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Chapter 2
Torts
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Learning Objectives
After studying this chapter, you will be able to:
1. Describe the difference between intentional torts, negligence, and strict liability torts. 2. Describe the difference between torts and crimes. 3. Know the de�initions of speci�ic torts. 4. Analyze a situation in terms of which speci�ic torts may have been committed.
The law of torts concerns itself with private wrongs or injuries, other than a breach of contract, for which a court will award damages. In fact, the word “tort” dates back to Middle English and means “injury or wrong.” A tort is committed when a person fails to observe a duty of care by either intentionally or carelessly causing injury. The harm to the other person could be physical, emotional, or to his or her property. There are many different torts covering a variety of wrongful acts that individuals commit upon one another.
Example 2.1. Sarah thinks Michael, who sits next to her in Business Law, is copying her exam answers. Sarah is so enraged she punches Michael in the face, breaking his nose.
Upset about the exam incident, while driving home Sarah runs a red light and hits Ben, a pedestrian attempting to cross the intersection.
When she gets home, Sarah takes her pet boa constrictor snake out of his cage. The snake promptly goes next door and eats the neighbor’s dog.
What a day Sarah is having! As we will learn in more detail later, she has managed to commit three different types of torts. When she hit Michael, she committed the intentional tort of battery. When she ran over Ben, she committed negligence. The fact that she has a wild animal as a pet and he escaped and caused damage to the neighbor’s property (the dog) makes her potentially liable for a strict liability tort.
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O. J. Simpson in the courtroom during the murder trial.
Douglas C. Pizac/Associated Press
Note that some acts may be both torts and crimes, including Sarah’s punching her classmate. Another of these situations occurred when former pro football player O. J. Simpson was suspected of killing his ex-wife and her friend and was prosecuted for the crime of homicide. If he had been convicted, he would have spent a lot of time in prison. The purpose of criminal law is to protect society in general (which it does by punishing wrongdoers). O. J. was in fact found not guilty, probably because convicting someone of a crime requires a high standard of proof. The prosecution must prove the defendant committed the crime beyond a reasonable doubt, which they were unable to do. Members of the jury said afterward that they thought O. J. probably had done it, but that was not enough to convict.
However, a civil case for the tort of wrongful death was then brought by the families and estates of the deceased. The purpose of civil law is to compensate victims of wrongdoing, usually by ordering the wrongdoers to pay them monetary damages. The burden of proof in civil cases is much lower than in criminal cases: generally, the plaintiff must show it’s more likely than not that the defendant committed the tort (known as the preponderance of evidence standard). The jury in the civil case was fairly easily convinced, and O.J. was found liable.
It should be noted that tort law is generally a matter of state law, and thus it can differ from jurisdiction to jurisdiction. The rules we shall examine in this chapter are fairly typical and follow closely in the common law tradition, but students should remember that in any given situation, it is always possible that a particular state’s rule may be different.
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The Amtrak conductor was unable to stop the train in time after Mr. Joho stepped onto the tracks.
Jacquelyn Martin/Associated Press
2.1 Types of Torts
Torts can be classi�ied into three general categories:
1. Intentional torts 2. Negligence torts 3. Strict liability torts
Intentional torts, as the name implies, are torts that arise out of an intentional act. Intentional in this case means voluntary, not that there was a motive to cause harm. If Jack shoves Rafe, intending only to make him move out of the way but in fact knocking him down and causing him to break an ankle, Jack has committed the intentional tort of battery. It makes no difference that Jack didn’t want to hurt Rafe.
On the other hand, if Jack was standing next to Rafe and Jack, who is an epileptic, suffered a seizure and his arm convulsively �lew out and smacked Rafe, who was injured, there is no intentional tort because Jack’s action was not voluntary.
Negligence torts are situations in which a duty of care is breached unintentionally, directly causing foreseeable harm. An example would be if Bigger Bank neglects to clear their entrance after an ice storm, and Lebron slips on an icy patch and falls and breaks his leg. Bigger Bank did not mean for Lebron to suffer harm, but they have failed to meet their duty to keep their premises reasonably safe.
In The Media: The Flying Pedestrian: Is Getting Hit by a Train a Form of Negligence?
On a rainy Saturday morning on September 13, 2008, 18-year-old Hiroyuki Joho was rushing to catch a train at the Edgebrook Metra
Train Station in Chicago. His mother had just dropped him off at the station; he was using a black umbrella as he rushed across a designated crosswalk over the train tracks. At the same time, an Amtrak train was traveling at 73 miles an hour through the Metra Train Station. Even though upon seeing Mr. Joho on the tracks directly in front of the train, the Amtrak conductor blew his horn and �lashed his headlight, it was to no avail. A second or two later, an unsuspecting bystander, 58-year-old Gayane Zokhrabov, was struck from behind by a large part of Mr. Joho’s torso, as she waited to catch another train. The impact knocked her to the ground, fracturing her leg and wrist and injuring her shoulder.
Ms. Zokhrabov �iled a tort lawsuit in Illinois state court against the estate of Mr. Joho, alleging that his negligence in crossing in front of a moving train resulted in her injuries. The case was dismissed as the trial court agreed with the estate’s argument that, even if Joho was negligent, he owed no duty of care to Zokhrabov because it was not reasonably foreseeable that upon being hit by a train, his body would hit a woman 100 feet away. Ms. Zokhrabov appealed this decision and the Illinois Appellate Court reversed the trial court in its 2011 decision. Noting the open and obvious danger associated with crossing active train tracks, the court stated that it is a “well-established principle of tort law that the particular manner or method by which a plaintiff is injured is irrelevant to a determination of the [defendant’s] liability for negligence.”
Acknowledging what it called a lack of “�lying pedestrian” cases, the court concluded that “the reasonable likelihood of injury occurring was great given the relative force of the approaching Amtrak train, that the magnitude of the burden imposed by guarding against the harm was insigni�icant, since Joho needed only to pause, look down the tracks, and then time his crossing accordingly, and that the consequences of placing the burden on Joho would have been minimal.” Therefore, Joho owed Zokhrabov a duty of care. The court was careful to state that it was not ruling that Zokhrabov had proven the remaining three elements of negligence: breach of the duty of care; proximate causation; and damages.
