Chapter 5
Torts
§1: Basis of Tort Law
Doing business today involves risks, both
legal and financial.
A tort is a civil injury designed to provide
compensation for injury to a legally
protected, tangible or intangible, interest.
There are intentional and unintentional
(negligence) torts.
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§2: Intentional Torts Against Persons
and Business Relationships
The person committing the tort, the
Tortfeasor or Defendant, must “intend” to
commit the act. Intend means:
Tortfeasor intended the consequences of her act;
or
She knew with substantial certainty that certain
consequences would result.
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Types of Intentional Torts
Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.
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Assault
Intentional, unexcused act that:
Creates a reasonable apprehension of fear, or
Immediate harmful or offensive contact.
NO CONTACT NECESSARY.
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Battery
Battery is the completion of the Assault:
Intentional or Unexcused.
Harmful, Offensive or Unwelcome.
Physical Contact.
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Defenses to
Assault & Battery
Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.
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False Imprisonment
The Intentional confinement or restraint.
Of another person’s activities.
Without justification.
Merchants may reasonably detain
customers if there is probable cause.
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Intentional Infliction of
Emotional Distress
An intentional act that is:
Extreme and outrageous, that
Results in severe emotional distress in another.
Most courts require some physical
symptom or illness.
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Defamation
Right to free speech is constrained by
duty we owe each other to refrain from
making false statements.
Orally breaching this duty is slander;
breaching it in print or media is libel.
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Defamation
Gravamen of defamation is the
“publication” of a false statement that
holds an individual up to hatred,
contempt or ridicule in the community.
Publication requires communication to a
3rd party.
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Defamation-Damages [1]
Damages for Libel.
General Damages are presumed; Plaintiff does
not have to show actual injury.
General damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.
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Defamation-Damages [2]
Damages for Slander.
Rule: Plaintiff must prove “special damages”
(actual economic loss).
Exceptions for Slander Per Se (loathsome
disease, business improprieties, serious crime,
non-chaste).
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Defamation-Defenses
Truth is generally an absolute defense.
Privileged (or Immune) Speech.
Absolute: judicial & legislative proceedings.
Qualified: Employee Evaluations.
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Defamation-Public Figures
Public figures exercise substantial
governmental power or are otherwise in
the public limelight.
To prevail, they must show “actual
malice”: statement was made with either
knowledge of falsity or reckless disregard
for the truth.
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Invasion of Privacy
Every person has a fundamental right to
solitude freedom from public scrutiny.
Use of Person’s Name or Likeness.
Intrusion on Individual’s Affairs or Seclusion.
Publication of Information that Places a Person
in False Light.
Public Disclosure of Private Facts.
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Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.
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Fraud
Fraudulent misrepresentation involves
intentional deceit:
Misrepresentation of material fact;
Intent to induce another to rely;
Justifiable reliance by innocent party;
Damages as a result of reliance;
Causal connection.
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Wrongful Interference
Tort that interferes with a contractual
relationship.
Occurs when:
Defendant knows about contract between A and B;
Intentionally induces either A or B to breach the
contract; and
Defendant benefits from breach.
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Wrongful Interference
With a Business Relationship occurs
when:
Established business relationship;
Tortfeasor, using predatory methods, causes
relationship to end; and
Plaintiff suffers damages.
Bona fide competitive behavior is a
defense to this tort.
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§3: Intentional Torts
to Property
Trespass to land occurs when a person,
without permission:
Physically enters onto, above or below the
surface of another’s land; or
Causes anything to enter onto the land; or
Remains, or permits anything to remain, on the
land.
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Intentional Torts to Property [2]
Trespass to personal property is the
Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.
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§4: Negligence
Tortfeasor does not intend the consequences of
the act or believes they will occur.
Actor’s conduct merely creates a foreseeable
risk of injury. Analysis:
Defendant owed Plaintiff a duty of care;
Defendant breached that duty;
Plaintiff suffered legal injury;
Defendant’s breach caused the injury.
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Duty of Care
Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant
knew or should have known about.
Courts use reasonable person standard
(jury) to determine whether duty exists.
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Duty of Care: Foreseeability
The consequences of an act are legally
foreseeable if they are consequences that
typically occur in the course of event.
Whether an act is foreseeable is generally
considered a matter of fact determined
by the reasonable person standard (jury).
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Duty of Care
Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
Professionals may owe higher duty of
care based on special education, skill or
intelligence. Breach of duty is called
professional malpractice.
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Injury and Damages
To recover, Plaintiff must show legally
recognizable injury.
Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.
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Causation
Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
Causation in Fact, and
Proximate Cause.
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Causation in Fact
Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.
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Proximate Causation
An act is the proximate (or legal) cause of
the injury when the causal connection
between the act and injury is strong
enough to impose liability.
Foreseeability of injury is an important
factor.
Think of proximate cause as an unbroken
chain of events.
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Defenses to Negligence
Assumption of Risk.
Superceding Intervening Cause.
Contributory or Comparative
Negligence.
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Assumption of Risk
Plaintiff has adequate notice and
understanding of the risks associated with
an activity.
He knowingly and willingly engages in the
act anyway.
Plaintiff, in the eyes of the law, assumes
the risk of injuries that fall within the
scope of the risk understood.
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Superceding Cause
A unforeseeable, intervening act that
occurs after Defendant’s act that breaks
the causal relationship between
Defendant’s act and Plaintiff’s injury
relieving Defendant of liability.
