Chapter 5: Intentional Torts and Negligence

Introduction to Intentional Torts and Negligence

• Tort is the French word for “a wrong”

• The law provides remedies to persons and businesses that are injured by the tortious actions of others

  • An injured party brings civil lawsuit to seek compensation for a wrong done to the party or to the party’s property

• Tort damages are monetary damages that are sought from the offending party and are available as compensation

• If the victim of a tort dies, beneficiaries can bring a wrongful death action against defendant to recover damages

• The three categories of torts are:

  1. Intentional Torts

  2. Unintentional Torts (Negligence)

  3. Strict Liability

Intentional Torts

• Intentional torts are a category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries

  • Occurs when a person has intentionally committed a wrong against (1) another person or his or her character, or (2) another person’s property

• Types of intentional torts:

  1. Assault

  2. Battery

  3. Doctrine of Transferred Intent

  4. False Imprisonment

     • Shoplifting and Merchant Protection Statutes

  5. Misappropriation of the Right to Publicity

  6. Invasion of the Right to Privacy

  7. Defamation of Character: Slander or Libel

  8. Disparagement

  9. Intentional Misrepresentation (Fraud)

  10. Intentional Infliction of Emotional Distress

  11. Malicious Prosecution

1. Assault [Intentional Torts]

• Assault is the (1) threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm

  • Actual physical contact is unnecessary

2. Battery [Intentional Torts]

• Battery is unauthorized and harmful or offensive physical contact with another person that causes injury

  • Basically, the interest protected here is each person’s reasonable sense of dignity and safety

• There can be direct and/or indirect physical contact between the victim and perpetrator, as long as injury results

• May accompany assault

• Examples Throwing a rock, shooting an arrow or a bullet, knocking off a hat, pulling a chair out from under someone, and poisoning a drink are all instances of actionable battery. The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep).

3. Doctrine of Transferred Intent [Intentional Torts]

• The transferred intent doctrine is a doctrine under which the law transfers the perpetrator’s intent from the target to the actual victim of the act

  • Applies when a person acts with the intent to injure one person but actually injures another

• The victim can sue the perpetrator

4. False Imprisonment [Intentional Torts]

• False imprisonment is the intentional confinement or restraint of another person without authority or justification and without that person’s consent by:

  • Physical force

  • Barriers

  • Threats of physical harm

  • False assertion of legal authority (false arrest)

• A threat of future harm or moral pressure is not considered false imprisonment

  • The false imprisonment must be complete

• Examples A person who locks the doors in a house or automobile and does not let another person leave is liable for false imprisonment. Merely locking one door to a building when other exits are not locked is not false imprisonment. However, a person is not obliged to risk danger or an affront to his or her dignity by attempting to escape.

• Rules for shoplifting and merchant protection statutes to avoid false imprisonment liability

Shoplifting and Merchant Protection Statutes [False Imprisonment]

• The merchant protection statute (shopkeeper’s privilege) is a statute that permits merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if:

  1. There are reasonable grounds for suspicion

  2. Suspects are detained for only a reasonable time

  3. Investigations are conducted in reasonable manner

• Proving these elements is sometimes difficult

Case 5.1 False Imprisonment

• Case

  • Walmart Stores, Inc. v. Cockrell

  • Court of Appeals of Texas, 61 S.W.3d 774 (2001)

• Facts

  • Plaintiff was detained by a Walmart employee and physically searched under suspicion that the plaintiff had shoplifted, which he had not

• Issue

  • Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of the case?

• Decision

  • The court of appeals upheld the trial court’s finding that Walmart had falsely imprisoned Cockrell and had not proved the shopkeeper’s privilege

  • The court of appeals upheld the trial court’s judgment that awarded Cockrell $300,000 for mental anguish

5. Misappropriation of the Right to Publicity [Intentional Torts]

• Each person has the exclusive legal right to control and profit from the commercial use of his or her name and identity during his or her lifetime

• Misappropriation of the right to publicity (or tort of appropriation) is any attempt by another person to appropriate a living person’s name or identity for commercial purposes

• In such cases, the plaintiff can

  1. Recover the unauthorized profits made by the offender

  2. Obtain an injunction preventing further unauthorized use of his or her name or identity

• Many states provide that the right to publicity survives a person’s death and may be enforced by the deceased’s heirs

6. Invasion of the Right to Privacy [Intentional Torts]

• Invasion of the right to privacy is the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity

  • Facts do not have to be untrue

• If a fact is public information, there is no claim to privacy

  • However, a fact that was once public (e.g., the commission of a crime) may become private after the passage of time

• Placing a person in false light constitutes invasion of privacy

  • Example Sending an objectionable telegram to a third party and signing another’s name would place the purported sender in a false light in the eyes of the receiver.