The duty of care is the �irst element to a negligence case. A duty of care is the standard of caution or watchfulness or prudence one owes another person, in light of the speci�ic circumstances at the time. But just because a duty of care is owed and breached does not automatically mean that the tort of negligence has been committed.
Sources: http://articles.chicagotribune.com/2011-12-29/news/ct-met-train-fatality-suit-20111229_1_amtrak-train-high-speed-train-metra-train (http://articles.chicagotribune.com/2011-12-29/news/ct-met-train-fatality-suit- 20111229_1_amtrak-train-high-speed-train-metra-train) http://www.state.il.us/court/opinions/AppellateCourt/2011/1stDistrict/December/1102672.pdf (http://www.state.il.us/court/opinions/AppellateCourt/2011/1stDistrict/December/1102672.pdf)
Strict liability in tort arises when someone suffers an injury not from anyone’s willful or negligent act, but rather by engaging in some intrinsically dangerous activity or, under certain circumstances, through the manufacturing of an unsafe product. As an example, if Sasha, an explosives expert, rigs a car to blow up for a movie stunt and, despite following all safety protocols and using great care, a piece of the car �lies hundreds of feet in the air and strikes Carlos, a worker on the set, Sasha will be strictly liable for the injury. Working with explosives is an ultrahazardous activity (an inherently dangerous activity that cannot be made completely safe), and anyone who engages in such an activity is strictly liable for the harm it causes regardless of fault.
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2.2 Intentional Torts Against a Person
Battery
The tort of battery consists of the defendant’s doing an intentional act that causes the plaintiff’s person to be touched in a harmful or offensive manner, without a legal justi�ication. Let’s break that down, step by step, using Sarah’s punching Michael to illustrate the de�inition:
1. Sarah would be the defendant, and Michael the plaintiff. 2. Sarah did voluntarily touch Michael’s person. Note that the “person” includes not only Michael’s body but also things immediately attached to him. If Sarah did not touch Michael’s skin but she yanked out the nose ring he was wearing, it would still be a battery.
3. Being punched in the face or having your ring yanked out would be harmful, because it would hurt! Note that injury is not necessary, and the touching does not even have to be painful if it would be suf�iciently offensive to a reasonable person. If Sarah had instead spit in Michael’s face, splattering his cheek and eye with phlegm, it would probably be a battery.
4. Sarah did not have a legal justi�ication for touching Michael. He did not consent, and she did not act in self-defense, defense of property, or defense of another person. Sarah may have been provoked by Michael’s looking at her test, but that is not a legal excuse.
Assault
The tort of assault consists of intentionally causing someone to reasonably expect that he or she is about to be the victim of a battery. The difference between battery and assault is that in battery, a harmful or offensive touching must take place, where in assault there is no need for an actual touching, only the fear that one is about to be touched without one’s consent. If Linda points a gun at Irving and causes him to fear that he is about to be shot, she is liable for assault—even if she never intended him any harm. It is enough that she purposely pointed the gun at him and that he was justi�iably expecting he was about to be touched in a harmful way. If she goes on to shoot him and the bullet “touches” him, she will also be liable for battery. In the second case, Irving could sue Linda both for assault and battery, since they are separate torts, and could recover damages for each.
Note that the same legal justi�ications—namely consent, self-defense, defending another, or defending property—that applied to battery will also negate liability for assault. If Josh chooses to play football, he is basically giving implied consent to a lot of what would be assault and battery if it happened outside a football game. However, he is only consenting to the normal conduct that goes on in a football game. If the safety pulls out a gun and shoots at Josh, there is a tort. Likewise, a person can only use a reasonable degree of force in defending himself or another or property. If an 8-year-old threatens to hit you with a stick, and you respond by breaking the child’s arm and leg, you are committing a tort.
False Imprisonment
False imprisonment is committed when the defendant does an intentional act that con�ines the plaintiff against his or her will (in other words, takes away the plaintiff’s freedom of movement). The con�inement can be carried out by physical means such as bodily restraint, or by using barriers such as a locked door. It can also be accomplished by psychological means through threats of physical force or the false assertion of legal authority.
Example 2.2. Jessica is having Nathan, the hunk who sits in front of her in Business Law, over to her place for a study date. Jessica doesn’t want her obnoxious roommate Heather around, so Jessica ties her up, gags her, and pops her into a closet for the evening.
Jessica would also be committing false imprisonment if she told Heather, “Stay in your room all night or I’ll beat you to a pulp,” and Heather was frightened into restricting her movements to her bedroom.
Note that false imprisonment only applies if the restraining action is unjusti�ied. Most states have passed laws that provide retail stores with a conditional privilege to detain a suspected shoplifter. Often referred to as the “shopkeeper’s privilege,” these laws generally provide that a retail store can detain a suspected shoplifter so long as the detention is reasonable under the circumstances. The store must have a reasonable basis to believe that the person is attempting to steal merchandise, the nature of the detention must be reasonable, and the duration of the detention must be for a reasonable amount of time. For example, if Sam, a security guard at the Buy-More store, has reason to believe Jason is shoplifting, and Sam restrains Jason by holding him by the arm until the police arrive, this may not be false imprisonment as long as Sam is acting reasonably. But if Sam chains Jason in a storeroom for three days until he confesses, this would be unlawful con�inement, regardless of whether Jason is a shoplifter or not.
That said, many merchants are so skittish about the possibility of lawsuits that they instruct employees not to touch the customers, even when they may be shoplifting.
