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Chapter Eleven The Law of Torts

We said in  Chapter 2  that the law is divided into criminal law and civil law. The division, however, is not airtight. Although a given set of actions may constitute a crime or a wrong against the state and thus may give rise to a criminal prosecution, the same set of actions may also constitute a tort, a civil wrong that gives the injured party the right to bring a lawsuit against the wrongdoer to recover compensation for the injuries. We define a  tort  as an injury to another’s person or property.

tort 

An injury to another’s person or property; a civil wrong.

This chapter discusses torts as if they were the same across the country—and, in general, they are—but keep in mind that tort law is state law and so may vary somewhat from state to state. The total amount of tort litigation has been declining since 1996. 1  Even so, tort law is and will continue to be an important area of law and an essential subject for the student of the legal environment of business, because managers who do not have a basic understanding of tort law are placing themselves and the company’s stakeholders at risk.

1  Ted Rohrlich, “America’s Litigation Explosion Has Fizzled,” Los Angeles Times, Feb. 1, 2001.

The Goals of Tort Law

Tort cases are commonly referred to as personal injury cases, although a tort case may involve harm solely to property. The primary goal of tort law is to compensate innocent persons who are injured or whose property is injured as a result of another’s conduct, but tort law also fulfills other important societal goals. It discourages private retaliation by injured persons and their friends. It promotes citizens’ sense of a just society by forcing responsible parties to pay for the injuries they have caused. Finally, it deters future wrongs because potential wrongdoers are aware that they will have to pay for the consequences of their harmful acts.

For example, if Sam takes Judy’s car without her permission and wrecks it, he has committed a tort. If there were no tort law, she would get no compensation from Sam and would have to use her own money to have the car repaired or to buy a new one. She would feel that she lived in an unjust world. She might even be tempted to seek revenge against Sam by breaking his car window (or something else even more personal). Others, seeing what Sam has gotten away with, would be less likely to be careful with other people’s property in the future. Because we have tort law, however, Judy can sue Sam and receive compensation from him for the damage he did to her car. She will then feel that she has received justice and will not be inclined to take any private retaliatory actions against Sam. Others, knowing that Sam had to pay for the harm he caused, may be deterred from committing torts themselves.

Critical Thinking About The Law

Tort law allows compensation for individuals whose person or property has been injured. Applying some critical thinking questions to tort law can help you better understand this chapter.

1. As discussed in  Chapter 1 , courts have preferences for certain ethical norms. Using critical thinking skills will help us understand how those norms have shaped legal reasoning about tort law. It is quite possible for two judges hearing a tort case to disagree on a verdict. One reason for the different verdicts is their disagreement over which ethical norms are most important. What conflict of ethical norms is inherent in tort law?

Clue: Think of the definitions of the primary ethical norms in  Chapter 1 . If a judge strongly values freedom, what ethical norm might conflict with the judge’s loyalty to freedom? Why?

2. Loyalty to certain ethical norms will influence your attitude toward compensating injured individuals. Remember that the majority of civil jury trials involve torts. If you value efficiency, how might the large number of tort cases in the court system affect your thinking about tort law?

Clue: Why would this large number of tort cases not trouble a person who values justice over efficiency?

3. One of the critical thinking skills you have learned to use is the identification of ambiguous words. Words with multiple possible meanings can result in different interpretations of a law. In tort law, this issue is especially important. Look at the definition of a tort. How does the definition of the word injury influence thinking about tort cases?

Clue: Again, consider the number of tort cases in the courts. How would the number of court cases change if we loosely defined the word injury? What ethical norms would influence our definition of injury?

Damages Available in Tort Cases

The victim of a tort may sue the wrongdoer, known as the tortfeasor, and has the potential to recover from among three types of damages: compensatory, nominal, and punitive ( Table 11-1 ). All three types of damages were defined and discussed in  Chapter 10  in relation to breaches of contract. Here we describe their specific application to tort cases.

