Chapter 4
• Tort – Wrongful Actions
• Tort Law – addresses those who have
suffered injuries as a result of the
wrongful conduct of others.
• Tort Law provides remedies in regard to “protected
interests.”
• These include
– Physical Safety (physical injuries)
– Emotional Distress
– Real and Personal Property (damage to)
– Intangible Interests
– Privacy
– Family Relationships (invasion of)
• (adultery)
– Reputation
Two Broad Classifications:
• Intentional vs. Negligent
– Intentional – the tortfeasor (one
committing the tort) must intend to commit
the act, the consequences of which
interfere with the personal or business
interests of another that are not permitted
by law.
***evil motive is not required (i.e. pushing)
Assault and Battery
• Assault – any intentional, unexcused
act that creates in another a reasonable
apprehension or fear of immediate
harm
• Apprehension vs. fear – apprehension is the
expectation of a harmful act
• Battery – the completion of that act that
caused fear or apprehension
• Unexcused and harmful or offensive physical
contact intentionally
• Compensation – plaintiff may receive
compensation for actual harm or
emotional harm
• Defenses against Assault & Battery
• Consent – other person consented to the act that
damages them
• Self-Defense – a persons action was done to
protect themselves from harm
• Defense of Others – a person can act in a
reasonable manner to protect others who are in
real or apparent danger
• Defense of Property – Reasonable force may be
used in attempting to remove intruders from
personal property through force …force that is
likely to cause death or great injury cannot be used
to protect property.
• False Imprisonment – the intentional
confinement or restraint of another
person without justification.
– Probable Cause – enough evidence to
question
reasonable manner and reasonable time
• Emotional Distress – intentional act
that amounts to extreme and
outrageous conduct resulting in severe
emotional distress to another
– Difficult to prove
• Defamation – involves wrongfully
hurting a person’s good reputation
– Libel – written
– Slander – verbal
– Something other than the defamed person.
(product or business)
• Publication – means the defamatory
statements have been made to
someone other than the individual
– Damages for Defamation –
• Slander- Plaintiff must prove “Special Damages” –
– the defamation causes actual Economic or monetary
losses (temporary)
• Libel – general damages – written is permanent,
can be circulated
• Four types of utterances considered
slander:
– A statement that another has a loathsome
communicable disease.
– A statement that another has committed
improprieties while engaging in a
profession or trade.
– A statement that another has committed or
has been imprisoned for a serious crime.
– A statement that a woman had engaged in
serious sexual misconduct.
• TRUTH is the only Defense.
– Privileged Communications are exempt
– Absolute – government proceedings
» Courtroom
» Legislative debates
– Qualified/conditional –
• related to a matter of public interest
• when statement is necessary to protect a person’s
private interest
• made to another person with an interest in the
same subject matter.
• Public Figures – as long as statements are not
made with “malice” they will not be subject to
defamation
» “publicity”
Celebrity Defamation
• http://www.personal-injuryinfo.net/celebrity-lawsuits.htm
• Invasion of the right to Privacy –
• Four Acts qualify as this:
• Use of a person’s name, picture or other likeness
for commercial purpose without permission. (called
appropriation)
• Intrusion into an individual’s affairs or
seclusion.(wire tapping)
• Publishing of information that places a person in a
false light.
• Public disclosure of private facts about an
individual that an ordinary person would find
objectionable (financial/medical)
• Fraudulent Misrepresentation (fraud) –
intentional deceit for personal gain
– Elements of fraud:
– Misrepresentation of facts or conditions with
knowledge that they are false or with reckless
disregard for the truth
– An intent to induce another to rely on the
misrepresentation
– Justifiable reliance by the deceived party
– Damages suffered as a result of the reliance.
– A casual connection between the
misrepresentation and the injury suffered.
» Puffery – seller’s talk (i.e “best”)
Wrongful Interference
• Contractual relationship
– Elements:
• A valid enforceable contract must exist between
two parties
• A third party must know that the contract exists.
• The third party must intentionally cause either of
the two parties to breach the contract.
