1. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 1 INTENTIONAL TORTS AND NEGLIGENCE © 2010 Pearson Education, Inc., publishing as Prentice-Hall CHAPTER 5

2. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 2 Introductory Concepts Tort: French for “wrong.” Tort law provides recourse for variety of injuries and provides remedies for them.

3. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 3 Introductory Concepts (continued) Injured party brings civil lawsuit to seek compensation for a wrong done to the party or the party’s property. –Tort damages are monetary damages that compensate the injured party. –Punitive damages available for certain torts.

4. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 4 Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

5. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 5 Categories of Torts Intentional Torts Strict Liability Torts Unintentional Torts (Negligence)

6. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 6 Intentional Torts Against Persons Law protects a person from unauthorized touching, restraint, or other contact. Law protects a person’s reputation and privacy. Violations of these rights are actionable as torts.

7. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 7 Intentional Torts Against Persons (continued) Assault –Threat of immediate harm or offensive contact; or –Any action that arouses reasonable apprehension of imminent harm. –Actual physical contact is unnecessary.

8. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 8 Intentional Torts Against Persons (continued) Battery –Unauthorized and harmful or offensive physical contact with another person. –Direct physical contact between victim and perpetrator unnecessary. E.g., throwing a rock, poisoning a drink as battery. –May accompany assault.

9. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 9 Intentional Torts Against Persons (continued) 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 properly sue perpetrator.

10. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 10 Intentional Torts Against Persons (continued) 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

11. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 11 Intentional Torts Against Persons (continued) False Imprisonment (continued) –Threat of future harm or moral pressure not enough. –Must be complete imprisonment. Locking only one of several doors not sufficient.

12. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 12 Intentional Torts Against Persons (continued) False Imprisonment (continued) –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, and Investigations are conducted in reasonable manner.

13. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 13 Intentional Torts Against Persons (continued) Misappropriation of the Right to Publicity –Attempt by another person to appropriate a living person’s name or identity for commercial purposes. –Also known as tort of appropriation.

14. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 14 Intentional Torts Against Persons (continued) 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. E.g., secretly taking photos with cell phone camera in locker room; wiretapping a telephone; or reading person’s email without authorization –Placing person in a “false light.” E.g. signing a person’s name to objectionable letter.

15. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 15 Intentional Torts Against Persons (continued) Defamation of Character –Plaintiff must prove: Defendant made an untrue statement of fact about plaintiff; and Statement was intentionally or accidentally published to a third party.

16. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 16 Intentional Torts Against Persons (continued) Defamation of Character (continued) –Slander – oral defamation of character. –Libel – false statement appears in a letter, newspaper, magazine, book, photo, video, etc.

17. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 17 Intentional Torts Against Persons (continued) Defamation of Character (continued) –Public officials, public figures cannot recover for defamation unless they can prove that the defendant acted with actual malice. Elected officials, movie stars, sports figures, other celebrities

18. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 18 Intentional Torts Against Persons (continued) Disparagement –Untrue statement made about products, services, property, or reputation of a business. –Also called product disparagement, trade libel, or slander of title.

19. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 19 Intentional Torts Against Persons (continued) Intentional Misrepresentation (Fraud) –Wrongdoer deceives another person out of money, property, or something of value. –Injured party can recover damages.

20. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 20 Intentional Torts Against Persons (continued) Intentional Misrepresentation (Fraud) (continued) –Elements: Defendant made a false representation of material fact. Defendant knew representation was false and intended to deceive (scienter). Plaintiff justifiably relied on misrepresentation. Plaintiff actually injured.

21. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 21 Intentional Torts Against Persons (continued) Intentional Infliction of Emotional Distress –Defendant’s extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person. E.g., outrageous collection agency practices –Also known as tort of outrage.

22. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 22 Intentional Torts Against Persons (continued) Malicious Prosecution –Frivolous lawsuit maliciously brought. –Prevailing defendant sues original plaintiff to recover damages for injuries. –Difficult to prove.

23. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 23 Unintentional Torts (Negligence) Unintentional Tort –A person is liable for harm that is the foreseeable consequence of his or her actions.

24. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 24 Unintentional Torts (Negligence) (continued) Negligence –Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do.

25. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 25 Unintentional Torts (Negligence) (continued) Elements: 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.

26. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 26 Unintentional Torts (Negligence) (continued) Duty of Care –Obligation not to cause any unreasonable harm or risk of harm. Reasonable person standard. Defendants with a particular expertise or competence are measured against a reasonable professional standard.

27. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 27 Unintentional Torts (Negligence) (continued) Breach of Duty – a failure to exercise care or to act as a reasonable person would act. –E.g., driver exceeding speed limit, camper throwing lit match on ground in forest, or surgeon failing to “scrub up” before surgery.

28. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 28 Unintentional Torts (Negligence) (continued) Injury to Plaintiff –Personal injury or damage to property. –If defendant acted negligently but plaintiff luckily suffered no injury, there shall be no recovery in negligence.

29. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 29 Unintentional Torts (Negligence) (continued) Causation –Causation in Fact (actual cause) and –Proximate Cause (legal cause)

30. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 30 Unintentional Torts (Negligence) (continued) Actual Cause – It must be true that “but for defendant’s negligent act, injury would not have occurred.” E.g., if plaintiff was in poor health and likely would have had the heart attack whether or not he had taken the defendant’s drug product, the drug is not the actual cause, and therefore, defendant shall not be held liable.

31. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 31 Unintentional Torts (Negligence) (continued) Proximate Cause –Defendant not necessarily liable for all damages set in motion by his or her negligent act. –Liable only for foreseeable consequences. E.g., Palsgraf. “Nothing in the situation gave notice that the … package [posed a] peril to persons thus removed.”

32. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 32 Special Negligence Doctrines Professional Malpractice –The liability of a professional who breaches his or her duty of ordinary care. –Reasonable professional standard Medical malpractice Legal malpractice Accounting malpractice

33. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 33 Special Negligence Doctrines (continued) Negligent Infliction of Emotional Distress –A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct. –Some states require physical manifestation.

34. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 34 Special Negligence Doctrines (continued) Negligence Per Se –Violation of a statute that proximately causes an injury –Plaintiff must be within class intended to be protected –Statute enacted to prevent the type of injury suffered

35. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 35 Special Negligence Doctrines (continued) Res Ipsa Loquitur –“The thing speaks for itself” –Defendant had exclusive control of situation that caused plaintiff’s injury –Injury would not have ordinarily occurred but for someone’s negligence E.g., surgical instrument left inside patient after surgery, or crashing elevator

36. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 36 Special Negligence Doctrines (continued) 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

37. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 37 Superseding or Intervening Event Assumption of the Risk Contributory Negligence Comparative Negligence DEFENSES AGAINST NEGLIGENCE

38. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 38 Superseding or Intervening Event An event for which defendant is not responsible –E.g., victim of car accident waiting for ambulance killed by bolt of lightning

39. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 39 Assumption of Risk Plaintiff who voluntarily participates in risky activity assumes the normal risks of that activity. –E.g., race car driver assumes risk of being killed in crash. Does not assume risk of faultily designed race course.

40. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 40 Contributory Negligence Rule in some states. Plaintiff who is partly at fault for his or her own injuries cannot recover. E.g., jaywalker cannot recover when struck by drunk driver. Exception: Last Clear Chance Doctrine

41. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 41 Comparative Negligence Rule in many states. Damages apportioned according to fault. –Pure comparative negligence, or –Partial comparative negligence (50% rule)

42. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 42 Strict Liability 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. For abnormally dangerous activities –E.g., crop dusting, storage of explosives, wild animals as pets.

43. © 2010 Pearson Education, Inc., publishing as Prentice-Hall 43 Strict Liability (continued) Rationale: – There are certain activities that can place the public at risk of injury even if reasonable care is taken. – The public should have some means of compensation if such injury occurs.