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Unformatted text preview: CHAPTER 6
TORTS AND PRODUCT LIABILITY Contract or Tort
Contract or Tort When you make a legal claim against another person in court, you must have a legal theory. Generally, the claim must be based on Generally, the claim must be based on either a contract theory or a tort theory A contract claim is usually called a A contract claim is usually called a “breach of contract” or “breach of warranty” claim. We’re not talking contracts now. We are We’re not talking contracts now. We are talking torts! “ ‘Tort’ more or less means ‘wrong’…one of my friends [in law school] said that Torts if the Course which proves that your mother was right.” Scott Turow (p.154) TORT DEFINITION
TORT DEFINITION A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another. TORTS
TORTS A VARIETY: BUSINESS TORTS
BUSINESS TORTS Definition – wrongful interference with another’s business rights. Included in business torts are such vague concepts as unfair competition and wrongfully interfering with business relations of others. THE BASIS OF TORT LAW
THE BASIS OF TORT LAW 2 VERY IMPORTANT CONCEPTS: WRONGS COMPENSATION (Damages – money sought as a remedy for a breach of contract or tortuous action.) WHAT IS THE PURPOSE OF WHAT IS THE PURPOSE OF TORT LAW? To provide remedies for the invasion of various “protected interests.”
Society creates the types of protected interests. They may change over time. In society, things change and so In society, things change and so does tort law. Malpractice, product liability, negligence, are examples. What does society recognize as What does society recognize as “protected interests?” Physical security and freedom of movement.
Protecting real and personal property.
Protecting intangible interests such as Privacy
Dignity Two Tort Classifications
Two Tort Classifications 1. Intentional 2. Unintentional Intentional torts against persons.
Intentional torts against persons. Intentional tort is a wrongful act knowingly committed.
A “tortfeasor” is someone who commits tort. Intentional torts require “intent”
Intentional torts require “intent” An evil or harmful motive is not required. Only that the person intended the consequence of his act or knew that specific consequence could result form the act. Intentional Torts:
Intentional Torts: Assault and Battery
Intentional infliction of emotional distress
Wrongful interference ASSAULT AND BATTERY
ASSAULT AND BATTERY Assault – any intentional unexcused word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat. BATTERY
BATTERY The unprivileged intentional touching of another. Example: the pointing of a gun at someone is an assault. The firing of the gun and the bullet hitting a person is a battery. The torts of assault and battery can The torts of assault and battery can also be crimes. Compensation Compensation A plaintiff may receive damages for physical harm, including paint and suffering, emotional harm, and loss of reputation. Defenses to Assault and Battery
Defenses to Assault and Battery
Defense of others
Defense of Property DEFENSES
DEFENSES Defenses can legally excuse or justify the behavior.
Regarding selfdefense and defense of others, only use of force reasonably necessary is allowed. False Imprisonment
False Imprisonment False imprisonment is the intentional confinement or restraint of another without justification. Can be accomplished through physical barriers, physical restraint or physical force. Classic Case of False Imprisonment
Classic Case of False Imprisonment
“Misery” by Stephen King Paul stashes some Novril pills, planning to drug Annie at some point. She makes him write a Misery novel entitled Misery's Return in which he brings the character back to life. As Annie is setting up a typewriter, Paul spots a hairpin on the floor, planning to use it to unlock his door. He sends Annie into town to get him typewriter paper. While she is away, Paul unlocks his door, but learns both doors out of the house are locked tight. He tries calling the police but discovers Annie's telephone is fake. One night, Annie comes to give Paul his medicine and has a handgun with her thinking she might use it. As Annie leaves in the night, Paul gets a butcher knife from the kitchen to defend himself. In the middle of the night, Annie drugs Paul and the following morning ties him up and tells him that she knows he's left his room in her absence and found out he planned to kill her. She breaks his ankles with a sledgehammer. Intentional Infliction of Emotional Intentional Infliction of Emotional Distress Can be defined as an intentional act that amounts to extreme and outrageous conduct resulting in severe distress to another.
Example: Prank phone caller informs an individual and says the individual’s spouse has just been in a horrible accident. Intentional infliction of emotional Intentional infliction of emotional distress One problem with this claim is proof of emotional distress. Some courts require physical symptoms or illness that can be documented by a physician or psychiatrist. “Your husband has been in a car accident” Person needs counseling to get over it. Intentional infliction of emotional Intentional infliction of emotional distress Another problem is that without limits, the claims would flood the courts. Society does not want to reward those who can live with the normal stresses of daytoday living. Therefore indignity or annoyance alone is not enough.
