1. ©2001 West Legal Studies in Business. All Rights Reserved. 1 Chapter 12: Torts and Strict Liability

2. ©2001 West Legal Studies in Business. All Rights Reserved. 2 §1: Basis of Tort Law Doing business today involves risks, both legal and financial. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. There are intentional and unintentional (negligence) torts.

3. ©2001 West Legal Studies in Business. All Rights Reserved. 3 §2: Intentional Torts The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: –Tortfeasor intended the consequences of her act; or –She knew with substantial certainty that certain consequences would result.

4. ©2001 West Legal Studies in Business. All Rights Reserved. 4 Types of Intentional Torts Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts.

5. ©2001 West Legal Studies in Business. All Rights Reserved. 5 Assault and Battery ASSAULT: Intentional, unexcused act that creates a reasonable apprehension of fear of immediate harmful or offensive contact. –NO CONTACT NECESSARY BATTERY: Intentional or unexcused harmful, offensive or unwelcome physical contact. –The completion of the Assault.

6. ©2001 West Legal Studies in Business. All Rights Reserved. 6 Defenses to Assault & Battery Consent. Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Property.

7. ©2001 West Legal Studies in Business. All Rights Reserved. 7 False Imprisonment The Intentional confinement or restraint. Of another person’s activities. Without justification. Merchants may reasonably detain customers if there is probable cause.

8. ©2001 West Legal Studies in Business. All Rights Reserved. 8 Intentional Infliction of Emotional Distress An intentional act that is Extreme and outrageous that Results in severe emotional distress in another. Most courts require some physical symptom or illness. –Case 12.1: Roach v. Stern (1998).

9. ©2001 West Legal Studies in Business. All Rights Reserved. 9 DefamationDefamation Right to free speech is constrained by duty we owe each other to refrain from making false statements. Orally breaching this duty is slander; Breaching this duty in print or other audio- visual media is libel. (Today, this would include bulletin boards, chatrooms and the internet in general.)

10. ©2001 West Legal Studies in Business. All Rights Reserved. 10 “Publication”“Publication” Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. Publication requires communication to a 3 rd party.

11. ©2001 West Legal Studies in Business. All Rights Reserved. 11 Defamation-Damages [1] Damages for Libel: –General Damages are presumed; Plaintiff does not have to show actual injury. –General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

12. ©2001 West Legal Studies in Business. All Rights Reserved. 12 Defamation-Damages [2] Damages for Slander. –Rule: Plaintiff must prove “special damages” (actual economic loss), unless it is slander per se, which presumes damages: »Loathsome disease; »Business improprieties; »A serious crime; or »A woman who is unchaste.

13. ©2001 West Legal Studies in Business. All Rights Reserved. 13 Defamation-DefensesDefamation-Defenses Truth is generally an absolute defense. Privileged (or Immune) Speech: –Absolute: judicial & legislative proceedings. –Qualified: Employee Evaluations.

14. ©2001 West Legal Studies in Business. All Rights Reserved. 14 Defamation-Public Figures Public figures exercise substantial governmental power or are otherwise in the public limelight. According to N.Y. Times v. Sullivan (1964) Plaintiff must show “actual malice”: that statement was made with either knowledge of falsity or reckless disregard for the truth. –See Falwell v. Hustler (1988).Falwell v. Hustler

15. ©2001 West Legal Studies in Business. All Rights Reserved. 15 Invasion of Privacy Every person has a fundamental right to solitude freedom from public scrutiny. Person commits tort if she: –Uses a person’s name or likeness for commercial purposes without permission; –Intrudes into a person’s private affairs or seclusion; –Publishes information that places a person in a false light; or –Publishes private facts that are objectionable. See Emerging Trends: Privacy Online.See Emerging Trends: Privacy Online

16. ©2001 West Legal Studies in Business. All Rights Reserved. 16 AppropriationAppropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

17. ©2001 West Legal Studies in Business. All Rights Reserved. 17 FraudFraud Fraudulent misrepresentation involves intentional deceit: –Misrepresentation of material fact; –Intent to induce another to rely; –Justifiable reliance by innocent party; –Damages as a result of reliance; and –Causal connection to injuries.

18. ©2001 West Legal Studies in Business. All Rights Reserved. 18 Wrongful Interference [1] Tort that interferes with a contractual relationship. Occurs when: –Defendant knows about contract between A and B; –Intentionally induces either A or B to breach the contract; and –Defendant benefits from breach. Case 12.2: Kallok v. Medtronic (1998).Kallok v. Medtronic

19. ©2001 West Legal Studies in Business. All Rights Reserved. 19 Wrongful Interference [2] With a Business Relationship occurs when: –Given an established business relationship; –A tortfeasor, using predatory methods, causes relationship to end; and –Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort.

20. ©2001 West Legal Studies in Business. All Rights Reserved. 20 §3: Intentional Torts to Property Trespass to land occurs when a person, without permission: –Physically enters onto, above or below the surface of another’s land; or –Causes anything to enter onto the land; or –Remains, or permits anything to remain, on the land.

