Module 9

What two notions serve as the basis of all torts?

Wrongs and compensation

What is tort law designed for?

To compensate those who have suffered a loss or injury due to another person’s wrongful act

Protected interests

Personal safety: Physical or emotional injury or interference with physical or emotional security and freedom. Tort law also provides remedies for acts that cause destruction of or damage to property

Damage

Harm or injury to persons or property

DamageS

A MONETARY award sought as a remedy for a breach of contract or a tortious action

Compensatory damages

A monetary award that is = to the actual value of injuries/damages sustained

• What is the goal? To make the plaintiffs whole and put them in the same position they would have been in had the tort not occurred

What are the two types of compensatory damages?

Special and general damages

Special damages

Compensate plaintiffs for quantifiable monetary losses, like medical expenses, lost wages, extra costs, irreplaceable items, or the costs of repairing damaged property

General damages

Compensate individuals (NOT COMPANIES) for the non monetary aspects of the harm suffered, such as pain and suffering.

• Physical/emotional pain and suffering, loss of companionship, loss of spousal relationship (consortium), disfigurement, loss of reputation, or loss of impairment

Punitive damages

Punish the wrongdoers and deter others from similar wrongdoing. They are awarded to the plaintiff. This is only appropriate when the defendant’s conduct was particularly egregious or blameworthy.

Are punitive damages common?

No. They are available mainly in intentional tort actions and rarely in negligence lawsuits.

• But they may be awarded when gross negligence is involved

• WHY are they uncommon? Because they are subject to limitations imposed by due process clause of the US Constitution

Gross negligence

Intentional failure to perform a manifest duty in reckless disregard of the effect on the life or property of another

What are the limits to the amount of damages (punitive and general) that can be awarded to a plaintiff?

250,000 to 750,000 in noneconomic general damages (pain and suffering), especially in medical malpractice suits.

• More than 30 states have limited punitive damages, with some imposing outright bans

What are the two broad classifications of torts?

Intentional and unintentional (negligence)

Intentional tort

Intentional violation of persons or property (fault WITH INTENT)

Unintentional/Negligence

Breach of a duty to act reasonable (fault WITHOUT INTENT. Unintentional carelessness)

Defense

A reason why the plaintiff should not obtain damages (money)

A successful defense ____ the defendant from partial/full liability for the tortious act.

Releases

What is a common defense to intentional torts against persons?

Consent. If a person consents to an action that would otherwise be considered an intentional tort, they cannot later sue for damages related to that action.

What is the MOST common defense in negligence?

Comparative negligence

What is the common statute of limitations for torts?

2 years from the date of discovering the harm

Tortfeasor

The one committing the tort. They must INTEND to commit an act, and the consequences must interfere with the personal or business interests or another in a way not permitted by law.

Do the intentions have to be evil or harmful?

No. They can even have a beneficial motive.

• So then what does tort mean? Intent means only that the person intended the consequences of the act or knew with substantial certainty that certain consequences would result from the act.

  • If I push you, you will fall down. This is a normal consequence.

Transferred intent

When a defendant intends to harm one individual but unintentionally harms a different person. This is called transferred intent.

• The “different person” can still sue.

Assault

Any intentional or unexcused threat of immediate harmful or offensive contact.

• Words or acts that create a reasonable apprehension of harmful contact

• Ex. Pointing a gun

Does any assault have to have contact with the plaintiff?

No. Assault can be completed if the defendant’s conduct causes the plaintiff to be wary of imminent harm.

Battery

Goes hand in hand with assault; is assault COMPLETED.

• An unexcused and harmful/offensive physical contact that is intentionally performed.Can be harmful or offensive (unwanted kiss).

• Ex. Firing a gun and hitting the person

How does a plaintiff get compensation for battery?

If the plaintiff shows that there was contact, and the jury/judge agrees that the contact was offensive based on the reasonable person standard.

• Plaintiff can be compensated for the emotional harm resulting from a battery, as well as for physical harm.

• Defendants can use self defense or defense of others to justify their conduct, though

False imprisonment

The intentional confinement or restraint of another person’s activities without justification.

• Interferes with the freedom to move without restraint.

What are some ways that confinement can be accomplished?

Physical barriers, physical restraint, or threats of physical force. Plaintiff cannot consent or else the case is moot.

• Ex: Businesspersons can be sued for false imprisonment after they have attempted to confine a suspected shoplifter for questioning

  • But they can fight it using privilege to detain. This means that a merchant can use reasonable force/reasonable manners to detain a person suspected of shoplifting

Intentional infliction of emotional distress (IIED)

Extreme and outrageous conduct resulting in severe emotional distress to another. The conduct must be so extreme that it exceeds the bounds of decency accepted by society (this makes it actionable).

