ut-austin edinburgh summer program 2002 tort means “wrong” defamation -- making a false...

UT-Austin Edinburgh Summer Program 2002UT-Austin Edinburgh Summer Program 2002

Tort Means “Wrong”

• Defamation -- making a false statement about someone - written or verbal

• Negligence -- performing wrong surgery• Interference with contract -- stealing a

client away from a competitor• Fraud -- offering to sell something that

doesn’t exist

A tort is a violation of a duty imposed by civil law.


Tort vs. Criminal or Contract Law

• Criminal Law -- behavior classified as dangerous to society; prosecuted by the government, whether victim wants to prosecute or not; money award goes to the government

• Contract Law -- based on breach of an agreement between the two parties; victim prosecutes and receives compensation or restitution.

• Tort Law -- based on an obligation imposed by the law with no agreement needed between parties; victim prosecutes and receives compensation or restitution.


Categories of Tort Law: Based on Defendant’s State of Mind

• Intentional Torts–Does not necessarily require an intention to

harm the victim, only an intention to perform the act which caused the injury. (Intentionally throwing an object, but not meaning to hit anyone is a tort if it causes injury to someone.)

• Negligence and Strict Liability–Unintentional torts


Categories of Tort Law:Based on Rights at Stake

Infringements of personal rights(assault, battery, false imprisonment,

defamation, intentional infliction of emotional distress and invasion of privacy)

vs.

Infringements of property rights(trespass, nuisance, fraud, conversion, product disparagement and interference with contract)


• Trespass is intentionally entering land that belongs to someone else or remaining after being asked to leave.–Keeping an object, such as a vehicle, on

someone else’s land and refusing to move it is also trespassing.

–You may be trespassing if you enter someone’s property mistakenly believing it is public property.

Trespass, Conversion, and FraudIntentional Torts Against Property:


• Conversion is taking or using someone’s property without consent (civil law version of theft).

Trespass, Conversion, and Fraud

• Fraud is injuring another person by deliberate deception. (We will discuss fraud in more detail in the context of contract law.)

Intentional Torts Against Property:


• Battery is a touching of another person in a way that is unwanted or offensive.– The touch does not have to hurt the victim -- sexual

touching that is offensive, but not painful, is battery.– An intentional action that does hurt someone may be

battery even if the injury is unintentional.

Intentional Torts against Persons: Assault and Battery

• Assault is an action that causes the victim to fear an imminent offensive contact.– Assault can occur without the contact ever happening.– Pulling a gun on someone -- even if it is unloaded -- is

usually considered assault.– Fear must be reasonable.


• Historically, no recovery was allowed if the injury was only emotional instead of physical.

• Today, most courts allow a plaintiff to recover from a defendant who intentionally causes emotional injury.–Behavior causing injury must be extreme and

outrageous.–Must have caused serious emotional harm.

• Some courts allow recovery for emotional injury caused by negligent behavior.

Intentional Infliction of Emotional Distress

• Roach v. Stern


Intentional Torts Against Persons False Imprisonment

• An employer who doesn’t let a sick employee go home might be guilty of false imprisonment.

• If the police detain a person with no reason to suspect him of any crime, it could be false imprisonment.

• In general, a store may detain a person suspected of shoplifting if there is a reasonable basis for the charge and the detention is done reasonably (in private and for a reasonable time).

False imprisonment is the restraint of someone against their will and without reasonable cause.


Intentional Torts Against Persons: Defamation

• Defamation is irresponsible speech to harm another’s reputation.

–Written defamation is libel.–Verbal defamation is slander.


• There are four facts to prove to win a defamation suit:– Defamatory statement: injury to reputation.– Falsity: The statement is false.– Publication/communication: The statement

was communicated to a third party.– Injury: must be proven in slander cases;

assumed in libel cases.

Intentional Torts Against Persons Defamation (cont’d)

Intentional Torts Against Persons Defamation (cont’d)


Defamation (cont’d)

• Slander per se -- some statements are so harsh and potentially damaging that the plaintiff is assumed to be damaged and does not have to prove injury.– Accusations of committing a serious crime– Claims of having a sexually transmitted disease or of

being an unchaste woman (gender bias in the law)– Alleged professional incompetence



• Opinion -- to be defamation, the statement must be provable and not simply someone’s opinion.– Vague terms in the statement usually indicate it is an

opinion, not a provable fact.– Extreme exaggerations are usually not taken as fact.



• Public Personalities– Includes: public officials (police and politicians) and

public figures (movie stars and other celebrities) – Public personalities have a harder time winning a

defamation case because they have to prove that the defendant acted with actual malice.



• Privilege– Defendants receive extra protection in special cases.– In courtrooms and legislatures, speakers have

absolute privilege. They may speak freely, as long as it is true.

– When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a suspected criminal act.


Privacy and Publicity• Intrusion (prying into someone’s private life) is a

tort if a reasonable person would find it offensive.– Examples: wiretapping, stalking, peeping– Would this include buying your personal

information from your credit card company?

• Disclosure of Embarrassing Private Facts is when something extremely embarrassing is made public with no need for the public to know.


Privacy and Publicity

• False Light is when something false and offensive is told about someone. – Midler case

– False light privacy, defamation, and parody: Flynt v. Falwell

– Waits v. Frito-Lay (not in your readings)

• Commercial Exploitation is when a person’s image or voice is used for commercial purposes without that person’s permission.


Compensatory Damages

• Damages may include money for three purposes:– to restore any loss (such as medical expenses)

caused by the illegal action– to restore lost wages if the injury kept the defendant

from working– to compensate for pain and suffering

• A jury may award compensatory damages -- payment for injury --to a plaintiff who prevails in a civil suit.

