CHAPTER 6
Intentional
Torts
Intentional Torts
• Intentional Tort- Actionable civil wrong (other than
contract)
• See Chart, p. 129
• Elements
– Harm to Person or Property
– Intent
• Burden of Proof: Plaintiff must establish defendant’s
liability by a preponderance of the evidence
• Damages
– Compensatory (to “make whole”)
– Punitive (to “punish”)
Damages
The United States permits
greater recoveries for torts while
requiring lower standards of
proof than other nations.
Compensatory Damages
Compensatory damages are generally
awarded according to the amount of
actual harm suffered by the plaintiff.
Compensatory damages are generally
awarded before punitive damages may
be considered (see Cohen v. de la Cruz,
523 U.S. 213 (1998).
Compensatory Damages
• Mathias v. Accor, p. 117
– The court affirmed a verdict of $5,000 in compensatory damages and
$186,000 in punitive damages against the defendant, a hotel chain that
knowingly rented a room infested with bedbugs to the plaintiffs. Mathias
stands for the idea that punitive damages should, if they are to achieve their
deterrent purpose, be a higher percentage of compensatory damages when
the latter are small. While the Supreme Court has made it clear that wealth is
not a sufficient basis for awarding punitive damages, wealth, in the sense of
resources, clearly entered into this case. Wealth enabled the defendant to
mount an extremely aggressive defense. By doing so, it made litigating
against it very costly, which could have made it difficult for the plaintiffs to find
a lawyer willing to handle their case since it involved only modest stakes and
the usual contingent fee is between 25 and 33% of the judgment. Some
argue that to serve the goals of punishment and deterrence, a punitive award
must be significant enough, relative to the defendant's financial resources, to
hurt the defendant. Therefore, the wealthier the defendant, the greater the
punitive award necessary to accomplish the goals of punishment and
deterrence. However, courts generally recognize that an award must not be
so excessive that it financially devastates the defendant.
Punitive Damages
Punitive damages traditionally bear no
monetary relationship to actual damages. You
may want to note, however, that some states
have passed tort reform laws which put limits
on punitive damages, and in some of those
states the limit is a multiplier of the actual
damages. In some other states, a large
percentage of the punitive award goes to the
state rather than the plaintiff.
Punitive Damages
In BMW of North America v. Gore, 517 U.S. 559 (1996), the U.S. Supreme Court,
for the first time, put a limit on punitive damages. In that case a Dr. Ira Gore, Jr.
purchased a new 1990 BMW 535i from German Auto, Inc. of Birmingham, AL. He
signed a disclosure form indicating that the vehicle might have sustain some prior
damage, but that he had inspected it and agreed to accept it. After driving the car
for 9 months, he took the car to an auto detailer who revealed to him that the
vehicle had previously been repainted due to acid rain damage during transit from
Germany. Refinishing the vehicle cost Gore $601.00. Gore sued for failure to
disclose the damage. A jury awarded in $4,000.00 in compensatory damages,
based on the assessed value of the vehicle and $4 million in punitive damages.
On appeal, the Alabama Supreme Court eventually reduced the punitive damages
to $2 million. However, the U.S. Supreme Court later ruled that “Punitive damages
may be assessed to punish tortuous conduct and deter repetition. Only grossly
excessive awards are set aside. To determine whether damages are grossly
excessive courts must examine the degree of reprehensibility of the conduct, the
actual harm suffered, and the ratio of the actual damages to the punitive
damages.”
Punitive Damages
In, State Farm Mutual Automobile
Ins. Co. v. Campbell, 123 S. Ct.
1513, 1524 (2003), the Court
recently said that “there is a
presumption against an award that
has a 145-to-1 ratio.”
Tort Reform
For the most part, tort reform has
focused on limiting liability by
restricting damages or narrowing
claims. Over the past decade, most
States have enacted some type of
tort reform, either by legislative action
or ballot initiative (e.g. Proposition 12
in Texas).
Tort Reform
Some types of Tort Reform:
– Laws that address specific types of claims (e.g. medical malpractice or
“dram shop” responsibilities)
– Laws abolishing or limiting joint and several liability.
– Laws adding defenses to certain types of torts.
– Laws capping non-economic damages (such as damages for pain and
suffering or emotional distress) This is a key feature of the MooreGephardt Tort Reform Plan (Note that Canadian law currently places a
$200,000 limit on awards for pain and suffering.
