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Chapter 8

TORTS

RESTATEMENT

Torts are civil breaches of conduct that permit recovery by individuals who are victims of the breaches. To establish
liability for a tort there are various elements of proof required. For some torts, the party must establish a specific act and
intent. For negligence, the party seeking recovery must establish that there was a duty (statutory or imposed as a
general standard of conduct such as professional competence), a causal relationship between the breach of duty and the
injury, and a foreseeability of the injury resulting from the breach of duty.

Intentional torts are those committed voluntarily and include false imprisonment, emotional distress, invasion of privacy,
defamation (slander and libel), disparagement, contract or business relationship interference, trespass and computer
torts.

Liability for negligence is based on the standard of the reasonable person, a standard that requires a certain degree of
care on the part of all citizens with respect to each other. The liability of the defendant is mitigated to the extent
negligence of the plaintiff is established through the defenses of contributory or comparative negligence.

STUDENT LEARNING OUTCOMES

LO.1: Explain the difference between torts and crimes.

LO.2: Distinguish between an assault and a battery.

LO.3: Explain the three different torts of invasion of privacy.

LO.4: Explain the torts of defamation and defenses.

LO.5: Explain the elements of negligence and defenses.

LO.6: Explain the tort of strict liability and why very few defenses are available.

INSTRUCTOR’S INSIGHTS

Break the chapter down into four components – related Learning Outcomes are indicated in ( ):

1. What are the general characteristics of torts and principles of tort law?

• Present the differences between crimes and torts (LO.1)

• Discuss the basis for tort liability
• Cover who can bring suit for recovery under tort
• Present the defenses and immunities to tort liability

2. What are the elements and requirements for intentional torts?

• Distinguish between an assault and a battery (LO.2)

• Discuss the following torts and provide the elements of proof required:

 false imprisonment
 intentional infliction of emotional distress
 invasion of privacy (LO.3)
 defamation (LO.4)
 product disparagement
 wrongful interference with contracts
 trespass
 computer torts
3. What is negligence?

• List the elements of negligence (LO.5)

• Explain the defenses to negligence (LO.5)
• Cover the liability for negligence

4. What is strict liability?

• Define strict liability (LO.6)

• Discuss when strict liability is imposed (LO.6)

CHAPTER OUTLINE

I. What are the General Characteristics and General Principles of Tort Law?

A. What is a tort?

1. A tort is a violation of a private duty

2. From Latin “tortus” for crooked, dubious or twisted

3. Interference with property or person

B. Tort and crime distinguished

1. A crime is a violation of public duty that imposes a sentence of a fine and/or jail time

2. Tort is a violation of private duty that gives a right of compensation – use O.J. Simpson example to
illustrate that there were two trials: one for crime of murder and the other for wrongful death

C. Types of torts

1. Intentional torts

a. Intentional conduct
b. Voluntary act, even though consequences may not have been intended

2. Negligence

a. Careless actions
b. Produce injury
c. Liability imposed for certain careless actions

3. Strict liability

a. Imposed for activity so dangerous that there must be full accountability

b. Dynamiting a building or road, crop dusting
c. Products liability is a form of strict liability

II. What are the Elements and Requirements for Intentional Torts?

A. Assault

1. Intentional act

2. Fear of imminent harm

B. Battery

1. Intentional, wrongful touching of another

2. Damages required
CASE BRIEF: Moore v. Beye
122 P.3d 1212 (Mont. 2005)

FACTS: Moore and Beye had an altercation after a public meeting regarding airport expansion. Beye punched
Moore on the left side of the jaw. Moore stumbled, but caught himself before falling. He then
exclaimed to the crowd, “You saw that. You are my witnesses. I’ve been assaulted. I want that man
arrested.” Ravalli County deputies took Beye into custody and the State charged him with
misdemeanor assault. Moore visited the hospital complaining of back and neck pain two days later
and contends that he injured his back while reeling from Beye’s punch. He filed a civil complaint
against Beye for damages. Moore’s evidence mostly concerned his alleged back injury. Beye did not
contest that he punched Moore. His evidence countered that Moore’s back problems existed before
the altercation. The judge instructed the jury that Beye had committed a battery as a matter of law and
directed that they answer the question “[Was] Moore damaged as a result of the battery?” The jury
voted 11 to 1 that the battery did not injure Moore and Moore appealed.

ISSUE: Were Moore’s injuries directly caused by Beye’s battery of Moore?

HOLDING: No.

