Chapter 6: Intentional Torts

Tort

A civil wrong that is not a breach of contract

Tortfeasor

Someone who commits the tort

Intentional Torts

Tortfeasor’s desire to cause certain consequences - or the substantial certainty that certain consequences will result

Reckless Torts

Tortfeasor’s conscious indifference to a known and substantial risk of harm created by their behavior

Negligent Torts

Failure to reasonable care, with harm to another party occurring as a result

Strict Liability Torts

Liability without (regardless of) fault (ex: child pornography, statutory rape)

Preponderance of the Evidence

The standard of proof in civil cases requiring that a claim be shown to be more likely true than not

Direct Damages

Immediate and foreseeable financial losses that result directly from a wrongful act

ex: lost wages

Indirect Damages

Losses that occur as a secondary effect of a wrongful act

ex: emotional distress

Punitive Damages

Monetary awards in civil cases intended to punish defendants for egregious misconduct and deter similar behavior, rather than to compensate the plaintiff

Battery

Intentional and harmful/offensive touching of another without the person’s consent

Transferred Intent

Holds a person liable for harm caused to unintended victim when the intent to harm was directed at another individual

Harmful Contact

Contact produced bodily injury

Offensive Contact

Contact is offensive; included in battery by reasonable person standard

Infliction of Emotional Distress

Wrongdoer’s conduct was outrageous and intentional (or reckless); Most courts apply reasonable person test; Case based on only speech is hard to win, unless there is conduct

False Imprisonment

Intentional confinement of another for an appreciable time without their consent; confinement must be complete, though a few minutes is enough; most states give stores “conditional privilege” to stop suspected shoplifters

Defamation

An unprivileged publication of false and defamatory statements concerning another person; truth is a complete defense; privilege is a defense

Libel

Refers to written defamation; damages (injuries to reputation) are presumed

Examples: email, print, television

Slander

Refers to oral defamation; not actionable without proof of special damages, unless it’s slander per se

Slander per se

Slander in which the plaintiff:

• Has committed a crime involving moral turpitude or potential imprisonment

• Has a loathsome disease (including an STD)

• Is professionally incompetent or guilty of professional misconduct

• Is guilty of serious sexual misconduct

Generally not actionable defamation cases

Humor, satire, opinions, direct messages from the defendant to the plaintiff

Generally actionable defamation cases

Communications that mix fact and opinion, publications (even those spread to only one other person), third parties

Absolute Privilege

Defense in defamation cases; Includes participants in judicial proceedings or legislative proceedings, certain executive officials in the course of their duties, and by one spouse to the other in private

Conditional Privilege

Defense in defamation cases; Protects statements made to protect or further the legitimate interests of another and statements made to promote a common interest

Fair Comment

Defense in defamation cases recognized in some courts; Allows individuals to express opinions on matters of public interest without facing certain legal repercussions, provided certain conditions are met

NY Times v Sullivan (1964)

The Supreme court held that when a public figure brings a defamation case, they must not only prove the elements of defamation but also prove that the statement was made with actual malice

Actual Malice

The statement was made knowing it was false or with reckless disregard for the truth

Bertrand v. Mullin

For defamation purposes, a plaintiff who is a candidate for public office is treated as if they were a public official; negligence is NOT actual malice

Invasion of Privacy Torts

Intrusion on Solitude or Seclusion, Public Disclosure of Private Facts, False Light Publicity, and Commercial Appropriation of Name or Likeness

Misuse of Legal Proceedings Torts

Malicious Prosecution, Wrongful Use of Civil Proceedings, and Abuse of Process

Malicious Prosecution

Wrongful institution of criminal proceedings

Wrongful Use of Civil Proceedings

Wrongfully instituted civil suits

Abuse of Process

Liability of those who initiate legal proceedings for a purpose other than the one for which the proceedings were designed

Deceit (or Fraud)

The tort claim available to victims of knowing or intentional misrepresentations

• Often tied to a breach of contract claim

• Requires proof of a false statement of material fact, knowingly or recklessly made by the defendant with intent to induce reliance by the plaintiff, along with actual, justifiable, and detrimental reliance on plaintiff’s past

Trespass to Land

Tort claim for any unauthorized or unprivileged intentional intrusion upon another’s real property; includes physically entering plaintiff’s land

Private Nuisance

Tort claim for some interference with plaintiff’s use and enjoyment of land; interference must be intentional, substantial, and unreasonable; does NOT require a physical invasion of property

Ex: odors, noise, light, vibration

Conversion

Tort claim for defendant’s intentional exercise of dominion or control over plaintiff’s personal property without plaintiff’s consent, through acquisition, removal, transfer to another, withholding possession, destruction or alteration, or use.