intentional torts and negligence

“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.”

C. J. Cardozo

II. Chapter Objectives List and describe intentional torts against persons. List and explain the elements necessary to prove negligence. Describe the business-related torts of disparagement and fraud. Describe special negligence doctrines. Describe and apply the doctrine of strict liability.

III. Key Question Checklist How would you classify this tort—intentional, negligence, strict liability? Is this an intentional tort and if so, are there any appropriate defenses? Is this negligence and if so, are there any appropriate defenses? Is duty of care an obligation? How severe is a breach of this duty?

IV. Text Materials

The key objectives of this chapter are to itemize the classifications of tort law as used in our system and to help students become familiar with the building block process used to construct each case.

Tort is the French word for a wrong.

Tort law allows an injured party to bring a civil action seeking compensation for wrongs done to the party or their property. Monetary damages are sought in order to compensate the injured party. Punitive damages may be awarded to punish the defendant in the case of intentional torts or strict liability. Non-monetary remedies like injunctions may also be sought.

Intentional Torts

Assault – Assault is an action that causes a reasonable apprehension and threat of imminent harm or offensive contact. It does not require actual physical contact.

Battery – The unauthorized and harmful or offensive physical contact with another person, whether direct or indirect is considered to be a battery.

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INTENTIONAL TORTS AND NEGLIGENCE

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The doctrine of transferred intent applies when the acts of one person against another actually harm a third person.

False Imprisonment – The intentional restraint or confinement of a person without their consent by another who lacks the authority to take that action is known as false imprisonment. Most states have merchant protection statutes that allow a shopkeeper to stop and detain shoplifters under specific circumstances.

Shoplifting and Merchant Protection Statutes – Almost every state allows merchants to stop, detain, and investigate suspected shoplifters, provided that there are reasonable grounds, they are detained for only a reasonable time, and the investigation is conducted in a reasonable manner.

Case 5.1. False Imprisonment: Wal-Mart Stores, Inc. v. CockrellFacts: Karl Cockrell was stopped by Raymond Navarro, a Wal-Mart loss-prevention officer while shopping in the store. He was escorted to the manager’s office, where he was asked to drop his pants, remove his shirt, and even remove a bandage that was covering a surgical wound on his abdomen. After explaining that it was a sterile environment from a liver transplant, he was still pressured into removing the bandage. Navarro then apologized, having found no stolen merchandise, and let Cockrell go.Cockrell sued for false imprisonment; Wal-Mart countered that they were protected under the shopkeeper’s privilege. The trial court found in favor of Cockrell; Wal-Mart appealed.Issue: Does the shopkeeper’s privilege protect Wal-Mart from liability under the circumstances of the case?Decision: No.Reason: The Court of Appeals upheld the trial court’s finding that Wal-Mart had falsely imprisoned Cockrell and had not proved the shopkeeper’s privilege, allowing the award to Cockrell of $300,000 for mental anguish.Case QuestionsCritical Legal Thinking: This is the intentional confinement or restraint of another without authority or justification.Business Ethics: Navarro did not act responsibly. Neither he nor any other employee saw Cockrell steal anything. Further, the students should question why the bandage had to be removed, since it is highly unlikely that Cockrell would have had the time to pace anything under the bandage, nor would anything fit under it. Asking him to empty his pockets or lift his shirt might have been acceptable, but the rest was beyond the pale.Contemporary Business: The shopkeeper’s privilege allows a merchant to stop, detain, and investigate suspected shoplifters, provided that these activities are down reasonably.

Misappropriation of the Right to Publicity – The tort of appropriation occurs when another person uses a living person’s name or identity for commercial purposes without permission.

Invasion of the Right to Privacy – The law protects each person’s right to not be subjected to intrusions into their private lives.

Defamation of Character – This tort requires that the plaintiff prove that the defendant made an untrue statement of fact about the plaintiff that was, intentionally or accidentally, published to a third party. Oral defamation is slander, while written defamation is libel. In the case of public figures, in order to prove defamation, the element of actual malice is added.

