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									CHAPTER 9

  TORTS
        INTRODUCTION

This chapter examines in detail the area of
torts as applied to both the individual and
businesses. The essence of this chapter is
responsibility for actions and their
consequences. The student should gain a
greater appreciation for accountability, both
personally and professionally.


                                                2
         ELEMENTS OF AN
        INTENTIONAL TORT
Intentional torts require the plaintiff to prove:

1.   Intent - actual or implied.
2.   Voluntary act by the defendant.
3.   Causation.
4.   Injury or harm.



                                                    3
              DEFENSES
 Consent – If the plaintiff consented to the
  act of the defendant, there is no tort. Even
  if the plaintiff did not explicitly consent, the
  law may imply consent.

 Self-defense or defense of others – may
  also absolve the defendant of liability.



                                                     4
          TYPES OF
     INTENTIONAL TORTS
Suits for Intentional Torts:
 Protect individuals from physical and
  intangible injuries.

 Protect interests in property.

 Protect certain economic interests and
  business relationships.
                                           5
        INTENTIONAL TORTS
        TO PROTECT PERSONS
 Battery - the intentional, nonconsensual, harmful or
  offensive contact with the plaintiff’s person.

 Assault - intentional, nonconsensual act that gives rise to
  the apprehension (fear not required) that a harmful or
  offensive act is imminent.

 False Imprisonment - intentional, nonconsensual
  confinement by physical barriers or by physical force or
  threats of force; the plaintiff must have been aware of and
  have suffered harm as the result of the confinement.

                                                                6
      INTENTIONAL TORTS
      TO PROTECT PERSONS
 Intentional Infliction of Emotional Distress
    Outrageous conduct by the defendant.
    Intent to cause, or reckless disregard of
      the probability of causing, emotional
      distress.
    Severe emotional suffering.
    Actual and proximate causation of the
      emotional distress.

                                                 7
       INTENTIONAL TORTS
       TO PROTECT PERSONS

 Defamation - the communication (or publication)
  to a third party of an untrue statement of fact that
  injures the plaintiff’s reputation by exposing him
  or her to hatred, ridicule or contempt.
 Defenses:
     Truth
     Absolute privilege
     Qualified privilege


                                                         8
           INTENTIONAL TORTS
           TO PROTECT PERSONS
        Case 9.1 Synopsis. Lunney v. Prodigy Services Co. (S.Ct. 2000).
An imposter opened a number of accounts with Prodigy using several
variations of the false name Alexander Lunney, a teenage Boy Scout. The
imposter transmitted an e-mail message containing threatening and vulgar
language to a local scoutmaster; he also posted two obscene messages on
electronic bulletin boards. The scoutmaster who received the offensive e-mail
alerted the police. The police investigating the story accepted the real
Lunney’s denial of authorship. During the investigation, Prodigy notified
Lunney that it was terminating one of his accounts due to the transmission of
obscene and threatening material through the Prodigy service. Lunney
informed Prodigy that an imposter had opened the account using his name.
The company apologized and informed him that it had located four additional
accounts under his name and closed all of those. Lunney sued Prodigy for
negligence and defamation. The trial court denied Prodigy’s motions for
summary judgment. Lunney appealed. CONTINUTED
                                                                            9
        INTENTIONAL TORTS TO
          PROTECT PERSONS
 Case 9.1 Synopsis. Lunney v. Prodigy Services Co. (S.Ct.
  2000). ISSUE: Is an Internet service provider, like the
  telephone and telegraph companies, entitled to a common
  law qualified privilege with respect to defamation claims?
  HELD: The appeals court reversed, holding that Prodigy
  was entitled to the common-law qualified privilege accorded
  to telephone and telegraph companies. The court found that
  Prodigy’s role in transmitting e-mail was similar to that of a
  telephone company’s role in transmitting messages over
  telephone lines; it was merely a conduit for the message.
  INTENTIONAL TORTS TO
     PROTECT PERSONS
 Public Figures and Media Defendants
    Media has 1st amendment right to
      ―freedom of the press‖ when
      commenting on politics and news-
      worthy matters.
    Plaintiff must show Defendant acted with
     ―actual malice‖ (knowledge of falsity or
     reckless disregard for truth).

