1. The Legal Environment of Business
Chapter 7 : Torts

2. What is a Tort?
What is a tort? A tort is any legally recognizable injury arising from the conduct (or nonconduct, because in some cases failing to act may be a tort) of persons or corporations. 侵权是任何合法地，由于个人或公司的行为产生的损伤(或nonconduct,因为在某些情况下未能实现的侵权)

3. What is a Tort?
According to Black's Law Dictionary a tort is a "civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another." A far less formal definition of a tort is: All the crazy stuff that you can possibly imagine happening to a person.

4. Different Types of Torts
There are various types of torts:
Intentional Torts
Assault An assault is an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact
False imprisonment. This tort takes place when someone intentionally confines or restrains another person’s movement or activities without justification. 
Intentional infliction of emotional distress (IIED) When that physical touching is absent, courts sometimes permit another tort to be claimed instead.
Battery,  is a completed assault, any unconsented touching, even if physical injuries aren’t present.
Property Torts
Trover - recovery of damages for the taking of personal property
Replevin - recovery of property unlawfully taken
Detinue - action by a person who believes they have a greater legal right to immediate possession of property rather than the current posessor
Conversion - deprives person of their property (destruction of property, willful interference, etc.)
Trespass

5. Different Types of Torts
Dignitary Torts
Alienation of affection and other "heart balm" torts
Malicious prosecution
Invasion of privacy
Defamation
Economic Torts
Tortious interference
Fraud
Restraint of trade

6. Different Types of Torts
Nuisance
Negligence
Duty of care
Breach of that duty
Proximate causation
Damages
Strict Liability
Product liability
Ultrahazardous activity (examples include transportation of explosives, possession of wild animals, radioactive materials, etc.)

7. Differences Between Tort Law and Contract Law
1. Plaintiffs In contract law only persons with whom you have a contract or with or you are a third party beneficiary to, can sue you for breach of contract. In tort law, anyone can sue you as long as they can show that you owed them a legally recognized duty.

8. Differences Between Contract Law and Tort Law
Damages:
For a breach of contract claim you can recover compensatory damages, not punitive damages.
For a tort claim you can recover both compensatory and punitive damages.
Compensatory damages – money damages to compensate for economic losses stemming from injuries. (easy to calculate for breach of contract claim, difficult to calculate for tort claim.)
Punitive damages – money damages to punish the defendant for gross and wanton negligence to deter future wrongdoing.

9. Intersection Between Tort Law and Criminal Law
In some cases the same conduct can be a tort and a crime. If I punch you in the face, you can bring a civil action against me for the tort of battery. (civil burden of proof – preponderance of the evidence.) You can also file a complaint with the prosecutor’s office where the prosecutor could file a criminal case against me for the crime of battery. (criminal burden of proof – proof beyond a reasonable doubt.)

10. Negligence Per Se Doctrine
Negligence per se doctrine - if someone is convicted of a crime, he or she is also automatically liable in civil tort law. Criminal defendants who wish to avoid a criminal trial are permitted to plead “no contest” to the criminal charges, which permits the judge to sentence them as if they were guilty but preserves the right of the defendant to defend a civil tort suit.

11. Tort Terms
Tortfeasor –the person committing the tort. Respondeat superior doctrine - when an employee is working for the employer’s benefit and commits a tort, the employer is liable. The employee was on a frolic and detour at the time he or she committed the tort.

12. Vicarious Liabilty
To understand frolic and detour, you must first understand the legal concept called vicarious liability. Tort litigation is perhaps the most frequent user of the vicarious liability theory; this theory allows someone injured by an employee to sue and collect a settlement from that person's employer.
Frolic and detour is an exception to the vicarious liability rule.
A frolic and detour is almost exactly what it sounds like; an employee who ordinarily would be engaged in the activities dictated by the terms of his employment briefly strays from those activities. If he or she strays far enough for the behavior or activity to be completely unrelated, the law labels the employee's actions during that time a "frolic and detour."

13. Three Types of Torts
Three types of torts depending upon the tortfeasor’s intent.
Intentional tort - If the tortfeasor acted with intent to cause the damage or harm that results fro
Negligence - If the tortfeasor didn’t act intentionally but nonetheless failed to act in a way a reasonable person would have acted.
Strict liability - if the tortfeasor is engaged in certain activities and someone is injured or killed, the tortfeasor is held liable no matter how careful or careless he or she may have been.

