Chapter 6 tort Law questions

Defamation. Richard is an employee of the Dun Construction Corp. While delivering materials to a construc- tion site, he carelessly backs Dun's truck into a passenger vehi- cle driven by Green. This is Richard's second accident in six months. When the company owner, Dun, learns of this latest accident, a heated discussion ensues, and Dun fires Richard. Dun is so angry that he immediately writes a letter to the union of which Richard is a member and to all other con- struction companies in the community, stating that Richard is the "worst driver in the city" and that "anyone who hires him is asking for legal liability." Richard files a suit against Dun, alleging libel on the basis of the statements made in the letters. Discuss the results. (See Intentional Torts against Persons.)

- The tort of libel is defmatory speech in a written statement that wrongfully causes injury to another's reputation. A cort will determine wether the defendant made a statement of opinopn or statement of fact. - Statements of opinion are usually not actionable; however a statement of fact is actionable. A statemnt of fact is false and represents something as fact. - For a plaintiff to prevail in a lawsuit for libel she must prove injury to reputation, and that the statement was false. The statement that Richard is the "worst" driver in the city is obviously a false statement, and so is the statement that hiring him is asking for legal liability. - Richard will have to prove the falsehood of those statements in court. General damages are presumed as a matter of law and are designed to compensate the plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of the community, and emotional distress. -If Richard can prove that he has been turned down for a job because of Dun's statement, then he will prevail in a lawsuit.

Negligence. DSC Industrial Supply and Road Rider Supply are located in North Kitsap Business Park in Seattle, Washington. Both firms are owned by Paul and Suzanne Mar- shall. The Marshalls had outstanding commercial loans from Frontier Bank. The bank dispatched one of its employees, Suzette Gould, to North Kitsap to "spread Christmas cheer" to the Marshalls as an expression of appreciation for their busi- ness. Approaching the entry to Road Rider, Gould tripped over a concrete "wheel stop" and fell, suffering a broken arm and a dislocated elbow. The stop was not clearly visible, it had not been painted a contrasting color, and it was not marked with a sign. Gould had not been aware of the stop before she tripped over it. Is North Kitsap liable to Gould for negli- gence? Explain. [Gould v. North Kitsap Business Park Manage- ment, LLC, 192 Wash.App. 1021 (2016)] (See Unintentional Torts—Negligence.)

Business professionals visit each other and the business houses to communicate formally and informally. It is a normal part for a business and its employees to visit business premises to undertake business talks related to business and non-business issues. Case summary: Company DS and Company RR Supply are owned by the couple MS under the name of Company NS that carried an outstanding loan from Bank FR. One of the employees of the bank, Person SG was sent by the bank to visit the couple's office to offer Christmas wishes. However, at the entry of the office premise, SG collided with a concrete "wheel stop" and broke her arm dislocating her elbow. The stop was not clearly visible and was also not painted in contrast colour. It was also not marked with a sign and SG could not get aware of it before colliding to it. In the given case, Company NS owned by the couple can be held liable for negligence in causing injuries to Person SG because landowners are expected to provide reasonable care to the people entering their land from getting injured or harmed. The entry, exit, stairways, etc. of the property should be built in a safe manner so that reasonable care can be offered to business people, guests, and invitees entering to the property. As in this case, Company NS constructed the wheel stop at such a place and manner that it was not visible for the people entering the premise for the first time and not having knowledge of any such thing at the place. Thus, the injury caused to SG by the wheel stop brings liability for Company NS for failure to provide reasonable duty of care showing negligence.

Negligence. Donald and Gloria Bowden hosted a cookout at their home in South Carolina, inviting mostly business acquaintances. Justin Parks, who was nineteen years old, attended the party. Alcoholic beverages were available to all of the guests, even those who, like Parks, were between the ages of eighteen and twenty-one. Parks consumed alcohol at the party and left with other guests. One of these guests detained Parks at the guest's home to give Parks time to "sober up." Parks then drove himself from this guest's home and was killed in a one-car accident. At the time of death, he had a blood alcohol content of 0.291 percent, which exceeded the state's limit for driving a motor vehicle. Linda Marcum, Parks's mother, filed a suit in a South Carolina state court against the Bowdens and others, alleging that they were negligent. (See Unintentional Torts—Negligence.) (a) The first group will present arguments in favor of holding the social hosts liable in this situation. (b) The second group will formulate arguments against holding the social hosts liable based on principles in this chapter. (c) The third group will determine the reasons why some courts do not treat social hosts the same as parents who serve alcoholic beverages to their underage children.

