CHAPTER 4 THE LAW OF TORTS TORT Book definition: private wrong committed by one person against another A funny word: In French (where it originated) a tort means ―to wrong someone.‖ Interference with another’s rights either by an intentional act or through negligence TORT LAW IS PART OF CIVIL (NONCRIMINAL) LAW IT CONCERNS LAWSUITS (NOT PROSECUTIONS.) TORT THINK PERSONAL INJURY SOMEONE HAS SUFFERED AN INJURY, WHETHER: 1. INTENTIONAL ACT 2. CARELESSNESS 3. NEGLIGENCE FIVE AREAS OF TORT LAW A. INTENTIONAL B. NEGLIGENCE (personal injury) C. STRICT LIABILITY (hazardous) D. TRUE LEGAL ACCIDENT (no fault) E. Others: Nuisance, fraud, invasion of privacy, defamation INTENT (Intentional Tort) 1st area of tort law 1. Must prove INTENT to harm someone OR 2. Person (tortfeasor) knew with substantial certainty that what they were doing would harm someone. FYI IN CRIMINAL LAW, WHEN SOMEONE COMMITS A WRONG, THE ACTION IS CALLED A CRIME IN CIVIL LAW, WHEN SOMEONE COMMITS A WRONG, THE ACTION IS CALLED A TORT Intentional Tort cont. TAKE THE VICTIM AS YOU FIND THEM 1. Did your actions make a condition worse? 2. If so, you may be liable for almost all the consequences. Unintentional Tort NEGLIGENCE Second area of Tort Law Unintentional Tort—caused by carelessness Failure to exercise reasonable care under the circumstances so that a foreseeable risk to the other person is created resulting in an injury to the plaintiff. Unintentional Tort STRICT LIABILITY Third area of Tort Law Unintentional Tort— Injury caused by individual’s participation in ultrahazardous activity. TRUE LEGAL ACCIDENT Rare Situation Accident happens – no fault of anyone. INTENTIONAL TORT Was there intent to harm? 1. Was there substantial certainty that what you were doing would harm someone? 2. Liable for almost all of the consequences. (EX: I’m driving my car with you in it, and you want to get out, and I don’t stop, that may be false imprisonment. An intentional tort) UNINTENTIONAL TORT Breach of duty through other ways other than by committing intentional tort. Intentional Tort cont. BATTERY Definition — Unlawful, unprivileged contact (touching) of another person Gist word of battery – contact Every tort has a gist word (key word) Intentional Tort cont. ASSAULT DEFINITION: threatening to strike or harm with a weapon or physical movement, resulting in fear. GIST WORD: Fear and apprehension Intentional Tort cont. FALSE IMPRISONMENT DEFINITION: Unlawful confinement of a person whether in prison or otherwise. example: false arrest GIST WORD: Confinement Intentional Tort cont. THREE ELEMENTS MUST BE PRESENT TO CLAIM FALSE IMPRISONMENT 1. IS THERE CONFINEMENT? 2. IS THERE KNOWLEDGE OF THE CONFINEMENT? 3. IS THERE NO REASONABLE MEANS OF ESCAPE? Intentional Tort cont. INFLICTION OF MENTAL DISTRESS DEFINITION: Extreme and outrageous conduct, intentional or recklessly causing emotional or mental suffering to others. Could be charged with negligent infliction of mental distress. GIST WORDS: Extreme and Outrageous (Ex: If I know you are petrified of snakes and I leave one in your desk--that may be grounds for a suit based on intentional infliction of emotional/mental distress.) Intentional Tort cont. TRESPASS TO PROPERTY DEFINITION: Wrongful injury or intrusion onto another’s property. GIST WORD: Intrusion (EX: If a neighbor builds a fence but it happens to sit on part of your property, that’s a trespass, even if he did it unintentionally—referred to as trespass to land.) TRESPASS TO CHATTELS DEFINITION: Minor interference with someone else's property/possessions (taking it, destroying it, barring owner’s access to it) CHATTELS: Personal Property EX: The mechanic at the . garage test drives your car, has an accident along the way, and returns to the garage with your “wrecked” car. CONVERSION Unauthorized taking or borrowing of personal property of another for the use of the taker. Major interference with another’s property DEFENSES TO INTENTIONAL TORT CONSENT – permission SELF-DEFENSE – right to defend self with as much force as used against you. DEFENSE OF OTHERS – knowing circumstances, come to another’s aid DEFENSE OF PROPERTY – defense of what is yours PRIVATE/PUBLIC NECESSITY – Public – for the greater good Private – damage to save one’s self SOUND