Title: Tort Means
1Tort Means Wrong
A tort is a violation of a duty imposed by civil
law.
- Defamation -- making a false statement about
someone - written or verbal - Negligence -- performing wrong surgery
- Interference with contract -- stealing a client
away from a competitor - Fraud -- offering to sell something that doesnt
exist
Examples
2Tort vs. Criminal or Contract Law
- Criminal Law -- behavior classified as dangerous
to society prosecuted by the government, whether
victim wants to prosecute or not money award
goes to the government
- Contract Law -- based on breach of an agreement
between the two parties victim prosecutes and
receives compensation or restitution.
- Tort Law -- based on an obligation imposed by the
law with no agreement needed between parties
victim prosecutes and receives compensation or
restitution.
3Categories of Tort Law Based on Defendants
State of Mind
- Intentional Torts
- Does not necessarily require an intention to harm
the victim, only an intention to perform the act
which caused the injury. (Intentionally throwing
an object, but not meaning to hit anyone is a
tort if it causes injury to someone.)
- Negligence and Strict Liability
- Unintentional torts
4Categories of Tort LawBased on Rights at Stake
Infringements of personal rights (assault,
battery, false imprisonment, defamation,
intentional infliction of emotional distress and
invasion of privacy) vs. Infringements of
property rights (trespass, nuisance, fraud,
conversion, product disparagement and
interference with contract)
5Intentional Torts Against Property
Trespass, Conversion, and Fraud
- Trespass is intentionally entering land that
belongs to someone else or remaining after being
asked to leave. - Keeping an object, such as a vehicle, on someone
elses land and refusing to move it is also
trespassing. - You may be trespassing if you enter someones
property mistakenly believing it is public
property.
6Intentional Torts Against Property
Trespass, Conversion, and Fraud
- Conversion is taking or using someones property
without consent (civil law version of theft).
- Fraud is injuring another person by deliberate
deception. (We will discuss fraud in more detail
in the context of contract law.)
7Intentional Torts against Persons Assault and
Battery
- Assault is an action that causes the victim to
fear an imminent offensive contact. - Assault can occur without the contact ever
happening. - Pulling a gun on someone -- even if it is
unloaded -- is usually considered assault. - Fear must be reasonable.
- Battery is a touching of another person in a way
that is unwanted or offensive. - The touch does not have to hurt the victim --
sexual touching that is offensive, but not
painful, is battery. - An intentional action that does hurt someone may
be battery even if the injury is unintentional.
8Intentional Infliction of Emotional Distress
- Historically, no recovery was allowed if the
injury was only emotional instead of physical. - Today, most courts allow a plaintiff to recover
from a defendant who intentionally causes
emotional injury. - Behavior causing injury must be extreme and
outrageous. - Must have caused serious emotional harm.
- Some courts allow recovery for emotional injury
caused by negligent behavior.
9Intentional Torts Against Persons False
Imprisonment
False imprisonment is the restraint of someone
against their will and without reasonable cause.
- An employer who doesnt let a sick employee go
home might be guilty of false imprisonment. - If the police detain a person with no reason to
suspect him of any crime, it could be false
imprisonment. - In general, a store may detain a person suspected
of shoplifting if there is a reasonable basis for
the charge and the detention is done reasonably
(in private and for a reasonable time).
10Intentional Torts Against Persons Defamation
- Defamation is irresponsible speech to harm
anothers reputation. - Written defamation is libel.
- Verbal defamation is slander.
11Intentional Torts Against Persons Defamation
(contd)
- There are four facts to prove to win a defamation
suit - Defamatory statement injury to reputation.
- Falsity The statement is false.
- Publication/communication The statement was
communicated to a third party. - Injury must be proven in slander cases assumed
in libel cases.
12Defamation (contd)
- Slander per se -- some statements are so harsh
and potentially damaging that the plaintiff is
assumed to be damaged and does not have to prove
injury. - Accusations of committing a serious crime
- Claims of having a sexually transmitted disease
or of being an unchaste woman (gender bias in the
law) - Alleged professional incompetence
13Defamation (contd)
- Opinion -- to be defamation, the statement must
be provable and not simply someones opinion. - Vague terms in the statement usually indicate it
is an opinion, not a provable fact. - Extreme exaggerations are usually not taken as
fact.
14Defamation (contd)
- Public Personalities
- Includes public officials (police and
politicians) and public figures (movie stars and
other celebrities) - Public personalities have a harder time winning a
defamation case because they have to prove that
the defendant acted with actual malice.
15Defamation (contd)
- Privilege
- Defendants receive extra protection in special
cases. - In courtrooms and legislatures, speakers have
absolute privilege. They may speak freely, as
long as it is true. - When information is legitimately needed, the
speaker giving it has qualified privilege. This
may happen when someone reports a suspected
criminal act.
16Privacy and Publicity
- Intrusion (prying into someones private life) is
a tort if a reasonable person would find it
offensive. - Examples wiretapping, stalking, peeping
- Would this include buying your personal
information from your credit card company?
- Disclosure of Embarrassing Private Facts is when
something extremely embarrassing is made public
with no need for the public to know.
17Privacy and Publicity
- False Light is when something false and offensive
is told about someone. - Midler case
- False light privacy, defamation, and parody
Flynt v. Falwell - Waits v. Frito-Lay (not in your readings)
- Commercial Exploitation is when a persons image
or voice is used for commercial purposes without
that persons permission.
18Compensatory Damages
- A jury may award compensatory damages -- payment
for injury --to a plaintiff who prevails in a
civil suit.
- The Single Recovery Principle mandates that the
court must decide all damages -- past, present
and future -- at one time and settle the matter
completely.