14. Intentional Torts
In an intentional tort, the tortfeasor intends the consequences of his or her act, or knew with substantial certainty that certain consequences would result from the act.

15. Assault and Battery
Assault - is an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact. Actual fear is not required for assault—mere apprehension is enough.
Battery - is a completed assault. It is any unconsented touching, even if physical injuies are not present. The touching does not have to be direct, it can be through an object.

16. Defenses to Assault and Battery
Consent – players on a sports team are presumed to have consented to be battered. Self-defense – reasonable and proportionate force to defend oneself from harm or injury. Defense of others – reasonable and proportionate force to defend another person or persons from harm or injury.

17. Intentional Infliction of Emotional Distress
When a battery has not incurred but an individual’s emotions have been battered, an injured party may file a claim for intentional infliction of emotional distress (IIED).
Two elements:
extreme and outrageous conduct (measured objectively); and
emotional distress - some states require plaintiff must demonstrate some physical manifestation of the psychological harm (such as sleeplessness or depression) to win any recovery.
Companies must be careful when handling sensitive employment situations to avoid potential IIED liability.

18. Invasion of Privacy Claims
Invasion of Privacy - Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded.
The four main types of invasion of privacy claims are: 
Intrusion of Solitude
Misappropriation of Name or Likeness
Public Disclosure of Private Facts
False Light 

19. Intrusion of Solitude 1. Intrusion of Solitude
Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records.
Example: A man with binoculars regularly climbs a tree in his yard and watches a woman across the street undress through her bathroom window. Her injury is the emotional distress she suffers upon seeing the perpetrator looking at her. 

20. Misappropriation of Name or Likeness
2. Misppropriation of Name or Likeness
Plaintiffs may make a claim for damages if an individual (or company) uses their name or likeness for benefit without the other party's permission. Usually this involves a business using a celebrity's name or likeness in an advertisement. In fact, some states limit this type of invasion of privacy tort to commercial uses.
The recognition of this tort is similar to a property right; in other words, a person's name and likeness are treated as that person's property. For celebrities, this is often referred to as "right of publicity."
Example: In 2005, an advertising agency approached musician Tom Waits with regard to an ad campaign for a new automobile. Waits, who has a distinctive and easily recognizable voice, declined. So the advertisers hired someone who sounds like him to do the soundtrack, prompting Waits to sue the automaker for appropriating his likeness. - See more at:

21. Public Disclosure of Private Facts
This type of invasion of privacy claim must be weighed against the First Amendment's protection of free speech. Unlike defamation (libel or slander), truth of the disclosed information is no defense. Legal action may be taken if an individual publicly reveals truthful information that is not of public concern and which a reasonable person would find offensive if made public.
Example: In 1931, the maiden name of a former prostitute who was acquitted of murder was revealed in a film about the case. Since the trial, she had moved to another city, gotten married and adopted a new lifestyle. Her new friends were unaware of her past, so the disclosure of this true but embarrassing information was deemed an invasion of her privacy. - See more at:

22. False Light 4. False Light
A false light claim is similar to a defamation claim in that it allows an individual to sue for the public disclosure of information that is misleading (or puts that person in a "false light"), but not technically false. The key difference is that defamation claims only apply to the public broadcasting of false information; and as with defamation, sometimes First Amendment protections prevail.
Generally, a false light claim must contain the following elements: (1) a publication by the defendant about the plaintiff; (2) it was done with reckless disregard; (3) it places the plaintiff in a false light and (4) it would be highly offensive or embarrassing to a reasonable person.
Example: In 1992, a 96-year-old woman sued an Arkansas newspaper for printing her picture next to the headline, "Special Delivery: World's oldest newspaper carrier, 101, quits because she's pregnant!" The woman, who was not pregnant, was awarded damages of $1.5 million.
- See more at:

23. False Imprisonment False imprisonment.
when someone intentionally confines or restrains another person’s movement or activities without justification.
The interest being protected here is your right to travel and move about freely without impediment.
This tort requires an actual and present confinement.
A business may raise the shopkeeper’s privilege in defense to a false imprisonment claim
brought by a shoplifter or thief.. Businesses are permitted to detain suspects until police
arrive at the establishment .The detention must be reasonable : store employees must not
use excessive force in detaining the suspect, and the grounds, manner, and time of the
detention must be reasonable or the store may be liable for false imprisonment.

