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Unformatted text preview: INTENTIONAL TORTS AND TORTS BASED ON NEGLIGENCE NEGLIGENCE Chapter 6 The Role of Tort Law The
q q q q q q q q Definition s Means “wrong” in French s Civil wrong, other than a breach of contract, for which Civil the law provides a remedy the s Breach of a duty owed to another that causes harm Breach Compensation for injuries wrongfully inflicted by the Compensation defendant on the plaintiff Civil, not criminal law Law is determined in each state--rules vary However, the basic principles are similar among all states Remedies should place injured party in the position he/she Remedies would have been in prior to the tort would Fear of tort action deters injurious behavior by others Punitive damages punish malicious behavior Business and Torts Business
q q q q Lawsuits involving businesses often have large Lawsuits awards, i.e. Pennzoil-Texaco case: Jury awarded $10.5 billion to the plaintiff $10.5 Plaintiffs think of businesses as “deep pockets” Business is liable under agency law if a tort Business results in an activity “within the scope of the worker’s employment” worker’s Types s Intentional s Negligence (Unintentional) s Strict Liability (Without fault) INTENTIONAL TORTS INTENTIONAL
q Intent s Person knew what Person he/she was doing he/she s Intent to do the act Intent which reasonably reasonably would result in harm to the plaintiff harm s Knew /should have Knew known the possible consequences of an action an s Willful misconduct Intentional Torts Against Persons Persons
q q q q q q Assault Battery Battery False False Imprisonment Imprisonment Infliction of Infliction Emotional Distress Emotional Invasion of Privacy Defamation ASSAULT ASSAULT
q q q q q q q Placing plaintiff in fear of immediate bodily injury Placing fear bodily Fear: if a reasonable person under the same or Fear: similar circumstances would have apprehension of bodily harm or offensive contact of Threats? Usually an assault Usually Pointing a gun? Yes Yes Point a gun while other person sleeps? No assault No Letter threats? No assault (“immediate” requirement not met) requirement Phone threats? Maybe. How close is the caller? On a cell phone outside the door or window? On BATTERY BATTERY
q q q q q Unlawful “touching” Intentional physical Intentional contact without consent consent Use of fist, hand, or Use kicking kicking Use of weapons, i.e. Use guns or stick guns Unwanted kiss? Has Unwanted been held in some states to constitute battery battery q q q Assault & Battery may Assault or may not be linked together in a lawsuit together Defenses s Consent s Privilege s Self defense s Defense of Defense others/Defense of property property See Nelson v. Carroll See Nelson False Imprisonment (False Arrest) (False
q q q q Intentional holding or Intentional detaining Freedom to come and Freedom go is restrained go Restraint s May be physical s May be mental (i.e. May through verbal threats) threats) Lawsuits often arise Lawsuits from detention of suspected shoplifters suspected q q Defense by Defense businesses regarding detention of shoplifters shoplifters s Restraint was in a Restraint reasonable manner reasonable s Restraint was in a Restraint reasonable time s Basis for the Basis detention was valid detention See Caldwell v. K-Mart See Corp. Corp. Infliction of Emotional Distress Infliction
q q q q q q Intentional conduct So outrageous, it creates severe mental or So emotional distress emotional Petty insults, annoying behavior, bad language? Petty Usually not actionable; we must have “tough skin” skin” Accompanying physical injury usually not Accompanying required required Bill collectors or landlords who badger, are Bill profane, and threaten lay the background for a lawsuit See White v. Monsanto Co. See White Invasion of Privacy Invasion
q q q q q q q Infringement on a person’s right of solitude & freedom from Infringement unwarranted public exposure unwarranted Use of a person’s name or picture without permission Intrusion on solitude (i.e. wiretap) Placing a person in false light (publishing a false story) Public exposure of private facts (debts, drug use) Defenses s Right of privacy waived by public figures, politicians, Right entertainers, sports personalities, etc. entertainers, s Information about an individual taken from public files or Information records records See Peoples Bank & Trust Company of Mountain Home v. See Globe International, Inc. Globe Defamation (Libel/Slander) Defamation
