1. Chapter 5 Intentional Torts and Negligence

2. Introduction to Intentional Torts and Negligence
Injured party brings civil lawsuit to seek compensation for a wrong done to the party
Damages available
Tort damages
Punitive damages
If the victim of a tort dies, beneficiaries can bring a wrongful death action against defendant
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Intentional Torts
Assault
Threat of immediate harm or offensive contact
Any action that arouses reasonable apprehension of imminent harm
Actual physical contact is unnecessary
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Intentional Torts
Battery
Unauthorized and harmful or offensive physical contact with another person
Direct physical contact between victim and perpetrator unnecessary
May accompany assault
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Intentional Torts
Doctrine of transferred intent
Party A intends to harm Party B, but actually injures Party C
Law transfers perpetrator’s intent from target to actual victim
Party C can sue the perpetrator
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Intentional Torts
False imprisonment
Intentional confinement or restraint of another person without authority or justification and without that person’s consent
Physical force
Barriers
Threats of physical violence
False arrest
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Intentional Torts
Shoplifting and merchant protection statutes
Merchants may stop, detain, and investigate suspected shoplifters if:
There are reasonable grounds for suspicion
Suspects are detained for only reasonable time
Investigations are conducted in reasonable manner
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8. Case 5.1: False Imprisonment
Walmart Stores, Inc. v. Cockrell
61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992
Court of Appeals of Texas
Issue
Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of the case?
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Intentional Torts
Misappropriation of the right to publicity
Attempt by another person to appropriate a living person’s name or identity for commercial purposes
Tort of appropriation
Plaintiff’s recourse:
Recover the unauthorized profits made by the offender
Obtain an injunction preventing further unauthorized use of his or her identity
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Intentional Torts
Invasion of the right to privacy
Violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity
Placing person in a “false light”
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Intentional Torts
Defamation of character
Types
Slander
Libel
Plaintiff must prove that:
Defendant made an untrue statement of fact about plaintiff
Statement was intentionally or accidentally published to a third party
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Intentional Torts
Disparagement
Untrue statement made about products, services, property, or reputation of a business
Intentional misrepresentation (Fraud)
Wrongdoer deceives another person out of money, property, or something of value
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Intentional Torts
Intentional infliction of emotional distress
Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person
Also known as tort of outrage
Malicious prosecution
Frivolous lawsuit maliciously brought
Prevailing defendant sues original plaintiff to recover damages for injuries
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14. Unintentional Torts (Negligence)
Unintentional Tort: A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
Negligence: Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do
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15. Unintentional Torts (Negligence)
Elements of a Negligence Lawsuit
The defendant owed a duty of care to the plaintiff
The defendant breached the duty of care
The plaintiff suffered injury
The defendant’s negligent act caused the plaintiff’s injury
The defendant’s negligent act was the proximate cause of the plaintiff’s injuries
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16. Unintentional Torts (Negligence)
Duty of care: Obligation not to cause any unreasonable harm or risk of harm
Tests used to determine whether a duty of care was owed:
Reasonable person standard
Reasonable professional standard
Breach of duty of care: Failure to exercise care or to act as a reasonable person would act
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17. Unintentional Torts (Negligence)
Injury to plaintiff
Personal injury or damage to the plaintiff’s property
Damages cannot be recovered if the plaintiff suffered no injury
Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession
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18. Case 5.2: Damages for Negligence
Clancy v. Goad
858 N.E.2d 653, Web 2006 Ind. App. Lexis (2006)
Court of Appeals of Indiana
Issue
Were the damages awarded to Dianna Goad excessive?
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19. Unintentional Torts (Negligence)
Causation
Causation in fact (actual cause): A person who commits a negligent act is not liable unless actual cause can be proven
Proximate cause (legal cause): A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions
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Case 5.3: Duty of Care
Case
James v. Meow Media, Inc.
300 F.3d 683, Web 2002 U.S. App. Lexis (2002)
United States Court of Appeals for the Sixth Circuit
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Case 5.3: Duty of Care
Issue
Are the video and movie producers liable to the plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs’ three children?
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22. Special Negligence Doctrines
Professional malpractice
The liability of a professional who breaches his or her duty of ordinary care
Breach of reasonable professional standard
Negligent infliction of emotional distress
Permits a person to recover for emotional distress caused by the defendant’s negligent conduct
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23. Special Negligence Doctrines
Negligence per se
Violation of a statute that proximately causes an injury
Res ipsa loquitur
Defendant had exclusive control of the situation that caused the plaintiff’s injury
Injury would not have ordinarily occurred but for someone’s negligence
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24. Special Negligence Doctrines
Good Samaritan laws
Protects medical professionals who stop and render emergency first aid
Relieves them from liability for ordinary negligence
No relief for gross negligence or intentional or reckless conduct
Laypersons not trained in CPR not covered
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25. Defenses Against Negligence
Superseding or intervening event
An event for which defendant is not responsible
Assumption of risk
Plaintiff knowingly and voluntarily participates in a risky activity that results in injury
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26. Case 5.4: Assumption of the Risk
Lilya v. The Greater Gulf State Fair, Inc.
855 So.2d 1049, Web 2003 Ala. Lexis 57
Supreme Court of Alabama
Issue
Was riding a mechanical bull an open and obvious danger for which Lilya had voluntarily assumed the risk when he rode the mechanical bull?
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27. Defenses Against Negligence
Contributory negligence
Plaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendant
Comparative negligence
Damages apportioned according to fault
Pure comparative negligence
Partial comparative negligence (50% rule)
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Strict Liability
Strict liability is liability without fault
A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent
Abnormally dangerous activities
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