24. Intentional Torts Committed Against Land
Trespass to land occurs whenever someone enters onto, above, or below the surface of land owned by someone else without the owner’s permission. The trespass can be momentary or fleeting. Soot, smoke, noise, odor, or even a flying arrow or bullet can all become the basis for trespass.
Defenses to trespass:
invitee : someone invited by the owner
license to trespass: meter reader or repairman
necessary to trespass: to rescue someone in distress.

25. Intentional Torts Committed Against Land
Nuisance - exists when a tortfeasor acts in a manner that interferes with someone else’s use or quiet enjoyment of land. A public nuisance occurs when a tortfeasor’s actions interfere with public health, safety, or welfare.
Attractive nuisance –when there is an item or condition on a property that would be attractive or dangerous to children, even if they are trespassing, the homeowner must take care to both warn children about the attractive nuisance and protect them from harm posed by the attractive nuisance. (pools, abandoned cars, refrigerators left out for collection, trampolines, piles of sand or lumber). Key question is whether or not children can understand or appreciate the risk.

26. Intentional Torts Against Personal Property
Trespass to personal property - the unlawful taking or harming of another’s personal property without the owner’s permission.
Conversion - when someone takes your property permanently; it is the civil equivalent to the crime of theft.

27. Defamation Against People
Defamation - is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. Oral defamation is considered slander, while written defamation is libel. To be liable for defamation, the words must be published to a third party. There is no liability for defamatory words written in a secret
The elements that must be proved to establish defamation are:
a publication to one other than the person defamed (to a third party);
a false statement of fact;
that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.

28. Defamation Against People
In addition to the usual elements, a public figure must show "actual malice"—that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.
A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures—a government employee, a senator, a presidential candidate—someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across.

29. Defamation Against Goods or Products
Injurious falsehood (or trade disparagement) takes place when someone publishes false information about another person’s product.

30. Business’ False Product claims
Fraudulent misrepresentation - requires the tortfeasor to misrepresent facts (not opinions) with knowledge that they are false or with reckless disregard for the truth. An “innocent” misrepresentation, such as someone who lies without knowing he or she is lying, is not enough—the defendant must know he or she is lying.
Puffery – promotional statements expressing subjective views is not fraud.

31. Tortious Interference with a Contract
Tortious interference - prohibits the intentional interference with a valid and enforceable contract. If the defendant knew of the contract and then intentionally caused a party to break the contract, then the defendant may be liable.

32. Negligence
Negligence - all persons, as established by state tort law, have the duty to act reasonably and to exercise a reasonable amount of care in their dealings and interactions with others. Breach of that duty, which causes injury, is negligence. Negligence is distinguished from intentional torts because there is a lack of intent to cause harm.

33. Elements of a Negligence Claim
Four elements:
1. duty;
2. breach;
3. causation; and
4. damages.

34. Duty
Duty - arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.
Another way to look at duty is to consider whether or not the plaintiff is a foreseeable plaintiff. In other words, if the risk of harm is foreseeable, then the duty exists.
Malpractice – when professionals such as doctors, accountants, dentists, architects, and lawyers who owe a special duty to act as a reasonable person in their profession violate that duty. Professional negligence by these professionals is known as malpractice.

35. Duty
Example: While the defendant is loading bags of mulch onto a truck, he strikes a child with one of the bags, the first question that must be resolved did the defendant owed a duty to the child ?

36. Duty
The court would need to decide whether the defendant and the child had a relationship such that the defendant was required to exercise reasonable care in handling the bags of mulch near the child. If the loading dock were near a public place, such a public sidewalk, and the child was merely passing by, then the court may be more likely to find that the defendant owed a duty to the child. On the other hand, if the child were trespassing on private property and the defendant did not know that the child was present at the time of the accident, then the court would be less likely to find that the defendant owed a duty.

37. Breach of Duty
Breach of Duty - a defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact.

38. Breach of Duty
In the mulch bag loading example, a jury would decide whether the defendant exercised reasonable care in handling the bags of mulch near the child.

39. Causation
In considering causation, courts look at two questions: 1. but-for causation. This form of causation is fairly easy to prove. But for the defendant’s actions, would the plaintiff have been injured? If yes, then but-for causation is proven. 2. proximate cause - Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff’s injuries. In determining whether proximate cause exists, we once again use the foreseeability test. If an injury is foreseeable, then proximate cause exists. If it is unforeseeable, then it does not.

