Intentional Torts
“Intended” Private Wrongs
OBE 118, Section 10, Fall 2004
Professor McKinsey
Understanding Torts
• Torts are private wrongs
• Torts have elements that essentially must be
memorized
• Definitions often contain the elements.
• Elements are like the ingredients in cake,
skip one and you do not have a cake (or a
tort)
Intentional Torts
• Wrongs where the person intends to do an
act which will invade an interest of another
and either knows or should know there is an
appreciable risk to another from the act
Assault
• An intentional, un-privileged, un-excused, nonconsensual act that (the act)
• creates in the mind of another person
apprehension or fear of an immediate harmful and
offensive touching (the injury).
Battery
• An intentional, un-privileged, un-excused, nonconsensual harmful or offensive contact of
another.
False Imprisonment
• The intentional un-privileged, nonconsensual, confinement of another by
physical barriers or by physical force or
threats of force
Injury? –
Shopkeepers Privilege:
Intentional Infliction of
Emotional Distress (IIED)
• Outrageous behavior resulting in severe
emotional distress to another
• Usually physical symptoms required
Intent? –
Defamation
• A false, unprivileged statement of fact
communicated to a third person, which
causes damage to a person’s or a product’s
reputation.
• Slander- transitory, oral or spoken
• Libel – more permanent, written form
Intent? –
Injury? – To reputation by exposing to hatred,
ridicule or contempt
Defamation- Privilege
• Absolute privilege
– Governmental official performing duty
– Members of congress
– Judicial proceedings
• Qualified privilege (“lose if abused”)
– Protect legitimate business interests
–Protect ones own personal interests
Defamation- Public Figures
• Public figures: must show actual malice on
the part of tortfeasor
Actual malice:
• Media has a qualified privilege to defame
public figures
Fraud
• Intentional misrepresentation of a material
fact which is justifiably relied upon by
another and causes damages.
Intent?- Two of them!
–Intent to mislead, (knowledge of falseness)
–Intent to induce reliance on misrepresentation
Business Torts
• Tortious Interference with a Contract
(getting someone to breach a contract)
– Requires knowing inducement of a party to breach a contract
• Tortious Interference with a Prospective
Advantage
(getting someone to drop out of a probable or existing
business relationship with another)
– The plaintiff must have a definite and reasonable
expectation of gaining an economic advantage
Invasive Torts
• Intrusion
(ex:
• Disclosure of Embarrassing Private Facts
(ex:
• False Light
(ex:
• Commercial Exploitation
(ex:
Damages
Two basic categories of damages
• Punish- “Punitive Damages”
• Compensate for injuries- “Compensatory
Damages”
The Bigger Picture of Torts
Traditional
“Common Law”
Torts
New
“Statutory”
Torts
When people
can require
compensation
for injuries
caused by
another
Elements of Negligence
Duty of care
Breach of the duty of care
Injury (Actual cause)
Proximate cause
(Damages)
Duty of care
• Act as carefully as The Reasonable Person
would under similar circumstances
• Was the harm that resulted foreseeable?
Proximate Cause
Is it fair to say the act was the cause?
“Fairness”
Factors
Summary of Basic Negligence
•
•
•
•
•
Duty of care
Breach of the duty of care
Injury (Actual cause)
Proximate cause
(Damages)
Special Effects on Liability
• Intervening Causes
A separate event between defendants act and plaintiff’s injury
• Shared Responsibility
Special Forms of Negligence
• Res ipsa loquitor
The thing speaks for itself –
• Negligence per se
An act that is “automatically” negligence
• Premises Liability
Premises Liability
• Duty of care is determined with an
additional factor: the injured person’s status
on the premises:
– Trespasser to land
– Licensee (Guests of homeowners)
– Invitees (Customers at business premises)
Premises Negligence
Trespassers
Minimal duty
Must warn of human-made risks not likely to discover
No traps or spring guns
Young children are exception
Licensee
Must warn of known risks or fix them
Invitee
High duty of care
Must inspect premises
Defenses to Negligence
• Assumed the risk
• Comparative negligence
Strict Liability vs. Other Types of
Torts
• Intentional Torts
Did Actor Intend Act or the Harm that
resulted from the act?
• Negligence
Would a Reasonable Person Do the act that
caused the harm?
• Strict Liability
Did an injury occur?
Strict Liability
• No need to prove intent or negligence
• Often no concern about fault at all
• Three Basic Examples
–
Ultra-hazardous Activities
• Harboring wild animals
• Mining
• Explosives
PL based on Strict Liability
(Based on the Restatement (2nd) of Torts)
1. D sold product in defective condition
2. D normally in business of selling product
3. Product unreasonably dangerous*
4. P suffers physical harm through use of
product
5. Defective condition is proximate cause
6. No substantial changes to product since
sold
What is a Defective Product?
3 General Ways a Product can be Defective
1) Actual defect (flaw in manufacturing).
Product not built as intended.
2) Design defect.
Product built as designed, design had defect.
3) Failure to warn.
A different approach usually used when product had
dangers inherent to purpose or type of product.
Torts Review
• Intentional Torts
Elements! (and don’t forget how intent works)
Traditional Torts
Newer Torts
• Negligence
Basic Negligence
Special situations (Neg per se, res ipsa loquitor, premises liability
Defenses and Liability (Assumed the risk, Comparative neg, JSL)
• Strict Liability
• Damages
Course Review
• Basic Legal Principles
Law versus Ethics, what law is
Authority of law
Constitution and Governmental Organization
• Sources and Types of Law
Legislative versus Judicative versus Administrative
Federal versus State
Courts versus ADR versus Agency proceedings
• Torts
Intentional Torts
Negligence
Strict Liability
Damages