Torts

1. CHAPTER 6 Torts Click your mouse anywhere on the screen to advance the text in each slide. After the starburst appears, click a blue triangle to move to the next slide or previous slide.

2. Quotes of the Day “If thou dost marry, I’ll give thee this plague for thy dowry; be thou as chaste as ice, as pure as snow, thou shall not escape calumny.” Hamlet, in William Shakespeare’s Hamlet, Act III, scene 1 “It is perfectly monstrous the way people go about nowadays saying things behind one’s back that are absolutely true.” Lord Henry, in Oscar Wilde’s The Picture of Dorian Gray

3. Tort 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 doesn’t exist Examples

4. Tort 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.

5. Categories of Tort Law • 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.) • Includes business torts, a category of torts perpetuated almost exclusively by business entities. • Negligence and Strict Liability • Tort injuries caused by neglect.

6. Intentional Tort - Defamation • Defamation is irresponsible speech to harm another’s reputation. • Written defamation is libel. • Verbal defamation is slander. • There are four facts to prove to win a defamation suit: • The defamatory statement was actually made. • The statement is false. • The statement was communicated to someone other than the plaintiff. • In slander cases, the plaintiff must show some injury that resulted from the defamation.

7. Defamation (cont’d) • Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion. • Vague terms in the statement usually indicate it is an opinion, not a provable fact. • Extreme exaggerations are usually not taken as fact. • 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.

8. Defamation (cont’d) • 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.

9. Intentional Tort - False Imprisonment False imprisonment is the restraint of someone against their will and without reasonable cause. • An employer who doesn’t 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).

10. Intentional Infliction of Emotional Distress Intentional Tort -- • 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.

11. Additional Intentional Torts • 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. • Assault is an action that causes the victim to fear an imminent battery. • Assault can occur without battery ever happening. • Pulling a gun on someone -- even if it is unloaded -- is usually considered assault. • Fraud is injuring another person by deliberate deception.

12. Compensatory Damages • A jury may award compensatory damages -- payment for injury, meant to restore the victim to the position he was in before the 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

13. Punitive 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 • Should deter others from doing same conduct and prevent this defendant from repeating actions • Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded. • About half the states have passed some limits on punitive damages.

14. Business 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 • Intrusion • Disclosure of embarrassing private facts • False light • Commercial exploitation

15. Interference with Business Relations • 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. • 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. • The existing contract could be terminated at will by either party.

16. Interference 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 • 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 • He was simply competing for the same business in an allowable business situation

17. Privacy and Publicity • Intrusion (prying into someone’s 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. • False Light is when something false and offensive is told about someone. • Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission.

18. Negligence -- “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 defendant’s actions. • Foreseeable harm -- it must have been foreseeable that the action would cause this kind of harm. • Injury -- the plaintiff must have been hurt.

19. Duty of Due Care • If a defendant could have foreseen injury to a particular person, she has a duty to him. • In some states, a social host serving alcohol to an adult may be found liable for harm done by the person drinking the alcohol. • Many states have a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm.

20. Breach of Duty • A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. • Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers. • 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.

21. Factual Cause & Foreseeable Harm • Factual Cause -- if the defendant’s 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. • 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. • Res Ipsa Loquitur -- in a few cases, the defendant must prove he was NOT negligent or the facts imply that his negligence caused the injury.

22. DO NOT CLICK! Let slide “build” on its own. Ex: Factual Cause & Foreseeable Harm Mechanic fails to fix customer’s brakes, which causes... Mechanic fails to fix customer’s brakes, which causes... Mechanic fails to fix customer’s brakes, which causes... Car accident, car hitting bicyclist Mechanic is liable to cyclist Factual cause and foreseeable type of injury Factual cause, but no 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 Car accident, car does not hit bicyclist Mechanic is NOT liable to cyclist Bicyclist hits pothole and crashes No factual cause

23. Injury & 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.

24. Negligence • Contributory Negligence • In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant. • Comparative Negligence • In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff. • The plaintiff can recover from the defendant to the percentage that the defendant is negligent. • In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.

25. Assumption of the Risk • A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured. • This rule applies to a situation where the danger is well-known and the participant chooses to be present.

26. Strict 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.

27. “A wide variety of intended acts can have unintended consequences. With intentional torts, the defendant may not have intended to harm the plaintiff, but her deliberate actions have resulted in the alleged injury. Anticipating the harm that can result enables us to consider carefully the actions themselves.”