CHAPTER 4

THE LAW OF TORTS

TORT Book definition: private wrong committed by one person

against another

Interference with another’s rights either by an intentional act or through negligence

TORT LAW IS PART OF CIVIL (NONCRIMINAL) LAW

IT CONCERNS LAWSUITS (NOT PROSECUTIONS.)

A funny word:

In French (where it originated) a tort means “to wrong someone.”

TORT

THINK PERSONAL INJURY

SOMEONE HAS SUFFERED AN INJURY, WHETHER:

1. INTENTIONAL ACT

2. CARELESSNESS

3. NEGLIGENCE

FIVE AREAS OF TORT LAW

A. INTENTIONAL

B. NEGLIGENCE (personal injury)

C. STRICT LIABILITY (hazardous)

D. TRUE LEGAL ACCIDENT (no fault)

E. Others: Nuisance, fraud, invasion of privacy, defamation

INTENT

(Intentional Tort)

1st area of tort law

1. Must prove INTENT

to harm someone OR

2. Person (tortfeasor) knew with substantial certainty that what they were doing would harm someone.

FYI

IN CRIMINAL LAW, WHEN SOMEONE COMMITS A WRONG, THE ACTION IS CALLED A

CRIME

IN CIVIL LAW, WHEN SOMEONE COMMITS A WRONG, THE ACTION IS CALLED A

TORT

TAKE THE VICTIM AS YOU FIND THEM

1.Did your actions make a condition worse?

2. If so, you may be liable for almost all the consequences.

Intentional Tort cont.

NEGLIGENCESecond area of Tort Law

Unintentional Tort—caused by carelessness

Failure to exercise reasonable care under the circumstances so that a foreseeable risk to the other person is created resulting in an injury to the plaintiff.

Unintentional Tort

STRICT LIABILITYThird area of Tort Law

Unintentional Tort—

Injury caused by

individual’s participation in

ultrahazardous

activity.

Unintentional Tort

TRUE LEGAL ACCIDENT

Rare Situation

Accident happens –

no fault of anyone.

INTENTIONAL TORTWas there intent to harm?

1. Was there substantial certainty that what you were doing would harm someone?

2. Liable for almost all of the consequences.

(EX: I’m driving my car with you in it, and you want to get out, and I don’t stop, that may be false imprisonment. An

intentional tort)

UNINTENTIONAL TORTBreach of duty through other ways other than by

committing intentional tort.

BATTERY

Definition — Unlawful, unprivileged contact

(touching) of another person

Gist word of battery – contact

Every tort has a gist word

(key word)

Intentional Tort cont.

ASSAULTDEFINITION: threatening to strike or harm with a weapon or physical movement, resulting in fear.

GIST WORD: Fear and apprehension

Intentional Tort cont.

Intentional Tort cont.

FALSE IMPRISONMENT

DEFINITION: Unlawful confinement of a person whether in prison or

otherwise.

example: false arrest

GIST WORD: Confinement

Intentional Tort cont.

THREE ELEMENTS MUST BE PRESENT TO CLAIM FALSE IMPRISONMENT

1. IS THERE CONFINEMENT?

2. IS THERE KNOWLEDGE OF THE CONFINEMENT?

3. IS THERE NO REASONABLE MEANS OF ESCAPE?

Intentional Tort cont.

INFLICTION OF MENTAL DISTRESSDEFINITION: Extreme and outrageous conduct, intentional or recklessly causing emotional or mental suffering to others. Could be charged with negligent infliction of mental distress.

GIST WORDS: Extreme and Outrageous

(Ex: If I know you are petrified of snakes

and I leave one in your desk--that may be

grounds for a suit based on intentional infliction

of emotional/mental distress.)

Intentional Tort cont.

TRESPASS TO PROPERTY

DEFINITION: Wrongful injury or intrusion onto another’s property.

GIST WORD:

Intrusion

(EX: If a neighbor builds a fence but it happens to sit on part of your property, that’s a trespass, even if he did it unintentionally—referred to as trespass to land.)

TRESPASS TO CHATTELS

DEFINITION: Minor interference with someone else's property/possessions (taking it, destroying it, barring owner’s access to it)

CHATTELS: Personal Property

. EX: The mechanic at the garage test drives your car, has an accident along the way, and returns to the garage with your “wrecked” car.

CONVERSIONUnauthorized taking or borrowing of personal property of another for the use of the taker.

Major interference with another’s property

DEFENSES TO INTENTIONAL TORT

CONSENT – permission

SELF-DEFENSE – right to defend self with as much force as used against you.

