OBE 118 - LEGAL ENVIRONMENT OF

BUSINESS

INTRODUCTION TO

TORTS

“That great principal of the common law which declares that it is your duty to use and exercise your own rights so as not to cause injury to other people.”Sir Charles James Watkin Williams, English jurist

DEFINITION OF A TORT

An interference with another’s person or property

resulting in injury to the person or their property

Torts differ from crimes and contract

breaches, but……have much in common with

crimes.

Primary distinction is in the interest affected &

how an actor is held accountable.

TORT compared to a crime

Protects private interests

Protects state

interests

Private victim recovery usually $

Public punishment

Civil procedure Criminal procedure

DEFINITION OF A TORT (CONTINUED)

THE SAME ACT CAN BE BOTH A TORT AND A CRIMINAL ACT.

Are Most Crimes Torts? Are Most Torts Crimes?

A TORT ACT MAY ALSO HAVE CONTRACT

CONSEQUENCES.

Torts Are Classified By The Nature Of The

Actor’s Conduct.

Intentional

Unintentional

Negligence

Absolute Liability Or Strict Liability

DAMAGES

Compensatory damages

•A sum of money awarded to compensate the plaintiff for the injury suffered – purpose is to restore the injured person (as nearly as possible) to his or her former position or the money equivalent.

•Consists of special and general damages.

SPECIAL (ECONOMIC DAMAGE) - OUT OF POCKET LOSS

Objectively verifiable monetary losses including

SPECIAL (ECONOMIC DAMAGE) - OUT OF POCKET LOSS

Medical expenses, Loss of earnings Hospital Doctor Damaged property Transportation charges

Loss of use of property Costs of repair or

replacement Cost of obtaining

substitute domestic services

Loss of business or employment opportunities

DAMAGES (CONTINUED)

General (non-economic damages) pain and suffering, humiliation.

Subjective, losses including pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.

DAMAGES AND TORT REFORM(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary damage.

DAMAGES AND TORT REFORM(b) In no action shall the amount of damages for non-economic losses exceed two hundred fifty thousand dollars ($250,000).West's Ann.Cal.Civ.Code § 3333.

PUNITIVE OR EXEMPLARY DAMAGES

"Punitive damages are

damages awarded over

and above compensatory

damages to punish a

wrongful party because

of wanton, reckless or

malicious acts or

omissions."

Purpose is to punish & make an example of the actor to discourage similar behavior

PUNITIVE OR EXEMPLARY DAMAGES

Conduct suggesting an award of punitive damages

Violence Oppression Degradation Fraud Wicked Malice “Reckless

indifference"

PUNITIVE OR EXEMPLARY DAMAGES

Some states provide procedural barriers to recovery

Burden of proof Professional

agreements to sue Sharing of award

Punitive Damage Issues Intentional acts? Ordinary negligence? Contract actions? Appellate Courts? Statutory limits? Insurable? Vicarious liability? Insurable? LOW FREQUENCY/HIGH SEVERITY:

Punitive damage verdicts are rare, but can be extremely large. Juries often are allowed to assess damages subjectively, creating unpredictable verdicts.

“While punitive damages are awarded in less than 4 percent of all civil jury verdicts, there is a 1-in-7 chance of a punitive award in disputes arising from contractual or commercial relationships, including, for example, disputes stemming from insurance or employment contracts or from unfair business practices.”From The Rand Institute

DAMAGES AND TORT REFORM

Judgment proof means a judgment debtor lacks sufficient assets to satisfy a judgment.

DAMAGE ISSUES

• Bankruptcy allows the discharge of damage verdicts against defendants except for willful and malicious injury to the person or property of another.

DAMAGE ISSUES

INTENTIONAL TORTS

A person intends an act which will invade another’s interest and either knows or should know (substantially certain) that there is an appreciable risk to another from the act

INTENTIONAL TORTS

•One intends something when an act is done and the result is substantially certain or when the result is uncertain the result is desired by the actor.

INTENTIONAL TORTS

•An evil or harmful motive is not required to be an intentional tort--the actor may even have intend a benefit

DEFAMATION

Invasion of the interest reputation.

“A false unprivileged statement of fact communicated to a third person, causing damage to a person’s or a product’s reputation.”

DEFAMATION

Libel a writing, printing, picture, effigy, or other fixed representation to the eye.

DEFAMATION

Slander oral statements and gestures. Radio and other mechanical communications are slander in California. Many other states consider them libel.

DEFAMATION REQUIREMENTS (Elements)

Publication - communicated to a third person.

Statement about a particular person.

Defamatory character

Damages

• Intent to make the statement sufficient for most actions but

Malice required when plaintiff is a public figure.

DEFAMATION REQUIREMENTS (Elements)

PUBLICATION - Communicated to a third person.

DEFAMATION REQUIREMENTS (Elements)

Statement about a particular person.

DEFAMATION REQUIREMENTS (Elements)

Defamatory character

DEFAMATION REQUIREMENTS (Elements)

Damages

DEFENSES TO DEFAMATION

Truth is an absolute defense.

Absolute privilege may exist

Qualified privilege may exist

DEFENSES TO DEFAMATION

Absolute privilege may exist

Statements of judges, attorneys, parties, etc. Made in a judicial proceeding.

Statements by legislators during legislative proceedings.

Qualified Privileges

Conditional or qualified privilege -freedom from malice makes these statements privileged. Ex: response to a request for information where the inquiry is reasonable. California cc 47(3).

