CHAPTER 5

INTENTIONAL TORTS
AND NEGLIGENCE

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 Introductory Concepts

• Tort: French for “wrong.”

• Tort law provides recourse for variety
of injuries and provides remedies for
them.

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 Introductory Concepts (continued)

• Injured party brings civil lawsuit to

seek compensation for a wrong done
to the party or the party’s property.
–Tort damages are monetary damages
that compensate the injured party.
–Punitive damages available for certain
torts.

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 Tort law imposes a duty on persons
and business agents not to
intentionally or negligently injure
others in society.

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 Categories of Torts

Intentional Torts

Unintentional Torts
(Negligence)

Strict Liability Torts

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 Intentional Torts Against Persons

• Law protects a person from

unauthorized touching, restraint, or
other contact.
• Law protects a person’s reputation and
privacy.
• Violations of these rights are actionable
as torts.

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 Intentional Torts Against Persons
(continued)

• Assault
–Threat of immediate harm or offensive contact;
or
–Any action that arouses reasonable
apprehension of imminent harm.
–Actual physical contact is unnecessary.

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 Intentional Torts Against Persons
(continued)

• Battery
–Unauthorized and harmful or offensive
physical contact with another person.
–Direct physical contact between victim and
perpetrator unnecessary.
•E.g., throwing a rock, poisoning a drink as battery.
–May accompany assault.

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 Intentional Torts Against Persons
(continued)

• Doctrine of Transferred Intent

–Party A intends to harm party B, but actually
injures Party C.
–Law transfers perpetrator’s intent from target
to actual victim.
–Party C can properly sue perpetrator.

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 Intentional Torts Against Persons
(continued)

• False Imprisonment
–Intentional confinement or restraint of another
person without authority or justification and
without that person’s consent.
•Physical force
•Barriers
•Threats of physical violence
•False arrest

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 Intentional Torts Against Persons
(continued)

• False Imprisonment (continued)

–Threat of future harm or moral pressure not
enough.
–Must be complete imprisonment.
•Locking only one of several doors not sufficient.

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 Intentional Torts Against Persons
(continued)

• False Imprisonment (continued)

–Merchant Protection Statutes - merchants
may stop, detain, and investigate suspected
shoplifters if:
•There are reasonable grounds for suspicion,
•Suspects are detained for only reasonable time, and
•Investigations are conducted in reasonable manner.

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 Intentional Torts Against Persons
(continued)

• Misappropriation of the Right to

Publicity
–Attempt by another person to appropriate a
living person’s name or identity for commercial
purposes.
–Also known as tort of appropriation.

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 Intentional Torts Against Persons
(continued)

• Invasion of the Right to Privacy

–Violation of a person’s right to live his or her life
without being subjected to unwanted and
undesired publicity.
•E.g., secretly taking photos with cell phone camera in
locker room; wiretapping a telephone; or reading
person’s email without authorization
–Placing person in a “false light.”
•E.g. signing a person’s name to objectionable letter.

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 Intentional Torts Against Persons
(continued)

• Defamation of Character
–Plaintiff must prove:
•Defendant made an untrue statement of fact
about plaintiff; and
•Statement was intentionally or accidentally
published to a third party.

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 Intentional Torts Against Persons
(continued)

• Defamation of Character (continued)

–Slander – oral defamation of character.
–Libel – false statement appears in a letter,
newspaper, magazine, book, photo, video, etc.

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 Intentional Torts Against Persons
(continued)

• Defamation of Character (continued)

–Public officials, public figures cannot
recover for defamation unless they can prove
that the defendant acted with actual malice.
•Elected officials, movie stars, sports figures,
other celebrities

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 Intentional Torts Against Persons
(continued)

• Disparagement
–Untrue statement made about products,
services, property, or reputation of a business.
–Also called product disparagement, trade libel,
or slander of title.

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 Intentional Torts Against Persons
(continued)

• Intentional Misrepresentation (Fraud)

–Wrongdoer deceives another person out of
money, property, or something of value.
–Injured party can recover damages.

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 Intentional Torts Against Persons
(continued)

• Intentional Misrepresentation (Fraud)

(continued)
–Elements:
•Defendant made a false representation of
material fact.
•Defendant knew representation was false
and intended to deceive (scienter).
•Plaintiff justifiably relied on
misrepresentation.
•Plaintiff actually injured.

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 Intentional Torts Against Persons
(continued)

• Intentional Infliction of Emotional

Distress
–Defendant’s extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to another person.
•E.g., outrageous collection agency practices
–Also known as tort of outrage.

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 Intentional Torts Against Persons
(continued)

• Malicious Prosecution
–Frivolous lawsuit maliciously brought.
–Prevailing defendant sues original plaintiff to
recover damages for injuries.
–Difficult to prove.

