EXAM 2 NOTES

 INTENTIONAL TORTS AND BUSINESS TORTS

• A tort may be a crime, and a crime may be a tort

• A tort is a violation of a duty imposed by civil law

TYPES OF TORTS

• There are many intentional torts, but only one unintentional tort

• Defamation: making a false statement about someone - written or verbal

• Negligence: only unintentional tort. Ex. performing the wrong surgery

• Interference with contract: stealing a client away from a competitor

• Fraud: offering to sell something that doesn't exist

• *Assault and battery: the unlawful touching of another

TORT vs CRIMINAL/CONTRACT LAW

• Criminal law: behavior classified as dangerous to society; prosecuted by the government, whether the victim wants to prosecute or not; money award goes to the government

• Contract law: based on breach of an agreement between the two parties; victim prosecutes and receives compensation or restitution

• Tort Law: based on an obligation imposed by law with no agreement needed between parties; plaintiff/victim prosecutes/sues and receives compensation or restitution (files a lawsuit)

CATEGORIES OF TORT LAW

• Intentional torts: do 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.)

  • Includes business torts, a category of torts perpetrated almost exclusively by business entities

• Negligence and Strict Liability

  • Negligence is the non-intentional tort

Elements: an element is something that a plaintiff must prove to win a lawsuit

Plaintiff: party (person or corporation) who brings the lawsuit because he was injured and sues

Defendant: party (person or corporation) who is being sued

BATTERY AND ASSAULT

• Intentional tort

• *Battery is the touching of another person in a way that is unwanted or offensive

  • The touch doesn't 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

  • If there is no imminent battery, it is tried as a battery

• Assault is an action that causes the victim to fear an imminent battery

  • Assault can occur without the battery ever happening

  • *Pulling a gun on someone, even if it is unloaded, is usually considered assault (on exam, it is assault)

FALSE IMPRISONMENT

• Intentional tort

• False imprisonment is the restrain of someone against their will and without reasonable cause

  • Ex: 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)

TRESPASS, CONVERSION, FRAUD, AND NUISANCE

• Intentional torts

• Trespass is intentionally entering land that belongs to someone else or remaining after being asked to leave

  • Keeping an object, such as a vehicle, on someone else's land and refusing to move it is also trespassing

  • You may be trespassing if you enter someone’s property mistakenly believing it is public property

• *Conversion is taking or using someone's property without consent (civil law version of theft)

• Fraud is injuring another person by deliberate deception (lying is fraud)

• *Nuisance is an activity of one’s property that endangers the life or health of another or interferes with the reasonable and comfortable use of the property of another

DEFAMATION

• Intentional tort

• Defamation is irresponsible speech to harm another’s reputation

• Two kinds of defamation:

  • Written defamation is libel

  • Verbal defamation is slander (spoken = slander)

• 4 facts/evidence to prove to win a defamation suit:

  • The defamatory statement was actually made

  • The statement is false

  • The statement was communicated to someone other than the plaintiff

  • In slander cases, the plaintiff must show some injury that resulted from the defamation

• Slander per se: some statements are so harsh and potentially damaging that the plaintiff is assumed to be damaged and does not have to prove injury

  • Accusations of committing a serious crime

  • Claims of having a sexually transmitted disease or of being an unchaste woman (gender bias in the law)

  • Alleged professional incompetence

• 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

• YEAGLE v. COLLEGIATE TIMES

  • Yeagle was named “director of butt licking” in an article written by the Collegiate Times

  • She sued the paper, the students, and Virginia Tech

  • The judge rules against Yeagle, stating that the title is too absurd and exaggerated that no one would ever believe it

  • She appealed to the VA Supreme Court, which also ruled and affirmed the Circuit court ruling

• 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 (meaning they have a depraved heart and wanted actually to harm the celebrity)

  • Almost impossible for a public figure to win a defamation case because they need to prove there was actual malice

• Privilege

  • Defendants receive extra protection in special cases

  • In courtrooms and legislatures, speakers have absolute privilege. They may speak freely, as long as it is true

  • When information is legitimately needed, the speaker giving it has a qualified privilege. This may happen when someone reports a suspected criminal act.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• Intentional tort

• 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

  • The behavior causing the injury must be extreme and outrageous

  • Must have caused serious emotional harm

  • Snyder v. Westboro Baptist Church (she suffered emotional distress and needed psychiatric care after the church was protesting her dead son during the funeral procession)

