The Law of Torts
It makes no difference whether a good man has defrauded a bad man or a bad
man defrauded a good man, or whether a good or bad man has committed adul-
tery: the law can look only to the amount of damage done.
If America is—as some say—“a most litigious society,” it is because Americans
so often seek remedies in court instead of seeking mediation or yielding to soci-
etal pressures to compromise, as happens in so many traditional cultures. Chap-
ter 12 considers our obligation to “do no harm” to others and discusses the con-
sequences of breaching that legal obligation. Civil wrongs—known as “torts” in
the law—result from intentional acts, unintentional accidents, and from failure
to act when one is legally obligated to do something. The chapter compares the
“no harm–no foul” rule of tort law to the stricter standards of criminal law.
The student who has carefully read this chapter should be prepared to an-
swer these questions:
■ What is a tort, and are torts crimes?
■ What is negligence?
■ What is strict liability?
■ What are the most common intentional torts?
■ What is the difference between actual and constructive fraud?
■ Can one sue for intentional infliction of emotional distress?
■ What is a nuisance?
■ Can one sue for the invasion of privacy?
■ What is malicious prosecution?
■ How are new “causes of action” discovered by the courts?
■ Does a cause of action survive the death of either the tortfeasor or the
■ Can one sue the government?
2 CHAPTER 12
The city hall chambers were crowded with a standing-room-only audience. Some of
the spectators were holding placards bearing slogans such as “Save Our Neighbor-
hood,” “No More Development!!” and “STOP Corporate Greed.” The seven council
members were listening with varying expressions of boredom or annoyance as an
elderly woman spoke into the microphone. “We know that several of you have ac-
cepted large campaign contributions from this development company, and we will
hold you accountable if you let that money sway your vote against the people,” she
concluded. She returned to her seat amid thunderous applause.
The next speaker was to be Jonathan Merrill. Until six weeks ago, Jonathan
had never been politically active and usually tried to avoid controversy. But
when he learned that the city council was expected to approve development of
a new shopping mall adjacent to his old, middle-class neighborhood, he became
incensed. The proposed mall was to be located on a large parcel of land
presently zoned for public parks. The proposed development had already re-
ceived the city planning commission’s recommendation for a zoning change,
and the city council was deliberating approval of that change as well as final ap-
proval of the environmental impact reports.
Jonathan began circulating a neighborhood petition opposing the shopping
mall development. Neighborhood meetings were held in his living room until the
crowd became too large. The meetings were then moved to the multipurpose
room in the local elementary school. Jonathan found himself to be a somewhat
reluctant, de facto leader and chief spokesperson for the loosely organized Citi-
zens for Preserving North Park.
As he approached the microphone, Jonathan fingered a few cards on which
he had scrawled talking points for his statement to the city council. “The Mid-
land Mall Corporation has deceived this council,” he began. “Their figures for ve-
hicular traffic and air pollution are grossly understated, and they know it. Be-
yond that, they outright lied to us when our citizens’ group met with their top
management and architects to ask them to scale back this proposal.” Someone
in the crowd called out, “You tell ’em, Johnnie!” Jonathan was discovering a la-
tent talent for making a stem-winder speech, and the cheering crowd was on its
feet when he concluded with these words: “There is no place for a Midland Mall
in our neighborhood, and if you approve this proposal, we will recall every sin-
gle council member who votes for it! ”
Ten days later, Jonathan was approached by a stranger as he walked toward
his car in his employer’s parking lot. The stranger asked, “Are you Jonathan Mer-
rill?” When Jonathan nodded, the stranger handed him a thick document. Un-
folding the official-looking document, Jonathan saw that it was entitled “COM-
PLAINT FOR LIBEL, SLANDER, AND INTERFERENCE WITH PROSPECTIVE
ECONOMIC ADVANTAGE.” The plaintiff was “MIDLAND MALL CORPORATION, a
Delaware Corporation.” Named as defendants were “CITIZENS FOR PRESERVING
NORTH PARK, an unincorporated association, JONATHAN MERRILL, an individ-
ual, and DOES 1 through 100.” Folded inside the complaint was a summons giv-
ing Jonathan 30 days within which to respond to the lawsuit. ■
Jonathan is being sued. He and his wife have few assets, other than their
A SLAPP suit is a lawsuit filed
home, and little in savings. The Citizens for Preserving North Park has less than
with the intent of silencing $1,000 in its bank account. It is unlikely that Midland Mall Corporation has any
citizen complaints before a interest in the negligible assets of these defendants. In reality, Midland Mall
government agency. SLAPP doesn’t want their money—it simply wants their silence.
stands for “strategic litigation Midland Mall’s lawsuit against Jonathan and the neighborhood citizens
against public participation.” group is known as a SLAPP suit. SLAPP is an acronym for “strategic litigation
The Law of Torts 3
against public participation.” Corporations sometimes file SLAPP suits against
individuals who appear before government agencies to challenge their business
activities. In the opening scenario, the developer has filed a SLAPP suit against
citizens who have appeared before a city council to oppose a proposed devel-
opment. The hapless defendants will find themselves besieged with legal ma-
neuvers forcing them to pay substantial attorneys’ fees and go through consid-
erable emotional stress. Of course, Midland Mall will gladly drop the lawsuit if
Jonathan and the citizens’ group will sign an out-of-court settlement in which
they promise to cease all opposition to the proposed development.
The Midland Mall Corporation’s complaint alleges the tort of “interference
with prospective economic advantage,” a typical allegation in SLAPP lawsuits.
Yet, on the rare occasions when they actually go to trial, SLAPP suits are seldom
won by the corporate plaintiffs because the citizen defendants are usually pro-
tected by their First Amendment rights of petition and free speech. In fact, some
SLAPP defendants have won substantial money damages in “anti-SLAPP”
counter-suits for malicious prosecution. But the expense, stress, and inconven-
ience of litigation often forces SLAPP defendants to withdraw their objections to
the proposed business activity in order to get the troublesome lawsuit dropped.
TORTS: WRONGFUL ACTS
A tort is a civil wrong—some act or omission that violates our duty to avoid A tort is a civil wrong—a
harming others. It might be a public duty, such as our duty to drive safely and wrongful act or omission that
obey traffic laws. Or, it might be a private duty under the law, such as the duty harms another person.
of a trustee to a beneficiary. A tort is termed a “civil” wrong because it can oc-
cur without a corresponding criminal act. Although, as will be seen, some acts
are both crimes and torts, a criminal act is not an essential element for most
torts. But there must always be an injury to have a tort. The expression “no
harm–no foul” applies to the law of torts. The person who commits a tort is
called a tortfeasor. A tortfeasor is a person who
Wrongful acts or omissions that harm another person account for the commits a tort.
greatest number of lawsuits, by far, and personal injury cases account for
the great bulk of these lawsuits. A typical personal injury case involves an
automobile accident, and negligence is the most common allegation by the
plaintiff. But personal injury cases come in a variety of other forms as well:
slip-and-fall, medical malpractice, dog bite, injury caused by a defective
product, and assault and battery. On-the-job injuries are in a special cate-
gory handled under worker’s compensation law, and employees generally
cannot bring a tort action against their employer for job-related injuries or
Under the law, a personal injury can be defined much more broadly than A personal injury is damage to
just physical trauma. Libel and slander, malicious prosecution, false arrest, in- one’s person. In a narrow sense,
vasion of privacy, sexual harassment, and age discrimination are examples of it is physical or emotional
personal injuries that might leave no physical marks (although physical ail- trauma, but in a broader sense it
ments do often follow). A personal injury violates the person’s right to be left in can be any invasion of one’s
personal right to be left in
Although personal injury—especially physical injury—predominates in law-
suits alleging wrongful acts by others, a small number of tort cases do not in-
volve personal injury. These less frequent lawsuits might concern such things as
fraud, embezzlement, vandalism, theft of trade secrets, or unfair business
4 CHAPTER 12
INTENTIONAL AND A C C I D E N TA L
A tort can be either intentional or accidental. Assault, fraud, and arson are ex-
An intentional tort is a civil amples of intentional torts; the perpetrator of these tortious acts intends to
wrong intended by the harm his victim. In the law of torts, intent refers to the injury, not to the conduct
tortfeasor to harm another causing the injury. Therefore, the intentional tort of arson is distinguished from
person. The intent relates to the the negligent tort of reckless driving—even though either tort can result in
resulting harm, not to the act someone’s death from burns. The negligent driver might have intended to drive
that causes the harm.
carelessly, but unlike the arsonist, did not intend to cause property damage or
personal injury. Intentional and negligent torts are discussed in more detail later
in this chapter.
TORTS AND CRIMES
It is possible for the same act to be both a tort and a crime—as are the four ex-
amples mentioned in the preceding paragraph: assault, fraud, arson, and reckless
driving. But most tortious acts and omissions do not violate criminal laws. Slan-
der and medical malpractice are examples of noncriminal acts that are actionable
as torts. But statutes make some acts of negligence—such as the failure to main-
tain a hotel sprinkler system in good operating condition—criminal offenses, as
well. Note that the violation of law (having defective sprinklers) might be a crime
even if no injury results, but a tort does not occur until someone has been
harmed. It also is a criminal offense to operate automobiles with serious me-
chanical deficiencies—inoperative headlights or a suspension system with illegal
modifications, for example—but again, no tort exists until someone is harmed.
The law regarding assault provides an interesting illustration of several legal
An assault is an unlawful principles under the law of torts and also criminal law. By definition, assault is
attempt or credible threat to an unlawful attempt—or a credible threat—to physically injure another person.
physically injure another To constitute a tort, the aggressor must harm the victim either physically or
person. emotionally. Physical harm can be either a physical trauma—something a doc-
tor could diagnose as such—or simply offensive physical contact. The unwanted
Battery is unlawful and physical contact is known as a battery—whether physical injury results or not.
intentional physical contact that Because battery cannot be accidental, one cannot commit battery without also
produces trauma or offensive committing assault.
touching of another person. To harm the victim emotionally, but without physical contact, the aggressor
must appear to have the ability to injure her victim and must display sufficient
force (or threatening behavior) to provoke fear or apprehension in the victim.
Thus, the tort of assault requires either physical contact or the victim’s fear and
apprehension. In many jurisdictions, however, the crime of assault does not re-
quire that the victim actually be in fear or apprehension, so long as the behavior
of the assailant is threatening and she intends to harm the victim. Thus, an aver-
age person—without special skills in physical combat—who unwittingly takes a
swing at the world’s heavyweight boxing champion, but misses, nonetheless
commits a crime but probably not a tort—unless the champ is easily frightened.
The reason for this difference in criminal and tort law is found in the differ-
ent objectives underlying the law of torts and the law of crimes. The law of torts
is designed to compensate people for their actual injuries (including apprehen-
sion or fright) caused by the wrongful acts or omissions of others. If the victim
of an assault is neither struck nor even frightened, there might be no civil injury
requiring compensation. In criminal law, however, deterrence is the primary ob-
jective. For reasons of peace and public order, society has a strong interest in
discouraging even the unsuccessful assaults that fail to injure or frighten the in-
The Law of Torts 5
tended victims. The incompetence of the assailant and the fearlessness of the in-
tended victim are not relevant to the deterrent purpose of criminal law. The
same principle of deterrence underlies criminal penalties for violations of traffic
laws and building codes, even in the absence of actual injury to others.
The law regarding assault illustrates yet another principle of tort law: the
right to live in peace. Although the assailant might swing and miss, a frightened
victim has been deprived of her right to peace and security. Tort law recognizes
this right to be left alone, and it is an area of law that is developing rapidly. We
now see courts awarding damages and issuing injunctions against obsessive
persons who “stalk” and harass others who do not want their attentions. Some
jurisdictions now recognize the “intentional infliction of emotional distress” as
a separate cause of action in tort.