                                                11
  INTENTIONAL TORTS TO
     PROTECT PERSONS
 Invasion of Privacy - violation of the right to
  keep personal matters to oneself.
    Intrusion - objectionable prying.
    Public disclosure of private facts.
    Appropriation of a person’s name or
      likeness.



                                                    12
 Intentional Torts to Protect Persons
   Case 9.2 Synopsis. Alpha Therapeutic v. Nippon Hoso (9th Cir. 1999).
McAuley was the medical director of Alpha, a California corporation that
produces blood plasma derivatives. NHK of Japan, broadcast two television
programs about Alpha and McAuley, claiming Alpha and McAuley
knowingly shipped blood products to Japan that were contaminated with
the AIDS virus, falsified documents about its investigation of a blood donor,
and reported false information about the donor to the Food and Drug and
Administration. Information was gathered at McAuley’s home by NHK
reporter who was secretly recording the interview. Plaintiffs sued NHK for
invasion of his privacy. The district court dismissed McAuley’s claim, and
he appealed. ISSUE: Does a reporter violate an individual’s right of privacy
when he secretly records an interview with an individual without that
person’s knowledge or consent? HELD: Yes, trial decision reversed,
holding McAuley had stated a claim for invasion of privacy and reversed
the district court’s dismissal of his claim.


                                                                            13
  INTENTIONAL TORTS THAT
     PROTECT PROPERTY
 Trespass to Land - interference with a property right.

 Nuisance - a non-trespassory interference with the
  use or enjoyment of the property.

 Conversion - the exercise of dominion and control
  over the personal property of another.

 Trespass to Personal Property - taking, destroying, or
  substantially altering personal property.

                                                           14
    INTENTIONAL TORTS THAT
       PROTECT PROPERTY
     Case 9.3 Synopsis. eBay, Inc. v. Bidder’s Edge, Inc. (N.D. Cal. 2000).
eBay is the largest consumer-to-consumer online auction site. Users of
eBay must agree to the eBay User Agreement which prohibits the use of
―any robot, spider, other automatic device, or manual process to monitor or
copy our web pages or the content contained therein without our prior
expressed written permission.‖ Bidder’s Edge, Inc. (BE) is an auction
aggregation site that allows on-line auction buyers to search for items
across numerous on-line auctions without having to search each site
individually. In April 1999, eBay agreed to permit BE to crawl the eBay site
for ninety days, in order to collect information for the BE site, while the two
companies negotiated a license. When those license negotiations failed,
eBay requested that BE stop crawling the eBay site. BE initially complied.
However, in November 1999, BE resumed accessing the eBay site, without
authorization, to include eBay auction listings on its site. CONTINUED 

                                                                                  15
    INTENTIONAL TORTS THAT
       PROTECT PROPERTY
Case 9.3 Synopsis (Cont’d). Once again, the parties failed to
  agree on a license and eBay attempted, unsuccessfully, to
  block BE’s unauthorized entries onto its site. eBay sued
  to enjoin BE from accessing eBay’s computer systems
  based on nine causes of action including trespass to
  chattels. ISSUE: Is BE’s entry onto eBay’s web site with
  an automated querying program a trespass to chattels?
  HELD: The Court granted eBay’s request for an injunction
  preventing BE from using any automated query program
  to access eBay’s computer systems or networks for the
  purpose of copying any part of eBay’s auction database.
 INTENTIONAL TORTS THAT
PROTECT CERTAIN ECONOMIC
  INTERESTS AND BUSINESS
      RELATIONSHIPS
Disparagement - publication of statements
derogatory to the quality of the Plaintiff’s
business, to the business in general, or to the
Plaintiff’s personal affairs in order to
discourage others from dealing with her.

