Clarkson14e - PPT - ch06 U2 TORTS CRIMES. Tort Law.

BUSINESS LAW
TEXT AND CASES

Fourteenth Edition
CLARKSON MILLER CROSS 

 

CHAPTER 6: TORT LAW

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
§1: THE BASIS OF TORT LAW (1 OF 6)
 Tort: A civil wrong, not arising from
a breach of contract or other
agreement or a breach of a legal
duty, proximately causing another
person harm or injury.
 Purpose of Tort Law: To provide a
remedy (damages) for injury to a
protected interest. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 2
THE BASIS OF TORT LAW (2 OF 6)
 Damages Available in Tort Actions:
Compensatory: Reimburse plaintiff for
actual losses.
• Special: For quantifiable losses, such
as medical expenses, lost wages, and
benefits.
• General: For nonmonetary aspects,
such as pain, suffering, and
reputation.  3
 Damages Available in Tort Actions:
Punitive: Punish the wrongdoer and
deter similar conduct in the future.
 Legislative Caps on Damages: More
than twenty-five U.S. states have caps
on the amount of damages—both
punitive and general—that can be
awarded to the plaintiff.
 Classification of Torts:
Two broad classifications of torts:
intentional torts and unintentional
torts (those involving negligence).
Classification of a tort depends largely
on how the tort occurs and the
surrounding circumstances.
 Defenses:
The defendant can raise a number of
legally recognized defenses.
A successful defense releases the
defendant from partial or full liability
for the tortious act.
Available defenses vary depending on
the tort involved.
§2: INTENTIONAL TORTS
AGAINST PERSONS (1 OF 23)
 Intentional Tort: The tortfeasor
(person committing the tort) must
“intend” to commit the act:
He intended the consequences of his
act; or
He knew with substantial certainty that
certain consequences would result. 
INTENTIONAL TORTS
 Transferred Intent: Intent of
tortfeasor is transferred when he
intends to harm person “A” but
unintentionally harms person “B” as
well.
INTENTIONAL TORTS
 Assault:
 Any intentional and unexcused threat of
immediate harmful or offensive contact—
whether words or acts—that create a
reasonably believable threat.
 No physical contact is necessary for an
assault to occur.
INTENTIONAL TORTS
 Battery is the completion of the
assault:
 It is unexcused and harmful or offensive
physical contact intentionally performed.
 The contact can be made by the defendant
or by some force set in motion by the
defendant.
INTENTIONAL TORTS
 False Imprisonment:
 The intentional confinement of another
person or restraint of another person’s
activities without justification.
 The confinement may occur through the
use of physical barriers, physical restraint,
or threats of physical force.
INTENTIONAL TORTS
 Infliction of Emotional Distress: An
intentional act that amounts to
extreme and outrageous conduct
resulting in severe emotional distress
to another.
 The act must be extreme and so outrageous
that it exceeds the bounds of decency
accepted by society in order to be
actionable. 
INTENTIONAL TORTS
 Infliction of Emotional Distress:
 The First Amendment’s guarantee of
freedom of speech limits emotional distress
claims when the outrageous conduct consists
of speech about a public figure.
INTENTIONAL TORTS
 Defamation: Defamation involves
wrongfully hurting a person’s good
reputation.
 Law imposes duty to refrain from making false
statements of fact about others.
 Orally breaching this duty is slander;
breaching it in print or media (and Internet) is
libel. 
INTENTIONAL TORTS
 To establish defamation, the following
elements must be proved:
 The defendant made a false statement of fact.
 The statement was understood as being about the
plaintiff and tended to harm the plaintiff’s
reputation.
 The statement was published to at least one person
other than the plaintiff.
 If the plaintiff is a public figure, she or he must also
prove actual malice. 16
INTENTIONAL TORTS
 Defamation: Published statement
must be a fact. Statements of
opinions are protected speech under
the First Amendment and not
actionable.
 Publication Requirement: The false
statement must hold an individual up to
hatred, contempt, or ridicule in the
community and be “publicized”
INTENTIONAL TORTS
 Damages for Libel: General
damages are presumed and the
plaintiff does not have to prove
actual injury.
 Damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation, and emotional distress.
INTENTIONAL TORTS
 Damages for Slander: The plaintiff must
prove special damages (actual economic
loss).
Slander Per Se is an exception and no
proof of damages is necessary when the
statement involves a loathsome
communicable disease; business
improprieties; serious crime; or serious
sexual misconduct.
INTENTIONAL TORTS
 Defenses to Defamation:
Truth is generally an absolute defense for
defamation.
Privileged (or Immune) Speech.
 SEE MCKEE V. LAURION (2013).
Absolute Privilege.
Qualified Privilege.
INTENTIONAL TORTS
 Defenses to Defamation:
Absence of Malice: False and defamatory
statements made about public figures are
privileged unless they are made with actual
malice (knowledge of falsity OR reckless
disregard of the truth or falsity).
INTENTIONAL TORTS
 Invasion of Privacy: Common law
recognizes four acts that qualify as
improperly infringing on another’s
privacy. 
INTENTIONAL TORTS
 Invasion of Privacy:
Intrusion on individual’s affairs or seclusion.
Publication of information that places a
person in false light.
Public disclosure of private facts.
Appropriation: Use of another’s name,
likeness, or other identifying characteristic
for commercial purposes without the
owner’s consent.
INTENTIONAL TORTS
 Fraudulent Misrepresentation
(Fraud): Intentional deceit, usually for
personal gain. This tort has several
elements.
 Misrepresentation of material fact.
Intent to induce another to rely on the
misrepresentation.
Justifiable reliance by innocent party. 
24
INTENTIONAL TORTS
 Fraudulent Misrepresentation
(Fraud):
Damages suffered as a result of
reliance.
A causal connection between
misrepresentation and the injury
suffered.
 Fraud is more than just puffery
INTENTIONAL TORTS
 Abusive or Frivolous Litigation:
 Torts related to abusive or frivolous
litigation include:
 Malicious prosecution.
 Abuse of process.
INTENTIONAL TORTS
 Wrongful Interference with a
Contractual Relationship Occurs When:
Defendant knows about contract
between A and B;
Intentionally induces either A or B to
breach the contract; and
Defendant benefits from breach.
INTENTIONAL TORTS
 Wrongful Interference with a Business
Relationship Occurs When:
Established business relationship;
The defendant uses predatory methods
to cause the relationship to end; and
Plaintiff suffers damages.
INTENTIONAL TORTS
 Defenses to Wrongful Interference:
The interference was justified or
permissible.
Bona fide competitive behavior (such
as marketing) is a permissible
interference even if it results in the
breaking of a contract.
INTENTIONAL TORTS
§3: INTENTIONAL TORTS
AGAINST PROPERTY (1 OF 8)
 Trespass to Land: Occurs when a person,
without permission:
Physically enters onto, above, or below
the surface of another’s land; or
Causes anything to enter onto the land;
or
Remains—or permits anything to remain
—on the land. 
INTENTIONAL TORTS
 Liability for Harm: A trespasser is generally
liable for damage caused to the property and
generally cannot hold the owner liable for
injuries sustained on the premises.
Many jurisdictions use a reasonable duty of
care rule that varies depending on the
status of the parties. Property owners may
be liable for objects that attact children
under the attractive nuisance doctrine. 32
INTENTIONAL TORTS
 Defenses to Trespass to Land:
The trespass is warranted (necessary) to
assist some in danger.
The trespasser is a licensee (such as a
utility service person).
INTENTIONAL TORTS
 Trespass to Personal Property:
Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
• Conversion. 
• Failure to return property. 
INTENTIONAL TORTS
 Conversion:
Wrongful possession or use of property
without permission.
 Failure to Return Goods:
Even if the rightful owner consented to