BREACH OF CONTRACT AND
T H E L AW O F T O R T S
A breach of contract is not, by itself, a tort—although in some circumstances
both a tort and a breach might result from the same act or omission. For exam-
ple, a shopkeeper who is in a dispute with his landlord could commit a tort, a
crime, and a breach of contract in one fell stroke by setting fire to the building.
The difference between a breach of contract and a tort is the source of the duty that
is violated. Torts result from violating the duties that are imposed by law upon
us all. A breach of contract results from violating duties created by a particular
contract. Whereas tort law imposes duties upon everyone, a contract imposes
duties only upon those persons who become willing parties to that contract.
Because contracts can be made so casually, without even a spoken or writ-
ten word, someone might innocently and in good faith deny that he has made a
contract at all. Does a “good faith” denial demonstrate that a mutual intent to
form a contract—that is, a “meeting of the minds”—never existed? If so, there is
no contract; and, if there is no contract, there can be no breach. However, a bad Bad faith is the conscious intent
faith denial that a contract exists is both a breach of the contract and a tort. to evade one’s legal or ethical
T H E L AW OF NEGLIGENT TORTS
The vehicle owner who allows her car’s brake pads to wear down to nothing has
committed a negligent tort if the faulty brakes cause an accident, even if some-
one else was driving the vehicle at the time. Although the vehicle owner might A negligent tort is the
have made a conscious decision to postpone repairing the brakes, she probably unintentional and avoidable
did not actually intend that the vehicle be driven unsafely. She certainly did not harming of another person when
a duty exists to avoid or prevent
intend that an accident result. This is an example of a tort of negligence. If the
vehicle owner postponed the brake repairs with actual knowledge that the ve-
hicle would be unsafe, she has committed gross negligence. In all negligence, the
Negligence is the failure to use
tort lies in the failure to use the necessary care in doing what is otherwise
reasonable care to avoid injury
permissible—owning and operating a car, for example. Most traffic accidents in- to others.
volve negligent torts.
The example of the postponed brake repairs illustrates a potential tort of Gross negligence is more than
omission—that is, the failure to do what the owner had a duty to do. The earlier carelessness; it is the intentional
example of a hotel sprinkler system not being properly maintained is a similar and callous disregard for the
tort of omission. Recall, however, that injury must result for either omission to injury that the tortfeasor’s act or
constitute a tort. Otherwise, these examples are simply violations of the motor omission is likely to cause to
vehicle and building codes, respectively. other persons.
6 CHAPTER 12
THE DUTY OF CARE
The duty of care is the Negligence law is based upon the idea that every person owes a duty of care to
affirmative obligation to avoid others who might be affected by his conduct. In some situations, the duty of care
negligent conduct that might requires us to refrain from doing something: firing a pistol into the sky to cele-
result in harm to others. brate July 4th, for example. In other circumstances, the duty requires us to take
positive action: reporting our pet animal to public authorities or a licensed vet-
erinarian if it displays obvious symptoms of rabies. As explained in Chapter 3, a
duty requiring us to take positive action at our own initiative is known as an af-
Our general duty of care is found mostly in the common law, but some specific
duties are imposed by statute. For example, most states have a statute that re-
quires that swimming pools be fenced so that children will not fall in. Some juris-
dictions have statutes that impose a duty to keep firearms and ammunition in sep-
arate locations in a home. A statutory duty is not necessarily greater than a
common law duty, but it might be easier to establish that the statutory duty exists.
ESTABLISHING A BREACH OF THE DUTY OF CARE
Negligence is the violation of our duty of care. To be a tort, that violation must be
the cause of someone’s injury or loss. The tort of negligence has four elements:
■ a duty of care
■ a violation of that duty
■ a cause-and-effect relationship between the violation of that duty and
some injury to another person or to the property of another
■ actual damage that can be compensated
The greatest difficulty in negligence litigation is often defining the duty owed
by the defendant to the plaintiff and showing an actual violation of that duty. A
duty to the general public does not depend upon any particular relationship: If
we accidentally run down a pedestrian in a crosswalk, it makes no difference un-
der the law whether he is our employee or a stranger. Our relationship to that
victim would be significant only if it presented a motive for intentional injury.
There are many duties that do arise from particular relationships. Teachers
have duties to their students that they do not have toward strangers: an obliga-
tion to report evidence of possible child abuse, for example. Bus drivers and
ship captains, medical doctors and accountants, employers and partners, bar-
tenders and butchers, all have special duties that derive from their relationships
with particular persons: passengers, clients, employees, partners, and cus-
tomers. Some of these relationships are unique in that the duty of care is ele-
vated to that of a fiduciary. Bartenders and butchers, however, owe particular
duties to their patrons even though they are not in a fiduciary relationship.
The bartender offers an example of a special duty to the general public that
arises from one’s occupation or business: The bartender might be liable to
strangers if she continues to serve an intoxicated patron who later causes a traf-
fic accident. Some states have particular statutes imposing that liability (“dram
shop acts”), but the courts of other jurisdictions have found that liability to al-
ready exist under common law. The same principle can apply to other profes-
sions: A garage mechanic might be liable under common law for injuries to
strangers that result from defective repairs to an automobile brake system.
In the latter examples, the duty to the general public—as opposed to a duty
strictly to the patron—is associated with a particular occupation or business.
The duty might be heightened by the professional experience and expertise of
the bartender and the garage mechanic. But what about the duty of a social host
The Law of Torts 7
serving drinks to his cocktail party guests or an amateur mechanic who fixes the
neighbor’s car’s brakes for free?
Depending upon state law, the social host might have a liability similar to
that of the bartender—lessened perhaps by his less extensive experience in rec-
ognizing the signs of intoxication. The amateur mechanic might be in a more dif-
ficult situation because he has assumed a task—fixing braking systems—that is
inherently technical and, in every instance, requires expertise. The social host
does not need to be concerned that each drink he serves might cause an acci-
dent, but the amateur mechanic must realize that every brake job offers the op-
portunity for disaster.
The general rule is that a person owes a duty of care to every person who
foreseeably could be injured by his negligence. Determining which injuries are
foreseeable, and which are not, can be a daunting task, but it is a question of fact
for the jury to decide. The rule followed in a minority of the states is that a per-
son owes the duty of care to everyone who is actually injured by his negligence.
That rule makes the duty of care universal to all humankind because it is im-
possible to foresee every injury that could result from our negligence.
The Standard of “Due Care”
Everyone has a duty to act as a reasonably prudent person would act under the
same or similar circumstances. That standard of care is known as due care. It is Due care is the degree of
a question of fact for the jury or judge to determine whether someone’s conduct prudence a reasonable person is
in particular circumstances was reasonably prudent. Conduct that violates a expected to exercise so as to
statute (e.g., reckless driving) creates a presumption of negligence. The latter avoid harm to others. It is the
conduct is known as negligence per se (or “automatic negligence”). standard for measuring one’s
duty of care under any given
Because circumstances influence the degree of care owed, it can range from
minimal to extraordinary. If the situation is fraught with risk to others—a bungee
cord jumping business or sky diving school, for example—a greater degree of
Negligence per se is dangerous
care is owed. Disregarding for a moment the understandable view, held by some,
conduct that is prohibited by
that almost any adult on a skateboard is acting with gross negligence—at least statute. In establishing
to his own physical jeopardy—he is not required to exercise the same degree of negligence, statutory
care toward pedestrians that he would be required to use if he were driving a car. prohibitions make it
This is because the potential for death and injury to pedestrians is much less in unnecessary to show that a
collisions with skateboarders. reasonable person would not
Any special training and expertise that one has can increase the degree of engage in the same conduct
care owed. Someone who claims to be an expert or professional will be held to under the circumstances.
the higher standard of skill and expertise usually possessed by such persons,
even though the tortfeasor is not, in fact, a person with such skill or expertise.
He cannot use his dishonesty and actual lack of expertise to escape the greater
liability because those injured by his conduct might have relied upon his false
claims of expertise and were harmed by his deception.
A trained beach lifeguard might be held liable for extraordinary injuries in-
curred by a victim during a rescue—for example, a skull fracture resulting from
a collision with rocks. An untrained bystander, however, would not have been li-
able for those same injuries had he attempted the rescue. One reason for this dif-
ference is that the untrained bystander—even an expert swimmer—might be un-
The Good Samaritan doctrine
aware of the additional danger occasioned by ocean currents or waves along his
shields from liability a bystander
chosen rescue route. The trained lifeguard should be aware of the special risks who voluntarily comes to the aid
posed by surf and rocks and should be better able to avoid or mitigate those of a person in danger of life or
dangers. Under the common law, the Good Samaritan doctrine shields the in- limb unless that volunteer
tervening bystander from liability unless he acts with reckless disregard for the substantially worsens the
victim and actually increases the danger to that victim. Most states have en- victim’s situation by some
acted statutes incorporating this doctrine. reckless action.
8 CHAPTER 12
Medical personnel are in a similar position, in that they are expected under
the law to use the skill of a person with their level of training and expertise. Be-
cause licensed medical doctors are more highly trained than are registered
nurses, the doctor is held to a higher standard of care than is the nurse. Some
states have enacted special “Medical Good Samaritan” statutes to limit the lia-
bility of qualified medical personnel who come forward as volunteers to assist
in emergency situations that arise outside of the scope of their employment
(e.g., automobile accidents or in-flight emergencies).
NEGLIGENCE AS THE CAUSE OF AN INJURY
The third required element of negligence is causation. Once the legal duty owed
to the plaintiff has been established and the court has determined that the de-
fendant violated that duty by some act or omission, the court must next decide
whether that negligence was the proximate cause of the plaintiff’s injury. It is
entirely possible for a person to be negligent, yet not be the cause of a partic-
ular injury. Under the law of negligence, there can be no recovery unless the de-
fendant’s negligence is shown to be the cause of the plaintiff’s injury.
The proximate cause, or legal A proximate cause is the legal cause of the injury, as opposed to some other
cause, of an injury is the event intervening event. (In some jurisdictions, the term “proximate cause” is losing
that produces an injury that, favor, and “legal cause,” is used instead.) An intervening force is an independ-
absent that event, would not ent cause that interrupts the natural cause-and-effect chain of events that fol-
have occurred. To be the lowed from the defendant’s wrongful act. Proximate cause can be one of the
proximate cause, the effect of
most difficult concepts in tort law, but two illustrative examples should convey
that event must not have been
unforeseeably altered by some
the basic idea of this principle.
other intervening force or event. At an amateur baseball game, dozens of spectators crowd along the base-
lines. Ignoring this dangerous situation, the pitcher delivers his fastball and
An intervening force is an the batter’s line drive hits a spectator in the head. The pitcher might later
unforeseen event that alters the argue that the batter’s action was the only proximate cause of the injury—if
effect of the defendant’s action, the batter had not swung, no one would have been injured. But the batter’s
thereby resulting in the decision to swing was provoked or induced by the pitcher’s fastball—both
plaintiff’s injury. players were playing a game of baseball. In fact, under the rules of baseball,
the pitcher’s fastball was tantamount to a challenge for the batter to hit the
ball. The batter’s swing is not an intervening force in the legal sense because
it was clearly foreseeable to the pitcher. In this situation, the pitcher and bat-
ter are acting in concert to create the proximate cause of the bystander’s in-
jury. Under the facts of this situation, the actions of both players (i.e., the
pitch and the swing) were indispensable elements to create the injury.
Although the batter’s swing was an intervening force under the laws of
physics, it was not an intervening force under the law of torts. The batter’s ac-
tion and the potential injury were both clearly foreseeable to the pitcher, and the
batter did not interrupt the natural cause-and-effect chain of events. Both the
pitcher and the batter (and perhaps the volunteer umpire, if any) might be liable
for negligently proceeding with the game under those dangerous conditions.