What is an example of an IIED?

Repeated stalking (an annoyance) coupled with threats. But actions that cause annoyance alone are usually not enough.

Can corporations recover damages for IIED?

Not usually, because they lack the ability to experience emotions.

Is outrageous speech against a public figure protected against IIED?

Yes because this speech is protected against the first ammendment.

Defamation

Wrongfully hurting a person’s good reputation.

• Every person has a general duty to refrain from making false, defamatory statements of fact on others

Subgroups of defamation

Libel and slander

Libel

Defamation in writing or another permanent form (such as digital recording)

Slander

Oral defamation

How can a plaintiff prove defamation?

1. The defendant made a false statement or fact

2. The statement was about the plaintiff and intended to harm the plaintiff’s reputation

3. The statement was published to at least one person OTHER than the plaintiff

4. Plaintiffs who are public figures must prove actual malice.

Statement of opinion vs statement of fact

Lane is a jerk vs Lane cheats on his taxes

Publication

The defamatory statements are communicated to persons other than the defamed party.

• Ex: Dictating a letter, 3rd party overhearing, etc.

Damages for libel

They usually get general damages.

• Disgrace of dishonor in the eyes of the community, humiliation, injured reputation, emotional distress

Damages for slander

Plaintiff must PROVE special damages to establish the defendant’s liability.

• They must show that the slanderous statement caused the plaintiff to suffer actual economic or monetary loss

  • WHY? Because slander is temporary, whereas libel is more permanent.

What are potential defenses to defamation?

The truth, privilege, or concerning a public figure

Privilege/immunity

A special right/advantage that enables someone to avoid liability for defamation. There are two types.

• Absolute: Attorneys, udges, government officials. Only in judicial proceedings and some governmental.

• Qualified/conditional: Employer’s statements in written employee evaluations, if statements are made in good faith and publications are limits to those who have legitimate interest in the communication

Public figures and defamation

Public figures have a greater burden of proof in defamation cases than private individuals do. They must prove actual malice and that the defamer knew the statements were false.

What is an example of invasion of privacy tort?

Revenge porn

Individuals can sue on the basis of…

• Invasion of privacy

• Public disclosure of private facts

• Intentional infliction of emotional distress

What acts qualify as invasion of privacy?

1. Intrusion into an individual’s affairs or home

2. Publication of information that places a person in a false light

3. Public disclosure of private facts

4. Appropriation of identity

Tort of appropriation

The use of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user

Fraudulent misrepresentation

Leads another to believe in a condition that is different from the condition that actually exists.

1. The misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth.

2. An intent to induce another to rely on the misrepresentation

3. Justifiable reliance on the deceived party

4. Damage suffered as a result of the reliance

5. A causal connection between the misrepresentation and the injury suffered

Puffery

Seller’s talk; “I am the best accountant in town”

What is the key difference between intentional and negligent misrepresentation?

Whether the person making the misrepresentation had actual knowledge of its falsity

Business tort

Wrongful interference with another’s business rights. Two categories:

• Wrongful interference with a contractual relationship

• Wrong interference with a business relationship

Wrongful interference with a contractual relationship

1. Valid, enforceable contract must exist between two parties

2. A third party must know that this contract exists

3. A third party must intentionally induce a party to breach the contract

   1. The third party committed the tort

Wrongful interference with a business relationship

There is a difference between competitive methods and predatory behavior.

• Predatory behavior: Actions taken with the intention of driving competitors completely out of the market

  • But if the interference was justified or permissible, a person will not be liable (bona fide competitive behavior). Even if this causes A to break their contract with B, C will not be sued because of free competition

Intentional torts against property

These include trespass to land, trespass to personal property, and conversion.

• They interfere with an individual’s legal right to their land or personal property

  • Personal property: Moveable items and cash, stocks, and bonds (NOT things attached to the land)

Trespass to land

Anytime a person without permission…

1. Enters onto, above, or below the surface of land that is owned by another

2. Causes anything to enter onto land owned by another

3. Remains on land owned by another or permits anything to remain on it

   Ex: Walking on land, shooting a gun over the land, throwing rocks at someone’s building, constructing a building and part of it is on someone else’s land

Does land trespassing deal with actual harm to the land?

No, because the tort is designed to protect the right of an owner to exclusive possession.

What are defenses for trespassing?

Showing that the trespass was warranted. If the trespasser enters property to assist someone in danger, or if they have a license to come onto the land.