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Intentional In�liction of Emotional Distress
The tort of intentional in�liction of emotional distress arises when one person intentionally, through extreme and outrageous conduct, causes another to suffer extreme emotional distress. The word “intentional” means more than simply voluntary in this context; it means that the defendant intended to cause the distress, or at least acted recklessly with regard to the plaintiff’s emotional well-being. For example, in a situation where an uncle drugged and raped his 13-year-old niece, who suffered a nervous breakdown afterward, there is probably intentional in�liction. But in a famous case involving a lawsuit against former President Bill Clinton, where a woman named Paula Jones alleged that Clinton had made suggestive remarks, put his hand on her thigh, attempted to kiss her, and exposed himself, the court said that even if the incidents had occurred, they were not outrageous enough to constitute intentional in�liction of emotional distress and dismissed the claim as a matter of law.
Even when truly outrageous conduct is involved, a problem with this tort is that mental suffering is hard to prove. Where there is no physical manifestation of the emotional harm, damages are not likely to be awarded. In fact, some states require physical manifestation of the injury as an element of the tort. For example, if a plaintiff can show that her hair is falling out as a result of grief suffered from the defendant’s conduct, that she has gained 50 pounds since, has had to undergo therapy for a sleep disorder, and has been prescribed Xanax for her general anxiety, she has a decent chance of proving severe emotional distress. But if she is merely upset, humiliated, and occasionally bursts into tears when she recalls the incident, she has likely not proven this element of the tort.
Invasion of Privacy
Another important tort concerns a person’s fundamental right to privacy and offers protection against unreasonable interference with this right. The tort of invasion of privacy is commonly narrowed down into four separate categories:
1. Appropriation of a person’s name or likeness for commercial use; 2. Intrusion into a person’s seclusion; 3. Placing a person in a false light by facts told to others; and 4. Public disclosure of private facts about an individual.
Under the �irst type of situation, one person attempts to pro�it by using another’s name or likeness for commercial purposes. The most obvious example is using a person’s name in connection with a product without the person’s permission. If an advertisement for a brand of soft drink shows actor Julia Roberts drinking a can, and Ms. Roberts has not consented to her picture being used, this is likely a tort. On the other hand, if a newspaper shows a glamorous picture of Julia at the Academy Awards as part of a story on the Oscars, this is not a tort, because it is part of a news story and not considered “commercial use,” even though the newspaper is trying to sell issues.
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In 2011, Google lost a defamation case in Italy in regard to the search engine’s autocomplete suggestions feature. When typing the anonymous plaintiff’s name in the search engine, Google suggested search possibilities including the words “con man” and “fraud.” The company was ordered to purge libelous autocorrect suggestions by the Court of Milan.
Newscast/Associated Press
Click here (http://legalstudiesclassroom.blogspot.com/2011/11/do-you-like-to-
insult-people.html) to watch an Australian lawyer give a quick explanation of how to insult people without being liable.
Why is publication an essential part of defamation?
Beyond the Book: “Do You Like to Insult People?”
The second type of situation, intrusion into a person’s seclusion, essentially entails intruding into another’s privacy when a reasonable expectation of privacy exists. A classic example is that of a peeping Tom. But what if the target of the defendant’s interest is in a public place? If a paparazzi photographer relentlessly follows Paris Hilton around town, taking her picture constantly without her consent, it might still be invasion of privacy. This is a matter of degree, but if, for example, the photographer is constantly walking in front of her down the sidewalk snapping pictures, interrupts her meals with friends in restaurants by looming over her at the table still snapping away, and zooms up in a speedboat to photograph her when she is swimming in the ocean, the photographer might be liable.
The third type of situation that gives rise to the tort is placing someone in a false light. For example, the National Enquirer once ran a story titled “Clint Eastwood at 63” and used the words “Exclusive Interview” in proximity to the title, as well as enclosing various statements in quotes. Although the paper may not have explicitly stated that Clint had given them an interview, it did its best to give that impression. Eastwood successfully argued that he was damaged by this, since in fact he would never have granted an interview to a sensationalist tabloid.
Finally, the publication of private facts about someone that a reasonable person would �ind objectionable can also lead to liability. If Phil tells others that Cassandra is a bed wetter, a fact that Cassandra had not made public, he could be liable to her. Being a bed wetter is something that a reasonable person would consider objectionable if Cassandra is 30 years old, but not if she is 3. If Cassandra is 30, she can sue Phil for invasion of privacy, even if the statement made by Phil is true, as long as it was not public knowledge and Cassandra con�ided the information to Phil under circumstances in which she had a reasonable expectation that Phil would keep the information con�idential (e.g., if Phil is a close friend or family member). In essence, the law holds that there are some matters that we have the right to keep to ourselves and some that, under appropriate circumstances, those in whom we entrust con�idential matters have a responsibility not to reveal.
Defamation
Publishing a false statement about someone that tends to harm the person’s reputation gives rise to the tort of defamation. If the statement is spoken it is slander, and if it is written it is libel. Oral statements broadcast over a mass medium such as a radio, television, or podcast are considered libel rather than slander.
Publication means simply that a third person, someone other than the plaintiff or the defendant, saw or heard the statement. For example, if Latoya and David are standing together and no one else is around, and Latoya says, “David cheated on his Business Law exam,” there is no defamation because there is no publication. But if Latoya says the same thing in front of Emily, or if Latoya writes it on the wall of a public restroom, there has been publication. Assuming David did not in fact cheat on his exam, he likely has a defamation claim.
Note that the statement in question must be factual in nature; opinions do not count as defamation. If Delon states publicly that the chef at Chez Paris is the worst cook ever, this is unlikely to be actionable as it is Delon’s opinion. Also, satire is not usually defamation.
If the false statement is made about a person who is a public �igure, such as a celebrity or government of�icial or someone who has been involved in a high-pro�ile situation, then the plaintiff needs to show that the defamatory statement was made with malice. Malice, for purposes of defamation, is the making of a statement either knowing it to be false or acting with reckless disregard for its truth or falsity. For example, if a newspaper published a story about Senator Doe that stated he had taken cocaine, and the only source the paper had was an anonymous phone tip, this would likely constitute malice.