8. Defamation of Character: Slander or Libel [Intentional Torts]

• Defamation of character is false statement(s) made by one person about another

  • This protection ends upon a person’s death

• Slander: oral defamation of character

• Libel: a false statement that appears in writing or other fixed medium (a letter, newspaper, magazine, radio, television broadcasts etc.)

• The plaintiff must prove that:

  1. The defendant made an untrue statement of fact about the plaintiff, AND

  2. The statement was intentionally or accidentally published to a third party

     • In this context, publication simply means that a third person heard or saw the untrue statement

       • It does not require appearance in newspapers, magazines, or books

• The publication of an untrue statement of fact is not the same as the publication of an opinion

  • The publication of opinions is usually not actionable

  • Examples The statement “My lawyer is lousy” is an opinion and is not defamation. The statement “My lawyer has been disbarred from the practice of law,” when the lawyer has not been disbarred, is an untrue statement of fact and is actionable as defamation.

• Because defamation is defined as an untrue statement of fact, truth is an absolute defense to a charge of defamation

• Special rules exist with public figures as plaintiffs

Public Figures as Plaintiffs [Defamation of Character]

• In New York Times Co. v. Sullivan, the U.S. Supreme Court held that public officials cannot recover for defamation UNLESS they can prove that the defendant acted with “actual malice”

  • Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity

  • This requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities

9. Disparagement [Intentional Torts]

• Disparagement (or trade libel, slander of title, or product disparagement) is false statements made about a competitor’s products, services, property, or business reputation

• To prove disparagement, the plaintiff must meet ALL four criterium:

  1. Made an untrue statement about the plaintiff’s products, services, property, or business reputation

  2. Published that untrue statement to a third party

  3. Knew the statement was not true

  4. Made the statement maliciously (i.e., with intent to injure the plaintiff)

• Example If a competitor of John Deere tractors told a prospective customer that “John Deere tractors often break down” when in fact they rarely do, that would be product disparagement

10. Intentional Misrepresentation (Fraud) [Intentional Torts]

• Intentional misrepresentation (fraud) is the intentional defrauding of a person out of money, property, or something else of value

• A person who has been injured by intentional misrepresentation can recover damages from the wrongdoer

• ALL four elements are required to find fraud:

  1. The wrongdoer made a false representation of a material fact

  2. The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party

  3. The innocent party justifiably relied on the misrepresentation

  4. The innocent party was injured

11. Intentional Infliction of Emotional Distress [Intentional Torts]

• Intentional infliction of emotional distress (tort of outrage) is extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person

• The plaintiff must prove that the defendant’s conduct was “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society

• The tort does not require any publication to a third party or physical contact between the plaintiff and defendant

• An indignity, an annoyance, rough language, or an occasional inconsiderate or unkind act does not constitute outrageous behavior

  • However, repeated annoyances or harassment coupled with threats are considered outrageous

• The mental distress suffered by the plaintiff must be severe

  • Many states require that this mental distress be manifested by some form of physical injury, discomfort, or illness, such as nausea, ulcers, headaches, or miscarriage

    • This requirement is intended to prevent false claims

      • Some states have abandoned this requirement

  • Examples Shame, humiliation, embarrassment, anger, fear, and worry constitute severe mental distress

12. Malicious Prosecution [Intentional Torts]

• Malicious prosecution is a lawsuit in which the original defendant sues the original plaintiff for improperly filing a lawsuit

• To succeed in a malicious prosecution lawsuit, the courts require the plaintiff to prove ALL of the following:

  1. The plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit

  2. There was no probable cause for the first lawsuit (i.e., it was a frivolous lawsuit)

  3. The plaintiff in the original action brought it with malice

     • Caution: this is a very difficult element to prove

  4. The original lawsuit was terminated in favor of the original defendant (now the plaintiff)

  5. The current plaintiff suffered injury as a result of the original lawsuit

Unintentional Torts (Negligence)

• Negligence is the omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do

  • Under unintentional tort (negligence), a person is liable for harm that is the foreseeable consequence of his or her actions

• To be successful in a negligence lawsuit, the plaintiff must prove ALL 5 elements:

  1. The defendant owed a duty of care to the plaintiff

  2. The defendant breached this duty of care,

  3. The plaintiff suffered injury

  4. The defendant’s negligent act was the actual cause of plaintiff’s injury

  5. The defendant’s negligent act was the proximate cause of the plaintiff’s injuries

Element 1: Duty of Care [Negligence]

• Duty of care is the obligation people owe each other not to cause any unreasonable harm or risk of harm

• Tests used to determine whether a defendant owes a duty of care:

  1. Reasonable person standard: the courts attempt to determine how an objective, careful, and conscientious person would have acted in the same circumstances

     • Then measure the defendant’s conduct against that standard

  2. Reasonable professional standard: the courts attempt to determine how an objective, careful, and conscientious equivalent professional would have acted in the same circumstances

     • Then measure the defendant professional’s conduct against that standard

     • Applied to defendants with a particular expertise or competence

Case 5.2: Duty

• Case

  • Stevens v. M T R Gaming Group, Inc.