the initial taking of the property, a
failure to return the property may still
be conversion.
INTENTIONAL TORTS
 Disparagement of Property: Occurs
when economically injurious falsehoods
are made about another’s product or
property rather than about another’s
reputation. 
INTENTIONAL TORTS
 Disparagement of Property:
Slander of Quality: Publication of false
information about another’s product
(trade libel).
Slander of Title: Publication falsely
denies or casts doubt on another’s legal
ownership of property, resulting in
financial loss.
INTENTIONAL TORTS
§4: UNINTENTIONAL TORTS—
NEGLIGENCE (1 OF 11)
 Unintentional Tort: A wrongful act the
tortfeasor committed without knowing its
wrongfulness or without intending to commit
the act.
 Negligence: Failure to live up to a required
duty of care that a reasonable person would
exercise in similar circumstances. Intent is
not required, only the creation of risk of the
consequences experienced by the plaintiff.
UNINTENTIONAL TORTS—
 The plaintiff must prove the following:
Duty: Defendant owed plaintiff a duty of
care.
Breach: Defendant breached that duty.
Causation: Defendant’s breach caused
the injury.
Damages: Plaintiff suffered legal injury.
 Duty of Care and Breach: The courts
consider the following factors when
determining whether a duty of care was
breached:
The nature of the act.
The manner in which the act was
performed.
The nature of the injury.
 Reasonable Person Standard: The degree
of care expected of a hypothetical
“reasonable person;” not necessarily how
this person would act, rather how this
person should act.
Degree of care varies and depends on the
defendant’s occupation or profession, her
or his relationship with the plaintiff, and
other factors. 42
 Duty of Landowners:
Landowners must exercise reasonable
care to protect persons on their
property from harm—even trespassers.
Business owners must warn invitees of
potential harm on their premises.
Obvious risks require no warning.
 Duty of Professionals:
Professionals may owe higher duty of
care based on special education, skill,
or intelligence.
Breach of duty is called professional
malpractice.
 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. Courts ask two
questions:
Is there a causation in fact? 
Was the act the proximate (or legal)
cause of the injury? 
 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.
 Proximate Cause: When the causal
connection between the act and injury is

