2 Crimes & Torts Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition McGraw-Hill/Irwin Business Law, 13/e © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

6 Intentional Torts C H A P T E R “The good have no need of an advocate.” Phocion

Learning Objectives Definition of Tort Interference with Personal Rights Interference with Property Rights 6 - 4

Definition of a Tort Tort: civil wrong that is not breach of contract Four types of wrongfulness are involved: Intent Recklessness Negligence Strict liability Standard of proof: preponderance of the evidence Example: Mathias v. Accor Economy Lodging Facts & Procedural History: Plaintiffs bitten by bedbugs during hotel stay Plaintiffs alleged defendant knowingly disregarded evidence of bedbug infestation Evidence: defendant knew of, ignored problem Jury awarded plaintiffs compensatory and punitive damages Issue: Did defendant’s conduct rise to the level of willful misconduct? Law Applied to Facts: Defendant’s behavior was outrageous but the compensable harm done was slight and difficult to quantify (primarily emotional) Award of punitive damages in this case serves purpose of limiting defendant’s ability to profit from its fraud by escaping detection and (private) prosecution Holding: District court’s judgment in favor of plaintiffs affirmed 6 - 5

Interference with Personal Rights Battery Intentional and harmful or offensive touching of another without the person’s consent Assault Intentional attempt or threat to cause harmful or offensive contact with another person Attempt must cause reasonable apprehension of imminent battery in other person’s mind Example of battery: Wishnatsky v. Huey case in which the appellate court declared that Wishnatsky was unreasonably sensitive since the “touching” was momentary and did not produce physical injury. 6 - 6

Interference with Personal Rights Intentional Infliction of Emotional Distress A recovery for emotional distress even if no other tort is proven but wrongdoer’s conduct must be outrageous before liability imposed False Imprisonment Intentional confinement of another for an appreciable time without other’s consent Confinement must be complete, though few minutes is enough Intentional Infliction: In Lourcey v. Estate of Scarlett, plaintiff Lourcey sued estate of deceased Scarlett who shot his wife and then shot himself. According to Lourcey’s complaint, Scarlett’s conduct caused Lourcey to experience post-traumatic stress disorder, depression, and emotional harm. Lourcey also alleged that the incident’s lingering effects left her unable to return to work and caused her to experience lost earning capacity. The state supreme court stated: “To state a claim for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant’s conduct was intentional or reckless; (2) the defendant’s conduct was so outrageous that it cannot be tolerated by civilized society; and (3) the defendant’s conduct resulted in serious mental injury to the plaintiff…. Applying the foregoing principles, we conclude that the allegations in the plaintiff ’s complaint, when accepted as true, state a claim for intentional infliction of emotional distress…. case remanded to trial court for further proceedings.” False Imprisonment: In Banks v. Fritsch, student Banks sued teacher John Fritsch for false imprisonment, assault, and battery after: (1) Fritsch told Banks to put his leg up on a chair so that Fritsch could fasten a chain to Banks’ ankle, (2) Banks refused, but Fritsch repeated the instruction until Banks consented, (3) Fritsch led Banks outside to a tree, locked the chain to the tree, and returned to the classroom, (4) Banks freed himself and tried to run away, but was caught, (5) Fritsch rechained Banks to the tree and placed another chain around Banks’s neck, (6) after 15 minutes Banks sat down, began crying, and told another student that the chain was bothering him, (7) Fritsch came out and unfastened the chain around Banks’s neck, but tightened the chain on his ankle, then (8) Fritsch told Banks he could pass the course if he did extra work, then removed the chain when Banks agreed to do so. At trial, Banks testified that he saw a psychologist once to discuss the incident and that he continued to cry and have flashbacks from it. The trial court said there was no evidence that Banks had been damaged by Fritsch’s conduct, so granted Fritsch’s motion for directed verdict. The appellate court stated that: “The tort is complete after even a brief restraint on the plaintiff ’s freedom, and the plaintiff may recover nominal damages. The plaintiff is entitled to compensation for loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to health. Since the injury is in large part a mental one, the plaintiff is also entitled to damages for mental suffering, humiliation, and the like. …We are satisfied from the record that the jury could have returned a verdict for Banks for an amount greater than nominal damages…. Judgment of the trial court reversed, and case remanded for new trial.” 6 - 7