In the business setting this claim is very hard to proof and to prevail. DEFAMATION
DEFAMATION Defamation is anything published or publicly spoken that causes injury to another’s good name, reputation or from making false, defamatory statements about others.
The law imposes a general duty on all persons to refrain from making false, defamatory statements about others. Includes the twin torts of libel and slander. Slander is defamation in oral form.
Libel is Defamation in writing or other form having the quality of permanence. DEFAMATION
The Publication Requirement The defaming words must be heard by a third party. A private conversation between only two people – not publication. A private letter written accusing the recipient of being an embezzler not publication. Damages for Defamation
Damages for Defamation Generally, damages for slander are harder to obtain because of slander’s temporary quality. *But see defamation per se.
Damages for libel are easier because of the more permanent nature of libel. Unless, the words are slanderous “perse” Unless, the words are slanderous “per se” Then damages are easier to prove. Examples of slander “per se” A person has a loathsome disease
A statement that another has committed illegal or improper actions in a business or trade.
A statement that some has committed or been imprisoned for serious crimes.
A statement that a woman is unchaste or engaged in serious misconduct. DEFENSES TO DEFAMATION
DEFENSES TO DEFAMATION TRUTH – AN ABSOLUTE DEFENSE PRIVILEGE – ABSOLUTE AND QUALIFIED What if you express your What if you express your statement as an opinion? Privilege as a Defense to Privilege as a Defense to Defamation Two Types of Privileged Communication: Absolute Qualified Communication ABSOLUTE PRIVILEGE
ABSOLUTE PRIVILEGE Immunizes the person making the statements even if they are malicious. In a courtroom During legislative debate Qualified Privilege
Qualified Privilege Generally, if the communicated statements are made in good faith to those parties who have a legitimate interest in the subject, the statements fall within the area of qualified privilege.
Example: An employer’s written evaluation of an employee. Qualified privilege
Qualified privilege In some states this qualified privilege has been made into statutes to protect employers giving recommendations to prospective employers.
Defamation is an important issue when it comes to employer references.
It’s a balancing act. Why? Public figures
Public figures Public Figures
Public Figures In general, false and defamatory statements that are made about public figures and published in the press are privileged if they are made without actual malice. Public figures have a greater burden of proof than private individuals. Why? Invasion of the Right to Privacy
Invasion of the Right to Privacy A person has the right to solitude and freedom from prying public eyes.
The Supreme Court has held that the right of privacy is a fundamental right implied by various amendments to the Constitution. Privacy Cont.
Privacy Cont. State Constitutions and federal and state statutes also provide for privacy rights.
Tort law also provides safeguards through the tort of invasion of privacy.” 4 acts of qualify
4 acts of qualify
1. The use of a person’s name, picture, or other likeness for commercial purposes without permission. 4 acts of invasion cont.
4 acts of invasion cont.
2. Intrusion into an individual’s affairs or seclusion. Searching someone’s briefcase, eavesdropping by wiretap, scanning bank account, compulsory blood testing, window peeping. 4 acts of invasion cont.
4 acts of invasion cont. 3. Publication of information that places someone in a false light.
4. Public disclosure of private facts about an individual that an ordinary citizen would find objectionable. APPROPRIATION
APPROPRIATION In tort law, the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user.
Example: Vanna White robot likeness being used to promote Samsung VCRs, without permission. Misrepresentation (Fraud)
Misrepresentation (Fraud) Is any misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her own detriment. Fraud is not “Puffery”
Fraud is not “Puffery” “I am the best accountant in town.” Is seller’s talk or puffery. As opposed to these statements, if As opposed to these statements, if they’re not true. Misrepresentation/Fraud
Misrepresentation/Fraud Can only happen when a person states something they know is not true.
There has to be reliance upon the statement.
Reliance upon an opinion is not fraud, unless it is an opinion given by someone with superior knowledge, e.g. attorney. Wrongful Interference
Wrongful Interference Business torts of wrongful interference are divided into two groups:
1. 2. Wrongful Interference with a Contractual Relationship.
Wrongful Interference with a Business Relationship. Wrongful interference with a Wrongful interference with a contractual relationship. (p.161) Has stretched/expanded in recent years. 3 elements.
