Chapter 10: Torts: Legal Wrongs and Their Remedies

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Chapter 10 Torts Legal Wrongs and Their Remedies

• David Baumer, Spring 2003

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Classification of Torts

• A tort is a non-contractual interaction in which
  the defendant wrongfully harms the plaintiff
• Torts could be
• intentional--def. knew or should have known his
  actions would harm the pl.
• due to negligence or lack of reasonable care
• evaluated under a strict liability standard--for
  certain dangerous activities defs. are liable w/o
  fault for the harm they cause
• Punitive damages are only recoverable if the tort
  is intentional or nearly so
• Def. must have had a reckless disregard for
  safety--driving school kids while utterly drunk

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Damages in Tort Cases

• Compensatory damages
• Theory is to compensate the def. for his or her
  losses
• Economic losses--present value of lost future
  income and FMV of property
• Pls. can recover for pain and suffering, mental
  anguish and depression
• Impossible to fully compensate wrongful death
  pls. but theory often used is to replace income
  to survivors
• Punitive Damages
• Theory is to punish def. and deter others from
  doing the same thing

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Intentional Torts Assault, Battery and False
Imprisonment

• Def. is liable for an intentional tort if the
  injury suffered by the pl. was not intended
• Def. is liable for wrongful death even though he
  may have been aiming to maim the pl.
• Assault and battery often occur together, but not
  always
• Assault occurs when intentional actions of the
  def. place the pl. in apprehension of immediate
  harmful or offensive contact
• Battery takes place when the def. intentionally
  contacts the pl. in a harmful or offensive manner
  without justification

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Intentional Torts Assault, Battery and False
Imprisonment

• False imprisonment occurs when the def., without
  justification, intentionally confines the pl.
  within boundaries set by the def.
• Defenses
• In the past companies have been able to escape
  liability for intentional torts of employees by
  claiming that such actions were not authorized
• Employers have been found liable if at the time
  of intentional torts, the employee was working on
  the job and advancing the interests of the
  employer
• Employers are more likely liable if at the time
  of the tort they had prior notice that this
  employee was aggressive

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Intentional Torts Defenses

• Employers are liable for intentional torts if
  they aid and abet these employees
• Employers can be liable if they were negligent in
  hiring
• E.g., failure to get background checks on camp
  counselors who then molest some children
• Other defenses--
• For assault and battery defs. are allowed to use
  reasonable force under the circumstances to
  defend themselves, their property and others who
  are attacked
• For most batteries in sports contests the def.
  can use consent by the pl. as a defense

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Intentional Torts Defenses

• Shopkeepers are often defs. in false imprisonment
  suits
• The shopkeeper, or its security, mistakenly
  detains a suspected shoplifter
• Most states have passed statutes that give a
  defense to shopkeepers who
• had probable cause to believe the pl. was
  shoplifting
• and behaved reasonably in detaining the pl.
• Pl. was not needlessly embarrassed
• Pl. was not detained for an excessively long
  period

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Intentional Infliction of Emotional Distress

• Intentional infliction of emotional distress
• Intentional actions that are
• extreme and outrageous behavior that result in
• severe emotional distress
• This tort has been used against bill collectors
  and practical jokers
• Increasingly it is being used against companies
  who fail to curb sexual harassment
• Statute of limitations for this tort is longer
  than for 64 Civil Rights Act
• Could be used against cyberstalkers

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Invasion of Privacy

• Any of the following has been held as an invasion
  of privacy
• Intrusion into a persons solitude--a remedy
  against stalkers, wiretaps, hackers
• Placing a person in a false light--e.g., doctored
  photographs
• Public revelation of facts that the public would
  find repugnant
• Commercial use of someones name or likeness
• Must get permission of a celebrity before using
  the celebrity in a commercial

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Reasonable Expectation of Privacy

• If a person has a reasonable expectation of
  privacy, then the law will protect that interest
• Phone conversations, what happens behind closed
  doors, trash
• In law public figures (celebrities, politicians,
  athletes) have a diminished expectation of
  privacy
• Public officials are not entitled to privacy in
  the manner in which they conduct their official
  duties
• Misappropriation--of a persons name or likeness
• Akin to trespass to personal property without
  permission