– Laws specifically abolishing or limiting punitive damages to a set figure
or a multiplier of actual damages, or raising the standard of proof to
award them
– Laws limiting attorneys fees.
– Laws prohibiting contingency fees. (Professor Lester Brickman of the
Cardozo Law School is a major advocate of this.)
– Laws limiting what types of class action law suits can be instituted and
who may participate in them.
Tort Reform
Some types of Tort Reform (Cont.):
– Laws creating progressive auto-insurance rates.
– Laws changing or eliminating the Collateral-Source
Rule. Under the collateral-source rule, a defendant is
prohibited from introducing evidence at trial to show
that a plaintiff has received compensation for an
injury from another source--for example, an
insurance policy. That common-law rule prevents any
offsets of damage awards by the amount the plaintiff
has received from those collateral sources. In 1986
and 1987, 18 states changed their collateral-source
rules; currently, 23 states have either abolished or
reformed the rule.
Tort Reform
Some types of Tort Reform (Cont.):
Statutes of Limitation: A few states have
either established or reduced the statutes of
limitation or repose for certain types of
cases. A statute of limitation restricts the
filing of lawsuits within a certain period after
an injury occurs; a statute of repose restricts
the filing of lawsuits within a certain period
after the manufacture or sale of a product
even if injury occurs outside of that period.
Tort Reform
Some types of Tort Reform (Cont.):
Periodic Payment of Future
Damages: Six states have
required or allowed courts to
stagger award payments over
time. In that way, if a plaintiff's
situation changes, the court can
alter the payments.
Tort Reform
Some types of Tort Reform (Cont.):
Prejudgment Interest: Some
states have limited the amount
of interest that may accrue on
an award for compensation
during the time before the
court awards damages.
Tort Reform
Some types of Tort Reform (Cont.):
Victim Compensation Funds: Some
states have set up no-fault funds, similar
to federal statutes such as the Childhood
Vaccine Compensation Fund, to
compensate victims of certain types of
medical malpractice. Victims who accept
compensation from those funds are
limited in their right to file lawsuits.
Tort Reform
• Are limits on damages a good
idea?
• One obvious advantage of limits
is greater predictability as to the
costs of litigation.
Tort Reform
However, there is increasing evidence that the liability “crisis“
may be more imagined (or created by the insurance
companies) than real. For instance, while the nonpartisan
General Accounting Office (GAO) has found that the average
malpractice verdict has been rising by about 8% a year
above inflation, that is nowhere near large enough to
account for the 200 or even 300% rate increases reported in
medical-industry horror stories. Many attorneys argue that
the main problem with medical malpractice insurance costs
is the failure of the medical profession to police its own and
discipline or remove bad doctors from practice. After some
Texas tort reforms in 1996 to 1998, auto insurance
companies earned windfall profits over $2.8 billion. Yet
promised lower rates for consumers never materialized.
Tort Reform
Five-month-old Aliya was the only daughter in the
Dozier family - the answer to her parents' prayers.
She was their dream. "She was a precious one,"
say her parents. "Always smiling." She was smiling
until the day Aliya suddenly died of a heart
problem, which a Los Angeles jury ruled her doctor
should have detected. When that jury awarded the
Doziers $1.5 million in damages, the judge
reduced the award to $250,000 because California
caps certain damages in malpractice cases. To the
Doziers, it was their second tragedy.
(CBSNEWS.COM)
Interference- Personal Rights
• Battery
– Intentional
– Unconsented to Touching
• Actual bodily contact not required
• Enough to set in motion
• Free & Intelligent Consent a Defense
– Harmful or Offensive
• To person of ordinary sensibility
Interference- Personal Rights
• Battery
– Hutchinson v. Brookshire Brothers, Ltd., p. 119
• The court finds that forcing someone to suck
and siphon gasoline from an auto’s gas tank is
a sufficiently offensive touching to constitute
battery. The defendant need not actually touch
the person. It is sufficient if defendant caused
an offensive touching.
Interference- Personal Rights
• Battery
– Question 5 at end of chapter.
• Leichtman V. WLW Jacor Communications, Inc.
– An antismoking advocate is allowed to sue for battery
after a talk-show host purposely blows smoke
repeatedly in his face.