3. A valid enforceable contract must exist
A third party must know it exists
The third party must intentionally cause either of the two parties to breach the contract Example: Lumley v. Gye (p.161)
Example: 1853. (Foundation Case for this Tort.) Which of these can Lumley sue?
Joanna Wagner Gye Lumley Interference with a contract can Interference with a contract can occur: When the contract is between a firm and its employees or a firm and its customers if a competitor draws away the firm’s employees or customers. Mathis v. Liu (p. 162) (2002)
Mathis v. Liu (p. 162) (2002) Pacific Cornetta, Inc. Lawrence Mathis John Evans Mathis won, but why didn’t he get damages from Cornetta. Could he have sued Evans? Does this tort make it impossible to Does this tort make it impossible to compete for employees? customers? How could Cornetta have obtained the services with Evans and not have improperly interfered with his contract with Mathis? Wrongful Interference with a Wrongful Interference with a Business Relationship (p.162) There is a difference between competitive methods and predatory behavior.
Predatory Behavior is business behavior that is undertaken with the intention of unlawfully driving competitors out of the market. vs. What is predatory behavior?
What is predatory behavior? Example: 2 shoe stores. Employee of Store A can’t go in front of store B for the purpose of diverting customers to store A. It is an unfair trade practice. Defenses to Wrongful Interference
Defenses to Wrongful Interference Justified or Permissible Interference. (Remember what is permissible often depends on the circumstances.)
Bona fide competitive behavior is permissible. Example: Advertiser is so effective it induces a customer to break its contract with a competitor. Intentional torts against property
Intentional torts against property Trespass to Land
Trespass to personal property
Disparagement of property. Real v. Personal
Real v. Personal The law makes a distinction between real property and personal property. Real property is land and things attached permanently to the land.
Personal property consists of all other items. Movable
property. Trespass to Land (p. 164)
Trespass to Land (p. 164) Trespass to Land is the entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization.
Examples: walking or driving on someone’s land, shooting a gun on or over the land, throwing rocks at buildings, building a dam that causes water flow onto adjoining property. Attractive Nuisances
Attractive Nuisances How to Keep Trespassers Out?
How to Keep Trespassers Out? Reasonable force. (Call police if you think there will be a problem!) Reasonable force such as:
Recycling Defenses against Trespass to Land
Defenses against Trespass to Land Trespass was warranted.
Trespasser was assisting someone in danger.
Trespasser is a licensee (invitee or someone allowed onto land, such as a meter reader, postal carrier.) Trespass to Personal Property
Trespass to Personal Property Trespass to personal property is the unlawful taking or harming of another’s personal property, interference with another’s right to the exclusive possession of his or her property.
Example: stealing a fellow student’s business law book and hiding it until after the test.
Not an example: allowable the retention of a car by a car mechanic who has not yet been paid. (This is usually allowed by statutes that create artisan’s liens.) Register.com, Inc. v. Verio, Inc. (p.165)
Register.com, Inc. v. Verio, Inc. (p.165) Via authority from ICANN Register issues names for Websites on the Internet. Obtains information from applicants called WHOIS information. Must allow public access to this information for “any lawful purposes” except “the transmission of unsolicited commercial advertising or spam.” Verio,Inc. devised automated software to submit daily queries for the Register’s WHOIS data and then email all of those people ads. Register requested they stop but they would not. Register claimed, among other things, that Verio, Inc. was trespassing. Result
Result Court found that Verio’s robots could ultimately lead to the crash and breakdown of Register’s systems. Not necessarily on its own but because other providers would start doing the same thing. Court said it was trespass to personal property. Conversion
Conversion Conversion is the wrongful taking or retaining possession of an individual’s personal property and placing it in the service of another.
Conversion is the civil side of crimes related to theft. Defense to Conversion (p. 167)
Defense to Conversion (p. 167) Owner does not own property. Necessity. How is Conversion different from trespass to personal property? Disparagement of property
Disparagement of property Disparagement of property is an economically injurious falsehood made about another’s product or property. A general term for torts that are more specifically referred to as slander of quality (trade libel) or slander of title. Must be careful in how far you go in Must be careful in how far you go in talking about the other .. Unintentional Torts
NEGLIGENCE Negligence is the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
The actor’s conduct creates the risk of the consequences. If no risk, no negligence.
Are these risky behaviors? Accidents waiting to happen.
Accidents waiting to happen.