  • 788 S.E.2d 59 (2016)

  • Supreme Court of Appeals of West Virginia

• Facts

  • Plaintiff is the widow of a compulsive gambler who spent his family and employer’s money and eventually took his own life because of his gambling addiction

• Issue

  • Did the defendants owe a duty to prevent plaintiff’s compulsive gambling?

• Decision

  • The court held that defendants MTR and IGT were not negligent

Element 2: Breach of Duty of Care [Negligence]

• Once a court finds that the defendant owed the plaintiff a duty of care, it must determine whether the defendant breached that duty

• A breach of duty of care is a failure to exercise care or to act as a reasonable person would act

• A breach of duty may consist of an action or failure to act when there is a duty to act

  • Example A firefighter who refuses to put out a fire when her safety is not at stake breaches her duty of care for failing to act when she has a duty to act.

Element 3: Injury to Plaintiff [Negligence]

• Even though a defendant’s negligent act may have breached a duty of care owed to the plaintiff, this breach is not actionable unless the plaintiff suffers injury

• Injury is a plaintiff’s personal injury or damage to the his or her property that enables him or her to recover monetary damages for the defendant’s negligence

• Damages cannot be recovered if the plaintiff suffered no injury

• Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession

Case 5.3 Negligence

• Case

  • Reckis v. Johnson & Johnson

  • 28 N.E.3d 445 (2015)

• Facts

  • A father bought a bottle of Children’s Motrin, which contained no warnings about certain signs of allergic reactions

  • His child became very ill

• Issue

  • Did the evidence support the finding of negligence and the award of damages?

• Decision

  • The Supreme Judicial Court of Massachusetts affirmed the trial court’s findings of negligence by Johnson & Johnson and the award of damages

Element 4: Actual Case [Negligence]

• Actual cause (causation in fact) is the actual cause of negligence

• A person who commits a negligent act is not liable unless actual cause can be proven

• The test is: “But for” the defendant’s conduct, would the accident have happened? If the defendant’s act caused the plaintiff’s injuries, there is causation in fact

• If two (or more) persons are liable for negligently causing the plaintiff’s injuries, both (or all) can be held liable to the plaintiff if each of their acts is a substantial factor in causing the plaintiff’s injuries

Element 5: Proximate Case [Negligence]

• Proximate cause (legal cause) is a point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions

• The general test of proximate cause is foreseeability

  • A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff

    • Situations are examined on a case-by-case basis

  • The defendant is liable only for the foreseeable consequences of his or her negligent act

• Palsgraf v. The Long Island Railroad Company - “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.”

Special Negligence Doctrines

• The courts have developed many special negligence doctrines

  • Professional Malpractice

  • Negligent Infliction of Emotional Distress

  • Negligence Per Se

  • Res Ipsa loquitur

  • Gross Negligence

  • Attractive Nuisance Doctrine

  • Good Samaritan Laws

Professional Malpractice

• Professionals, such as doctors, lawyers, architects, accountants, and others, owe a duty of ordinary care in providing their services

  • This duty is known as the reasonable professional standard

• Professional malpractice is the liability of a professional who breaches his or her duty of ordinary care

Negligent Infliction of Emotional Distress

• Negligent infliction of emotional distress is a tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct

• The most common example of negligent infliction of emotional distress involves bystanders who witness the injury or death of a relative that is caused by another’s negligent conduct

• Under this tort, the bystander, even though not physically injured personally, may be able to recover damages against the negligent party for his or her own mental suffering

• Many states require that the following elements are proved in bystander cases:

  1. A close relative was killed or injured by the defendant

  2. The plaintiff suffered severe emotional distress

  3. The plaintiff’s mental distress resulted from a sensory and contemporaneous observance of the accident

• Some states require that the plaintiff’s mental distress be manifested by some physical injury; other states have eliminated this requirement

Negligence Per Se

• Negligence per se is a violation of a statute or an ordinance constitutes the breach of the duty of care

• The plaintiff in such an action must prove ALL of the following:

  1. A statute existed

  2. The statute was enacted to prevent the type of injury suffered

  3. The plaintiff was within a class of persons meant to be protected by the statute

Res Ipsa Loquitur

• If a defendant is in control of a situation in which a plaintiff has been injured and has superior knowledge of the circumstances surrounding the injury, the plaintiff might have difficulty proving the defendant’s negligence

