Elements of Torts
Chapter 6
Business and Torts
• Arises from careless errors or intentional actions
• Lawsuits involving businesses often have large
awards, i.e. Pennzoil-Texaco case: Jury awarded
$10.5 billion to the plaintiff
• Plaintiffs think of businesses as “deep pockets”
• Business liable under agency law if tort results in
activity “within the scope of worker’s employment”
• Types
– Negligence (Unintentional)
– Intentional
– Strict Liability (Without fault) (Ch. 7)
– Torts Particular to Property (Ch. 8)
The Role of Tort Law
Means “wrong” from French originally:
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– A civil wrong, other than a breach of contract, for which the
law provides a remedy
– A breach of a duty owed to another that causes harm
Compensation for injuries wrongfully inflicted by the defendant
on the plaintiff
Civil, not criminal law
Law is determined in each state--rules vary
However, the basic principles are similar among all states
Remedies should place injured party in the position he/she would
have been in prior to the tort
Fear of tort action deters injurious behavior by others
Punitive damages punish malicious behavior
TORTS BASED ON
NEGLIGENCE
• Unintentional careless conduct that creates an
unreasonable risk of harm to others
• Breach of duty of care
• Owed to the plaintiff
• Breach through an act or omission
• Causation (causal connection to the injury)
• Injury/Damages
• There can be a negligence action even if there was
no intent to do harm
Negligence: Duty of Care and the
Reasonable Person Standard
• The standard is how
persons in the relative
community ought to
behave
• One must be reasonable at
all times, under all
circumstances
• Standard: “What a
reasonable person would
do in same or similar
circumstances”
• Applies to professions-Reasonable CPA, MD,
attorney, etc.
Squish La Fish v. Thomco
Specialty Products
• Squish holds patent on “Tuna Squeeze” (squeezes water & oil
from tuna cans); ProPack is hired to assist with store displays
• ProPack brings in Thomco for advice on adhesive for the displays
• Thomco says recommended adhesive would wash off; Squish
relies on the advice, but adhesive won’t wash off
• A Squish distributor is not happy with the situation; cancels its
contract
• Squish sues Thomco for negligent misrepresentation
• District Court grants summary judgment for Thomco; Squish
appeals
• Held: Reversed and remanded for disputed issues to go to trial.
There may be reliance by Squish through ProPack on Thomco’s
representations
Causation
• Causation between a party’s act & another’s injury
• Cause in fact shows defendant’s conduct is the actual
cause of the event that created the injury (some courts call
this the “but for” test)
• Proximate cause indicates that the liability bears a
reasonable relationship to the negligent conduct
• In some cases, case is so obvious, res ipsa loquitur (the
thing speaks for itself) applies
• If consequences are too remote -- no liability
• If there is an intervening or superseding event--no liability
• Chain of events created by a party’s actions must be
foreseeable
• Some states replace proximate cause with legal cause that
creates a substantial factor in bringing about the injury
Goldberg v. Florida
Power & Light Co.
• Storm caused electric line to fall.
• Homeowner called Florida Power & Light (FPL).
• Six FPL trucks and a police officer arrived; FPL crew told officer he
could leave.
• Crew turned off power in the area, which included a traffic signal.
Crew aware that signal was off; did nothing about traffic.
• Goldbergs driving in traffic toward turned-off light. Car coming from
side street caused an accident. Goldberg’s daughter was killed.
• Sued FPL for negligence – breach of duty to control traffic at the
intersection.
• Jury awarded $37 million; trial judge reduced to $10 million.
• Appeals court reversed, holding FPL was not negligent – that the
cause of the accident was driver who entered traffic, not the fact the
traffic signal was out.
• Goldbergs appealed
Goldberg v. Florida Power
& Light Co.
• Duty of Care: whether defendant’s conduct foreseeably created a
broader ‘zone of risk’ that posed a general threat of harm to others.
• FPL had common law duty to warn of hazardous condition it created.
• FPL’s actions created a foreseeable zone of risk to motorists
• FPL had a duty to warn motorists of danger – reasonable precautions
to alert and protect drivers – notify police, road flares, direct traffic, etc.