The concept of proximate or legal cause, then, does not always require that
there be a sole cause for the injury. The most common example of multiple
causes is an automobile accident in which the negligent conduct of several driv-
ers contributes to the accident and the resulting injuries (for example, two driv-
ers colliding when they simultaneously attempt unsafe lane changes). If the neg-
ligence of a particular driver does not contribute directly to the accident, is that
driver’s negligence nonetheless a legal cause? Consider the following case.
Two intoxicated friends leave a bar at midnight, both in the same car. Al-
though drunk, the driver is able to maintain his lane and remains below the
speed limit. In fact, other than driving while in his state of intoxication, he does
not violate any traffic law. As his car is proceeding with the green light through
The Law of Torts 9
a blind intersection, a truck runs the red light and broadsides the car, injuring
the intoxicated driver and his passenger. Although he was illegally driving under
the influence, the first driver’s wrongful act was not the proximate cause of his
passenger’s injuries. There was an unforeseen independent, intervening cause:
the wrongful act of the truck driver who ran the red light.
In analyzing such cases, courts often use the “but for” test: Would the acci-
dent not have happened “but for” the first driver’s decision to drive while intox-
icated? Clearly, our case fails the “but for” test: The first driver’s intoxication did
not cause the accident. It would have occurred even if he had been sober but
had driven the same route at the same time and at the same lawful speed. The
truck driver’s negligent and illegal act was not a foreseeable and natural event
arising from the first driver’s decision to drive while intoxicated. Of course, the
intoxicated driver is subject to criminal penalties even in the absence of any tort
liability. Unfortunately, questions of proximate or legal cause are not often so
distinct as they are in the preceding examples.
RESPONSIBILITY FOR THE ACTS
OF AGENTS AND EMPLOYEES
The doctrine of respondeat superior sometimes makes employers and The doctrine of respondeat
principals responsible—and legally liable—for the wrongful actions and omis- superior holds one responsible
sions of their employees and agents, respectively. That is because employers for the tortious actions of his
and principals have a duty to control the actions of employees and agents so agents or employees who are
that others will not be injured. Because employers often have insurance and acting on his behalf.
much greater assets than does an employee, the doctrine of respondeat superior
has encouraged the filing of lawsuits that otherwise might not be pursued A principal is one who
authorizes another to act on his
against the employee alone.
behalf (i.e., to serve as his
However, the doctrine of respondeat superior is limited to events that occur
in the course of the tortfeasor’s employment or agency. This limitation has led
to numerous lawsuits in which the critical issue has been whether an employee’s
An agent is one who is
temporary detour for personal business, while driving from point A to point B authorized to act on behalf of
on his employer’s business, took him far enough and long enough from the another (the principal).
shorter, straight-line route so that he was no longer “acting in the course of his
employment” when he negligently caused an auto accident during the detour. Agency is the legal relationship
between a principal and her
agent. It is also the scope of
Ethics Watch authority granted to the agent
The legal relationship between employer and employee is very similar to that between by the principal.
principal and agent. When the legal assistant is performing his usual duties and re-
sponsibilities on behalf of the supervising attorney, that attorney can be liable for any
tortious conduct by the legal assistant. Potentially, a client could be liable also if the
tortious conduct is directly related to the attorney’s representation of that client—for
example, making a libelous statement about an opposing party in correspondence
written by the legal assistant to a third party.
STRICT LIABILITY IN T O R T L AW
The doctrine of strict liability
Most torts are either intentional or the result of negligence. However, there is holds one liable for certain
one class of torts that does not require either intent or negligence. These are types of unintentional injuries
the torts of strict liability. Strict liability is a doctrine that imposes liability for even if no negligence is shown.
10 CHAPTER 12
personal injury or property damage even though the defendant was not negli-
gent and did not intend to harm anyone. It is termed “strict” because the de-
fendant cannot escape liability by showing that he used reasonable care and
prudence in his conduct. Because this doctrine is so severe, its application is
limited to particular types of activity.
Traditionally, strict liability was limited to inherently dangerous activities:
using dynamite, keeping wild animals or vicious domesticated animals, using
poisonous gases, and so forth. In recent times, however, strict liability has been
imposed by statute on toxic waste contamination (e.g., leakage from under-
ground gasoline storage tanks) and under common law to the manufacturing
Under the doctrine of strict and sale of all consumer products. The latter is known as strict products liability.
products liability, In recent decades, strict products liability has become an important area of liti-
manufacturers are liable for any gation law. Manufacturers and retailers have faced enormous numbers of law-
injuries caused by defective suits that claim a defective product caused personal injury.
products, without the The unique feature of strict products liability is that the plaintiff need not
requirement to show negligence
prove that the manufacturer or seller is at fault (by reason of negligence or breach
in the design or manufacturing
processes. The liability extends
of warranty, for example), but only that:
to bystanders as well as to ■ the product is defective
subsequent purchasers of used
■ the defect caused the plaintiff’s injury
The legal theory is that strict liability compensates the injured person, encour-
ages product safety, and spreads the financial burdens of product improvement
and compensation for the victim across the marketplace through higher prices
for that product. Strict liability also recognizes the great difficulty and expense
in proving negligence of the manufacturer in the design or manufacture of a
product. The imposition of strict liability has also caused the insurance indus-
try to encourage “defensive engineering” by manufacturers, so that injuries—
and therefore liability exposure—will be reduced.
STRICT LIABILITY AND THE IMPLIED
WARRANTY OF FITNESS
Prior to strict products liability, injured consumers brought actions against a
In the commercial sale of goods, manufacturer for negligence or for breach of implied warranty of “fitness for a
there is an implied warranty particular purpose.” Under the doctrine of implied warranty, every product is
that the goods are fit for the presumed to be fit for the uses for which consumers are known to purchase it.
purposes for which they are If the product is not fit for those uses, the manufacturer or seller has breached
commonly purchased. The that implied warranty. The warranty is not limited to the purposes for which the
warranty (i.e., the seller’s
product is marketed. If the manufacturer or seller is aware that the product is
guarantee) is implied by
operation of law, even if it is
commonly purchased for other purposes, it must be fit for those purposes as
not expressed in the words well. Thus, a bicycle marketed for riding on paved streets must be fit also for mo-
of the contract. tocross competition if the manufacturer or seller knows that it commonly is pur-
chased for that use as well.
Unfortunately, the implied warranty is found in the contract among the man-
ufacturer, the retailer, and the consumer. It generally protects only the
purchaser—not bystanders nor any nonpurchasers who might use that product.
The manufacturer and seller also owe a duty under implied warranty only to the
original purchaser of a new product, not subsequent purchasers who buy it as a
In contrast, the doctrine of strict liability makes the manufacturer and seller
liable for injury even to bystanders and subsequent purchasers. The duty owed
does not arise from a particular contract with a particular customer, but from
the decision to place that product in the marketplace where, eventually, it might
endanger nonpurchasers as well as purchasers. Thus, passengers in automo-
The Law of Torts 11
biles and neighbors who borrow lawn mowers have standing to sue a manufac-
turer or seller under strict products liability if they are injured as a result of a de-
fect in that product. By contrast, under the doctrine of implied warranty, the pas-
sengers and neighbors would have no standing to sue.
ASSUMPTION OF RISK
A major issue in products liability litigation is the duty of the manufacturer and
seller to warn the consumer and other users of the product about the risks as-
sociated with that product. This issue arose in part because defendant manu-
facturers and retailers claimed that the user or purchaser had “assumed the
risk” by knowingly using a potentially dangerous product (e.g., an electric hedge
trimmer). Assumption of risk is an affirmative defense against liability based The decision by a person to
upon the principle that the person who agrees to risk a known injury should not engage in clearly dangerous
be able to recover damages when that foreseeable injury does, in fact, occur. The activities creates an assumption
assumption of risk defense is ineffective, however, if the manufacturer has in- of risk by that participant. He
tentionally or negligently introduced risks that a reasonable person cannot foresee. cannot recover from others for
the foreseeable injuries that
Plaintiffs have countered the assumption of risk defense by arguing that the
result from his participation. By
risk is not fully known to the ordinary user if the better informed seller or man- voluntarily participating, he
ufacturer has not adequately disclosed it. Other defenses to strict liability in- accepts (“assumes”) the usual
clude misuse of the product (e.g., using a hedge trimmer to shorten a picket risks of injury inherent in that
fence) and an unauthorized modification to the product that increases the risk activity.
of injury (e.g., removing a safety guard).
Until recently, tobacco manufacturers defeated every lawsuit based in strict
liability doctrine, often by successfully raising the defense of an assumption of
risk by the smoker. Ironically, that defense has been strengthened by the Sur-
geon General’s warning that federal law requires on each cigarette package and
in all tobacco advertising—the very federal law that the tobacco industry itself
fought furiously to defeat in Congress. Recent evidence suggests, however, that
the tobacco industry concealed from consumers and from Congress the indus-
try’s own research results that demonstrated that nicotine is addictive—a char-
acteristic that the tobacco industry had long denied. (See the Case in Point, “The
Tobacco Papers,” in Chapter 3.) If that allegation proves to be true, the assump-
tion of risk defense might be overcome by the industry’s failure to disclose
known addictive properties of tobacco.
One unintended result of strict products liability has been the near extinc-
tion of light aircraft production in the United States. Piper and Cessna, for ex-
ample, both suspended production of small aircraft for the American general
aviation market due to the enormous costs of insurance and litigation defense.
It is ironic that both manufacturers had a large backlog of unfilled orders when
they stopped production. Critics of strict products liability argue that countless
other, less obvious economic harms have resulted from the burdens imposed on
business by that doctrine. Defenders of the doctrine argue that countless con-
sumer products have been made far safer by the economic incentive to avoid
lawsuits for strict liability—thereby preventing countless injuries and deaths.
Louis Fridel is a paralegal specializing in aviation accident litigation. His Atlanta
law firm represents the manufacturers of the aircraft or aircraft parts that are al-
leged to be the cause of personal injuries or deaths. In most such lawsuits, the
12 CHAPTER 12
plaintiff alleges that the aircraft or part in question was defective and that the
defect resulted in the plaintiff’s injuries. The defect can be in the design of the
product or it can be a result of defective manufacture or assembly.
Louis began his litigation practice in a personal injury firm where he worked
on a number of automobile accident cases, including some involving tread sep-
aration of Firestone tires mounted on Ford Explorer SUVs. “We represented the
injured consumers, or their surviving family members,” Louis explains. “I spent
a lot of time in the late 1990s trying to track down other cases in which tread sep-
aration led to rollovers of the SUV. We began to develop data that suggested the
original equipment tires might be an improper match for the SUVs on which they
were mounted. That’s when I developed a real interest in product liability law.”
Louis joined his present firm when he moved to Georgia. “I had assumed that
I would join another plaintiff’s PI firm here, but my current employer offered a bet-
ter salary and benefits package. Actually, I haven’t found it that difficult to transi-
tion from working for plaintiffs to working for the defendant manufacturer. I’ve
seen the same kind of litigation from both sides of the fence, now. It’s interesting—
I used to think that manufacturers were rather callous and irresponsible. Now I see
that some consumers are unreasonable as well. Perhaps it is the natural result of
our adversarial litigation process. It causes both plaintiff and defendant to raise
allegations and defenses that are, at times, far-fetched.” ■
COMMON INTENTIONAL TORTS
Intentional and negligent torts are distinguished from each other by the tortfea-
sor’s state of mind. In a negligent tort, it does not matter what the offender in-
tended to do—the result of his negligent conduct is what counts. An intentional
tort, on the other hand, requires that the tortfeasor actually intended to harm
the plaintiff or his property.
