Tort Law: Intentional Torts & Liability

Basis of Tort Law

• Torts are civil wrongs other than a breach of contract.
• In tort actions, plaintiffs seek damages for a wrong and suffering.
• Torts are classified as: intentional torts; negligence for careless behavior; and strict liability for freak accidents.
• For defenses, plaintiffs may or may not win, and defendants can excuse their actions.

Intentional Torts

• Intent means doing the act that causes harm.
• No evil or harmful motive is required.
• It is only necessary to intend the act that results in the harm, not necessarily to intend the harm itself.
• A tortfeasor is the person committing the tort.
• Focus should be on the bad act taken.

Intentional Torts Against Persons (Personal Torts)

• Assault is an intentional, unexcused act creating reasonable apprehension or fear of immediate harmful or offensive contact in another person who must be aware of the act.
• Battery is an unexcused and harmful or offensive physical contact intentionally performed.
• Assault can lead to battery, and battery can include assault.
• No malice is necessary.
• An example is when held at gunpoint and get shot, that is battery.
• Hugs and kisses are unwelcome acts of battery.

Defenses to Assault and Battery

• Consent is a defense to assault and battery.
• If allowed physical act that caused fear, no Battery charge.
• Self-defense and defense of others are defenses to assault and battery, with reasonable defense in real and apparent danger and force used must be reasonably necessary.
• No deadly force can be used, and is never testified.

False Imprisonment

• False imprisonment is the intentional confinement or constraint of someone with a threat if you leave, and actual barrier.
• Barriers and restraints can be physical or oral threats of physical force.
• The person being restrained must not agree to the restraint.
• Most states give businesses a defense to detain shoplifters for a reasonable time and in a reasonable manner if the business has "probable cause."
• Cannot lock in dark room for days, but can make shoplifters stay for a few hours for further investigation.

Intentional Infliction of Emotional Distress

• To make a case for Intentional Infliction of Emotional Distress requires wanting for emotional stress, which must be extreme.
• It is difficult to prove, needing truly outrageous conduct, such as someone telling your parent you died.
• Evidence of physical symptoms, illness, or some emotional disturbance documented by medical or psychiatric evidence may be needed.
• Defenses:
  • Consent
  • When the outrageous speech is normal under the circumstances.
  • Speech directed at public figures need high burden.
  • Sports figures, entertainers, and presidents (Like Trump) find it hard to win torts against the media.
  • Media often hide behind the 1st amendment.

Defamation

• Defamation is wrongfully harming a person's good reputation.
• Types of Defamation:
  • Libel: written words
• Slander: oral words
• Truth is an absolute defense to defamation.
• Elements of Prima Facie Case of Defamation :
  • Defendant made a: false statement of fact
  • The statement understood as being about plaintiff and intended to harm P's reputation.
  • Published to: a third party- someone other than the plaintiff.
  • If Plaintiff is a public figure: he/she must also prove "actual malice" to win.
  • Actual malice means making statement knowing false or reckless disregard for the truth.

Damages for Defamation

• For libel proof of the libel is required, but general damages are presumed, proof of special damages is not necessary.
• For slander, plaintiff must prove that he suffered "special damages" before the defendant is liable.
• Exception – Slander Per Se – false statement is actionable without proof of "special damages."
• The 4 types of false statements are Per Se slanderous, and include a statement that:
  • A person has loathsome, communicable disease. Statements that a person has committed a statement that person has committed improprieties in their profession or trade, or a serious crime.
  • An unmarried woman is unchaste or is a whore or slut.

Defenses to Defamation

• Truth is an absolute defense and can hurt reputation.
• Privileged speech may be a defense
  • Absolute: like judicial proceedings or legislative proceedings--floor of congress
  • Qualified (conditional): made in good faith or to those with a legitimate interest in the communication
• Public Figure Plaintiffs: have a higher burden in proving defamation and must prove statement made with actual malice.

Invasion of the Right to Privacy

• Invasion of the Right to Privacy, which includes the right to solitude and freedom from prying public eyes.