Contemporary Environment: Eminem’s Rap Song Is Not Slander

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Intentional Torts and Negligence

Eminem was sued by a person named in one of his songs for slander. It was admitted that the songs came from the personal experiences of the singer. The judge held that the songs would not be considered to be factual by a reasonable person, and granted summary judgment.

Disparagement – Disparagement, trade libel, product disparagement, and slander of title are all names for the act of making an untrue statement about the products, services, property, or reputation of a business.

Intentional Misrepresentation (Fraud) – Fraud or deceit occurs when one deceives another out of money, property, or something else of value.The four elements of fraud are that the wrongdoer made a false representation of a material fact, made with the knowledge of the falsity of the remark and with the intent to deceive; the innocent party justifiably relied upon the misrepresentation, and was injured.

Intentional Infliction of Emotional Distress – If the intentional or reckless extreme and outrageous conduct of another person causes severe emotional distress, it is known as the tort of outrage.

Malicious Prosecution – In a lawsuit for malicious prosecution, the original defendant sues the original plaintiff. In this second lawsuit, which is a civil action for damages, the original defendant is the plaintiff and the original plaintiff is the defendant.

Unintentional Torts (Negligence)

To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty of care which he breached, and that the defendant’s negligent action caused their injury. In judging this, the court will apply the reasonable person standard, the reasonable professional standard, or the reasonable child standard.

Duty of Care – To determine whether a defendant is liable for negligence, it must first be ascertained whether the defendant owed a duty of care to the plaintiff. Duty of care refers to the obligation people owe each other—that is, the duty not to cause any unreasonable harm or risk of harm.

Breach of the Duty of Care – A breach of the duty of care is the failure to exercise care. In other words, it is the failure to act as a reasonable person would act. A breach of this duty may consist of an action.

Injury to Plaintiff – Even if the court finds that there is a duty to care, the plaintiff must suffer an injury in order to bring suit.

Case 5.2 Damages for Negligence: Clancy v. GoadFacts: Tim Clancy, who was driving a Chevrolet truck collided with Robert and Diana Goad’s motorcycle after Clancy fell asleep on the truck’s wheel. Following this, Diana remained in a coma for two weeks and had her leg amputated. In addition, Dianna suffered from a fractured pelvic bone, a fractured left elbow, and a lacerated spleen, which had to be removed. Dianna sued Clancy to recover damages based on his negligence. The jury returned a verdict finding Clancy 100 percent at fault for the accident and awarded Dianna $10 million in compensatory damages. Clancy appealed, arguing that the damages were excessive.Issue: Were the damages awarded to Dianna Goad excessive?


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Decision: The court of appeals affirmed the judgment of the trial court finding Clancy liable for negligence and upheld the jury verdict awarding Dianna $10 million in damages.Reason: There is no tangible indication that the jury acted out of prejudice, passion, or partiality to punish Clancy.Case QuestionsCritical Legal Thinking: Negligence is an unintentional tort where a person is liable for harm that is the foreseeable consequence of his or her actions. Clancy is clearly liable for negligence.Ethics: There was nothing unethical about Clancy appealing the damage awarded. But it was pointless. Given the evidence about Diana’s life before the accident, the amount was reasonable.Contemporary Business: There is no tangible indication that the jury acted out of prejudice, passion, or partiality to punish Clancy. Although the amount of the award in this case is sizeable, we cannot conclude that it is unreasonable given the evidence.

Ethics: Ouch! McDonald’s Coffee’s is Too Hot!Stella Liebeck purchased a cup of coffee at McDonald’s drive-through window. While adding

sugar and cream to the coffee, it spilled in her lap, giving her third-degree burns, requiring hospitalization and skin grafts.

Liebeck asked McDonald’s to cover her medical expenses. They refused and offered her a much smaller amount as settlement. She sued. McDonald’s denied any negligence and asserted that she had caused her injuries by removing the top from the cup.