q q q q Definition: An intentional false communication that injures a person’s reputation or good name person’s Elements of the Tort: s False or defamatory statement s Published or communicated to a third person s Causing harm or injury to the plaintiff Defamation per se: Presumption of harm Defamation per s No proof of harm/injury is necessary s Examples: person has committed a crime; has a Examples: sexually communicable disease; carries out business activities improperly, etc. activities Case regarding Workplace Defamation: s Frank B. Hall & Co. v. Buck Defenses to Defamation Defenses
q q Truth is a complete defense in some states Truth is Absolute privilege is an immunity
s s Legislators in committee sessions Participants in judicial proceedings q Conditional privilege eliminates liability if the false statement was published in good faith false
s s If there is no malice (unlike the Buck case) In order to protect a person’s legitimate interests Members of the press may publish “opinion” about public officials, figures, or those of public interest if there is no actual malice (“absence of malice”) See “Libel in Foreign Courts” (US communications companies sued in UK which does not grant news media extensive privileges traditional in U.S.) q Constitutional privilege
s s Cyberlaw: Tort Liability for Internet Servers Internet
q q q q Q: If Internet users are involved in illegal Q: activities, are the Internet servers liable? activities, A: Generally no, as long as they were not aware of it or had no reason to be aware of it it In Zeran v. America Online: AOL not liable in tort In Zeran for defamatory message that AOL user sent. Sender is liable. Sender In Maraboi-FL v. Natl. Assn. of Fire Equipment In Distributors: Held that server could be liable if aware of copyright infringement. Trial court will determine the issue as to liability. determine Intentional Torts Against Property Property
q q q q q q Trespass to Land: Unauthorized intrusion that interferes with another’s peaceful enjoyment of their property with Private Nuisance: interference with use & enjoyment of land s Destruction of crops, causing health risks from pollution, throwing objects on the land, using the neighboring house for drug deals s See Pendoley v. Ferreira and “Expensive Boom Box” and Public Nuisance: Interference with a right held in common by general public by s Illegal gambling, bad odors, obstruction of a highway Trespass to Personal Property: Interference with the right of Trespass an owner to the exclusive use and enjoyment of property an and Conversion: Unlawful control of another’s personal property Conversion: Unlawful Misappropriation: Invasion of property rights such as Misappropriation: trademarks or trade secrets trademarks Pendoley v. Ferreira, Pendoley q q q q q Ferreiras started pig Ferreiras farming in 1949; by 1960 there were 850 pigs, 225 piglets & 10 employees piglets 30 new homes were built in 30 the area between 1949 and 1960 1960 Pendoley & others sue Pendoley Ferreira for nuisance from nuisance smell; ask for an injunction to force closing of pig farm to Trial court : $300 to each Trial homeowner and injunction to prevent stench to Ferreira appeals q q q q Held: Offensive operation must be terminated entirely within a reasonable time. reasonable Damages alone cannot Damages compensate for “nauseating piggery odors” odors” There is “unreasonable There interference with the proper enjoyment” of the landowners’ residences landowners’ Ferreira given a reasonable Ferreira opportunity to move with complete injunction at a TORTS BASED ON NEGLIGENCE ON
q q Duty (Owed to the plaintiff) Breach of duty of care
s s Unintentional careless conduct that creates an Unintentional unreasonable risk of harm to others unreasonable Breach through an act or omission q q Causation (causal connection to the injury) Injury/Damages
s s There can be a negligence action even if there was no There intent to do harm intent See “Tort Liability in France” (French Civil Code See specifically defines elements of negligence) specifically Negligence: Duty of Care and the Reasonable Person Standard
q q q q q The standard is how The persons in the relative community ought to behave behave One must be reasonable at One all times, under all circumstances circumstances “What a reasonable person What reasonable would do in same or similar circumstances” similar Applies to professions-Reasonable CPA, MD, Reasonable attorney, etc. attorney, See Bethlehem Steel v. See Ernst & Whinney Ernst Negligence Per Se
q Violation of statute is negligence.
s Statute needs to protect that class of people s Some states, it proves negligence. s Some states, only evidence of negligence.