– What harm did Leichtman suffer?
– The touching need not injure the person
– Note: This probably would not have been considered a
battery a few years ago.
Interference- Personal Rights
• Battery
– Question 4 at end of chapter
• Yes. Courts have long recognized the right of privacy in
matters relating to marriage, family, and sex. The right is
not absolute, however, and is subordinate to the state’s
interest in preventing and controlling contagious and
dangerous diseases. AIDS and herpes are such diseases.
Plaintiff has a right to sue for the serious bodily harm she
suffered because defendant misrepresented that he was
disease free, and this misrepresentation caused her to
agree to the sexual touching. Consent to sexual
intercourse is negated by fraudulent concealment.
Kathleen K. v. Robert B., 198 Cal. Rptr. 273 (Calif. Ct. App.
1984).
Interference- Personal Rights
• Assault
–
–
–
–
–
Put in apprehension of
Imminent (Immediate) Threat
To Physical Safety
Actual Contact not required
Usually, “mere words” not enough
Interference- Personal Rights
• False Imprisonment
–
–
–
–
–
Intentional Confinement
For an Appreciable Time
Without Consent
Substantially Restricting
Stores often given Conditional Privilege vs.
Shoplifting Suspects
Interference- Personal Rights
• Intentional Infliction of Mental Distress
– Some jurisdictions require physical
manifestation
– Requires “Outrageous” Conduct (e.g.
Substantially certain to produce distress to
person of ordinary sensibilities
Interference- Personal Rights
• Intentional Infliction of Mental Distress
– Roach v. Stern, p.121
• Howard Stern is found liable for intentional infliction of emotional
distress for the way he treated the cremated remains on his
show.
• What it is about Stern and his show that has made it so
famous/infamous?
• Should this matter when determining what is outrageous?
• Should it matter whether the deceased would likely have found
the actions outrageous (the dissent thought it should).
• Which particular acts “crossed the line.’
• The trial court found that the conduct was vulgar and
disrespectful but not sufficiently outrageous for emotional
distress.
Interference- Personal Rights
• Intentional Infliction of Mental Distress
– Question 9 at end of chapter
• Yes. The Pearces’ extreme and outrageous conduct exceeds
all bounds of decency tolerated by society. They had no
legal claim to the property, but despite this they carried on a
campaign of harassment that included threats of murder,
shooting into the yard, calling the police for a “juvenile
disturbance” when the Pearces’ 11-day-old grandchild
visited, trying to get their daughter arrested, etc. The
resulting emotional distress caused Wilson bodily harm.
The Pearces knew Wilson had a heart condition and angina,
and this was made worse by the harassment and arrest. No
one in a civilized society should have to tolerate such
harassment. Wilson v. Pearce, 412 S.E.2d 148 (N.C. Ct. App.
1992).
Interference-Personal Rights
• Defamation
– A false and unprivileged publication that injures a
person’s reputation or character
• Libel (Writing)
• Slander (Speech)
– Levinsky’s Inc. v. Wal-Mart, p. 62
» A store is allowed to sue for defamation on the basis of a
statement made by a competitor’s manager.
» The difference between fact and opinion is central to this case.
Because the 20-minute hold statement was capable of
verification, the court remanded the case for a new trial.
» Note: Levinsky’s also sued for false light, deceptive trade
practices, interference with advantageous economic
relations, and infliction of emotional distress, but the only
issue on appeal was defamation. The jury awarded Levinsky’s
$600,000 for presumed damage to its reputation.
Interference-Personal Rights
• Libel
– Elements of a Libel Claim
•
•
•
•
•
•
1. Defamatory statement
2. Identification
3. Publication
4. Fault
5. Falsity
6. Personal Harm
Defamation
• Libel
– Publication
• A statement is "published" if it is
communicated to someone other than the
person whom the statement is about.
• In the case of newspapers, magazines, radio
television, or wire services, the libeled person
does not have to prove that someone read or
heard the defamatory statement. (Theory: too
burdensome to check)
Defamation
• Libel
– Publication
• Note: Intracompany communications do not constitute
actionable publications. Publication is the communication of
defamatory matter to a third person, and neither agents nor
employees of a company are third persons in relation to the
corporation because they are part and parcel of the
corporation itself. The statement, she’s in big trouble’, was
communicated to a third party. Whether this comment imputes
the commission of a crime or tends to injure the victim’s
professional reputation and therefore constitutes slander per
se is a question for the jury. A claim of slander per se renders
irrelevant the absence of evidence that a comment actually
sullied the victim’s reputation. Starr v. Pearle Vision, Inc., 54F.3d
1548 (10th Cir. 1995).