BUSINESS TORTS

• Intentional torts that occur almost exclusively in a business setting are called business torts

INTERFERENCE WITH BUSINESS RELATIONS

• Intentional Tort

• If there is a breach of contract, the one who does the intentional act to break the contract is at fault

• 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

• The defendant can justify the interference if he can prove one or more of these elements:

  • He was protecting an existing economic interest

  • He was protecting a public interest

  • The existing contract could be terminated at will by either party

• Interference with prospective advantage exists:

  • When there is a relationship which give the plaintiff a reasonable expectation of economic advantage, even though no contract exists

  • When the defendant maliciously interferes and prevents the relationship from developing

• Business entities rely on their reputation and the quality of their products and services to attract and keep clients or customers

• That is why state unfair competition laws protect businesses from disparaging statements by competitors

• *disparagement: statement that is an untrue statement made by one person or business…

PRIVACY AND PUBLICITY (INTRUSION)

• Intentional tort

• Intrusion (prying into someone’s private life) is a tort if a reasonable person would find it offensive

  • Wiretapping, stalking, peeping

• Technology is creating new ways for a person’s privacy to be exploited, and therefore creating a demand for new laws

  • **The Electronic Communications Privacy Act (ECPA) prohibits unauthorized interception and disclosure of wire and electronic communication

  • The Stored Communications Act prohibits unauthorized access to a facility through which an electronic service is provided

  • **Commercial exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission

TORT REFORM

• About half of the states have passed statutory limits on tort awards

  • In most cases, a jury can award whatever seems reasonable for economic damages

  • Non-economic damages usually may not exceed a prescribed limit, such as 3 times the economic damages, or a flat cap such as $250000 total

DEFENSES

Assault and battery

• Permission 

• Self-defense 

• Ability  (to do the act)

Conversion

• Permission

• Ownership 

Trespass

• Necessity but still liable for any damages

Nuisance

• If one moves to the nuisance

Defamation 

• Truth

• Privilege 

False Imprisonment

• Knowledge 

DAMAGES

• Damages are the same for intentional and unintentional torts

• 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. This cannot be done in the future

    • 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 plaintiff from working

      • To compensate for pain and suffering

• Punitive Damages

  • While the purpose of compensatory damages is to help the victim to recover what was lost, punitive damages are intended to punish the liable party

    • Intended for conduct that is outrageous and extreme

    • Designed to “make an example” out of the defendant

    • Should deter others from doing the same conduct and prevent this defendant from repeating actions

  • Sometimes punitive damage awards are huge, but in most cases, they are close to or less than the amount of compensatory damages awarded

NEGLIGENCE AND STRICT LIABILITY

• KEY TERMS:

  • Elements of Negligence (the preponderance of evidence proves every element)

  • **Contributory Negligence

  • Comparative Negligence

  • Dram Shop Laws

  • Licensee v. Invitee v. Children v. Trespassers

  • Assumption of the risk

  • Res Ipsa Loquitor

  • Product liability/strict liability

NEGLIGENCE

• Only unintentional tort. It's not like intentional torts, assault, battery, or  trespassing…its an accident

• To win a negligence case, the plaintiff must prove that the defendant failed in five areas:

  • Duty of due care: there must be a duty owed to the plaintiff

  • Breach: duty must be breached

  • Factual Cause: the injury must have been caused by the defendant’s actions

  • Proximate Cause: it must have been foreseeable that the action would cause this kind of harm

  • Damages: the plaintiff must have been hurt

• Elements of Negligence

  • 1: Duty of Due Care: must be a duty owed to the plaintiff (what a reasonable person would do in that situation)

    • If the defendant could have foreseen injury to a particular person, she has a duty to him

    • In some states, a social host serving alcohol to an adult may be found liable for harm done by the person drinking the alcohol

      • It is foreseeable that someone served too much alcohol could injury himself or others

    • Many states have “dram shop laws”, making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm

      • Virginia does not have a dram shop law

      • If there’s a gun on the exam, it is considered assault

    • Owners of property owe a duty of care to persons on their property depending on the person’s status

    • Special Duty: Landowners

      • Different duties owed to people entering your property depending on how you are classified

        • Duty to Trespassers: not ot injure intentionally

        • Duty to Children: if a man-made item on the land attracts children (under 18), landowner may be liable (attractive nuisance)