Case summary: The couple BW hosted a cookout at their home mostly inviting business acquaintances. Mr. JP who was nineteen years old visited this party and consumed alcohol which was getting served there. After party, drunk JP left the place with other guests but one of the guests detained JP until he became bit sober to drive back home. On his way, JP's car met with an accident and he was killed in a one-car accident. At the time of death, he was having blood-alcohol content of 0.291 percent which exceeded the state's limit for driving a motor vehicle. Ms. LM, JP's mother filed a case against the couple BW for their negligence. Negligence stands for the failure to provide reasonable care and facilities. (a) The social hosts could be held liable in this situation because it was their duty to ensure that the alcohol is not consumed by anyone who is below twenty one years of age and the drunken guests do not drive on their own. It was the host's duty to ensure that the drunken guests reach their home safely not accompanied by anyone. Thus, on the basis of these arguments, it could be said that the social hosts could be held liable in this situation. (b) The social hosts could not be held liable in this situation because as per the Superseding Clause of negligence, when someone drink and drives, the accident is likely to take place and thus a wrongful event might lead to an injurv. Also, it was JP's duty to take care and ensure that he does not consume alcohol is large amount to avoid any accident that might take place while driving a car. Thus, on the basis of these arguments, it could be said that the social hosts could not be held liable in this situation. (c) Some courts do not treat social hosts the same as parents who serve alcohol beverages to their underage children because social hosts organizes and invites people to socialize and serving alcohol is very common in such events. And, the social hosts cannot keep an eye over everyone who consumes alcohol because being a party it is easily and freely available to all. And thus, it is not the duty of social hosts to prevent serving of alcohol to the underage children as it is the children's own and their parent's responsibility to avoid their children consuming alcohol.

Defamation. Jonathan Martin, an offensive lineman with the Miami Dolphins, abruptly quit the team and checked himself into a hospital seeking psychological treatment. Later, he explained that he left because of persistent taunting from other Dolphins players. The National Football League hired attorney Theodore Wells to investigate Martin's allegations of bullying. After receiving Wells's report, the Dolphins fired their offensive line coach, James Turner. Turner was a promi- nent person on the Dolphins team, and during his career he chose to thrust himself further into the public arena. He was the subject of articles discussing his coaching philosophy, and the focus of one season of HBO's "Hard Knocks," show- casing his coaching style. Turner filed a suit in a federal district court against Wells, alleging defamation. He charged that Wells failed to properly analyze certain information. Is Turner likely to succeed on his claim? Explain. [Turner v. Wells, 879 F.3d 1254 (11th Cir. 2018)] (See Intentional Torts against Persons.)

Defamation refers to the making of false and insulting statements about a person or an entity in the oral or written form. When defamation takes place in oral form, it is called as slander, while, when it is made in writing, it is called as libel. Case summary: Person JM abruptly quit his football team and underwent psychological treatment and commented that it is because of taunting by other players that he left the team. Over this, the football league hired attorney Person TW to investigate the case. TW submitted report to the league stating that it is the coach of the team Person JT who created bad team environment and because of whom JM quit. As a result, JT was fired from the coach's position, over which he filed a case of defamation against W alleging that he failed to properly analyze certain information. The elements of defamation are: • Making of false statement of fact by the defendant; • The statement of fact relates to the plaintiff and harms his reputation; • The statement was published to atleast one person along with the plaintiff; • If the plaintiff is public figure, actual malice is also required to be proven In the given case, Person JT is not likely to succeed in his claim of defamation against attorney Person TW because the investigation report prepared by TW in relation to the complaint made by Person JM against persistent taunting obtained by him in the football team, TW submitted his work in a fair manner. He not only investigated the root cause for the reason JM left the team and suffered from harassment in the team in which team's coach JT came out as the wrongdoer. This way TW did not make any false statement of fact against JT. Similarly, TW did not submit the investigation report to any other person other than the football league that hired him to investigate the complaint made by its player JM. Although, JT was a public figure but his investigation only highlighted his actual conduct of showing wrong behaviour towards the team players which did created actual malice for JT. This way JT cannot succeed on his claims against TW for defamation because TW did not satisfy elements of defamation.