Defamation
• Libel
– Fault
• In order to be "at fault" in publishing a statement,
the person suing must prove that the reporter
either did something they should not have done or
that they failed to do something that they should
have done. If the reporter did everything a
"reasonable reporter" should have done to verify
the information in his or her story before
publishing it - for example, talked to all sides,
obtained and read all relevant documents, took
accurate notes, etc. - the reporter is not legally "at
fault."
Defamation
• Libel
– Harm
• A statement is harmful if it seriously shames,
ridicules, disgraces or injures a person's
reputation or causes others to do so.
Statements that are mildly embarrassing or
merely confusing or inaccurate will not meet
the "harm" test.
• Not need to prove actual (e.g money) damages
(as with slander)
Defamation
• Libel per se
– A clear, unambiguous, commonly-agreed-to meaning. Some types of words
like “unethical, adulterer, thief, cheat, criminal, liar, drunkard, communist...”
are universally interpreted as defamatory. No surrounding context or
factors need to be considered.
– Note: Standards can and do change. In 1998, a New York court ruled that the
use of the word “bitch” was not libelous.
– Related recent news item: May 29, 2004, Judge: Homosexual Isn't Libelous
Term
• Stating that someone is homosexual does not libel or slander them,
particularly in light of new court decisions granting gays more rights, a
federal judge has ruled. The ruling by U.S. District Judge Nancy Gertner
came as she threw out a lawsuit by a former boyfriend of pop singer
Madonna who claimed he was libeled because his name appeared in a
photo caption in a book about Madonna under a picture of Madonna
walking with a gay man. "In fact, a finding that such a statement is
defamatory requires this court to legitimize the prejudice and bigotry
that for too long have plagued the homosexual community," she wrote
in her opinion Friday. (from the AP via ABCNews.com.)
Defamation
• Libel per quod
– Not apparent in the words themselves. These are
communications that are defamatory only when
other facts or contexts are taken into
consideration; this is an indirect libel; an
implied defamatory comment.
Defamation
• Libel
– Examples of some libel awards
• 1991 largest Libel judgment in U.S. History: $58 M. to
Texas district attorney Vic Feazel, who was falsely
accused by WFAA-TV in Dallas of taking bribes to fix
drunken driving and drug possession cases. They
ultimately settled out out court for a smaller amount.
• 1993 New York appellate court upheld an $18.5 M. dollar
award against Buffalo TV station WKBW for incorrectly
associating a restaurant owner with organized crime.
Later reduced to $15.5 M. A retrial was ordered because
of faulty jury instructions and that jury awarded $11.5
million in damages.
Interference-Personal Rights
• Defamation
– Slander (Speech)
• Slander is a false and unprivileged publication that injures a
person’s reputation or character.
• Intracompany communications do not constitute actionable
publications. Publication is the communication of defamatory
matter to a third person, and neither agents nor employees of a
company are third persons in relation to the corporation because
they are part and parcel of the corporation itself. The statement,
she’s in big trouble’, was communicated to a third party. Whether
this comment imputes the commission of a crime or tends to
injure the victim’s professional reputation and therefore
constitutes slander per se is a question for the jury. A claim of
slander per se renders irrelevant the absence of evidence that a
comment actually sullied the victim’s reputation. Starr v. Pearle
Vision, Inc., 54F.3d 1548 (10th Cir. 1995).
Defamation- Standards
• In re: Media - Public Officials or Public Figures Must Prove
“Actual Malice”
– New York Times Company v. Sullivan, 376 U.S. 254 (1964)
• http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=37
6&invol=254
• In order for a public official or a public figure to prove
defamation, they must prove actual malice. Actual malice
requires that the person suing prove that the challenged
statement was published by those who either knew it was
false or were reckless in verifying its accuracy.
