Torts

Wrongful Act

Compensation

Question below based on Example 12.21, p. 295

Ling’s market Pam enters Ling’s market in a heavy rain,

A half inch fell in the last half-hour, she slipped and fell in a small

puddle by the door and injured her back Is Ling’s liable?

Reasonable

Should Ling have to pay for the injury?

Chapter Objectives

1. Difference between tort and crime

2. Purpose of tort law.

3. Identify intentional torts

5. Understand negligence.

Intentional Torts – Assault and Battery

Assault. Reasonable fear of immediate harm or offensive contact

Battery. Completion of act that caused apprehension

Defenses – consent– self-defense– defense of others– defense of property

Other Examples?

Hockey sucker punch Todd Bertuzzi “suker” punches Steve Moore 

Intentional Torts – False Imprisonment

Wal-Mart Stores, Inc. v. ResendezWal-Mart Stores, Inc. v. ResendezRaul Salinas, store security guard, saw Lucia Resendez eating a bag of peanuts with a Wal-Mart sticker. After eating them, she discarded the bag and left the store. The guard accused her of stealing the peanuts. She claimed she bought them at another Wal-Mart store the day before. Resendez was arrested and convicted of misdemeanor theft. The conviction was overturned, and Resendez filed suit alleging false imprisonment. Resendez won, and Wal-Mart appealed.

Start her Mon – intended to do it

5

Wisconsin Case from Summer 2009•Therese Ziemann lured the victim to the Lakeview Motel with the promise of a massage and tied him up and blindfolded him as part of the massage.•Two more women then emerged plus the man’s wife – all the women had a sexual relationship with the victim and were “scorned.” •He screamed for help and the women eventually fled.

Therese Ziemann

Wendy Sewell

Michelle Belliveau

Intentional Torts – False Imprisonment

False Imprisonment– Intentional confinement– Without justification

Defenses – probable cause– reasonable manner/time

Intentional Torts – Intentional Infliction of Emotional Distress

7

Dennis Rodman•Rodman while playing craps at the Mirage Hotel in Las Vegas rubbed the dealer’s bald head for good luck.•Dealer sued for intentional infliction of emotional distress. This action caused him “embarrassment, indignity, degradation, and anger.”

2010 - Supreme Court heard arguments on intentional infliction of emotional distress case

Snyder v. PhelpsLower court awarded $5 Million“God Hates You”“You are going to hell”“Thank God for dead soldiers”

Intentional Torts – Intentional Infliction of Emotional Distress

Infliction of Emotional Distress – Intentional act that amounts to extreme and

outrageous conduct resulting in severe emotional distress

– Indignity or annoyance alone is not enough

Intentional Torts

- Defamation

Defamation– Slander – oral – Libel - writing

Publication Per Se

– loathsome communicable disease– improprieties in trade– imprisoned for a crime– unmarried woman

Defenses– privileged

Absolute– lawyers in court – Legislators on floor in

debate Qualified – Public Figures

– actual malice– knowledge of falsity or a

reckless disregard for the truth

Settled Lindsay Lohan v. E-Trade 2010

Seinfeld Sued for Defamation

•Cookbook. Seinfeld’s wife wrote a cookbook•Copyright Lawsuit. Lapine says Seinfeld’s wife stole the ideas from Lapine•Letterman Show. Seinfeld went on Letterman and when asked about this Seinfeld said:

"Wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience," Seinfeld quipped, adding that Lapine uses three names, not unlike James Earl Ray or Mark David Chapman.”

Slander of QualityPublishing false information about

another’s product, alleging it is not what its seller claims.

Slander of TitlePublication of a statement that denies

or casts doubt on another’s legal ownership of any property, causing financial loss to that property’s owner.

Defamation in Business Context

“Don’t buy a used car from Joe, all his cars are stolen”

“Don’t buy a car from Joe, he pulls all the best parts out of the car and puts in cheap replacement parts.”

Intentional Torts - Invasion of Privacy

Appropriation Intrusion in an individual’s

affairs (ex: pictures of Douglas and Zeta-Jones’s wedding)

Publication in a false light Publication of private facts

Tiberino v. Spokane Country. Employer publishing personal e-mails

•Weatherproof Garment Company•Confirmed it was their coat with a magnifying class and saw the logo and zipper pull.•Company issued a press release? Ok?•Put up a billboard in Times Square

13

What tort claim could these women make? Would they win?