Spotlight on Intentional Torts—Defamation. Sharon Yeagle was an assistant to the vice president of student affairs at Virginia Polytechnic Institute and State University (Virginia Tech). As part of her duties, Yeagle helped students participate in the Governor's Fellows Program. The Col- legiate Times, Virginia Tech's student newspaper, published an article about the university's success in placing students in the program. The article's text surrounded a block quota- tion attributed to Yeagle with the phrase "Director of Butt Licking" under her name. Yeagle sued the Collegiate Times for defamation. She argued that the phrase implied the com- mission of sodomy and was therefore actionable. What is Collegiate Times defense to this claim? [Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E.2d 136 (1998)] (See Intentional Torts against Persons.)

Defamation: Defamation protects people against damage to their reputations. Defamation for public persons requires the proof of actual malice in order for the public person to gain damages for emotional distress. People in the public eye are expected to receive scrutiny both positive and negative related to their public activities. Defamation includes the libel and slander forms of reputation damage. Private individuals are accorded more leeway in proving defamation because the expectation is different; proof of actual malice is not required. Statements in the media regarding public figures are protected under the First Amendment from defamation if the statement were not made with actual malice. The elements of defamation include: 1. The statement was defamatory (false). 2. The statement referred to a specific individual. 3. The statement was published to any number of persons. The defenses to defamation include truth and privilege. The parties that have to plead and prove the elements are the defendant. Legal Findings: In Yeagle v. Collegiate Times (CT), 497 S.E.2d 136 (Va. 1998), the trial court dismissed the complaint because it determined that "Director of Butt Licking" was empty of any literal significance and did not express any factual information about Yeagle. The circuit court affirmed CT's defense to the claim of defamation was that the statement was not provably false of fact- based, and therefore; did not meet the elements of defamation.

Negligence. Charles Robison, an employee of West Star Transportation, Inc., was ordered to cover an unevenly loaded flatbed trailer with a 150-pound tarpaulin (a water- proof cloth). The load included uncrated equipment and pallet crates of different heights, about thirteen feet off the ground at its highest point. While standing on the load, manipulating the tarpaulin without safety equipment or assis- tance, Robison fell and sustained a traumatic head injury. He filed a suit against West Star to recover for his injury. Was West Star "negligent in failing to provide a reasonably safe place to work," as Robison claimed? Explain. [West Star Transportation, Inc. v. Robison, 457 S.W.3d 178 (Tex.App.—Amarillo 2015)] (See Unintentional Torts—Negligence.)

Negligence Tort refers to the failure to exercise due care and cause harm or loss to other party by carelessness and not intentionally. In case injured party proves that damage is caused to the party due to the negligence of other party, then plaintiff can recover the damages and losses. Defense against Negligence is available to defendant if he proves that the elements required for negligence does not exists. Defenses available to defendant to avoid the allegations of plaintiff are assumption of risk, contributory and comparative negligence and superseding cause. In the given case, C (employee) of the WS transport Inc. was manipulating the tarpaulin while standing on the road. C didn't take any safety equipment and assistance voluntarily. Thus, Doctrine of assumption of risk is applicable and defense against negligence is available to WS transport Inc. for risk that C should have assumed. Hence, WS is not liable for the injuries caused to C.