– We will use, it proves negligence. Jury still must decide if this negligence caused the injury. q Examples:
q – Selling alcohol to minors, causing crash. – Leaving keys in car, causing crash. Res Ipsa Loquitur
q q “the thing speaks for itself”. Applies to a situation;
s s s that usually does not occur in the absence of negligence; the defendant is in control of; and the plaintiff is not negligent. q q Shifts burden of proof to defendant! Examples
s s s Airplane crash.(YES, Res Ipsa) Audi sudden acceleration case? Car suddenly accelerates with no apparent cause.
– Not res ipsa. Audi not in control at time. Damages
Defendant liable only for damages legally (proximately) caused by his tort action. q This is not physical causation, but legal causation. q Damages that:
s Naturally flow from the action; s Foreseeable from the action. q This limits the liability of the tortfeasor. Palsgraf v. Long Island RR Co. Palsgraf (1928 Landmark Case) (1928 q q q q q q q Palsgraf waits on the platform for a train; another train Palsgraf begins to leave the station; man carrying a package runs to catch it; jumps on the train; looks like he might fall catch Guards try to help him as he teeters He drops the package which contains fireworks that He explode explode Shock from the explosion causes scales located on the Shock platform to fall, injuring Palsgraf who sues RR for negligence of its employees negligence Jury finds for Palsgraf; appellate court affirms; RR appeals Issue: Is it foreseeable that the assistance by the guards Issue: foreseeable would cause Palsgraf’s injury through the falling scales? cause Palsgraf’s Held: No. Nothing in the situation would suggest such a Held: result. Case reversed and dismissed. result. Proximate Cause Examples
q Lincoln dealer loose wheel case; Dealer put on special tires at request of customer who lived in Detroit, and was afraid of having a flat and getting attacked by criminals. Dealer did not tighten lug nuts, so wheel came off causing accident.
s Clearly, any accident caused by the wheel coming off is foreseeable and proximate. Lincoln Dealer (cont)
q What if the wheel came off and there was no accident, but a gang came along and beat up the owner because his car was there? Hard to say this is unforeseeable since this exactly why the owner had new tires put on. Lincoln Dealer (cont)
q What if the wheel came off and there was no accident, but while the owner was changing the tire, he was hit by a passing car. Happens frequently. Foreseeable, this the kind of accident that can happen if the wheel falls off. Lincoln Dealer (cont)
q What if the wheel came off and there was no accident, but while the owner was changing the tire, he was hit by lightening?
s Certainly unforeseeable, although it is absolutely true that the driver would not have been struck by lightening if the wheel had stayed on. The loose lug nuts were the physical cause of the injury, but not the LEGAL CAUSE. Proximate Cause Examples
q q q q Person killed by gun suing gun mfg; Person killed by person playing Dungeons and Dragons sues publisher; Person killed by person who listened to Rap music sues record company; Woman assaulted by someone who read Pornography and sues Playboy;
s Who caused the injury?? q Probably not proximate cause; too many intervening events; the person who actually did the violence. Defenses To A Negligence Action Defenses q q Assumption of Risk s The injured party knew or should have known of the risk and voluntarily assumed it voluntarily s Complete bar to the Complete plaintiff’s case plaintiff’s Contributory Negligence s Plaintiff’s action Plaintiff’s contributed to the injuries injuries s Plaintiff’s case is Plaintiff’s completely barred completely s Pretty much gone now. q Comparative Negligence s Damages are reduced Damages by the % of injuries caused by plaintiff’s own negligence own s Pure Comparative Negligence: % set by the jury regarding the cause of the injuries cause s 50% Rule: If plaintiff is If 50% or more at fault, case is completely barred barred s See Wassell v. Adams See Wassell Wassell v. Adams Wassell COMPARATIVE Negligence.
