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CHAPTER 6

CHAPTER 6. Intentional Torts. Intentional Torts. Intentional Tort- Actionable civil wrong (other than contract) See Chart, p. 129 Elements Harm to Person or Property Intent Burden of Proof: Plaintiff must establish defendant’s liability by a preponderance of the evidence Damages

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CHAPTER 6

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  1. CHAPTER 6 Intentional Torts

  2. Intentional Torts • Intentional Tort- Actionable civil wrong (other than contract) • See Chart, p. 129 • Elements • Harm to Person or Property • Intent • Burden of Proof: Plaintiff must establish defendant’s liability by a preponderance of the evidence • Damages • Compensatory (to “make whole”) • Punitive (to “punish”)

  3. Damages The United States permits greater recoveries for torts while requiring lower standards of proof than other nations.

  4. Compensatory Damages Compensatory damages are generally awarded according to the amount of actual harm suffered by the plaintiff. Compensatory damages are generally awarded before punitive damages may be considered (see Cohen v. de la Cruz, 523 U.S. 213 (1998).

  5. Compensatory Damages • Mathias v. Accor, p. 117 • The court affirmed a verdict of $5,000 in compensatory damages and $186,000 in punitive damages against the defendant, a hotel chain that knowingly rented a room infested with bedbugs to the plaintiffs. Mathias stands for the idea that punitive damages should, if they are to achieve their deterrent purpose, be a higher percentage of compensatory damages when the latter are small. While the Supreme Court has made it clear that wealth is not a sufficient basis for awarding punitive damages, wealth, in the sense of resources, clearly entered into this case. Wealth enabled the defendant to mount an extremely aggressive defense. By doing so, it made litigating against it very costly, which could have made it difficult for the plaintiffs to find a lawyer willing to handle their case since it involved only modest stakes and the usual contingent fee is between 25 and 33% of the judgment. Some argue that to serve the goals of punishment and deterrence, a punitive award must be significant enough, relative to the defendant's financial resources, to hurt the defendant. Therefore, the wealthier the defendant, the greater the punitive award necessary to accomplish the goals of punishment and deterrence. However, courts generally recognize that an award must not be so excessive that it financially devastates the defendant.

  6. Punitive Damages Punitive damages traditionally bear no monetary relationship to actual damages. You may want to note, however, that some states have passed tort reform laws which put limits on punitive damages, and in some of those states the limit is a multiplier of the actual damages. In some other states, a large percentage of the punitive award goes to the state rather than the plaintiff.

  7. Punitive Damages In BMW of North America v. Gore, 517 U.S. 559 (1996), the U.S. Supreme Court, for the first time, put a limit on punitive damages. In that case a Dr. Ira Gore, Jr. purchased a new 1990 BMW 535i from German Auto, Inc. of Birmingham, AL. He signed a disclosure form indicating that the vehicle might have sustain some prior damage, but that he had inspected it and agreed to accept it. After driving the car for 9 months, he took the car to an auto detailer who revealed to him that the vehicle had previously been repainted due to acid rain damage during transit from Germany. Refinishing the vehicle cost Gore $601.00. Gore sued for failure to disclose the damage. A jury awarded in $4,000.00 in compensatory damages, based on the assessed value of the vehicle and $4 million in punitive damages. On appeal, the Alabama Supreme Court eventually reduced the punitive damages to $2 million. However, the U.S. Supreme Court later ruled that “Punitive damages may be assessed to punish tortuous conduct and deter repetition. Only grossly excessive awards are set aside. To determine whether damages are grossly excessive courts must examine the degree of reprehensibility of the conduct, the actual harm suffered, and the ratio of the actual damages to the punitive damages.”

  8. Punitive Damages In, State Farm Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513, 1524 (2003), the Court recently said that “there is a presumption against an award that has a 145-to-1 ratio.”