Business Case Problem with Sample Answer— Negligence. At the Weatherford Hotel in Flagstaff, Arizona, in Room 59, a balcony extends across thirty inches of the room's only window, leaving a twelve-inch gap with a three-story drop to the concrete below. A sign prohibits smoking in the room but invites guests to "step out onto the balcony" to smoke. Toni Lucario was a guest in Room 59 when she climbed out of the window and fell to her death. Patrick McMurtry, her estate's personal representative, filed a suit against the Weatherford. Did the hotel breach a duty of care to Lucario? What might the Weatherford assert in its defense? Explain. [McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 293 P.3d 520 (2013)] (See Unintentional Torts—Negligence.)

Negligence requires proof that (1) the defendant owed a duty of care to the plaintiff, (2) the defen- dant breached that duty, (3) the defendant's breach caused the plaintiff's injury, and (4) the plaintiff suffered a legally recogniz- able injury. With respect to the duty of care, a business owner has a duty to use reasonable care to protect business invitees. This duty includes an obligation to discover and correct or warn of unreasonably dangerous conditions that the owner of the prem- ises should reasonably foresee might endanger an invitee. Some risks are so obvious that an owner need not warn of them. But even if a risk is obvious, a business owner may not be excused from the duty to protect its customers from foreseeable harm.Because Lucario was the Weatherford's business invitee, the hotel owed her a duty of reasonable care to make its premises safe for her use. The balcony ran nearly the entire width of the window in Lucario's room. She could have reasonably believed that the window was a means of access to the balcony. The window/balcony configuration was dangerous, however, because the window opened wide enough for an adult to climb out, but the twelve-inch gap between one side of the window and the balcony was unprotected. This unprotected gap opened to a drop of more than three stories to a concrete surface below.Should the hotel have anticipated the potential harm to a guest who opened the window in Room 59 and attempted to access the balcony? The hotel encouraged guests to "step out onto the balcony" to smoke. The dangerous condition of the window/balcony configuration could have been remedied at a minimal cost. These circumstances could be perceived as creat- ing an "unreasonably dangerous" condition. And it could be con- cluded that the hotel created or knew of the condition and failed to take reasonable steps to warn of it or correct it. Of course, the Weatherford might argue that the window/balcony configura- tion was so obvious that the hotel was not liable for Lucario's fall.In the actual case on which this problem is based, the court concluded that the Weatherford did not breach its duty of care to Lucario. On McMurtry's appeal—Lucario's estate's personal representative—a state intermediate appellate court held that this conclusion was in error, vacated the lower court's judgment in favor of the hotel on this issue, and remanded the case.

Negligence. Ronald Rawls and Zabian Bailey were in an auto accident in Bridgeport, Connecticut. Bailey rear-ended Rawls at a stoplight. Evidence showed it was more likely than not that Bailey failed to apply his brakes in time to avoid the collision, failed to turn his vehicle to avoid the collision, failed to keep his vehicle under control, and was inattentive to his surroundings. Rawls filed a suit in a Connecticut state court against his insurance company, Progressive Northern Insur- ance Co., to obtain benefits under an underinsured motorist clause, alleging that Bailey had been negligent. Could Rawls collect? Discuss. [Rawls v. Progressive Northern Insurance Co., 310 Conn. 768, 83 A.3d 576 (2014)] (See Unintentional Torts—Negligence.)

Negligence: Unintentional torts are committed without any feeling of selfishness and revenge but are made by mistake. According to the law, an individual not having a deliberate motive to attack or hurt another person is liable to be freed by the Court. In negligence tort, the plaintiff needs to prove the deliberate motive of the defendant. Only then the defendant may be held guilty by the law. In the given case, the person R and the person B had an accident where person B could not control his driving due to inattentiveness to prevent the collision. The person R filed a case against his insurance company claiming B was negligent. According to the law, person R should win the suit as person B could not control his driving and acted as negligent. Person B did not apply the brakes on time neither did he turn the vehicle to prevent accident. Person B could not attend to what was coming in front of his vehicle. It was the act of negligence by person B. Therefore, person B could be held guilty.

