Torts, Ch. 6

Defamation

Intentionally making untrue statements about an individual in the presence of another or communicated to a third party that has the effect of lessening the individual's reputation in the community. Intentionally making - If the statement is made accidentally, the requisite intent is not present. Untrue - in order for a statement to be actionable, it must be untrue. Truth is an absolute defense to the tort of defamation. Statements - the untrue statements must be presented as fact, not opinion. About an individual -It must be about a person. To a third person - the statement must be said in the presence of, or conveyed to someone other than the person making the statement and the person the statement is about. This requirement is called "publication". If the third person is a private secretary or other such close agent of the tortfeasor, the third person requirement is not met. Which lessens the individual's reputation in the community - the statement must be one which a reasonable person would consider negative enough that she would think less of the person about whom the statement was made. Defamation can be accomplished through either slander or libel. Slander involves spoken statements while libel involves written or widely broadcast (such as on TV or radio) statements.

Warranties

When an individual sells a good to a buyer, aside from any express warranties (warranties are absolute promises) that the seller explicitly makes to the buyer, the sale also carries implied warranties that the goods will be of at least average quality for such goods (warranty of merchantability), or they will be fit for the particular purpose for which they are sold if the buyer tells the seller the purpose and the seller provides the goods in response (warranty of fitness for particular purpose).

Defamation Cases - Privileges

When appropriate, privileges are available to the defendant in defamation cases protecting against actions for defamation based on testimony.

Explain vicarious liability and respondeat superior.

An employer is vicariously liable under the theory of respondeat superior for the torts of his or her employees committed within the scope of employment.

Intentional Interference with Contractual Relations

An individual can use this tort when someone intentionally interferes with either an existing or a prospective contract the individual has with another.

Negligence Defenses

Assumption of the Risk Contributory Negligence Comparative Negligence

What are the defenses to negligence? Explain them.

Assumption of the risk, contributory and comparative negligence

Defenses to Intentional Torts

Even if a tortfeasor engages in tortious activity, he or she may be able to defend his or her actions and thus avoid liability. With intentional torts there is no liability if the tortfeasor can show that: -There was no intent to do the act which resulted in the harm (i.e., it was an accident). -The victim gave consent to the activity. -The tort was committed in defense of self or others.

The Restatement of Torts

Has been adopted in some form by all states and allows for harm to persons or property arising from a defect in goods. pg 151

Theft of Trade Secrets

If a business owner has a particular way it does things that makes it unique or special, and actively works to keep that information secret, the owner can sue someone who steals that information and uses it or sells it to someone else.

Comparative Negligence

If both plaintiff and defendant are negligent, the comparative negligence theory allots to each of the parties his or her proportionate share of the negligence and deducts from the total plaintiff would have received, the value of plaintiff's negligence. If the jurisdiction in which the case is brought has no comparative negligence statute and the plaintiff was found to be contributorily negligent, plaintiff would recover nothing.

Negligence Per Se

If the duty is imposed by statute and the statute is violated, it is negligence per se. Example: Anytown, USA, has a local ordinance prohibiting motor vehicles from proceeding thought a red light. Kim drives though a red light and hits Dan, a pedestrian who is crossing the street. This is negligence per se since there is an ordinance prohibiting the act that resulted in harm to the pedestrian.

Negligence Requirements

In order for negligence liability to attach to the tortfeasor, plaintiffs must prove four requirements: duty, breach of duty, actual cause, proximate cause and damages. If these requirements are proved, then the passerby can recover for the injuries sustained.

Defamation Cases involving News Media

In order to show the necessary intent for defamation against the media, plaintiff must show not just that the information was untrue, but that the media outlet published the untrue information with malice, that is, knowing it was untrue, or in reckless disregard of the truth or falsity of the information.

Palming Off

In palming off someone passes off their competitor's goods as their own so that buyers think they are buying one thing, when in fact, they are buying another.