q q q q q q q Susan Wassell is visiting her fiancé north of Chicago At 1:00 AM, hears a knock on the door; didn’t see anyone; At thinks it is her fiance; opens door anyway; Stranger is there; asks for a drink of water; she gets the Stranger water; he says the water isn’t cold enough & also wants some money; man goes to the bathroom to get more water; she hides her purse; man emerges; she runs from the room; he drags her back to the room and rapes her; man is never caught caught She sues motel owners for failing to warn of high-crime area She Jury assesses damages at $850,000; but says Susan was Jury 97% to blame for the occurrence 97% Under comparative negligence, she is awarded $25,500 in Under damages; she appeals. In some states she would have received nothing, since more than 50% her fault. received Held: Jury, not the appellate court, is the trier of fact and Held: determines damages; judgment affirmed. determines Other defense examples:
q Normally, comparative negligence looks at the cause of the accident. What about increasing the severity of injuries? Should the Jury consider: Not wearing seat belt (required by law – neg. per se). YES q Not wearing motor cycle helmet (required – neg. per se). Probably YES q Not wearing helmet (not legally required). NOT SURE YET.
q Strict Liability In Tort
q q q Under negligence, the act is done in an unreasonable manner, so liable. Under S.L., the act is so inherently dangerous (ultra-hazardous), that even if no negligence, the actor is liable. Called “liability without fault”. Not true. Blasting, storage of explosive or gas, keeping wild animals as pets, now defective products. Only defense is assumption of risk; not comparative negligence. q q Issue: Are Greedy Consumers Causing the Punitive Damage ‘Crisis’? the
q q q q Industry groups are asking Industry for statutory restrictions on punitive damage awards awards Actually businesses Actually themselves are winning themselves many of these high awards many Federal tort limitation Federal s Proposed Senate bill Proposed applied only to product only liability cases. Passed. liability s So business vs. business cases still are OK. Consumer groups think Consumer this is unfair this q Some lawyers may argue Some that punitive damages play an important role by sending a strong message to companies who “don’t want to play by the rules.” want Tort Liability
Intentional torts; q Negligence; q Strict Liability.
q End of Chapter 7 Nelson v. Carroll (1999)
q q q q q q q q q Carroll loaned Nelson $8000; $4200 had been repaid. Carroll sought out Nelson at a nightclub & demanded repayment. Nelson offered $2300; Carroll (“a little tipsy”) pulled out a gun, hit Nelson on side of head and then shot him. Carroll is sentenced 7 years in prison for criminal assault. Nelson suffers from health problems; sues Carroll for battery. Carroll contends discharge of gun was accidental. Lower court holds for Carroll; Nelson appeals. ISSUE: Is the accidental firing of the gun a defense that will exonerate Carroll of liability? HELD: No. Battery was committed by hitting Nelson on the side of head and from an intent to cause harmful contact. This was not innocent conduct that accidentally resulted in harm. This is a volitional act to invade another’s well-being. Intent requirement is NOT a specific desire for certain Caldwell v. K-Mart Corp. Caldwell
q q q q q q q Store security watches Caldwell; accuses her in parking lot of Store having merchandise in her purse; Caldwell opens her purse; no merchandise is there; guard asks her to come back to the store; they walk around 15 minutes; guard says 6-7 times that he’s seen her shoplift; another employee lets Caldwell go her She is emotionally upset for several days; experiences discomfort She going into stores; moves her residence She sues for false imprisonment; jury awards $75,000 in damages She + $100,000 punitive damages; K-Mart appeals $100,000 Initial stop in the parking lot was justified; walking Caldwell Initial through the store with continued accusations was not Guard violated requirements under K-Mart’s Loss Prevention Guard Manual Manual Was the jury’s finding re: damages reasonable? Held: Judgment affirmed. Large verdict was not motivated by Judgment “caprice, passion, prejudice or improper considerations.” “caprice, White v. Monsanto Co. White