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Defamation

• Defamation takes place when the def.
• Makes false statements about the pl.
• that are heard or seen by third parties
• that harm the pl.s reputation
• A publisher of an author who libels someone is
  equally liable
• Newsstands and libraries are not liable for libel
  unless they know the material they are
  distributing is libelous
• Defenses to defamation
• Truth def. has the burden of proof to prove
  what he said was accurate

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Defamation

• Defenses to defamation suits
• Privilege
• Participants in courtrooms and legislative
  proceedings have absolute privilege
• Qualified privileges exist for credit bureaus
• Federal legislation provides protection if they
  follow certain procedures when confronted by
  people who claim they have been defamed
• Job recommendations and evaluations--many states
  require pls. in these cases to show the employer
  knowingly gave out false information

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Defamation

• If the def. is the media and the pl. is a public
  figure
• The pl. has to show legal malice
• Def. knew the statements were false or
• Def. had a reckless disregard for the truth
• The media can protect themselves, from the
  consequences of their own mistakes by requiring
  reporters to find two independent sources for
  their articles

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Fraudulent Misrepresentation

• Fraud or deceit could be tort
• Five elements
• Misrepresentation of material facts
• Scienter
• Intend to defraud
• Reasonable reliance by the pl. on the
  misrepresentation
• Causation between the misrepresentation and the
  pl.s damages
• There are numerous defenses the statements were
  true, not intentional, pl.s reliance on the
  statements was not justified, the
  misrepresentations did not cause the pl.s damages

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Wrongful Takings and Intermeddling

• Conversion
• Exercise of dominion or control over the property
  of another without justification
• A conversion could be the result of an innocent
  mistake
• Damages in conversion are equal to the FMV of the
  property converted
• Conversion could take place with far less than a
  theft
• Trespass to personal property--intermeddling
• Intentional and wrongful interference with the
  owners possession or use of personal property

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Trespass to Personal Property

• Damages are equal to
• difference in fair market value before and after
  the trespass--often not much
• more recently trespass to personal property has
  been used against various interference that
  occurs in cyberspace
• Aggregators interfere with online auctions and
  have been successfully sued
• So far suits against Internet reporting of sports
  contests have not been successful

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Trespass to Real Property

• Trespass to real property
• Takes place when a person goes onto the land of
  another without permission or justification
• Applies to intrusions that occur above and below
  the surface
• Landowners are entitled to airspace over their
  land to a reasonable level
• Defenses
• Emergency
• Recovery of personal property

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Negligence

• Defendant owes a duty to pl.
• Pl. breaches the duty
• Pl. is harmed and the actions of the def.
• Are the proximate cause of the pl.s injuries
• The negligence of the def. is based on a
  reasonable person standard
• If the def.s actions fall below that standard
  then the def. is negligent
• Driving in excess of the speed limit is not
  acting reasonably

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Proximate Cause

• Proximate cause is legal causation
• But for the actions of the def. the pl. would
  not have been harmed and
• The harm to the pl. was reasonably foreseeable
• Even if the def. was in the wrong he or she is
  not liable for freak accidents
• Duties of landowners and possessors
• At CL, landowners have a duty not to create
  pitfalls for trespassers
• Landowners are liable for creating attractive
  nuisances--creating risks that foreseeable
  trespassers (children) could not appreciate

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Landowners and Possessors

• People who come on your land with your permission
  are called licensees
• You have a duty to warn about known dangers
• For business invitees you have a duty to warn
• about dangers that you knew or should have known
  about
• Professionals have a duty of care consistent with
  their profession
• Those that hold themselves out as specialists
  must according to the standards of the specialty

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Negligence Per Se and Res Ipsa Loquitur

• In some situations negligence is defined by
  statute,
• Speed limits, safety standards for products
• Res Ipsa Loquitur--the thing speaks for itself
• When the def. is in control of the
  instrumentality that causes the harm and
• The harm would not have normally have occurred
  but for negligence
• Effect of showing res ipsa is that the burden of
  proof shifts from pl. to def.
• E.g., a pedestrian is injured while walking
  legally next to a construction site and a brick
  falls on his head

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Defenses in Negligence Suits

• Superceding or intervening cause
• After the def. has been negligence an event
  occurs which causes harm to the pl.
• Assumption of risk
• Pl. is aware of the risk and voluntarily assumes
  it
• often defs. have pls. sign waivers so it is
  obvious that the pl. was aware of the risk
• Contributory negligence
• Pl.s negligence contributed to his harm
• If shown it is a complete defense, but it has
  been abolished in most states