Plaintiffs must also be suf�iciently identi�ied to have a claim. Saying that “all lawyers are liars and thieves” is clearly a defamatory statement, yet no individual lawyer will be able to
successfully sue the person who has made the statement because it is too broad and does not suf�iciently affect or identify any one member of the defamed group. On the other hand, falsely saying that attorney Sandra Jones is a lying thief is slander since an individual is clearly speci�ied. Likewise, the statement that all lawyers at Adams, Benitez & Chaudhry, P.C. (a law �irm in the city of Erehwon) are crooks is actionable if a small law �irm is involved because false statements involving a small group of people can be deemed to injure all of its members. The larger the group, the less likely that any one member will be able to establish actual harm to their reputation as a result of the statement.
Keep in mind that for any defamation claim, the plaintiff must prove the statement is false. However, this is not the case for invasion of privacy. For example, if Justin goes to a clinic for treatment of his herpes virus, and a nurse at the clinic later tells Justin’s friends that he has herpes, there would be no defamation but there would likely be the tort of publication of private facts. The information is very personal, potentially distressful if made public, and there is no public interest to be served by making it known.
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Fraud
Fraud, or intentional misrepresentation, occurs when a person makes a false statement about a material fact in order to induce another to take action that causes him or her to suffer some loss. Note that fraud is not only a tort, but also a defense to breach of contract and a number of different crimes, depending on the situation. The de�inition is fairly similar in all contexts; �ive elements must be met. For the tort of fraud, there must be:
1. An intentional misrepresentation by the defendant; 2. about a material fact; 3. made in order to induce the plaintiff to take a speci�ic action; 4. where the plaintiff reasonably relied on the defendant’s misrepresentation; and 5. where the plaintiff suffered a material loss.
Let’s look at an example.
Example 2.3. Dan wants to sell his old car. He knows that Ken wants an automobile that is in good condition with less than 50,000 miles on it. Dan tells Ken that the car is “a real dream car,” that he is willing to sell Ken the car for $2,000, and that the car has only 35,000 miles. Ken looks at the odometer, which does read 35,000. In fact, the odometer was disconnected for a long time and the actual mileage is 90,000 miles. Ken purchases the car after a cursory inspection, relying on his friend’s statements. A week later, Ken takes the car into a mechanic for servicing and is told that the engine has far more wear than a mere 35,000 miles could account for, and that the mileage must be at least double that. Has Dan committed fraud?
Let’s break it down, step by step:
1. Dan intentionally misrepresented the car’s mileage. He obviously must have known about the disconnected odometer. But the statement that the car is a dream is not a misrepresentation of fact, but rather a mere opinion, or the sort of exaggerated description that is not to be taken seriously.
2. The mileage on a used car is material, since it is something a reasonable person would consider in deciding whether to buy the car. 3. Dan intended for Ken to believe him, because Dan wanted Ken to buy the car. 4. Ken took reasonable steps to verify Dan’s statement, by checking the odometer. If Ken hadn’t bothered to do this, he might not have a good case for fraud. The law expects a reasonable person to verify what he’s told if it’s relatively easy and cheap to do so.
5. Ken has damages, because he has been deceived into paying too much for the car.
Suppose Dan had instead stated that the car was in excellent mechanical condition, but in fact he’s been having problems with the transmission for the past two weeks? This is also possible fraud. But if Dan says nothing about the condition of the car, and Ken never asks, the law generally says no fraud, since there is no misrepresentation. However, if there is a �iduciary relationship, which is one involving an inherent degree of special trust (such as attorney-client, doctor-patient, priest-parishioner, guardian-ward, trustee-bene�iciary), the law recognizes that there is a special degree of trust, and thus a failure to disclose pertinent information may be tantamount to deliberate lying. If a priest is selling a car to a member of his congregation, he is expected to speak up and tell the buyer about the transmission troubles.
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This man is committing an intentional tort against property by trespassing on land without the landowner’s consent.
iStockphoto/Thinkstock
2.3 Intentional Torts Against Property
Trespass to Land
The tort of trespass to land requires an intentional physical act that results in an intrusion into the land of another without the owner’s consent. Thus, walking on another’s property, throwing garbage that lands on it, or shooting a gun over it are all examples of trespass to land.
Not every instance of entering another’s property without consent constitutes trespass. If one enters into another’s land by mistake or by accident, there is no trespass, provided that the person leaves immediately as soon as she becomes aware that she is trespassing. Furthermore, trespass is excused if it occurs under emergency circumstances, such as entering the land of another while �leeing from a wild animal or to render emergency assistance to someone on the land.
Where no harm is done to the land and when the trespass is of brief duration, courts will generally award nominal damages—usually the sum of $1.00. Where the trespass is of a continuing nature, however, substantial damages can be awarded. The property owner can also ask a judge to issue an injunction (a court order that prohibits speci�ic acts) requiring the defendant to cease trespassing on the plaintiff’s land. Ignoring an injunction can result in imprisonment for contempt of court.
Trespass to Personal Property
Although this tort also uses the word “trespass,” it is not the same thing as the tort above. The defendant’s simply touching the plaintiff’s personal property (such as a car, a dog, a watch, or a yacht) is not enough; he must interfere with the plaintiff’s ability to possess or enjoy his property.
Example 2.4. Ritchie moves Sierra’s bicycle, so that he can get his own bike into the rack. Since Ritchie has not harmed the bike, and Sierra was not trying to use it at the time, there is no tort.
Running late one day, Ritchie takes Sierra’s bike without her consent and rides it to work. Sierra comes out an hour later to discover her bike missing. Ritchie returns it at the end of the day. This would be trespass, since Ritchie has done an intentional act that interfered with Sierra’s ability to use her bike.
Conversion
The third property tort is conversion, which is similar to trespass but involves more serious interference with the plaintiff’s rights. Suppose Ritchie instead takes the bike, intending to return it later, but the bike is stolen from the rack where Ritchie parked it at his work. This would be the tort of conversion. Ritchie’s interference with Sierra’s possessory rights is so severe that her rights have been rendered worthless. It does Sierra no good to own a bike that is now in the hands of an unknown thief.
