Elements of Torts

1. Elements of Torts Chapter 6

2. The Role of Tort Law • Definition • Comes from word for “wrong” in French • Civil wrong, other than a breach of contract, for which the law provides a remedy • Breach of a duty owed to another that causes harm • Compensation for injuries wrongfully inflicted by the defendant on the plaintiff • Civil, not criminal law • Law is determined in each state – rules vary. • However, the basic principles are similar among all states. • Remedies should place injured party in the position he/she would have been in prior to the tort. • Fear of tort action deters injurious behavior by others. • Punitive damages punish malicious/extremely reckless behavior.

3. TORTS BASED ON NEGLIGENCE • Unintentional careless conduct that creates an unreasonable risk of harm to others • Breach of duty of care • Owed to the plaintiff • Breach through an act or omission • Causation (causal connection to the injury) • Injury/Damages • There can be a negligence action even if there was no intent to do harm

4. Negligence: Duty of Care and the Reasonable Person Standard • The standard is how persons in the relative community ought to behave • One must be reasonable at all times, under all circumstances • Not liable for everything – only “unreasonable” acts • Standard: “What a reasonable person would do in same or similar circumstances” • Applies to professions – reasonable CPA, MD, attorney, etc.

5. Squish La Fish, Inc. v. Thomco Specialty Products, Inc. • Squish holds patent on “Tuna Squeeze” (squeezes water or oil from tuna cans); ProPack was hired to assist with store displays. • ProPack brought in Thomco for advice on adhesive for the displays. • Thomco said the adhesive would wash off; Squish relied on the advice, but adhesive wouldn’t wash off. • A Squish buyer was not happy with the situation; canceled deal. • Squish sued Thomco for negligent misrepresentation. • District Court held for Thomco; Squish appealed. • Held: Reversed and remanded for disputed issues to go before the trial court. There may have been reliance by Squish through ProPack on Thomco’s representations.

6. Causation • Causation between a party’s act & another’s injury. • Cause in factshows the person’s conduct is the actual cause of the event that created the injury (some courts call this the “but for” test[sine qua non rule]). • Proximate causeindicates that the liable party’s actions bear a reasonable relationship to the negligent conduct. • In some cases, case is so obvious,res ipsa loquitur(“the thing speaks for itself”) applies. • If consequences are too remote – no liability. • If an intervening or superseding event – no liability. • Chain of events created by party’s acts must be foreseeable. • Some states replace proximate cause with substantial factor test in bringing about the injury.

7. Palsgraf v. Long Island RR Co.(1928 Landmark Case) • Palsgraf waits on the platform for a train; another train begins to leave the station; man carrying a package runs to catch it; jumps on the train; looks like he might fall. • Guards help pull him up on train. He drops the package which contains fireworks that explode • Shock from the explosion causes scales located on the platform to fall, injuring Palsgraf who sues RR for negligence of its employees • Jury finds for Palsgraf; appellate court affirms; RR appeals. • Issue: Is it foreseeablethat the assistance by the guards would causePalsgraf’s injury through the falling scales? • Held: No. Nothing in the situation would suggest such a result. RR not negligent. No proximate cause. Case reversed and dismissed.

8. Assumption of Risk The injured party knew or should have known of the risk and voluntarily assumed it. Complete bar to the plaintiff’s case Contributory Negligence Plaintiff’s action contributed to the injuries. Plaintiff’s case is completely barred. Comparative Negligence Damages are reduced by the % of injuries caused by plaintiff’s own negligence. Most States: Comparative Negligence 50% Rule Defenses To A Negligence Action

9. McCune v. Myrtle Beach Indoor Shooting Range • McCune played paintball at Myrtle Beach Indoor Shooting Range. • Used protective face mask provided by the Range. • Signed a liability waiver, releasing the Range from all known or unknown dangers, with the exception of gross negligence on the part of the Range. • She complained that mask did not fit well; restricted her range of vision. • Mask caught on branch of a tree, lifting it off her face. • She was hit in eye by paintball and blinded. • Sued Range for negligence of not providing a mask that would fit better and give her protection. • Trial Court granted summary judgment in favor of Range. She appealed. • HELD: Affirmed. • Agreement was voluntarily signed that she 1) assumed the risks, known or unknown and 2) she released Range from liability, even injuries sustained because of Range’s own negligence. • McCune voluntarily entered into the release of liability. • This is not construed as an exculpatory agreement.