REASONING: Beye presented the testimony of several eyewitnesses and a medical expert that Moore sustained no
damages. Though Moore presented considerable evidence to the contrary, it was not the court’s
function to agree or disagree with the verdict. Beye presented sufficient evidence to uphold the jury’s
verdict.

C. False imprisonment

1. Intentional detention of a person without consent

2. Shopkeeper’s Tort: detention of suspected shoplifters

3. Defense is the shopkeeper’s privilege

a. Reasonable basis to detain

b. Reasonable detention
c. Reasonable time
d. Reasonable manner

CASE BRIEF: Holguin v. Sally's Beauty Supply, Inc.

264 P.3d 732 (N. Mex. App. 2011)

FACTS: Patricia Holguin went to Sally’s Beauty Supply Store carrying her “eco-friendly canvas shopping tote,”
a large bag that is conspicuous when used. Upon entering the store, there were no posted signs
stating that shopping totes were not allowed. She picked up a can of mousse that was not exactly what
she wanted and started to carry it in her tote toward the front counter to ask the cashier a question
about it. As she walked toward the front of the store the assistant manager approached her and asked
what was in the bag. She was detained by this manager, who told her that once she put the hair
mousse in her tote bag, she was shoplifting. Holguin’s lawsuit for false imprisonment against the store
was dismissed with prejudice by the trial court. This court held that once she placed the merchandise
in her bag, the store had probable cause to believe she was shoplifting and had a statutory conditional
privilege to detain her, free from civil liability for false imprisonment, because she “willfully concealed
merchandise.” Holguin appealed.

ISSUE: Did Holguin “willfully conceal” a can of mouse by simply placing the object in an “eco-friendly canvas
shopping tote” to carry to the front of the store to ask a question?

HOLDING: No. “Willfully conceal” required more than putting the merchandise out of sight in a self-service store.

REASONING: The court of appeals reversed the district court’s decision. In general, merchants and their employees
have a conditional privilege to detain a person free from civil liability based on probable cause, or
reasonable grounds to believe that the individual “willfully concealed” merchandise without paying for
it, provided the detention is for a reasonable time and conducted in a reasonable manner. “Willfully
concealed,” however, requires more than merely putting merchandise out of sight. In self-service
 stores customers have implied permission to pick up, handle, move, try on, replace, and carry about
merchandise within the store. There must be circumstances which reflect that the purpose of the
concealment is adverse to the store’s right to be paid before the conclusion can be drawn that the
merchandise was “willfully concealed” under the statute providing the conditional privilege to detain a
customer. Placing the can of mousse in a reusable, personal canvas shopping bag to carry to the front
of the store to ask a question, without more, did not constitute “willful concealment.”

D. Intentional infliction of emotion distress

1. Conduct beyond the bounds of decency

2. Produces mental anguish (use Erica Schoen example at Freightliner)

3. Used as a basis for recovery in outrageous debt collection cases

E. Invasion of privacy

1. Intrusion into private affairs (microphone in an office or home)

2. Public disclosure of private facts (business displays bounced checks)

3. Appropriation of name, image or likeness

CASE BRIEF: Ignat v. Yum! Brands, Inc.

154 Cal. Rptr. 3d 275 (Cal. App. 2013)

FACTS: Melissa Ignat suffered from a bipolar disorder for which she was being treated with medications. Side
effects of medication adjustments occasionally caused her to miss work. She alleged that after
returning from one such absence her supervisor, Mary Shipma, informed her that she had told
everyone in the department that Ignat was bipolar. Subsequently, her coworkers avoided and
shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work. Ignat brought
suit for public disclosure of private facts, and the trial court granted summary judgment for Yum!
Brands on the ground that the right of privacy can be violated only by a writing, not by word of mouth.

ISSUE: Can the right of privacy be violated only by a writing, not by word of mouth?

HOLDING: No.

REASONING: Times have changed since 1890. Private facts can be just as widely disclosed through oral media as
through written ones. Disclosure in writing is not required to maintain a cause of action for public
disclosure of private facts.

CASE BRIEF: Orthopedic Systems, Inc. v. Schlein

135 Cal. Rptr. 3d 200 (Cal. App. 2011)

FACTS: OSI and Dr. Schlein entered into a contract were OSI would manufacture and sell an unpatented
product designed by Schlein. OSI agreed to pay Schlein royalties. OSI stopped paying the royalty
payments after a number of years claiming that since the product was unpatented it did not have to
pay royalties. However, OSI continued to market the product using Schlein’s name and made
$1,220,000 in profit using his name.