Business Torts
Although any of the torts mentioned in this chapter can occur in a business context, there are also some intentional torts that are inherent to a commercial setting. The most common is wrongful interference with a contract, in which the defendant intentionally induces another person to break a contract. If Maria, an opera singer, has contracted to perform next season for the Metropolitan Opera and the City Opera talks her into singing for them instead, Maria is liable to the Met for her breach of contract, and City, provided they knew of the Maria-Met arrangement, can be liable for this tort.
Some states also allow suits for interfering with contract negotiations, and some have causes of action for various predatory business practices, but these vary considerably from state to state.
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In this video, three teenage boys confess to killing a teenage girl as a sacri�ice to the devil based on the lyrics of the metal band Slayer. The boys are sentenced to 25 years to life and the victim’s family sues Slayer and its recording companies.
Review the elements of negligence, and consider how the facts in the Pahler case would �it the legal requirements. What do you think is the most dif�icult element of negligence to prove in these types of cases? Why?
Beyond the Book: “Altar of Sacri�ice” “Altar of Sacrifice”
From Title: Rock ‘n Roll Murder: When Lyrics Lead to Viole… (https://fod.infobase.com/PortalPlaylists.aspx?wID=100753&xtid=12037)
0:00 / 3:00 1x © Infobase All Rights Reserved Length: 03:00
2.4 Negligence and Strict Liability
Negligence
The law states that everyone has the duty to act with reasonable care to avoid creating undue risk of harm to others. For example, you have a duty to operate your car in a reasonable manner. If you are driving too fast on a snowy day, lose control, skid across a sidewalk and wipe out a pedestrian, you would likely be found negligent and have to pay compensation to the person you injured. It’s not relevant that you did not intend to harm the pedestrian: negligence is not based on intentional acts, but frequently results from careless ones. (If you intended to mow down the pedestrian, you were committing battery.) The law reasons that between you and the hapless pedestrian, you are more responsible for the harm and it makes sense that you should bear the cost. Hopefully, negligence law encourages people to be more careful in their activities!
For the plaintiff to prove negligence against the defendant, the plaintiff must show �ive elements:
1. Defendant owed plaintiff a duty of care; 2. Defendant breached that duty; 3. The defendant’s breach was the actual cause of plaintiff’s damage; 4. The defendant’s breach was the proximate cause, or foreseeable result, of the plaintiff’s damage; and 5. The plaintiff does indeed have damage.
Consider a situation where Linda, who owns a grocery store, displays her fruit and vegetables in steeply angled racks. They look good, but are also apt to roll and fall on the �loor. Tom is shopping in the store and slips and falls on an errant cherry, breaking his leg. Linda owes a duty to display her wares in reasonably prudent fashion. She has probably breached this duty, because the way the racks are angled made it likely produce would fall on the �loor.
But suppose that Linda stores her fruit in �lat racks, and the customer immediately in front of Tom had scattered the fruit on the �loor. In that case, Linda has not breached a duty and is not negligent. Even a reasonably careful store owner cannot ensure that there is never anything on the �loor! Linda would also breach a duty if she displays the produce in a reasonably safe manner, but does not do a reasonable job of monitoring the cleanliness of the �loor. If there had been spilled fruit on the �loor for an hour before Tom’s wipeout, Linda has likely breached her duty to keep the premises clean.
Actual cause means that but for the defendant’s negligent act, the plaintiff would not have been injured. In other words, if Linda had not stacked her fruit carelessly, Tom would not have slipped, fallen, and been hurt. Thus actual cause is present. But if a tornado had swept off the roof of Linda’s store, hurling cherries everywhere, and now Tom slips and falls, there is no actual cause. Linda was still careless. However, “but for Linda’s display, would Tom have been injured?” Yes, he would have slipped and fallen on the cherry anyway, since it was the tornado and not Linda’s habits that resulted in the cherry being there.
Even after establishing actual cause, there must still be proximate cause for Linda to have liability. This means that it must be reasonably foreseeable that the defendant’s negligent act would cause injury to someone who is in the physical location of the plaintiff. Is it foreseeable that Linda’s careless display would cause injury to a shopper in the produce aisle? Yes, so there is proximate cause, and Tom’s case is looking pretty good! But suppose that Tom falls on the cherry, causing explosives in his backpack to detonate, and debris from the explosion is hurled across the street where it harms Sonja. Is Linda liable for Sonja’s injury? No, because it is not foreseeable that a negligently dropped cherry would injure someone across the street. It is important to note that we do not have to foresee how the harm occurs! For example, if Tom’s exploding backpack injured Erin, who was standing next to him, there could still be proximate cause. It is foreseeable that the negligently displayed fruit could injure someone in Erin’s position—another shopper in the produce aisle.
The �inal element in the plaintiff’s case is damages. If Tom slips on that cherry, falls, but is not injured, there is no tort, since the case would lack this �inal element.
Defenses to Negligence
There are certain circumstances under which a negligent defendant may avoid liability, or have the extent of his liability reduced. Recognized defenses to a negligence action include contributory negligence, comparative negligence, and assumption of risk.
At common law, a party suing under a theory of negligence could not recover damages if he or she was at fault and that fault contributed to the injury. If Tom was the one who had knocked the cherry on the �loor, he would not be able to recover damages from Linda, as he would have been contributorily negligent.
Problems arise under contributory negligence when parties are not equally negligent; barring both parties from recovering any damages when one of them is much more negligent than another can bring about some rather unfair results. Consider the following:
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Similar cases have been brought in situations involving violent video games. The Federal Trade Commission has found that the video industry deliberately targets children with violent content. How would this work to the plaintiffs’ bene�it? Do you think it is relevant that the industry makes a great deal of money selling the products in question to minors?
Owning a chimpanzee can lead to strict liability. Pictured here is Travis, a male chimpanzee who appeared in American television shows and commercials before mauling Charla Nash in 2009.
