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Chapter 5Intentional Tortsand Negligence
Introduction to Intentional Torts and Negligence
Injured party brings civil lawsuit to seek compensation for a wrong done to the party
Damages available Tort damages Punitive damages
If the victim of a tort dies, beneficiaries can bring a wrongful death action against defendant
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-2
Intentional Torts
Assault Threat of immediate harm or offensive contact Any action that arouses reasonable apprehension
of imminent harm Actual physical contact is unnecessary
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Intentional Torts
Battery Unauthorized and harmful or offensive physical
contact with another person Direct physical contact between victim and
perpetrator unnecessary May accompany assault
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-4
Intentional Torts
Doctrine of transferred intent Party A intends to harm Party B, but actually
injures Party C Law transfers perpetrator’s intent from target to
actual victim Party C can sue the perpetrator
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-5
Intentional Torts
False imprisonment Intentional confinement or restraint of another
person without authority or justification and without that person’s consent Physical force Barriers Threats of physical violence False arrest
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-6
Intentional Torts
Shoplifting and merchant protection statutes Merchants may stop, detain, and investigate
suspected shoplifters if: There are reasonable grounds for suspicion Suspects are detained for only reasonable time Investigations are conducted in reasonable
manner
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-7
Case 5.1: False Imprisonment
Case Walmart Stores, Inc. v. Cockrell 61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992 Court of Appeals of Texas
Issue Does the shopkeeper’s privilege protect Walmart
from liability under the circumstances of the case?
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-8
Intentional Torts
Misappropriation of the right to publicity Attempt by another person to appropriate a living
person’s name or identity for commercial purposes Tort of appropriation Plaintiff’s recourse:
Recover the unauthorized profits made by the offender
Obtain an injunction preventing further unauthorized use of his or her identity
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-9
Intentional Torts
Invasion of the right to privacy Violation of a person’s right to live his or her life
without being subjected to unwanted and undesired publicity
Placing person in a “false light”
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-10
Intentional Torts
Defamation of character Types
Slander Libel
Plaintiff must prove that: Defendant made an untrue statement of fact
about plaintiff Statement was intentionally or accidentally
published to a third party
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-11
Intentional Torts
Disparagement
Untrue statement made about products, services, property, or reputation of a business
Intentional misrepresentation (Fraud) Wrongdoer deceives another person out of money,
property, or something of value
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-12
Intentional Torts
Intentional infliction of emotional distress
Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person
Also known as tort of outrage
Malicious prosecution
Frivolous lawsuit maliciously brought
Prevailing defendant sues original plaintiff to recover damages for injuries
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-13
Unintentional Torts (Negligence)
Unintentional Tort: A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
Negligence: Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-14
Unintentional Torts (Negligence)
Elements of a Negligence Lawsuit The defendant owed a duty of care to the plaintiff The defendant breached the duty of care The plaintiff suffered injury The defendant’s negligent act caused the plaintiff’s
injury The defendant’s negligent act was the proximate
cause of the plaintiff’s injuries
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-15
Unintentional Torts (Negligence)
Duty of care: Obligation not to cause any unreasonable harm or risk of harm Tests used to determine whether a duty of care was
owed:
Reasonable person standard Reasonable professional standard
Breach of duty of care: Failure to exercise care or to act as a reasonable person would act
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-16
Unintentional Torts (Negligence)
Injury to plaintiff Personal injury or damage to the plaintiff’s
property
Damages cannot be recovered if the plaintiff suffered no injury
Damages recoverable depend on the effect of the injury on the plaintiff’s life or profession
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-17
Case 5.2: Damages for Negligence
Case
Clancy v. Goad
858 N.E.2d 653, Web 2006 Ind. App. Lexis 2576 (2006)
Court of Appeals of Indiana
Issue
Were the damages awarded to Dianna Goad excessive?
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-18
Unintentional Torts (Negligence)
Causation Causation in fact (actual cause): A person who
commits a negligent act is not liable unless actual cause can be proven
Proximate cause (legal cause): A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-19
Case 5.3: Duty of Care
Case James v. Meow Media, Inc. 300 F.3d 683, Web 2002 U.S. App. Lexis 16185
(2002) United States Court of Appeals for the Sixth
Circuit
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Case 5.3: Duty of Care
Issue Are the video and movie producers liable to the
plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs’ three children?
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-21
Special Negligence Doctrines
Professional malpractice
The liability of a professional who breaches his or her duty of ordinary care
Breach of reasonable professional standard
Negligent infliction of emotional distress Permits a person to recover for emotional distress
caused by the defendant’s negligent conduct
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Special Negligence Doctrines
Negligence per se Violation of a statute that proximately causes an
injury
Res ipsa loquitur Defendant had exclusive control of the situation
that caused the plaintiff’s injury
Injury would not have ordinarily occurred but for someone’s negligence
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Special Negligence Doctrines
Good Samaritan laws
Protects medical professionals who stop and render emergency first aid
Relieves them from liability for ordinary negligence
No relief for gross negligence or intentional or reckless conduct
Laypersons not trained in CPR not covered
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Defenses Against Negligence
Superseding or intervening event An event for which defendant is not responsible
Assumption of risk Plaintiff knowingly and voluntarily participates in
a risky activity that results in injury
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Case 5.4: Assumption of the Risk
Case
Lilya v. The Greater Gulf State Fair, Inc.
855 So.2d 1049, Web 2003 Ala. Lexis 57
Supreme Court of Alabama
Issue
Was riding a mechanical bull an open and obvious danger for which Lilya had voluntarily assumed the risk when he rode the mechanical bull?
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-26
Defenses Against Negligence
Contributory negligence Plaintiff who is partly at fault for his or her own
injuries cannot recover against negligent defendant Comparative negligence
Damages apportioned according to fault Pure comparative negligence Partial comparative negligence (50% rule)
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-27
Strict Liability
Strict liability is liability without fault A participant in a covered activity will be held liable
for any injuries caused by the activity, whether or not he or she was negligent
Abnormally dangerous activities
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-28
Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 5-29
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