– Malice typically may not be inferred, but must be proven by
competent evidence
Defamation- Standards
• In re: Media - Public Officials or Public Figures Must Prove
“Actual Malice”
• Question 8 at end of chapter
• Yes. The First Amendment recognizes the fundamental importance of the free
flow of ideas and opinions on matters of public interest and concern. A public
figure may hold a speaker liable for publication of a defamatory falsehood if it
was made with malice. If it were not required, political cartoons and satires
would be imperiled. These have had an effect on the course and outcome of
public debate; our political discourse would have been poorer without them.
There is no doubt that the caricature of Falwell and his mother is at best a
distant cousin of the political cartoon, and a rather poor relation at that. But it
would be too hard for a jury to distinguish between this and desired speech
without a malice standard. Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988).
Defamation- Standards
• In re: Media - Public Officials or Public Figures Must Prove
“Actual Malice”
– Who is a Public Figure?
• Public figures are those who have chosen to thrust themselves
into the limelight.
• There are two categories:
– (1) General Purpose Public Figure: is a an individual who has
assumed a role of special prominence in the affairs of society
and occupies a position of persuasive power and influence or is a
"celebrity," whose pervasive fame or notoriety has made his or
her name a "household word.”
– (2) Limited Purpose Public Figure: someone who has voluntarily
assumed a leading role in a particular public controversy.
Defamation- Standards
• Private Persons
– In most states, a private person need only prove that a reporter
was negligent, that is, that the reporter made a mistake - perhaps
an innocent one - that a "reasonable" reporter should not have
made.
– If not public figure, must prove actual malice ONLY when the
defamatory falsehoods related to the controversy they
associated themselves with.
– Supreme Court's decision in Gertz v. Robert Welch, Inc. 418 U.S.
323 (1974)
http://wyomcases.courts.state.wy.us/applications/oscn/deliverd
ocument.asp?citeid=429791
• Court held that in defamation suits by a private figure arising
out of matters of public concern, the states may set any
standard of care except strict liability. Most states chose
negligence as the standard of care for defamation defendants
in a Gertz situation.
Defamation- Defenses
• Truth - is a complete defense
• Privilege
– Absolute Privilege - (e.g. Statements by members of Congress on
the floor, participants in certain judicial proceedings, private
statements between spouses)
– Conditionally Privileged - e.g. Employee references (lawyers
generally recommend not giving such)
– Note: Other privileges exist, but vary from jurisdiction to
jurisdiction.
• Opinion - A statement of mere opinion cannot be
defamatory
Defamation- Defenses
• Possibly Retraction?
– Must be “Full and fair”= same type,
position and page
Defamation- Defenses
• Statutory Immunity
– Carafano v. Metrosplash, p. 123
• The lawsuit against Metrosplash/Matchmaker was prevented by the
Communications Decency Act.. The Communications Decency Act immunizes
those who give access to the Internet from liability for messages that originate
with third persons. Specifically, the statute precludes courts from entertaining
claims that would place a computer service provider in a publisher's role. The
purpose of this immunity is not difficult to discern. It was enacted to maintain
the robust nature of Internet communications and, accordingly, to keep
governmental interference in the medium to a minimum. None of this means, of
course, that the original culpable party who posts defamatory messages would
escape accountability. However, Congress made a policy choice not to deter
harmful online speech through the separate route of imposing tort liability on
companies that serve as intermediaries for other parties' potentially injurious
messages. The specter of tort liability in an area of such prolific speech would
have an obvious chilling effect. Faced with potential liability for each message
republished by their services, interactive computer service providers might
choose to severely restrict the number and type of messages posted. Ask the
students what they think about the legislation? Discuss the advantages and
disadvantages of such a policy. Obviously, in the Carafano case, if a newspaper
or magazine ran the bogus “profile” in its personals, the result would have been
different.
Defamation - Other Countries
• In many other countries, such as Canada,
Australia, South Africa “a claim to dignity
or to personality will trump a claim to
freedom of speech. In Germany, the burden
is on newspapers to verify the truth of their
statements. German Law also states that
freedom of speech "shall find its limits ... in
provisions for the protection of young
persons, and in the right to personal
honor.” - Source: Donald Kommers, professor of law and political
science at the University of Notre Dame, discussion on free speech
and defamation 3-1-2006, part of the Democracy Dialogues series of
discussions on freedom of speech.