40. Show the Palsgraf v. Long Island Railroad Company video
Causation
Show the Palsgraf v. Long Island Railroad Company video

41. But-For Causation
The child injured by the defendant who tossed a bag of mulch onto a truck could prove but-for causation by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.

42. Proximate Cause
The child injured by the bag of mulch would prove proximate cause by showing that the defendant could have foreseen the harm that would have resulted from the bag striking the child. Conversely, if the harm is something more remote to the defendant's act, then the plaintiff will be less likely to prove this element. Assume that when the child is struck with the bag of mulch, the child's bicycle on which he was riding is damaged. Three days later, the child decides to walk his bike to a repair shop and is struck by a car on the way to the shop. Although the harm to the child and the damage to the bicycle may be within the scope of the harm that the defendant risked by his actions, the defendant probably could not have foreseen that the child would be injured three days later on his way to the repair shop.

43. Causation
Some times in mass tort litigation it can be difficult to pinpoint a particular source for a product, which then makes proving causation difficult.
Doctrine of joint and several liability - Joint and several liability” allows a plaintiff to “sue for and recover the full amount of recoverable damages from any [defendant].” Restatement (Third) of Torts: Apportionment of Liability § 10 (2000). In its pure form, the practical effect of this doctrine is that the plaintiff can recover the entire amount of damages from any of the jointly and severally liable tortfeasors, regardless of a particular defendant’s percentage share of fault.
Joint and several liability is meant to address the inequity that flows from a responsible actor being unable to pay. In such a case, someone – the plaintiff or another defendant – will end up paying for the insolvent party’s share.

44. Two Types of Damages in Tort Law
1. Compensatory damages – compensation for actual injuries suffered by the plaintiff. Compensatory damages can be awarded for medical injuries, economic injuries (such as loss of a car, property, or income), and pain and suffering.
2. Punitive damages - money awarded to the plaintiff in addition to compensatory damages to deter the defendant’s future bad conduct. Punitive damages are available in cases where the defendant acted with willful and wanton negligence, a higher level of negligence than ordinary negligence.

45. Defenses to a Negligence Claim
Plaintiff has not proven the elements - To successfully defend against a negligence suit, the defendant may try to negate one of the elements of the plaintiff's cause of action. The defendant could introduce evidence that he or she did not owe a duty to the plaintiff; exercised reasonable care; did not cause the plaintiff's damages.

46. Defenses to a Negligence Claim
In addition, to trying to prove that the plaintiff has not proven all the elements, a defendant may rely on one of a few doctrines that may eliminate or limit liability based on alleged negligence.
Affirmative defense are raised by the defendant essentially admitting that the four elements for negligence are present, but that the defendant is nonetheless not liable for the tort. There are three types of affirmative defenses to a negligence claim:
assumption of the risk
contributory or comparative negligence
Good Samaritan statutes

47. Defenses to a Negligence Claim
Assumption of the risk: If the plaintiff knowingly and voluntarily assumes the risk of participating in a dangerous activity, then the defendant is not liable for injuries incurred. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. The assumption of risk defense would not apply to any additional, unknown dangers.

48. Defenses to a Negligence Claim
Example: An example might involve an amusement park ride that flips passengers completely upside-down. A passenger who saw the ride and knew what would happen on the ride assumed the risks associated with the ride. On the other hand, a plaintiff does not assume the risk of something unexpected related to the ride, such as where a loose bolt causes the ride to throw the plaintiff in a violent manner.

49. Defenses to a Negligence Claim
Open and Obvious doctrine - is a defense used mostly in Premise liability cases.
The general rule is that a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from any unreasonable risk of harm caused by a dangerous condition on the land. The open and obvious doctrine is a major exception to this general rule. According to the doctrine an invitor is protected from liability if the danger is an open and obvious one. The foundation for this rule is that the open and obvious nature of the dangerous situation serves as a warning to the invitee and the person is expected to recognize the potential danger and to protect himself against it.

50. Defenses to a Negligence Claim
Contributory or comparative negligence :
Contributory negligence is an absolute defense in situations where the plaintiff contributed to his own injuries. Contributory negligence occurs when a plaintiff's conduct falls below a certain standard necessary for the plaintiff's protection, and this conduct cooperates with the defendant's negligence in causing harm to the plaintiff. This means the plaintiff most likely would have avoided injuries had he or she not also been negligent. Although state laws differ, in a state that follows the contributory negligence rule, a plaintiff’s own negligence, no matter how minor, could bar the plaintiff from any recovery.
Example: a factory worker suffers serious burns to his face after his welding torch malfunctions. However, he failed to flip down his mask before using the torch, which would have prevented the injury. Technically speaking, the plaintiff's negligence for his safety (failure to use proper safety equipment) is the cause-in-fact and proximate cause of the damages.

