Elements of Torts

Chapter 6

Business and Torts• Arises from careless errors or intentional actions• Lawsuits involving businesses often have large

awards, i.e. Pennzoil-Texaco case: Jury awarded $10.5 billion to the plaintiff

• Plaintiffs think of businesses as “deep pockets”• Business liable under agency law if tort results in

activity “within the scope of worker’s employment”• Types

– Negligence (Unintentional)– Intentional– Strict Liability (Without fault) (Ch. 7)– Torts Particular to Property (Ch. 8)

The Role of Tort Law

Means “wrong” from French originally:– A civil wrong, other than a breach of contract, for which the

law provides a remedy– A breach of a duty owed to another that causes harm

• Compensation for injuries wrongfully inflicted by the defendant on the plaintiff

• Civil, not criminal law• Law is determined in each state--rules vary• However, the basic principles are similar among all states• Remedies should place injured party in the position he/she would

have been in prior to the tort• Fear of tort action deters injurious behavior by others• Punitive damages punish malicious behavior

TORTS BASED ON NEGLIGENCE

• Unintentional careless conduct that creates an unreasonable risk of harm to others

• Breach of duty of care• Owed to the plaintiff• Breach through an act or omission• Causation (causal connection to the injury)• Injury/Damages• There can be a negligence action even if there was

no intent to do harm

Negligence: Duty of Care and the Reasonable Person Standard

• The standard is how persons in the relative community ought to behave

• One must be reasonable at all times, under all circumstances

• Standard: “What a reasonable person would do in same or similar circumstances”

• Applies to professions--Reasonable CPA, MD,

attorney, etc.

Squish La Fish v. Thomco Specialty Products

• Squish holds patent on “Tuna Squeeze” (squeezes water & oil from tuna cans); ProPack is hired to assist with store displays

• ProPack brings in Thomco for advice on adhesive for the displays• Thomco says recommended adhesive would wash off; Squish

relies on the advice, but adhesive won’t wash off• A Squish distributor is not happy with the situation; cancels its

contract• Squish sues Thomco for negligent misrepresentation• District Court grants summary judgment for Thomco; Squish

appeals• Held: Reversed and remanded for disputed issues to go to trial.

There may be reliance by Squish through ProPack on Thomco’s representations

Causation• Causation between a party’s act & another’s injury• Cause in fact shows defendant’s conduct is the actual

cause of the event that created the injury (some courts call this the “but for” test)

• Proximate cause indicates that the liability bears a reasonable relationship to the negligent conduct

• In some cases, case is so obvious, res ipsa loquitur (the thing speaks for itself) applies

• If consequences are too remote -- no liability• If there is an intervening or superseding event--no liability• Chain of events created by a party’s actions must be

foreseeable• Some states replace proximate cause with legal cause that

creates a substantial factor in bringing about the injury

Goldberg v. Florida Power & Light Co.

• Storm caused electric line to fall.• Homeowner called Florida Power & Light (FPL).• Six FPL trucks and a police officer arrived; FPL crew told officer he

could leave.• Crew turned off power in the area, which included a traffic signal.

Crew aware that signal was off; did nothing about traffic.• Goldbergs driving in traffic toward turned-off light. Car coming from

side street caused an accident. Goldberg’s daughter was killed.• Sued FPL for negligence – breach of duty to control traffic at the

intersection.• Jury awarded $37 million; trial judge reduced to $10 million.• Appeals court reversed, holding FPL was not negligent – that the

cause of the accident was driver who entered traffic, not the fact the traffic signal was out.

• Goldbergs appealed

Goldberg v. Florida Power & Light Co.

• Duty of Care: whether defendant’s conduct foreseeably created a broader ‘zone of risk’ that posed a general threat of harm to others.

• FPL had common law duty to warn of hazardous condition it created.• FPL’s actions created a foreseeable zone of risk to motorists• FPL had a duty to warn motorists of danger – reasonable precautions

to alert and protect drivers – notify police, road flares, direct traffic, etc.

