Intentional Torts

1. Intentional Torts “Intended” Private Wrongs OBE 118, Section 10, Fall 2004 Professor McKinsey

2. Understanding Torts • Torts are private wrongs • Torts have elements that essentially must be memorized • Definitions often contain the elements. • Elements are like the ingredients in cake, skip one and you do not have a cake (or a tort)

3. Intentional Torts • Wrongs where the person intends to do an act which will invade an interest of another and either knows or should know there is an appreciable risk to another from the act

4. Assault • An intentional, un-privileged, un-excused, non-consensual act that (the act) • creates in the mind of another person apprehension or fear of an immediate harmful and offensive touching (the injury).

5. Battery • An intentional, un-privileged, un-excused, non-consensual harmful or offensive contact of another.

6. False Imprisonment • The intentional un-privileged, non-consensual, confinement of another by physical barriers or by physical force or threats of force Injury? – Shopkeepers Privilege:

7. Intentional Infliction of Emotional Distress (IIED) • Outrageous behavior resulting in severe emotional distress to another • Usually physical symptoms required Intent? –

8. Defamation • A false, unprivileged statement of fact communicated to a third person, which causes damage to a person’s or a product’s reputation. • Slander- transitory, oral or spoken • Libel – more permanent, written form Intent? – Injury? – To reputation by exposing to hatred, ridicule or contempt

9. Defamation- Privilege • Absolute privilege • Governmental official performing duty • Members of congress • Judicial proceedings • Qualified privilege(“lose if abused”) • Protect legitimate business interests • Protect ones own personal interests

10. Defamation- Public Figures • Public figures: must show actual malice on the part of tortfeasor Actual malice: • Media has a qualified privilege to defame public figures

11. Fraud • Intentional misrepresentation of a material fact which is justifiably relied upon by another and causes damages. • Intent?- Two of them! • Intent to mislead, (knowledge of falseness) • Intent to induce reliance on misrepresentation

12. Business Torts • Tortious Interference with a Contract (getting someone to breach a contract) • Requires knowing inducement of a party to breach a contract • Tortious Interference with a Prospective Advantage (getting someone to drop out of a probable or existing business relationship with another) • The plaintiff must have a definite and reasonable expectation of gaining an economic advantage

13. Invasive Torts • Intrusion (ex: • Disclosure of Embarrassing Private Facts (ex: • False Light (ex: • Commercial Exploitation (ex:

14. Damages Two basic categories of damages • Punish- “Punitive Damages” • Compensate for injuries- “Compensatory Damages”

15. When people can require compensation for injuries caused by another The Bigger Picture of Torts Traditional “Common Law” Torts New “Statutory” Torts

16. Elements of Negligence Duty of care Breach of the duty of care Injury (Actual cause) Proximate cause (Damages)

17. Duty of care • Act as carefully as The Reasonable Person would under similar circumstances • Was the harm that resulted foreseeable?

18. Proximate Cause Is it fair to say the act was the cause? “Fairness” Factors

19. Summary of Basic Negligence • Duty of care • Breach of the duty of care • Injury (Actual cause) • Proximate cause • (Damages)

20. Special Effects on Liability • Intervening Causes A separate event between defendants act and plaintiff’s injury • Shared Responsibility

21. Special Forms of Negligence • Res ipsa loquitor The thing speaks for itself – • Negligence per se An act that is “automatically” negligence • Premises Liability

22. Premises Liability • Duty of care is determined with an additional factor: the injured person’s status on the premises: • Trespasser to land • Licensee (Guests of homeowners) • Invitees (Customers at business premises)

23. Premises Negligence Trespassers Minimal duty Must warn of human-made risks not likely to discover No traps or spring guns Young children are exception Licensee • Must warn of known risks or fix them Invitee High duty of care • Must inspect premises

24. Defenses to Negligence • Assumed the risk • Comparative negligence

25. Strict Liability vs. Other Types of Torts • Intentional Torts Did Actor Intend Act or the Harm that resulted from the act? • Negligence Would a Reasonable Person Do the act that caused the harm? • Strict Liability Did an injury occur?

26. Strict Liability • No need to prove intent or negligence • Often no concern about fault at all • Three Basic Examples

27. Ultra-hazardous Activities • Harboring wild animals • Mining • Explosives

28. PL based on Strict Liability (Based on the Restatement (2nd) of Torts) 1. D sold product in defective condition 2. D normally in business of selling product 3. Product unreasonably dangerous* 4. P suffers physical harm through use of product 5. Defective condition is proximate cause 6. No substantial changes to product since sold

29. What is a Defective Product? 3 General Ways a Product can be Defective 1) Actual defect (flaw in manufacturing). Product not built as intended. 2) Design defect. Product built as designed, design had defect. 3) Failure to warn. A different approach usually used when product had dangers inherent to purpose or type of product.

30. Torts Review • Intentional Torts Elements! (and don’t forget how intent works) Traditional Torts Newer Torts • Negligence Basic Negligence Special situations (Neg per se, res ipsa loquitor, premises liability Defenses and Liability (Assumed the risk, Comparative neg, JSL) • Strict Liability • Damages

31. Course Review • Basic Legal Principles Law versus Ethics, what law is Authority of law Constitution and Governmental Organization • Sources and Types of Law Legislative versus Judicative versus Administrative Federal versus State Courts versus ADR versus Agency proceedings • Torts Intentional Torts Negligence Strict Liability Damages