Many lawsuits over intentional torts involve an assault. Other intentional
torts that frequently find their way into a courtroom include libel, slander, fraud,
and infliction of emotional distress. Actions for intentional breach of contract
are also common, but a breach alone is not a tort because the duty violated is
created by the contract and not by common law or statute.
DEFAMATION OF CHARACTER
“Defamation” was not even mentioned in the preceding paragraph, but the two
general forms of defamation were mentioned: libel and slander. The essence of
Defamation of character occurs defamation of character is an intentional false statement that tends to injure a
when one makes false person’s reputation. Libel is defamation by recorded sound or picture, painting,
statements that damage the printed word, drawing, sculpture, or effigy. Slander is oral defamation. The key
reputation of another person. difference is that slander is an instantaneous occurrence, gone in the moment
after it has been uttered, while libelous publications can remain for future gen-
Libel is the publication of erations to read, view, or hear.
defamatory statements in some The elements of defamation are:
enduring form (e.g., print, film,
recording, drawing, etc.). ■ the defendant made a false statement about the plaintiff
■ the statement was “published”—communicated to others
Slander is the oral publication ■ the plaintiff’s identity was recognizable from the statement
of defamatory statements
without putting them into some ■ the statement, if believed, would damage the plaintiff’s reputation
enduring form. It is not necessary to show that anyone actually believed the defamatory
statement because that would require the plaintiff to suffer a second humiliation
The Law of Torts 13
when those who believed the false statement were called to testify. Additionally,
belief is not required because it would be unjust to permit disgraceful lies to be
circulated about a good person on the basis that—because of the plaintiff’s good
character—no one would believe such lies. The result would protect from
defamation only those persons of questionable character about whom false
statements are readily believed. Finally, witnesses who actually believed the
false statements might be reluctant to acknowledge their gullibility. The jury (or
the judge, in a trial by court) may evaluate the damaging impact that the state-
ment would have if believed. If a statement has alternative interpretations, it is
only necessary that one reasonable interpretation of that statement would de-
fame the plaintiff.
Defenses to Defamation
Truth is an absolute defense against a suit for defamation. It is not necessary
that a statement be true in every detail, so long as the statement is both gener-
ally true and is true in its assertions about all material facts. Thus, the following
statement probably would not be defamatory if the italicized portions were true:
“The alleged child molester had been a resident of the North Park area and a
scout leader for some years. He was previously convicted of child molestation be-
fore coming to this city.”
However, it could be argued that a false statement that the accused had been a
scout leader, when made in connection with a true report about the current
charge against him, implies a breach of that special trust placed in adult leaders
of young people, thereby unjustly exacerbating the damage to his reputation re-
sulting from the criminal charges against him.
Although truth would be an absolute defense for the accused defamer, the
defamer’s own good faith belief that the statement is true might not be a suffi-
cient defense if the statement is actually false. The reason is that the person de-
famed has been harmed (or at least exposed to potential harm) in spite of the
defamer’s good intentions. Thus, defamation can be a negligent tort in some cir-
cumstances. The innocence of the defamer’s intention might become an issue in
determining the appropriate damages to be awarded to the plaintiff.
Defamation and the News Media
The news media face special problems with regard to defamation. The media’s ac-
knowledged responsibility is to inform the public of matters of general interest.
However, the news media can be liable if their false reports defame an individual,
even when the media are quoting or paraphrasing the statements of others. In the
latter situation, the media have a duty to avoid spreading libelous statements. In
the days of weekly newspapers and no electronic media, life was much slower
and editors had ample time to check their facts before publishing. Today, the me-
dia are under enormous pressure to beat the competition. In the age of Cable
News Network and satellite transmissions, the electronic media have a new
“deadline” every 10 minutes. One protection against liability is the common prac-
tice of reporting about the “reputed Mafia chief” and the “alleged bank robber.”
A landmark Supreme Court case, New York Times v. Sullivan, 376 U.S. 254
(1964), concerned false statements made in a full-page newspaper advertise-
ment. It was in Sullivan that the Supreme Court first applied the First Amend-
ment to the law of libel. The most obvious problems arise in the arena of politi-
cal debate and in what the U.S. Supreme Court has termed subjects of “general
public interest.” The potential “chilling effect” on the news media and political
partisans, if held strictly liable for false statements, could be very damaging to
14 CHAPTER 12
a democratic society. Because a free-ranging debate about political, philosophi-
cal, and artistic matters is so important to the public interest—and so closely re-
lated to the very purpose of the First Amendment—the Sullivan Court held that
public officials cannot recover damages for libel unless they can prove that their
In defamation law, actual malice defamers acted with actual malice. In this context, actual malice means that the
exists when the defendant defendant either knew that the statement was false, or that he made the state-
publishes the defamatory ment in “reckless disregard” for the truth. The latter standard creates what
statement with knowledge that it could be called a tort of “reckless defamation,” which combines intent to make a
is false or in reckless disregard damaging statement with negligence (i.e., the failure to check the facts before
of its possible falsity.
making that false statement).
The law of defamation is state law, but it inevitably creates a conflict with the
rights of free speech and press under the First Amendment, a matter of federal
law. Because of the constitutional implications, a number of defamation lawsuits
have reached the U.S. Supreme Court in recent decades, and the Court has laid
down a variety of limitations on the ability of plaintiffs to pursue defamation
suits. Public officials and other “public figures” are now deemed to have as-
sumed the risk of harsh criticism by virtue of having voluntarily entered into po-
litical careers, movie stardom, professional sports, or other venues of public no-
toriety. The Supreme Court has said that public figures cannot claim the right to
Practice Tip enjoy the benefits of their chosen pursuits without also accepting the hardships
The trial court in Gertz entered of that choice. In effect, the Supreme Court has adopted President Harry Tru-
a judgment NOV in the man’s famous adage: “If you can’t take the heat, get out of the kitchen.”
defendant publisher’s favor. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court refused
This is remarkable in this to apply the Sullivan standard of actual malice to cases in which private citizens
situation because the jury had are defamed. The Gertz case is an interesting one in several respects. The earlier
followed the court’s instruc- Sullivan decision had created, in effect, a limited “publisher’s immunity” from li-
tions on the law and awarded ability for libel so long as the defendant was publishing material about a public
damages based upon the official and the false statements were not published in “actual malice.” In later
court’s earlier finding that the cases, that limited immunity was extended to publications about “public fig-
defendant had committed libel ures” who do not hold public office. The Gertz Court reviewed these principles
per se under Illinois law. Then and made clear that they are a compromise between the rights of persons in-
the court changed its mind, jured by defamatory statements, on the one hand, and the First Amendment
deciding that the defendant rights of publishers, on the other. The Court stated that our protection against
enjoyed the “publisher’s defamation must yield somewhat, so that the communication media will not en-
immunity” established in New gage in excessive self-censorship out of their reluctance to risk liability for
York Times Co. v. Sullivan, defamation. The Court explicitly acknowledged in Gertz that this compromise
supra. In effect, the U.S. will leave some wrongfully defamed persons with no available remedy at law.
District Court belatedly decided In Gertz, the Supreme Court resolved the issue by refusing to apply the “ac-
that the case should never tual malice” standard of Sullivan to defamation of private individuals. But then,
have gone to the jury, and the in dicta, the Court went beyond that central issue to state its views about ap-
defendant’s pretrial motion for propriate damages in defamation cases. The Court stated that damage awards
summary judgment should must be limited to actual damages and may not include punitive damages
have been granted. against the defaming tortfeasor. Apparently, any damages in excess of these lim-
itations would be an unconstitutional infringement upon First Amendment
rights. As dicta, these statements have no value as precedent and are not bind-
ing upon the lower courts. They might, however, signal how the Supreme Court
Libel per se is a false statement
would rule if those questions are presented in a later case.
so egregious that it is
defamatory on its face, giving
The Gertz case was decided by a 5–4 vote, with several dissenting opinions
rise to a legal presumption that from both conservative and liberal justices. In the Court’s opinion (excerpt fol-
the plaintiff has been injured by lows), it refers to its prior decision in New York Times Co. v. Sullivan, supra, as
that statement and, therefore, “New York Times,” rather than as “Sullivan.” Perhaps this reflects the Court’s
actionable without proof of self-proclaimed, overriding concern for the First Amendment rights of the
actual injury. newspaper.
The Law of Torts 15
A CASE IN POINT
Gertz v. Robert Welch, Inc.
418 U.S. 323 (1974)
Mr. Justice POWELL delivered the opinion of the Court.
This Court has struggled for nearly a decade to define the proper accom-
modation between the law of defamation and the freedoms of speech and press
protected by the First Amendment. With this decision we return to that effort.
We granted certiorari to reconsider the extent of a publisher’s constitutional
privilege against liability for defamation of a private citizen. [Citation omitted.]
In 1968 a Chicago policeman named Nuccio shot and killed a youth named
Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately
obtained a conviction for murder in the second degree. The Nelson family re-
tained petitioner Elmer Gertz, a reputable attorney, to represent them in civil lit-
igation against Nuccio.
Respondent publishes American Opinion, a monthly outlet for the views of
the John Birch Society. Early in the 1960’s the magazine began to warn of a na-
tionwide conspiracy to discredit local law enforcement agencies and create in
their stead a national police force capable of supporting a Communist dictator-
ship. As part of the continuing effort to alert the public to this assumed danger,
the managing editor of American Opinion commissioned an article on the mur-
der trial of Officer Nuccio. For this purpose he engaged a regular contributor to
the magazine. In March 1969 respondent published the resulting article under the
title ‘FRAME-UP: Richard Nuccio And The War On Police.’ The article purports to
demonstrate that the testimony against Nuccio at his criminal trial was false and
that his prosecution was part of the Communist campaign against the police.
In his capacity as counsel for the Nelson family in the civil litigation, peti-
tioner attended the coroner’s inquest into the boy’s death and initiated actions
for damages, but he neither discussed Officer Nuccio with the press nor played
any part in the criminal proceeding. Notwithstanding petitioner’s remote con-
nection with the prosecution of Nuccio, respondent’s magazine portrayed him as
an architect of the ‘frame-up.’ According to the article, the police file on petitioner
took ‘a big, Irish cop to lift.’ The article stated that petitioner had been an official
of the ‘Marxist League for Industrial Democracy, originally known as the Inter-
collegiate Socialist Society, which has advocated the violent seizure of our gov-
ernment.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated that
Gertz had been an officer of the National Lawyers Guild, described as a Commu-
nist organization that ‘probably did more than any other outfit to plan the Com-
munist attack on the Chicago police during the 1968 Democratic Convention.’
These statements contained serious inaccuracies. The implication that peti-
tioner had a criminal record was false. Petitioner had been a member and officer
of the National Lawyers Guild some 15 years earlier, but there was no evidence
that he or that organization had taken any part in planning the 1968 demonstra-
tions in Chicago. There was also no basis for the charge that petitioner was a
‘Leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marx-
ist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’
The managing editor of American Opinion made no effort to verify or sub-
stantiate the charges against petitioner. Instead, he appended an editorial intro-
duction stating that the author had ‘conducted extensive research into the
16 CHAPTER 12
Richard Nuccio Case.’ And he included in the article a photograph of petitioner
and wrote the caption that appeared under it: ‘Elmer Gertz of Red Guild harasses
Nuccio.’ Respondent placed the issue of American Opinion containing the arti-
cle on sale at newsstands throughout the country and distributed reprints of the
article on the streets of Chicago.
Petitioner filed a diversity action for libel in the United States District Court
for the Northern District of Illinois. He claimed that the falsehoods published by
respondent injured his reputation as a lawyer and a citizen. . . .
After answering the complaint, respondent filed a pretrial motion for sum-
mary judgment, claiming a constitutional privilege against liability for defama-
tion. [Footnote omitted.] It asserted that petitioner was a public official or a pub-
lic figure and that the article concerned an issue of public interest and concern.