Are they always someone else’s fault? Example 6.7 Regarding Intentional Example 6.7 Regarding Intentional v. unintentional torts. If Juarez intentionally trips Natsuyo and she false and breaks her arm, what kind of tort is this? If Juarez carelessly bumps into Natsuyo and she falls and breaks her arm, what kind of tort is this? Elements of negligence
Elements of negligence
Plaintiff must show the following:
4. Defendant owed a duty of care to plaintiff.
Defendant breached that duty?
Plaintiff suffered an injury as a result?
Defendant’s breach caused the injury. Duty of Care
Duty of Care Duty of Care. The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the “reasonable person standard,” constitutes the tort of negligence. Reasonable person standard
Reasonable person standard Reasonable person standard is the standard of behavior expected of a hypothetical “reasonable person”; the standard against which negligence is measured and that must be observed to avoid liability. Reasonable Person
Reasonable Person It is not necessarily how one would act, but how, in society’s judgment, one should act. What is reasonable varies with the circumstances. Legal Duty of Care
Legal Duty of Care The basic principle is that people are free to act as they please so long as their actions do not infringe on the interest of others. Breach of Duty of Care depends Breach of Duty of Care depends upon:
1. 1. 1. The nature of the act. (common vs. outrageous)
The manner in which the act is performed. (cautiously vs. heedlessly)
The nature of the injury. (serious vs. slight) Legal Duty of Care
Legal Duty of Care
Former Vice president Dick Cheney and Attorney Harry Whittington Does a duty of care include coming to Does a duty of care include coming to the aid of a stranger in peril? (p.168) Is it your legal duty to save someone about to step in front of a bus? What about people with whom you have a special relationship. Family members, your children, and students. Duty of Care Good Samaritan Laws
Duty of Care Good Samaritan Laws A person acting in good faith who renders emergency care or assistance without compensation, shall not be liable for civil damages for acts of omissions. Good Samaritan Law What is Good Samaritan Law What is society’s goal? Duty of Care Good Samaritans
Duty of Care Good Samaritans QUESTION: Good Samaritan pulls person from wrecked car, but breaks the victim’s back? Duty of Care Private Landowners
Duty of Care Private Landowners Expected to exercise reasonable care to protect persons coming onto their property from harm. Private Landowners
Private Landowners Owe a duty to protect invitees, licensees, and sometimes trespassers, especially if there is an attractive nuisance. The condition has to be known to the Defendant.
Don’t have to protect against obvious hazards, unless Plaintiff will hurt themselves no matter what. QUESTION
QUESTION What if you are hired to mow a person’s lawn, and their dog attacks you. Question
Question If a letter carrier slips and falls on your snowy side walk, are you liable? Duty of Care Landlords
Duty of Care Landlords Landlords must reasonably protect tenants. Provide safety, light stairwells, etc. Duty of Care Business land owners Duty of Care Business land owners Business invitee. Is a person, such as a customer or client, who is invited onto business premises by the owner of those premises for business purposes. Business landowners duty to Business landowners duty to invitees. Must reasonably warn, and protect customers from harm. You don’t have to warn about the obvious. Example, open door before you go through it. Duty of Care Professionals
Duty of Care Professionals
MALPRACTICE (p.169) Professionals included are: physicians, dentists, attorneys, architects, engineers, accountants. Professionals are required to have a standard level of special knowledge and ability. Duty of Care Medical Malpractice
Duty of Care Medical Malpractice
Professional misconduct or the lack of the requisite degree of skill as a professional. Negligence – the failure to exercise due care. Duty of Care – Legal Malpractice
Duty of Care – Legal Malpractice Tort Reform and Malpractice
Tort Reform and Malpractice Question: Do you think there should be limits on the amount of damages awarded to Plaintiff for medical malpractice claims? Negligence Injury and Damages
Negligence Injury and Damages There must be injury before an award of damages.
Compensatory damages. A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.
Punitive damages. Money damages that may be awarded to plaintiff to punish the defendant and deter future similar conduct. Types of Compensatory Damages: Types of Compensatory Damages: List of Examples
11. Past Medical expenses
Future medical expenses
Pain and suffering past and future
Loss of function of mind and body temporary and permanent Loss of time earnings
Loss of future earning capacity
Loss of profits Future loss of profits
Loss of consortium (spousal and parental)
Loss of support (for spouse and children)
Property damage DAMAGES
DAMAGES In general, the purpose of tort law is not to punish the tortuous act, but to compensate the injured party for harm suffered.
