Torts

Tort Means “Wrong”

A tort is a violation of a duty imposed by

civil law.

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 §1: Basis of Tort Law
Doing business today involves risks, both
legal and financial.
A tort is a civil injury designed to provide
compensation for injury to a legally
protected, tangible or intangible, interest.
There are intentional and unintentional
(negligence) torts.

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§2: Intentional Torts Against Persons
and Business Relationships
The person committing the tort, the
Tortfeasor or Defendant, must “intend” to
commit the act. Intend means:
üTortfeasor intended the consequences of her act;
or
üShe knew with substantial certainty that certain
consequences would result.

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 Types of Intentional Torts
Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.

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 Assault
Intentional, unexcused act that:
üCreates a reasonable apprehension of fear, or
üImmediate harmful or offensive contact.
NO CONTACT NECESSARY.

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 Battery
Battery is the completion of the Assault:
üIntentional or Unexcused.
üHarmful, Offensive or Unwelcome.
üPhysical Contact.

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 Defenses to
Assault & Battery
Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.

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 False Imprisonment
The Intentional confinement or restraint.
Of another person’s activities.
Without justification.
Merchants may reasonably detain
customers if there is probable cause.

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 Intentional Infliction of
Emotional Distress
An intentional act that is:
üExtreme and outrageous, that
üResults in severe emotional distress in another.
Most courts require some physical
symptom or illness.

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 Defamation
Right to free speech is constrained by
duty we owe each other to refrain from
making false statements.
Orally breaching this duty is slander;
breaching it in print or media is libel.

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 Defamation
Gravamen of defamation is the
“publication” of a false statement that
holds an individual up to hatred,
contempt or ridicule in the community.
Publication requires communication to a
3rd party.

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 Defamation-Damages [1]
Damages for Libel.
üGeneral Damages are presumed; Plaintiff does
not have to show actual injury.
üGeneral damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.

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 Defamation-Damages [2]
Damages for Slander.
üRule: Plaintiff must prove “special damages”
(actual economic loss).
üExceptions for Slander Per Se (loathsome
disease, business improprieties, serious crime,
non-chaste).

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 Defamation-Defenses
Truth is generally an absolute defense.
Privileged (or Immune) Speech.
üAbsolute: judicial & legislative proceedings.
üQualified: Employee Evaluations.

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 Invasion of Privacy
Every person has a fundamental right to
solitude freedom from public scrutiny.
üUse of Person’s Name or Likeness.
üIntrusion on Individual’s Affairs or Seclusion.
üPublication of Information that Places a Person
in False Light.
üPublic Disclosure of Private Facts.

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 Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.

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 Fraud
Fraudulent misrepresentation involves
intentional deceit:
üMisrepresentation of material fact;
üIntent to induce another to rely;
üJustifiable reliance by innocent party;
üDamages as a result of reliance;
üCausal connection.

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 Wrongful Interference
Tort that interferes with a contractual
relationship.
Occurs when:
üDefendant knows about contract between A and B;
üIntentionally induces either A or B to breach the
contract; and
üDefendant benefits from breach.

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 Wrongful Interference
With a Business Relationship occurs
when:
üEstablished business relationship;
üTortfeasor, using predatory methods, causes
relationship to end; and
üPlaintiff suffers damages.
Bona fide competitive behavior is a
defense to this tort.

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 §3: Intentional Torts
to Property
Trespass to land occurs when a person,
without permission:
üPhysically enters onto, above or below the
surface of another’s land; or
üCauses anything to enter onto the land; or
üRemains, or permits anything to remain, on the
land.

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Intentional Torts to Property [2]
Trespass to personal property is the
Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.

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 §4: Negligence
Tortfeasor does not intend the consequences of
the act or believes they will occur.
Actor’s conduct merely creates a foreseeable
risk of injury. Analysis:
üDefendant owed Plaintiff a duty of care;
üDefendant breached that duty;
üPlaintiff suffered legal injury;
üDefendant’s breach caused the injury.

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 Duty of Care
Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant
knew or should have known about.
Courts use reasonable person standard
(jury) to determine whether duty exists.

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Duty of Care: Foreseeability
The consequences of an act are legally
foreseeable if they are consequences that
typically occur in the course of event.
Whether an act is foreseeable is generally
considered a matter of fact determined
by the reasonable person standard (jury).

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 Duty of Care
Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
Professionals may owe higher duty of
care based on special education, skill or
intelligence. Breach of duty is called
professional malpractice.

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 Injury and Damages
To recover, Plaintiff must show legally
recognizable injury.
Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.

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 Causation
Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
üCausation in Fact, and
üProximate Cause.

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 Causation in Fact
Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.

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 Proximate Causation
An act is the proximate (or legal) cause of
the injury when the causal connection
between the act and injury is strong
enough to impose liability.
Foreseeability of injury is an important
factor.
Think of proximate cause as an unbroken
chain of events.

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Ex: Factual Cause & Foreseeable Harm
Mechanic fails
to fix Car Factual
Mechanic cause and
customer’s accident,
is liable to foreseeable
brakes, which car hitting
cyclist type of
causes... bicyclist
injury

Noise from Factual

Car Mechanic is cause, but
accident startles
accident, NOT liable no
someone who
car hitting for falling foreseeable
falls out a person
bicyclist type of
window injury

Car accident, Mechanic No

car Bicyclist hits is NOT
pothole and factual
does not hit liable to cause
bicyclist crashes cyclist
 Defenses to Negligence

Assumption of Risk.
Superseding Intervening Cause.
Contributory or Comparative
Negligence.