Interference- Personal Rights
• Invasion of Right to Privacy
– Intrusion on Privacy (e.g. obscene phone calls)
Interference- Personal Rights
• Invasion of Right to Privacy
– Widespread Dissemination
• Publishing private facts
– Must show the paper publicized private facts that we not a legitimate
concern to the public. A private fact is one that has not already been made
public. A fact contained in a public record is a public fact. Writings
prepared in the transaction of public business are public records. Jenkins’
convictions were part of the court records and therefore were public
records. While public policy encourages rehabilitation and integration
into society, that interest does not protect Jenkins. There is a compelling
reason for the public to be aware of the convictions because they address
a matter of public concern. They show his propensity for criminal acts of a
sexual nature that spans 40 years. Jenkins v. Bolla, 600 A.2d 1293 (Superior
Ct. Penn. 1992).
Interference- Personal Rights
• Invasion of Right to Privacy
– False Light
• Publicity that places the plaintiff in a "false light" in the public eye. Closely
resembling defamation, the tort of false light requires publication of an untrue
statement regarding the plaintiff. The key difference is that while defamation must
adversely harm one's reputation, the false light claim requires the representation to
be "highly offensive to a reasonable person." Restatement of Torts (2d Edition) at
625e (1977).
• False Light: In Time, Inc. v. Hill, 385 U.S. 374 (1967)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=385
&page=374
• U.S. Supreme Court recognized the false-light tort, ruling that even private plaintiffs
must prove actual malice (a requirement previously reserved for public-figure libel
plaintiffs) if they are involved in a newsworthy issue. See also: Cantrell v. Forest City
Publishing Co., 419 U.S. 245 (1974) http://caselaw.lp.findlaw.com/cgibin/getcase.pl?navby=case&court=us&vol=419&invol=245#250
• and Little Rock Newspapers, Inc.. v. J. Michael Fitzhugh, 96-1050,
http://courts.state.ar.us/opinions/1997b/971113/96-1050.txt
Interference- Personal Rights
• Invasion of Right to Privacy
– Misappropriation of Name or Image for Commercial Purposes
• “Personal” Right
– Felsher v. University of Evansville, p. 125
» The University is not allowed to sue for invasion of privacy
because it is not an individual and the right is personal. The
court cites extensively to the Restatement (Second) of Torts,
and notes that the Restatement says that a corporation has a
limited right to the beneficial use of its name or identity. If that
right is breached, the entity can sue under laws of unfair
competition. Note: University might have a cause of action for
tortious interference with business relations and individuals
might have a cause of action for being portrayed in a false
light.
Interference- Personal Rights
• Invasion of Right to Privacy
– Misappropriation of Name or Image for Commercial Purposes
• Parks v. LaFace Records, p. 125
– Civil rights icon Rosa Parks is allowed to sue hip-hop group Outkast
for the appropriation of her name.
– The court remanded the case so that a jury might determine whether the use
of Rosa Parks’ name bears any artistic relevance to the content of the song.
Note the balance and tension between protecting the First Amendment rights
of the defendants in the creation and marketing of a musical composition and
the right of Rosa Parks to protect an economic interest in her name. The court
opined that application of that standard involves a recognition that Rosa
Parks has no right to control her image by censoring disagreeable portrayals.
It also involves a recognition that the First Amendment cannot permit anyone
who cries “artist” to have carte blanche when it comes to naming and
advertising his works. Distinctive a style must be in order to be protected (see
Midler v. Ford Motor Company, 849 F. 2d 460 (9 Cir. 1988)). Question 6 at end of
chapter.
Interference- Personal Rights
• Invasion of Right to Privacy
– Misappropriation of Name or Image for
Commercial Purposes
• White v. Samsung Electronics America, Inc., p.64-65
– Letter turner Vanna White is allowed to sue when an ad
uses a robot mimicking her movements and style.
Interference- Personal Rights
• Misuse of Legal Proceedings
– Wrongful Use of Civil Proceedings
– Malicious Prosecution
• Brennan v. Tremco Inc., p.126
– Brennan is not allowed to sue Tremco for malicious
prosecution because the decision in his favor was
given by an arbitrator and not by a court..
– Abuse of Process
– See Chart, p. 127
Interference-Property Rights
• Trespass to Land
– Entry
– Without Permission or Privilege
– Question 11 at end of chapter
• Jacque v. Steenberg Homes, Inc.