strong enough to impose liability.
 SEE PALSGRAF V. LONG ISLAND RAILROAD CO.
(1928). 46
 Forseeability:
Defendant owes duty to protect plaintiff
from foreseeable risks that defendant
knew or should have known about.
• A foreseeable risk is one in which the
reasonable person would anticipate
and guard against it. 
 The Injury Requirement 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.
 Good Samaritan Statutes:

Protects someone who renders aid to
an injured person from being sued for
negligence.
 Dram Shop Acts:
Liability for injuries may be imposed

upon bartender and bar owner.
§5: DEFENSES TO NEGLIGENCE (1 OF 5)
 Assumption of Risk: A plaintiff that

knows the risk and voluntarily engages
in the act anyway may not recover from
the alleged tortfeasor.
 Risk may be assumed by express
agreement or be implied by the
plaintiff’s knowledge and conduct.
 CASE 6.3 TAYLOR V. BASEBALL CLUB OF SEATTLE,
LP (2006).
DEFENSES TO NEGLIGENCE (2 OF 5)
 Superseding Cause: An unforeseeable,

intervening act that breaks the causal
link between defendant’s act and
plaintiff’s injury, relieving defendant of
liability.
 Contributory Negligence: Under common

law doctrine of contributory negligence, if
the plaintiff caused his injury in any way,
he was barred from recovery.
Comparative Negligence: Most states
have replaced contributory negligence
with the doctrine of comparative
negligence.
 Comparative Negligence: Comparative

negligence computes liability of plaintiff
and defendant and apportions
damages.
Pure comparative negligence allows
plaintiff to recover even if his liability
is greater than that of defendant. 
 Comparative Negligence:
Modified Comparative Negligence:
Percentage of damages that the plaintiff
causes are subtracted from the total
award.
• 50 Percent Rule: Plaintiff recovers only
if liability is less than 50%.
• 51 Percent Rule: Plaintiff recovers
nothing if liability is greater than 50%.

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BUSINESS LAW

TEXT AND CASES

CLARKSON MILLER CROSS 

CHAPTER 6: TORT LAW

Even if the rightful owner consented to

connection between the act and injury is

 The Injury Requirement and Damages:

 Good Samaritan Statutes:

Liability for injuries may be imposed

 Assumption of Risk: A plaintiff that

 Superseding Cause: An unforeseeable,

 Contributory Negligence: Under common

 Comparative Negligence: Comparative

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