For these reasons, respondent argued, it was entitled to invoke the privilege
enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, ll L.Ed.2d
686 (1964). Under this rule respondent would escape liability unless petitioner
could prove publication of defamatory falsehood ‘with actual malice’—that is,
with knowledge that it was false or with reckless disregard of whether it was
false or not.’ [Citation omitted.] . . .
The District Court denied respondent’s motion for summary judgment in a
memorandum opinion of September 16, 1970. . . . After all the evidence had
been presented but before submission of the case to the jury, the court ruled
in effect that petitioner was neither a public official nor a public figure. It added
that, if he were, the resulting application of the New York Times standard
would require a directed verdict for respondent. Because some statements in
the article constituted libel per se under Illinois law, the court submitted the
case to the jury under instructions that withdrew from its consideration all is-
sues save the measure of damages. The jury awarded $50,000 to petitioner.
Following the jury verdict and on further reflection, the District Court con-
cluded that the New York Times standard should govern this case even though
petitioner was not a public official or public figure. It accepted respondent’s con-
tention that that privilege protected discussion of any public issue with regard
to the status of a person defamed therein. Accordingly, the court entered judg-
ment for respondent notwithstanding the jury’s verdict. [Footnote omitted.] . . .
Petitioner appealed to contest the applicability of the New York Times stan-
dard to this case. . . . [Footnotes omitted.] . . . After reviewing the record, the
Court of Appeals endorsed the District Court’s conclusion that petitioner had
failed to show by clear and convincing evidence that respondent had acted with
‘actual malice’ as defined by New York Times. . . . The Court of Appeals therefore
affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse.
The principal issue in this case is whether a newspaper or broadcaster that
publishes defamatory falsehoods about an individual who is neither a public of-
ficial nor a public figure may claim a constitutional privilege against liability for
the injury inflicted by those statements. . . .
. . . Under the First Amendment there is no such thing as a false idea. How-
ever pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas. [Footnote
omitted.] But there is no constitutional value in false statements of fact. Neither
the intentional lie nor the careless error materially advances society’s interest
in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times
Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721. . . .
The Law of Torts 17
Although the erroneous statement of fact is not worthy of constitutional pro-
tection, it is nevertheless inevitable in free debate. As James Madison pointed
out in the Report on the Virginia Resolutions of 1798: ‘Some degree of abuse is
inseparable from the proper use of every thing; and in no instance is this more
true than in that of the press.’ [Citation omitted.] And punishment of error runs
the risk of inducing a cautious and restrictive exercise of the constitutionally
guaranteed freedoms of speech and press. . . . Allowing the media to avoid lia-
bility only by proving the truth of all injurious statements does not accord ade-
quate protection to First Amendment liberties. . . .
. . . Yet absolute protection for the communications media requires a total
sacrifice of the competing value served by the law of defamation.
The legitimate state interest underlying the law of libel is the compensation
of individuals for the harm inflicted upon them by defamatory falsehood. We
would not lightly require the State to abandon this purpose. . . .
Some tension necessarily exists between the need for a vigorous and unin-
hibited press and the legitimate interest in redressing wrongful injury. . . . In our
continuing effort to define the proper accommodation between these competing
concerns, we have been especially anxious to assure to the freedoms of speech
and press that ‘breathing space’ essential to their fruitful exercise. [Citation
omitted.] To that end this Court has extended a measure of strategic protection
to defamatory falsehood.
The New York Times standard defines the level of constitutional protec-
tion appropriate to the context of defamation of a public person. Those who,
by reason of the notoriety of their achievements or the vigor and success with
which they seek the public’s attention, are properly classed as public figures
and those who hold government office may recover for injury to reputation
only on clear and convincing proof that the defamatory falsehood was made
with knowledge of its falsity or with reckless disregard for the truth. This stan-
dard administers an extremely powerful antidote to the inducement to media
self-censorship. . . . And it exacts a correspondingly high price from the vic-
tims of defamatory falsehood. Plainly many deserving plaintiffs, including
some intentionally subjected to injury, will be unable to surmount the barrier
of the New York Times test. . . . For the reasons stated below, we conclude that
the state interest in compensating injury to the reputation of private individu-
als requires that a different rule should obtain with respect to them.
. . . The first remedy of any victim of defamation is self-help—using available op-
portunities to contradict the lie or correct the error and thereby to minimize its ad-
verse impact on reputation. Public officials and public figures usually enjoy signifi-
cantly greater access to the channels of effective communication and hence have a
more realistic opportunity to counteract false statements than private individuals
normally enjoy. [Footnote omitted.] Private individuals are therefore more vulnera-
ble to injury, and the state interest in protecting them is correspondingly greater.
. . . An individual who decides to seek governmental office must accept cer-
tain necessary consequences of that involvement in public affairs. He runs the
risk of closer public scrutiny than might otherwise be the case. And society’s in-
terest in the officers of government is not strictly limited to the formal discharge
of official duties. . . .
Those classed as public figures stand in a similar position. . . . For the most
part those who attain this status have assumed roles of especial prominence in
the affairs of society. . . .
Even if the foregoing generalities do not obtain in every instance, the com-
munications media are entitled to act on the assumption that public officials and
public figures have voluntarily exposed themselves to increased risk of injury
18 CHAPTER 12
from defamatory falsehood concerning them. No such assumption is justified
with respect to a private individual. . . . He has relinquished no part of his inter-
est in the protection of his own good name, and consequently he has a more
compelling call on the courts for redress of injury inflicted by defamatory false-
hood. Thus, private individuals are not only more vulnerable to injury than pub-
lic officials and public figures; they are also more deserving of recovery.
For these reasons we conclude that the States should retain substantial lat-
itude in their efforts to enforce a legal remedy for defamatory falsehood injuri-
ous to the reputation of a private individual. . . .
We hold that, so long as they do not impose liability without fault, the States
may define for themselves the appropriate standard of liability for a publisher
or broadcaster of defamatory falsehood injurious to a private individual. [Foot-
note omitted.] . . .
. . . For the reasons stated below, we hold that the States may not permit re-
covery of presumed or punitive damages, at least when liability is not based on
a showing of the falsity or reckless disregard for the truth.
The common law of defamation is an oddity of tort law, for it allows re-
covery of purportedly compensatory damages without evidence of actual
loss. Under the traditional rules pertaining to actions for libel, the existence
of the injury is presumed from the fact of publication. Juries may award sub-
stantial sums as compensation for supposed damage to reputation without
any proof that such harm actually occurred. . . . Additionally, the doctrine of
presumed damages invites juries to punish unpopular opinion rather than to
compensate individuals for injury sustained by publication of a false fact. . . .
. . . It is therefore appropriate to require that state remedies for defamatory
falsehood reach no farther than is necessary to protect the legitimate interest
involved. . . . We need not define ‘actual injury,’ as trial courts have wide experi-
ence in framing appropriate jury instructions in tort actions. Suffice it to say that
actual injury is not limited to out-of-pocket loss. Indeed, the more customary
types of actual harm inflicted by defamatory falsehood include impairment of
reputation and standing in the community, personal humiliation, and mental an-
guish and suffering. . . .
We also find no justification for allowing awards of punitive damages
against publishers and broadcasters held liable under state-defined standards
of liability for defamation. In most jurisdictions jury discretion over the
amounts awarded is limited only by the general rule that they not be excessive.
Consequently, juries assess punitive damages in wholly unpredictable
amounts bearing no necessary relation to the actual harm caused. And they re-
main free to use their discretion selectively to punish expressions of unpopu-
lar views. . . . In short, the private defamation plaintiff who establishes liability
under a less demanding standard than that stated by New York Times may re-
cover only such damages as are sufficient to compensate him for actual injury.
We therefore conclude that the New York Times standard is inapplicable to
this case and that the trial court erred in entering judgment for respondent. Be-
cause the jury was allowed to impose liability without fault and was permitted
to presume damages without proof of injury, a new trial is necessary. We reverse
and remand for further proceedings in accord with this opinion.
It is ordered.
Reversed and remanded.
The Law of Torts 19
As mentioned in Gertz, the Supreme Court has determined that state-
ments of pure opinion cannot be defamatory because they express no state-
ment of fact—other than about what the accused defamer thinks about the
plaintiff. Under this rule, literary critics and political columnists should have
less worry about defamation suits. The potential problem, of course, is that
statements of purported fact and statements of opinion are sometimes diffi-
cult to distinguish.
Balancing Defamation Against Free Expression
As in many areas of the law, defamation is a problem that requires a balancing of
competing interests, such as:
■ the individual’s right to privacy
■ the individual’s right to be free of defamation
■ the public’s right to information about matters of public interest
■ the individual’s right to free expression
■ the media’s right to freedom of the press
And all of these rights relate to the doctrine of public policy, which does not al-
low one right to totally extinguish another and favors free and open discourse in
a democratic society.
For constitutional and public policy reasons, individuals generally may not
be sued for defamatory statements they make in official government proceed-
ings. The U.S. Constitution, Article I, Section 6, states: “[F]or any Speech or Debate
in either House, [Senators and Representatives] shall not be questioned in any
other Place.” Most state constitutions grant similar immunity to members of the
state legislature (and sometimes to other public officials) for statements made
in their official capacities. Statutory or common law also exempts judges, attor-
neys, and witnesses from defamation suits for statements made in court pro-
ceedings or before legislative bodies, although they are still subject to criminal
penalties for perjury if a false statement is knowingly made under oath. This im-
munity also does not shield attorneys, parties, and witnesses from contempt of
court for statements made in court proceedings. The news media and the pub-
lic are also immune from liability when reporting accurately what has been
stated by participants in official government proceedings.
Although an attorney, party, or witness is absolutely immune for defamatory state-
ments made in court, or in documents submitted to a court, that immunity does not
apply to statements made outside of the court proceedings. Consequently, a parale-
gal could be liable for repeating outside the law firm information that has been shown
to be false and defamatory. Although a paralegal—as a private citizen—is free to re-
port what has already been stated in court, discretion should be the rule.
Fraud is the intentional use of deceit to induce someone to give some benefit to Fraud is the intentional use of
the tortfeasor. In less precise terms, fraud is cheating. In litigation, fraud usually deceit to induce someone to
arises in the context of inducing someone to enter into a contract—inducing a per- give some benefit to the
son to buy a used car by turning the odometer back, for example, or furnishing tortfeasor.
false information to a bank in order to obtain a loan. However, fraud sometimes
occurs in the context of ongoing business relationships—when a partner main-
tains two sets of books, for example, and keeps an unfair portion of the partner-
ship’s profits for himself.
20 CHAPTER 12
Fraud is also committed when:
■ a debtor transfers his assets to friends, relatives, or entities controlled
by the debtor (e.g., trusts or corporations) in order to conceal those
A fraudulent transfer is the assets from his creditors (fraudulent transfers or “conveyances”)
conveyance of title in some ■ a taxpayer conceals income from the Internal Revenue Service (tax
property to another person so
that a creditor is cheated or
delayed in her efforts to gain ■ a trustee uses property of the trust estate for her own benefit or
possession of, or title to, that transfers title to that property into her own name as an individual
■ an investment manager uses the funds contributed by subsequent
Conversion is the unauthorized investors to pay a promised return to earlier investors in the same enter-
possession and use of someone prise (Ponzi scheme)
else’s property so that the true
owner is effectively deprived ■ a litigating party knowingly presents fabricated evidence to the court
of his ownership rights (fraud on court)
permanently (or for an indefinite ■ election officials permit living persons to cast votes under the names of
period). deceased persons (election fraud)
A Ponzi scheme is a fraudulent
Of course, the preceding is only a partial list among many forms of fraud.