Kathleen O’Rourke/Associated Press
Example 2.5. Dana approaches an intersection in which there is a stop sign. She slows down, looks both ways, and continues. Mario races across the intersection at a high rate of speed, ignoring a stop sign. Dana sees Mario coming too late to get out of his way, and an accident occurs that completely destroys Dana’s 2009 Ferrari, worth $200,000, and Mario’s 1990 Buick, worth $200. A jury �inds that Dana was approximately 10 percent at fault in bringing about the accident and assesses Mario’s fault at 90 percent.
In the above example, neither Dana nor Mario would be able to recover any part of their damages under contributory negligence. This seems rather hard on Dana! A majority of states, recognizing the problem, have switched to the comparative negligence theory. Under comparative negligence, a plaintiff who is also negligent can still get compensation for the portion of the harm suffered for which he is not responsible. So Dana would be able to recover from Mario 90 percent of her $200,000 damages. However, many jurisdictions limit recovery under comparative negligence to cases in which a party’s contributory negligence is not more than 50 percent.
Another possible defense is assumption of the risk, where the plaintiff perceived the hazard the defendant had created, but voluntarily chose to expose him- or herself to the risk. The issue is not whether a reasonable person would have seen the hazard, but whether this actual plaintiff did. Thus a person who is a baseball fan who goes to a game and gets hit by a foul ball is assuming the risk. A visitor from another country who has never seen a baseball game would not, since that person does not know that balls don’t stay in the �ield of play. Generally, assumption of the risk only applies to cover risks normally associated with the activity, so if a rail from an upper deck broke off and crashed down on the hapless plaintiff, the defense would not apply.
Strict Liability
Strict liability is liability without fault. Even if you are reasonably careful, the law has simply mandated that if you engage in certain types of activities and cause damage, you can be held liable. The rationale is that you have voluntarily chosen to do the activity, whereas the injured person has not chosen to be harmed, and so you bear more responsibility for the harm and should pay the cost.
The three typical situations that involve strict liability are:
1. Owning wild animals; 2. Engaging in ultrahazardous activities; and 3. Selling defective products.
Wild animals are de�ined as those traditionally found in the wild, such as wolves, lions, pythons, etc. It makes no difference that your pet wolf was raised in captivity; it is the species that determines strict liability. Regardless of how careful you are in keeping Wol�ie, if he escapes and causes injury, you will be liable.
On the other hand, when it comes to domestic pets such as dogs or cats, you would generally only be liable if you were negligent, or knew your animal tended to be dangerous. For example, in one situation the owner of a cat named Baxter was held liable when Baxter attacked a neighbor. Baxter had a formidable reputation for aggression and destructive behavior, and had been known to lie in wait and pounce on passersby.
The rules on herd animals (cows, sheep, etc.) differ more widely from state to state, but often the owner can be held liable for a type of damage that is predictable from the species. Thus if your cows get out and eat your neighbor’s crops, you might be liable, whereas if your sheep escapes and attacks a neighbor for the �irst time, you would probably not be liable.
Ultrahazardous activities (also known as abnormally dangerous activities) are those that involve a high degree of inherent risk, that cannot be prevented by exercising reasonable care, and that are not performed commonly in the community. Demolition is a typical example. If Ace Wrecking Co. carefully cordons off a derelict warehouse, sounds warnings, and then blows it up, Ace is engaging in an ultrahazardous activity. If a bit of debris �lies farther than anyone could have anticipated and lands in Michelle’s eye, blinding her, Ace will be liable. Strict liability encourages companies such as Ace to carry insurance that will cover such events.
Product liability is a catchall phrase referring to lawsuits brought against sellers of defective products. It can include contract-based claims for breach of warranty (discussed in a later unit) as well as negligence, but it also includes strict liability in tort. The requirements for this type of case are:
1. The defendant is in the business of selling the product. This can include the retailer, wholesaler, and manufacturer, and generally the plaintiff sues all of them. But it does not include the guy who had the garage sale where you bought the defective product.
2. The product has a defect that makes it unreasonably dangerous. This can be either an uncontemplated defect (where something went wrong) such as the decaying mouse corpse in the bottle of soda, or a design defect (the Ford Pinto, a car engineered in such a way that it had a nasty tendency to explode when
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rear-ended). 3. The product reached the consumer without substantial change in its condition. If you bought a new Pinto and turned it into a hot rod, and now you are incinerated in a collision, you no longer have a strong product liability claim.
Strict liability makes it much easier to hold manufacturers accountable for their products. In many situations, it would be very dif�icult for a plaintiff to prove negligence, because the plaintiff cannot show a breach of duty. In other words, how did that darn mouse get into the soda? Strict liability is also an ef�icient way of allocating the costs from an injury. The sellers can cover a $100,000 judgment by raising the cost of their products a few cents and spreading the loss broadly over their customer base over time, whereas without this liability the injured party would be stuck having to cover the entire loss.
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On September 13, 2012, New York City banned the sale of large sodas at restaurants, movie theaters, and street food carts. The ban was overturned two years later by the New York Court of Appeals. Did New York City overstep its authority with this attempted regulation?
© 2011 Getty Images/Spencer Platt
2.5 Chapter Summary
Torts are one of the most common bases for civil lawsuits. Torts are divided into three basic categories. Intentional torts refer to a voluntary act undertaken by the defendant, rather than to a malicious intent, and include such speci�ic causes of action as assault, false imprisonment, defamation, and privacy torts. Negligence focuses on a lack of due care by the defendant that has caused injury to the plaintiff. Strict liability torts include damage caused by an owner’s wild animal, damage from engaging in ultrahazardous activities such as demolition, and a category of product liability that is based on the defendant’s selling a defective product.
Tort liability is based partly on who is at fault, but also on allocating the cost of an injury to those best able to pay it. Understanding the different types of claims that can be made should help the businessperson avoid liability situations.