• Res ipsa loquitur is a tort in which the presumption of negligence arises because (1) the defendant had exclusive control of the situation that caused the plaintiff’s injury and (2) the plaintiff would not have suffered injury but for someone’s negligence

  • The burden switches to the defendant to prove that he or she was not negligent

Gross Negligence

• Gross negligence is a finding that a person has engaged in willful misconduct or reckless behavior that caused injury or death to another person

• People who engage in wanton and reckless conduct usually have no intent to cause harm to others

  • However, they perform an act that they know or should have known is so unreasonable and dangerous that it is likely to cause harm

• Because the definition of gross negligence is vague, a claim for gross negligence is often difficult to prove

• Punitive damages may be assessed

Attractive Nuisance Doctrine

• The attractive nuisance doctrine is a special tort rule that imposes liability on a landowner to children who have trespassed onto his or her property with the intent to play on the attractive nuisance and are killed or injured while doing so

  • Examples machinery, abandoned refrigerators, junk yards

• The underlying reason for this doctrine is that children, due to their youth, do not understand the potential risk associated with the hazard

• To find the landowner liable to the child, the attraction must pose an unreasonable risk of death or serious bodily harm

• The landowner owes a duty to remove the dangerous condition or take steps to prevent children from reaching the dangerous object

Good Samaritan Laws

• Good Samaritan laws are statutes that relieve medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations

• No relief for gross negligence or intentional or reckless conduct

• Laypersons not trained in CPR are not covered

Defenses Against Negligence

• A defendant in a negligence lawsuit may raise several defenses to the imposition of liability

  • Superseding or Intervening Event

  • Assumption of the Risk

  • Contributory Negligence

  • Comparative Negligence

    • Pure

    • Partial (50% Rule)

Superseding or Intervening Event

• Under negligence, a person is liable only for foreseeable events

• A superseding or intervening event is an event for which a defendant is not responsible

  • The defendant is not liable for injuries caused by the superseding or intervening event

• Example Assume that an avid golfer negligently hits a spectator with a golf ball, knocking the spectator unconscious. While lying on the ground, waiting for an ambulance to come, the spectator is struck by a bolt of lightning and killed. The golfer is liable for the injuries caused by the golf ball. He is not liable for the death of the spectator, however, because the lightning bolt was an unforeseen intervening event.

Assumption of the Risk

• If a plaintiff knows of and voluntarily enters into or participates in a risky activity that results in injury, the law recognizes that the plaintiff assumed, or took on, the risk involved

• Assumption of the risk is a defense that a defendant can use against a plaintiff who knowingly and voluntarily participates in a risky activity that results in injury

  • This defense assumes that the plaintiff (1) had knowledge of the specific risk and (2) voluntarily assumed that risk

• Example A race-car driver assumes the risk of being injured or killed in a crash.

Case 5.4 Assumption of the Risk

• Case

  • Roberts v. Jackson Hole Mountain Resort Corporation

  • U.S. Ct. of Appeals for 10th Circuit, 884 F.3d 967 (2018)

• Facts

  • A ski resort allowed skiers to use an ungroomed and natural slope

  • Plaintiff used the slope and was severely injured

• Issue

  • Does assumption of the risk preclude liability for injuries resulting from the dangers inherent in snow tubing?

• Decision

  • The U.S. court of appeals affirmed the district court’s grant of summary judgment to the defendant

Contributory Negligence

• Contributory negligence is a doctrine that says a plaintiff who is partially at fault for his or her own injuries cannot recover against negligent defendant

• Example Suppose a driver who is driving over the speed limit negligently hits and injures a pedestrian who is jaywalking against a red “Don’t Walk” sign. Suppose the jury finds that the driver is 80 percent responsible for the accident and that the jaywalker is 20 percent responsible. The pedestrian suffered $100,000 in injuries. Under the doctrine of contributory negligence, the pedestrian cannot recover any damages from the driver.

Comparative Negligence

• Comparative negligence (comparative fault) is a doctrine under which damages are apportioned according to fault

  • Pure comparative negligence

  • Partial comparative negligence (modified, 50% rule) is a rule that provides that a plaintiff must be less than 50% responsible for causing his or her own injuries to recover under comparative negligence; otherwise, contributory negligence applies

Strict Liability

• Strict liability is liability without fault

  • That is, a participant in a covered activity will be held liable for any injuries caused by the activity, even if he or she was not negligent

• This doctrine holds that

  1. There are certain activities that can place the public at risk of injury even if reasonable care is taken, AND

  2. That the public should have some means of compensation if such injury occurs

• Strict liability is imposed for abnormally dangerous activities that cause injury or death

  • Examples Activities such as crop dusting, blasting, fumigation, burning of fields, storage of explosives, and the keeping of animals and pets.