ISSUE: Did state law limit damages to $750, precluding Dr. Schlein from recouping profits made from the
misappropriation of his name?

HOLDING: No.

REASONING: The court held that Schlein was entitled to the $1.2 million in profits as opposed to the statutory
amount of $750. The court held that if a company makes money by using a person’s name, it does not
make sense to limit the individual to statutory damages when real damages exist. Interpreting the
statute to limit damages to $750 when profits existed would not be in the spirit of the statute.
 F. Defamation

1. Slander – oral or spoken

2. Libel – written (some states include a broadcast)

3. Statement about a person’s honesty, reputation or integrity that is untrue that is heard and understood and
causes damage

4. Defenses

a. Truth
b. Privilege such as Congressional debate
c. Qualified media privilege for coverage of celebrities/public figures – must prove malice (knowledge it
was false or reckless disregard)
d. Witnesses granted immunity for their testimony have a privilege
e. Qualified privilege for employer references

G. Product disparagement

1. Slander of title or trade libel

2. Product disparagement

3. Same elements as defamation but statement is about product

4. New statutes often called “veggie libel” laws protect generic products such as eggs, beef, broccoli from
slander and libel

H. Wrongful interference with contracts (tortious interference)

1. Third party induces breach of contract

2. Uses persuasion to intentionally induce breach – use Disney example in text

I. Trespass

1. Unpermitted entry to land

2. Unauthorized use of personal property (car)

III. What is Negligence?

A. Elements of negligence

1. Duty of reasonable care: the reasonable person

Because negligence is such an important area, make sure you work through a hypothetical case involving
simple negligence. Point out to the class that the reasonable person will follow them throughout the
semester. The following example might be useful:

Pat, a college student, is driving home from class and is having problems with the tape deck in
the automobile. Suddenly, the cassette in the unit starts spitting out tape all over the drivers
compartment. Pat is hurriedly trying to fix it and is not watching where the vehicle is going. Pat
fails to see that the traffic signal ahead has turned red, goes into the intersection, and collides
with another vehicle.

Ask your class to answer the following questions:

Did Pat fail to exercise the degree of care that a reasonable person would have exercised under
the circumstances? Yes. If so, what would a reasonable person have done? A reasonable
person would have pulled out of traffic, stopped, and fixed the problem or would have ignored it
until safely at home. Was the damage sustained approximately caused by Pat? Yes.

Use Lowe and Cost as example.

 2. Variable character of the standard

a. Does not tell you in advance what should be done

b. Depends on circumstances

3. Degree of care/duty of care

a. Defined as what an ordinary prudent person would exercise under the circumstances
b. Can be professional standards; falling short is malpractice

4. Duty

a. Imposed by statute
b. Imposed by professional standards
c. Imposed by reasonable care

5. Causation

a. “But for” test

b. Failure to warn

CASE BRIEF: Palsgraf v. Long Island R.R. Co.

162 N.E. 99 (N.Y. 1928)

FACTS: Helen Palsgraf was standing on the platform at the railroad station for the Long Island Railway as she
waited for her train to Rockaway Beach. Two men at the other end of the platform where Mrs. Palsgraf
was standing ran to catch another train that was already moving. One man, with the help of a railroad
employee who was on the train, made it safely onto the moving train, but the second man, who was
carrying a package, fell and dropped the package. The package, full of fireworks, exploded, and the
resulting vibrations on the platform caused the scales standing near Mrs. Palsgraf to fall and strike and
injure her. Mrs. Palsgraf sued the railroad for negligence.

ISSUE: Did the Railroad employee cause Mrs. Palsgraf’s injury?

HOLDING: No.

REASONING: The railroad was held not liable for Mrs. Palsgraf’s injuries. While the railroad could foresee injury to
those the employee helped onto the train and even those passengers in the same car, it could not
foresee injury to Mrs. Palsgraf, who was not in the immediate zone of danger created by the
unreasonable conduct of the employee. While there was negligence in the air, it was no sufficiently
close or tied to Mrs. Palsgraf to permit her to recover.