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 Unintentional Torts (Negligence)

• Unintentional Tort
–A person is liable for harm that is the
foreseeable consequence of his or her actions.

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 Unintentional Torts (Negligence) (continued)

• Negligence
–Omission to do something which a reasonable
person would do, or doing something which a
prudent and reasonable person would not do.

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 Unintentional Torts (Negligence) (continued)

Elements:
• The defendant owed a duty of care to the
plaintiff.
• The defendant breached the duty of care.
• The plaintiff suffered injury.
• The defendant’s negligent act caused the
plaintiff’s injury.

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 Unintentional Torts (Negligence) (continued)

• Duty of Care
–Obligation not to cause any unreasonable
harm or risk of harm.
•Reasonable person standard.
•Defendants with a particular expertise or
competence are measured against a
reasonable professional standard.

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 Unintentional Torts (Negligence) (continued)

• Breach of Duty – a failure to exercise

care or to act as a reasonable person
would act.
–E.g., driver exceeding speed limit, camper
throwing lit match on ground in forest, or
surgeon failing to “scrub up” before surgery.

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 Unintentional Torts (Negligence) (continued)

• Injury to Plaintiff
–Personal injury or damage to property.
–If defendant acted negligently but plaintiff
luckily suffered no injury, there shall be no
recovery in negligence.

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 Unintentional Torts (Negligence) (continued)

• Causation
–Causation in Fact (actual cause) and
–Proximate Cause (legal cause)

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 Unintentional Torts (Negligence) (continued)

• Actual Cause – It must be true that “but for

defendant’s negligent act, injury would not have
occurred.”
•E.g., if plaintiff was in poor health and likely would
have had the heart attack whether or not he had
taken the defendant’s drug product, the drug is not
the actual cause, and therefore, defendant shall not
be held liable.

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 Unintentional Torts (Negligence) (continued)

• Proximate Cause
–Defendant not necessarily liable for all
damages set in motion by his or her negligent
act.
–Liable only for foreseeable consequences.
•E.g., Palsgraf. “Nothing in the situation gave notice
that the … package [posed a] peril to persons thus
removed.”

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 Special Negligence Doctrines

• Professional Malpractice
–The liability of a professional who breaches his or her duty
of ordinary care.
–Reasonable professional standard
•Medical malpractice
•Legal malpractice
•Accounting malpractice

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 Special Negligence Doctrines (continued)

• Negligent Infliction of Emotional

Distress
–A tort that permits a person to recover for
emotional distress caused by the defendant’s
negligent conduct.
–Some states require physical manifestation.

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 Special Negligence Doctrines (continued)

• Negligence Per Se
–Violation of a statute that proximately causes
an injury
–Plaintiff must be within class intended to be
protected
–Statute enacted to prevent the type of injury
suffered

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 Special Negligence Doctrines (continued)

• Res Ipsa Loquitur

–“The thing speaks for itself”
–Defendant had exclusive control of situation
that caused plaintiff’s injury
–Injury would not have ordinarily occurred but
for someone’s negligence
•E.g., surgical instrument left inside patient after
surgery, or crashing elevator

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 Special Negligence Doctrines (continued)

• Good Samaritan Laws

–Protects medical professionals who stop and
render emergency first aid
•Relieves them from liability for ordinary
negligence
•No relief for gross negligence or intentional
or reckless conduct
–Laypersons not trained in CPR not covered

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 Superseding or Assumption of
Intervening the Risk
Event
DEFENSES
AGAINST
NEGLIGENCE

Contributory Comparative
Negligence Negligence

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 Superseding or Intervening Event

• An event for which defendant is not

responsible
–E.g., victim of car accident waiting for
ambulance killed by bolt of lightning

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 Assumption of Risk

• Plaintiff who voluntarily participates in risky

activity assumes the normal risks of that
activity.
–E.g., race car driver assumes risk of being
killed in crash. Does not assume risk of faultily
designed race course.

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 Contributory Negligence

• Rule in some states.

• Plaintiff who is partly at fault for his or her
own injuries cannot recover.
• E.g., jaywalker cannot recover when struck by drunk
driver.
• Exception: Last Clear Chance Doctrine

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 Comparative Negligence

• Rule in many states.

• Damages apportioned according to fault.
–Pure comparative negligence, or
–Partial comparative negligence (50% rule)

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 Strict Liability

• Liability without fault.

• A participant in a covered activity will be
held liable for any injuries caused by the
activity, whether or not he or she was
negligent.
• For abnormally dangerous activities
–E.g., crop dusting, storage of explosives, wild
animals as pets.

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 Strict Liability (continued)

Rationale:
– There are certain activities that can place
the public at risk of injury even if reasonable
care is taken.
– The public should have some means of
compensation if such injury occurs.

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