Punitive damages are rarely awarded in ordinary negligence suits, but can be in cases involving a higher degree of negligence such as gross negligence. McDonald’s Coffee Lawsuit
McDonald’s Coffee Lawsuit http://www.vanfirm.com/mcdonaldscoffeelaw
Go to this site for a good discussion of this case. McDonalds Hot Coffee Case Damages
McDonalds Hot Coffee Case Damages Compensatory Damages Total – $200,000.
Reduced it by 20% (Jury found she was 20% at fault) So $160,000.00.
Punitive Damages $2.9 million. Court reduced punitive to $480,000.00.
Parties ultimate privately settled on another amount during appeal. Causation
Causation Must answer two questions to determine if Defendant caused the injury. Causation in Fact. An act or omission without which an event would not have occurred. “but for” the behavior…
Proximate Cause. Legal cause; exists when the connection between an act and an injury is strong enough to justify liability. CAUSE AND EFFECT
CAUSE AND EFFECT Cause in fact. “But for” your car hitting mine I would not have been in an accident. Proximate Legal Cause – You ran a stop sign, or failed or maintain an assured clear distance. Proximate Cause Example
Proximate Cause Example Campfire causes Forest to burn down
An explosion in a nearby chemical plant
Chemical plan kills fish hundred miles downstream
Ruins the economy of a resort.
Ruins vacations of tourists. How far down the line do we make the campfire starter responsible? These are questions of social policy. DEFENSES TO NEGLIGENCE DEFENSES TO NEGLIGENCE CLAIMS
1. 1. First defense – Plaintiff failed to prove case. Defendant will always try to show this.
3. Assumption of risk
Superseding Cause Contributory and Comparative Negligence Assumption of Risk Defense
Assumption of Risk Defense To prove that plaintiff assumed a To prove that plaintiff assumed a risk, the defendant must show 1. Plaintiff knew about the risk involved. 2. Plaintiff voluntarily assumed the risk. Assumption of Risk Doctrine does Assumption of Risk Doctrine does not apply 1. To employees who work in harmful working conditions. The law does not allow them to assume this risk.
2. Situations involving emergencies. (Jumping out a window to avoid a fire.) Superseding or Intervening Cause Superseding or Intervening Cause Defense Depends on whether act was foreseeable. If no reasonable person could have foreseen the event, then not liable. Gas can in the trunk scenario (p. Gas can in the trunk scenario (p. 172) Contributory and Comparative Contributory and Comparative Negligence Contributory Negligence. No recovery allowed at all if Plaintiff was also negligent. (Not common anymore)
Comparative Negligence. Plaintiff cannot recover if he or she was more than 50% at fault. Example of comparative fault: If Plaintiff was only 20% at fault, recovery is reduced by 20%. McDonald’s Hot Coffee Case. Res Ipsa Loquitur and Negligence Res Ipsa Loquitur and Negligence Per Se (p. 173) Res ipsa loquitur – “the facts speaks for themselves.” Pianos falling from windows Sponges left in patient after surgery Elevator falling What’s the point of “res ipsa What’s the point of “res ipsa loquitur”? Sometimes negligence is hard to prove. In res ipsa loquitur cases, the court infers negligence occurred and then the defendant has to prove he or she was not negligent.
This inference makes a case much easier for Plaintiff. Negligence “per se”
Negligence “per se” Negligence per se means in and of itself.
This occurs if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured. What’s the point of “negligence per se”? It What’s the point of “negligence per se”? It makes showing the breach of duty much easier for Plaintiff! Example: Motor Vehicle Laws Stop signs
Failing to maintain an assured clear distance
Speeding Example: Landlord failing to light stairway. (p.173) Dram Shop Act
Dram Shop Act Dram Shop Act A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by the intoxicated persons when the sellers or servers contributed to the intoxication. Dram Shop
Dram Shop Owner’s and Bartender’s responsibility? Tort liability and damage in other Tort liability and damage in other nations. (p.170) In Europe courts generally limit damages to compensatory damages.
Punitive damages virtually unheard of.
Reasons: generous health care and social security benefits are available.
The allocation of responsibility or fault might be different. Whose fault is it?
Whose fault is it? The pool owner's because it was foreseeable, or the diver’s?
Other countries might take into consideration the hardship on the defendant? Do we? McDonald’s Coffee Lawsuit
McDonald’s Coffee Lawsuit http://www.vanfirm.com/mcdonaldscoffeelaw
Go to this site for a good discussion of this case. ...
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- Spring '08