6. Damages

a. Medical bills
b. Lost wages
c. Property damages
d. Punitive damages for gross negligence – use Tyson example to discuss damages

B. Defenses to negligence

1. Contributory negligence – defense

a. The plaintiff recovers nothing

b. It’s the last clear chance

2. Comparative negligence: assign percentage of fault, then applied to reduce recovery

3. Assumption of risk

a. Knowledge of risk
b. Voluntary
CASE BRIEF: Hardesty v. American Seating Co.
194 F. Supp. 2d 447 (D. Md. 2002)

FACTS: Lawrence Hardesty is an over-the-road tractor-trailer truck driver who picked up a load of stadium
seating equipment for the NFL stadium under construction in Baltimore. The equipment was
packaged in large corrugated cardboard boxes weighing several hundred pounds. The shipper,
American Seating Co., loaded the trailer while Hardesty remained in the cab of his truck doing
“paperwork” and napping. Considerable open space existed between the boxes and the rear door of
the trailer. The evidence showed that Hardesty failed to properly examine the load bars used to
secure the boxes from movement during transit. When Hardesty arrived at the Baltimore destination,
he opened the rear trailer door and boxes at the end of trailer fell out and injured him. Hardesty
brought a personal injury negligence action against the shipper. American Seating Co. responded that
Hardesty was contributorily negligent, thus barring his negligence claim.

ISSUE: Was Hardesty contributorily negligent?

HOLDING: Yes.

REASONING: Judgment for American Seating Co., as the claim is barred by Hardesty’s contributory negligence. His
decision to ignore the loading process by remaining in his truck, oblivious to the manner and means of
the loading of the trailer, coupled with his own failure to examine the load bars sufficiently to confirm
that they would “adequately secure” the cargo, together with his decision, in the face of his prior
omissions, to open the doors of the trailer upon his arrival in Baltimore while standing within the zone
of danger created by the possibility (of which he negligently failed to inform himself) of injury from
cargo falling out of the trailer, cohered to rise to the level of a cognizable breach of duty – contributory
negligence.

C. Liability for negligence

1. Age (minor) is not always a defense

2. Immunity for some government agencies

3. Liability for negligently causing mental distress

DISCUSSION POINTS: Sports & Entertainment Law

Liability for Injuries Under the Sports Exception Doctrine

1. Proof of reckless or international conduct is much more difficult to establish than proving a negligence case. A court
may consider four factors in determining the extent of the duty owed by the defendants under the heightened
reckless or intentional conduct standard of care: (1) the normal expectations of participants in the sport in which the
plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in
recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation;
and (4) the decisions of other jurisdictions.
2. Major contact team sports which qualify under the sports exception doctrine are soccer, football, basketball, hockey,
and lacrosse.
3. In Mallin v. Paesani, 892 A.2d 1043 (Conn. Super 2005), the court determined that golf was not a contact team sport
where the sports exception applied. Golf is neither a team sport in the true sense nor a contact sport. Negligence
law applied.

a. Defendant sets in motion series of events

b. Result has emotional impact (damage to graveyard)

4. Bystander recovery

a. Some recovery allowed

b. Must be close to the victim or at the scene
DISCUSSION POINTS: Thinking Things Through
Torts and Public Policy

Some additional facts on Stella Liebeck’s injuries may be considered. Her grandson was driving the car and he parked
his car so Liebeck could add cream and sugar. She placed the cup between her knees and pulled the lid toward her to
remove it when the cup spilled the coffee into her lap. Note that today McDonald’s employees add the cream and sugar
to reduce the risk of harm.
In the discovery process it was revealed that more than 700 complaints about the temperature of McDonald’s coffee had
been registered with the company some of which resulted in injuries. McDonald’s chose not to do anything about the
problem.

IV. What is Strict Liability?

A. Liability imposed for serious conduct

B. Very few if any defenses to these acts

C. Found in statutory violations

D. Also found in product liability

E. Imposing strict liability

ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. Right-to-publicity tort. Tiger sued the shipyard under Right-to-Publicity and breach of contract theories. (The courts
have struggled with the First Amendment right to express “facts” such as a right of the builder to…). The courts have
struggled with the issue of whether a Right-to-Publicity claim is nevertheless prohibited by the First Amendment;
especially where the promotional materials were factual. Some courts have used a “relatedness” test to allow for the
use of the celebrity name. However, in this case, Tiger’s attorneys anticipated the problem and had a clause in the
construction contract that prohibited all publicity without permission. The case was settled with a $1.6 million
payment to Tiger Woods.