McDonald’s quality-control rule requires that the restaurant serve coffee at 180-190 degrees, but third degree burns occur at 185 degrees. It was shown at trial that the coffee had to be at least 20 degrees hotter than it should have been. Additionally, there had been over 700 prior complaints from people who had been scalded.

Based on the evidence, the jury awarded $200,000 to Liebeck and $2.7 million in punitive damages; the latter was reduced by the judge to $480,000.

Actual Cause – The act of the defendant must be the actual cause the plaintiff’s injury.

Proximate Cause - This act must be the proximate or legal cause of the injuries, and the courts will apply the test of forseeability to determine if it is the actual cause.

Landmark Case: Palsgraf v. The Long Island Railroad CompanyThis case examines the issue of proximate cause.The court determined that negligence is actionable only if it involves the invasion of a legally protected interest.

Case 5.3 Duty of Care: James v. Meow Media, Inc.Facts: The parents of the three dead children sued the producers and distributors of the violent video games and movies that Carneal had watched previous to the shooting. The parents sued to recover damages for wrongful death, alleging that the defendants were negligent in producing and distributing such games and movies to Carneal. The U.S. District Court applied Kentucky law and held that the defendants did not owe or breach a duty to the plaintiffs and therefore were not liable for negligence. The plaintiffs appealed.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?Decision: The Court of Appeals held that the defendant video game and movie producers and distributors were not liable to the plaintiffs.Reason: It is simply impossible to predict that these games, movie, and Internet sites would incite a young person to violence. Individuals are generally entitled to assume that third parties will not commit intentional criminal acts.



Case QuestionsCritical Legal Thinking: A proximate cause is 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. The general test of proximate cause is foreseeability. A negligent party who is found to be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the plaintiff. A moderate view of the forseeability factor was used to decide the case.Ethics: Student answers may vary. But producers and distributors of video games and movie owe a duty to some extent to the society.Contemporary Business: The First Amendment rights shields the free speech factor in this case. Thus, the courts cannot hold the case in favor of the plaintiffs on any circumstance.

Special Negligence Doctrines

Professional Malpractice – If a professional breaches the reasonable profession duty of care standard, it is called professional malpractice.

Negligent Infliction of Emotional Distress – This tort is an extension of emotional distress covering those whom witnessed a relative were killed or injured by the defendant, causing them severe emotional distress.

Negligence Per Se – This form of negligence is based upon statutes that are enacted to prevent the type of injury suffered by an individual intended to be protected by the statute.

Res Ipsa Loquitur – Res ipsa loquitur requires that the defendant had exclusive control over the situation that caused the plaintiff’s injury, which could not have occurred except for someone’s negligence.

Good Samaritan Laws – These laws relieve medical professionals and trained laypersons from liability for injuries for ordinary negligence when they stop and render aid at accidents.

Defenses Against Negligence

Superseding or Intervening Event – Negligence law holds people liable for only foreseeable events. Superseding or intervening events are viable defenses to liability.

Assumption of Risk – Defendants can raise the issue that the plaintiff assumed the risk by voluntarily and knowingly entering into risky activities.

Case 5.3. Assumption of Risk: Lilya v. The Greater Gulf State Fair, Inc.Facts: Lilya, after watching several participants be thrown from a mechanical bull, signed a waiver acknowledging that he was assuming the risk of riding the bull, paid a fee, and mounted the bull. He was thrown immediately and re-boarded the bull. The ride escalated in speed and severity until he was thrown, fracturing his neck. The trial court granted summary judgment to Gulf State Fair, finding that Lilya had assumed the risk in deciding to ride the bull. Lilya appealed.Issue: Was riding the bull an open and obvious danger for which Lilya had voluntarily assumed the risk?Decision: Yes.Reason: The Alabama Supreme Court found that Lilya, as a business invitee, was owed only a duty of reasonable care. Further, the court found that his watching the other men had made him