                                                  17
 INTENTIONAL TORTS THAT
PROTECT CERTAIN ECONOMIC
  INTERESTS AND BUSINESS
      RELATIONSHIPS
 Injurious Falsehood - false statements
  knowingly made that result in economic
  loss to the Plaintiff.

 Defenses (same as those for defamation).


                                             18
  INTENTIONAL TORTS THAT
 PROTECT CERTAIN ECONOMIC
   INTERESTS AND BUSINESS
       RELATIONSHIPS
 Fraudulent Misrepresentation - Defendant intentionally
  misleads Plaintiff by making a material
  misrepresentation of fact upon which the Plaintiff relied
  and was injured by that reliance.

 Malicious Prosecution and Defense - Plaintiff must show
  a prior proceeding was instituted against him or her
  maliciously and without probable cause of factual basis.
                                                              19
   INTENTIONAL TORTS THAT
  PROTECT CERTAIN ECONOMIC
    INTERESTS AND BUSINESS
        RELATIONSHIPS
 Interference with Contractual Relations - Defendant intentionally
  induces another person to breach a contract with the Plaintiff.
 Interference with Prospective Business Advantage - Plaintiff
  must prove that Defendant interfered with a relationship Plaintiff
  sought to develop, and the interference caused the Plaintiff’s
  loss.
 Defense - good faith competition.
 Bad Faith - separate from breach of contract action.
                                                                  20
  INTENTIONAL TORTS THAT
 PROTECT CERTAIN ECONOMIC
   INTERESTS AND BUSINESS
       RELATIONSHIPS
       Case 9.4 Synopsis. McEvoy v. Group Health Cooperative (Wis. 1997).
In 1991, McEvoy, a thirteen-year-old girl, was diagnosed with anorexia nervosa (a
potentially fatal eating disorder) by her primary physician, Dr. McFarlane of Group
Health Cooperative of Eau Claire (GHC), an HMO that insured Angela as a
dependent of her mother, Susan McEvoy, the health care benefits policyholder.
GHC, unable to care adequately for McEvoy, referred her to UMH, an out-of-
network provider, for six weeks. GHC decided to discontinue coverage of
Angela’s care at UMH and to referred her to a newly-formed, in-network outpatient
group therapy session for compulsive overeaters. Four weeks remained on the
policy. After discharge, McEvoy relapsed. CONTINUED


                                                                                 21
  INTENTIONAL TORTS THAT
 PROTECT CERTAIN ECONOMIC
   INTERESTS AND BUSINESS
       RELATIONSHIPS
Case 9.4 Synopsis. (Cont’d) McEvoy sued GHC claiming
breach of contract and bad faith in denying Angela
coverage for her treatment. ISSUE: Can HMOs be sued
by subscribers under the common law tort of bad faith?
HELD: Affirmed. McEvoys were permitted to sue the
HMO for the common law tort of bad faith. That tort
applies to all health maintenance organizations making
out-of-network benefit decisions.
              NEGLIGENCE
 Duty - person with legal duty to another is
  required to reasonably avoid harm. There is no
  general duty to rescue.

 Defendant breached that duty

 Causal connection between breach and injury
    Actual causation
    Proximate causation.

 Plaintiff suffered actual loss or injury
                                                   23
         NEGLIGENCE:
DUTY OF LANDOWNER OR TENANT
 Traditional Approach to Liability for Injuries on Premises:
     Duty to Trespassers
     Duty to Licensees
     Duty to Invitees
 Reasonable Care Approach – courts require all landowners
  to act in a reasonable manner with respect to entrants on
  their land, with liability hinging on the foreseeability of
  harm.
 Duty of Landlord to Tenant – landlord has a duty to take
  steps to provide adequate security to protect tenants from
  foreseeable criminal acts of a third party.