If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.
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Contributory Negligence [1]
Under common law, if Plaintiff if any way
caused his injury, he was barred from recovery.
Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
The operative concept in comparative
negligence is that one cannot recover from
another for any injuries one has caused to
oneself.
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Comparative Negligence
In determining liability, the amount of
damages a Plaintiff causes to herself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
However, if Plaintiff is more than 50%
liable, she recovers nothing.
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Special Negligence Doctrines
Res Ipsa Loquiter.
Negligence Per Se occurs when Defendant
violates statute that causes injury to
Plaintiff:
Statute sets out standard of care.
Plaintiff is member of class intended to be
protected by statute.
Statute designed to prevent Plaintiff’s injury.
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Special Negligence Statutes
“Danger Invites Rescue” Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.
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§5: Cyber Torts
Who should be liable for online defamation?
Communications Decency Act shields online
providers from liability.
Zeran v. America Online (1997).
Piercing Veil of Anonymity—ISP’s can disclose
personal info if ordered by a court.
Liability for SPAM.
CompuServe v. Cyber Promotions (1997).
Liablility for computer virus?
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Case 5.1: Roach v. Stern
(Intentional Infliction of Emotional Distress)
FACTS:
Roach (“Debbie Tay”) was a guest on The Howard
Stern Show on which she discussed her purported
sexual encounters with female aliens.
After Tay’s death, her sister had Tay’s body cremated
and gave a portion of the remains to Tay’s friend,
Chaunce Hayden.
Hayden later appeared on Stern’s show and the
participants in the program handled and joked about
Tay’s remains.
Tay’s brother and sister sued Stern for intentional
infliction of emotional distress. Court dismissed the
case and Plaintiffs appealed.
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Case 5.1: Roach v. Stern
(Intentional Infliction of Emotional Distress)
HELD: REVERSED. FOR TAY/PLAINTIFFS.
“[T]o impose liability for the tort of intentional
infliction of emotional distress, the conduct
complained of must be:
• so outrageous in character, and
• so extreme in degree, as to go beyond all possible
bounds of decency, and
• to be regarded as atrocious, and utterly intolerable in a
civilized community.”
In this case, the plaintiffs sufficiently pleaded a
cause of action, including the element of
outrageous conduct.
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5.2: Tiberino v. Spokane County
(Invasion of Privacy)
FACTS:
Tiberino worked for Spokane County, Washington.
According to county policy, the employer could
monitor all e-mail and county equipment was not for
personal use.
Tiberino was later discharged for unsatisfactory work
performance related to her use of e-mail for personal
matters and threatened to sue the county.
The media asked ex-employer for copies of the email.
Tiberino sued the county to stop the release. The
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court refused to stop it. Tiberino appealed.
5.2: Tiberino v. Spokane County
(Invasion of Privacy)
HELD: REVERSED. FOR TIBERINO.
Although Tiberino’s e-mail messages were “public
records,” that they were exempt from public
disclosure as personal information.
“[T]he public has an interest in seeing that public
employees are not spending their time on the
public payroll pursuing personal interests. But it is
the amount of time spent on personal matters, not
the content of personal e-mails or phone calls or
conversations, that is of public interest.”
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5.3: Martin v. WalMart Stores
(Duty of Care)
FACTS:
While shopping at Wal-mart, Martin slipped on
some loose shotgun shell pellets next to a display
of the shells in the main aisle (“action alley”) and
fell. At the time, the department was understaffed.
Martin suffered permanent injuries. to his legs and
feet that doctors diagnosed as permanent.
Martin sued Wal-Mart and the jury found for
Martin. Wal-mart appealed. seeking damages.
The jury found in his favor, and the court denied
Wal-Mart’s motion for a directed verdict. Wal-Mart
appealed.
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5.3: Martin v. WalMart Stores
(Duty of Care)
HELD: AFFIRMED. FOR MARTIN.
Eight Circuit held this case involved the selfservice store exception to the traditional slip-andfall rule.
A self-service store has notice that certain dangers
arising through customer involvement are likely to
occur and has a duty to anticipate them.
Here, Wal-Mart had constructive notice of the
pellets on the floor in the main aisle because it
was foreseeable that merchandise would spill.
Wal-Mart owed duty of care to maintain sufficient
staffing and protect the aisles.
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Case 5.4: Palsgraf v. Long Island RR
(Foreseeability and Proximate Cause)
FACTS:
Man carrying a unmarked package tried to board a
moving train from a crowded station platform,
railroad employees on the train and the platform
tried to help him.
The man dropped his package, which contained
fireworks, and it exploded, causing scales on the
platform to fall on Mrs. Palsgraf, injuring her.
Palsgraf sued. Court held for Palsgraf. Railroad
appealed.
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Case 5.4: Palsgraf v. Long Island RR
(Foreseeability and Proximate Cause)
HELD: REVERSED. FOR RAILROAD.
The question before the appellate court was as follows:
Does the duty of care extend only to those who may be
injured as a result of a foreseeable risk, or does it
extend also to a person who is outside the zone of
danger and whose injury could not reasonably have
been foreseen?
The railroad was not negligent toward her because
“[n]othing in the situation gave notice ” of the risk to
Palsgraf.
The conduct of the railroad employees may have been
negligent toward the man with the package, but it was
not a wrong in relation to Palsgraf who was standing46far
away.