2. Defamation. Although the word “pimp” may be reasonably capable of a defamatory meaning when read in isolation,
we agree with the district court’s assessment that “the term loses its meaning when considered in the context of this
case where it appeared among other photos using loose, figurative slang language directed at a younger,
lighthearted audience.” The term “pimp” as used on the ESPN.com website was not intended as a criminal
accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically it was most likely intended as
a compliment. But we need not definitively resolve that issue here because even if the photograph and caption are
reasonably capable of a defamatory meaning, they are not actionable under the First Amendment. [Knievel v.
ESPN, 393 F.3d 1068 (9th Cir.)]

3. Assumption of the risk not applicable where reckless conduct is involved. It is true that collisions between
snowboarders are one of the risks inherent in the sport of snowboarding, and if this case were brought on a
negligence theory related to an ordinary collision the defense would be successful. However, the plaintiff’s case is
pursued under the heightened burden of proof on the part of the plaintiff asserting reckless conduct. Snowboarding
downhill at a fast rate of speed while engaged in a snowball fight is dangerous activity, and the court concluded that
there was a [triable] issue of fact whether David’s conduct was so reckless that it was totally outside the range of
ordinary activity of the sport of snowboarding. [Mammoth Mountain Ski Area v. Graham, 38 Cal. Rptr. 3d 422 (Cal.
App.)]

4. Invasion of privacy. Judgment against both Cynthia and her family. The essential elements of the “public disclosure
of private facts” theory are public disclosure of private facts. A matter that is already public or has become part of the
public domain is not private. While Cynthia expected a limited audience, by posting the article on MySpace.com for
six days, Cynthia opened the article to the public at large. The potential audience was vast. The right to privacy is
purely personal and cannot be asserted by her parents and sister. [Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr.
3d 858 (Cal. App.)]

5. Right of publicity. Bosley pursued the injunction under the right of publicity tort theory. Judgment for Bosley. The
First Amendment does not immunize defendants from damages for infringement of the right of publicity. No
significant editorial comment or artistic expression involving First Amendment protections applies in this case. If any
“speech” interest is involved it is commercial speech. At its core the defendants are selling Bosley’s image for a
 profit without her consent. It is in violation of her right of publicity, which protects one’s right to be free from the
appropriation of one’s persona. The injunction sought was granted. [Bosley v. Wildwett.com, 310 F. Supp. 2d 914
(N.D. Ohio)]

6. Negligence: Assumption of Risk. The State Supreme Court declined to adopt the Baseball Rule stating:

Under our system of limited government, the legislative branch is entrusted with decisions of public
policy. Judges and Justices are servants of the law, not the other way around. Judges are like umpires.
Umpires don’t make the rules, they make sure everybody plays by the rules, but it is a limited role.
Nobody ever went to a ball game to see the umpire.

Charles Fried, Balls and Strikes, 61 Emory L.J. 641, 642 (2012), quoting the Confirmation Hearing on
the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Should the General
Assembly wish to adopt the Baseball Rule in statutory form, of course, it is free to do so; indeed, four
other state legislatures have done just that. Ms. DeJesus was unsuccessful in her premises liability and
negligence claims. [South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903 (Ind.)]

7. Trespass. Damage to property by entry with the emissions; this is a trespass. [Maryland Heights Leasing, Inc. v.
Mallinckrodt, Inc., 706 S.W. 2d 218 (Mo. App.)]

8. Negligence; duty. The court held that the spontaneous explosion of the abandoned van’s gas tank was not
reasonably foreseeable and the city owed no duty to protect the boy who was playing nearby. The city was not
negligent in its failure to tow the van. In determining whether there was a legal duty on the part of the city, the
question to be answered is whether the occurrence (explosion) was reasonably foreseeable. Liability cannot be
based on surmise or conjecture. [Ortiz v. Chicago, 398 N.E. 2d 1007 (Ill. App.)]

9. Qualified privilege; defamation. The circumstances of the investigation, the relevance of the matter to the
employer’s business, and the fact that the statement was privately told to a superior led to the conclusion that Hooks
did not make the statement with malice. Because the statements were nonmalicious and were made to the employer
regarding a matter within the range of corporate business, Hooks was protected by a qualified privilege from liability
for slander. [Hooks v. McCall, 272 So. 2d 925 (Miss.)]

10. Substantial factor test of proximate causation. No. The court applied the substantial cause test. Each defendant
had been a substantial cause of the plaintiff’s harm. Accordingly, neither defendant could defend on the grounds
that another person, the other defendant, had also been a cause of the harm. [Bumbardner v. Allison, 78 S.E. 2d
752 (N.C.)]