                                                                24
NEGLIGENCE: DUTY OF ACCOUNTANTS AND
OTHER PROFESSIONALS TO THIRD PARTIES
 Case 9.5 Synopsis. Securities Investor Protection v. BDO Seidman (2d Cir. 2000).
 SIPC is a private, nonprofit membership corporation formed pursuant to the
 Securities Investor Protection Act of 1970 (SIPA), to monitor the activities of
 broker-dealers and insure customer accounts in the case of a broker-dealer’s
 liquidation. SIPA requires broker-dealers to file annual audit reports with the SEC
 and one of the self-regulation bodies within the broker-dealer industry. Broker-
 dealers must employ an independent public accountant to file reports. A.R. Baron
 & Co., Inc., a registered securities broker-dealer, retained BDO Seidman to serve
 as its independent certified public accountant and auditor from 1992 through
 1995, as required by SIPA. During that time, some of Baron’s management
 engaged in illegal activities including fraud in the sale of securities and
 manipulation of initial public offerings. Thirteen Baron employees pleaded guilty
 to or were convicted of crimes and Baron also pleaded guilty to enterprise
 corruption. Baron filed for bankruptcy in 1996. CONTINUED


                                                                                  25
NEGLIGENCE: DUTY OF ACCOUNTANTS AND
OTHER PROFESSIONALS TO THIRD PARTIES
 Case 9.5 Synopsis (Cont’d) . On July 11, 1996, the United States District
 Court of the Southern District of New York found that Baron’s customers
 were in need of the protection of SIPA and directed the appointment of a
 trustee to oversee Baron’s liquidation. The trustee and SIPC brought a claim
 against Seidman, alleging that Seidman was negligent as Baron’s certified
 public accountant by allowed Baron’s management’s misconduct to go
 undetected and ultimately to result in its precarious financial condition. SIPA
 sued Seidman but the court dismissed SIPA’s claim because they had not
 established the privity-like relationship between SIPA’s customers and
 Seidman required for a negligent misrepresentation claim. SIPA appealed.
 ISSUE: Does a broker-dealer’s accountant have a duty to the broker-dealer’s
 customers so that he can be held liable to them for negligent
 misrepresentation? HELD: No. Affirmed. Baron’s customers could not
 recover for negligent misrepresentation against Seidman.


                                                                                   26
   NEGLIGENT HIRING AND
  LIABILITY FOR LETTERS OF
     RECOMMENDATION
 Negligent Hiring – the proximate cause of the
  plaintiff’s injury is the employer’s negligence in
  hiring the employee, rather than the employee’s
  wrongful act.
 Duty of Employers to Third Parties Based on
  Letters of Recommendation:
   ―too much‖ information
    ―too little‖ information

                                                       27
     NEGLIGENT HIRING AND
    LIABILITY FOR LETTERS OF
       RECOMMENDATION
     Case 9.4 Synopsis. Randi W. v. Muroc School District (Cal. 1997).
 Gadams was a school administrator at Livingston Middle School. Randi
was a thirteen-year-old student at that school. Gadams allegedly
molested Randi. Gadams was hired based on the strength of letters of
recommen-dation that failed to mention accusations of similar conduct at
Gadams’ previous schools of employment. Randi sued, claiming the
letters of recommendation were negligent misrepresentations, and that
the letter writers should have foreseen this type of harm. Therefore, a
duty was owed to the school children as well as the school district hiring
Gadams. CONTINUED