10. INTENTIONAL TORTS AGAINST PERSONS • Establishing Intent • Person knew (or should have known) what he/she was doing • Intent to do the act which reasonably would result in harm to the plaintiff • Knew /should have known the possible consequences of an action • Willful misconduct

11. Intentional Torts Against Persons • Assault • Battery • False Imprisonment • Infliction of Emotional Distress • Invasion of Privacy • Defamation: Libel and Slander • See Exhibit 6.3

12. Intent • State of mind of defendant • Person knew what he/she was doing • Person “knew, or should have known, the possible consequences of the act” • Knowledge that certain results would likely occur • Willful acts invading protected interests • A reasonable person would have known that the action would create harmful circumstances

13. ASSAULT • Placing plaintiff in fear of immediate bodily injury • Intent to act to cause a harmful or offensive contact • Plaintiff has imminent apprehension or fear • Fear: if a reasonable person under the same or similar circumstances would have apprehension of bodily harm or offensive contact • Direct threats?Usually an assault • Pointing a gun?Yes • Point a gun while other person sleeps?No assault • Letter threats?No assault (“immediate” requirement usually not met) • Phone threats?Maybe. How close is the caller? On a cell phone outside the door or window?

14. Unlawful “touching” Intentional physical contact without consent Use of fist, hand, or kicking Use of weapons, i.e. guns or stick Unwanted kiss? Has been held to be a battery Assault & Battery often linked together in a lawsuit Defenses Consent Privilege Self defense Defense of others/Defense of property Most states have “stand your ground” doctrines No requirement to retreat Allow force for force & deadly force for deadly force See Fuerschbach v. Southwest Airlines BATTERY

15. Defense by businesses regarding detention of shoplifters: Restraint was in a reasonable manner Restraint was in a reasonable time Basis for the detention was valid See Forgie-Buccioni v. Hannaford Brothers Intentional holding, detaining or confinement Freedom to come and go is restrained Restraint May be physical May be mental (i.e. through verbal threats) Lawsuits often arise from detention of suspected shoplifters False Imprisonment (False Arrest)

16. Infliction of Emotional Distress • Intentional conduct: So outrageous, it creates severe mental or emotional distress • Petty insults, annoying behavior, bad language?Usually not actionable; we must have “tough skin”. • Bill collectors or landlords who badger, are profane, or threaten lay the background for a lawsuit. • EX: Louisiana court gave an award to a woman who found her comatose husband being chewed by rats in a hospital

17. Invasion of Privacy • Infringement on a person’s right of solitude & freedom from unwarranted public exposure • Use of a person’s name or picture without permission • Intrusion on solitude (i.e. wiretap) • Placing a person in false light (publishing a false story) • Public exposure of private facts (debts, drug use) • Defenses • Right of privacy waived by public figures, politicians, entertainers, sports personalities, etc. • Information about an individual taken from public files or records

18. Defamation (Libel/Slander) • Definition: An intentional false communication that injures a person’s or company’s reputation or good name • Elements of the Tort: • False or defamatory statement • Published or communicated to a third person • Causing harm or injury to the plaintiff • If person who has false statement said TO THEM, then tells a 3rd party: “Self publication” and no tort. • Defamation per se: Presumption of harm • No proof of harm/injury is necessary • Examples: person has committed a crime; has a sexually communicable disease; carries out business activities improperly; etc. Workplace Defamation: Information given about job performance or info. spread within business unnecessarily about an employee

19. Defenses to Defamation • Truthis a complete defense in some states • Absolute privilegeis an immunity • Legislators in committee sessions • Participants in judicial proceedings • Conditional privilegeeliminates liability if the false statement was published in good faith. • If there is no malice • In order to protect a person’s legitimate interests • Constitutional privilege • Members of the press may publish “opinion” about public officials, figures, or those of public interest if there is no actual malice (“absence of malice”)