Interference with Personal Rights Defamation Unprivileged publication of false statements concerning another person Truth is a complete defense Invasion of Privacy Includes intrusion on solitude (with reasonable expectation of privacy), public disclosure of private facts, false light publicity, commercial appropriation of name or likeness Defamation: Libel is written defamation; slander is oral defamation Another defense to defamation is privilege Examples: statements made by participants in judicial proceedings, by officials in the course of their duties, by one spouse to the other in private, and fair and accurate media reports (fair comment) of defamatory matter that appears in proceedings of official government action or originates from public meetings Invasion of Privacy: Intrusion on solitude or seclusion: intrusion must be highly offensive to a reasonable individual, may be physical (illegal search of a person’s home or body or the opening of his mail), may be nonphysical (e.g., tapping another’s telephone, examining a bank account). Tort applies only where there is a reasonable expectation of privacy. As a general rule, no liability for examining public records concerning a person, or for observing or photographing him in a public place. Public disclosure of private facts: publicity must be highly offensive to a reasonable person and includes disclosures such as someone’s failure to pay his debts, humiliating illnesses he has suffered, or information about his sex life. Truth is not a defense to this type of invasion, but in further contrast to defamation, publicity means a widespread communication of private details. For example, publication on the Internet would suffice. False light publicity: occurs if that false light would be highly offensive to a reasonable person. What is required is unreasonable and highly objectionable publicity attributing to a person characteristics that she does not possess or beliefs that she does not hold. Examples include signing a person’s name to a public letter that violates her deeply held beliefs or attributing authorship of an inferior scholarly or artistic work to her. As in defamation cases, truth is a defense to liability. Commercial Appropriation of Name or Likeness: Occurs when, without that person’s consent, the defendant commercially uses someone’s name or likeness, normally to imply his endorsement of a product or service or a nonexistent connection with the defendant’s business. This form of invasion of privacy also draws on the personal property right connected with a person’s identity and his exclusive right to control it. In recent decades, recognition of this property right has given rise to a separate legal doctrine known as the right of publicity, under which public figures, celebrities, and entertainers have a cause of action against defendants who, without consent, use the right holders’ names, likenesses, or identities for commercial purposes. Protected attributes of a celebrity’s identity may include such things as a distinctive singing voice. Use of a celebrity’s name or a “soundalike” of her in an advertisement for a product would be a classic example of a commercial use, as would use of an entertainer’s picture as a commercially sold poster. First Amendment issues sometimes arise in these cases, as Comedy III Productions, Inc. v. Saderup indicates. Saderup’s portrait of The Three Stooges was a conventional work and did not involve any “transformative” elements that would make Saderup’s work unique or distinctive from other portraits of the comedy team. States that recognize the right of publicity usually consider it inheritable—meaning that it may survive the death of the celebrity who held the right during his or her lifetime. 6 - 8