        • Duty to Licensees: a licensee is entitled to a warning of hidden dangers that the owner knows about

          • Licensee: social guests or someone who is doing work on your property

            • With social guests, you must have actual knowledge of danger to be liable

          • People with invitations, memberships, etc are known as licensees 

        • Duty to Invitees: to exercise reasonable care to protect invitees against dangerous conditions that the possessor should know of, but the invitees are unlikely to discover

          • Invitee: someone who has a right to be on the property because it is a public place or a business open with invitees. The owner 

            • you are liable even if you had no idea that something on your property posed a hidden danger

      • Special Duty of Care: Professionals

        • Professionals, like doctors, lawyers, architects, accountants, and others owe a duty of ordinary care in providing their services. This is known as the reasonable professional standard.

        • While on the job, they must act as a reasonable person

        • A professional who breaches this duty of care is liable for the injury his or her negligence causes.

        • This liability is commonly known as professional malpractice

      • Special Duty of Care: Hiring & Retention

        • Companies must beware because they can be liable for hiring or retaining violent employees

    • Affirmative Duty to Act: Remember in general, the common law does not require a bystander to assist a person in danger

  • Breach: duty must be breached

  • Factual cause: the injury must have been caused by the defendant’s actions

  • Proximate cause: it must have been foreseeable that the action would cause this kind of harm

  • Damages: the plaintiff must have been hurt

PRACTICE QUESTION:

Accountant Aaron, employed with KPMG, is given a tax return to prepare for the April 15, 2019, tax deadline. Accountant Aaron fails to prepare the taxes in time for the client to file for the April 15, 2019 tax deadline. Which statement is correct?

1. Aaron has committed the intentional tort of professional malpractice because he intentionally failed to prepare the tax returns by April 15, 2019

2. Aaron has committed the intentional tort of negligence

3. Aaron has committed the unintentional tort of negligence

4. Aaron has committed the unintentional tort of conversion

5. A and B

• 2: Breach of duty

  • A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances

  • The status of the person on the property

  • Companies and employees: courts have found companies liable for hiring and retaining employees known to be violent when those employees later injured co-workers

  • Negligence per se: in special cases, legislatures set a minimum standard for certain groups of people (esp. children). When a violation of that statute hurts a member of that group, the duty is breached. In other words, this applies when a defendant has violated a statute enacted to prevent a certain type of harm from occurring to a specific grouop to which the plaintiff belongs

• 3: Factual Cause and Foreseeable Harm

  • If the defendant's breach ultimately led to the injury, he is liable.

    • Doesn't have to be the immediate cause of injury, but must be the first in the direct line

• 4: Proximate Cause

  • To be liable, this type of harm must be foreseeable 

    • The defendant doesn’t have to know exactly what would happen, just the type of event

    • Res Ipsa Loquitur: special case in which the plaintiff does NOT have the burden of proof

      • Indicates that a breach of a party’s duty of care may be inferred from the events that occurred. In other words, the negligence is so obvious taht you can tell that someone had to be negligent in what happened

      • In a few cases, the defendant must prove he was not negligent or the facts imply that his negligence did not cause the injury

      • The doctrine of res ipsa loquitur raises a presumption of negligence and switches the burden to the defendant to prove that he was not negligent

        • The defendant had exclusive control of the instrumentality or situation that caused the plaintiff’s injury

        • The injury would not have occurred ordinarily but for someone’s negligence

        • Types of cases: commercial airplane crashes or falling elevators

INJURY AND DAMAGES:

• Injury: the plaintiff must show genuine injury

• Future injury may be compensated but must be determined at the time of the trial

• A bystander, unharmed physically, may recover for  emotional distress if:

  • They were near the scene of the injury

  • Seeing the injury caused immediate shock

  • They are a close relative of the (physical) victim

• Damages: are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive

• Same as intentional torts!

NEGLIGENCE:

• Contributory Negligence

  • In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant (active in VA)

  • Comparative Negligence

    • In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff

    • The plaintiff can recover from the defendant to the percentage that the defendant is negligent.