• Proximate Cause: Standard of foreseeability. Human foresight would lead a person to expect that harm could be possible because of an omission (here failure to protect motorists).

• Fact finder decides proximate cause and foreseeability.• HELD: Reversed. Defendant FPL breached duty of care and it was

foreseeable that the omissions of care would reasonably place motorists at risk. Therefore proximate cause was established.

Defenses To A Negligence Action

• Assumption of Risk

– The injured party knew or should have known of risk and voluntarily assumed it

– Complete bar to the plaintiff’s case

• Contributory Negligence

– Plaintiff’s action contributed to the injuries

– Plaintiff’s case is completely barred

• Comparative Negligence– Damages are

reduced by the % of injuries caused by plaintiff’s own negligence

– Pure Comparative Negligence

– Comparative Negligence 50% Rule

McCune v. Myrtle Beach Indoor Shooting Range

• McCune with others played paintball at Myrtle Beach Indoor Shooting Range.

• Used protective face mask provided by the Range.• She signed a general liability waiver, releasing the

Range from all known or unknown dangers, with the exception of gross negligence on the part of the Range.

• She complained that mask did not fit well; restricted her range of vision.

• Mask caught on branch of a tree, lifting it off her face. • She was hit in eye by paintball and blinded.• Sued Range for negligence of not providing a mask that

would fit better and give her protection.• Trial court granted summary judgment in favor of Range.

She appealed.

McCune v. Myrtle Beach Indoor Shooting Range

• HELD: Affirmed.• Agreement was voluntarily signed that she:

1) assumed the risks, known or unknown and 2) she released Range from liability, even injuries sustained because of Range’s own negligence.

• McCune voluntarily entered into the release of liability.

• This is not construed as an exculpatory agreement.

INTENTIONAL TORTS• Intent

– Person knew what he/she was doing

– Intent to do the act which reasonably would result in harm to the plaintiff

– Knew /should have known the possible consequences of an action

– Willful misconduct

Intentional Torts Against Persons

• Assault• Battery • False Imprisonment• Infliction of

Emotional Distress• Invasion of Privacy• Defamation: Libel

and Slander

Intent• State of mind of defendant• Person knew what he/she

was doing• Person “knew, or should

have known, the possible consequences of the act”

• Knowledge that certain results would likely occur

• Willful acts invading protected interests

• A reasonable person would have known that the action would create harmful circumstances

ASSAULT

• Placing plaintiff in fear of immediate bodily injury• Fear: If a reasonable person under the same or similar

circumstances would have apprehension of bodily harm or offensive contact

• Threats? May be an assault• Pointing a gun? Yes• Point a gun while other person sleeps? No assault• Letter threats? No assault (“immediate” requirement

usually not met)• Phone threats? Maybe. How close is the caller? On a

cell phone outside the door or in another city?

BATTERY

• Unlawful “touching”• Intentional physical

contact without consent• Use of fist, hand, or

kicking• Use of weapons, i.e.

guns or stick• Unwanted kiss? Has

been held in some states to constitute battery

• Assault & Battery may or may not be linked together in a lawsuit

• Defenses

– Consent– Privilege– Self defense– Defense of

others/Defense of property

Fuerschbach v. Southwest Airlines Company

• Fuerschbach was a customer service representative for Southwest Airlines at Albuquerque airport.

• Airline prides itself on being “fun-loving, spirited company”. • After new employees finish probation, they are often subject to a

prank to celebrate the event.• Her supervisor thought would be fun to set up a mock arrest.• Albuquerque police officers came to the counter, told her she was

under arrest and handcuffed her.• She began to cry, so officers took her to the back.• All the employees jumped and yelled “congratulations for being off

probation.”• Handcuffs removed; party began. She kept crying and was sent

home.• Psychologist said she suffered post-traumatic stress disorder.• Fuerschbach sued everyone connected with the event on many

grounds, including assault and battery.