CALIFORNIA QUALIFIED PRIVILEGE DEFENSE TO DEFAMATION

Civil Code §47(c), so long as the prospective employer requests the information from the former employer, and the former employer acts without malice, the communication is privileged, and the former employee cannot later recover from the former employer under a defamation theory.

The privilege does not insulate employers from all liability arising from employment disclosures, especially where new employers and third parties seek recovery for injuries caused by negligent omissions or fraudulent disclosures.

Qualified Privileges

Constitutional qualified privilege

Right to comment about public officials, & public figures.

RETRACTION RIGHT Plaintiff must give notice within 20 days

after publish or broadcast has made defamatory statement.

Retraction is not a defense but it can limit damages. CC48a.

Cal Civil Code 48a. 1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

No matter how often a lie is shown to be false, there will remain a percentage

of people who believe it is true.

FALSE IMPRISONMENT

The unprivileged, unconsented confinement of

another within boundaries of the wrongdoer’s

making.

Confinement can be through threat or

physical barriers.

FALSE IMPRISONMENT

It did not seem like such a bad idea a few minutes ago. All Fred asked Rhonda was that she climb in the trunk to see how roomy it was in her new car. When he slammed the trunk lid and left her there while he gathered the sales manager and the other salesman Rhonda’s view of this adventure changed. She was released to the laughter of the group and Fred claimed his $100 prize from the sales manager for talking a customer into the trunk of her car. Does she have a claim for false imprisonment?

SHOPKEEPERS PRIVILEGE STATUTE

Allow shopkeeper to detain to investigate possible shoplifting without liability for a reasonable mistake

Protection from legal responsibility for the torts of false imprisonment, assault, battery, emotional distress defamation, etc.

SHOPKEEPERS PRIVILEGE STATUTE

Privilege usually requires both probable cause and reasonable behavior.

Probable cause exists when there is reasonable belief that a person has committed a wrongful act.

Detention must be done in a reasonable manner & for a reasonable time

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Extreme or outrageous behavior resulting in severe emotional distress to another.

Harsh words alone are not enough

A very complicated tort.

An emotional assault. Must exceed bounds of normal behavior. Some states require that the mental disturbance manifest itself as a physical illness.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Old English case - (1897). Joker told a woman that her husband injured in an accident and was lying at elm street with both legs broken.

INVASION OF PRIVACY

Unreasonable interference with another’s privacy. Most persons have a reasonable right to solitude and freedom from public prying.

Several acts qualify as an invasion of privacy:

Intrusion on an individual’s affairs or seclusion. Includes wiretapping, invading a person’s home to search it, and window peeping.

INVASION OF PRIVACY

Public disclosure of private facts

disclosure is offensive to a reasonable person.

Disclosure is not of legitimate concern to the public.

EXTRA: SCANDAL IN PROFESSOR CARPER’S CLASS. Two students found awake after 45 minutes of lecture.

APPROPRIATION

Use of a person’s name or picture for commercial purposes without permission

Often treated as a form of invasion of privacy We each have a property right in the use of

our own name

Note the Bette Midler case

CONTRACT INTERFERENCE REQUIREMENTSExistence of a valid enforceable contract

Third party awareness of the contracts existence

The third party intentionally causes one of the parties to breach the contract for the purpose of the third parties economic gain.

CONTRACT INTERFERENCE Texaco v. Pennzoil 7.53+3 billion punitive=10.53B

Texaco & the Ten Billion Dollar Jury by James Shannon

ASSAULT

An intentional, unexcused act that creates in the mind of another person a reasonable apprehension or fear of an immediate harmful or offensive touching.

EXAMPLE: Ferd throws a bucket of oil at Cantwell. If Cantwell sees the oil or bucket coming, it is assault.

BATTERY:

An intentional unprivileged un-permitted harmful or offensive contact by another.

EXAMPLE: Ferd throws a snowball at Cantwell and it hits Cantwell

COMMON DEFENSES TO INTENTIONAL TORTS

Consent: permission freely given or reasonably

implied. Did the act exceed the permission or

consent?

COMMON DEFENSES TO INTENTIONAL TORTS

PRIVILEGE: A right to engage in certain behavior

arising from relationship or circumstance.

DEFENSES -PRIVILEGE-Conflicting and overlapping meanings

An advantage; a right to preferential treatment

An exemption from a duty others like you must perform

DEFENSES -PRIVILEGE

Self defense - right to use force which reasonably appears necessary for protection of ones self.

Apparent necessity

Reasonable force

Defense of others - right to assist others if they would have had the right to defend themselves.

DEFENSES -PRIVILEGE

Recapture of chattels - right of one in fresh pursuit of goods wrongfully taken to use reasonable force to retake. Force that is likely to cause death or great bodily injury can never be used just to protect property.

DEFENSES (CONTINUED)

DEFENSE OF PROPERTY. Reasonable force may be used in attempting to remove intruders from one’s home, although force that is likely to cause death or great bodily injury is not justified in defense of property.

SOCIAL PRIVILEGE - Right to engage in normal social behavior.

DEFENSES (CONTINUED)

SHOPKEEPERS PRIVILEGE. “May detain person for a reasonable for a period in reasonable manner, of probable cause exists that a theft has occurred.”

STATUTE OF LIMITATIONS

•NEGLIGENCE - One year from injury