• Proximate Cause: Standard of foreseeability. Human foresight would
lead a person to expect that harm could be possible because of an
omission (here failure to protect motorists).
• Fact finder decides proximate cause and foreseeability.
• HELD: Reversed. Defendant FPL breached duty of care and it was
foreseeable that the omissions of care would reasonably place
motorists at risk. Therefore proximate cause was established.
Defenses To A Negligence Action
• Comparative
Negligence
• Assumption of Risk
– Damages are
reduced by the % of
– The injured party knew or
injuries caused by
should have known of risk
plaintiff’s own
and voluntarily assumed it
negligence
– Complete bar to the
– Pure Comparative
Negligence
plaintiff’s case
– Comparative
• Contributory Negligence
Negligence 50%
– Plaintiff’s action
Rule
contributed to the injuries
– Plaintiff’s case is
completely barred
McCune v. Myrtle Beach Indoor
Shooting Range
• McCune with others played paintball at Myrtle Beach
Indoor Shooting Range.
• Used protective face mask provided by the Range.
• She signed a general liability waiver, releasing the
Range from all known or unknown dangers, with the
exception of gross negligence on the part of the Range.
• She complained that mask did not fit well; restricted her
range of vision.
• Mask caught on branch of a tree, lifting it off her face.
• She was hit in eye by paintball and blinded.
• Sued Range for negligence of not providing a mask that
would fit better and give her protection.
• Trial court granted summary judgment in favor of
Range. She appealed.
McCune v. Myrtle Beach Indoor
Shooting Range
• HELD: Affirmed.
• Agreement was voluntarily signed that she:
1) assumed the risks, known or unknown and
2) she released Range from liability, even
injuries sustained because of Range’s own
negligence.
• McCune voluntarily entered into the release
of liability.
• This is not construed as an exculpatory
agreement.
INTENTIONAL TORTS
• Intent
– Person knew what
he/she was doing
– Intent to do the act
which reasonably
would result in harm
to the plaintiff
– Knew /should have
known the possible
consequences of an
action
– Willful misconduct
Intentional Torts Against
Persons
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Assault
Battery
False Imprisonment
Infliction of
Emotional Distress
• Invasion of Privacy
• Defamation: Libel
and Slander
Intent
• State of mind of defendant
• Person knew what he/she
was doing
• Person “knew, or should
have known, the possible
consequences of the act”
• Knowledge that certain
results would likely occur
• Willful acts invading
protected interests
• A reasonable person would
have known that the action
would create harmful
circumstances
ASSAULT
• Placing plaintiff in fear of immediate bodily injury
• Fear: If a reasonable person under the same or similar
circumstances would have apprehension of bodily
harm or offensive contact
• Threats? May be an assault
• Pointing a gun? Yes
• Point a gun while other person sleeps? No assault
• Letter threats? No assault (“immediate” requirement
usually not met)
• Phone threats? Maybe. How close is the caller? On a
cell phone outside the door or in another city?
BATTERY
• Unlawful “touching”
• Intentional physical
contact without consent
• Use of fist, hand, or
kicking
• Use of weapons, i.e.
guns or stick
• Unwanted kiss? Has
been held in some
states to constitute
battery
• Assault & Battery may
or may not be linked
together in a lawsuit
• Defenses
– Consent
– Privilege
– Self defense
– Defense of
others/Defense of
property
Fuerschbach v. Southwest
Airlines Company
• Fuerschbach was a customer service representative for Southwest
Airlines at Albuquerque airport.
• Airline prides itself on being “fun-loving, spirited company”.
• After new employees finish probation, they are often subject to a
prank to celebrate the event.
• Her supervisor thought would be fun to set up a mock arrest.
• Albuquerque police officers came to the counter, told her she was
under arrest and handcuffed her.
• She began to cry, so officers took her to the back.
• All the employees jumped and yelled “congratulations for being off
probation.”
• Handcuffs removed; party began. She kept crying and was sent
home.