Fuerschbach v. Southwest Airlines Company

• District court granted summary judgment for defendants and did not allow the matter to go to trial.

• District court: Officers were courteous and professional.• HELD: Reversed on appeal. Summary judgment vacated

on assault and battery claims. She can go to trial.• Issue: Did the actions offend “a reasonable sense of

personal dignity”?• HELD: Jury might find that being handcuffed and leading

a person in front of others offends a reasonable sense of personal dignity. Police handcuff – offensive contact.

• Side Note: Some other claims allowed to go forward; others were denied. The only claim against Southwest Airlines was a Workers’ Compensation claim because there was no intent by anyone to harm her at work.

False Imprisonment (False Arrest)

• Defense by businesses regarding detention of shoplifters

– Restraint was in a reasonable manner

– Restraint was in a reasonable time

– Basis for the detention was valid

• Intentional holding or detaining

• Freedom to come and go is restrained

• Restraint

– May be physical– May be mental

(i.e., by verbal threats)

• Lawsuits often arise from detention of suspected shoplifters

Russell v. Kinney Contractors, Inc.

• Kinney Contractors advertised jobs in construction. • Russell and others belong to construction union applied.• Kinney didn’t want union workers.• Workers arrived at Kinney’s offices, walked through an

open gate, and went to an office to submit applications.• Kinney closed the gate behind workers, blocking the exit,

called police and claimed they were trespassing.• Police arrived and workers were let out. Workers sued

Kinney for false imprisonment, saying they were on property legitimately.

• Trial court dismissed the suit, saying this was a labor dispute under federal labor law and jurisdiction was with the National Labor Relations Board. Said this was not a common law tort for state courts to settle.

Russell v. Kinney Contractors, Inc.

• Russell Appealed.• HELD: Reversed and case remanded.• Court weighed the federal interest of labor disputes

vs. the state’s interest to protect its citizens from wrongful conduct.

• Indignity, humiliation and disgrace suffered by plaintiffs would not be considered by NLRB, and NLRB cannot award compensatory damages as can the state.

• State court will look at whether the personal liberty was restrained and if false imprisonment occurred.

Infliction of Emotional Distress

• Intentional conduct: So outrageous, it creates severe mental or emotional distress

• Petty insults, annoying behavior, bad language? Usually not actionable; we must have “tough skin”

• Bill collectors or landlords who badger, are profane, or threaten or lay the background for a lawsuit

• See Reynolds v. Ethicon Endo-Surgery, Inc.• See Issue Spotter: “Dealing With the Elderly and

their Heirs”

Reynolds vs. Ethicon Endo-Surgery, Inc.

• Reynolds was sales rep. for Ethicon in 1999. In 2002 she was assigned to a new division. Was based in Sioux Falls, S.D.

• Company reviewed the sales in her territories and decided her region was weak.

• A week after Reynolds told her supervisor, Burns, she was pregnant, he met with her; said Sioux Falls office would be closed; offered her the Louisville office or a severance package.

• She was later also offered the St. Louis office.• Several weeks later, she suffered a miscarriage.• Blamed the elimination of her position soon after she became

pregnant for the reason of her miscarriage.• She refused to transfer or take severance package. Was fired.• Sued Burns and Ethicon for infliction of mental distress.

Reynolds vs. Ethicon Endo-Surgery

• District court granted summary judgment for defendant. She appealed.

• HELD. Affirmed.• In order to be infliction of emotional distress,

conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . atrocious, and utterly intolerable in a civilized community.”

• While termination may be upsetting, it does not constitute extreme or outrageous conduct.

Invasion of Privacy

• Infringement on a person’s right of solitude & freedom from unwarranted public exposure

• Use of a person’s name or picture without permission• Intrusion on solitude (i.e. wiretap)• Placing a person in false light (publishing a false story)• Public exposure of private facts (debts, drug use)• Defenses

– Right of privacy waived by public figures, politicians, entertainers, sports personalities, etc.