q q q q q q q Irma White (church-going woman) works at Irma Monsanto refinery; boss sees idle workers and has a one minute “profane tirade” has Irma has chest pains, head pounding, difficulty Irma breathing, clammy hands; sees a doctor who diagnoses a “panic attack” diagnoses She sues; jury awards $60,000 for emotional She distress; Monsanto appeals distress; Was there a basis for tort of emotional distress? HELD: Reversed. Although the tirade was “crude, Reversed. rough, and uncalled for, it was not tortious” rough, Not directed just at White No intention to inflict severe distress by the No supervisor supervisor Peoples Bank & Trust of Mountain Home v. Globe International Home
q q q q 95-year-old Nellie Mitchell 95-year-old runs a newsstand runs Globe’s tabloid publishes Globe’s her picture with headline “World’s oldest newspaper carrier, 101 quits because she’s pregnant!” Was in fact story of “paper Was gal” in Australia who allegedly became pregnant by millionaire on her paper route (“one thing kind of led to another”) led Globe thought Nellie was Globe dead at time of the story dead q q q Nellie almost suffers a Nellie stroke, was teased about being pregnant and attempted to buy up all of the papers Jury finds invasion of Jury privacy; awards $650,000 in damages + $850,000 in punitive damages; Globe appeals appeals Held: Globe loses. Nellie’s Held: experience likened to a person “who had been dragged slowly through a pile of untreated sewage” pile Frank B. Hall & Co. v. Buck Frank
q q q Insurance agent, Buck, is Insurance fired by Eckert; no one will rehire him; he investigates through Barber (PI) through Eckert tells PI that Buck Eckert was horrible, a “classical sociopath”, verbally abusive, had stolen files, “a zero”, “a Jekyll & Hyde person”, was “lacking . . . in scruples” in Tells Burton (another Tells agent) that Buck “didn’t reach production goals;” “would not be rehired” “would q q q q Buck sues Hall for Buck defamation defamation Jury awards $605,000 in Jury actual damages; $1.3 million in punitive damages; Hall appeals damages; Q: Were statements to Q: Burton sufficient to create defamation? defamation? A: Yes. (Note: Testimony A: of conversation with PI coupled with comments to Burton showed intent to violate Buck’s rights) violate Bethlehem Steel Corp. v. Ernst & Whinney Whinney
q q q q q q q q Ernst & Whitney, acctg. firm, prepares an audited financial Ernst report for Jackson Mfg. overstating its financial status Ernst knew Jackson needed the report for Bethlehem Steel Ernst to show Jackson’s finances were strong (Bethlehem would then sell steel to Jackson on credit) then Jackson goes into bankruptcy, owing Bethlehem money; Jackson Bethlehem sues Ernst; jury awards $400,000 Bethlehem Judge sets aside verdict; orders a new trial; Ct. of Appeals Judge reverses; affirms trial court decision; everyone appeals reverses; Held: Ct. of Appeals is affirmed; remand case for new trial Non-clients rely on accountant’s information Accountants should not be liable if unaware of the use of Accountants the information they create or who will rely on it the However, here false information supplied & losses incurred Causation Causation
q q q q q q q Causation between a party’s act & another’s injury Causation between Cause in fact shows the person’s conduct is the actual cause of the event that created the injury (Some courts call this the “but for” test) this Proximate cause indicates that the liability bears a reasonable relationship to the negligent conduct reasonable If consequences are too remote--no liability If too If there is an intervening or superseding event--no liability If intervening Chain of events created by a party’s actions must be Chain foreseeable foreseeable Some states replace proximate cause with legal cause that Some with legal creates a substantial factor in bringing about the injury substantial ...
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