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Unformatted text preview: INTENTIONAL TORTS AND NEGLIGENCE NEGLIGENCE Chapter 7 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 if a tort results in Business an activity “within the scope of the worker’s employment” employment” 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 q Assault Battery Battery False False Imprisonment Imprisonment Infliction of Infliction Emotional Distress Emotional Invasion of Privacy Defamation Malicious Malicious Prosecution Prosecution 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 Threats? Usually Pointing a gun? Yes Pointing Yes Point a gun while other person sleeps? No assault Point No Letter threats? No assault (“immediate” Letter requirement not met) requirement Phone threats? Maybe. How close is the caller? Phone 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 Funeral Services See by Gregory, p. 193 by Funeral Services by Gregory v. Bluefield Hospital, p. 193 v. q q q q q q q q q Gregory (embalmer) doesn’t know that corpse had AIDS Wore protective clothing during embalming Said he would have recommended cremation or closedcasket without embalming or used more careful procedures casket had he known of the existence of AIDS in the corpse had He sues for battery; he & wife sue for mental distress Was tested for AIDS; no evidence of infection Trial court dismissed their claims; they appeal Was there INTENT to cause harmful or offensive contact by Was the hospital? the Was there actual exposure to the virus? Held: No intent; no actual exposure; Gregory’s fears were Held: unreasonable unreasonable 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., p. 195 Corp., Caldwell v. K-Mart Corp. p. 195 Caldwell p. 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: Large verdict was not motivated by caprice, passion, Large prejudice or improper considerations prejudice Infliction of Emotional Distress Infliction q Intentional conduct So outrageous, it creates severe mental or emotional So distress distress Petty insults, annoying behavior, bad language? Usually not Petty actionable; we must have “tough skin” actionable; Accompanying physical injury usually not required q Bill collectors or landlords who badger, are profane, or Bill q q q threaten lay the background for a lawsuit threaten q q See White v. Monsanto Co., p. 197 See p. Refer also to “Oh, No! Goofy Lost His Head,” p. 197 s Grandma and grandkids robbed by gunman at Grandma Disneyland & taken to offices for questioning; sue Disney for emotional distress of seeing Disney White v. Monsanto Co., p.. 197 p q q q q q q q Irma White (church-going woman) works at Monsanto Irma refinery; boss sees idle workers & has 1 minute “profane tirade tirade Irma has chest pains, head pounding, difficulty breathing, Irma clammy hands; sees a doctor who diagnoses a “panic attack”; she sues; jury awards $60,000 for emotional distress; Monsanto appeals distress; Was there a basis for tort of emotional distress? Held: Judgment dismissed Although the tirade was “crude, rough, and uncalled for, it Although was not tortious” was Not directed just at Irma No intention to inflict severe distress by the supervisor 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., p. 199 Globe Peoples Bank & Trust of Mountain Home v. Globe International, p. 199 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 Defamation (Libel/Slander) Defamation 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 q Examples: person has committed a crime; has a Examples: sexually communicable disease; carries out business activities improperly, etc. activities See case regarding Workplace Defamation: Frank B. Hall & Co. v. Buck, p. 201 p. Frank B. Hall & Company, Inc. Frank v. Buck, p. 201 p. q q q Insurance agent, Hall, 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 Hall “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: regarding Barber (PI) conversation coupled with comments to Burton most likely showed intent to defame) defame) “Tort Liability for Internet Tort Servers”, p. 202 Servers” 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 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 Defenses to Defamation Defenses q q Truth is a complete defense in some states Truth is Absolute privilege is an immunity s s q Conditional privilege eliminates liability if the false statement was published in good faith false s s q Legislators in committee sessions Participants in judicial proceedings If there is no malice (unlike the Buck case) In order to protect a person’s legitimate interests Constitutional privilege s Members of the press may publish “opinion” about public officials, figures, or those of public interest if there is no actual malice Malicious Prosecution Malicious q q q q Claim of legal malice Legal system was used as a weapon, i.e. s Filing false charges with the police resulting in Filing an innocent person’s arrest an s Bringing a baseless tort action against another – Tort may be heard only after previous tort Tort matter has been settled in court matter “. . . putting of legal process in operation for the putting mere purpose of vexation or inquiry” mere See Fust v. Francois, p. 204 p. Fust v. Francois, p.. 204 p q q q q q q q q Francois owns land next to Fusts; Francois wants to rezone Francois from residential to commercial use; Fusts campaign against rezoning; County council rejects Francois’ rezoning request rezoning; He offers to buy some of Fusts’ property; they reject offer Nasty exchanges of letters; threats of legal recourse ensue Francois sues Fusts for trespass, asking $150,000 damages Sues Fusts for harassment & mental anguish for $450,000 Sues Fusts for defamation, asking $400,000 in damages Francois fails to comply with discovery requests; case is Francois dismissed; Francois sends Fusts a letter threatening further legal action; Fusts sue for malicious prosecution legal Awarded $1.1 million in compensatory damages & $1.65 Awarded million in punitive damages; judge’s reduction to $440,000 compensatory & $660,000 punitive is affirmed on appeal compensatory 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 (See Pendoley v. Ferreira, p. 206) 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: Pendoley v. Ferreira, Pendoley p. 206 p. 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 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 Held: 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 NEGLIGENCE NEGLIGENCE q q q q q q q Unintentional careless Unintentional conduct that creates an unreasonable risk of harm to others to Breach of duty of care Owed to the plaintiff Breach through an act or Breach omission omission Causation (causal Causation connection to the injury) connection Injury/Damages There can be a negligence There action even if there was no intent to do harm intent 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 would do in same or similar circumstances” similar Applies to professions-Reasonable CPA, MD, Reasonable attorney, etc. attorney, See Bethlehem Steel, p. See Bethlehem p. Bethlehem Steel Corp. v. Ernst & Whitney, p. 209 Whitney, 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 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 creates a substantial factor in bringing about the injury substantial See Palsgraf v. Long Island RR, p. 211 See Palsgraf Palsgraf v. Long Island RR Co., p. 211 p. (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: 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 q Comparative Negligence s Damages are reduced Damages by the % of injuries cause by plaintiff’s own negligence negligence 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 p. 214 p. Wassell v. Adams, p.. 214 p Wassell q q q q q q Susan Wassell is visiting her fiancé north of Chicago At 1:00 AM, a stranger comes to the door; asks for “Cindy” At & a drink of water; she lets him in; she gets the 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 naked from the waist down; she runs from the room screaming; he drags her back to the room and rapes her; man is never caught and 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 damages; Held: Jury, not the appellate court, is the trier of fact and Held: determines damages; judgment affirmed. determines “Are Greedy Consumers Causing the Are Punitive Damage ‘Crisis’?” p. 216 Punitive q q q q Industry groups are asking Industry for statutory restrictions on punitive damage awards awards Actually businesses Actually themselves are winning many of these high awards many Federal tort limitation Federal s The Senate bill applies The only to product liability cases cases 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 ...
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