Ch 8 Torts Flashcards
Intentional Torts and Business Torts
Chapter Introduction
tort: A violation of a duty imposed by the civil law
- intentional torts: Harm caused by a deliberate action
Type of Obligation
Contract
Tort
Criminal Law
How the obligation is created
The parties agree on a contract, which creates duties for both.
The civil law imposes duties of conduct on all persons.
The criminal law prohibits certain conduct.
How the obligation is enforced
Suit by plaintiff
Suit by plaintiff
Prosecution by government
Possible result
Money damages for plaintiff
Money damages for plaintiff
Punishment for defendant, including prison and/or fine
Example
Raul contracts to sell Deirdre 5,000 pairs of sneakers at $50 per pair, but fails to deliver them. Deirdre buys the sneakers elsewhere for $60 per pair and receives $50,000, her extra expense.
A newspaper falsely accuses a private citizen of being an alcoholic. The plaintiff sues and wins money damages to compensate for her injured reputation.
Leo steals Kelly’s car. The government prosecutes Leo for grand theft, and the judge sentences him to two years in prison. Kelly gets nothing.
Intentional Torts
8-1a
Defamation
(Privilege)
- libel: Written defamation
- slander: Oral defamation
The elements in a defamation case are:
1.Defamatory statement. This is a factual statement that is likely to harm another person’s reputation. Because opinions are not factual, they do not generally count as defamatory statements
2.Falsity. The statement must be false. Felice, the website’s author, was ultimately successful in his defense because he proved that Vogel did in fact fail to pay child support and Grannis had filed for bankruptcy. Making a true statement, no matter how mean, is not defamation.
3.Communicated. ** The statement must be communicated to at least one person other than the plaintiff. It stands to reason: If no one else receives the defamatory message, there is no harm done.
4.Injury**. The plaintiff must show some injury, unless the case involves false statements about sexual behavior, crimes, contagious diseases, and professional abilities.
- slander per se: When oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject’s reputation.
- libel per se: When written statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject’s reputation.
-The rule from the New York Times case is that a public official can win a defamation case only by proving the defendant’s actual malice, that is, that the defendant knew the statement was false or acted with reckless disregard of the truth.
[Privilege]
* Absolute privilege: A witness testifying in a court or legislature may never be sued for defamation.
False Imprisonment
False imprisonment: The intentional restraint of another person without reasonable cause and without consent.
-Generally, a store may detain a customer or worker for alleged shoplifting provided there is a reasonable basis for the suspicion and the detention is done reasonably.
Intentional Infliction of Emotional Distress
intentional infliction of emotional distress: An intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm.
=: Should we risk subjecting our readers to emotional distress to teach them about the tort? Because it is essential for you to understand the type of behavior considered “outrageous” in IIED cases, we included the disturbing details.
Turley v. ISG Lackawanna, Inc.
774 F.3d 140 United States Court of Appeals for the Second Circuit, 2014
Battery and Assault
Battery: An intentional touching of another person in a way that is harmful or offensive.
Assault: An act that makes a person reasonably fear an imminent battery
Exam Strategy
Question: Mark is furious because his girlfriend, Denise, just told him she is leaving him. He never saw it coming. On the sidewalk, he picks up a rock and hurls it at Denise’s head. She does see it coming, and she ducks. The rock misses Denise but hits Terrance (who never saw it coming) in the back of his head. Denise and Terrance both sue Mark for assault and for battery. Outcomes?
Strategy: Separate the two plaintiffs. What injury did Denise suffer? She saw a rock flying at her and thought she would be struck. Now recall the elements of the two torts. Battery is an intentional touching that is offensive. Assault is an act that makes another person fear an imminent battery.
Trespass, Conversion, and Fraud
(Trespass, Conversion, )
[Trespass]
* Trespass: Intentionally entering land that belongs to someone else or remaining on the land after being asked to leave.
[Conversion]
* Conversion: Taking or using someone’s personal property without consent.
[Fraud]
* Fraud: Injuring another person by deliberate deception.
Damages
8-2a
Compensatory Damages
compensatory damages: Money intended to restore a plaintiff to the position he was in before the injury.
- single recovery principle: Requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses.
Punitive Damages
Punitive damages: Damages that are intended to punish the defendant for conduct that is extreme and outrageous
Boeken v. Philip Morris, Incorporated
127 Cal. App.4th 1640 California Court of Appeals, 2005
Business Torts
In this section, we look at several intentional torts that occur almost exclusively in a commercial setting: interference with a contract, interference with a prospective advantage, and false advertising. Note that several other important business torts are discussed elsewhere in the book: privacy violations (in Chapter 10), consumer protection (in Chapter 39), and infringement of intellectual property rights (in Chapter 41).
Tortious Interference with Business Relations
(Tortious Interference with a Contract, Tortious Interference with a Prospective Advantage, )
[Tortious Interference with a Contract]
-Tortious interference with a contract
An intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff
=following four elements:
1.There was a contract between the plaintiff and a third party;
2.The defendant knew of the contract;
3.The defendant improperly induced the third party to breach the contract or made performance of the contract impossible; and
4.There was injury to the plaintiff.
To establish justification, a defendant must show that:
* It was acting to protect an existing economic interest, such as its own contract with the third party;
* It was acting in the public interest, for example, by reporting to a government agency that a corporation was overbilling for government services; or
* The existing contract could be terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long-term assurances because the other side could end it at any time.
[Tortious Interference with a Prospective Advantage]
* Tortious interference with a prospective advantage: Malicious interference with a developing economic relationship.
-A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.
False Advertising
In order to win a case, a plaintiff must prove four elements:
1.The defendants made false or misleading fact statements about its products or those of a competitor
2.The statements were material and likely to influence purchasing decisions
3.The defendants used the statements in commercial advertising or promotion.
4.The statements created the likelihood of harm
Molson Coors Beverage Company USA LLC v. Anheuser-Busch Companies, LLC
957 F.3d 837 United States Court of Appeals, Seventh Circuit, 2020
Chapter Conclusion
-This chapter has been a potpourri of misdeeds, a bubbling cauldron of conduct best avoided.