  9. Tort Reform For the most part, tort reform has focused on limiting liability by restricting damages or narrowing claims. Over the past decade, most States have enacted some type of tort reform, either by legislative action or ballot initiative (e.g. Proposition 12 in Texas).

  10. Tort Reform Some types of Tort Reform: • Laws that address specific types of claims (e.g. medical malpractice or “dram shop” responsibilities) • Laws abolishing or limiting joint and several liability. • Laws adding defenses to certain types of torts. • Laws capping non-economic damages (such as damages for pain and suffering or emotional distress) This is a key feature of the Moore-Gephardt Tort Reform Plan (Note that Canadian law currently places a $200,000 limit on awards for pain and suffering. • Laws specifically abolishing or limiting punitive damages to a set figure or a multiplier of actual damages, or raising the standard of proof to award them • Laws limiting attorneys fees. • Laws prohibiting contingency fees. (Professor Lester Brickman of the Cardozo Law School is a major advocate of this.) • Laws limiting what types of class action law suits can be instituted and who may participate in them.

  11. Tort Reform Some types of Tort Reform (Cont.): • Laws creating progressive auto-insurance rates. • Laws changing or eliminating the Collateral-Source Rule. Under the collateral-source rule, a defendant is prohibited from introducing evidence at trial to show that a plaintiff has received compensation for an injury from another source--for example, an insurance policy. That common-law rule prevents any offsets of damage awards by the amount the plaintiff has received from those collateral sources. In 1986 and 1987, 18 states changed their collateral-source rules; currently, 23 states have either abolished or reformed the rule.

  12. Tort Reform Some types of Tort Reform (Cont.): Statutes of Limitation: A few states have either established or reduced the statutes of limitation or repose for certain types of cases. A statute of limitation restricts the filing of lawsuits within a certain period after an injury occurs; a statute of repose restricts the filing of lawsuits within a certain period after the manufacture or sale of a product even if injury occurs outside of that period.

  13. Tort Reform Some types of Tort Reform (Cont.): Periodic Payment of Future Damages: Six states have required or allowed courts to stagger award payments over time. In that way, if a plaintiff's situation changes, the court can alter the payments.

  14. Tort Reform Some types of Tort Reform (Cont.): Prejudgment Interest: Some states have limited the amount of interest that may accrue on an award for compensation during the time before the court awards damages.

  15. Tort Reform Some types of Tort Reform (Cont.): Victim Compensation Funds: Some states have set up no-fault funds, similar to federal statutes such as the Childhood Vaccine Compensation Fund, to compensate victims of certain types of medical malpractice. Victims who accept compensation from those funds are limited in their right to file lawsuits.

  16. Tort Reform • Are limits on damages a good idea? • One obvious advantage of limits is greater predictability as to the costs of litigation.

  17. Tort Reform However, there is increasing evidence that the liability “crisis“ may be more imagined (or created by the insurance companies) than real. For instance, while the nonpartisan General Accounting Office (GAO) has found that the average malpractice verdict has been rising by about 8% a year above inflation, that is nowhere near large enough to account for the 200 or even 300% rate increases reported in medical-industry horror stories. Many attorneys argue that the main problem with medical malpractice insurance costs is the failure of the medical profession to police its own and discipline or remove bad doctors from practice. After some Texas tort reforms in 1996 to 1998, auto insurance companies earned windfall profits over $2.8 billion. Yet promised lower rates for consumers never materialized.

