1. Torts
Chapter 5

2. Terminology
Intentional tort – a wrongful act that was knowingly committed
Tortfeasor – one who commits a tort
Assault – a combination of actions and words intended to make another person fearful of immediate physical harm; a reasonably believable threat
Battery – the unconsented to and intentional touching of another person

3. Assault and Battery
No need to show motive just that it was intentional
Objective threat standard – why not subjective?
Defenses:
Consent
Self defense
Defense of others
Defense of property
These come with a reasonableness standard

4. In Class Problem
Jane and Dan have been dating for two years. Dan has a bad temper and often threatens Jane. One day he holds a clenched fist in her face and says “I oughta.” As he says the words, Jane’s brother Bruno walks in and seeing what is happening knocks Dan out with one punch?
Of what crimes are Dan guilty?
What about Bruno?

5. More Torts False Imprisonment
The intentional confinement or restraint of another person’s activities without justification
Cannot have an escape
May be detained by threat of physical harm but the threat must be in the present
E.g. I will beat you up the next time I see you if you leave is not false imprisonment

6. False Imprisonment Store owners often want to detain shoplifters
May be false imprisonment
Some states have passed laws allowing shop keepers to detain people they suspect of shoplifting if the shop keeper has reasonable cause and does not keep the person for an unreasonable amount of time.

7. Infliction of Emotional Distress
In most jurisdictions you have to prove some type of physical pain or suffering
Behavior has to be outrageous and intentional
Why the second requirement?
Under restatement you can be liable to a third person if they are harmed

8. Defamation Wrongfully hurting a person’s good reputation
Slander – oral defamation
Libel – written statement
Common law has four false utterances which require no proof of being actionable
Utterance that an other has a communicable disease
Statement that another has committed an impropriety in business
Statement that another has committed a serious crime
A statement that an unmarried woman is unchaste

9. Defamation Has to be publicized Defenses
Writing a letter won’t be enough
Dictating a letter may be enough
Any conversation in which a third person overhears it may be enough to make it public
Defenses
Truth
Privileged statements – absolute or qualified

10. Invasion of the right of privacy
Four major acts constitute a violation
The use of a person’s name, picture, other other likeness for commercial purposes without permission
Intrusion into another’s affairs
Publication of information that places a person in a false light
Public disclosure of private facts about a person that an ordinary person would find objectionable

11. Appropriation The use of another person’s name or likeness
Example Vanna White

12. Misrepresentation
Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth
Intent to induce another to rely on the misrepresentation
Justifiable reliance by the deceived party
Damages suffered as result of reliance
Casual connection between the misrep and the injury

13. Wrongful Interference
3 elements that must exist
A valid enforceable contract must exist between the two parties
A third party must know the contract exists
The third party must intentionally cause either of the two parties to breach the contract

14. Wrongful interference Cont.
Can engage in competitive behavior but not behavior that is predatory
Critical question are you soliciting customers or trying to get customers that are interested in only your competitor
Defenses
Interference must be justifiable or permissable

15. Intentional Torts Against Property
Trespass – occurs when a person without permission enters above or below the surface or causes something to enter above or below the surface of another’s property
Normally you are not liable for the injuries of trespassers
This is changing and a reasonable care standard is being established
Attractive nuisance: sand pile that attracts children

16. Problem 5-3

17. Defenses to Trespass Invited Licensee Problem 4-2
Walmart Case – if defendant store has actual or constructive notice of dangerous situation they owe duty of care
However if self service store then they must anticipate the situation
Problem 4-2

18. Trespass to personal property
The taking or interfering with another’s personal property
Exceptions provided by statute (artisans lien)
Conversion – the unlawful taking and putting to use of another’s personal property
Defenses
Necessity
Superior right to property

19. Disparagement of Property
Slander of quality (Trade Slander)
Must show proximate cause such as a person not buying because of the slander
Must prove that there were damages
Oprah Winfrey
Slander of Title
X publishes false statement’s about Y’s title to land and therefore no one will buy

20. Negligence
Tort of negligence occurs when someone is injured because of someone’s failure to abide by a duty of care
Four questions
Did the defendant’s owe a duty of care
Did the defendant breach that duty
Did the plaintiff suffer a recognizable injury
Did the defendant’s breach cause the plaintiff’s injury

21. Duty of Care Usually involves a reasonable person standard
Definition: the duty of all persons established by tort law to exercise a reasonable amount of care in dealings with others.

22. Reasonable Care Do you have to come to someone’s aid?
What about landowners?
Is there a different standard for when someone is a trespasser?
What if you are a business owner?

23. Negligence
5-1

24. Duty of Professionals
Duty of care takes into consideration minimum standards of competence
Accountants cannot say I did not know that principle of accounting existed
Malpractice is often the resulting claim

25. Injury Requirement and Damages
Injury has to result for damages to be awarded
Damages may be compensatory or punitive
Have to also prove causation
Causation in fact – act or omission caused the damage
“But for” test
Proximate Cause = strong enough connection to justify holding the defendant responsible

26. Proximate Cause Two standards Problem 5-2
1) Reasonably foreseeable consequence
2) Responsible for all consequences no matter how remote
Problem 5-2

27. Special Negligence Standards
Res Ispa Loquitor
The facts speak for themselves
Example: can’t move knee after a knee surgery
Defendant must have controlled instrumentality and must be an injury that would not have happened but for negligence
Negligence Per Se
P must prove three things
That they were owed a duty of care under the statute
That the statute clearly sets out the conduct required by the defendant
Statute was designed to prevent the type of injury inflicted

28. Defenses to Negligence
Assumption of Risk
Plaintiff entered into the situation knowing the risks
Need to show 1) knowledge of the risk 2) assumption of risk which can be inferred from conduct
Exceptions are employees and those acting in emergency situations
Superseding Cause – something that breaks the chain of causation.

29. Contributory Negligence
You have to exercise reasonable care in watching out for dangerous situations
Under common law any contributory negligence would prevent recovery by Plaintiff
In some states contributory negligence is not a bar to recovery if there is a “last clear chance” for the defendant to avoid the harm

30. Comparative Negligence
Most states now allow for comparative negligence
In these cases the court looks at the fault of the defendant and compares is the fault of the plaintiff and if defendant is more at fault they have to pay up
Some states use an 80/20 rule

31. Comparative Fault
Contributory negligence allowed even if strict liability
50% limit
Have to name defendants or lose claim against them
Defendants more than 50% at fault are jointly liable for all economic damages

32. Other Special Standards
“Danger Invites Rescue” – just because a third party was negligent does not relieve the defendant of liability if he created the danger that invited rescue by a third party
Good Samaritan Laws: protect good samaritans
Dram Shop Acts: Cannot serve those who are intoxicated or you may be liable for their damages
Social hosts may be included