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aware of the open and obvious dangers involved. They therefore affirmed the trial court’s granting of summary judgment.Case QuestionsCritical Legal Thinking: The assumption of risk defense states that the plaintiff has knowledge of the specific risk and voluntarily assumes it. Students should discuss whether this is an acceptable defense.Business Ethics: Gulf State Fair has the right to operate the “ride” and make money. We are a capitalistic society. They did make each rider aware of the risks involved, even having them sign a release. As such, the riders were aware of the potential injuries, and should have either refused to sign the release or assume the risks of participating in the hazardous activity. Lilya should not have sued.Contemporary Business: Assumption of risk protects organizations from being sued by every user of their product or activity who go into the activity or purchase the item with complete knowledge of the potential risks. Certainly, if every ski resort, ferris wheel operator, or roller coaster owner could be sued for any scratch that occurred, many of these operations would cease to exist.

Contributory Negligence – Common law states that a plaintiff that is partially at fault for his own injury cannot recover against a negligent defendant, unless the defendant has violated the last clear chance rule, which states that you have a duty to avoid an accident if at all possible.

Comparative Negligence – The doctrine of pure comparative negligence apportions the negligence between the plaintiff and defendant, and the defendant is responsible for his percentage share of the award amount. Some states apply the doctrine of partial comparative negligence, which holds that the plaintiff must be less than 50% responsible for their injuries in order to recover under comparative negligence, and the doctrine of comparative negligence is then applied, granting the plaintiff no recovery.

Strict Liability

Strict liability is a tort that involves liability without fault. There are certain activities that are so dangerous, that even if reasonable care is taken, injury may occur. This doctrine allows for recovery in those situations.

V. Case Problems

5.1 Disparagement: No, Zagat is not liable for disparagement. Disparagement is an untrue statement of fact made by one person or business about the products, services, property, or reputation of another business. To prove disparagement, the plaintiff must show that the defendant (1) made an untrue statement of fact about the plaintiff’s products, services, property, or business reputation; (2) published that untrue statement to a third party; (3) knew the statement was not true; and (4) made the statement maliciously (i.e., with intent to injure the plaintiff). Restaurant ratings and reviews almost invariably constitute expressions of opinion. In this case, Zagat’s ratings and comments about Lucky Cheng’s restaurant that appeared in the Zagat guide were not statements of fact. Instead, they were mere opinions and were therefore not actionable as disparagement. Therefore, disparagement did not occur. Themed Restaurants, Inc., d.b.a. Lucky Cheng’s v. Zagat Survey, LLC, 801 N.Y.S.2d 38, Web 2005 N.Y. App. Div. Lexis 9275 (Supreme Court of New York, Appellate Division)



5.2 Negligence: Yes. Wilhelm acted negligently by failing to warn Flores of the dangers of working with beehives. The plaintiffs’ allegations of negligence included failure to provide proper instructions. The plaintiffs established a duty to warn of the dangerousness of bees. Foreseeability is the foremost and dominant consideration. There must be sufficient evidence indicating that the defendant knew or should have known that harm would eventually befall the victim. Bees are probably the number one cause of insect deaths. Defendant Wilhelm testified that he was an expert concerning insects, with a degree in entomology. At the time of this incident, Wilhelm had owned beehives for about five years. The court of appeals held that Wilhelm owed a duty to Flores to warn him of the danger of working with bees and breached that duty by not warning Flores of that danger. The court held that Wilhelm, the person working with the bees, was negligent, and that Black, the owner of a beehive business that contracted to purchase bees from Wilhelm, was also liable. The court awarded $1,500,000 in damages to the plaintiffs, and apportioned liability fifty percent to Wilhelm and fifty percent to Black. Wilhelm v. Flores, 133 S.W.3d 726, Web 2003 Tex. App. Lexis 9335 (Court of Appeals of Texas)