Different types of torts:

Intentional Negligence Strict Liability

False Imprisonment

Intentionally confining someone to a space from which there is no viable means of egress. Intentionally - The intent is to do the act that results in the harm, not the intent to harm. If the false imprisonment is accidental rather than intentional, this requirement is not met. Confining someone -It must be a person. In a space - the space need not be small, such as a closet or walk-in freezer, but generally the space must be confined. From which there is no viable means of egress - the space can be locked or there can be some other means which makes it so the victim cannot leave the premises. The cause of action of false imprisonment is probably most often used in cases involving shoplifting allegations. Courts have permitted the use of the shopkeeper's rule to protect storeowners.

Intrusion Upon Seclusion

Intrusion upon seclusion is intentionally intruding into a space someone has a right to consider private.

What are the defenses to negligence?

It is possible for a tortfeasor to defend against a negligence suit by showing that the plaintiff either: Voluntarily assumed the risk (assumption of the risk) by knowing of the risk of presented by the tortfeasor's negligence and continuing to act anyway. OR Contributed to the injury by doing a negligent act him- or herself (contributory negligence), including comparative negligence. In both these defenses the tortfeasor does not deny the act took place or that plaintiff was harmed, but instead alleges he is not responsible because other legally cognizable factors were at play that relieve him of liability.

General Defenses to Intentional Torts

Lack of Intent Consent Defense of Self or Others

Product Liability

Liability imposed on product makers and distributors for hard caused to people and property by defective, unreasonably dangerous products. Product liability is the name given to a group of several different legal bases including negligence, breach of warranty, and strict liability, for imposing liability on product makers and distributors for harm caused to people and property by defective, unreasonably dangerous products. When manufacturers and distributors place goods in the stream of commerce and those goods are defective and malfunction causing harm because of some act on the part of those who produce the goods, the possibility of harm is enormous because the goods are offered to the public at large and a great many people can be adversely affected. As a result, there are laws from each protecting the public, of which the prudent business owner must be aware.

Product Liability Theories for recovery:

Negligence Strict Liability Breach of Warranty Recovery under Negligence and Strict Liability: -Design Defect -Manufacturing Defect -Failure to warn -Failure to adequately package Recovery under Warranties: -Express Warranties -Implied Warranties -Warranty of Merchantability -Warranty of fitness for a particular purpose

Failure to Warn or Adequately Warn

Negligence can also occur from a manufacturer's failure to warn or adequately warn consumers of known dangers about the product. The Restatement (Third) of Torts has been adopted in some form in all states. It applies different standards of liability, depending on which type of negligence occurs. In cases of manufacturing defects, strict liability attaches. In design defect and failure to warn cases, the standard applied is one of reasonableness or a regular negligence standard. For failure to warn, a product is defective when its inadequate warning or failure to warn could have been avoided or reduced by a reasonable warning by the manufacturer or seller. The negligence defenses discussed earlier apply in product liability cases using a reasonableness standard.

Manufacturing Defect

Negligence can occur when a product is designed just fine but there is negligence in the manufacturing process causing a manufacturing defect that makes the defective item unreasonably harmful when used in the normal way. Most product liability statutes hold manufacturers and distributors strictly liable for harm caused by their defectively manufactured products.

Warranty of Fitness for Particular Purpose

Promise arising from representations of seller that good will be appropriate for a particular use seller is made aware of.

Implied Warranty

Promising arising from the sale of a good that it will be fit for it's normal purpose.

Warranty of Merchantability

Promising arising from the sale of a good that it will preform as average in the industry.

What is the basis for courts cutting off responsibility for a negligent act?

Proximate cause.

What standard of care is used to determine negligence?

Reasonable person standard.

Negligence Action

Recovery for foreseeable unintentional or accidental injuries is addressed through negligence (often called personal injury) actions. When a tortfeasor fails to meet a standard of reasonable care appropriate for the circumstances and another forseeably subjected to an unreasonable risk of harm and is injured as a result, the tortfeasor can be sued by the injured party for negligence. Rather than a one-size-fits-all approach, it is a standard that takes the specifics of the situation into consideration in determining what is reasonable.

Respondeat Superior

Respondeat superior involves vicarious liability which is liability imposed upon someone who did not actually commit the tort. "Within the scope of employment" generally refers to the employee engaging in any activity reasonably within the realm of what would ordinarily be expected to be done by the employee on the job.