Acts that Qualify as Invasion of Privacy

• Intrusion, such as when roommate works @bank or looks @your account or peeping toms
• False light, which is info that puts someone in a false light or causes others to cast out on their beliefs; can be true statements that are twisted
• Public disclosure of private facts such as revenge porn
• Appropriation of Identity, use of a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission.
  • Individual's right to privacy includes the right to the exclusive use of his or her identity.
  • Appropriation statutes are more specific, go to state law, easier for plaintiff to win.
  • Includes deciding for personal gain

Fraudulent Misrepresentation

• Fraudulent Misrepresentation Elements:
  • Misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth.
  • Intent to induce another to rely on the misrepresentation.
  • Justifiable reliance by the deceived party.
  • Damages suffered as a result of the reliance.
  • A causal connection between the misrepresentation and the injury.
• More than mere "puffery" (seller's talk) involves subjective terms, opinions rather than facts. Reliance on a statement of opinion may be fraud if the person making the statement has a superior knowledge of the subject matter.
• Negligent Misrepresentation is sometimes a cause for legal action.
• Abusive or Frivolous Litigation results in filing a lawsuit without a legitimate basis, is hard to prove, and can lead to a counterclaim by defendant.

Intentional Torts against Business Interests (Business Torts)

• Wrongful Interference with a Contractual Relationship requires that any lawful contract can be the basis for this action.
• Plaintiff must prove that defendant actually knew of the contract's existence and induced the breach of the contractual relationship.
• Requires three elements, which plaintiff must prove to win: and that there was a valid, enforceable contract between 2 parties; that the 3rd party knew of the contract; or that the 3ra party intentionally caused either of 2 parties to the contract to break the contract.

Wrongful Interference with a Business Relationship

• This is broader than contractual interference. Individuals may not interfere unreasonably with another's business to gain a share of the market.
• Predatory behavior means soliciting customers who have already shown an interest in a competitor's product or service.
• Three key elements, all of which must be met: An established business relationship; tortfeasor used predatory behavior (intent); and tortfeasor intentionally caused the business relationship to end.

Defenses to Wrongful Interference

• Bona fide competitive behavior
• Aggressive marketing and advertising strategies.

Intentional Torts against Property (Property Torts)

• The wrong is committed against an individual with legally recognized rights with regard to real or personal property.
• Real Property includes land and things permanently attached to that land (house). Personal Property includes other property-cars, boats, jewelry, accounts.

Trespass to Land

• A person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave.
• Does not have to harm, just have to prove they were there Leaving is tresspassing
• No harm to the land is necessary, and reasonable intrusion into air space is permitted.
• The owner must implicitly or expressly establish that the person is a trespasser by telling a guest to leave, and can't return, or posting "no trespassing signs."
• Expressly no permission granted
• Implicitly, there is no permission granted to anyone on the property to commit an illegal act.
• Trespasser is liable for damages caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains, except:
• "Reasonable Duty" – Some jurisdictions, by statute, are replacing common law rule with a "reasonable duty" rule that varies depending on the status of the parties.
• The owner would have a duty to warn in certain circumstances, and do not injure trespasser-willfully or must warn tress.

Exceptions for Children Trespassing

• "Attractive Nuisance" Doctrine states that young children do not assume the risk if they are attracted to the premises by some object.
• Such as children falling in pool, where landowner responsible.
• Owner can remove trespasser from the premises through reasonable force without being liable for assault and battery.
• Defenses to Trespass to Land include:
  • Trespasser enters to assist someone in danger, even if that person is a trespasser
  • Trespasser enters to protect property
  • Deadly force to protect property is almost always unreasonable.
  • In Katko v. Briney, trespass to farmhouse w/shot gun trap abandoned.

Trespass to Personal Property

• Can lead to conversion
• Definition – wrongfully harming or interfering with the personal property owner's right to the exclusive possession and enjoyment of their property.
• Involves intentional meddling.
• Defense - if the meddling was warranted.

Conversion

• Definition – any act that deprives an owner of personal property without the owner's permission and without just cause that places the property in the service of the trespasser or other person wanting for intending to keep
• Can include trespass to personal property
• Civil theft cases aren't limited to theft.
• Can include action for Trespass to Personal Property.
• Non-defenses:
• Good intentions or you didn't know the item you bought was stolen.
• First owner can still sue you for it.

Disparagement of Property

• Synonym is Defamation.
  • Slander of Quality (Trade Libel) involves products: Publication of false information about another's product, alleging it is not what its seller claims.
  • Actual damages must be proved to have proximately resulted from the statements about a competitor's products.
• Slander of Title or Evidence of ownership, means Publication denies or casts doubt on another's legal ownership of property, which results in financial loss to the owner and someone knowingly publishes an untrue statement about property with the intent of discouraging a third person from dealing with the person slandered with the truth.