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Defenses in Negligence Suits

• Comparative negligence--
• Percentage of liability by the pl. is subtracted
  from total damages
• Most states require that the def.s share of the
  liability or blame exceeds the pl.s
• Good Samaritan Statutes
• If a rescuer commits negligence while performing
  a rescue, he or she is not liable
• Unless they are grossly negligent

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Strict Liability

• Torts that fall into the category of strict
  liability create liability for the def., even
  though the def. was not at fault
• Two main categories of strict liability torts
  are
• Unusually dangerous activity
• Using dynamite, harboring wild animals, storing
  hazardous waste
• Product liability
• Manufacturing and design

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Product Liability

• Product liability
• Is composed of both tort and contract law
• When a seller makes a warranty, the seller
  creates strict liability for himself
• In tort law,
• If you sell a product that has a defect,
• and the product is the proximate cause of harm to
  the pl.
• you are strictly liable

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Product Liability

• Product liability is defined in the Restatements
• Section 402A (1977 version)
• One who sells a product in defective condition,
  unreasonably dangerous to the consumer or user,
• Or to his property
• Is liable for the harm to the pl. if
• The seller is engaged in the business of selling
  this product, and
• The product is expected to reach the consumer in
  a condition that is substantially unchanged
• Is liable to the pl. even though the seller
  exercised all possible care
• And there is no privity between the seller and pl.

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Product Liability

• Note that sellers are liable even though they
  have not handled the product
• In general manufacturers are primarily liable for
  defective products, but retailers and
  distributors could be liable if the manu. goes
  bankrupt
• In general, liability is based on a finding of a
  defect
• three types manufacturing, design, and
  inadequate warnings

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Product Defects

• Manufacturing defects
• Defects that take place because the actual
  product does not conform to the product design
• Someone in the manufacturing process made a
  mistake
• Manufacturing defects are sometimes based on the
  consumer expectations test
• Would an ordinary consumer expect the product to
  operate in this fashion, i.e., bicycles are
  expected to slow down when the operator applies
  the brakes

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Design Defects

• If there is a design defect, then all such
  products have the defect
• Gives rise to class action suits and potentially
  huge damage awards
• Three tests for design defects
• Does the design conform to govt. requirements?
• Is the design at least equal to the industry
  average in terms of safety?
• Does the design pass a cost benefit test, such
  that any other design would cost far more than
  the gains in safety

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Design Defect

• The most recent restatement, the Restatement
  Third of 1998
• Calls for explicitly calls for tradeoffs between
  safety and cost
• Focus of Restatement Third is on foreseeable
  risks rather than intended use of the product
• If a use of a product is foreseeable and harmful,
  the seller should provide a warning
• If a product design fails any one of the tests
  govt. regs, industry standards, or risk/safety
  tradeoffs, it will most likely be judged defective

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Inadequate Warnings

• Sellers must warn about foreseeable risks or else
  be liable for those who would have heeded such
  warnings
• Note that there is no obligation to warn about
  obvious risks
• Factors sellers should take into account in
  deciding whether to provide warnings
• Gravity and risks posed by the product
• Content and comprehensibility of the warnings
• Intensity of the expression--should signs be used
• Characteristics of user group

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Defenses

• Even though sellers of products are strictly
  liable for product defects there are defenses
  available
• Misuse of the product
• Ignoring warnings
• Assumption of risk
• In many cases, these defenses run together
• Those who ignore warnings are assuming the risk
• Other defenses include
• Tampering--if the seller can show that the
  product was safe when it left his hands, it is a
  defense
• Govt. contractor defense
• State of the art defense--the risk could not have
  been known

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Software Products

• Currently to maintain a case against a seller or
  licensor of software the buyer or user has to
  show negligence
• For contract partners, software vendors limit
  liability and exclude warranties
• Third parties are not bound by contractual
  agreements
• Third parties can recover if it is foreseeable
  that negligent development of software will cause
  risks of harm
• For software products that have large potential
  impact on health and safety, the negligence
  standard can become a de facto strict liability
  standard

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Product Liability Reforms

• There is much controversy about product liability
  laws
• Some have suggested that product liability be
  made federal
• Others have proposed caps on damages
• State of the art defenses have been proposed