TORT LAW
CHAPTER 5
TORT
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A WRONG AGAINST AN
INDIVIDUAL
Physical, emotional, property,
reputation
Respondeat Superior
Tortfeasor
TORT vs CRIMINAL
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TORT:
Wrong against
individual
Defendant must
compensate for the
injury
The individual
“wronged” must seek a
lawsuit
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CRIMINAL:
Wrong against society
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Defendant sentenced or
prescribed a penalty
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Society prosecutes the
offender
DUTY
As individuals, everyone has a
DUTY OF CARE
If you violate your obligation, you can be held
liable…
Violating your Duty
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Intentionally
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Neglectfully
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Theory of strict liability
Types of Intentional Tort
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Assault
Battery
False Imprisonment
Defamation and Disparagement
Fraudulent Misrepresentation
Invasion of Privacy
Infliction of emotional distress
Misuse of legal procedure
Negligence
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Failure to exercise the degree of care that a
reasonable person would have exercised in the
same circumstances
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Duty of Care
Breach of Duty
Proximate Cause
Actual Harm
Defenses to Negligence Cases
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Contributory Negligence
Comparative Negligence
Assumption of Risk
Contributory vs Comparative
Negligence
Contributory
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If injured party’s own
negligence contributed
to injury, cannot collect
…UNLESS
Last clear chance
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Must prove tortfeasor
had the last opportunity
to avoid injury
Comparative
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Court can assign
damages in accordance
with degree of fault
between the injured
and the tortfeasor
Assumption of Risk
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Voluntarily exposing yourself to dangerous
situations may prohibit recovery of damages.
STRICT LIABILITY
For example:
Putting on a fireworks display is a very
dangerous activity. You may take all
precautions, yet something may go
wrong and someone gets hurt. You
didn’t commit an intentional tort…and
you were not negligent in any way…but
You are still liable…you accepted
responsibility when you undertook the
dangerous activity.
Product Liability
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Strict liability standard is imposed in product
liability suits if there is an unreasonably
dangerous defective product.
Liability extends to producer, wholesaler and
retailer.
Remedies to various torts
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Monetary damages
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Economic compensation
Non-economic compensation
Punitive Damages
Injunction
Intentional Tort
Assault...or…Battery?
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“Texas Rangers relief pitcher Frank
Francisco was arrested for hitting two
spectators with a chair, breaking the nose
of one, during Monday’s game in
Oakland, Calif.”
Source: IBD, Wednesday, September 15, 2004
BATTERY – THE CHAIR IS AN EXTENSION OF FRANCISCO
False Imprisonment…?
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The security guard at Wal-Mart stops you as
you are ready to exit the store and asks you to
step into the manager’s office as he believes
you have shoplifted. The guard asked you
some questions about the contents of your
bag, keeps you there for 20 minutes with the
door closed, then calls the police to report that
you have shoplifted. You remain in the office
for a few minutes until the police arrive.
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No, this is not false imprisonment
Defamation
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Slander
Libel
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Malice component—ill intent and harm resulting
Privileged statements not subject of
defamation
Pubic figures require higher standard of actual
malice
What do you think…defamation?
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A 1983 issue of Hustler Magazine contained a
parody advertisement portraying TV Evangelist
Jerry Falwell as a drunken, incestuous hypocrite.
The ad contained a disclaimer “ad parody – not to be
taken seriously”. Falwell sued for libel (and
inflicting emotional distress). Did he win?
Court ruled that although the statements were false,
they were not libelous since Falwell was a public
figure and there was no proof of actual malice.
Defamation and Disparagement
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Any false statement communicated to a
3rd party that injures the party’s name or
reputation (defamation) or quality of
property or product/legal ownership
(disparagement)
Fraudulent Misrepresentation
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False statements or actions that someone else
depends on to make a decision that prove to
be harmful.
Invasion of privacy … ?
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Ann works as a nurse at a clinic and reads the
medical record of a fellow nurse, Karen and
discovers that Karen was in the hospital suffering
from a serious illness. Ann spreads the word to her
fellow coworkers and she takes up a collection to
buy flowers for Karen. Karen is mad and threatens
to sue. Ann says there is no case because she
meant well in spreading the word—they all care
about her.
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Karen has a case – it does not matter what the motive is – invasion is
invasion.
Infliction of emotional distress
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No physical harm has occurred; however, the
intentional or reckless actions cause SEVERE
emotional suffering
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Must be extreme actions
Misuse of Legal Procedure
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Knowingly bringing a lawsuit against
someone without cause and with malice
What do you think…Breach of duty?
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A police officer stopped and subsequently
released a man who had been driving while
intoxicated. The driver later caused an
accident. The victim of the car accident
sued.
The New Mexico Police Officer was found
negligent for breach of his duty. (Blea v. City
of Espanola)
We are a “sue happy” society…
Comparative Negligence
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A motorcyclist sued a truck stop restaurant
after he hit a pothole in the parking lot and
received head injuries. The court found the
motorcyclist 50% at fault for not wearing a
helmet and for not avoiding the pothole.
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How does the court award damages?
Receives only ½ (50%) of the award for damages
Strict Liability
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Those engaged in ultrahazardous activities
will be held liable for any harm that occurs
because the activity, regardless of the intent or
amount of care given will be held liable for
any harm
TORT REFORM
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Needed ?
Basis for political agenda
Intellectual Property
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Patents
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Protection of process, machine, item or composition of matter
Gives owner exclusive right to make, use or sell an invention
for 20 years.
Must be useful
Must be a new idea or principle not known before
Protection begins when patent granted, not applied for
Must be marked with the word patent and patent # to be
protected
Intellectual Property
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Copyrights
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Protects works of literature, musical and artistic
productions
Must be original
Protected for life of author PLUS 70 years
Can be reproduced if use is reasonable and if does
not infringe on rights of copyright owner under
the fair use doctrine.
Intellectual Property
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Trademarks
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Protection of word, name, symbol etc. that
identifies and distinguishes products
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While doing a research paper for her
college history class, Gerri copied
several pages from a library book on the
library’s copy machine without
permission from the publisher.
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Has Gerri violated the copyright law?
Explain.