What is the most important requirement for theft of trade secret actions?

The business owner must show that she actually did keep the matter secret and it was not general knowledge.

Contributory Negligence

The defense of contributory negligence is appropriate for a defendant to use when the plaintiff suing for negligence performed a negligent act him- or herself, in addition to the negligence of the tortfeasor. The contributory negligence theory has been steadily eroded over the years by legislatures, leaving only a minority of states using the theory. In its place is the less drastic theory of compensatory negligence.

Magnuson-Moss Warranty Act

The federal Magnuson-Moss Warranty Act allows recovery for harm that arises if the goods do not perform as warranted. The law does not require manufacturer to provide a warranty, but if one is given, there are certain requirements that must be met in order for the warranty to protect the manufacturer.

Design Defect

The good can be designed in a way that makes it defective and likely to cause harm when used in the normal way.

False Light

The intentional act of publishing something that puts another in an unfavorable or untruthful light, though it is true, is a tort.

Damages

There must also be injury caused by the breach of duty.

What happens if negligence is caused by a product in the stream of commerce?

These actions are generally handled differently than negligence actions and they are called product liability cases.

Publication of Private Facts

This involves the tortfeasor widely disseminating information about someone which, though true, is highly private and need not be publicized.

Intentional Tort

Tortfeasor intended to do the act that resulted in the harm to the victim. Intentional torts may be against a person, against a business or against property. The plaintiff must show that the act required for the tort was committed, and that it was intentional rather than an accident. The intent required to be shown is the intent to do the act that results in the harm rather than an intent to harm. This is an extremely important distinction. Intentional torts can be committed by individuals personally, or in the business setting, creating vicarious liability for the business owner through respondeat superior. Battery Assault False Imprisonment Defamation Intentional Infliction of Emotional Distress (IIED) Invasion of Privacy

Intentional Torts against Property

Trespass to land Trespass to personal property Conversion

Duty

Under the law, in general each person has a duty to conduct him- or herself in a way that does not present a forseeable unreasonable risk of harm to others. The duty can be imposed by statute or reason. If the duty is imposed by statute and the statute is violated, it is negligence per se. The duty owed can also be imposed by law based on a relationship or activity. However, the law does not impose a general duty on each of us toward others.

Actual and Proximate Cause

Actual cause is the tortfeasor's actions resulting in harm to the injured party. But for the act by the tortfeasor, the plaintiff would not have been harmed. In addition, there must be proximate cause in order to impose liability upon the tortfeasor. Proximate cause is a legal mechanism used to allow legal responsibility only for consequences of our actions if the consequences were foreseeable. However, the consequences from our actions are not always foreseeable. Proximate cause is the means the law uses to cut off responsibility for the consequences of our actions so that we are not responsible for every single act that flowed from our breach of duty but only those that are foreseeable and that we should have contemplated and thus prevented. It is not enough that a plaintiff was harmed.

Breach of Duty

Breach of duty is violating a duty the tortfeasor owes to the injured party. The breach of duty may arise either from doing an act that should not be done because it presents an unreasonable risk of harm to another

Intentional Business Torts

Disparagement Interference with contractual relations Palming off Theft of trade secrets Trademark infringement Patent infringement Copyright infringement

What is another name for injurious falsehood?

Defamation

What is a conditional privilege and to what torts does it apply?

No liability for engaging in certain behavior as long as the behavior follows prescribed guidelines.

Do people have a general duty to protect others?

No.

Name some of the relationships for which the law requires a duty?

Parent/child, doctor/patient, babysitter/charge, common carrier/passenger.

Tort

A Tort is a civil wrong. Civil violations of law instead of criminal. The plaintiff (injured party) sues defendant (tortfeasor) to receive compensation for losses suffered by the tort being committed against him or her.

Vicarious Liability

A business owner is responsible for torts committed by his or her agents within the scope of employment. Respondeat superior involves vicarious liability which is liability imposed upon someone who did not actually commit the tort. "Within the scope of employment" generally refers to the employee engaging in any activity reasonably within the realm of what would ordinarily be expected to be done by the employee on the job.