11. Primary assumption of the risk; comparative negligence. The appeals court decided that the doctrine of primary
assumption of the risk did not apply to the facts of this case. Such a doctrine is a complete defense. Carl was not
engaged in the sport of boating when he was injured. He may well have been comparatively negligent in jumping off
the moving vessel to help tie up the boat, which could be compared to the negligence of the Yacht Club by a jury in
determining responsibility and apportioning damages. Primary assumption of the risk is a complete bar to the
recovery of damages. [Kindrich v. Long Beach Yacht Club, 84 Cal. Rptr. 3d 824 (Cal. App.)]

12. Negligence; duty. The driver who collided with the motorist owed no duty of care to the yet unconceived child who
later was delivered prematurely due to pressure from the motorist’s lumbo-peritoneal shunt. There was no duty to
the infant. [Hegyes v. Unjian Enterprises, Inc., 286 Cal. Rptr. 85 (Cal. App.)]

13. Comparative negligence statutes; assumption of risk. Kendra was not negligent in taking part in the game. There
was nothing in the fact of participation in the game that would have alerted a reasonable person to the fact that such
an injury was foreseeable. By taking part in the game, she voluntarily assumed risks of normal harm that could
reasonably be associated with the game. Her experience with the game showed that she knew what could be
expected, and there was no proof that the defendant acted recklessly or caused harm intentionally. That is, nothing
went beyond the reasonable expectations of a reasonable person. Therefore, there was no problem of allocating
degree of fault; thus, the comparative negligence statute did not apply, and Kendra was barred by her assumption of
risk.

For an advanced class, it may be noted that there is confusion in the law as to the relationship of contributory
negligence to assumption of risk. This typically results from failing to distinguish between whether the plaintiff was
negligent in acting as the plaintiff acted or whether the defendant was at fault. Justice Frankfurter of the U.S.
Supreme Court has commented on this confusion: “The phrase ‘assumption’ is an excellent illustration of the extent
to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its
lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and
sometimes contradictory ideas.” Tiller v Atlantic Coast Line RR Co., 318 US 54, 68, 87 L Ed 610, 143 ALR 967
(1943), concurring opinion.
14. Duty; causation. The court of appeals reversed the directed verdict holding that a ship owner, however, may have a
higher duty of care than a land owner, depending on the danger. The case was remanded for trial with the jury to
decide whether there was a higher duty of care to be imposed on the cruise line. [Kalendareva v. Discovery Cruise
Line Partnership, 798 So. 2d 804 (Fla. App.)]

15. Requirement of duty for tort liability. The court held that there was no liability because there was no duty to
communicate any warning. The court reached this result on the grounds that psychiatry is not such a precise science
that the doctor would know that a real danger existed, and it would tend to undermine the confidentiality of the
psychiatrist-patient relationship if the psychiatrist were required to give warnings.

A dissenting opinion points out that the majority of the court first decided that it desired that there be no liability and
then worked backward to justify that result by saying that there was no duty. It can be pointed out that in many
situations, it is obvious that a court makes up its mind as to the desired result, then works backward to explain that
result in a way that looks logical. One is reminded of the cynic’s definition of a statistician: “A [person] who draws a
mathematically straight line from an unwarranted assumption to a foregone conclusion.”

The Florida statutes were amended in 1988 to protect the psychiatrist who concludes that a threat made by his
patient will be carried out. The statutes now provide that “the psychiatrist may disclose patient communications to
the extent necessary to warn any potential victim or to communicate the threat to a law enforcement agency. No civil
or criminal action shall be instituted, and there shall be no liability on account of disclosure of otherwise confidential
communications by a psychiatrist in disclosing a threat pursuant to this section [of the statute].” [Boynton v.
Burglass, 590 So. 2d 446 (Fla. App.)]

LAWFLIX

Class Action (1991) (R)

Movie that depicts the magnitude of damages and recovery when multiple injuries occur. Provides insights on tort reform
and the ethics of lawyers. Students can gain insight into the magnitude of discovery and evidence.

Notting Hill (1999) (PG-13)

A story of famous star gets guy, dumps guy, gets guy back, dumps guy again, and then guy dumps famous star, and on
and on. But, the guy owns a bookstore that sells travel books and he has a shoplifter. Hugh Grant, as the guy, illustrates
perfection in exercising the shopkeeper's privilege.

To access additional videos that illustrate business law concepts, visit www.cengage.com/blaw.dvl.

© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management
system for classroom use.