1. OBE 118, Section 10, Fall 2004 Professor McKinsey
Intentional Torts
“Intended” Private Wrongs
OBE 118, Section 10, Fall 2004
Professor McKinsey

2. Understanding Torts Torts are private wrongs
Torts have elements that essentially must be memorized
Definitions often contain the elements.
Elements are like the ingredients in cake, skip one and you do not have a cake (or a tort)

3. Intentional Torts
Wrongs where the person intends to do an act which will invade an interest of another and either knows or should know there is an appreciable risk to another from the act

4. Assault
An intentional, un-privileged, un-excused, non-consensual act that (the act)
creates in the mind of another person apprehension or fear of an immediate harmful and offensive touching (the injury).
Mere words not usually enough

5. Battery
An intentional, un-privileged, un-excused, non-consensual harmful or offensive contact of another.
Cal State typical of state differences
Contact rules
Transferred intent doctrine

6. False Imprisonment
The intentional un-privileged, non-consensual, confinement of another by physical barriers or by physical force or threats of force
Injury? –
Confinement can be via threat
Shopkeepers Privilege:

7. Intentional Infliction of Emotional Distress (IIED)
Outrageous behavior resulting in severe emotional distress to another
Usually physical symptoms required
Intent? –

8. Defamation
A false, unprivileged statement of fact communicated to a third person, which causes damage to a person’s or a product’s reputation.
Slander- transitory, oral or spoken
Libel – more permanent, written form
Intent? –
Injury? – To reputation by exposing to hatred, ridicule or contempt

9. Defamation- Privilege
Absolute privilege
Governmental official performing duty
Members of congress
Judicial proceedings
Qualified privilege (“lose if abused”)
Conditional priv= to interested person by person in position that makes inquiry reasonable; credit report
Protect legitimate business interests
Protect ones own personal interests

10. Defamation- Public Figures
Public figures: must show actual malice on the part of tortfeasor
Actual malice:
Media has a qualified privilege to defame public figures
Conditional priv= to interested person by person in position that makes inquiry reasonable; credit report

11. Fraud
Intentional misrepresentation of a material fact which is justifiably relied upon by another and causes damages.
Intent?- Two of them!
Intent to mislead, (knowledge of falseness)
Intent to induce reliance on misrepresentation

12. Business Torts Tortious Interference with a Contract
(getting someone to breach a contract)
Requires knowing inducement of a party to breach a contract
Tortious Interference with a Prospective Advantage
(getting someone to drop out of a probable or existing business relationship with another)
The plaintiff must have a definite and reasonable expectation of gaining an economic advantage

13. Invasive Torts Intrusion Disclosure of Embarrassing Private Facts
(ex:
Disclosure of Embarrassing Private Facts
False Light
Commercial Exploitation

14. Damages Two basic categories of damages Punish- “Punitive Damages”
Compensate for injuries- “Compensatory Damages”

15. The Bigger Picture of Torts
Traditional “Common Law” Torts
New
“Statutory”
Torts
When people can require compensation for injuries caused by another

16. Elements of Negligence
Duty of care
Breach of the duty of care
Injury (Actual cause)
Proximate cause
(Damages)

17. Duty of care
Act as carefully as The Reasonable Person would under similar circumstances
Was the harm that resulted foreseeable?

18. Proximate Cause Is it fair to say the act was the cause? “Fairness”
Factors

19. Summary of Basic Negligence
Duty of care
Breach of the duty of care
Injury (Actual cause)
Proximate cause
(Damages)

20. Special Effects on Liability
Intervening Causes
A separate event between defendants act and plaintiff’s injury
Shared Responsibility

21. Special Forms of Negligence
Res ipsa loquitor
The thing speaks for itself –
Negligence per se
An act that is “automatically” negligence
Premises Liability

22. Premises Liability
Duty of care is determined with an additional factor: the injured person’s status on the premises:
Trespasser to land
Licensee (Guests of homeowners)
Invitees (Customers at business premises)

23. Premises Negligence Trespassers Licensee Invitee Minimal duty
Must warn of human-made risks not likely to discover
No traps or spring guns
Young children are exception
Licensee
Must warn of known risks or fix them
Invitee
High duty of care
Must inspect premises

24. Defenses to Negligence
Assumed the risk
Comparative negligence

25. Strict Liability vs. Other Types of Torts
Intentional Torts
Did Actor Intend Act or the Harm that resulted from the act?
Negligence
Would a Reasonable Person Do the act that caused the harm?
Strict Liability
Did an injury occur?

26. Strict Liability No need to prove intent or negligence
Often no concern about fault at all
Three Basic Examples

27. Ultra-hazardous Activities
Harboring wild animals
Mining
Explosives

28. PL based on Strict Liability
(Based on the Restatement (2nd) of Torts)
1. D sold product in defective condition
2. D normally in business of selling product
3. Product unreasonably dangerous*
4. P suffers physical harm through use of product
5. Defective condition is proximate cause
6. No substantial changes to product since sold

29. What is a Defective Product?
3 General Ways a Product can be Defective
1) Actual defect (flaw in manufacturing).
Product not built as intended.
2) Design defect.
Product built as designed, design had defect.
3) Failure to warn.
A different approach usually used when product had dangers inherent to purpose or type of product.

30. Torts Review Intentional Torts Negligence Strict Liability Damages
Elements! (and don’t forget how intent works)
Traditional Torts
Newer Torts
Negligence
Basic Negligence
Special situations (Neg per se, res ipsa loquitor, premises liability
Defenses and Liability (Assumed the risk, Comparative neg, JSL)
Strict Liability
Damages

31. Course Review Basic Legal Principles Sources and Types of Law Torts
Law versus Ethics, what law is
Authority of law
Constitution and Governmental Organization
Sources and Types of Law
Legislative versus Judicative versus Administrative
Federal versus State
Courts versus ADR versus Agency proceedings
Torts
Intentional Torts
Negligence
Strict Liability
Damages