Jana leaves her truck's motor running while she enters a Kwik-Pik Store. The truck's transmission engages, and the vehicle crashes into a gas pump, starting a fire that spreads to a warehouse on the next block. The warehouse collapses, causing its billboard to fall and injure Lou, a bystander. Can Lou recover from Jana? Why or why not?(See Unintentional Torts—Negligence.)

Probably. To recover on the basis of negligence, the injured party as a plaintiff must show that the truck's owner owed the plaintiff a duty of care, that the owner breached that duty, that the plaintiff was injured, and that the breach caused the injury. In this problem, the owner's actions breached the duty of reasonable care. The billboard falling on the plaintiff was the direct cause of the injury, not the plaintiff's own negligence. Thus, liability turns on whether the plaintiff can connect the breach of duty to the injury. This involves the test of proximate cause—the question of foreseeability. The consequences to the injured party must have been a foreseeable result of the owner's carelessness.

Elaine Sweeney went to Ragged Mountain Ski Resort in New Hampshire with a friend. Elaine went snow tubing down a run designed exclusively for snow tubers. There were no Ragged Mountain employees present in the snow-tube area to instruct Elaine on the proper use of a snow tube. On her fourth run down the trail, Elaine crossed over the center line between snow-tube lanes, collided with another snow tuber, and was injured. Elaine filed a negligence action against Ragged Mountain seeking compensation for the injuries that she sustained. Two years earlier, the New Hampshire state legislature had enacted a statute that prohibited a person who participates in the sport of skiing from suing a ski-area operator for injuries caused by the risks inherent in skiing. Using the information presented in the chapter, answer the following questions. What defense will Ragged Mountain probably assert? The central question, in this case, is whether the state statute establishes that skiers assume the risks inherent in the sports bars in Elaine's suit. What would your decision be on this issue? Why? Suppose that the court concludes that the statute applies only to skiing and not to snow tubing. Will Elaine's law-suit be successful? Explain. Now suppose that the jury concludes that Elaine was partly at fault for the accident. Under what theory might her damages be reduced in proportion to the degree to which her actions contributed to the accident and her resulting injuries?

RM is a Ski Resort in state NH which is famous for skiing. Ms. E went out for snow tubing. There are no employees to give the directions for snow tubing. Ms. E start a ride and could not handle the tube properly and as a result suffered injuries. Ms. E filed a suit against RM for negligence action to claim compensation for her injuries. 1. Defense that may be probably asserted by RM is "Assumption of risk". Under this, if the plaintiff is injured, thereby exposing himself/herself to a possible or known risk, recovery for the loss or injury cannot be recovered by him/her. Here in this Case, E exposes herself to a known risk while doing snow-tubing, even when no instructor was present there. She used snow-tube run which was exclusively for snow tubers. Thus, RM probably can go with this affirmative defense. 2. State NH enacted a statute prohibiting the plaintiff from suing the defendant for the injuries caused to him, arising from the inherent risk involved in skiing. However, in case related case, such as in case of snow-tubing, E will be assumed as she knows the possible risks involved. Thus, E cannot take the advantage from it. In such case, decision will favor the defendant as it can be advised that one should not go for any such sport, if not trained well and even when there is absence of an instructor 3. No, if the court concludes that the statue applies only to skiing and not to snow tubing, even then also E's lawsuit will not be successful. This is because being aware and cautious at the time of snow tubing is a general common sense. Ms E should not had gone for snow tubing without proper care. Thus, there are string chances that she would not win the case under assumption of risk. 4. Under contributory Negligence theory, E's damages could be reduced in proportion to the degree to which her actions contributed to the accident and her resulting injuries. This is for the reason that she was partly responsible for her fault.

A water pipe bursts, flooding a Metal Fabrication Com- pany utility room and tripping the circuit breakers on a panel in the room. Metal Fabrication contacts Nouri, a licensed electrician with five years' experience, to check the damage and turn the breakers back on. Without test- ing for short circuits, which Nouri knows that he should do, he tries to switch on a breaker. He is electrocuted,and his wife sues Metal Fabrication for damages, alleg- ing negligence. What might the firm successfully claim in defense? (See Defenses to Negligence.)