5.3 Negligence: No. Neither defendant Indiana Bell nor defendant Indianapolis Power breached their duty of care to plaintiff Jacobs. To recover in negligence, the plaintiff must establish: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach. The court noted that the utility companies owed a duty to the motoring public to exercise reasonable care in placing utility poles along Indiana’s public roads and highways. However, the court found that Jacobs’ death was the direct result of the superseding, intentional act of Mitchell’s reckless driving. Any alleged negligence of the two utility companies and the plaintiff’s harm was broken by driver Mitchell’s willful, criminal actions. The utility poles did not cause Mitchell to drive 80 m.p.h. on a road with a 40 m.p.h. speed limit, or lose control of her car by becoming airborne, or to over-steer when she landed, or to leave the roadway. The court of appeals stated, “It strains reason to suggest that utilities should foresee the sort of willful disregard for the law and personal safety that indisputably led to this accident. There is nothing to suggest that the poles’ location was inherently dangerous to those who engage in the ordinary and normal public use of Edgewood Avenue.” The court of appeals held that the defendants had not breached their duty of care to Jacobs and were therefore not liable to Jacobs. Carter v. Indianapolis Power & Light Company and Indiana Bell Telephone Company, Inc., 837 N.E.2d 509, Web 2005 Ind. App. Lexis 2129 (Court of Appeals of Indiana)

5.4 Proximate Clause: RKO is liable. The determination of what duty of care is owed is governed by the principle that all persons are to use ordinary care to prevent others from being harmed by their conduct. Foreseeability is of primary importance in determining one’s duty. Given the nature of the contest and the use of a car that would be moving from one location to another, it was foreseeable that the station’s listeners would attempt to follow the car without regard for highway safety in order to claim prizes. Even though third parties inflicted the harm, the negligent act of RKO instigated the actions of the third parties. Thus, RKO acts were a factor in the incident that resulted in the death of Weirum. Weirum v. RKO General, Inc. 15 Cal. 3d 40, 123 Cal. Rptr. 468 (Cal. 1975), Web 1975 Cal. Lexis 220 (Supreme Court of California).

5.5. Negligent Infliction of Emotional Distress: Gregory James wins. The Court held that he may recover for emotional distress he suffered when he saw his sister get killed under the doctrine of negligent infliction of emotional distress. The Nebraska Supreme Court adopted the “foreseeability” test in applying this doctrine. To be successful in a lawsuit for negligent infliction of emotional distress, the plaintiff must prove that (1) a relative was killed or injured by the defendant, (2) the plaintiff suffered severe emotional distress, and (3) the plaintiff’s mental


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distress resulted from a sensory and contemporaneous observance of the accident. Nebraska does not require that the plaintiff’s mental distress be manifested by some physical injury. In this case, the Court held that all of these elements applied when John Lieb, a driver for Watts trucking service, backed a truck over Demetria James, killing her as her brother Gregory watched. The Court remanded the case for proceedings consistent with its opinion. James v. Watts Trucking Service, Inc., 375 N.W.2d 109 (Neb. 1985), Web 1985 Neb. Lexis 1209 (Supreme Court of Nebraska).

5.6 Assumption of the Risk: Yes. The doctrine of assumption of the risk protected the defendants Knoxville Cherokees Hockey, Inc., the East Coast Hockey League, and the City and County of Florence from liability to plaintiff Hurst. The Supreme Court of South Carolina determined that the risk of pucks leaving the ice rink and entering the spectator area is well-known to the game of hockey. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey. The defendants met their duty of care by erecting a wooden barrier and Plexiglas to a reasonable height around the hockey rink. The defendants did not have a duty to protect Hurst, a spectator, from inherent risks of the game of hockey beyond this duty. The Supreme Court held that Hurst had assumed the risk of flying hockey pucks above the protected area when he attended the game and that the defendants were not liable for his injuries. Hurst v. East Coast Hockey League, Inc. and Knoxville Cherokees Hockey, Inc., 637 S.E.2d 560, Web 2002 S.C. Lexis 366 (Supreme Court of South Carolina)

5.7 Negligence Per Se: Julius Ebanks wins. The Court held that he could recover damages from the New York City Transit Authority for the injuries suffered when his foot became caught in the escalator under the doctrine of negligence per se. In a negligence per se action, the plaintiff must prove (1) that a statute existed, (2) the statute was enacted to prevent the type of injury suffered, and (3) the plaintiff was within the class of persons to be protected by the statute. Under the negligence per se doctrine, the injured party does not have to prove the plaintiff breached his duty because the statute establishes that.