SIMILAR TO DEFENSES USED IN CRIMES??? ADDITIONAL TORTS NUISANCE DEFINITION: Anything that interferes with your enjoyment of life or property. ADDITIONAL TORTS cont. INVASION OF RIGHT TO PRIVACY DEFINITION: Interference with a person’s right to be left alone: a. Unwarranted appropriation or exploitation of one’s personality. b. Publicizing of private affair with which the public has no legitimate concern. c. Wrongful intrusion into one’s private activities, which would be highly offensive to a reasonable person. AUGUST 2007 MARCH 2006 Miss New Jersey Says She's March Playboy Issue Being Blackmailed (2006) Jessica Alba is Threats Say They'll Make suing Playboy for Personal Photos Public unauthorized use of her Amy Polumbo's lawyer said the image for commercial pictures were probably posted purposes. years ago on a private Internet site. He's describing them as not that bad. ADDITIONAL TORTS cont. DEFENSES 1. Consent to invasion of right to privacy 2. Qualified Privilege – invasion of privacy granted to teachers (as long as about school and to parents) 3. Absolute Privilege – granted to Congressmen in Congress ADDITIONAL TORTS cont. FRAUD INTENTIONAL MISREPRESENTATION ADDITIONAL TORTS cont. DEFAMATION OF CHARACTER Wrongful act of injuring another’s reputation by making false statements TYPES OF DEFAMATION SLANDER – spoken words LIBEL – written words/pictures/ broadcast over radio or TV A case of poison E-mail? (Sidney Blumenthal sues America Online for libel and slander) | From: U.S. News & World Report | Date: September 8, 1997 | Author: Simons, John White House aide Sidney Blumenthal last week filed a lawsuit alleging libel, slander, and invasion of privacy, seeking $30 million from America Online and Internet gossip reporter Matt Drudge. The case charges that last month, Drudge erroneously labeled Blumenthal a wife abuser in the Drudge Report, a daily dispatch transmitted on AOL. Drudge later apologized, but Blumenthal wasn't satisfied…. REQUIREMENTS FOR DEFAMATION Defamatory statements about plaintiff (calling names not enough) 1. Publication communicated to a third party 2. Injury to plaintiff’s reputation EXAMPLE: A colleague from your previous employer publishes false statements about you to your friends DEFENSES TO DEFAMATION 1. CONSENT to say what was said 2. TRUTH in what was said 3. ABSOLUTE or QUALIFIED PRIVILEGE to say what was said DIFFERENCE BETWEEN PUBLIC VS. PRIVATE PERSON 1. Must show actual malice for the public person 2. Statements made knowing it was false with reckless disregard for its falsity PUBLIC PERSON – (politicians, judges, entertainers, athletes) --must show more damage to their reputation than average person to win suit PRIVATE PERSON – YOU AND ME ACTUAL MALICE – Statements made either with knowledge it was false or with reckless disregard of whether true or false. FYI INNOCENT CONSTRUCTION RULE If a statement is reasonably susceptible of both a defamatory and an innocent meaning, the innocent meaning is to be adopted as a matter of law FYI DEFAMATORY STATEMENT Unprivileged publication of false and defamatory matter that tends to reflect injuriously on a person’s reputation, or exposes a person to ―public hatred, contempt, ridicule, or disgrace OR affecting a person adversely in his or her trade, business, or profession. NEGLIGENCE Failure to exercise reasonable care under the circumstances so that a foreseeable risk to another person is created resulting in an injury to the plaintiff. 2007--Woman dies in ER lobby as 911 refuses to help UPDATE: 2008--$45M lawsuit by family Has not gone to trial yet EDITH RODRIGUEZ, 43 4-STEP MODEL TO UNDERSTANDING NEGLIGENCE 1. WAS THERE DUTY? –duty not to hurt a person 2. DID YOU BREACH THAT DUTY? – broken rule 3. WAS THERE CAUSATION? – point the finger 4. WERE THERE DAMAGES? – how responsible are you? EXAMPLE: A colleague from your previous employer publishes false statements about you to your friends Gist word: Causation—act that produces an effect Police Investigate Response To 911 Call Young Boy's Attempt To Save His Mother Fails POSTED: 6:11 pm EDT April 7, 2006 Detroit police are investigating a 911 call that hurt rather than benefited a mother and her child. Robert Turner, 5, called 911 when his mother, who suffered from a