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 Assumption of Risk
Plaintiff has adequate notice and
understanding of the risks associated with
an activity.
He knowingly and willingly engages in the
act anyway.
Plaintiff, in the eyes of the law, assumes
the risk of injuries that fall within the
scope of the risk understood.

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 Superseding Cause
act and Plaintiff’s injury relieving DeA
unforeseeable, intervening act that occurs
after Defendant’s act that breaks the
causal relationship between Defendant’s
fendant of liability.
If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.

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 Contributory Negligence [1]
Under common law, if Plaintiff if any way
caused his injury, he was barred from recovery.
Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
The operative concept in comparative
negligence is that one cannot recover from
another for any injuries one has caused to
oneself.

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 Comparative Negligence
In determining liability, the amount of
damages a Plaintiff causes to herself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
However, if Plaintiff is more than 50%
liable, she recovers nothing.

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Donoghue V Stevenson case

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 Vietnamese case
The fly-in-bottle lawsuit
Tan Hiep Phat

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 Case 1: Roach v. Stern
(Intentional Infliction of Emotional Distress)

FACTS:
üRoach (“Debbie Tay”) was a guest on The Howard Stern
Show on which she discussed her purported sexual
encounters with female aliens.
üAfter Tay’s death, her sister had Tay’s body cremated and
gave a portion of the remains to Tay’s friend, Chaunce
Hayden.
üHayden later appeared on Stern’s show and the participants
in the program handled and joked about Tay’s remains.
üTay’s brother and sister sued Stern for intentional infliction
of emotional distress. Court dismissed the case and
Plaintiffs appealed.
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 Case 1: Roach v. Stern
(Intentional Infliction of Emotional Distress)

HELD: REVERSED. FOR TAY/PLAINTIFFS.

ü“[T]o impose liability for the tort of intentional
infliction of emotional distress, the conduct
complained of must be:
• so outrageous in character, and
• so extreme in degree, as to go beyond all possible bounds of
decency, and
• to be regarded as atrocious, and utterly intolerable in a
civilized community.”
üIn this case, the plaintiffs sufficiently pleaded a cause
of action, including the element of outrageous
conduct.
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Case 2: Tiberino v. Spokane County
(Invasion of Privacy)

FACTS:
üTiberino worked for Spokane County, Washington.
According to county policy, the employer could monitor
all e-mail and county equipment was not for personal
use.
üTiberino was later discharged for unsatisfactory work
performance related to her use of e-mail for personal
matters and threatened to sue the county.
üThe media asked ex-employer for copies of the e-mail.
üTiberino sued the county to stop the release. The court
refused to stop it. Tiberino appealed.
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Case 2: Tiberino v. Spokane County
(Invasion of Privacy)

HELD: REVERSED. FOR TIBERINO.

üAlthough Tiberino’s e-mail messages were “public
records,” that they were exempt from public disclosure
as personal information.
ü“[T]he public has an interest in seeing that public
employees are not spending their time on the public
payroll pursuing personal interests. But it is the
amount of time spent on personal matters, not the
content of personal e-mails or phone calls or
conversations, that is of public interest.”

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Case 3: Martin v. WalMart Stores
(Duty of Care)

FACTS:
üWhile shopping at Wal-mart, Martin slipped on some
loose shotgun shell pellets next to a display of the
shells in the main aisle (“action alley”) and fell. At the
time, the department was understaffed.
üMartin suffered permanent injuries. to his legs and feet
that doctors diagnosed as permanent.
üMartin sued Wal-Mart and the jury found for Martin.
Wal-mart appealed. seeking damages. The jury found
in his favor, and the court denied Wal-Mart’s motion
for a directed verdict. Wal-Mart appealed.

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Case 3: Martin v. WalMart Stores
(Duty of Care)

HELD: AFFIRMED. FOR MARTIN.

üEight Circuit held this case involved the self-service
store exception to the traditional slip-and-fall rule.
üA self-service store has notice that certain dangers
arising through customer involvement are likely to
occur and has a duty to anticipate them.
üHere, Wal-Mart had constructive notice of the pellets
on the floor in the main aisle because it was
foreseeable that merchandise would spill.
üWal-Mart owed duty of care to maintain sufficient
staffing and protect the aisles.

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Case 4: Palsgraf v. Long Island RR
(Foreseeability and Proximate Cause)

FACTS:
üMan carrying a unmarked package tried to board a
moving train from a crowded station platform, railroad
employees on the train and the platform tried to help
him.
üThe man dropped his package, which contained
fireworks, and it exploded, causing scales on the
platform to fall on Mrs. Palsgraf, injuring her.
üPalsgraf sued. Court held for Palsgraf. Railroad
appealed.

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Case 4: Palsgraf v. Long Island RR
(Foreseeability and Proximate Cause)

HELD: REVERSED. FOR RAILROAD.

üThe question before the appellate court was as follows: Does
the duty of care extend only to those who may be injured as
a result of a foreseeable risk, or does it extend also to a
person who is outside the zone of danger and whose injury
could not reasonably have been foreseen?
üThe railroad was not negligent toward her because “[n]othing
in the situation gave notice ” of the risk to Palsgraf.
üThe conduct of the railroad employees may have been
negligent toward the man with the package, but it was not a
wrong in relation to Palsgraf who was standing far away.

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