The Court in this case held that the building code established the requirement that a “gap” between an escalator step and escalator wall not exceed 3/8-inch. Evidence showed that the gap in this case in which Ebanks’ foot became caught was 2 inches, therefore violating the building code. The Court held that the building code was adopted by the city to prevent the type of injury suffered by Ebanks and that he was within the class of persons to be protected by the building code. The Court held that the elements for negligence per se had been established. Ebanks v. New York City Transit Authority, 70 N.Y.2d 621, 518 N.Y.S.2d 776 (N.Y.App. 1986), Web 1987 N.Y. Lexis 17294 (Court of Appeals of New York).

VI. Business Ethics Cases

5.8. Business Ethics: No. Walmart did not present sufficient evidence to prove that it should be protected by the merchant protection statute. Plaintiff Goodman sued Walmart for damages for false imprisonment when Walmart detained her for alleged shoplifting. Walmart defended, asserting that the merchant protection statute protected it from liability. In order to be shielded from liability under the merchant protection statute, a merchant must prove that there were reasonable grounds for the suspicion, the suspect was detained for only a reasonable time, and the merchant’s investigation was conducted in a reasonable manner. The court rejected Walmart’s defenses, including the shopkeeper’s privilege and its assertion that it had not maliciously prosecuted Goodman. The court awarded Goodman $200,000 in compensatory damages for her suffering. The court also decided that Walmart had acted so badly that it awarded Goodman $600,000 in punitive damages.



Did Walmart act ethically in this case? It could be argued that Walmart aggressively prosecuted Goodman when there was not sufficient evidence of possible shoplifting. In addition, bringing criminal charges without sufficient evidence violated Goodman’s right to be free from overaggressive acts of a large corporation. The court answered the question of ethics when it imposed punitive damages on Walmart for its conduct. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, Web 2000 Ala. Lexis 548 (Supreme Court of Alabama, 2000)

4.12. Business Ethics: No. Defendant Skier’s Choice Inc. is not liable to plaintiff Colbert under the legal theory of negligent infliction of emotional distress. Colbert arrived on the scene after his daughter had fallen off a boat and witnessed the rescuers pulling his deceased daughter’s body from the water. The tort of negligent infliction of emotional distress allows bystander family members to obtain damages for foreseeable intangible injuries caused by viewing a physically-injured loved one shortly after a traumatic accident. The court held that the facts do not meet the “shortly thereafter” requirement for establishing a bystander relative’s cause of action for negligent infliction of emotional distress. Colbert was not at the scene either to witness his daughter’s drowning or soon enough thereafter to witness the final seconds of her disappearance under the lake’s surface. Instead, he arrived at least 10 to 15 minutes after learning that his daughter has fallen off a boat and disappeared in the lake. The court of appeals held that the elements for finding negligent infliction of emotional distress were not met in this case.

As far as the issue of ethics is concerned, it is doubtful that the defendant acted unethically in this case. It may have been negligent in the design of the boat that Colbert’s daughter fell from, but it seems that it did not act unethically. The law provides the elements necessary to find a negligent infliction of emotional distress. The defendant asserted its right in denying and proving it was not liable under the legal theory of negligent infliction of emotional distress. Colbert may sue the defendant under the doctrine of negligence, however. Colbert v. Moomba Sports, Inc. and Skier’s Choice, Inc., 135 P.3d 485, Web 2006 Wash. App. Lexis 975 (Court of Appeals of Washington)

VIII. Terms

Abnormally dangerous activities—Strict liability is imposed for abnormally dangerous activities that cause injury or death.

