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Tort Law

Tort Law. Tort Means “Wrong”. A tort is a violation of a duty imposed by civil law. E.g.,. Defamation -- making a false statement about someone - written or verbal Negligence -- performing wrong surgery Interference with contract -- stealing a client away from a competitor

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Tort Law

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  1. Tort Law

  2. Tort Means “Wrong” A tort is a violation of a duty imposed by civil law. E.g., • Defamation -- making a false statement about someone - written or verbal • Negligence -- performing wrong surgery • Interference with contract -- stealing a client away from a competitor • Fraud -- offering to sell something that doesn’t exist

  3. Categories of Tort Law: Based on Defendant’s State of Mind • Intentional Torts • Does not necessarily require an intention to harm the victim, only an intention to perform the act which caused the injury. (Intentionally throwing an object, but not meaning to hit anyone is a tort if it causes injury to someone.) • Negligence and Strict Liability • Unintentional torts

  4. Categories of Tort Law:Based on Rights at Stake Infringements of personal rights (assault, battery, false imprisonment, defamation, intentional infliction of emotional distress and invasion of privacy) vs. Infringements of business or property rights (trespass, nuisance, fraud, conversion, product disparagement and interference with contract)

  5. Businesses and Tort Liability Why should businesspeople (or business students) care about personal torts? What do they have to do with business? Businesses can be vicariously liable for torts committed by their employees during the course of their employment, under the doctrine of “respondeat superior.”

  6. Compensatory Damages • A jury may award compensatory damages -- payment for injury --to a plaintiff who prevails in a civil suit. • The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely. • Damages may include money for three purposes: • to restore any loss (such as medical expenses) caused by the illegal action • to restore lost wages if the injury kept the defendant from working • to compensate for pain and suffering

  7. Punitive Damages • While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party. • Intended for conduct that is outrageous and extreme • Designed to “make an example” out of the defendant and to deter others • Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded. • BMW v. Gore

  8. Intentional Torts against Persons: Assault and Battery • Assault is an action that causes the victim to fear an imminent offensive contact. • Assault can occur without the contact ever happening. • Pulling a gun on someone -- even if it is unloaded -- is usually considered assault. • Fear must be reasonable. • Battery is a touching of another person in a way that is unwanted or offensive. • The touch does not have to hurt the victim -- sexual touching that is offensive, but not painful, is battery. • An intentional action that does hurt someone may be battery even if the injury is unintentional.

  9. Intentional Torts Against Persons False Imprisonment False imprisonment is the restraint of someone against their will and without reasonable cause. • An employer who doesn’t let a sick employee go home might be guilty of false imprisonment. • If the police detain a person with no reason to suspect him of any crime, it could be false imprisonment. • In general, a store may detain a person suspected of shoplifting if there is a reasonable basis for the charge and the detention is done reasonably (in private and for a reasonable time).

  10. Intentional Infliction of Emotional Distress • Roach v. Stern • Historically, no recovery was allowed if the injury was only emotional instead of physical. • Today, most courts allow a plaintiff to recover from a defendant who intentionally causes emotional injury. • Behavior causing injury must be extreme and outrageous. • Must have caused serious emotional harm. • Some courts allow recovery for emotional injury caused by negligent behavior.

  11. Intentional Torts Against Persons: Defamation • Defamation is irresponsible speech to harm another’s reputation. • Written defamation is libel. • Verbal defamation is slander.

  12. Intentional Torts Against Persons Defamation (cont’d) • There are four facts to prove to win a defamation suit: • Defamatory statement: injury to reputation. • Falsity: The statement is false. • Publication/communication: The statement was communicated to a third party. • Injury: must be proven in slander cases; assumed in libel cases.

  13. Defamation (cont’d) “Mr. Smith is a jerk. He is insufferable. I think he is the stupidest, meanest person I have ever met.” • Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion. • Vague terms in the statement usually indicate it is an opinion, not a provable fact. • Extreme exaggerations are usually not taken as fact.

  14. Defamation (cont’d) • Public Personalities • Includes: public officials (police and politicians) and public figures (movie stars and other celebrities) • Public personalities have a harder time winning a defamation case because they have to prove that the defendant acted with actual malice.