Compensatory Damages

The most common type of damages sought in tort cases are compensatory damages. Compensatory damages are designed to make the victim whole again, that

Table 11-1 Types of Tort Damages

Type	Purpose	Amount
Compensatory	To put the plaintiff in the position he or she would have been in had the tort never occurred	Sufficient to cover all losses caused by the tort, including compensation for pain and suffering
Nominal	To recognize that the plaintiff has been wronged	A nominal amount, usually $1–$5
Punitive	To punish the defendant	Determined by the severity of the wrongful conduct and the wealth of the defendant

is, to put the victim in the position he or she would have been in had the tort never taken place. They include compensation for all of the injuries that the tortfeasor caused to the victim and his or her property. Typical items covered by this class of damages are medical bills, lost wages, property repair bills, and compensation for pain and suffering. Note that attorneys’ fees are not considered an item of compensatory damages, even though it would be virtually impossible for a victim to bring suit without the services of an attorney. Because the plaintiffs in personal injury cases usually must pay their attorneys by giving them a portion of the compensatory damages they are awarded, some people argue that compensatory damages do not fully compensate tort victims.

Nominal Damages

Sometimes the plaintiff is unable to prove damages that would necessitate compensation. In such a case, the court may award the victim nominal damages (damages in name only). The sum of such awards is minuscule, usually $1, but recovery of nominal damages may be important because it allows the plaintiff to seek punitive damages. Punitive damages cannot be awarded alone; they must accompany an award of compensatory or nominal damages.

An illustration of an instance in which nominal damages were of utmost importance is the case of the death-row inmate in South Carolina who received nominal damages of only 10 cents from his case against prison guards. 2  This sum allowed the plaintiff—in this case, the inmate—to seek punitive damages. This award, however, was important for other reasons as well. For example, it may change the prison guards’ behavior in the future. Also, because the inmate won, even though the damages were only nominal, perhaps the public will see the case as involving an important legal issue.

2  “Lawyer Gets $30,000 Fee Award for 10-Cent Win,” LWUSA 95: 1037 (1995).

Punitive Damages

When the act of the tortfeasor is flagrant, unconscionable, or egregious, the court may award the victim punitive damages. These damages are designed not only to punish the tortfeasor for willfully engaging in extremely harmful conduct, but also to deter others from engaging in similar conduct. Punitive damages are considered by some legal scholars to be especially useful in deterring manufacturers from making unsafe products. If there were no possibility of incurring punitive damages, manufacturers might calculate how much money they would have to spend fighting and settling lawsuits resulting from the sale of a defective product and then calculate the cost of making a safer product. If it turned out to be cheaper to produce the defective product and compensate injured victims than to make a safer product, rational manufacturers would be likely to produce the defective product. The risk of incurring punitive damages, however, is often sufficient to convince manufacturers to produce the safe product.

Some people disagree with this reasoning. They claim that the costs of compensatory damages alone are a sufficient incentive to produce only safe products. They further argue that the almost unrestricted ability to award punitive damages gives juries too much power.

In recent years, there have been many attempts by insurance companies and tort reform groups to limit the amount of punitive damages that can be assessed. These advocates of tort reform have tried repeatedly to get the courts to strike down punitive damages as unconstitutional on the ground that such damages violate defendants’ due process rights. This argument was unsuccessful until the 1994 case of Honda Motor Co. v. Oberg. 3  This case, in which the U.S. Supreme Court struck down a punitive damages award as being a violation of due process, was unusual in two respects. First, the punitive damages were more than 500 times the amount of the compensatory damages. Second, the state law had no provision for judicial review of the amount of the punitive damages award, whereas every other state allows such a review. It was Oregon’s denial of judicial review of the amount of punitive damages that the high court said violated the Due Process Clause. Because of its unusual facts, Honda v. Oberg was not very instructive as to when punitive damages are so excessive as to violate due process. But in the 1995 case of BMW v. Gore, 4  the Supreme Court finally set forth a workable test. The so-called BMW guideposts require courts to look at three factors to determine whether a punitive damages award is so excessive as to violate due process: (1) the reprehensibility of the conduct, (2) the ratio of punitive damages to compensatory damages, and (3) comparable civil and criminal penalties for the same crime.

3  114 S. Ct. 2331 (1994).

4  116 S. Ct. 1589 (1995).

Then, in 2003, the U.S. Supreme Court reaffirmed and attempted to clarify the BMW rule when holding in State Farm v. Campbell  5  that a punitive damages award was grossly excessive and violated the Due Process Clause. In Campbell, the plaintiffs sued their auto insurance carriers alleging bad-faith failure to settle a claim against them within policy limits. The jury found in favor of the plaintiffs, awarding $2.6 million in compensatory damages. The jury further awarded $145 million in punitive damages, primarily because of evidence that State Farm’s conduct was part of a long-standing pattern and practice of dishonest and fraudulent acts against policyholders.

5  123 S. Ct. 1513 (2003).

