25-1 chapter 5 intentional torts and negligence. introduction to intentional torts and negligence ...

25-1

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


Intentional Torts

Battery Unauthorized and harmful or offensive physical

contact with another person Direct physical contact between victim and

perpetrator unnecessary May accompany assault


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


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


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


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?


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


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”


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


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


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


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



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



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



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


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?



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


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


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?


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



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



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


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


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?


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)


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


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