Torts Chapter 5

Terminology Intentional tort – a wrongful act that was knowingly committed Tortfeasor – one who commits a tort Assault – a combination of actions and words intended to make another person fearful of immediate physical harm; a reasonably believable threat Battery – the unconsented to and intentional touching of another person

Assault and Battery No need to show motive just that it was intentional Objective threat standard – why not subjective? Defenses: Consent Self defense Defense of others Defense of property These come with a reasonableness standard

In Class Problem Jane and Dan have been dating for two years. Dan has a bad temper and often threatens Jane. One day he holds a clenched fist in her face and says “I oughta.” As he says the words, Jane’s brother Bruno walks in and seeing what is happening knocks Dan out with one punch? Of what crimes are Dan guilty? What about Bruno?

More Torts False Imprisonment The intentional confinement or restraint of another person’s activities without justification Cannot have an escape May be detained by threat of physical harm but the threat must be in the present E.g. I will beat you up the next time I see you if you leave is not false imprisonment

False Imprisonment Store owners often want to detain shoplifters May be false imprisonment Some states have passed laws allowing shop keepers to detain people they suspect of shoplifting if the shop keeper has reasonable cause and does not keep the person for an unreasonable amount of time.

Infliction of Emotional Distress In most jurisdictions you have to prove some type of physical pain or suffering Behavior has to be outrageous and intentional Why the second requirement? Under restatement you can be liable to a third person if they are harmed

Defamation Wrongfully hurting a person’s good reputation Slander – oral defamation Libel – written statement Common law has four false utterances which require no proof of being actionable Utterance that an other has a communicable disease Statement that another has committed an impropriety in business Statement that another has committed a serious crime A statement that an unmarried woman is unchaste

Defamation Has to be publicized Defenses Writing a letter won’t be enough Dictating a letter may be enough Any conversation in which a third person overhears it may be enough to make it public Defenses Truth Privileged statements – absolute or qualified

Invasion of the right of privacy Four major acts constitute a violation The use of a person’s name, picture, other other likeness for commercial purposes without permission Intrusion into another’s affairs Publication of information that places a person in a false light Public disclosure of private facts about a person that an ordinary person would find objectionable

Appropriation The use of another person’s name or likeness Example Vanna White

Misrepresentation Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth Intent to induce another to rely on the misrepresentation Justifiable reliance by the deceived party Damages suffered as result of reliance Casual connection between the misrep and the injury

Wrongful Interference 3 elements that must exist A valid enforceable contract must exist between the two parties A third party must know the contract exists The third party must intentionally cause either of the two parties to breach the contract

Wrongful interference Cont. Can engage in competitive behavior but not behavior that is predatory Critical question are you soliciting customers or trying to get customers that are interested in only your competitor Defenses Interference must be justifiable or permissable

Intentional Torts Against Property Trespass – occurs when a person without permission enters above or below the surface or causes something to enter above or below the surface of another’s property Normally you are not liable for the injuries of trespassers This is changing and a reasonable care standard is being established Attractive nuisance: sand pile that attracts children

Problem 5-3

Defenses to Trespass Invited Licensee Problem 4-2 Walmart Case – if defendant store has actual or constructive notice of dangerous situation they owe duty of care However if self service store then they must anticipate the situation Problem 4-2

Trespass to personal property The taking or interfering with another’s personal property Exceptions provided by statute (artisans lien) Conversion – the unlawful taking and putting to use of another’s personal property Defenses Necessity Superior right to property

Disparagement of Property Slander of quality (Trade Slander) Must show proximate cause such as a person not buying because of the slander Must prove that there were damages Oprah Winfrey Slander of Title X publishes false statement’s about Y’s title to land and therefore no one will buy

Negligence Tort of negligence occurs when someone is injured because of someone’s failure to abide by a duty of care Four questions Did the defendant’s owe a duty of care Did the defendant breach that duty Did the plaintiff suffer a recognizable injury Did the defendant’s breach cause the plaintiff’s injury

Duty of Care Usually involves a reasonable person standard Definition: the duty of all persons established by tort law to exercise a reasonable amount of care in dealings with others.

Reasonable Care Do you have to come to someone’s aid? What about landowners? Is there a different standard for when someone is a trespasser? What if you are a business owner?

Negligence 5-1

Duty of Professionals Duty of care takes into consideration minimum standards of competence Accountants cannot say I did not know that principle of accounting existed Malpractice is often the resulting claim

Injury Requirement and Damages Injury has to result for damages to be awarded Damages may be compensatory or punitive Have to also prove causation Causation in fact – act or omission caused the damage “But for” test Proximate Cause = strong enough connection to justify holding the defendant responsible

Proximate Cause Two standards Problem 5-2 1) Reasonably foreseeable consequence 2) Responsible for all consequences no matter how remote Problem 5-2

Special Negligence Standards Res Ispa Loquitor The facts speak for themselves Example: can’t move knee after a knee surgery Defendant must have controlled instrumentality and must be an injury that would not have happened but for negligence Negligence Per Se P must prove three things That they were owed a duty of care under the statute That the statute clearly sets out the conduct required by the defendant Statute was designed to prevent the type of injury inflicted

Defenses to Negligence Assumption of Risk Plaintiff entered into the situation knowing the risks Need to show 1) knowledge of the risk 2) assumption of risk which can be inferred from conduct Exceptions are employees and those acting in emergency situations Superseding Cause – something that breaks the chain of causation.

Contributory Negligence You have to exercise reasonable care in watching out for dangerous situations Under common law any contributory negligence would prevent recovery by Plaintiff In some states contributory negligence is not a bar to recovery if there is a “last clear chance” for the defendant to avoid the harm

Comparative Negligence Most states now allow for comparative negligence In these cases the court looks at the fault of the defendant and compares is the fault of the plaintiff and if defendant is more at fault they have to pay up Some states use an 80/20 rule

Comparative Fault Contributory negligence allowed even if strict liability 50% limit Have to name defendants or lose claim against them Defendants more than 50% at fault are jointly liable for all economic damages

Other Special Standards “Danger Invites Rescue” – just because a third party was negligent does not relieve the defendant of liability if he created the danger that invited rescue by a third party Good Samaritan Laws: protect good samaritans Dram Shop Acts: Cannot serve those who are intoxicated or you may be liable for their damages Social hosts may be included