21. ©2001 West Legal Studies in Business. All Rights Reserved. 21 Intentional Torts to Property [2] Trespass to personal property is the intentional interference with another’s use or enjoyment of personal property without consent or privilege. Conversion: wrongful taking. Disparagement of property: economically injures property (slander of title or quality).

22. ©2001 West Legal Studies in Business. All Rights Reserved. 22 §4: Negligence Tortfeasor does not intend the consequences of the act or believes they will occur. Tortfeasor’s conduct merely creates a foreseeable risk of injury to Plaintiff. To succeed in his claim, Plaintiff must show: –Defendant owed Plaintiff a duty of care; –Defendant breached that duty; –Plaintiff suffered legal injury; –Defendant’s breach caused the injury.

23. ©2001 West Legal Studies in Business. All Rights Reserved. 23 Duty of Care Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. Courts use reasonable person standard (jury) to determine whether duty exists. Landowners owe duties to “business invitees” of tenants.

24. ©2001 West Legal Studies in Business. All Rights Reserved. 24 The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury). Duty of Care: Foreseeability

25. ©2001 West Legal Studies in Business. All Rights Reserved. 25 Duty of Care Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff. –Case 12.3: Martin v. Wal-Mart (1999).Martin v. Wal-Mart Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of this duty is called professional malpractice.

26. ©2001 West Legal Studies in Business. All Rights Reserved. 26 Injury and Damages To recover, Plaintiff must show legally recognizable injury. Compensatory Damages are designed to reimburse Plaintiff for actual losses. Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.

27. ©2001 West Legal Studies in Business. All Rights Reserved. 27 CausationCausation Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. Causation is both: –Causation in Fact; and –Proximate Cause.

28. ©2001 West Legal Studies in Business. All Rights Reserved. 28 Causation in Fact Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

29. ©2001 West Legal Studies in Business. All Rights Reserved. 29 Proximate Causation An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. Foreseeability of injury is an important factor. Think of proximate cause as an unbroken chain of events. –Case 12.4: Palsgraf v. Long Island RR (1928).

30. ©2001 West Legal Studies in Business. All Rights Reserved. 30 Defenses to Negligence Assumption of Risk. Superceding Intervening Cause. Contributory or Comparative Negligence.

31. ©2001 West Legal Studies in Business. All Rights Reserved. 31 Assumption of Risk If Plaintiff has adequate notice and understanding of the risks associated with an activity, but knowingly and willingly engages in the act anyway, Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood. –Case 12.5: Crews v. Hollenbach (1999).

32. ©2001 West Legal Studies in Business. All Rights Reserved. 32 Superceding Cause A unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability. If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.

33. ©2001 West Legal Studies in Business. All Rights Reserved. 33 Contributory Negligence [1] Under common law, if Plaintiff if any way caused his injury, he was barred from recovery. Most states have replaced contributory negligence with the doctrine of comparative negligence. The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself. “Last clear chance”: Plaintiff can recover all damages even though she might have contributed to her injuries.

34. ©2001 West Legal Studies in Business. All Rights Reserved. 34 Comparative Negligence In determining liability, the amount of damages a Plaintiff causes to herself are subtracted from the amount of damages suffered by the Plaintiff, and only the remainder is recoverable from the Defendant. However, if Plaintiff is more than 50% liable, she recovers nothing.

35. ©2001 West Legal Studies in Business. All Rights Reserved. 35 Special Negligence Doctrines Res Ipsa Loquiter. Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff: –Statute sets out a standard of care; –Plaintiff is member of class intended to be protected by the statute; and –Statute is designed to prevent Plaintiff’s injury.

36. ©2001 West Legal Studies in Business. All Rights Reserved. 36 Special Negligence Statutes “Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts.

37. ©2001 West Legal Studies in Business. All Rights Reserved. 37 Strict Liability Defendant’s liability for strict liability is without regard to: –Fault. –Foreseeability. –Standard of Care. –Causation. Liability is based on creation of extraordinary risk.

38. ©2001 West Legal Studies in Business. All Rights Reserved. 38 Abnormally Dangerous Activities Defendant is strictly liable for an “abnormally dangerous activity” if activity: –Involves serious potential harm; –Involves high degree of risk that cannot be made safe; and –Is not commonly performed in the community or area.

39. ©2001 West Legal Studies in Business. All Rights Reserved. 39 Other Applications of Strict Liability Wild vs. Domestic Animals: Persons who keep wild animals are strictly liable for injuries caused by the beast. Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous. Product Liability (Chapter 13).

40. ©2001 West Legal Studies in Business. All Rights Reserved. 40 Law on the Web Law Guru’s Law Library Website Legal Research Exercises on the Web

41. ©2001 West Legal Studies in Business. All Rights Reserved. 41 Emerging Trends: Internet Privacy Privacy and the Internet: Federal Trade Commission issues final report on privacy (May, 2000)Federal Trade Commission issues final report on privacy Children’s Online Privacy Protection Act of 1998, (April, 2000) for websites whose primary purpose is information from children (13 and under).Children’s Online Privacy Protection Act of 1998 RETURN