FraudMisrepresentation

False or incorrect statement– intentional deceit usually for

personal gain– intent to induce another to rely

on the misrepresentation– justified reliance– damages– causal connection

Puffery – “World’s Greatest Plumber”, Hush Puppies“The Earth’s Most Comfortable Shoes”Bayer “The World’s Best Aspirin” Pizza Hut “Best Pizza Under One Roof” but Papa John’s “Better Ingredients, Better Pizza” – must state that it does not have better dough or sauce.

“The bigger the lie, the bigger the protection. That’s amazing.”

Wrongful Interference with Contractual Relationships

Joanna Wagner Case (singing) A valid, enforceable contract must exist A third party must know that this contract exists This third part must intentionally cause one of the two

parties to the contract to break the contract, and must be for the purpose of advancing the economic interest of the third party

•Mathis v. Liu (2002).Mathis v. Liu (2002). Solicitation of sales for Kmart Solicitation of sales for Kmart termination at will. Mathis hires Evans with 6 month termination at will. Mathis hires Evans with 6 month termination. Pacific Corneth hires Evans directly and termination. Pacific Corneth hires Evans directly and fires Mathis.fires Mathis.

Pacific Corneth

Mathis – 5%

Evans 1%

Start here Thursdsay

Interference with a Business Relationship

Unreasonable interference by one party with another’s business relationship.

Three elements:– An established business relationship– A third party, by use of predatory methods,

intentionally causes relationship to end– Plaintiff suffered damages

End-of-Chapter Q 12-2, p. 302Lothar owns a bakery. He has been trying to obtain a long-term contract with Martha’s Tea Salons for some time. Lothar starts a local advertising campaign on radio and TV and in the newspaper. This advertising is so persuasive that Martha decides to break the contract she has with Harley’s Bakery so that she can patronize Lothar’s.

Defenses to Wrongful Interference

Defenses to claims of wrongful interference include bona fide competitive behavior such as:– Aggressive marketing– Effective advertising– Superior products

Intentional Torts against Property

Trespass to land— the entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization.

– guest– attractive nuisance– reasonable duty of care– Defenses – trespass warranted, license to enter

Trespass to personal property— the unlawful taking or harming of another’s personal property.

Conversion— the wrongful taking or retaining possession of a person’s personal property and placing it in the service of another.

Hotel Case

Unintentional Torts - Negligence

Duty of Care Owed– business invitees

Breach of Duty Injury Suffered Causation (did breach

cause injury)End-of-Chapter Q 12-10, p. 304

Bowdens hosted a cookout at their home and alcohol was served. Parks, age 19, consumed alcohol. Parks went with one of the other guests to that guest’s home to give Parks time to sober up. Parks then drove home and was killed in a one-car accident.

Duty of Care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others.

“reasonable person standard,”

Question 5-2, p. 165 medication and drivingQuestion 5-2, p. 165 medication and driving

Proximate Cause

Causation of Fact “But For” Proximate Cause

– connection between act and injury.

Palsgraf v. Long Island Railroad

Question: Ruth parks her car on a steep hill,leaving the car in neutral and failing to engage the brake. The car rolls down a hill, knocking down an

electric line. Spacks ignite a grass fire. The fire burns a barn a mile away. The barn houses dynamiteand explodes causing part of the roof to fall and injure

a passing motorist, Jim

How Far Should Foreseeability Extend?

Tonya Brown was using a pay phone as her friend Anita Addison stood nearby. A car driven by Ruby Greer veered out of control and crashed into the booth, injuring both girls. Brown and Addison’s guardian sued Michigan Bell Telephone, Inc., for damages. The plaintiffs argued that Bell should have placed the booth in a “safer” place. Bell contended that the accident was not foreseeable, and the driver was high on crack, had no license, and was fleeing a robbery. The Michigan appellate court concluded it was foreseeable and awarded monetary damages.

In regard to the Michigan Bell case, the defendant telephone company was much “wealthier” than the driver of the car that crashed into the phone booth. Should wealth enter into the picture when making decisions regarding tort liability?