“investment” scam in which a
small portion of the funds
provided by subsequent
investors is used to pay
ostensible “profits” to the earlier A legal assistant commits fraud if he “pads” his time sheet or expense account, re-
investors in the scheme, while gardless of whether the client or the employing attorney is the one being cheated. A
the tortfeasor actually diverts legal assistant could be an accessory to fraud if he knowingly facilitates fraud by his
the great bulk of all invested employer against the interest of a client or any other person.
funds to his own use.
Fraud can also constitute a breach of contract—either because it breaches
In most jurisdictions, all the implied covenant of good faith and fair dealing, or because it is fraudulent
contracts include an implied conduct that violates explicit terms of the contract. In either case, the injured
covenant of good faith and fair party would have two causes of action in a lawsuit: fraud and breach of contract.
dealing—that is, an implied But a breach of contract is never fraud unless it is done deceitfully.
promise by all parties that each
will implement the contract
fairly and in good faith. The Actual Fraud
purpose of the covenant is to
ensure that each party receives The required elements in a cause of action for actual fraud (also known as “in-
the benefit of the bargain he tentional misrepresentation”) are:
made. ■ a false representation by the defendant
■ knowledge by the defendant that the representation is false
Actual fraud is the intentional
deception of another person so ■ intent to deceive the plaintiff
that, induced by that deception, ■ reliance by the plaintiff upon the misrepresentation
the victim will rely upon the
■ justifiable reliance by the plaintiff
misrepresentation and provide
some benefit to the tortfeasor. ■ damages to the plaintiff resulting from that reliance
The false representation must be of a past or present fact because no one
can know the future. It must also be a misrepresentation of a material fact—one
that would influence the decision of the person being deceived. The false repre-
sentation might be an affirmative one—i.e., a false statement—or it might be an
intentional concealment of a material fact. If a seller places furniture over dam-
aged areas in a hardwood floor so that the prospective buyer would not see that
damage, that would be an example of intentional concealment. Turning a car’s
odometer back would be a false statement if the buyer’s attention is drawn to
the auto’s “low mileage.”
The Law of Torts 21
Generally, silence is not considered to be misrepresentation unless one per-
son has a duty to disclose material facts to another person. For example, some
states have statutes that require homeowners to disclose all known defects in
a house prior to selling that property. A duty to disclose sometimes exists un-
der common law. For example, a fiduciary may not remain silent when he is
aware of any fact that would be material to the decision of his client or benefi-
ciary. A seller of commercially zoned property has an affirmative duty to dis-
close that zoning if she learns that the buyer plans to use the property for res-
Scienter in Actual Fraud
Knowledge that the representation is false—called scienter—is a required ele- Scienter is the tortfeasor’s
ment of actual fraud. Under the law, however, scienter exists if the defendant has conscious knowledge that he
made a false statement without any reasonable basis for that statement. A real has fraudulently misrepresented
estate agent who claims that a piece of land is ideal for growing rice—a fact that or concealed material facts.
turns out to be untrue—has made a misrepresentation if he lacks actual infor-
mation that reasonably supports that statement.
The misrepresentation must be made with intent to deceive—with an inten-
tion that the other person will rely upon that false representation. If a defendant
can show that he honestly believed that the false representation was actually
true, there is no intent. However, a jury may infer deceptive intent from the evi-
dence before it—for example, if the jury does not believe the defendant’s protes-
tations of good faith.
Because all torts require that actual damage be caused by the wrongful con-
duct of the defendant, a cause of action for fraud requires that the plaintiff actu-
ally rely upon the defendant’s misrepresentation and be harmed by that reliance.
If the buyer of a house employs a qualified building contractor to inspect that
house before the buyer commits to completing the purchase, the jury may con-
clude that she did not actually rely upon the seller’s misrepresentations, but in-
stead relied upon the contractor’s inspection.
Reliance upon a misrepresentation must be justifiable—that is, it must be
reasonable. To be justifiable, the plaintiff’s reliance must be foreseeable (i.e., rea-
sonably predictable to the defendant). Although representations that are obvi-
ously false cannot be relied upon, the plaintiff is under no duty to conduct her
own investigation to discover whether representations are true or false because
that would relieve the defendant from any responsibility for his intended deceit.
In the situation described in the preceding paragraph, the buyer had no duty to
hire a contractor to inspect the house.
An allegation of justifiable reliance might be supported by the defendant’s
superior knowledge. For example, a certified expert in precious gems might be
liable if he falsely tells his customer that a diamond would appraise for twice the
purchase price. On the other hand, if the jeweler says “this is the investment of
a lifetime,” he will not be liable. The latter statement is considered to be
“puffery”—the type of vague, inflated sales pitch that no customer has a right Puffery is a seller’s vague
to rely upon. characterization of a product’s
A real estate agent who claims that property values in a certain area are value or quality without the
“sure to double in value within the next 5 years” has expressed no more than an statement of a specific fact upon
opinion. Because future property values cannot be known, they are never “facts” which a prospective buyer can
and no one has a right to rely upon such statements. This situation differs from
the diamond sale just described because the jeweler was representing the cur-
rent value of the diamond, not future trends in diamond values.
Statements of future intentions are misrepresentations if the speaker actually
does not intend to act accordingly. In other words, the speaker’s state of mind
(at the moment the statement is made) governs. If the speaker sincerely states
22 CHAPTER 12
a future intention, it does not become a misrepresentation if he later changes his
mind. Of course, if the statement of future intent was actually a promise, and a
contract was formed, the speaker might be innocent of fraud but liable for breach
Finally, the plaintiff must demonstrate that he was actually damaged by the
misrepresentation. If the plaintiff has alleged that he was fraudulently induced
to enter into a contract—in other words, he would never had made the contract
if he had known the truth—he nonetheless has no cause of action for fraud if he
ended up getting the benefit of his bargain and was not otherwise harmed by the
misrepresentation. Thus, if a seller misrepresents the value of land, the buyer
might have no cause of action if the land actually appreciates substantially
above that value within a reasonable time and before the misrepresentation is
Constructive fraud is a Whereas actual fraud requires an intent to deceive, constructive fraud (also
negligent misrepresentation of a known as “negligent misrepresentation”) does not require deceptive intent. In-
material fact made to a person stead, in constructive fraud the representation relied upon by the plaintiff has
to whom the tortfeasor owes a been negligently made by the defendant. Actual fraud also requires scienter—
knowledge that the representation is false; constructive fraud does not require
that knowledge. Unlike actual fraud, constructive fraud requires that the person
at fault has breached a preexisting duty to the injured party. The duty breached
might be a statutory duty or one under contract or common law.
Constructive fraud most often occurs when the defendant owes a profes-
sional or fiduciary duty to the plaintiff or when the negligent misrepresentation
occurs in the conduct of a business. An insurance agent who carelessly states to
a prospective client that a particular policy meets his need might be liable for
constructive fraud if the client relies upon that advice and purchases the policy
even though it effectively excludes him from coverage due to a preexisting med-
Although a representation made without any reasonable basis legally con-
stitutes knowledge of its falsity under actual fraud, the defendant in construc-
tive fraud normally has a reasonable basis for making the representation but
would have learned of its falsity had he investigated thoroughly. The negligence
usually stems from the defendant’s inadequate investigation to confirm his be-
lief in the representation made.
In actual fraud, a defendant is liable to all victims who foreseeably could learn
of the false representation. In constructive fraud, however, the defendant gen-
erally is liable only to those he intends to receive his representation: his cus-
tomers, clients, and so forth. Figure 12.1 summarizes the distinctions between
actual and constructive fraud.
THE INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
The traditional rule was that causing emotional distress was not a tort in its own
right, but only one measure of damages arising from the commission of a recog-
nized intentional tort, such as assault or false imprisonment. One reason for this
The intentional infliction of
emotional distress is extreme
rule was the reluctance of courts to award damages for an “injury” so easily
and outrageous conduct by the feigned. In recent years, however, the courts of most states have accepted
tortfeasor that exceeds all intentional infliction of emotional distress as a distinct tort. The result is that
bounds of decency and causes a plaintiff need not prove that the defendant’s conduct was otherwise tortious.
the victim to experience severe If evidence shows that the plaintiff’s conduct was intended to inflict severe emo-
emotional distress. tional distress, and that it succeeded in doing so, a cause of action might exist.
The Law of Torts 23
FIGURE 12.1 Actual and Constructive Fraud
False representation ✓ ✓
Knowledge by defendant that ✓
representation is false
Intent to deceive ✓
Reliance on representation ✓ ✓
Justifiable reliance ✓ ✓
Damages resulting from reliance ✓ ✓
Negligent representation ✓
Breach of preexisting duty to the ✓
Liability to all who foreseeably ✓
could learn of representation
Liability only to person to whom ✓
representation was directed
Nonetheless, the courts’ earlier reluctance in recognizing this tort is reflected in
the elements required to state a cause of action. The elements of the intentional
infliction of emotional distress are:
■ extreme and outrageous conduct by the defendant
■ intent to inflict emotional distress
■ severe emotional distress resulting from the defendant’s conduct
To qualify as extreme and outrageous, the conduct must go well beyond the kind
of rude, insulting, profane, and offensive conduct one occasionally encounters.
The conduct must be so outrageous that it transcends all concepts of decency.
In evaluating conduct, the courts will consider the context in which it occurs
and the parties involved. Conduct sufficiently extreme and outrageous in a so-
cial gathering might not be tortious if it were to occur among the participants in
a professional football game. Conduct directed by an adult toward a young child
would cross the threshold more easily than the same conduct directed at an-
Examples of extreme and outrageous conduct cited by the Restatement (Sec-
ond) of Torts1 include:
■ as a practical joke, telling someone that her spouse has been seriously
injured and is confined to a hospital, causing emotional distress to the
■ giving a guest a bathing suit that the giver knows will dissolve in water,
leaving the guest naked in front of men and women she has just met,
causing extreme embarrassment, shame, and humiliation
■ telling a farmer known to believe in witchcraft that a “hex” has been put
on the farm, causing the farmer to believe that it will not grow crops so
that he will sell the farm to the defendant, thereby causing severe
emotional distress and illness
In most torts, the defendant “takes his plaintiff as he finds him”—meaning
that the defendant is responsible for injuries that result from both the plaintiff’s
wrongful conduct and any special vulnerability of the particular victim, provid-
ing that some injury from that conduct is foreseeable. Thus, a driver might be li-
able for the unusually severe injuries suffered by an elderly person whose bones
24 CHAPTER 12
are brittle, so long as a typical pedestrian would have been injured—although
less seriously—by the same impact.
However, the infliction of emotional distress is strictly limited to those dam-
ages that are foreseeable. Damages cannot arise from the unknown sensitivity of
a particular individual. However, if the defendant is aware of that peculiar sen-
sitivity and nonetheless acts recklessly without regard to the likelihood of emo-
tional harm, he might be held liable. That rule is implicit in the requirement that
the actor intends to cause severe emotional distress or mental anguish. In the sit-
uation of a victim known by the defendant to be hypersensitive, that intent to in-
flict the distress can be inferred by the jury from conduct that is extreme and
outrageous and was committed with the knowledge that emotional distress is
PUBLIC AND PRIVATE NUISANCES
There is a legal presumption that one is entitled to the reasonable use and en-
joyment of one’s property. Otherwise, the primary purposes of property owner-
A nuisance is any use of one’s ship would be defeated. A nuisance arises when another person’s conduct un-
property that unreasonably reasonably interferes with that use or enjoyment, or substantially diminishes
interferes with a neighbor’s the value of that property. In a residential neighborhood, launching rockets into
substantial use and enjoyment the sky from one’s backyard might cause unreasonable noise and also the ap-
of her property or that prehension of possible injury among the neighbors. The same activity in a re-
diminishes the value of the
mote desert location might bother no one. One of the purposes of zoning ordi-
nances is to harmonize the activities of adjacent landowners and their tenants
(e.g., farming, commerce, or residential use), thus minimizing nuisance com-
plaints. The covenants, conditions, and restrictions (CC&Rs) established by
homeowners’ associations have a similar purpose, but provide for more intru-
sive restrictions (and greater protections) than provided by nuisance law.