Negligence (Unintentional Tort)

• No longer dealing with intentional acts; actor's conduct creates a foreseeable risk of harm/actor fails to live up to a required duty of care.

Elements of Negligence

• Duty: Actor (defendant) must owe a duty of care to the injured party (plaintiff).
• Breach: Defendant must breach that duty.
• Causation: Defendant's breach must cause plaintiff's injury.
• Damages: Plaintiff must suffer a legally recognizable injury.
• Must prove all 4
• Duty of Care is determined by its Breach through Reasonable Person Standard, where Circumstances dictate behavior.

Duty Of Landowners

• Landowners must exercise reasonable care to protect business invitees from harm based on category of person present on land, including:
  • Foreseeable risks that the owner knew about
  • Risks the owner should have known about, like that owner is invited on land, the owner makes $ from them.
• Example is a shopper-business invitee that slipps on gun pellets & got hurt and then Sues walmart and wins
• High duty to protect invitees.
• Generally, no duty to warn, but still may be liable for failure to maintain safe premises, but an exception is there may have duty to warn children:
  • Landowner has a duty to warn licensees invited socially of known risks, only must warn of things you know ab.
• Landowner has a duty to not willfully injure a trespasser.

No Duty to Rescue

• No duty to Rescue that is not legally required (generally) to go help stranger and behave as reasonable person , but exception that you put them in the situation, its hit & run instead stay put & call 911, *Do or didn't do duty,

Causation courts ask questions

• Is there cause in fact?
  • Did defendant cause the action?
• a. "If not for"
  • "But for" test – but for the breach of duty, the injury would not have occurred.

Is there proximate cause?

• Is the causal connection between an act and an injury strong enough to justify imposing legal liability?
• b. Foreseeability is the test for proximate cause after Palsgraf
  • if the consequences of the harm done to the victim of the harm is unforeseeable, no proximate cause.
• If no proximate cause, no legal liability.*

Palsgraf v. Long Island Railroad Co.

• waiting for passenger train and man late boarding train w/ package
• man drops package & explodes & causes beam to fall on her & brain damage
• trial ct: wins but Train Station Appeals-"there's a line to be drawn on causation
• they win.
• Factual & Proximal cause must be proven.*

Injury Requirement and Damages

• Must have legally recognizable injury (suffer some loss, harm, wrong, or invasion of a protected interest) and no injury, no recovery, *doesn't have to be physical(land, mental)

Special Negligence Statutes

1. Dram Shop Act requires

• Bar owner and bartender may be liable for injuries caused by a person who becomes intoxicated while drinking at the bar and/or for continuing to serve drinks to an intoxicated person.
• Social hosts - people hosting parties may be liable for injuries caused by guests who became intoxicated at the host's home.

2. Good Samaritan Statute, requires

• Persons who are aided voluntarily by others cannot sue the person who aided them for negligence is primarly passed to encourage health care
• Professional to voulentarily stop accidents

Defenses to Negligence

• 1&2 are in all states
• Assumption of the Risk that if voluntarily enter into a risky situation knowing the risk involved, you are not allowed to recover damages you may incur,
  • There are requirements of Knowledge of the risk and Voluntary assumption of the risk and can be by expressed agreement, can be implied by actions and, only assume normal risk carried by the activity and Some statutes protect classes of people
• Cannot imply equipment malfunction to employee.
• Employee cannot assume risk employees safety
• Risks are not deemed assumed in emergencies

2. Superseding Intervening Force, where
   • Arguing there's an outside force between what defendant did & what plaintiff suffered.

Defenses

1 We have duties to ourselves. - Negligence where if Plaintiff is also negligent, then Plaintiff has breached a duty owed to self and does not recover any money from Defendant, is only used in a minority (small number) of states

• Now, Compare duties between the 2 & give $ damages proportionally

3. Comparative Negligence involves Abolishes if not majority The trier of fact makes decisions and assigns liabilities.

Strict Liability and Product Liability

• Strict Liability - with no regard to fault
• applied first the American law to Abnormally Dangerous Activities.

Abnormally Dangerous Activities

• An activity that Involves potential degree of serious harm,
• Requires high degree of risk that can't be completely guarded against with use of reasonable care to community
• Keeping wild animals where lions, tigers, bears then if they escape & cause harm-you are liable-automatic liability
• Keeping qualified animals