                                                                             28
     NEGLIGENT HIRING AND
    LIABILITY FOR LETTERS OF
       RECOMMENDATION
The trial court dismissed Randi’s claim stating no duty was
owed to Randi. ISSUE: Can an employer who writes a
favorable recommendation letter that omits known, material,
negative information be held liable to a third party who suffered
physical injury as a result of the employer’s omission? HELD:
Defendant is liable for negligence because the Defendant
omitted material facts from the recommendation letters,
resulting in ―half-truths‖ about Gadams.
  NEGLIGENCE: BREACH OF
DUTY, CAUSATION AND INJURY
                   Standard of Conduct
  Negligence per se – once the plaintiff shows that the
   defendant violated a statute and the violation caused the
   injury, the burden shifts to the defendant to prove that he or
   she was not negligent.
  Res Ipsa Loquiter – allows the plaintiff to prove breach of
   duty and causation indirectly.
  Causal Connection:
      Actual Cause
      Proximate Cause (Zone of Danger or Foreseeable
          Consequences)

                                                                    30
  NEGLIGENCE: BREACH OF
DUTY, CAUSATION AND INJURY
      Case 9.7 Synopsis. Gaines-Tabb v. ICI Explosives (10th Cir. 1998).
On April 19, 1995, a bomb exploded in a federal building in Oklahoma City
killing 168 people and injuring hundreds of others. Individuals injured by
the bomb filed a suit for negligence against ICI because ICI manufacturers
ammonium nitrate that can be either ―explosive grade‖ or ―fertilizer grade‖
that was ultimately purchased by either Timothy McVeigh or Terry Nicholas
to make the bomb. The plaintiffs claimed, among other things, that ICI was
negligent in making explosive grade ammonium nitrate available to the men
who bombed the federal building. The district court dismissed the plaintiffs’
claims against ICI, finding that ICI did not have a duty to protect the
plaintiffs and that ICI’s actions were not the proximate cause of their
injuries. The plaintiffs appealed. CONTINUED


                                                                                31
 NEGLIGENCE: BREACH OF
DUTY, CAUSATION AND INJURY
 Case 9.7 Synopsis.(Cont’d). ISSUE: Was ICI’s sale of
 explosive-grade ammonium nitrate mislabeled as fertilizer-
 grade ammonium nitrate the proximate cause of injuries to
 the Oklahoma bombing victims? HELD: Affirmed. As a
 matter of law it was not foreseeable that ICI’s ammonium
 nitrate would be used to blow up the federal building. The
 criminal activities of the bombers were a supervening cause
 of plaintiffs’ injuries. Because ICI’s negligence was not the
 proximate cause of the victims’ injuries, the case was
 dismissed.
 NEGLIGENCE: BREACH OF
DUTY, CAUSATION AND INJURY
 Injury – plaintiff must prove that she or her property
  was injured.
 Negligent infliction of emotional distress – the
  traditional rule is that a plaintiff cannot recover for
  negligent infliction of emotional distress unless he or
  she can show some form of physical injury. But…
 Recent cases involving HIV have permitted plaintiffs
  to recover from emotional distress without requiring
  that they actually have contracted the virus.

                                                       33
DEFENSES TO NEGLIGENCE
  Contributory Negligence - If Plaintiff is
   negligent at all, he recovers nothing.

  Comparative Negligence - Plaintiff recovers
   in proportion of his loss attributable to his
   negligence.
     Ordinary comparative negligence
     Pure comparative negligence

                                                   34
DEFENSES TO NEGLIGENCE

  Assumption of the Risk defense requires:
     Plaintiff knew of the risk.
     Plaintiff voluntarily incurred the risk.

  Countervailing Federal Imperatives




                                                 35
DEFENSES TO NEGLIGENCE
         Case 9.8 Synopsis. Malik v. Carrier Corp. (2d Cir. 2000).
Malik joined Carrier as an associate in its executive training program,
which was administrated by Regina Kramer, Carrier’s Manager of
Professional Recruitment. The program provided associates with the
opportunity to work in different divisions of the company, after which
they could be expected to be offered an executive position in one of
these divisions. Several female workers complained that he made
inappropriate sexual comments to them. Carrier investigated the sexual
harassment claims. Although Malik was not disciplined, a Letter of
Record regarding the complaints was placed in his personnel file. Malik’s
employment with Carrier was eventually terminated after Malik failed to
secure a final placement at the conclusion of the program. After his
termination, Malik sued Carrier for negligent infliction of emotional
distress as a result of the sexual harassment investigation. The jury
returned a verdict for Malik. Carrier appealed. CONTINUED

                                                                            36
DEFENSES TO NEGLIGENCE

Case 9.8 Synopsis. (Cont’d).