Negligence

Act was the result of the tortfeasor's failure to meet a required standard of care to prevent an unreasonable risk of harm to others. When a tortfeasor fails to meet a standard of reasonable care and another is forseeably subjected to an unreasonable risk of harm and is injured as a result, the tortfeasor can be sued by the injured party for negligence.

Intentional Torts against the Person

Assault Defamation Battery Intentional infliction of emotional distress False imprisonment Invasion of privacy

Name and explain six intentional torts against the person.

Assault, defamation, battery, false imprisonment, IIED, invasion of privacy.

Battery

Battery is the intentional, unpermitted or offensive touching of the body of another. The intent necessary is the intent to do the act that results in the touching, not an intent to touch or to do harm. The intent to harm may be present, but it is not necessary for the intentional tort of battery. The law gives us the general right not to be touched without our permission. Unpermitted or offensive - the touching must be nonconsensual. It is possible for the victim to have initially given consent, but for the consent to be exceeded. Touching - there must be contact with the victim's body. Of Another's Body - the touching must be of the victim's body, not the victim's property. Courts have permitted the tort of battery when what was being touched was not the actual body of the victim, but rather, something closely attached to it like a cane, hat or even gloves. Note that in an assault, touching is not required. Assault only requires putting someone in fear or apprehension of an immediate bodily touching. With battery, actual contact is necessary.

Intentional Torts Against Business

Disparagement Intentional Interference with contractual relations Theft of Trade Secrets Palming Off Infringements of trademark, trade name, patents, copyrights

Disparagement

Disparagement, also known as injurious falsehood, is intentionally making false statements about the quality or ownership of someone's goods. It can be thought of as sort of defamation against a business rather than an individual.

Negligence Elements

Duty Breach Causation --------- Actual Cause, Proximate Cause Damages

What are the four requirements for negligence?

Duty, breach of duty, actual / proximate cause and damages.

Deep Pockets Theory

Employees are liable for the torts they commit but generally it is the employer who has the deeper pockets allowing the victim to recover more money for his or her injuries. Both would be named in a lawsuit, but it is the employer who generally pays.

Assault

Intentionally putting another in fear or apprehension of an immediate unwanted or offensive bodily touching. Intentionally - this is an intent to do the act that resulted in the harm, not an intent to do harm. Putting another - the act must be toward a person, not an animal or property. In fear and/or apprehension - the victim need not be deathly afraid; simply not wanting the event to occur is sufficient. Of an immediate - it must appear that the unwanted act is imminent. (about to happen) Harmful or offensive - the touching that seems imminent need not actually be something harmful like a punch or kick or cut - it just needs to be something the victim considers to be offensive. Bodily - the touching expected must be the touching of the victim's body, not the victim's property. Touching - The imminent touch need not be a hit or slap, but it must, in fact, be perceived as being some type of contact with the victim of the tort. Note that an assault is a completed act. It is not an attempted battery. The fact that the tortfeasor did an intentional act that put another in fear or apprehension of an immediate bodily touching is sufficient. The touching itself need not occur for the tort of assault to be committed. There are also criminal versions of assault and battery. Criminal assault and battery cases require mens rea or criminal intent.

What is it called when someone violates a duty imposed by statute?

Negligence per se.

Are all tortfeasors held to the same standard in negligence?

No

What are the defenses to intentional torts? Explain them.

No intent, consent, and defense of self or others.

Defamation Cases involving Former Employers

One of the most frequent types of defamation cases involve ex-employees suing their former employers for statements made while the employee's references were being checked. Fearing defamation suits from their former employees, employers refuse to say more. The conditions are that the information must be provided on the basis of a legitimate business request (usually requested on business stationery) in the course of business, not be intentionally false, and be provided in a business-like manner. The intent of disclosing the information must be to respond to a business inquiry, rather than to retaliate or seek vengeance on the former employee and cause trouble for him or her, or simply to gossip.

Proximate Cause

Proximate cause is a legal mechanism used to allow legal responsibility only for consequences of our actions if the consequences were foreseeable. However, the consequences from our actions are not always foreseeable. Proximate cause is the means the law uses to cut off responsibility for the consequences of our actions so that we are not responsible for every single act that flowed from our breach of duty but only those that are foreseeable and that we should have contemplated and thus prevented. It is not enough that a plaintiff was harmed - there has to be proof that we engaged in conduct that we knew would present an unreasonable risk of harm to others.