Trespass is the unauthorized The concept of nuisance is closely related to that of trespass upon one’s
intrusion onto the land owned property. In the usual concept of trespass, someone damages another’s property
by another person. At common right by an unauthorized physical invasion. The invasion can be an entry (e.g.,
law, trespass included any by a hunter or by trash dumped across the property line). It might also be the
unlawful interference with construction of a building that overhangs the property of a neighbor. One of the
another’s property rights.
more common forms of trespass is the construction of a boundary fence that ac-
tually lies within the neighbor’s property, depriving her of the use of several
inches (feet or yards) of her property. A continuing controversy is the intrusion
of aircraft overhead and the obstruction of horizontal views by buildings or
trees. Because there is no physical invasion, the latter example actually ap-
proaches the concept of “nuisance.”
A public nuisance is one that A nuisance can be either a public nuisance, affecting the community at
interferes with the lawful rights large, or a private nuisance, affecting one or a few neighbors. A public nuisance
of the public at large. interferes with rights common to all, whereas a private nuisance interferes with
the rights of only those persons immediately affected. In some jurisdictions, cer-
A private nuisance is one that tain types of public nuisances can carry criminal penalties as well as civil liabil-
interferes with the lawful rights ity; however, private nuisances are matters of civil liability, only. Public nui-
of one or a few neighbors. sances might include such activities as:
■ habitually selling illegal drugs from a residence
■ continually discharging pollutants from a manufacturing site
■ operating a night club that draws throngs of party-goers who regularly
carouse and vandalize in nearby residential neighborhoods
■ keeping dangerous animals on the premises
Of course, there are often specific statutory prohibitions for these kinds of
conduct (e.g., discharging pollutants), but in their absence an action may be
The Law of Torts 25
brought under the theory of nuisance. In most jurisdictions, only the govern-
ment has standing to sue for a public nuisance. However, an individual might
have standing under the same facts to sue for a private nuisance if the defen-
dant’s conduct also causes injuries peculiar to that individual plaintiff (i.e., dif-
ferent from those injuries to the public at large). In actions for private nuisance,
the plaintiff must either be in possession of the property interest that is harmed
or have the right of immediate possession.
Conduct that harms the property interests of only one or a few persons
would not be a public nuisance, but is actionable as a private nuisance. This dis-
tinction often hangs upon the specific circumstances in which the offending
conduct occurs. Keeping dangerous animals on property adjacent to an ele-
mentary school is quite different from keeping them on an isolated farm. In the
latter circumstance, the conduct might not constitute a nuisance at all, unless
there is a neighbor who lives in fear of attack. Due to the isolated location, a
public nuisance would be unlikely, but a neighbor could bring an action for pri-
Conduct is not actionable as a nuisance unless the harm to the property in-
terests of others is both substantial and unreasonable. The reasonableness of
the conduct is determined in light of all relevant factors, such as the customary
and usual practices of other landowners in the same circumstances. Any bene-
fit to third parties that derives from the challenged conduct (e.g., night club cus-
tomers who do not vandalize the neighborhood) will be considered, as will be
the cost to the defendant of eliminating the alleged nuisance. In a few states,
however, intentional conduct is sufficient to establish a nuisance, even if that
conduct is reasonable. Thus, a farmer might be enjoined from spreading noxious
fertilizers on his land adjacent to a neighbor’s home, even though the use of
such fertilizers is the customary practice of farmers.
The remedies available for nuisance vary depending upon the nature of the
nuisance. If the offensive conduct has ceased, monetary damages are available.
If a nuisance is continuing in nature, the plaintiff might have to choose between
suing for the diminishment in value of his own land or suing periodically for
past damages. If the nuisance is continuing but can be discontinued, the plain-
tiff may seek an injunction against the offending conduct. In the latter situation,
monetary damages may be awarded for the past injuries to the plaintiff’s prop-
INVASION OF PRIVACY
There is a presumption in law that each individual has a right to be left “in
peace.” One who violates that right in a substantial way can incur civil liability
for that invasion. Thus, one who is unsuccessful in battery might still be liable
for assault. Nonphysical “assaults” are recognized also in the law of defamation.
A somewhat recent extension of such principles has given rise to a more general The right of privacy is the right
to be left in peace, without
right of privacy.
unwarranted disclosure by
The right of privacy protects us from certain intrusions by government (e.g., others of our private matters.
as in protecting women’s access to abortion) and from unwarranted private in-
trusions into personal matters (e.g., secretly recording private conversations).
This discussion will focus upon the latter type of intrusions by private individu- An invasion of privacy is any
conduct that violates the
als and organizations known as wrongful invasions of privacy.
right of privacy, including the
It is important to understand that the common law protects only those as- unauthorized use of one’s name
pects of our life for which we have a reasonable expectation of privacy. Individu- or photograph for commercial
als surrender some expectations of privacy when they become rock stars or can- purposes or the unauthorized
didates for public office. In addition, public policy favors open disclosure of some disclosure of private matters
types of “private” information when a person involuntarily becomes a “public that exposes the victim to
figure”—persons accused of crimes, for example. Finally, individuals and the shame or embarrassment.
26 CHAPTER 12
news media enjoy First Amendment freedoms of speech and press, and our indi-
vidual right to privacy must be balanced with these constitutional rights of others.
Unauthorized Intrusion into One’s Private Life
This area of privacy law rests upon the essence of the right of privacy: to be left
alone and to go unnoticed by others. The clearest examples of the breach of this
right are such things as:
■ secret recording of private conversations
■ covert photography with hidden cameras
■ stalking behavior
Unauthorized intrusion can also occur when a visitor examines a hospital pa-
tient’s chart or an investigator persuades a bank employee to reveal a cus-
tomer’s bank account information. Oddly enough, Hollywood has often por-
trayed telescopic eavesdropping through the windows of one’s neighbors as a
benign pastime that leads to solving crimes, most notably in the films Rear Win-
dow (with James Stewart and Grace Kelly) and Body Double (with Craig Wasson
and Melanie Griffith).
To be actionable as an invasion of privacy, the intrusion must be highly of-
fensive under prevailing community standards. However, there is no require-
ment that the information obtained be made public—it is enough that the plain-
tiff’s reasonable expectation of privacy has been egregiously breached. The
measure of damages will be the emotional distress experienced by the plaintiff
upon discovery of the intrusion. Although publication is not a required element
of the tort, most often it is through some form of publication that the plaintiff
first learns of the invasion. Publication can occur by word of mouth, on the In-
ternet, in print, or by other means.
Publication of Private Information
This area of privacy law is less clearly defined than most others. The information
protected against unauthorized publication is essentially similar to those aspects
of one’s personal life that are protected against unauthorized eavesdropping or
covert inquiry. When it is impossible to demonstrate that the information was ob-
tained by egregious intrusion, a cause of action might lie for unauthorized publi-
cation. To be actionable, the publication must be highly offensive to a reasonable
person. The offensive quality of the publication is based largely upon the private
nature of its content, although the manner of publication can be a factor as well.
Because the content of the publication is so central to this cause of action,
it is defined in part by content that is not considered to be highly offensive. Thus,
the following types of content do not meet the highly offensive standard:
■ information in court records, records of births and death, etc.
■ reports or images of conduct that occurs in public places
■ reports or images of private conduct that do not expose the plaintiff to
embarrassment or ridicule
Public figures receive less protection under the law than does the general
public. In addition, the news media enjoy a privilege to publish information that
is newsworthy and of public interest. This very broad exception makes it ex-
ceedingly difficult for public figures to prevail in a cause of action for unautho-
rized disclosure of private facts. The exception also extends to nonpublic figures
whose profession creates a public interest in how they perform their profes-
The Law of Torts 27
sional duties: medical doctors, school teachers, attorneys, and so forth. For
these professionals, an unauthorized disclosure of private conduct would be
protected if that conduct had some reasonable relevance to their performance
of professional duties.
Unlike defamation, truth alone is no defense to an action for unauthorized
disclosure. In fact, the truth of the disclosure is irrelevant to unauthorized dis-
closure. True or not, the disclosure has intruded upon the plaintiff’s right of pri-
vacy. Consent, however, is an absolute defense to this cause of action. In Virgil
v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976), the
Court of Appeals held that a magazine could not rely upon a subject’s prior con-
sent if that subject later withdrew his consent to the magazine to print embar-
rassing private facts.
Unauthorized Use of a Person’s Name or Image
for Commercial Purposes
Two interests are at stake here: the right of privacy and the right to profit from
the commercial value of one’s name or image. Both interests can be simultane-
ously infringed by a single, unauthorized commercial use. While nonpublic fig-
ures tend to have less commercial value at stake, public figures tend to have a
lesser expectation of privacy. Consequently, the privacy interest is usually para-
mount for nonpublic figures and the commercial interest is usually paramount
for famous personalities.
After observing the expense and emotional stress endured by many law firm
clients, some litigation paralegals resolve never to be either a plaintiff or de-
fendant in a lawsuit. Even when fighting the good and just cause, litigation can
be a draining experience. Even more devastating is to be the innocent defendant
in a serious civil or criminal matter. For the less scrupulous plaintiff, bringing
an adversary to answer before a court of law can be a tempting device even if
there is no reasonable basis for the prosecution. This can be particularly tempt-
ing for large corporations and very wealthy individuals who have resources that
can overwhelm those of most individual defendants.
The common law tort of malicious prosecution developed as a remedy for de- Malicious prosecution is the
fendants who were maliciously prosecuted in unwarranted criminal actions. In the bad faith institution of legal
great majority of states, it has been expanded to provide a remedy for unwar- proceedings (civil or criminal)
ranted civil actions brought by the plaintiff out of malice toward the defendant. In against a defendant as a means
some jurisdictions, the latter tort is called “malicious use of process” or “wrong- of harassment or punishment
and without probable cause
ful use of civil proceedings” to distinguish it from malicious criminal prosecution.
under the law.
The more common term, which shall be used here, is malicious prosecution.
In an action for malicious prosecution arising from either a criminal or civil
proceeding, the plaintiff in that prior action must have brought that action out of
malice and without probable cause under the law. That prior action must have
been terminated by a determination on its merits and in favor of the defendant.
If any of these elements is missing, a subsequent action by that defendant for
malicious prosecution will not lie.
Of course, whether the underlying malicious prosecution was in a civil or crim-
inal proceeding, the subsequent suit in tort for malicious prosecution is a civil mat-
ter and is a separate proceeding from that underlying case. In some jurisdictions,
malicious criminal prosecution is itself a criminal offense if knowingly and corruptly
undertaken by the defendant. Depending upon the facts, it also could constitute a
28 CHAPTER 12
criminal offense under federal law (42 U.S.C. § 1983) for depriving a person of her
constitutional rights. State and federal prosecutors, however, enjoy an absolute
common law immunity from civil suit for malicious conduct of their prosecutorial
duties. It is ordinary citizens or other officials—other than the prosecutor—who can
be liable for inducing the criminal prosecution without probable cause.
The tort of malicious prosecution is often termed a “disfavored” cause of ac-
tion because the courts fear that it could deter “the ordinary citizen’s willing-
ness to report criminal conduct or to bring a civil dispute to the court. . . .” Shel-
don Appel Company v. Albert & Oliker, 47 Cal.3d 863, 872 (1989). Consequently,
some states require that the plaintiff who is pleading malicious prosecution also
show some “special injury” beyond the ordinary emotional distress and expense
of defending a meritless lawsuit.