  ISSUE: Can an employer investigating charges of sexual
  harassment against an employee be liable for negligent
  infliction of emotional distress resulting from the
  investigation? HELD: The U.S. Court of Appeals reversed
  the district court’s order denying judgment as a matter of
  law to Carrier noting that the placing of the Letter of Record
  in Malik’s file cannot be the basis for liability without
  undermining federal policy.
 VICARIOUS LIABILITY AND
  RESPONDENT SUPERIOR
A master (the Employer) is vicariously
responsible for the torts of the servant (the
Employee) if the employee was acting within
the course and scope of employment




                                                38
   VICARIOUS LIABILITY AND
    RESPONDENT SUPERIOR
               CASE 9.9 Synopsis. Fearing v. Bucher (Or. 1998).
From 1970 through 1972, Bucher, a priest employed by the Franciscan Friars
of California, Inc. and the Archdiocese of Portland in Oregon, acted as youth
pastor, friend, confessor, and priest to Fearing and his family. Bucher gained
the trust and confidence of Fearing’s family and was a frequent guest in
their home. Bucher began to spend substantial periods of time alone with
Fearing, who was a minor, and committed a series of sexual assaults upon
him. Many years later, Fearing filed claims against the Archdiocese on
theories of vicarious liability through application of the doctrine of
respondeat superior and of negligent retention, supervision and training of
Bucher. The trial court dismissed the case and the court of appeals affirmed.
Fearing appealed. CONTINUED 


                                                                             39
  VICARIOUS LIABILITY AND
   RESPONDENT SUPERIOR
CASE 9.9 Synopsis (Cont’d).

ISSUE: Can an employer be held vicariously liable for an
employee’s sexual assault on a minor based on the doctrine of
respondeat superior? HELD: Yes. The Supreme Court of
Oregon reversed finding that the allegations of the amended
complaint were sufficient to state a claim of vicarious liability
against the Archdiocese based on the doctrine of respondeat
superior. The plaintiff was permitted to proceed with his
lawsuit.
    SUCCESSOR LIABILITY

Individuals or entities who purchase a
business or real property may be held liable
for tortuous acts of the previous owner.




                                               41
  LIABILITY OF MULTIPLE
       DEFENDANTS
Joint and Several Liability - Defendants are
collectively and individually liable.

Contribution and Indemnification - allocates
liability proportionately among the
defendants.


                                                42
        STRICT LIABILITY

Ultra hazardous Activities - Defendant’s
activity is so dangerous that no amount of
care could protect others from the risks of
harm.




                                              43
              DAMAGES
 Actual Damages – measure the cost to
  repair or replace an item or the decrease in
  market value caused by the tortious act.
  Also known as compensatory damages.

 Punitive Damages—exemplary damages
  (only awarded in cases of outrageous
  misconduct).

                                                 44
           TOXIC TORTS
Definition - a wrongful act that causes injury
by exposure to a harmful, hazardous, or
poisonous substance.

Expensive to Defend

Strict Liability

New Theories of Damages for Future Injuries
                                                  45
THE RESPONSIBLE MANAGER

             Reducing Tort Risks

Managers should implement ongoing programs of
education and monitoring to reduce the risks of tort
liability. Managers should also work to prevent
their employees from committing acts of
negligence, which can lead to large damage awards
against the company.


                                                       46
                 REVIEW
1. Why is the tort of intentional infliction of
   emotional distress difficult to prove?

2. Given the current state of the media,
   should torts such as defamation and
   invasion of privacy be liberalized?

3. Discuss why large corporations want joint-
   and-several liability eliminated.
                                                  47

								
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