What are the two types of defamation and what is the difference between them?

Slander involves spoken statements while libel involves written or widely broadcast (such as on TV or radio) statements.

What is an absolute privilege and to what torts does it apply?

Some situations are so important that those speaking should not have to worry about whether they will be sued for defamation.

Strict Liability

Strict liability is liability regardless of fault. Tortfeasor engaged in activity that a statue classifies as one that is so dangerous that the tortfeasor must be responsible for virtually all the harm that arises as a result of engaging in the activity. Strict liability is responsibility imposed on tortfeasors for engaging in activity deemed by statute to be so dangerous until the tortfeasors must take responsibility for all harm that arises therefrom. Imposed on tortfeasors for engaging in activity deemed by statute to be so dangerous that the tortfeasors must take responsibility for all harm that arises therefrom, even if the tortfeasor was as careful as possible. The tort is about the dangerous nature of the activity rather than the intent or actions of the tortfeasor. The activities included in strict liability are determined by statute and include acts such as blasting explosives or the keeping of wild animals. Once the victim proves that the activity was a strict liability offense and that the victim was injured by the activity, liability attaches to the tortfeasor. Defense: In strict liability, the tortfeasor has virtually no defense if sued by the injured party. The only defense to a strict liability offense is that the victim knew of the danger and voluntarily assumed the risk of being harmed (Voluntary assumption of the risk).

Express Warranties

Warranties are absolute promises that the seller explicitly makes to the buyer.

Shopkeeper's Rule

Under the shopkeeper's rule, a shopkeeper is given a conditional privilege to detain a suspected shoplifter even if it turns out they are innocent, if the shopkeeper conducts the detention in the correct way. The conditions of the privilege are that the shopkeeper: have a reasonable suspicion of theft - A reasonable suspicion of theft can be based on any number of factors including seeing the customer place something in his or her pocket or bag, the customer looking around furtively or suspiciously, the customer wearing inappropriate clothing, such as a big coat in hot summer weather, or very large clothing on a small person, and other similar factors. Detain the suspect for a reasonable amount of time - What is considered a reasonable amount of time can vary depending on the circumstances. Treat the suspect in a reasonable way during detention- The shopkeeper may only use reasonable force to pursue and question a suspect. All of the conditions must be met in order for the rule to provide the shopkeeper with protection.

What is the shopkeeper's rule and how does it work?

Under the shopkeeper's rule, a shopkeeper is given a conditional privilege to detain a suspected shoplifter even if it turns out they are innocent, if the shopkeeper conducts the detention in the correct way. If the shopkeeper is later sued for false imprisonment, the shopkeeper may use the conditional privilege as a defense.

Appropriation of Name or Likeness

Using someone's name or photo, usually in an advertisement, without his or her permission is a tort.

Invasion of Privacy

Violates a person's right of expectation of privacy. Intrusion upon seclusion Appropriation of name of likeness False Light Publication of private facts

Strict Liability Defense

Voluntary assumption of the risk

Voluntary Assumption of the Risk

When the injured party had reason to know that there was the possibility of harm from defendant's negligence and decided to do an act anyway, the defendant can avoid liability by using the defense of voluntary assumption of the risk.

Intentional Infliction of Emotional Distress

intentionally doing an outrageous act that goes outside all bounds of common decency and cause the victim severe emotional distress. intentionally - not accidentally doing an outrageous act - this is a local standard based on the place where the act took place. There is no actual definition of what the act must be, since it is such a localized standard, but it should be an act that others would reasonably think was outrageous. In fact, another name for this tort is "outrageous conduct." toward another - again, the act must be toward another person, not toward property which goes beyond all bounds of common decency - Acts which cause mere embarrassment or are simply in bad taste, are not sufficient. and causes the victim severe emotional distress - Courts have a high threshold for determining whether the victim has suffered severe emotional distress. Courts leave it to juries to handle it the way they do obscenity: they know it when they see it.