51. Defenses to a Negligence Claim
Comparative negligence:
Contributory negligence has led to harsh results in some cases, and the majority of states have replaced the doctrine with an alternative called comparative negligence . The doctrine of comparative negligence reduces a plaintiff's recovery by the percentage in which the plaintiff is at fault for his or her damages. A majority of states have modified this rule, barring a plaintiff from recovering if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant.
Example: a drunk driver strikes and seriously injures a pedestrian who failed to use a nearby crosswalk. Although it's unlikely the driver would have acted any differently had the pedestrian used the crosswalk, the driver's civil liability may be reduced due to the plaintiff's own negligence.

52. Defenses to a Negligence Claim
Good Samaritan law may be a defense in a negligence suit. Good Samaritan statutes are designed to remove any hesitation a bystander in an accident may have to providing first aid or other assistance. They vary widely by state, but most provide immunity from negligent acts that take place while the defendant is rendering emergency medical assistance.
Most states limit Good Samaritan laws to laypersons (i.e., police, emergency medical service providers, and other first responders are still liable if they act negligently) and to medical actions only.

53. Strict Liability
In areas where strict liability applies, the defendant is liable no matter how careful the defendant was in preventing harm.
Three areas of strict liability:
1. carrying out ultrahazardous activities ;
2. serving of alcohol to minors or visibly intoxicated persons; and
3. the manufacture, distribution, and sale of unreasonably dangerous products.

54. Strict Liability
2. Ultrahazardous activity – an activity so inherently hazardous that those who undertake the activity and cause injuries are held strictly liable.
Example: Transporting dangerous chemicals or nuclear waste is inherently dangerous. If the chemicals spill, it is very difficult, if not impossible, to prevent injury to property or persons.

55. Strict Liability
2. When restaurants, bars, and taverns serve alcohol to minors or visibly intoxicated persons This is considered an ultrahazardous activity because there is a high risk of probability that these patrons, if they drive, will injure others. Dram shop laws – many states have laws that impose strict liability in these circumstances.

56. Strict Liability
3. The manufacture, distribution, or sale of unreasonably dangerous products. To demonstrate that a product is unreasonably dangerous, plaintiffs have two theories available to them: 1. defective product; and 2. design defect.

57. Strict Liability
Defective Product theory: the product was defective because of a flaw in the manufacturing process.
In a strict product liability case, the plaintiff must show that:
1. a product was sold in an unreasonably dangerous condition or with an inadequate warning;
2. the seller expected and intended that the product would reach the consumer without changes to the product, and
3. the plaintiff or the plaintiff’s property was injured by the defective product.
Strict liability only applies to commercial sales.
strict liability applies only to commercial sellers

58. Strict Liability
Design defect theory: the product is defective because it was designed incorrectly or in a manner that causes the product to be unreasonably dangerous.
The primary inquiry in a design defect case is whether the product -- because of the way it was designed -- creates an unreasonable risk of danger to the consumer or user when put to normal use.
To establish liability in a design defect case, the plaintiff must prove
1. the product, as designed, is unreasonably dangerous and therefore "defective“; and
2. the demonstrated defect caused his injuries.

59. Strict Liability
Many product liability cases arise from the defective design theory because courts have held that the warning labels on products, as well as accompanying literature, are all part of a product’s design.
A product that might be dangerous if used in a particular way, therefore, must have a warning label or other caution on it, so that consumers are aware of the risk posed by that product.
Manufacturers must warn against a wide variety of possible dangers from using their products, as long as the injury is foreseeable.
If consumer misuse is foreseeable, manufacturers must warn against that misuse as well.

60. Defenses to Strict Liability Claims
Assumption of the risk – as in negligence the user must know of the risk of harm and voluntarily assume that risk.
Product misuse - If the consumer misuses the product in a way that is unforeseeable by the manufacturer, then strict liability does not apply. Manufacturers are still liable for any misuse that is foreseeable, and they must take steps to warn against that misuse.
Commonly known danger doctrine. If a manufacturer can convince a jury that the plaintiff’s injury resulted from a commonly known danger, then the defendant may escape liability.
Because product liability is strict liability, the plaintiff’s contributory or comparative negligence is not a defense.