  18. Tort Reform Five-month-old Aliya was the only daughter in the Dozier family - the answer to her parents' prayers. She was their dream. "She was a precious one," say her parents. "Always smiling." She was smiling until the day Aliya suddenly died of a heart problem, which a Los Angeles jury ruled her doctor should have detected. When that jury awarded the Doziers $1.5 million in damages, the judge reduced the award to $250,000 because California caps certain damages in malpractice cases. To the Doziers, it was their second tragedy. (CBSNEWS.COM)

  19. Interference- Personal Rights • Battery • Intentional • Unconsented to Touching • Actual bodily contact not required • Enough to set in motion • Free & Intelligent Consent a Defense • Harmful or Offensive • To person of ordinary sensibility

  20. Interference- Personal Rights • Battery • Hutchinson v. Brookshire Brothers, Ltd., p. 119 • The court finds that forcing someone to suck and siphon gasoline from an auto’s gas tank is a sufficiently offensive touching to constitute battery. The defendant need not actually touch the person. It is sufficient if defendant caused an offensive touching.

  21. Interference- Personal Rights • Battery • Question 5 at end of chapter. • Leichtman V. WLW Jacor Communications, Inc. • An antismoking advocate is allowed to sue for battery after a talk-show host purposely blows smoke repeatedly in his face. • What harm did Leichtman suffer? • The touching need not injure the person • Note: This probably would not have been considered a battery a few years ago.

  22. Interference- Personal Rights • Battery • Question 4 at end of chapter • Yes. Courts have long recognized the right of privacy in matters relating to marriage, family, and sex. The right is not absolute, however, and is subordinate to the state’s interest in preventing and controlling contagious and dangerous diseases. AIDS and herpes are such diseases. Plaintiff has a right to sue for the serious bodily harm she suffered because defendant misrepresented that he was disease free, and this misrepresentation caused her to agree to the sexual touching. Consent to sexual intercourse is negated by fraudulent concealment. Kathleen K. v. Robert B., 198 Cal. Rptr. 273 (Calif. Ct. App. 1984).

  23. Interference- Personal Rights • Assault • Put in apprehension of • Imminent (Immediate) Threat • To Physical Safety • Actual Contact not required • Usually, “mere words” not enough

  24. Interference- Personal Rights • False Imprisonment • Intentional Confinement • For an Appreciable Time • Without Consent • Substantially Restricting • Stores often given Conditional Privilege vs. Shoplifting Suspects

  25. Interference- Personal Rights • Intentional Infliction of Mental Distress • Some jurisdictions require physical manifestation • Requires “Outrageous” Conduct (e.g. Substantially certain to produce distress to person of ordinary sensibilities

  26. Interference- Personal Rights • Intentional Infliction of Mental Distress • Roach v. Stern, p.121 • Howard Stern is found liable for intentional infliction of emotional distress for the way he treated the cremated remains on his show. • What it is about Stern and his show that has made it so famous/infamous? • Should this matter when determining what is outrageous? • Should it matter whether the deceased would likely have found the actions outrageous (the dissent thought it should). • Which particular acts “crossed the line.’ • The trial court found that the conduct was vulgar and disrespectful but not sufficiently outrageous for emotional distress.

  27. Interference- Personal Rights • Intentional Infliction of Mental Distress • Question 9 at end of chapter • Yes. The Pearces’ extreme and outrageous conduct exceeds all bounds of decency tolerated by society. They had no legal claim to the property, but despite this they carried on a campaign of harassment that included threats of murder, shooting into the yard, calling the police for a “juvenile disturbance” when the Pearces’ 11-day-old grandchild visited, trying to get their daughter arrested, etc. The resulting emotional distress caused Wilson bodily harm. The Pearces knew Wilson had a heart condition and angina, and this was made worse by the harassment and arrest. No one in a civilized society should have to tolerate such harassment. Wilson v. Pearce, 412 S.E.2d 148 (N.C. Ct. App. 1992).

  28. Interference-Personal Rights • Defamation • A false and unprivileged publication that injures a person’s reputation or character • Libel (Writing) • Slander (Speech) • Levinsky’s Inc. v. Wal-Mart, p. 62 • A store is allowed to sue for defamation on the basis of a statement made by a competitor’s manager. • The difference between fact and opinion is central to this case. Because the 20-minute hold statement was capable of verification, the court remanded the case for a new trial. • Note: Levinsky’s also sued for false light, deceptive trade practices, interference with advantageous economic relations, and infliction of emotional distress, but the only issue on appeal was defamation. The jury awarded Levinsky’s $600,000 for presumed damage to its reputation.