- Damages may include money for three purposes
- to restore any loss (such as medical expenses)
caused by the illegal action - to restore lost wages if the injury kept the
defendant from working - to compensate for pain and suffering
19Punitive Damages
- While the purpose of compensatory damages is to
help the victim recover what was lost, punitive
damages are intended to punish the guilty party. - Intended for conduct that is outrageous and
extreme - Designed to make an example out of the
defendant and to deter others
- Sometimes punitive damage awards are huge, but in
most cases they are close to or less than the
amount of compensatory damages awarded. - BMW v. Gore
20Business Torts
Intentional torts that occur almost exclusively
in a business setting are called business torts.
- Interference with business relations
- Interference with a contract
- Interference with a prospective advantage
- The rights to privacy and publicity
- Violations of the Lanham Act
21Interference with Business Relations
- Texaco v. Pennzoil
- Kallok v. Medtronic
- Interference with a contract exists if the
plaintiff can prove these elements - There was a contract between the plaintiff and a
third party and the defendant knew of the
contract. - The defendant induced the third party to breach
the contract or make performance impossible. - There was injury to the plaintiff.
22Interference with Business Relations
- Interference with prospective advantage exists
- when there is a relationship which gives the
plaintiff a reasonable expectation of economic
advantage, even though no contract exists - when the defendant maliciously interferes and
prevents the relationship from developing
23Interference with Business Relations
- The defendant can justify the interference if he
can prove one or more of these elements - He was protecting an existing economic interest.
- He was protecting a public interest.
24The Lanham Act (passed in 1946, amended in 1988)
- This statute prohibits -- and provides punishment
for -- false statements made by a business
intended to hurt another business.
- To win a case under this act, the plaintiff must
prove three things - The defendant made false or misleading fact
statements about the plaintiffs business - The defendant used the statements in commercial
advertising or promotion - The statements created a likelihood of harm to
the plaintiff
25Product Defamation
- State Statutes outlawing defamation of
products - Oprah and Texas beef
- Honda and emu ranchers
26Negligence --
The Unintentional Tort
To win a negligence case, the plaintiff must
prove that the defendant failed in five areas
- Duty of due care -- there must be a duty owed to
the plaintiff. - Breach -- duty must be breached.
- Factual cause -- the injury must have been caused
by the defendants actions. - Foreseeable harm -- it must have been foreseeable
that the action would cause this kind of harm. - Injury -- the plaintiff must have been hurt.
27Duty of Care
- Foreseeable plaintiff
- Dramshop/Social Host cases
- Minority view social host is liable
- Is majority view when drinker is child
- Landowner cases
- Trespasser
- Licensee
- Invitee
Martin v. Walmart Stores
28Breach of Duty
- A defendant breaches his duty of due care by
failing to behave the way a reasonable person
would under similar circumstances. What about - Absent-minded defendants?
- Not very smart defendants?
- Children?
- Physical disabilities?
- Intoxicated defendants?
- Professionals?
- Circumstances count
- Knowledgeable plaintiff
- Stressful situations
29Breach of Duty (contd)
- Companies and Employees -- courts have found
companies liable for hiring and retaining
employees known to be violent, when those
employees later injured co-workers. - Analyze these situations using reasonable
person standard.
30Breach of Duty (contd)
- Negligence per se -- in special cases,
legislatures set a minimum standard for certain
groups of people (esp. children). When a
violation of that statute hurts a member of that
group, the duty is breached. - E.g., violation of regulatory standard of care
- Outlawed behavior
- OSHA standards
31Causation proximate causation ? what is it?
32Factual Cause Foreseeable Harm Proximate
Cause
- Factual Cause -- if the defendants breach
ultimately led to the injury, he is liable. - Does not have to be the immediate cause of
injury, but must be the first in the direct line. - Intervening causes can break the direct line
- Foreseeable Harm -- to be liable, this type of
harm must have been foreseeable. - The defendant does not have to know exactly what
would happen -- just the type of event. - Palsgraf v. Long Island RR
33Ex Factual Cause Foreseeable Harm
Mechanic fails to fix customers brakes, which
causes...
Mechanic fails to fix customers brakes, which
causes...
Mechanic fails to fix customers brakes, which
causes...
Car accident, car hitting bicyclist
Mechanic is liable to cyclist
Factual cause and foreseeable type of injury
Car accident, car hitting bicyclist
Noise from accident startles someone who falls
out a window
Mechanic is NOT liable for falling person
Factual cause, but no foreseeable type of injury
34Injury Damages
- Injury -- plaintiff must show genuine injury
- Future injury may be compensated, but must be
determined at the time of trial.
- Damages -- are usually compensatory, designed to
restore what was lost. In unusual cases, they
may be punitive.
35Defenses to Negligence
- Contributory Negligence
- In a few states, if the plaintiff is AT ALL
negligent, he cannot recover damages from the
defendant. - Assumption of Risk
- No recovery if plaintiff voluntarily assumed risk
- Comparative Negligence
- In most states, if the plaintiff is negligent, a
percentage of negligence is applied to both the
defendant and the plaintiff. - In some cases, a plaintiff found to be more than
50 negligent cannot recover at all.
36Defenses to Negligence
EXAMPLE 1 Crews v. Hollenbach
37MORE EXAMPLES
38Strict Liability
Some activities are so dangerous that the law
imposes a high burden on them. This is called
strict liability.
- Defective Products-- may incur strict liability.
- Ultrahazardous Activities -- defendants are
virtually always held liable for harm. - What is ultrahazardous? Includes using harmful
chemicals, explosives and keeping wild animals. - Plaintiff does not have to prove breach of duty
or foreseeable harm. - Comparative negligence does not apply --
defendant engaging in ultrahazardous activity is
wholly liable.
39TORT REFORM a good idea?