• Psychologist said she suffered post-traumatic stress disorder.
• Fuerschbach sued everyone connected with the event on many
grounds, including assault and battery.
Fuerschbach v. Southwest
Airlines Company
• District court granted summary judgment for defendants
and did not allow the matter to go to trial.
• District court: Officers were courteous and professional.
• HELD: Reversed on appeal. Summary judgment vacated
on assault and battery claims. She can go to trial.
• Issue: Did the actions offend “a reasonable sense of
personal dignity”?
• HELD: Jury might find that being handcuffed and leading
a person in front of others offends a reasonable sense of
personal dignity. Police handcuff – offensive contact.
• Side Note: Some other claims allowed to go forward;
others were denied. The only claim against Southwest
Airlines was a Workers’ Compensation claim because
there was no intent by anyone to harm her at work.
False Imprisonment
(False Arrest)
• Intentional holding or
detaining
• Freedom to come and go
is restrained
• Restraint
– May be physical
– May be mental (i.e.,
by verbal threats)
• Lawsuits often arise
from detention of
suspected shoplifters
• Defense by
businesses regarding
detention of
shoplifters
– Restraint was in a
reasonable manner
– Restraint was in a
reasonable time
– Basis for the
detention was valid
Russell v. Kinney
Contractors, Inc.
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Kinney Contractors advertised jobs in construction.
Russell and others belong to construction union applied.
Kinney didn’t want union workers.
Workers arrived at Kinney’s offices, walked through an
open gate, and went to an office to submit applications.
• Kinney closed the gate behind workers, blocking the exit,
called police and claimed they were trespassing.
• Police arrived and workers were let out. Workers sued
Kinney for false imprisonment, saying they were on
property legitimately.
• Trial court dismissed the suit, saying this was a labor
dispute under federal labor law and jurisdiction was with
the National Labor Relations Board. Said this was not a
common law tort for state courts to settle.
Russell v. Kinney Contractors, Inc.
• Russell Appealed.
• HELD: Reversed and case remanded.
• Court weighed the federal interest of labor disputes
vs. the state’s interest to protect its citizens from
wrongful conduct.
• Indignity, humiliation and disgrace suffered by
plaintiffs would not be considered by NLRB, and
NLRB cannot award compensatory damages as can
the state.
• State court will look at whether the personal liberty
was restrained and if false imprisonment occurred.
Infliction of Emotional
Distress
• Intentional conduct: So outrageous, it creates
severe mental or emotional distress
• Petty insults, annoying behavior, bad language?
Usually not actionable; we must have “tough skin”
• Bill collectors or landlords who badger, are profane,
or threaten or lay the background for a lawsuit
• See Reynolds v. Ethicon Endo-Surgery, Inc.
• See Issue Spotter: “Dealing With the Elderly and
their Heirs”
Reynolds vs. Ethicon EndoSurgery, Inc.
• Reynolds was sales rep. for Ethicon in 1999. In 2002 she was
assigned to a new division. Was based in Sioux Falls, S.D.
• Company reviewed the sales in her territories and decided her
region was weak.
• A week after Reynolds told her supervisor, Burns, she was
pregnant, he met with her; said Sioux Falls office would be closed;
offered her the Louisville office or a severance package.
• She was later also offered the St. Louis office.
• Several weeks later, she suffered a miscarriage.
• Blamed the elimination of her position soon after she became
pregnant for the reason of her miscarriage.
• She refused to transfer or take severance package. Was fired.
• Sued Burns and Ethicon for infliction of mental distress.
Reynolds vs. Ethicon Endo-Surgery
• District court granted summary judgment for
defendant. She appealed.
• HELD. Affirmed.
• In order to be infliction of emotional distress,
conduct must be “so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency . . .
atrocious, and utterly intolerable in a
civilized community.”
• While termination may be upsetting, it does
not constitute extreme or outrageous
conduct.
Invasion of Privacy
• Infringement on a person’s right of solitude & freedom
from unwarranted public exposure
• Use of a person’s name or picture without permission
• Intrusion on solitude (i.e. wiretap)
• Placing a person in false light (publishing a false story)
• Public exposure of private facts (debts, drug use)
• Defenses
– Right of privacy waived by public figures, politicians,
entertainers, sports personalities, etc.