Among the elements of malicious prosecution, the more troublesome are
the requirements that the prior lawsuit was brought out of malice and without
“probable cause.” Obviously, it is not unusual for a plaintiff to feel malice toward
the defendant he sues, and it is entirely possible that, absent that malice, many
lawsuits might not be pursued at all. So, in that sense, “malicious” prosecutions
are not all that unusual. However, the plaintiff’s malicious motivation alone (in
the prior lawsuit) will not support a cause of action in a subsequent lawsuit. Any
sincere plaintiff who is pleading a prior malicious prosecution by the defendant
is almost certain to feel malice also toward that defendant—who first sued him.
Malice, alone, could lead to an endless chain of lawsuits.
The real threshold issue for malicious prosecution is the prior plaintiff’s
lack of probable cause for bringing the original lawsuit. In this context, “prob-
able cause” is the factual and legal basis for bringing the lawsuit. Probable
cause exists if a reasonable attorney would believe that it is possible to prevail
under the facts known to her, and under the law. If the facts are in dispute, a
jury may determine those issues. But once the facts are determined—or if they
are undisputed—probable cause becomes a question of law that only the court
If probable cause is missing, malice becomes the critical element for mali-
cious prosecution. In this context, malice is more than ill will—or even hatred.
Malice exists in the basis for the plaintiff’s decision to file suit. If the plaintiff de-
spises the defendant but files suit to obtain a remedy for actual injuries, an ac-
tion for malicious prosecution will not lie. After all, that is why the courts exist—
to provide remedies for actual wrongs. Malicious prosecution occurs when the
plaintiff’s motive is not to seek a remedy, but instead to harass or punish the de-
fendant regardless of the merits of the case.
Because malice hangs upon the plaintiff’s state of mind, it is a question of
fact that a jury can determine. Some jurisdictions permit the jury to infer mal-
ice from the plaintiff’s lack of probable cause. Of course, that inference is
more easily made when reaching a verdict against the plaintiff’s attorney, who
jurors might think “should know better” than to bring a lawsuit without prob-
It has become commonplace to plead malicious prosecution not only
against the plaintiff in the underlying case, but also against that plaintiff’s legal
counsel. Thus, the perceived “threat” of malicious prosecution lawsuits has
been a growing concern in the legal profession. Of particular concern is the pos-
sibility that some professional liability policies (“errors and omissions” policies)
might not insure the attorney for a knowingly malicious act. It is not difficult to
understand why attorneys are so often named in lawsuits for malicious prose-
cution. They, better than their clients, can evaluate the question of probable
cause and have an ethical duty to inform their clients if they believe that proba-
ble cause does not exist. Naming the attorney provides a second “pocket,” if not
a “deeper pocket,” for the recovery of any damages.
The Law of Torts 29
DEVELOPING NEW THEORIES
OF TORT LIABILITY
Although courts look to precedent to discover our general duties to each other,
new grounds for tort liability are occasionally recognized. For example, an in-
jured person files a lawsuit proposing a new theory of tort liability. Whether he
wins or loses in the trial court, the case might be heard on appeal if it raises an
important question of tort law. If the appellate court agrees with the plaintiff and
recognizes a legal duty that has not been explicitly articulated previously, that
state’s highest court might also entertain the case and, thus, settle the issue for
all courts of that state.
With few exceptions, court-defined torts are intended to state the existing
law of that jurisdiction—law that was already implicit in statutes and/or ear-
lier court decisions. By logical analysis of statutory and common law, the
courts discover legal principles that have been latent but never explicitly ar-
ticulated. Conceptually, this is similar to revealing the latent images in pho-
tographic film when that film is finally developed—the image was there but
not previously visible. Logically, the process is similar to solving problems in
geometry: deriving solutions from the analysis of legal theorems and their
corollaries—and, perhaps, discovering new legal corollaries. That was the
process that led courts to recognize intentional infliction of emotional dis-
tress and strict products liability as distinct causes of action in tort.
The doctrine of strict products liability defined by the California Supreme
Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897 (1963),
for example, was incorporated in the Restatement of Torts § 402A two years later,
and soon became part of the common law in nearly every jurisdiction in the
United States. In a similar fashion, the distinct tort of intentional infliction of
emotional distress has been recognized by a growing number of state courts,
and now is recognized in the Restatement (Second) of Torts § 46. (The Restate-
ment is a persuasive, although nonbinding, summary of American common law.
Court decisions often cite the Restatement as authority for their holdings.)
S U RV I VA L OF CAUSES OF ACTION
Until recent times, the death of either the tortfeasor or the injured party meant
that a cause of action expired and did not pass to the estate or the decedent’s
relations. Most states, however, have enacted statutes that provide for the sur-
vivability of some causes of action. These are usually personal injury or wrong-
ful death causes. If the cause of action survives by operation of a statute, recov-
ery can later be made by or against the estate of the decedent. Most survival
statutes exclude causes of action for a decedent’s pain and suffering and for re-
covery of punitive damages against the estate of a decedent.
Most states have statutes that establish a separate cause of action for the
surviving family members of a decedent. In other words, the family asserts a new
cause of action on its own behalf, not as surrogate plaintiffs for the decedent.
Generally, the surviving relatives may sue only for their own financial losses un-
der this new cause of action (e.g., financial support provided by the decedent or
the monetary value of companionship and personal services). Some jurisdic-
tions provide for this new cause of action while also permitting a lawsuit by the
decedent’s estate. Thus, the estate and the surviving relatives may prosecute
separate, but related, causes of action.
30 CHAPTER 12
The survivors’ damages would be limited to their pecuniary losses (as men-
tioned previously). Actuaries calculate the decedent’s working life expectancy
and the wages he would have earned in that time. For nonwage earners, recov-
ery is usually permitted for the value of “services” they would have provided to
the survivors. If a surviving spouse has since remarried, that fact is not relevant
to the calculation of damages for the lost support and services of the decedent.
The latter rule recognizes that “but for” the wrongful death of the spouse, the re-
marriage might not have occurred.
Most states do not permit survivors to recover for their own ordinary grief
or anguish resulting from a wrongful death. Some states, however, do permit re-
covery if the surviving relative actually witnessed a traumatic death scene, on
the theory that it is a separate injury inflicted by the tortfeasor upon a separate
FROM TORT LIABILITY
The traditional doctrine was that “the crown can do no wrong” and, therefore,
Sovereign immunity is the could not be sued. In modern times, this sovereign immunity has been greatly
doctrine that precludes suing modified by state and federal statutes. The Federal Tort Claims Act permits the
the government without its government to be sued for the negligent acts of federal employees and for most
consent. intentional torts by federal law enforcement officers. However, the FTCA retains
immunity for most “discretionary” acts performed by federal employees in the
normal course of their duties. In addition, various Supreme Court rulings have
seriously limited the effect of the Federal Tort Claims Act. In any event, all federal
cabinet officers, judges, legislators, and prosecutors are almost completely im-
mune from civil liability for actions taken within the scope of their duties, even
if committed with malicious intent.
The principle of sovereign immunity is not uniform under state laws. Each
state has modified that immunity in some fashion, but the variations are so great
that it is difficult to generalize. Most states have established mechanisms for
bringing claims against state and local government. Most of the claims permit-
ted by state law may be pursued in court. States generally grant complete im-
munity to the governor, state legislators, judges, and prosecutors for acts taken
within the scope of their duties. In a recent series of 5–4 decisions, the U.S.
Supreme Court—deferring to the doctrine of sovereign immunity—has held that
state governments may not be sued by their citizens or employees for violating
certain federal laws, such as the Age Discrimination in Employment Act.
A QUESTION OF ETHICS
Marlo Loreto is a brand new legal assistant fresh out of paralegal school and has
been hired for an entry-level position in a personal injury firm. Her supervising
attorney has assigned her to handle discovery responses in a number of law-
suits arising from automobile accidents. The cases involve claims against the in-
surance companies of defendant drivers, with substantial damages for medical
treatment and pain and suffering. Prior to becoming a legal assistant, Marlo
worked as a registered nurse in a large hospital.
One morning, while reviewing medical reports from a client’s doctor, Marlo
came across an apparent inconsistency between the doctor’s diagnosis and pro-
jected treatment plan. She drew her supervising attorney’s attention to this ap-
parent anomaly, assuming that it was a careless error on the doctor’s part. The
The Law of Torts 31
attorney appeared angry upon receiving this news and immediately called the
doctor in question: “Look, Arthur, you better damn well get your diagnosis and
proposed treatment in sync, or we’re going to lose this case. This is the last time
I’m going to put up with this kind of incompetence.” The attorney then told
Marlo to shred the inaccurate report and wait for the corrected report to arrive
the next day. Marlo was left with the impression that her supervising attorney
was trying to pressure the doctor into giving a more “acceptable” report. She
was troubled also by the attorney’s instruction to shred the first report. What, if
anything, should Marlo do about her concerns?
C H A P T E R S U M M A RY
■ A tort is any civil wrong other than a breach of contract.
■ Torts can be either intentional or negligent.
■ Some actions are both civil torts and crimes.
■ Negligence is a violation of one’s duty of care toward others.
■ The vast majority of lawsuits allege negligent conduct by the defendant.
■ Strict liability does not require negligence or wrongful intent.
■ Suits for defamation or fraud are common non-negligent actions in tort.
■ In most jurisdictions, by operation of law every contract includes an
implied covenant of good faith and fair dealing.
■ Actual fraud requires the intent to gain advantage through the deception
of another person.
■ Constructive fraud requires a pre-existing legal duty to another person,
but does not require actual intent to deceive that person.
■ Intentional infliction of emotional distress is a relatively new cause of
action in tort.
■ A nuisance exists when one uses her property in an unreasonable
manner that deprives others of the reasonable enjoyment of their
■ Invasion of privacy is the unauthorized and unreasonable use of another
person’s name or image, or intrusion into that person’s private matters
that are not a subject of valid public concern.
■ Malicious prosecution occurs when one causes criminal or civil proceed-
ings to be brought against another for vindictive purposes without any
valid basis under the facts and the law.
■ Courts recognize new causes of action in tort by analyzing existing prin-
ciples of tort law.
■ In general, a cause of action does not survive the death of either the
plaintiff or the defendant.
■ Except as otherwise provided by law, a government entity is immune
from suit by its citizens.
actual fraud agent bad faith
actual malice assault battery
agency assumption of risk constructive fraud
32 CHAPTER 12
conversion intervening force public nuisance
covenant of good faith and fair invasion of privacy puffery
dealing libel respondeat superior
defamation of character libel per se right of privacy
due care malicious prosecution scienter
duty of care negligence slander
fraud negligence per se SLAPP suit
fraudulent transfer negligent tort sovereign immunity
Good Samaritan doctrine nuisance strict liability
gross negligence personal injury strict products liability
implied warranty Ponzi scheme tort
intentional infliction of principal tortfeasor
emotional distress private nuisance trespass
intentional tort proximate cause
ACTIVITIES AND ASSIGNMENTS
1. Read news reports of civil litigation and Identify the affirmative defenses that the tabloids
distinguish those cases that involve allegations of might raise.
intentional torts from those that involve negligent 4. Using Internet sites identified in Chapter 9, search
torts. for cases that have applied the principle of strict
2. Read news reports of criminal prosecutions and liability in lawsuits against tobacco companies.
identify any causes of action under tort law that 5. Using the Internet, search for U.S. Supreme Court
might arise from the facts of those cases. decisions that have cited sovereign immunity in
3. Review several issues of tabloid newspapers that holding that a state government may not be sued
are sold at supermarket checkout lines and by its citizens or employees.
evaluate their articles for possible defamation.
Restatement (Second) of Torts § 46 (1965)