  29. Interference-Personal Rights • Libel • Elements of a Libel Claim • 1. Defamatory statement • 2. Identification • 3. Publication • 4. Fault • 5. Falsity • 6. Personal Harm

  30. Defamation • Libel • Publication • A statement is "published" if it is communicated to someone other than the person whom the statement is about. • In the case of newspapers, magazines, radio television, or wire services, the libeled person does not have to prove that someone read or heard the defamatory statement. (Theory: too burdensome to check)

  31. Defamation • Libel • Publication • Note: Intracompany communications do not constitute actionable publications. Publication is the communication of defamatory matter to a third person, and neither agents nor employees of a company are third persons in relation to the corporation because they are part and parcel of the corporation itself. The statement, she’s in big trouble’, was communicated to a third party. Whether this comment imputes the commission of a crime or tends to injure the victim’s professional reputation and therefore constitutes slander per se is a question for the jury. A claim of slander per se renders irrelevant the absence of evidence that a comment actually sullied the victim’s reputation. Starr v. Pearle Vision, Inc., 54F.3d 1548 (10th Cir. 1995).

  32. Defamation • Libel • Fault • In order to be "at fault" in publishing a statement, the person suing must prove that the reporter either did something they should not have done or that they failed to do something that they should have done. If the reporter did everything a "reasonable reporter" should have done to verify the information in his or her story before publishing it - for example, talked to all sides, obtained and read all relevant documents, took accurate notes, etc. - the reporter is not legally "at fault."

  33. Defamation • Libel • Harm • A statement is harmful if it seriously shames, ridicules, disgraces or injures a person's reputation or causes others to do so. Statements that are mildly embarrassing or merely confusing or inaccurate will not meet the "harm" test. • Not need to prove actual (e.g money) damages (as with slander)

  34. Defamation • Libel per se • A clear, unambiguous, commonly-agreed-to meaning. Some types of words like “unethical, adulterer, thief, cheat, criminal, liar, drunkard, communist...” are universally interpreted as defamatory. No surrounding context or factors need to be considered. • Note: Standards can and do change. In 1998, a New York court ruled that the use of the word “bitch” was not libelous. • Related recent news item: May 29, 2004, Judge: Homosexual Isn't Libelous Term • Stating that someone is homosexual does not libel or slander them, particularly in light of new court decisions granting gays more rights, a federal judge has ruled. The ruling by U.S. District Judge Nancy Gertner came as she threw out a lawsuit by a former boyfriend of pop singer Madonna who claimed he was libeled because his name appeared in a photo caption in a book about Madonna under a picture of Madonna walking with a gay man. "In fact, a finding that such a statement is defamatory requires this court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community," she wrote in her opinion Friday. (from the AP via ABCNews.com.)

  35. Defamation • Libel per quod • Not apparent in the words themselves. These are communications that are defamatory only when other facts or contexts are taken into consideration; this is an indirect libel; an implied defamatory comment.

  36. Defamation • Libel • Examples of some libel awards • 1991 largest Libel judgment in U.S. History: $58 M. to Texas district attorney Vic Feazel, who was falsely accused by WFAA-TV in Dallas of taking bribes to fix drunken driving and drug possession cases. They ultimately settled out out court for a smaller amount. • 1993 New York appellate court upheld an $18.5 M. dollar award against Buffalo TV station WKBW for incorrectly associating a restaurant owner with organized crime. Later reduced to $15.5 M. A retrial was ordered because of faulty jury instructions and that jury awarded $11.5 million in damages.