• Business relationship
• Predatory vs. competitive – predatory
involves unlawful actions that drive
competitors completely out of the
market
– Defense – if they can prove it was justified
• (Marketing was so good a business chooses to
cancel a contract)
Intentional Torts against
Property
• Real – attached to the land
• Personal – removable
• Trespass – occurs whenever a person
without permission enters onto, above,
or below the surface of land that is
owned by another, causes anything to
enter onto the land, or permits anything
to remain on it.
•
•
•
•
Criteria:
if there is posting
Refuses to leave
Enters without permission
• Trespasser is liable for any damages to
the property and generally cannot hold
the landowner liable or any injuries
sustained on the premises.
• Reasonable duty of care – guard dogs
• Attractive nuisance – children
– Defenses –
» Warranted (helping someone in danger) or
Licensed (central hudson, purchase of a
ticket to sporting event)
• Trespass to Personal Property
• When an individual unlawfully harms
the personal property of another or
otherwise interferes with the personal
property owner’s rights to possession
or enjoyment of that property (trespass
to personalty)
• Conversion – personal property is wrongfully taken
and placed in the service of another
» Can be innocent – stolen goods
– Defense – necessity
• Disparagement of Property
– Economic injury when falsehoods are
made about another’s product or property
(not reputation)
• Slander of Quality – publication of false information
about another’s product alleging that it is not what
it claims. *Must prove economic injury
• Slander of Title – a publication denies or casts
doubt on another’s legal ownership of any property
that results in financial loss
• Unintentional Torts (Negligence)
– Someone suffers injury because of
another’s failure to live up to the required
duty of care. The tortfeasor neither wished
to bring about the consequences of the act
or believes that they will occur. The
tortfeasor merely creates a risk.
• Elements
– Did the defendant owe a duty of care to the plaintiff?
– Did the defendant breach that duty?
– Did the plaintiff suffer a legally recognizable injury as a
result of the defendant’s breach of the duty of care?
– Did the defendant’s breach cause the plaintiff injury?
– Duty of Care – when someone fails to
comply with the duty of exercise
reasonable care a tort may have been
committed.
• Can be direct action or careless
• Courts consider the nature of the act
• Determining breach of duty of care…
– Reasonable Person Standard – how a person should act
(versus would act)
• Duty of landowners – exercise
reasonable care for anyone who comes
onto the premises – personal and
business
• Duty of Professionals – usually a code
of ethics accepted by the profession
• Hippocratic Oath – medical
• GAAP – Generally accepted Accounting Principles
(Arthur Anderson---Enron)
• Compensatory Damages –
reimbursement for actual losses
• Punitive Damages – “extra”
compensation due to the severity of the
negligence
• Also called gross negligence
• Causation – for a tort to be committed it
must have been “caused” by the
defendant or could it have happened
anyway
(camp fire)
– Proximate cause – is there a strong
enough connection between the act and
the injury?
• Forseeability – could someone “see” that the
action may cause injury
• Defenses to Negligence
• Assumption of risk – the plaintiff voluntarily enters
the risky situation. (race car driver)
• Superseding Cause – an unforeseeable
intervening event may break the connection to the
act and the injury (lightning)
• Contributory Negligence – when a plaintiff did not
use reasonable care
• Comparative Negligence – looks at the
responsibility of both sides when deciding a case
• Special Negligence Doctrines and
Statutes
• Res Ipsa Loquitur – (the facts speak for
themselves) the defendant must prove there was
no negligence
• Negligence per se – if an individual violates a
statute or an ordinance providing for a criminal
penalty and that violation causes another to be
injured
– the statute clearly sets out what standard of conduct is
expected
– that the plaintiff intended to be protected by the statute
– statute was intended to protect such an injury
• Danger invites Rescue Doctrine
– If someone is “helping” or rescuing another in harm’s way or
danger
• Special Negligence Statutes
– Good Samaritan statutes – mainly for medical professionals
offering emergency help
– Dram Shop Acts – responsible for intoxicated persons
– Strict Liability – other than fault situations