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Negligence Based upon the Duty of Care Special Duty Questions Defenses to Negligence

6. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Negligence: Duty of Care General duty of care is imposed on all human activity To whom is the duty of care owed? –Foreseeable plaintiffs –Unforeseeable plaintiffs harmed in the course of a breach of duty to a foreseeable plaintiff

7. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Negligence Requirements –Duty on the part of the Defendant to conform to a specific standard of conduct –Breach of duty –Breach of duty must be the actual or proximate cause of the injury –Damage to Plaintiff’s person or property

8. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defenses to Negligence Contributory negligence –Avoidable consequences –Note: not a defense in intentional torts or strict liability cases –Bars Plaintiff’s recovery Last clear chance Comparative negligence

9. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Contributory Negligence Master and servant - contributory negligence of servant imputed to master Partners and joint venturers - contributory negligence of one imputed to all Husband and wife - contributory negligence of one not imputed to the other Parent and child - contributory negligence of parent not imputed to the child Automobile owner and driver - contributory negligence of driver not imputed to the owner

10. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Strict Liability Essential Elements –Professional Seller –Product to consumer substantially unchanged –Defective condition –Unreasonably dangerous condition Perspective on Defect and Unreasonable Danger

11. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Product Liability Based upon Intentional Acts Based on Negligence Strict Liability Breach of Implied Warranty of Merchantability or of Fitness for a Particular Purpose Express warranties and misrepresentation

12. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defamation Publication to a Third Party Harm to Reputation False Facts Causation Damages and Other Remedies Defenses Constitutional Privileges

13. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Case Studies New York Times Co. v. Sullivan, 376 U.S. 254 (1964) Blumentahl v. Drudge and AOL, 992 F.Supp 44 (D.D.C. 1998) Cubby v. Compuserve, 776 F.Supp 135 (S.D.N.Y. 1991) Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997)

14. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Libel & Slander Libel - recorded in writing or other permanent form –Libel per se - damages presumed –Libel per quod - requires reference to external facts. Treated as slander Slander - spoken defamation –Requires proof of damages except when related to Business or profession Loathsome disease Crime Unchastity of a woman

15. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defenses to Defamation Consent Truth Absolute privilege –Judicial proceedings –Legislative proceedings –Executive proceedings –Compelled broadcast –Communications between spouses

16. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defenses to Defamation Qualified privilege –Reports of public proceedings –Public interest Publication to one acting in public interest (e.g. parole board) Fair comment and criticism (e.g. book reviews) –Interest of publisher (defense of one’s own actions, property or reputation) –Interest of recipient (e.g. job reference) –Qualified privilege is lost if malice is involved –Defendant must prove privilege exists

17. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defenses to Defamation Degree of fault to be established depends on the type of Plaintiff –Public official - no recovery absent malice –Public figure - no recovery absent malice –Private persons No strict liability, must involve reckless or negligent behavior No presumed or general damages absent malice. With malice can have presumed or punitive damages. “Malice” means knowledge that statement was false or reckless disregard as to its truth or falsity

18. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Business Torts Unfair Competition The Law of Fraud –Its interplay with the law of contracts Tortious Interference

19. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Unfair Competition Is the restraint reasonable? Sale of a business –Richardson v. Paxton Co., 127 S.E.2d 113 (Va. 1962) Partnership agreements –Foti v. Cook, 263 S.E.2d 430 (Va. 1980) Employment agreements

20. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Law of Fraud A false representation - –of a material fact - –made intentionally or knowingly - –with intent to mislead - –reliance by the party mislead - –resulting damage to the mislead party. Interplay with the law of contract

21. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Tortious Interference With existing or prospective contracts With the employer-employee relationship With non-contractual business relationship Each of these shares 7 common elements –Existence or potential of an economic relationship, knowledge of this relationship, interference, legal malice, intent, a causal relationship between the act of interference and the injury, damage

22. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Tortious Interference United Construction Workers v. Laburnum Construction Corp., 75 S.E.2d 694 (Va. 1953) Worrie v. Boze, 95 S.E.2d 192 (Va. 1956) Chaves v. Johnson, 335 S.E.2d 97 (Va. 1985) Glass v. Glass, 321 S.E.2d 69 (Va. 1984) Allen Realty Corp. v. Holbert, 318 S.E.2d (Va. 1984)

23. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Case Studies Medtronic v. Lohr

24. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Types of Intentional Torts Battery - harmful or offensive contact as judged by “reasonable person” standard Assault - creation of a reasonable apprehension of immediate harmful or offensive contact False imprisonment - confinement or restraint to a bounded area Intentional infliction of emotional distress - act by the Defendant amounting to extreme and outrageous conduct

25. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Trespass to Land Physical invasion –Without physical component, treated as nuisance or perhaps strict liability –On, above or below ground level –Intention to trespass is not required (intent to do the act which results in the trespass is sufficient) and mistake is no defense –No damage required

26. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Trespass to Chattels Interference with Plaintiff’s right of possession Intent to trespass not required and mistake is no defense Requires actual damage

27. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Conversion Wrongful acquisition (theft, embezzlement) Wrongful transfer or wrongful detention Substantially changing or severely damaging or destroying Misuse Remedies: damages or replevin

28. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Recovery of Property Consent –Express –Implied Self-defense Defense of others Defense of property –Requires request to desist –Reasonable force allowed but not lethal force

29. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defense to Torts Recapture of chattels Privilege of arrest Necessity –To avoid injury from a natural or other force where the threatened injury is substantially more serious than the invasion to avert it –Discipline –By a parent or teacher

30. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Quasi-Intentional Torts Invasion of Right to Privacy Intentional Misrepresentation Wrongful Institution of Legal Proceedings

31. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Invasion of Right to Privacy Tort includes four kinds of wrongs –Appropriation by Defendant of Plaintiff’s picture or name for commercial advantage –Intrusion upon Plaintiff’s affairs or seclusion –Publication of facts; placing Plaintiff in false light –Public disclosure of private facts Proof of special damages not required Right is personal and does not extend to family Not applicable to corporations

32. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defenses to Invasion of Privacy Consent Defamation defenses based on absolute or qualified privilege

33. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Defense to Torts Assumption of the risk –Express –Implied Plaintiff must have known of risk Voluntary assumption –Some risks may not be assumed Common carriers and public utilities not permitted to limit liability by disclaimer Situations involving fraud, force, or emergency

34. © 2000 Wyndrose Technical Group, Inc, All rights reserved. Tort Immunities Federal Governmental immunity –U. S.G. has waived immunity by the Federal Tort Claims Act, 28 U. S. C. State government immunity - most still immune Municipalities –Immunity abolished by statute in many states –Immunity limited to “governmental” functions and not for “proprietary” functions Public officials acting within scope of their duties Charitable immunity - eliminated by statute or decision in most jurisdictions