• Ex: A person who enters someone’s property to read an electric meter is a licensee (aka the one who is invited onto the land)

Trespass to property

When an individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner’s possession of personal property

• Harm = destruction and anything that diminishes its value, condition, or quality

• Also involves intentional meddling with their right to possess and barring an owner’s access to their personal property

Artisan’s lien

A defense to tort of trespass of property. An automobile repair shop can retain a customer’s car if they refuse to pay.

Conversion

Any act that deprives an owner of personal property or of the use of that property without the owner’s permission or just cause (civil side of theft)

• Failure to return property may still be conversion even if they were consensually given the property by the owner

• TLDR: Treating another person's property as one's own, without permission

How can you succeed in a negligence action?

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

2. Breach. The defendant breached that duty.

3. Causation of fact: The plaintiff’s injury would not have occurred without the defendant’s breach.

4. Proximate causation: The connection between the defendant’s breach and plaintiff’s injury is foreseeable and justifies imposing liability

5. Damages. The plaintiff suffered a legally recognizable injury.

Duty of care

People in society are free to act however they want as long as their actions don’t infringe on the interests of others

• Can be an act (lighting something on fire) or an omission (not putting out a fire)

How does a breach in duty of care get determined?

• What was the nature of the act (outrageous or common)

• What was the manner in which it was performed (cautiously or heedlessly)

• The nature of the injury (serious or slight)

Reasonable person standard

How would a reasonable person act in those circumstances? This is objective because it’s society’s judgement as to how a reasonable person SHOULD act.

Duty of landowners and business owners

Must exercise reasonable care for tenants and business invitees or else they may be deemed negligent

• Also have a duty to discover and remove any hidden damages

Malpractice

Professional negligence

• Patient can sue for medical malpractice, client can sue for legal malpractice

Causation

1. Was the defendant’s conduct the cause in fact of the plaintiff’s injury?

2. Was it the proximate cause?

Causation in fact

An act or omission without which an event would NOT HAVE OCCURRED.

• “But for” test

Proximate clause

Connection between an act and injury is strong enough to justify imposing liability

• This limits the scope of the defendant’s liability to a subset of the total number of potential plaintiffs that might have been harmed by the defendant’s actions

• Foreseeability: It is unfair to impose liability unless the defendant’s actions created a FORESEEABLE risk of injury

Good samaritan statute

People who provide emergency services or rescue someone CANNOT be sued for negligence unless they are reckless or cause more harm.

Dram shop acts

A bar owner or bartender CAN be held liable for injuries caused by a person who was too intoxicated at a bar

• Similar exists for hosts of parties (social hosts)

• It is not necessary to prove that the bar owner, bartender, or social host was negligent. It is still actionable.

What are the 3 affirmative defenses in negligence cases?

1. Assumption of risk

2. Superseding cause

3. Contributory or comparative negligence

Assumption of risk

A plaintiff who voluntarily enters into a risky situation, knowing the risk involved

Superseding clause

An unforeseeable intervening event that breaks the connection between an act and an injury

Contributory negligence

The harm suffered is partly the plaintiff’s own fault. Only a few jurisdictions still follow this doctrine.

Comparative negligence

Both the plaintiff and defendant negligence are computed, and the liability for damages is distributed accordingly

• 50 percent rule: A plaintiff who was more than 50 percent liable cannot recover any damages

Strict liability

Liability without fault.

• A party can be held responsible for damages or injuries, regardless of whether they were negligent or intended to cause harm

Abnormally dangerous activities

Blasting with dynamite. Keeping wild animals. Harmful product liability. Even if they do it carefully, the person is still responsible even if there is no fault.

Product liability

The liability of manufacturers, sellers, and lessors of goods to consumers, users, and bystanders for injuries/damages that are caused by the goods

Privity of contract

The relationship that exists between the parties to a contract. A product liability action DOES NOT require privity of contract.

Unreasonably dangerous product

1. Dangerous beyond the expectation of the ordinary customer

2. A less dangerous alternative was economically feasible but the manufacturer failed to produce it

Section 402A: How the doctrine of strict liability can be applied

1. Product must be in defective condition when the defendant sold it.

2. The defendant must normally be engaged in the business of selling that product.

3. The product must be unreasonably dangerous to the user or consumer because of its defective condition

4. The plaintiff must incur physical harm to self or property by use of consumption of the product

5. The defective condition must be the actual and lega cause of the injury or damage

6. The goods must not have been changed from the time the product was sold to the time the injury was sustained

Restatement (third) of torts

Manufacturing defects, design defects, and inadequate warnings