    • In some cases, a plaintiff found to be more than 50% negligent cannot recover at all

ASSUMPTION OF THE RISK:

• A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured

  • This rule applies to a situation where the danger is well-known and the participant chooses to be present

 TIME LIMITS: TORT vs. CONTRACT:

• In a tort for either intentional tort or negligence, you only have two years to file a lawsuit (2 year statute of limitations)

  • Statute of Limitations in Tort

    • Economic loss doctrine: when an injury is purely economic, and arises from a contract made by two businesses, the injured party may only sue under the UCC

    • The four year statute of limitations will apply in all cases of economic loss

  • A Final Issue: Statutes of Repose

    • A statute of repose places an absolute limit on when a lawsuit may be filed, regardless of when the defect is discovered

STRICT LIABILITY/PRODUCT LIABILITY

• Some activities are so dangerous that the law imposes a high burden on them.  This is called strict liability

  • Ultrahazardous activities:  defendants are virtually always held liable for harm

    • What are ultrahazardous: includes using harmful chemicals, and explosives, and keeping wild animals. 

    • The plaintiff does not have to prove breach of duty or foreseeable harm (proximate cause)

    • Comparative negligence doesn’t apply; the defendant engaging in ultrahazardous activity is wholly liable

  • Defective products: may incur strict liability

    • Defective products often cause a person’s injury. The injured party can sue a product manufacturer or seller for product liability. A plaintiff can sue a party– usually the manufacturer–for being negligent in producing a defective product that caused the plaintiff’s injury. Strict liability removes many of the difficulties for the plaintiff associated with negligence lawsuits

    • Unlike negligence, strict liability does not require the injured person to prove that the defendant breached a duty of care. Strict liability without fault. A seller can be found strictly liable even though the seller has exercised all possible care in preparing and selling the seller's product.

  • The owner of the party has the duty of care to tell the invitee of any potential dangers there could be at the event

  • The doctrine of strict liability applies to sellers who are engaged in the business of selling and leasing products. Casual sales and transactions by non-merchants are not covered.

  • All parties in the chain of distribution of a defective product are strictly liable for the injuries caused by that product. All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufactures may be sued and assessed liability under the doctrine of strict liability

STRICT LIABILITY OF PRODUCTS:

• Need not prove that the defendant's conduct was unreasonable.

• Strict liability of products may be imposed if:

  • ***seller is in business to sell this product. The defective condition is unreasonably dangerous to the user. 

  • The product reaches the user without substantial change

• Strict liability may be imposed even if:

  • The seller exercised all reasonable care

  • There is no contractual relationship

• In negligence cases, plaintiffs most often raise one or more of these claims

  • Negligent designs

  • Negligent manufacture

  • Failure to warn

• Where a sales contract includes proper disclaimers or remedy limitations, a buyer barred from a negligence case may have no remedy at all

CONTEMPORARY TRENDS:

• Strict liability may be imposed based on design defect, manufacture defect or failure to warn

• Tests to measure design and warning cases include:

  • Consumer expectation: if the design causes the product to be less safe than expected

  • Risk-Utility tests: weigh the value of the product, gravity and likelihood of the danger, feasibility fo a safer design, and adverse consequences of a safer design

PRODUCT LIABILITY

• When goods cause injury, there’s a question of product liability

• There are two main issues related to product liability that you need to be concerned with:

  • Negligence: unreasonable conduct by the defendant

  • Strict Liability: a policy that holds the defendant liable regardless of his behavior. A defective product causes strict liability

DEFENSES TO PRODUCT LIABILITY

• Generally known danger: some products are inherently dangerous and are known to the general population to be so

• Abnormal misuse of the product

• Supervening event: the manufacturer is not liable if a product is materially altered or modified after it leaves the seller’s possession and the altered or modified after it leaves the seller’s possession and the alteration or modification causes injury

STRICT LIABILITY

• One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

  • The seller is engaged in the business of selling such a product

  • It is expected to and does reach the user and consumer without substantial change in the condition in which it is sold

• In negligence cases, plaintiffs most often raise one or more of these claims:

  • Negligent design

  • Negligent manufacture

  • Failure to warn

• Where a sales contract includes proper disclaimers or remedy limitations, a buyer barred from a negligence case may have no remedy at all

OTHER LEGISLATION

• ***Magnuson-Moss Warranty Act

  • Protects purchasers of household goods by ensuring fairness in warranties

• Consumer protection laws

  • Focus on a merchant’s bad faith or deceit

• Lemon laws

  • Entitle buyers of cars to return them for a refund after a reasonable time if the car has substantial defects.