DEFENSE OF OTHERS – knowing circumstances, come to another’s aid

DEFENSE OF PROPERTY – defense of what is yours

PRIVATE/PUBLIC NECESSITY –

Public – for the greater good

Private – damage to save one’s self

SOUND SIMILAR TO DEFENSES USED IN CRIMES???

NUISANCE

DEFINITION:

Anything that

interferes with your

enjoyment of life

or property.

ADDITIONAL TORTS

INVASION OF RIGHT TO PRIVACY

DEFINITION: Interference with a person’s right to be left alone:

a. Unwarranted appropriation or exploitation of one’s personality.

b. Publicizing of private affair with which the public has no legitimate concern.

c. Wrongful intrusion into one’s private activities, which would be highly offensive to a reasonable person.

ADDITIONAL TORTS cont.

AUGUST 2007Miss New Jersey Says

She's Being BlackmailedThreats Say They'll Make Personal Photos Public

Amy Polumbo's lawyer said the pictures were probably

posted years ago on a private Internet site. He's

describing them as not that bad.

MARCH 2006

March Playboy Issue (2006) Jessica Alba is suing Playboy for unauthorized use of her image for commercial purposes.

ADDITIONAL TORTS cont.

DEFENSES1. Consent to invasion of right to privacy

2. Qualified Privilege – invasion of privacy

granted to teachers (as long as about

school and to parents)

3. Absolute Privilege – granted to

Congressmen in Congress

FRAUD

INTENTIONAL

MISREPRESENTATION

ADDITIONAL TORTS cont.

ADDITIONAL TORTS cont.

DEFAMATION OF CHARACTERWrongful act of injuring another’s reputation by making false statements

TYPES OF DEFAMATIONSLANDER – spoken words

LIBEL – written words/pictures/ broadcast over radio or TV

A case of poison E-mail? (Sidney Blumenthal sues America Online for libel and slander)

 | From: U.S. News & World Report  | Date: September 8, 1997  | Author: Simons, John

White House aide Sidney Blumenthal last week filed a lawsuit alleging libel, slander, and invasion of privacy, seeking $30 million from America Online and Internet gossip reporter Matt Drudge. The case charges that last month, Drudge erroneously labeled Blumenthal a wife abuser in the Drudge Report, a daily dispatch transmitted on AOL. Drudge later apologized, but Blumenthal wasn't satisfied….

REQUIREMENTS FOR DEFAMATION

Defamatory statements about plaintiff

(calling names not enough)

1. Publication communicated to a third party

2. Injury to plaintiff’s reputation

EXAMPLE: A colleague from your previous employer publishes false statements about you to your friends

DEFENSES TO DEFAMATION

1.CONSENT to say what was said

2.TRUTH in what was said

3.ABSOLUTE or QUALIFIED PRIVILEGE to say what was said

DIFFERENCE BETWEEN

PUBLIC VS. PRIVATE PERSON1. Must show actual malice for the public person

2. Statements made knowing it was false with reckless disregard for its falsity

PUBLIC PERSON – (politicians, judges, entertainers, athletes)

--must show more damage to their reputation than average person to win suit

PRIVATE PERSON – YOU AND ME

ACTUAL MALICE – Statements made either with knowledge it was false or with reckless disregard of whether true or false.

FYI

INNOCENT CONSTRUCTION RULE

If a statement is reasonably susceptible of both a

defamatory and an innocent meaning, the innocent

meaning is to be adopted as a matter of law

FYI

DEFAMATORY STATEMENT

Unprivileged publication of false and defamatory matter that tends to reflect injuriously on a person’s reputation, or exposes a person to “public hatred, contempt, ridicule, or disgrace OR affecting a person adversely in his or her trade, business, or profession.

NEGLIGENCE

Failure to exercise reasonable care under the circumstances so that a foreseeable risk to another person is created resulting in an injury to the plaintiff.

2007--Woman dies in ER lobby as 911 refuses to help

UPDATE: 2008--$45M lawsuit by family

Has not gone to trial yet

EDITH RODRIGUEZ, 43

4-STEP MODEL TO UNDERSTANDING NEGLIGENCE

1. WAS THERE DUTY? –duty not to hurt a person

2. DID YOU BREACH THAT DUTY? – broken rule

3. WAS THERE CAUSATION? – point the finger

4. WERE THERE DAMAGES? – how responsible are you?

EXAMPLE: A colleague from your previous employer publishes false statements about you to your friends

Gist word: Causation—act that produces an effect

Police Investigate Response To 911 CallYoung Boy's Attempt To Save His Mother Fails

POSTED: 6:11 pm EDT April 7, 2006

Detroit police are investigating a 911 call that hurt rather

than benefited a mother and her child.