Focus on Ethics
In recent years there have been a number of lawsuits brought by obese plaintiffs against fast-food restaurants such as McDonald’s. The plaintiffs typically allege that advertising leads them to believe they can eat fast food daily without adverse results, that nutritional information is not readily available in such restaurants, and that not all product ingredients are disclosed.
Obesity is a national health epidemic, the incidence of which has risen dramatically in the last few decades. Its cost to society is enormous.
More than half of the states have enacted statutes called common sense consumption acts that shield restaurants from such lawsuits.
Questions for Discussion
1. Do you think fast food restaurants are either negligent or selling a defective product? Even so, do people assume the risk by eating there?
2. Even if no law is being violated, do you think fast food restaurants are operating in an ethical fashion?
3. How do we, as a society, balance the need to improve public health and reduce obesity (which costs all of us a lot of money) with the need to maintain a good business climate?
4. Do fast food restaurants need the protection of common sense consumption acts? Do such laws serve the public interest?
Case Study: Labaj v. VanHouten 322 S.W.3d 416 (Tex. App.-Amarillo 2010) (http://caselaw.�indlaw.com/tx-court-of-appeals/1537201.html)
Facts: Plaintiff DeeAnn VanHouten worked as a title clerk at TCAG, which was a used car lot (operated by Labaj). On the day in question, she left the of�ice and went out to get licensing papers from her car. Her car had earlier been moved to another lot. VanHouten asked another employee where her car was, and he indicated it was in the back lot. VanHouten did not know there was a guard dog on the back lot. (The dog had been there for only a few weeks.) She was attacked by the dog without warning, and injured. She sued for negligence and strict liability.
Issue: Did the dog have abnormally dangerous propensities that would justify strict liability? Was TCAG negligent in their handling of a nonvicious dog?
Discussion: The jury did not see any evidence that the dog was known to be vicious before this incident. However, it was justi�ied in saying the defendant was negligent, because TCAG should have known that a guard dog will likely be protective of its territory. A manager at the company had described the dog, a large pit bull, as an aggressive security guard who was intended to deter anyone from vandalizing cars or stealing parts. The dog was chained up for ten or so hours during the day and let loose at night. The manager also said he would not approach the dog to pet it. While he had no notice of the dog’s biting anyone, he admitted that he didn’t know about the dog’s history, except that it had puppies a week and a half before the incident. He admitted that a mother dog might be protective of puppies. Another employee’s wife testi�ied that the dog had escaped the lot and been hit by a car, suffering a cracked hip and injured bladder, but was recovering on its own.
The court found that TCAG owed a duty to its employees to adequately warn them about the dog, and that the failure to warn could foreseeably result in injury to VanHouten.
Holding: The jury answered no to the �irst question and yes to the second, and awarded plaintiff $50,000 in compensation. On appeal, the court found that the jury’s �indings were supported by evidence on the trial record, and thus could not be overturned on appeal.
Questions for Discussion
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1. Analyze the case in terms of negligence. Separate the different elements and show how they were applied here. 2. Would the outcome have been different if the dog were the owner’s Labrador Retriever who was just visiting the lot? 3. Why did the court �ind strict liability was not applicable? 4. If you were a business owner and you thought you needed a guard dog, what would you do differently so as to minimize the risk?
Case Study: Bullock v. Philip Morris USA, Inc.
159 Cal. App. 4th 655 (Cal. App. 2nd Dist. 2008) (http://caselaw.�indlaw.com/ca-court-of-appeal/1219515.html)
Facts: For 45 years Betty Bullock smoked cigarettes manufactured by Philip Morris (Morris). After being diagnosed with lung cancer in 2001, she sued Morris for product liability. The jury found that the cigarettes were negligently designed and that Morris failed to adequately warn Bullock of the dangers of smoking before July 1, 1969 (the effective date of the current provision in Federal Cigarette Labeling and Advertising Act). In 2002, the jury awarded Bullock $850,000 in compensatory damages and $28 billion in punitive damages, although the trial court reduced the punitive damages to $28 million. Philip Morris appealed the verdict, arguing that evidence failed to con�irm a design defect because there was no proof that a safer alternative cigarette design was available, and that the failure to use a safer design caused Bullock’s lung cancer. Morris also argued that, since the dangers of smoking are well known, the company had no obligation to warn Bullock. In 2003 Betty Bullock died, and her sister Jodie Bullock replaced her as a party of interest in the case. Bullock also appealed, arguing the trial judge shouldn’t have reduced the punitive damages, but that issue is not presented here.
Issues: Is Philip Morris liable for negligently designed cigarettes, if there is no other way to make cigarettes? Is Philip Morris liable for failure to adequately warn Bullock of dangers of smoking before July 1, 1969?
Discussion: The appellate court stated that there was no error in the jury’s �inding of Philip Morris’s liability for design defect based on the risk- bene�it theory. Essentially, the court approved of the trial judge’s instructions to the jury that it should consider the following factors in determining if the bene�its of the cigarette design outweighed its risks: the gravity of the design’s danger; the likelihood that the design would cause damage; existence of warnings; the cost of an improved design; and the adverse consequences to the product and consumer from an alternative design. The appellate court also concluded that Morris’s efforts to distort the truth about dangers of smoking were suf�icient to support the �inding that ordinary consumers were misled and unaware of the dangers of cigarette smoking. The court noted that medical professionals worldwide agree that smoking causes lung cancer, but Philip Morris tried to alleviate smokers’ concerns by publicly stating that “there was no proof that cigarette smoking caused cancer.” While publicly declaring that the research linking smoking to lung cancer is inconclusive, Philip Morris privately recognized the link between cigarette smoking and lung cancer and tried to avoid promoting research that would expose that link. For example, Dr. Farone, one of Philip Morris’s researchers, testi�ied that the company’s scientists knew that cigarette smoke contained carcinogens and that the carcinogens caused cancer in smokers.
Holding: The appellate court af�irmed the judgment of the trial court as to the award of compensatory damages and product liability. It reversed the judgment of the trial court as to the amount of punitive damages and gave directions to conduct a new trial to resolve that issue.