  37. Interference-Personal Rights • Defamation • Slander (Speech) • Slander is a false and unprivileged publication that injures a person’s reputation or character. • Intracompany communications do not constitute actionable publications. Publication is the communication of defamatory matter to a third person, and neither agents nor employees of a company are third persons in relation to the corporation because they are part and parcel of the corporation itself. The statement, she’s in big trouble’, was communicated to a third party. Whether this comment imputes the commission of a crime or tends to injure the victim’s professional reputation and therefore constitutes slander per se is a question for the jury. A claim of slander per se renders irrelevant the absence of evidence that a comment actually sullied the victim’s reputation. Starr v. Pearle Vision, Inc., 54F.3d 1548 (10th Cir. 1995).

  38. Defamation- Standards • In re: Media - Public Officials or Public Figures Must Prove “Actual Malice” • New York Times Company v. Sullivan, 376 U.S. 254 (1964) • http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254 • In order for a public official or a public figure to prove defamation, they must prove actual malice. Actual malice requires that the person suing prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy. • Malice typically may not be inferred, but must be proven by competent evidence

  39. Defamation- Standards • In re: Media - Public Officials or Public Figures Must Prove “Actual Malice” • Question 8 at end of chapter • Yes. The First Amendment recognizes the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. A public figure may hold a speaker liable for publication of a defamatory falsehood if it was made with malice. If it were not required, political cartoons and satires would be imperiled. These have had an effect on the course and outcome of public debate; our political discourse would have been poorer without them. There is no doubt that the caricature of Falwell and his mother is at best a distant cousin of the political cartoon, and a rather poor relation at that. But it would be too hard for a jury to distinguish between this and desired speech without a malice standard. Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988).

  40. Defamation- Standards • In re: Media - Public Officials or Public Figures Must Prove “Actual Malice” • Who is a Public Figure? • Public figures are those who have chosen to thrust themselves into the limelight. • There are two categories: • (1) General Purpose Public Figure: is a an individual who has assumed a role of special prominence in the affairs of society and occupies a position of persuasive power and influence or is a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word.” • (2) Limited Purpose Public Figure: someone who has voluntarily assumed a leading role in a particular public controversy.

  41. Defamation- Standards • Private Persons • In most states, a private person need only prove that a reporter was negligent, that is, that the reporter made a mistake - perhaps an innocent one - that a "reasonable" reporter should not have made. • If not public figure, must prove actual malice ONLY when the defamatory falsehoods related to the controversy they associated themselves with. • Supreme Court's decision in Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974) http://wyomcases.courts.state.wy.us/applications/oscn/deliverdocument.asp?citeid=429791 • Court held that in defamation suits by a private figure arising out of matters of public concern, the states may set any standard of care except strict liability. Most states chose negligence as the standard of care for defamation defendants in a Gertz situation.

  42. Defamation- Defenses • Truth - is a complete defense • Privilege • Absolute Privilege - (e.g. Statements by members of Congress on the floor, participants in certain judicial proceedings, private statements between spouses) • Conditionally Privileged - e.g. Employee references (lawyers generally recommend not giving such) • Note: Other privileges exist, but vary from jurisdiction to jurisdiction. • Opinion - A statement of mere opinion cannot be defamatory

  43. Defamation- Defenses • Possibly Retraction? • Must be “Full and fair”= same type, position and page

  44. Defamation- Defenses • Statutory Immunity • Carafano v. Metrosplash, p. 123 • The lawsuit against Metrosplash/Matchmaker was prevented by theCommunications Decency Act.. The Communications Decency Act immunizes those who give access to the Internet from liability for messages that originate with third persons. Specifically, the statute precludes courts from entertaining claims that would place a computer service provider in a publisher's role. The purpose of this immunity is not difficult to discern. It was enacted to maintain the robust nature of Internet communications and, accordingly, to keep governmental interference in the medium to a minimum. None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. However, Congress made a policy choice not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Ask the students what they think about the legislation? Discuss the advantages and disadvantages of such a policy. Obviously, in the Carafano case, if a newspaper or magazine ran the bogus “profile” in its personals, the result would have been different.