• The Single Recovery Principle mandates that the court must decide all damages -- past, present and future -- at one time and settle the matter completely.


Punitive Damages

• While the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party.– Intended for conduct that is outrageous and

extreme– Designed to “make an example” out of the

defendant and to deter others

• Sometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded.

• BMW v. Gore


Business Torts

• Interference with business relations–Interference with a contract

–Interference with a prospective advantage

• The rights to privacy and publicity

• Violations of the Lanham Act

Intentional torts that occur almost exclusively in a business setting are called business torts.


Interference with Business Relations

• Interference with a contract exists if the plaintiff can prove these elements:– There was a contract between the plaintiff and a third party and the defendant

knew of the contract.– The defendant induced the third party to breach the contract or make

performance impossible.– There was injury to the plaintiff.

• Texaco v. Pennzoil

• Kallok v. Medtronic



• Interference with prospective advantage exists:– when there is a relationship which gives the

plaintiff a reasonable expectation of economic advantage, even though no contract exists

– when the defendant maliciously interferes and prevents the relationship from developing



• The defendant can justify the interference if he can prove one or more of these elements:– He was protecting an existing economic interest.– He was protecting a public interest.


The Lanham Act (passed in 1946, amended in 1988)

• This statute prohibits -- and provides punishment for -- false statements made by a business intended to hurt another business.

• To win a case under this act, the plaintiff must prove three things: – The defendant made false or misleading fact

statements about the plaintiff’s business– The defendant used the statements in

commercial advertising or promotion– The statements created a likelihood of harm to

the plaintiff


Product Defamation

• State Statutes outlawing “defamation” of products

• Oprah and Texas beef

• Honda and emu ranchers


Negligence --

• Duty of due care -- there must be a duty owed to the plaintiff.

• Breach -- duty must be breached.• Factual cause -- the injury must have been

caused by the defendant’s actions.• Foreseeable harm -- it must have been

foreseeable that the action would cause this kind of harm.

• Injury -- the plaintiff must have been hurt.

To win a negligence case, the plaintiff must prove that the defendant failed in five

areas:

“The Unintentional Tort”


Duty of Care

• Foreseeable plaintiff• Dramshop/Social Host cases

– Minority view: social host is liable– Is majority view when drinker is child

• Landowner cases– Trespasser– Licensee– Invitee

Martin v. Walmart Stores


Breach of Duty• A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances. What about:

– Absent-minded defendants?– Not very smart defendants?– Children?– Physical disabilities?– Intoxicated defendants?– Professionals?

• Circumstances count– Knowledgeable plaintiff– Stressful situations


• Companies and Employees -- courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers.

• Analyze these situations using “reasonable person” standard.

Breach of Duty (cont’d)


Breach of Duty (cont’d)

• Negligence per se -- in special cases, legislatures set a minimum standard for certain groups of people (esp. children). When a violation of that statute hurts a member of that group, the duty is breached.

• E.g., violation of regulatory standard of care– Outlawed behavior– OSHA standards


Causation

“proximate causation” what is it?


Factual Cause + Foreseeable Harm = “Proximate Cause”

• Factual Cause -- if the defendant’s breach ultimately led to the injury, he is liable.–Does not have to be the immediate cause of injury, but must be

the first in the direct line.– Intervening causes can break the direct line

• Foreseeable Harm -- to be liable, this type of harm must have been foreseeable.– The defendant does not have to know exactly what

would happen -- just the type of event.– Palsgraf v. Long Island RR

• Res Ipsa Loquitur


Ex: Factual Cause & Foreseeable Harm

Mechanic fails to fix customer’s brakes, which

causes...

Car accident, car hitting bicyclist

Mechanic is liable to cyclist

Car accident, car hitting bicyclist

Noise from accident startles someone who

falls out a window

Mechanic is NOT liable for falling person

Factual cause and foreseeable type of injury

Factual cause, but no foreseeable type of injury


causes...


causes...


Injury & Damages

• Injury -- plaintiff must show genuine injury–Future injury may be compensated, but must be

determined at the time of trial.

• Damages -- are usually compensatory, designed to restore what was lost. In unusual cases, they may be punitive.


Defenses to Negligence• Contributory Negligence

– In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant.

• Assumption of Risk–No recovery if plaintiff voluntarily assumed risk

• Comparative Negligence– In most states, if the plaintiff is negligent, a

percentage of negligence is applied to both the defendant and the plaintiff.

– In some cases, a plaintiff found to be more than 50% negligent cannot recover at all.


Defenses to Negligence

EXAMPLE #1: Crews v. Hollenbach


MORE EXAMPLESScenario #1: Contributory Negl. Comparative Negl. Comparative Negl. Assumption of Risk

(50% cutoff) (no cutoff)

P's Damages $100,000P's fault 49%D's fault 51%D's Liability $0 $51,000 $51,000 $0

Scenario #2:

P's Damages $100,000P's fault 85%D's fault 15%D's Liability $0 $0 15,000.00$ $0


Strict Liability

• Defective Products-- may incur strict liability.

• Ultrahazardous Activities -- defendants are virtually always held liable for harm.– What is ultrahazardous? Includes using harmful

chemicals, explosives and keeping wild animals.

– Plaintiff does not have to prove breach of duty or foreseeable harm.

– Comparative negligence does not apply -- defendant engaging in ultrahazardous activity is wholly liable.

Some activities are so dangerous that the law imposes a high burden on them. This is called

strict liability.


TORT REFORM: a good idea?

ut-austin edinburgh summer program 2002 tort means “wrong” defamation -- making a false...

Documents