Robert Turner, 5, called 911 when his mother, who suffered from a heart condition, collapsed in their Detroit home. When a 911 operator answered the call, she didn't take Robert's claims seriously.

Operator: "Where's the grown-ups at?"Robert: InaudibleOperator: “Now put her on the phone before I send the police out

there to knock on the door and you gonna be in trouble."

Operators told Local 4 they take nearly 2 million 911 calls every year, and nearly 40 percent of them are not emergencies.

UPDATE:

A lawsuit has been filed against two Detroit police dispatchers who refused to send help for Robert Turner's dying mother. The family is asking for more than a million dollars.

ANALYSIS OF DUTY REQUIREMENTS

Must be to a foreseeable plaintiff

Was there a reasonable standard of care?

Reasonable Person Standard--Provided reasonable standard of care under normal circumstances

Horrendous Circumstances – choosing who should live or die

HOW DO YOU COMPARE CHILDREN

WITH NEGLIGENCE?

Children under 4 incapable of negligence

Children over 4 – compare with similar attributes

NEGLIGENCE CONTINUED

A door with a bullet hole in Landover, Md., after shooting that left 5-year-old Kimberly Brice dead and her 7-year-old brother injured.

Boy, 4, 'Sorry' He Shot Siblings LANDOVER, Md. , Sept. 29, 2003 (AP) 

A 4-year-old boy who shot and killed his sister and wounded his brother understands what he has done, his father said. He knows," Gregory Thigpen Sr. told The Washington Post for a story in Monday's editions. "He's very remorseful. He was apologizing to me."

Da'Joun Brice was crying when police arrived Saturday after the boy picked up a .45-caliber semiautomatic handgun and pulled the trigger, shooting 5-year-old Kimberly Brice and 7-year-old Gregory Thigpen Jr. "He kept asking if everybody was okay," said spokeswoman Cpl. Diane Richardson. An older sister, 10-year-old Katina Brice, had gotten Kimberly and Gregory out of the home when she saw Da'Joun with the gun, but the bullet pierced the front door and tore through Gregory's back and hit Kimberly's upper body, police said.

The 4-year-old cannot be held criminally responsible, but charges may be filed against the parents or others who left the gun within reach, police said. The mother, Jennifer Brice, also could face charges for leaving the children at home without adult supervision.

Thigpen said he was working when the shooting occurred. He declined to say where Brice was. Brice is not married to Thigpen but lives with him and his brother.

PROFESSIONALS –

Doctors judged by average doctor in community

Specialists judged by national standards

COMMON CARRIERS – Bus

INNKEEPERS - Hotel

Slight negligence makes them libel

GUEST STATUTES -- non-paying guests

Host/Hostessmust show complete reckless disregard for guest safety.

Actual Causation

But for the defendant’s negligent conduct, would the injury have occurred?

Proximate Causation (legal causation)

Trier of fact can let a negligent defendant off, whose negligence actually caused the injury based on lack of foreseeability.

Analysis of Causation Requirements

Negligence of Owners and Occupiers of Land

– standard of care to apply.

Undiscovered Trespasser – no basic duty of careDiscovered Trespasser – give adequate warningLicensee – Salesman – responsible for concealed

damagesInvited Guests – responsible for concealed dangers

and duty of reasonable inspection.

Attractive nuisance – swimming pools, old railroad cars, refrigerators—you are

responsible if an injury occurs.

STRICT LIABILITY

No amount of care will eliminate risk and liability if someone is hurt.

ANIMALS – dog bite EXOTIC PETS – crocodile

ULTRA HAZARDOUS ACTIVITIES – dynamite manufacturer

PRODUCT LIABILITY:

(With products, must prove that the

product was not safe for its intended

use and that he was injured by it.

Defenses to Negligence

Contributory Negligence – if you show both parties contributed to injury, no one collects

Comparative Negligence – plaintiff’s recover reduced by % of own negligence (if 51% at fault, cannot

collect damages)

Assumption of Risk – assumed risk of getting hurt so should not collect

Last Clear Chance Doctrine – chance to avoid accident and don’t—you are held solely responsible

OK—WHO’S THE WISE

GUY??

VERY FUNNYHA HA!!

SEE YA NEXT CHAPTER—WE NEED TO TALK

TO MANAGEMENT ABOUT THEIR

SENSE OF HUMOR!!