Defamation & Free Speech In New York Times Co. v. Sullivan (1964), the U.S. Supreme Court held that when a public official brings a defamation case, s/he must prove the usual elements of defamation and actual malice (a First Amendment–based fault requirement) Actual malice means knowledge of falsity or reckless disregard for the truth In Hearst Corp. v. Skeen, the June 11, 2000 edition of the Houston Chronicle (published by Hearst Corp.) included an article headlined “Justice Under Fire.” Written by Evan Moore, the article contained pointed criticisms of the Smith County, Texas, criminal justice system. Under the subheading “‘Win at all costs’ is Smith County’s rule, critics claim,” the lead article reported that Smith County “is noted for its own brand of justice,” which is “driven by aggressive prosecutors who achieve some of the state’s longest sentences.” The article stated that “[c]ritics say Smith County’s justice system is tainted and inequitable.” It also declared that Smith County prosecutors “have been accused of serious infractions,” including “suppressing evidence, encouraging perjury, and practicing selective prosecution.” Claiming that the article contained defamatory falsehoods, three Smith County prosecutors named in the article, District Attorney Jack Skeen and Assistant District Attorneys David Dobbs and Alicia Cashell, filed a defamation lawsuit against Hearst and Moore. A Texas trial court denied the defendants’ motion for summary judgment. The state’s intermediate court of appeals affirmed. Hearst and Moore appealed to the Supreme Court of Texas. The court stated: “To recover for defamation, the public-figure plaintiffs must prove that Hearst and Moore published a false and defamatory statement with actual malice. To establish actual malice, the plaintiffs must prove Hearst and Moore published the article with either knowledge of falsity or reckless disregard for the truth. “A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is.” Bentley v. Bunton, 94 S.W.3d 561 (Tex. Sup. Ct. 2002). Viewing the evidence in its entirety, no fact issue is raised as to whether the article was published with actual malice. Accordingly, [we] reverse the court of appeals’ judgment and render summary judgment in favor of Hearst and Moore.” 6 - 9

Interference with Personal Rights Misuse of Legal Proceedings Harm that can result from wrongfully instituted legal proceedings Includes malicious prosecution, wrongful use of civil proceedings, abuse of process Deceit (Fraud) Knowing or intentional misrepresentations, often in connection with a contract Three intentional torts protect people against the harm that can result from wrongfully instituted legal proceedings: Malicious prosecution: wrongful institution of criminal proceedings Wrongful use of civil proceedings: wrongfully instituted civil suits Abuse of process: imposes liability on those who initiate legal proceedings, whether criminal or civil, for a primary purpose other than the one for which the proceedings were designed Deceit (or fraud) is the formal name for the tort claim that is available to victims of knowing or intentional misrepresentations Often connected to a breach of contract claim Requires proof of false statement of material fact, knowingly or recklessly made by defendant with intent to induce reliance by the plaintiff, along with actual, justifiable, and detrimental reliance on the plaintiff’s past 6 - 10

Interference with Property Rights Trespass to Land Unauthorized or unprivileged intentional intrusion upon another’s real property Requires physical entry onto plaintiff’s land Private Nuisance Interference with plaintiff ’s use and enjoyment of the land Does not require physical entry onto land Trespass: Intrusions include (1) physically entering the plaintiff’s land; (2) causing another to do so (e.g., by chasing someone onto the land); (3) remaining on the land after one’s right to remain has ceased (e.g., staying past the term of a lease); (4) failing to remove from the land anything one has a duty to remove; (5) causing an object or other thing to enter the land (although some overlap with nuisance exists here); and (6) invading the airspace above the land or the subsurface beneath it (if property law and federal, state, and local regulations give the plaintiff rights to the airspace or subsurface and do not allow the defendant to intrude). Intent required for liability is simply the intent to be on the land, so a person may be liable even if the trespass resulted from a mistaken belief that entry was legally justified Where the trespass was specifically intended, no actual harm to the land is required for liability, but actual harm is required for reckless or negligent trespasses Private Nuisance Involves some interference with plaintiff ’s use and enjoyment of the land Unlike trespass to land, nuisance does not require a physical invasion of the property May include odors, noise, smoke, light, vibration Liability requires the interference to be intentional, substantial and unreasonable Example: Stephens v. Pillen In Stephens v. Pillen, 18 plaintiffs sued James D. Pillen and various other defendants, seeking injunctive relief and damages on the theory that the defendants’ hog confinement operation constituted a private nuisance. The plaintiffs alleged that they had been deprived of the normal use and enjoyment of their property, and that the defendants had been notified of the plaintiffs’ concerns but had failed to take corrective action. Plaintiffs described the odors from the defendants’ facilities as “unbearable,” as “overwhelmingly a suffocating stench,” as a “musty hog [excrement] smell,” as a “sewage odor,” as a “gas[-like] smell,” and as an odor that “chokes you.” According to Pillen’s testimony, defendants had tried various procedures to diminish the odors emanating from the facilities and the waste lagoons located there. These measures included the use of food additives, waste additives, and lagoon treatments. Trial court ruled in favor of the plaintiffs and held that the defendants’ four-facility operation constituted an intentional nuisance. In addition, the court ordered that the defendants must, within 12 months, “abate the nuisance or cease operating” their hog confinement facilities. Although the court found that the plaintiffs had suffered at least “some damage” as a result of the nuisance, the court noted that “none of the plaintiffs [was] able to quantify any request for damages” and that the plaintiffs “had not adduced any evidence sufficient for the court to award them specific damages.” As a result, the court awarded no monetary recovery to any of the plaintiffs. On appeal to the Nebraska Court of Appeals, the defendants challenged the trial court’s conclusion that the hog confinement operation constituted a nuisance. The plaintiffs challenged the trial court’s failure to award damages. Appellate court: “To be ‘intentional,’ an invasion of another’s interest in the use and enjoyment of land, or of the public right, need not be inspired by malice or ill will on the actor’s part toward the other. An invasion so inspired is intentional, but so is an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm. …We conclude that the evidence supports a finding that the defendants have known since 1997 that the hog confinement facilities have invaded the plaintiffs’ private use and enjoyment of their land. …We find that 11 of the plaintiffs presented sufficient evidence to support an award of monetary damages.” 6 - 11

