1. Chapter 8 Tort Law

2. 2 Introduction o An injury can involve both civil (tort) and criminal liability. o In a civil action, the plaintiff hires her own lawyer. o In a criminal action, the state prosecutes the injury to the community.

3. 3 Basis of Tort Law o Doing business today involves risks, both legal and financial. o A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. o There are intentional and unintentional (negligence) torts.

4. 4 Types of Torts o Intentional torts – arise from an act defendant consciously performs; key is the intent to perform the act and not necessarily the intent to do harm ( e.g., shooting gun into the air), though proof of intent to cause harm is the best way to prove an intentional tort. o Negligence – no intent required; act (or omission) creates risk of harm; accident, careless, mistake, misjudgment. o Strict liability – liability without fault; traditionally, harm caused by ultrahazardous activity or consumption of drugs/food/beverages; theory extended to product liability starting in the mid-20 th Century.

5. 5 Causation & Damage Required for All Torts o Causation o The “bridge” between the defendant’s bad act and injury/damages suffered by the plaintiff. o Requires a reasonable relationship between defendant’s bad act and plaintiff’s damage. o Damage o Also called “injury” or “loss.” o Tort law is based on compensation for a loss that can somehow be measured in money. o If no damage, then no compensation is necessary and the defendant will win. o “Damage” includes any kind of measurable financial loss; e.g., physical injury, loss of business, emotional distress.

6. 6 Intentional Torts Against Persons o The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: o Tortfeasor intended the consequences of her act; or o She knew with substantial certainty that certain consequences would result.

7. 7 Types of Intentional Torts o Assault and Battery. o False Imprisonment. o Infliction of Emotional Distriess. o Defamation. o Invasion of Privacy. o Business Torts.

8. 8 Assault and Battery o ASSAULT is an intentional, unexcused act that: o Creates a reasonable apprehension of fear, or o Immediate harmful or offensive contact. o NO CONTACT NECESSARY. o BATTERY is the completion of the Assault: o Intentional or Unexcused. o Harmful, Offensive or Unwelcome. o Physical Contact.

9. 9 Defenses to Assault & Battery o Consent. o Self-Defense (reasonable force). o Defense of Others (reasonable force). o Defense of Property.

10. 10 False Imprisonment o False Imprisonment is the intentional: o Confinement or restraint. o Of another person’s activities. o Without justification. o Merchants may reasonably detain customers if there is probable cause.

11. 11 Intentional Infliction of Emotional Distress o Intentional infliction of emotional distress – “outrageous” conduct by defendant causes plaintiff to suffer severe emotional distress o An intentional act that is: o Extreme and outrageous, that o Results in severe emotional distress in another. o Most courts require some physical symptom or illness.

12. 12 Defamation o Defamation – based on defendant’s false statement of fact to 3 rd party causes damage to plaintiff; statement can be spoken (slander) or written or on the internet (libel). o Right to free speech is constrained by duty we owe each other to refrain from making false statements. o Orally breaching this duty is slander; breaching it in print or media is libel.

13. 13 Defamation o Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. o Publication requires communication to a 3 rd party.

14. 14 Damages for Libel o General Damages are presumed ; Plaintiff does not have to show actual injury. o General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

15. 15 Damages for Slander o Rule: Plaintiff must prove “special damages” (actual economic loss). o Exceptions for Slander Per Se. No proof of damages is necessary: o Loathsome disease, o Business improprieties, o Serious crime, o Woman is non-chaste.

16. 16 Defenses to Defamation o Truth is generally an absolute defense. o Privileged (or Immune) Speech. o Absolute: judicial & legislative proceedings. o Qualified: Employee Evaluations.

17. 17 Public Figures o Public figures exercise substantial governmental power or are otherwise in the public limelight. o To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.

18. 18 Invasion of Privacy o Invasion of privacy o Appropriation. o Intrusion into a person’s private life. o Publication of Information that Places a Person in False Light. o Public Disclosure of Private Facts.

19. 19 Appropriation o Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

20. 20 Intentional Torts Against Property o Trespass to land occurs when a person, without permission: o Physically enters onto, above or below the surface of another’s land; or o Causes anything to enter onto the land; or o Remains, or permits anything to remain, on the land.

21. 21 Trespass to Personal Property o Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.

22. 22 Torts Against Property o Conversion: civil side of criminal theft. o (includes embezzlement) – defendant initially entrusted with plaintiff’s property ( e.g., car, money) for a certain purpose but defendant then converts property to own use ( e.g., unpermitted use of car, spending money on personal matters). o Disparagement of Property. o Slander of Quality (trade libel). o Slander of Title (ownership).

23. 23 Fraudulent Misrepresentation o Fraud (also called misrepresentation or deceit) – defendant’s false statement of fact made with knowledge of falsity and intent to deceive plaintiff; plaintiff’s reasonable reliance on this statement causes damage to plaintiff. o Elements: o Misrepresentation of material fact; o Intent to induce another to rely; o Justifiable reliance by innocent party; o Damages as a result of reliance; o Causal connection. o Fact vs. Opinion.

24. 24 Business Torts o Wrongful interference with contractual or business relationship/wrongful interference with prospective economic advantage – defendant’s wrongful act interferes with relationship between plaintiff and 3 rd party. o Occurs when: o Defendant knows about contract between A and B; o Intentionally induces either A or B to breach the contract; and o Defendant benefits from breach.

25. 25 Wrongful Interference o With a Business Relationship occurs when: o Established business relationship; o Tortfeasor, using predatory methods, causes relationship to end; and o Plaintiff suffers damages. o Bona fide competitive behavior is a defense to this tort.

26. 26 Damages in a Tort Case o Compensatory - designed to compensate the victim for all harm caused by the tortfeasor. o Special damages – can be measured in exact terms; easiest to prove since usually documentation and/or other clear way to show nature/amount; e.g., medical bills re personal injury case, contract re fraud case or to show loss of income. o General damages – intangible “quality of life” damages, so harder to prove with any precision; e.g., emotional distress or pain and suffering; not available for Br/K but could be available for fraud based on contract. o Nominal damages – small amount of money to recognize that a defendant committed a tort, but there were no compensable damages suffered by the plaintiff o Punitive damages – assessed as punishment in addition to special and general damages; based on (1) defendant’s oppression, fraud or malice (how “bad” was the defendant?), and (2) defendant’s wealth (in order to truly punish the defendant); not available for negligence or Br/K; subject of much political debate re “tort reform” though rarely awarded; recent U.S. Supreme Court case says there should be a single-digit ratio between (1) amount of punitive damages and (2) amount of general and special damages.