  15. Defamation: Defenses • Truth

  16. Defamation: Defenses • Truth • Privilege • Defendants receive extra protection in special cases. • Sigal Construction Corp. v. Stansbury • In courtrooms and legislatures, speakers have absolute privilege. They may speak freely, as long as they reasonably believe what they are saying is true. • When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a suspected criminal act.

  17. Privacy and Publicity • Intrusion (prying into someone’s private life) is a tort if a reasonable person would find it offensive. • Examples: wiretapping, stalking, peeping • Disclosure of Embarrassing Private Facts is when something extremely embarrassing is made public with no need for the public to know. So how do shock TV shows get away with humiliating people for fun and profit? • False Light is when something false and offensive is told about someone. • Parody defense to defamation and false light torts: Flynt v. Falwell. Why is this a defense?

  18. False Advertising • Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission. • Midler case (not in your readings) • Waits v. Frito-Lay

  19. Product Defamation • State Statutes outlawing “defamation” of products • Oprah and Texas beef • Honda and emu ranchers

  20. Interference with Business Relations (a/k/a Interference with Contract) • Texaco v. Pennzoil Interference with a contract exists if the plaintiff can prove these elements: • There was a contract between the plaintiff and a third party and the defendant knew of the contract. • The defendant induced the third party to breach the contract or make performance impossible. • There was injury to the plaintiff.

  21. Negligence Paintiff must prove: • Duty of due care -- there must be a duty owed to the plaintiff. • Breach-- duty must be breached. • Proximate cause-- it must have been foreseeable that the action would cause this kind of harm, AND action was actual cause of harm • Injury -- the plaintiff must have been hurt.

  22. Duty of Care • Foreseeable plaintiff • Dramshop/Social Host cases • Minority view: social host is liable • Is majority view when drinker is child • Landowner cases • Trespasser • Licensee • Invitee • Izquierdo v. Gyroscope, Inc.

  23. Breach of Duty • A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. What about: • Absent-minded defendants? • Not very smart defendants? • Children? • Physical disabilities? • Intoxicated defendants? • Professionals? • Circumstances count • Knowledgeable plaintiff • Stressful situations

  24. Breach of Duty (cont’d) • Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers. • Analyze these situations using “reasonable person” standard.

  25. Breach of Duty (cont’d) • Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people. When a violation of that statute hurts a member of that group, the duty is breaof behavior. • E.g., violation of regulatory standard of care • Outlawed behavior • OSHA standards

  26. Causation Factual Cause + Foreseeable Harm = “Proximate Cause” • Factual Cause -- if the defendant’s breach ultimately led to the injury, he is liable. • Does not have to be the immediate cause of injury, but must be the first in the direct line. • Intervening causes can break the direct line

  27. Factual Cause + Foreseeable Harm = “Proximate Cause” • Foreseeable Harm -- to be liable, this type of harm must have been foreseeable. • The defendant does not have to know exactly what would happen -- just the type of event. • Palsgraf v. Long Island RR • Ozzie Osbourne

  28. Ex: Factual Cause & Foreseeable Harm Mechanic fails to fix customer’s brakes, which causes... Mechanic fails to fix customer’s brakes, which causes... Mechanic fails to fix customer’s brakes, which causes... Car accident, car hitting bicyclist Mechanic is liable to cyclist Factual cause and foreseeable type of injury Car accident, car hitting bicyclist Noise from accident startles someone who falls out a window Mechanic is NOT liable for falling person Factual cause, but no foreseeable type of injury

  29. Injury & Damages • Injury -- plaintiff must show genuine injury • Future injury may be compensated, but must be determined at the time of trial. • Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.

  30. Defenses to Negligence • Contributory Negligence • Assumption of Risk • Comparative Negligence

  31. Defenses to Negligence • Contributory Negligence • In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant. • Assumption of Risk • No recovery if plaintiff voluntarily assumed risk • Comparative Negligence • In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff. • In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.

  32. MORE EXAMPLES

  33. Strict Liability Some activities are so dangerous that the law imposes a high burden on them. This is called strict liability. • Defective Products-- may incur strict liability. • Ultrahazardous Activities -- defendants are virtually always heldliable for harm. • What is ultrahazardous? • Plaintiff does not have to prove breach of duty or foreseeable harm. • Comparative negligence does not apply -- defendant engaging in ultrahazardous activity is wholly liable.

  34. Strict Liability: • “ultrahazardous” or “unreasonably dangerous” activity • Historically • Modern applications

  35. TORT REFORM: a good idea?

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