Defenses to Negligence

Assumption of Risk– knowledge– voluntary assumption

Contributory Negligence– last clear chance

Comparative Negligence

Case 12.1 Taylor v. Baseball Club of Seattle (Seattle Mariners)

The Injury Requirement and Damages

legally recognizable injury. Damages awarded in tort lawsuits include:

Compensatory damages—a money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

Punitive damages—money damages that may be awarded to a plaintiff to punish the defendant and deter future conduct.

Tort Tax

•Annual “tort tax” of $9,827 per family of 4. •Do it yourself tort reform

•WSJ Article •60,000 medical malpractice at any given moment•Parties agree to only utilize certain experts•Results – sued at rate of 2% v. 8-12%

Worker Run Over. Terrill Wilson, while operating the machine, ran over Cosandra Rogers when the back-up alarm did not sound.

$10 Million Lawsuit. She was maimed and filed a suit against Ingersoll-Rand alleging design defect. She was awarded $10.2 million in compensatory damages and $6.5 million in punitive damages.

Warnings in Manual. In the maintenance manual that accompanies the milling machine made by Ingersoll-Rand, there are warnings that users should stay 10 feet away from the rear of the machine when it is operating, verify the alarm is working, and check the area for the presence of others.

What other safety features might a manufacturer use in these circumstances?

Rogers vIngersoll-Rand

Product Liability Law

Product Liability – Negligence

Weird Al – I’m Gonna Sue You

Start here on tuesday

Product Liability – compare to strict liability

Overview. – Liability of

manufacturers, sellers, and lessors of goods

– to consumers, users, and bystanders

– for injuries or damages that are caused by the goods. Product liability claims are most often based on:

– Warranty Law– Misrepresentation– Negligence– Strict Liability

Ape Attack

Greenman v. Yuba Power Products, Inc.

When Greenman was injured by a defect in the design of a “Shopsmith” woodworking tool, he sued claiming breach of warranty and negligence. The court instead held the manufacturer strictly liable.

Liability w/o fault – applies to:– Abnormally dangerous activities– Food, drink, intimate body usage products– Any product that is “defective.”

Product Liability Through Tort of Negligence

In order to prevent claims of negligence, due care must be used by the manufacturer in:– Designing the product– Selecting materials – Using the appropriate production process – Assembling and testing the product – Placing adequate warnings on the label or

product

Requirements of Strict Product Liability—Summarized

The defendant must sell the product in a defective condition.

The defendant must normally be engaged in the business of selling that product.

The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states). A court may consider a product so defective as to be unreasonably dangerous if either (a) the product was dangerous beyond the expectation of the ordinary consumer or (b) a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

The plaintiff must incur physical harm to self or property by use or consumption of the product.

The defective condition must be the proximate cause of the injury or damage.

The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

Defenses to Product Liability

There are several defenses that manufacturers, sellers, or lessors can raise to avoid liability for harms caused by their products.

Assumption of RiskAssumption of Risk

Comparative NegligenceComparative Negligence

Other DefensesOther Defenses

Commonly Known DangersCommonly Known Dangers

Product MisuseProduct Misuse

Other Applications of Strict Liability

Bystanders:Manufacturers and other sellers are liable for harms suffered by injured bystanders due to defective products.

Privity of Contract:Privity of contract is not required. A manufacturer is liable for failure to exercise due care to any person who sustains an injury proximately caused by a negligently made (defective) product.

Suppliers of Components:Suppliers of component parts are strictly liable for defective parts which, when incorporated into a product, cause injuries to users.

Defenses to Product Liability

– Pelman v. McDonald’s Corp. (2003).– obesity

What is the legal argument to sue McDonalds for obesity?

SPAM laws – CAN-SPAM ACT of 2003

Commercial e-Mail. Act covers email whose primary purpose is advertising

– E-mail that facilitates an agreed-upon transaction or updates an existing customer is exempt (although it cannot be false or misleading)

Main provisions:– Bans false or misleading headers. The From and To line must be

acurate.– Bans deceptive subject line. – Requires opt-out method– Requires a valid physical address

Do Not E-Mail Legislation. The FTC commissioned a 60 page study that concluded a do not e-mail list is not feasible at this time.

What about this one?

Not my email

Accurate Subject Line

No physical address/opt out