heart condition, collapsed in their Detroit home. When a 911 operator answered the call, she didn't take Robert's claims seriously. Operator: "Where's the grown-ups at?" Robert: Inaudible Operator: “Now put her on the phone before I send the police out there to knock on the door and you gonna be in trouble." Operators told Local 4 they take nearly 2 million 911 calls every year, and nearly 40 percent of them are not emergencies. UPDATE: A lawsuit has been filed against two Detroit police dispatchers who refused to send help for Robert Turner's dying mother. The family is asking for more than a million dollars. ANALYSIS OF DUTY REQUIREMENTS Must be to a foreseeable plaintiff Was there a reasonable standard of care? Reasonable Person Standard--Provided reasonable standard of care under normal circumstances Horrendous Circumstances – choosing who should live or die NEGLIGENCE CONTINUED HOW DO YOU COMPARE CHILDREN WITH NEGLIGENCE? Children under 4 incapable of negligence Children over 4 – compare A door with a bullet hole in with similar attributes Landover, Md., after shooting that left 5-year-old Kimberly Brice dead and her 7-year-old brother injured. Boy, 4, 'Sorry' He Shot Siblings LANDOVER, Md. , Sept. 29, 2003 (AP) A 4-year-old boy who shot and killed his sister and wounded his brother understands what he has done, his father said. He knows," Gregory Thigpen Sr. told The Washington Post for a story in Monday's editions. "He's very remorseful. He was apologizing to me." Da'Joun Brice was crying when police arrived Saturday after the boy picked up a .45- caliber semiautomatic handgun and pulled the trigger, shooting 5-year-old Kimberly Brice and 7-year-old Gregory Thigpen Jr. "He kept asking if everybody was okay," said spokeswoman Cpl. Diane Richardson. An older sister, 10-year-old Katina Brice, had gotten Kimberly and Gregory out of the home when she saw Da'Joun with the gun, but the bullet pierced the front door and tore through Gregory's back and hit Kimberly's upper body, police said. The 4-year-old cannot be held criminally responsible, but charges may be filed against the parents or others who left the gun within reach, police said. The mother, Jennifer Brice, also could face charges for leaving the children at home without adult supervision. Thigpen said he was working when the shooting occurred. He declined to say where Brice was. Brice is not married to Thigpen but lives with him and his brother. PROFESSIONALS – Doctors judged by average doctor in community Specialists judged by national standards COMMON CARRIERS – Bus Slight negligence makes them libel INNKEEPERS - Hotel GUEST STATUTES -- non-paying guests Host/Hostessmust show complete reckless disregard for guest safety. Analysis of Causation Requirements Actual Causation But for the defendant’s negligent conduct, would the injury have occurred? Proximate Causation (legal causation) Trier of fact can let a negligent defendant off, whose negligence actually caused the injury based on lack of foreseeability. Negligence of Owners and Occupiers of Land – standard of care to apply. Undiscovered Trespasser – no basic duty of care Discovered Trespasser – give adequate warning Licensee – Salesman – responsible for concealed damages Invited Guests – responsible for concealed dangers and duty of reasonable inspection. Attractive nuisance – swimming pools, old railroad cars, refrigerators—you are responsible if an injury occurs. STRICT LIABILITY No amount of care will eliminate risk and liability if someone is hurt. ANIMALS – dog bite EXOTIC PETS – crocodile ULTRA HAZARDOUS ACTIVITIES – dynamite manufacturer PRODUCT LIABILITY: (With products, must prove that the product was not safe for its intended use and that he was injured by it. Defenses to Negligence Contributory Negligence – if you show both parties contributed to injury, no one collects Comparative Negligence – plaintiff’s recover reduced by % of own negligence (if 51% at fault, cannot collect damages) Assumption of Risk – assumed risk of getting hurt so should not collect Last Clear Chance Doctrine – chance to avoid accident and don’t—you are held solely responsible OK—WHO’S THE WISE GUY?? SEE YA NEXT CHAPTER—WE NEED TO TALK TO MANAGEMENT ABOUT THEIR VERY SENSE OF HUMOR!! FUNNY HA HA!!