Interference with Property Rights Conversion Defendant’s intentional exercise of dominion or control over plaintiff’s personal property without plaintiff’s consent through acquisition, removal, transfer to another, withholding possession, destruction or alteration, or use Conversion can happen through the defendant’s (1) acquisition of the plaintiff ’s property (e.g., theft, fraud, and even the purchase of stolen property); (2) removal of the plaintiff ’s property (e.g., taking that property to the dump or moving the plaintiff ’s car); (3) transfer of the plaintiff’s property (e.g., selling stolen goods or misdelivering property); (4) withholding possession of the plaintiff’s property (e.g., refusing to return a car one was to repair); (5) destruction or alteration of the plaintiff ’s property; or (6) using the plaintiff ’s property (e.g., driving a car left by its owner for storage purposes only). 6 - 12

Test Your Knowledge True=A, False = B Battery is the intentional and harmful touching of another without consent Assault occurs if the act causes a reasonable apprehension of imminent battery in another person’s mind Courts do not allow recovery for emotional distress unless the plaintiff was hospitalized Libel refers to oral defamation and slander refers to written defamation True. False. False – Libel refers to written defamation and slander refers to oral defamation; note the “i” in both “libel” and “written” and the “a” in both “slander” and “oral.” 6 - 13

Test Your Knowledge Multiple Choice The standard of proof a plaintiff must satisfy in a tort case is the: (a) beyond a reasonable doubt standard (b) more often than not standard (c) preponderence of the evidence standard (d) evidentiary standard The correct answer is (c) The correct answer is (b) 6 - 14

Test Your Knowledge Multiple Choice If a public official sues for defamation, s/he must prove the elements of defamation and: (a) extreme damages (b) actual malice The elements of defamation include: (a) unprivileged publication (b) false and defamatory statements (c) without privilege (d) both (a) and (b), but not (c) The correct answer is (c) The correct answer is (b) 6 - 15

Test Your Knowledge Multiple Choice Which of the following torts are not concerned with interference with property rights? (a) invasion of privacy (b) private nuisance (b) trespass to land (c) conversion The correct answer is (d) The correct answer is (a). 6 - 16

Thought Question For several intentional torts, such as defamation or false imprisonment, there may be rights belonging to the defendant, such as free speech or protection of property. How should a court or jury balance these interests? Opportunity to discuss balancing interests. For example, a defamation case might have the conflicting interests of free speech. A right to privacy case in the workplace may have the interests of the company in protecting company secrets or property. A false imprisonment case may involve a company’s efforts to prevent shoplifting. 7 - 17