Questions for Discussion
1. What was the basis for Betty Bullock’s lawsuit against Philip Morris? 2. What was the reasoning of the appellate court with respect to product liability and design defect? 3. Why did the court rule that Philip Morris failed to adequately warn Bullock of the dangers of smoking before July 1, 1969? 4. Do you agree with the appellate court’s decision that Philip Morris failed to adequately warn Betty Bullock about the dangers of smoking? Do you think that consumers have personal responsibility to consider possible negative effects of using certain products, such as alcohol, tobacco, fast food, or sugared drinks, regardless of whether there are warnings on the labels of those products?
5. Do you agree with the trial judge’s decision to reduce the punitive damages from $28 billion to $28 million? [A second jury then awarded punitive damages of $13 million.]
Critical Thinking Questions
1. It has been said of tort law that it is a system for allocating the cost of an injury. If a tort has been committed, the defendant pays. If there is no tort, the injured person must bear the loss. If he or she can’t pay it, society generally pays for the loss. For example, if an injured person has no medical insurance and can’t afford treatment for an injury, that person will usually go to the emergency room of a public hospital, which must treat people even if they can’t pay. Society generally pays for the hospital’s services through taxes. Does this seem a reasonable way of paying for injuries? Some countries such as New Zealand have a no-fault system, which eliminates personal injury lawsuits but provides medical insurance and compensation for injuries. One advantage of such a system is that there are no litigation costs, and injured people get compensated regardless of how they were injured. Which system seems preferable to you? Explain.
2. Do you think it makes sense when courts award damages for a person’s emotional distress? How would you determine how much emotional trauma is worth? Does money truly compensate for pain and suffering?
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Hypothetical Case Problems
Case 1. Ashley is shopping one day at Buy-Mart. She has her baby with her, strapped into a carrier seat. The seat is the same brand that Buy-Mart sells. Ashley doesn’t �ind anything she wants, and leaves the store. A manager follows her and asks her to come back inside, which Ashley does. The manager then tells her that he thinks she stole the baby carrier, pointing to a manufacturer’s tag that is still attached to the seat. Ashley points out that the seat has food stains and also quite a bit of cat hair on it, and is obviously not new. The manager apologizes and tells her she is free to go. The whole incident takes about 10 minutes.
A. Ashley, upset at being thought a thief, sues the store for false imprisonment. Analyze her case. B. Would it make a difference if the manager had grabbed her by the arm and pulled her back into the store?
Case 2. The Northern Shipping Company carelessly moors a ship at a dock on the river. The ship breaks away from the mooring, and drifts downstream, running over a small �ishing boat and drowning the �isherman before eventually lodging sideways against a bridge. Not only is the bridge damaged by the collision, but the ship causes a damming of the river that causes it to over�low its banks. A nearby town is �looded, causing thousands of dollars of damage to the businesses and homes located there.
A. What tort has Northern likely committed? Analyze the individual elements of the tort. B. Did Northern actually cause the damage to the �isherman? The bridge? The town? C. Is it foreseeable that carelessly tying up a ship would cause residents of a town to suffer harm? What element of the tort is involved here?
Case 3. Melissa works for Buy-Mart as a cashier. After a few incidents where her register receipts do not appear to match the cash in the drawer, Melissa is �ired by Brendan, a Buy-Mart manager. Melissa applies for a new job at Super Savings, another store. She does not list her previous experience at Buy-Mart, but the sales manager at Super recognizes her from shopping there. The Super manager calls Brendan at Buy-Mart to ask about Melissa. Brendan says, “She was a lousy employee, and what’s more, I think she’s a thief.” When Melissa learns about Brendan’s comments, she sues both Brendan and Buy-Mart for defamation, alleging that she didn’t get the Super job because of his comments.
A. Did Brendan make a false statement about Melissa? Was it published? B. Did Brendan’s remark harm Melissa’s reputation? Discuss. C. Can you think of a better way Brendan could have handled the situation?
Case 4. ABC Inc. manufactures of�ice chairs. Ryan buys one of the chairs for his new home of�ice. A week later, the chair collapses, and Ryan is injured. Ryan weighs approximately 175 pounds.
A. Should Ryan sue ABC for negligence or strict liability? Why? B. Would it make a difference to Ryan’s chances of winning his lawsuit if he weighed 400 pounds?
Case 5. Recently a number of professional football players have �iled lawsuits against the NFL, based on the players having suffered brain damage. The players allege that the NFL misrepresented the connection between concussions (caused by collisions during games) and brain injury, and that the NFL failed to take reasonable steps necessary to protect players from devastating brain injuries.
A. How would the players go about establishing negligence? B. Do you think assumption of the risk or contributory/comparative negligence would be a valid defense? Why or why not? C. Most NFL players also played high school and college football before coming to the pros. What element of the negligence lawsuit would this be relevant to?
Key Terms
Click on each key term to see the de�inition.
damages (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
The loss suffered by a plaintiff in a civil lawsuit; a monetary award made to compensate the plaintiff for such a loss.
fraud (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Intentional misrepresentation of a material fact, made to deceive another who must reasonably rely on the statement. Fraud is a tort, a number of different crimes, and a defense to breach of contract.
intentional torts (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Those torts that arise out of a voluntary act, including but not limited to assault, battery, false imprisonment, trespass, defamation, and invasion of privacy.
libel (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
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Written defamation.
malice (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Knowingly or recklessly making a false statement; an element of defamation in certain types of cases.
negligence (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
A tort that is actually and proximately caused by a defendant’s breach of his duty of care.
product liability (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Civil lawsuits involving defects in products, which may be based in tort or sales law.
slander (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Spoken or oral defamation.
strict liability (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
A category of tort case where the defendant is not at fault.
tort (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
A civil wrong, excluding breach of contract.
ultrahazardous activities (http://content.thuzelearning.com/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/books/AUBUS311.12.3/sections/front_matter/
Activities that cannot be performed with complete safety regardless of care, and are not commonly performed in the community. A basis for strict liability.