  45. Defamation - Other Countries • In many other countries, such as Canada, Australia, South Africa “a claim to dignity or to personality will trump a claim to freedom of speech. In Germany, the burden is on newspapers to verify the truth of their statements. German Law also states that freedom of speech "shall find its limits ... in provisions for the protection of young persons, and in the right to personal honor.”  - Source: Donald Kommers, professor of law and political science at the University of Notre Dame, discussion on free speech and defamation 3-1-2006, part of the Democracy Dialogues series of discussions on freedom of speech.

  46. Interference- Personal Rights • Invasion of Right to Privacy • Intrusion on Privacy (e.g. obscene phone calls)

  47. Interference- Personal Rights • Invasion of Right to Privacy • Widespread Dissemination • Publishing private facts • Must show the paper publicized private facts that we not a legitimate concern to the public. A private fact is one that has not already been made public. A fact contained in a public record is a public fact. Writings prepared in the transaction of public business are public records. Jenkins’ convictions were part of the court records and therefore were public records. While public policy encourages rehabilitation and integration into society, that interest does not protect Jenkins. There is a compelling reason for the public to be aware of the convictions because they address a matter of public concern. They show his propensity for criminal acts of a sexual nature that spans 40 years. Jenkins v. Bolla, 600 A.2d 1293 (Superior Ct. Penn. 1992).

  48. Interference- Personal Rights • Invasion of Right to Privacy • False Light • Publicity that places the plaintiff in a "false light" in the public eye. Closely resembling defamation, the tort of false light requires publication of an untrue statement regarding the plaintiff. The key difference is that while defamation must adversely harm one's reputation, the false light claim requires the representation to be "highly offensive to a reasonable person." Restatement of Torts (2d Edition) at 625e (1977). • False Light: In Time, Inc. v. Hill, 385 U.S. 374 (1967) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=385&page=374 • U.S. Supreme Court recognized the false-light tort, ruling that even private plaintiffs must prove actual malice (a requirement previously reserved for public-figure libel plaintiffs) if they are involved in a newsworthy issue. See also: Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=419&invol=245#250 • and Little Rock Newspapers, Inc.. v. J. Michael Fitzhugh, 96-1050, http://courts.state.ar.us/opinions/1997b/971113/96-1050.txt

  49. Interference- Personal Rights • Invasion of Right to Privacy • Misappropriation of Name or Image for Commercial Purposes • “Personal” Right • Felsher v. University of Evansville, p. 125 • The University is not allowed to sue for invasion of privacy because it is not an individual and the right is personal. The court cites extensively to the Restatement (Second) of Torts, and notes that the Restatement says that a corporation has a limited right to the beneficial use of its name or identity. If that right is breached, the entity can sue under laws of unfair competition. Note: University might have a cause of action for tortious interference with business relations and individuals might have a cause of action for being portrayed in a false light.

  50. Interference- Personal Rights • Invasion of Right to Privacy • Misappropriation of Name or Image for Commercial Purposes • Parks v. LaFace Records, p. 125 • Civil rights icon Rosa Parks is allowed to sue hip-hop group Outkast for the appropriation of her name. • The court remanded the case so that a jury might determine whether the use of Rosa Parks’ name bears any artistic relevance to the content of the song. Note the balance and tension between protecting the First Amendment rights of the defendants in the creation and marketing of a musical composition and the right of Rosa Parks to protect an economic interest in her name. The court opined that application of that standard involves a recognition that Rosa Parks has no right to control her image by censoring disagreeable portrayals. It also involves a recognition that the First Amendment cannot permit anyone who cries “artist” to have carteblanche when it comes to naming and advertising his works. Distinctive a style must be in order to be protected (see Midler v. Ford MotorCompany, 849 F. 2d 460 (9 Cir. 1988)). Question 6 at end of chapter.

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