The company might defend against the electrician's wife's claim by asserting that the electrician should have known of the risk and, therefore, the company had no duty to warn. According to the problem, the danger is common knowledge in the electrician's field and should have been apparent to this electrician, given his years of training and experience. In other words, the company most likely had no need to warn the electrician of the risk.The firm could also raise comparative negligence. Both parties' negligence, if any, could be weighed and the liability distributed proportionately. The defendant could also assert assumption of risk, claiming that the electrician voluntarily entered into a dangerous situation, knowing the risk involved.

Intentional Infliction of Emotional Distress.While living in her home country of Tanzania, Sophia Kiwa- nuka signed an employment contract with Anne Margareth Bakilana, a Tanzanian living in Washington, D.C. Kiwanuka traveled to the United States to work as a babysitter and maid in Bakilana's house. When Kiwanuka arrived, Bakilana con- fiscated her passport, held her in isolation, and forced her to work long hours under threat of having her deported. Kiwa- nuka worked seven days a week without breaks and was sub- jected to regular verbal and psychological abuse by Bakilana. Kiwanuka filed a complaint against Bakilana for intentional infliction of emotional distress, among other claims. Bakilana argued that Kiwanuka's complaint should be dismissed because the allegations were insufficient to show outrageous intentional conduct that resulted in severe emotional distress. If you were the judge, in whose favor would you rule? Why? [Kiwanuka v. Bakilana, 844 F.Supp.2d 107 (D.D.C. 2012)] (See Intentional Torts against Persons.)

The tort of purposeful infliction of emotional suffering comprises an intentional act that accounts to perilous and offensive conduct resulting in severe emotional distress to another. To be tortious, the act must be perilous and offensive to the fact that it crosses the bounds of graciousness accepted by society. In this case, repeated annoyance such as working for seven days a week without break along with physical and verbal abuse, coupled with threat to deport is sufficient to constitute the tort. Therefore, if I would be the judge, I would definitely rule in favor of K.

A Question of Ethics—The IDDR Approach and Wrongful Interference. Julie Whitchurch was an employee of Vizant Technologies, LLC. After she was fired, she created a website falsely accusing Vizant of fraud and mismanagement to discourage others from doing business with the company. Vizant filed a suit in a federal district court against her, alleging wrong- ful interference with a business relationship. The court concluded that Whitchurch's online criticism of Vizant adversely affected its employees and operations, forced it to accept reduced compensa- tion to obtain business, and deterred outside investment. The court ordered Whitchurch to stop her online efforts to discourage others from doing business with Vizant. [Vizant Technologies, LLC v. Whitchurch, 675 Fed.Appx. 201 (3d Cir. 2017)] (See Intentional Torts against Persons.) (a) How does the motivation for Whitchurch's conduct differ from other cases that involve wrongful interference? What does this suggest about the ethics in this situation? Discuss. (b) Using the IDDR approach, analyze and evaluate Vizant's decision to file a suit against Whitchurch.

The wrongful interference with someone's business rights is known as a business tort. The business tort is of two types: wrongful interference with a contractual relationship and wrongful interference with a business relationship. The IDDR approach consists of four steps - Inquiry, Discussion, Decision and Review. For wrongful interference in a contractual relationship, there must be a valid contract between the parties which must be known to the third party and that third party must purposefully encourage a party to breach the contract. Wrongful interference in a business relationship means attempting to target the customers of a competitor. In the given case JW has no such motive to attract the customers of VT neither they are in any type of contractual relationship. So, it does not involve wrongful interference but if we talk about ethics then the conduct of JW cannot be treated as ethical practice. The very first step of the IDDR approach is to identify the parties to the lawsuit and the material facts of the case. VT needs to identify that how the activities of JW have harmed its business and up to what extent. In the next step, they need to discuss that whether it is a sufficient reason to file a suit against JW and will they succeed. They finally decided to file a lawsuit against JW, and the decision given by the court was in favor of VT, which shows that they have taken the correct action. Therefore, the act of JW does not involve wrongful interference but if ethics is considered, then the conduct of JW cannot be treated as ethical practice.