Actual cause—The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven.

Assault—(1) The threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is not necessary.

Assumption of the risk—A defense in which the defendant must prove that (1) the plaintiff knew and appreciated the risk and (2) the plaintiff voluntarily assumed the risk.

Battery—Unauthorized and harmful or offensive physical contact with another person. Direct physical contact is not necessary.

Breach of the duty of care—A failure to exercise care or to act as a reasonable person would act.

Comparative negligence—A doctrine that applies to strict liability actions that says a plaintiff who is contributorily negligent for his injuries is responsible for a proportional share of the damages.

Contributory negligence—A doctrine that says a plaintiff who is partially at fault for his own injury cannot recover against the negligent defendant.

Defamation of character—False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally or accidentally published to a third party.


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Disparagement—False statements about a competitor’s products, services, property, or business reputation.

Duty of care—The obligation people owe each other not to cause any unreasonable harm or risk of harm.

False imprisonment—The intentional confinement or restraint of another person without authority or justification and without that person’s consent.

Good Samaritan law—Statute that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations.

Injury—The plaintiff must suffer personal injury or damage to his or her property in order to recover monetary damages for the defendant’s negligence.

Intentional infliction of emotional distress—A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. Also known as the tort of outrage.

Intentional misrepresentation—(1) Tort that occurs when a wrongdoer deceives another person out of money, property, or something else of value. Also known as fraud or deceit; (2) when a seller or lessor fraudulently misrepresents the quality of a product and a buyer is injured thereby.

Intentional tort—Occurs when a person has intentionally committed a wrong against (1) another person or his or her character, or (2) another person’s property.

Invasion of the right to privacy—A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwarranted and undesired publicity.

Libel—A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, etc.

Malicious prosecution—A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.

Merchant protection statute—Statutes that allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) suspects are detained for only a reasonable time, and (3) investigations are conducted in a reasonable manner.

Misappropriation of the right to publicity—An attempt by another person to appropriate a living person’s name or identity for commercial purposes.

Negligence per se—Tort where the violation of a statute or ordinance constitutes the breach of the duty of care.

Negligent infliction of emotional distress—A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct.

New York Times Co. v. Sullivan—In this case, the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with “actual malice.”

Palsgraf v. The Long Island Railroad Company—The landmark case establishing the doctrine of proximate cause is Palsgraf v. The Long Island Railroad Company, a New York case decided in 1928.

Partial comparative negligence—Several states have adopted partial comparative negligence, which provides that a plaintiff must be less than 50 percent responsible for causing his or her own injuries to recover under comparative negligence; otherwise, contributory negligence applies.

Professional malpractice—The liability of a professional who breaches his duty of ordinary care.

Proximate cause or 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.



Public figure—Actual malice means that the defendant made the false statement knowingly or with reckless disregard of its falsity. This requirement has since been extended to public figure plaintiffs such as movie stars, sports personalities, and other celebrities.

Reasonable person standard—A test used to determine whether a defendant owes a duty of care. This test measures the defendant’s conduct against how an objective, careful, and conscientious person would have acted in the same circumstances.

Reasonable professional standard—Defendants with a particular expertise or competence are measured against a reasonable professional standard.

Res ipsa loquitur—Tort where the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone’s negligence. The burden switches to the defendant(s) to prove they were not negligent.

Scienter—Refers to intentional conduct. Slander—Oral defamation of character. Strict liability—Liability without fault. Superseding event—A defendant is not liable for injuries caused by a superseding or

intervening event for which he or she is not responsible. Tort—A wrong. There are three categories: (1) intentional torts, (2) unintentional torts

(negligence), and (3) strict liability. Transferred intent doctrine—Under this doctrine, the law transfers the perpetrator’s intent

from the target to the actual victim of the act. Unintentional tort—A doctrine that says a person is liable for harm that is the foreseeable

consequence of his or her actions.
