Torts
Chapter 5
Terminology
• Intentional tort – a wrongful act that was
knowingly committed
• Tortfeasor – one who commits a tort
• Assault – a combination of actions and words
intended to make another person fearful of
immediate physical harm; a reasonably believable
threat
• Battery – the unconsented to and intentional
touching of another person
Assault and Battery
• No need to show motive just that it was intentional
• Objective threat standard – why not subjective?
• Defenses:
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Consent
Self defense
Defense of others
Defense of property
These come with a reasonableness standard
In Class Problem
• Jane and Dan have been dating for two
years. Dan has a bad temper and often
threatens Jane. One day he holds a
clenched fist in her face and says “I
oughta.” As he says the words, Jane’s
brother Bruno walks in and seeing what is
happening knocks Dan out with one punch?
– Of what crimes are Dan guilty?
– What about Bruno?
More Torts
• False Imprisonment
– The intentional confinement or restraint of
another person’s activities without justification
– Cannot have an escape
– May be detained by threat of physical harm but
the threat must be in the present
• E.g. I will beat you up the next time I see you if you
leave is not false imprisonment
False Imprisonment
• Store owners often want to detain
shoplifters
– May be false imprisonment
– Some states have passed laws allowing shop
keepers to detain people they suspect of
shoplifting if the shop keeper has reasonable
cause and does not keep the person for an
unreasonable amount of time.
Infliction of Emotional Distress
• In most jurisdictions you have to prove
some type of physical pain or suffering
• Behavior has to be outrageous and
intentional
• Why the second requirement?
• Under restatement you can be liable to a
third person if they are harmed
Defamation
• Wrongfully hurting a person’s good reputation
– Slander – oral defamation
– Libel – written statement
• Common law has four false utterances which
require no proof of being actionable
– Utterance that an other has a communicable disease
– Statement that another has committed an impropriety in
business
– Statement that another has committed a serious crime
– A statement that an unmarried woman is unchaste
Defamation
• Has to be publicized
– Writing a letter won’t be enough
– Dictating a letter may be enough
– Any conversation in which a third person
overhears it may be enough to make it public
• Defenses
– Truth
– Privileged statements – absolute or qualified
Invasion of the right of privacy
• Four major acts constitute a violation
– The use of a person’s name, picture, other other
likeness for commercial purposes without permission
– Intrusion into another’s affairs
– Publication of information that places a person in a
false light
– Public disclosure of private facts about a person that an
ordinary person would find objectionable
Appropriation
• The use of another person’s name or
likeness
• Example Vanna White
Misrepresentation
• Misrepresentation of facts or conditions with
knowledge that they are false or with reckless
disregard for the truth
• Intent to induce another to rely on the
misrepresentation
• Justifiable reliance by the deceived party
• Damages suffered as result of reliance
• Casual connection between the misrep and the
injury
Wrongful Interference
• 3 elements that must exist
– A valid enforceable contract must exist between
the two parties
– A third party must know the contract exists
– The third party must intentionally cause either
of the two parties to breach the contract
Wrongful interference Cont.
• Can engage in competitive behavior but not
behavior that is predatory
• Critical question are you soliciting
customers or trying to get customers that are
interested in only your competitor
• Defenses
– Interference must be justifiable or permissable
Intentional Torts Against
Property
• Trespass – occurs when a person without
permission enters above or below the
surface or causes something to enter above
or below the surface of another’s property
– Normally you are not liable for the injuries of
trespassers
• This is changing and a reasonable care standard is
being established
• Attractive nuisance: sand pile that attracts children
Problem 5-3
Defenses to Trespass
• Invited
• Licensee
• Walmart Case – if defendant store has actual or
constructive notice of dangerous situation they
owe duty of care
– However if self service store then they must anticipate
the situation
• Problem 4-2
Trespass to personal property
• The taking or interfering with another’s
personal property
– Exceptions provided by statute (artisans lien)
• Conversion – the unlawful taking and
putting to use of another’s personal property
• Defenses
– Necessity
– Superior right to property
Disparagement of Property
• Slander of quality (Trade Slander)
– Must show proximate cause such as a person
not buying because of the slander
– Must prove that there were damages
– Oprah Winfrey
• Slander of Title
– X publishes false statement’s about Y’s title to
land and therefore no one will buy
Negligence
• Tort of negligence occurs when someone is
injured because of someone’s failure to abide by a
duty of care
• Four questions
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Did the defendant’s owe a duty of care
Did the defendant breach that duty
Did the plaintiff suffer a recognizable injury
Did the defendant’s breach cause the plaintiff’s injury
Duty of Care
• Usually involves a reasonable person
standard
• Definition: the duty of all persons
established by tort law to exercise a
reasonable amount of care in dealings with
others.
Reasonable Care
• Do you have to come to someone’s aid?
• What about landowners?
– Is there a different standard for when someone is a
trespasser?
– What if you are a business owner?
Negligence
• 5-1
Duty of Professionals
• Duty of care takes into consideration
minimum standards of competence
– Accountants cannot say I did not know that
principle of accounting existed
• Malpractice is often the resulting claim
Injury Requirement and Damages
• Injury has to result for damages to be
awarded
– Damages may be compensatory or punitive
• Have to also prove causation
– Causation in fact – act or omission caused the
damage
• “But for” test
– Proximate Cause = strong enough connection to
justify holding the defendant responsible
Proximate Cause
• Two standards
– 1) Reasonably foreseeable consequence
– 2) Responsible for all consequences no matter
how remote
• Problem 5-2
Special Negligence Standards
• Res Ispa Loquitor
– The facts speak for themselves
– Example: can’t move knee after a knee surgery
– Defendant must have controlled instrumentality and
must be an injury that would not have happened but for
negligence
• Negligence Per Se
– P must prove three things
• That they were owed a duty of care under the statute
• That the statute clearly sets out the conduct required by the
defendant
• Statute was designed to prevent the type of injury inflicted
Defenses to Negligence
• Assumption of Risk
– Plaintiff entered into the situation knowing the
risks
• Need to show 1) knowledge of the risk 2)
assumption of risk which can be inferred from
conduct
• Exceptions are employees and those acting in
emergency situations
– Superseding Cause – something that breaks the
chain of causation.
Contributory Negligence
• You have to exercise reasonable care in
watching out for dangerous situations
• Under common law any contributory
negligence would prevent recovery by
Plaintiff
• In some states contributory negligence is
not a bar to recovery if there is a “last clear
chance” for the defendant to avoid the harm
Comparative Negligence
• Most states now allow for comparative
negligence
• In these cases the court looks at the fault of
the defendant and compares is the fault of
the plaintiff and if defendant is more at fault
they have to pay up
• Some states use an 80/20 rule
Comparative Fault
• Contributory negligence allowed even if
strict liability
• 50% limit
• Have to name defendants or lose claim
against them
• Defendants more than 50% at fault are
jointly liable for all economic damages
Other Special Standards
• “Danger Invites Rescue” – just because a third
party was negligent does not relieve the defendant
of liability if he created the danger that invited
rescue by a third party
• Good Samaritan Laws: protect good samaritans
• Dram Shop Acts: Cannot serve those who are
intoxicated or you may be liable for their damages
– Social hosts may be included