– Information about an individual taken from public files or records

James v. Bob Ross Buick

• James worked at Mercedes dealership owned by Bob Ross Buick. In 2002, he was sales rep. of the year. In 2004 he was fired.

• After firing, Buick company sent letters to customers who had worked with James: encouraged them to shop for Mercedes.

• Letter addressed as if from James. An assistant at Bob Ross signed James’s name to the letters.

• James sued for misappropriation of his name, a form of invasion of privacy.

• Trial Court: Summary judgment for Bob Ross. James appealed.

James v. Bob Ross Buick

• Forgery of signature is a variant of invasion of privacy.• Mere incidental use of a person’s name or likeness is not actionable.• Can’t object to mere mention of name or appearance brought before

the public when they are open to public observation.• Appropriation occurs when there is commercial benefit of value from

the use of the name or likeness.• HELD: Reversed and remanded.• This is not mere incidental use of James’s name.• His name had commercial value – letters used to induce future sales

for the car company.• Benefit that Bob Ross received as a result of appropriating James’s

name can be a part of the actual damages to him.• James may seek nominal, compensatory, and punitive damages, if

appropriate.

Defamation (Libel/Slander)

• Definition: An intentional false communication that injures a person’s or company’s reputation or good name

• Elements of the Tort:– False or defamatory statement– Published or communicated to a third person– Causing harm or injury to the plaintiff

• Defamation per se: Presumption of harm – No proof of harm/injury is necessary– Examples: person has committed a crime; has a sexually

communicable disease; carries out business activities

improperly, etc. – Workplace Defamation: Info. given re: job performance

• See Issue Spotter: “Say Good Things About A Good Employee?”

Republic Tobacco v. North Atlantic Trading Company

• Republic and North America (NA) compete for premium roll-your-own cigarette papers, tobacco and other products.

• Two letters written by NA to clients were critical of Republic.• First letter: attacked Republic’s business conduct; claimed a

display box used by it violated an NA patent and trademark; and that NA had sued Republic for the infringement.– NA had no patent or trademark on a display box; had not

sued Republic.• Second Letter: said NA was suing Republic for antitrust

violations; that Republic engaged in “unfair competition” and “deceptive trade practices”.– NA had in fact sued Republic for antitrust violations.

• Trial Court awarded Republic $3.36 million damages and trial judge reduced punitive damages from $10.2 to $4.08 million.

Republic Tobacco v. North Atlantic Trading Company

• A defamatory statement causes harm to reputation – false or unprivileged publication to a 3rd party.

• Per se: not necessary for a plaintiff to demonstrate actual damage to reputation.

• Per quod action: plaintiff must prove there was actual damage of a pecuniary nature.

• NA’s first letter was both false and defamatory.• Both letters defamatory.• HELD: $1 million is appropriate damage. Punitive

damage reduced to $2 million.

“Tort Liability for Internet Servers”

• Q: If Internet users are involved in illegal activities, are the Internet servers liable?

• A: Generally no, as long as they were not aware of it or had reason to be aware of it.

• In Zeran v. America Online: AOL not liable in tort for defamatory message that AOL user sent. Sender is liable.

• Doe v. Cahill When defamatory statements are posted, victim of the statements has a right to obtain the identity of the party who sent the material (here Doe, the anonymous defendant).

Defenses to Defamation• Truth is a complete defense in some states and is

always a very strong defense.• Absolute privilege is an immunity

– Legislators in committee sessions– Participants in judicial proceedings

• Conditional privilege eliminates liability if the false statement was published in good faith– If there is no malice – In order to protect a person’s legitimate interests

• Constitutional privilege– Members of the press may publish “opinion” about

public officials, figures, or those of public interest if there is no actual malice (“absence of malice”)