– The court allows an award of $1.00 in compensatory damages and
$100,000 in punitive damages because the defendant’s trespass was
stubbornly willful.
– This case nicely illustrates the point that like battery, trespass protects
against unconsented-to touching (of real property as opposed to the
person). Physical harm is not necessary. Since there was no physical
harm, only nominal damages were awarded. This case also nicely
illustrates the deterrent and punitive use of punitive damages.
Interference-Property Rights
• Trespass to Land
– H.E. Stevenson, et al. v. E.I. DuPont , p. 127
• The court found that property owners could recover for trespass to
land based on contamination by airborne particles. This case nicely
illustrates the point that like battery, trespass protects against
unconsented-to touching (of real property as opposed to the person).
Here, the air particulates wrongfully entered Plaintiff's property
without consent. The court recognized that trespass may be committed
on top of, beneath, or above the Earth's subsurface. This case also
evokes the specter of “toxic trespass.” An unpermitted intrusion on a
possessory interest in land by toxic materials may constitute a
trespass. Courts in aerial spray cases typically conclude either that the
activity causing damage to adjoining lands was negligent and that the
resulting intrusion constituted a trespass, or that the aerial application
of pesticides was an ultrahazardous activity and the resulting intrusion
constituted a trespass, regardless of fault. Similar to aerial intrusions,
some jurisdictions have found trespass by intrusion of toxic
substances through air currents, surface, and ground waters.
Interference-Property Rights
• Trespass to Land
– The issues present the conflict in an industrial society between the
need of all for the production of goods and the desire of the landowner
that his use and enjoyment of his land not be diminished by the
unpleasant side effects of that process. American Smelting knew that
the winds could blow emissions onto Vashon Island and that
contamination, though slight, would follow. Trespass is committed when
one causes a thing to enter another’s land. That entry does not need to
be direct and immediate. Microscopic particles, undetectable by the
naked eye, are things. In this atomic age even the uneducated know the
power of microscopic particles. The common law of trespass held there
is liability without physical harm to the land. However, in adapting the
law to old doctrines, requirements must change. Thus, when
microscopic wind borne entries are transitory or quickly dissipate,
there is no actionable trespass; if there is substantial harmful
accumulation which does not pass away, a trespass suit can be brought.
Bradley v. American Smelting and Refining Company, 709 P. 2d 782 (Sup.
Ct. Wash. 1985).
Interference-Property Rights
• Trespass to Personal Property
– Intentional Interference with Personal
Property that:
• Harms property or
• Deprives Possessor of Use for Appreciable Time
– Conversion: Unlawful exercise of control
• Cadillac Dealer Example: Shop held car for several
months without fixing = bought for fair market value
Interference-Economic Relations
• Disparagement - False statements about
quality of services or goods
– Proof of damage required
• Interference With Contract - induce
breach
• Interference With Economic Expectations
- forcibly drive away customers
Interference-Economic Relations
• The Restatement (Second) of Torts requires that
defendant’s action be “improper” for a successful
interference with economic expectations suit. We
adopt this requirement that the interference be
improper or wrongful by some measure beyond the fact
of the interference itself. The courts should give
greater protection to parties who have already reached
agreement and formed a contract than to those who are
claiming interference with a prospective contract or
economic relationship. Della Pena v. Toyota Motor
Sales U.S.A., Inc., 45 Cal. Rptr.2d 436 (Cal. Sup. Ct. 1995).
Interference with a Marital Relationship
(NC and some other jurisdictions)
• Criminal Conversation - To succeed on a criminal
conversation claim, the plaintiff has to show:
– (1) an act of intercourse between defendant and plaintiff’s
spouse and
– (2) the existence of a valid marriage between the plaintiff and
the adulterous spouse, and
– (3) the bringing of the lawsuit within the applicable statute of
limitations.
Interference with a Marital Relationship
(NC and some other jurisdictions)
• Alienation of Affection - To succeed on an alienation
claim, the plaintiff has to show that:
– (1) the marriage entailed love between the spouses in some
degree;
– (2) the spousal love was alienated and destroyed; and
– (3) defendant’s malicious conduct contributed to or caused
the loss of affection. It is not necessary to show that the
defendant set out to destroy the marital relationship, but only
that he or she intentionally engaged in acts which would
foreseeably impact on the marriage.
• see http://www.rosen.com/ppf/ID/37/alien.asp