– Information about an individual taken from public files
or records
James v. Bob Ross Buick
• James worked at Mercedes dealership owned by Bob
Ross Buick. In 2002, he was sales rep. of the year. In 2004
he was fired.
• After firing, Buick company sent letters to customers who
had worked with James: encouraged them to shop for
Mercedes.
• Letter addressed as if from James. An assistant at Bob
Ross signed James’s name to the letters.
• James sued for misappropriation of his name, a form of
invasion of privacy.
• Trial Court: Summary judgment for Bob Ross. James
appealed.
James v. Bob Ross Buick
• Forgery of signature is a variant of invasion of privacy.
• Mere incidental use of a person’s name or likeness is not actionable.
• Can’t object to mere mention of name or appearance brought before
the public when they are open to public observation.
• Appropriation occurs when there is commercial benefit of value from
the use of the name or likeness.
• HELD: Reversed and remanded.
• This is not mere incidental use of James’s name.
• His name had commercial value – letters used to induce future sales
for the car company.
• Benefit that Bob Ross received as a result of appropriating James’s
name can be a part of the actual damages to him.
• James may seek nominal, compensatory, and punitive damages, if
appropriate.
Defamation
(Libel/Slander)
• Definition: An intentional false communication that injures a
person’s or company’s reputation or good name
• Elements of the Tort:
– False or defamatory statement
– Published or communicated to a third person
– Causing harm or injury to the plaintiff
• Defamation per se: Presumption of harm
– No proof of harm/injury is necessary
– Examples: person has committed a crime; has a sexually
communicable disease; carries out business activities
improperly, etc.
– Workplace Defamation: Info. given re: job performance
• See Issue Spotter: “Say Good Things About A Good Employee?”
Republic Tobacco v. North
Atlantic Trading Company
• Republic and North America (NA) compete for premium rollyour-own cigarette papers, tobacco and other products.
• Two letters written by NA to clients were critical of Republic.
• First letter: attacked Republic’s business conduct; claimed a
display box used by it violated an NA patent and trademark;
and that NA had sued Republic for the infringement.
– NA had no patent or trademark on a display box; had not
sued Republic.
• Second Letter: said NA was suing Republic for antitrust
violations; that Republic engaged in “unfair competition” and
“deceptive trade practices”.
– NA had in fact sued Republic for antitrust violations.
• Trial Court awarded Republic $3.36 million damages and trial
judge reduced punitive damages from $10.2 to $4.08 million.
Republic Tobacco v. North
Atlantic Trading Company
• A defamatory statement causes harm to reputation –
false or unprivileged publication to a 3rd party.
• Per se: not necessary for a plaintiff to demonstrate
actual damage to reputation.
• Per quod action: plaintiff must prove there was
actual damage of a pecuniary nature.
• NA’s first letter was both false and defamatory.
• Both letters defamatory.
• HELD: $1 million is appropriate damage. Punitive
damage reduced to $2 million.
“Tort Liability for Internet
Servers”
• Q: If Internet users are involved in illegal
activities, are the Internet servers liable?
• A: Generally no, as long as they were not
aware of it or had reason to be aware of it.
• In Zeran v. America Online: AOL not liable in
tort for defamatory message that AOL user
sent. Sender is liable.
• Doe v. Cahill When defamatory statements
are posted, victim of the statements has a
right to obtain the identity of the party who
sent the material (here Doe, the anonymous
defendant).
Defenses to Defamation
• Truth is a complete defense in some states and is
always a very strong defense.
• Absolute privilege is an immunity
– Legislators in committee sessions
– Participants in judicial proceedings
• Conditional privilege eliminates liability if the false
statement was published in good faith
– If there is no malice
– In order to protect a person’s legitimate interests
• Constitutional privilege
– Members of the press may publish “opinion” about
public officials, figures, or those of public interest if
there is no actual malice (“absence of malice”)