The trial court reduced the punitive award to $25 million, but the Utah Supreme Court, in an extensive opinion evaluating the evidence, reinstated the jury’s verdict. The U.S. Supreme Court granted review of whether the punitive damages award violated the standards of BMW v. Gore by a constitutionally excessive ratio to compensatory damages and by punishing the defendant in part for out-of-state conduct not directly affecting the plaintiffs.

The Supreme Court reiterated from Gore v. BMW that the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct, and noted that the reprehensibility of a defendant is determined by considering whether “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” 6

6  Id. at 1516.

The Court also noted that punitive damages should be awarded only if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.

In applying the first prong of the BMW case, the high court found that although the defendant’s direct conduct against the plaintiff was reprehensible enough to warrant some modest punitive damages, the trial court erred in allowing the jury to consider the defendant’s out-of-court conduct toward other policyholders, and without this improperly considered evidence of out-of-state conduct, the defendant’s conduct in failing to settle the claim within its policy limits was not sufficiently reprehensible to warrant such a large punitive damages award.

Although the Court once again refused to draw a line as to what ratio of compensatory to punitive damages was acceptable, it did give some additional guidance by saying that “[o]ur jurisprudence and the principles it has now established demonstrate . . . that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” 7 *

7  Id. at 1524.

*  State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003), 123 S. Ct. 1513 (2003).

Since Gore, some states have modified the standards they apply in their states to determine whether a punitive damages award violates due process. For example, notice how Florida has adopted a standard that is somewhat more favorable to defendants than the original Gore standards are.

 Case 11-1 Young v. Becker & Poliakoff

Court of Appeals of Florida, Fourth District 88 So.3d 1002 (2012)

Jacquelyn Young hired the law firm of Becker & Poliakoff to represent her in her federal employment discrimination lawsuit against her employer. The firm associate that filed the action made a mistake by attaching the wrong U.S. Equal Employment Opportunity Commission (EEOC) right-to-sue letter. The court dismissed the claims. The law firm did not try to re-file using the correct attachment, or try to dismiss the motion. Thirteen months later, the law firm informed Young that the claims had been dismissed, and that the firm was withdrawing from representing her further with the case.

Young argued that the firm had a conflict of interest when it continued to represent other employees of Young’s employer, and when their settlement included a rule barring the firm from suing the employer in the future. Young believed that the firm had waited to pursue her case until its other case was settled. The jury determined that Becker & Poliakoff knew that the case had been dismissed, but withheld that information from Young so they could settle the other case and secure the $2.9 million fee and cost reimbursement in that case. The jury returned a verdict for Young of $394,000 in compensatory damages as a result of Becker & Poliakoff’s breach of fiduciary duty. The total compensatory damages consisted of $144,000 in past lost wages and $250,000 in damages for “pain and suffering, mental anguish, or loss of dignity.” However, the court reduced the punitive damages to $2 million, claiming that no evidence was presented to show that the firm could afford the award without facing bankruptcy. Both parties appealed.

Justice Taylor

We grant appellee’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place. No further motions for rehearing or clarification will be entertained. . . .

“Under Florida law, a trial court’s determination of whether a damage award is excessive, requiring a remittitur or a new trial, is reviewed by an appellate court under an abuse of discretion standard.” In ruling on a motion for remittitur, the trial court must evaluate the verdict in light of the evidence presented at trial. . . .

In evaluating a punitive damages award, the trial court must also determine whether the award comports with constitutional due process requirements. “The three criteria a punitive damages award must satisfy under Florida law to pass constitutional muster are: (1) ‘the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct;’ (2) the award ‘bears some relationship to the defendant’s ability to pay and does not result in economic castigation or bankruptcy to the defendant;’ and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded.”

In this case, the trial court found that the $4.5 million punitive damages award overcame the presumption of excessiveness under Section 768.73, Florida Statutes. The court, however, concluded that the award did not satisfy the criteria for constitutionality. Although the court found that the first and third criteria mentioned above were met because the award was proportional to reprehensible conduct of the defendant and bore a reasonable relationship between the compensatory and punitive amount awarded, it found that the award fell short on the second criteria; it was excessive because it was “too much for Defendant to bear without economic castigation or bankruptcy.” As explained in the trial court’s thorough and detailed order, this finding is supported by the record.

After noting that the jury apparently discredited evidence presented by the defense regarding Becker & Poliakoff’s financial picture, the trial court turned to testimony of Young’s financial expert, Dr. Pettingil, in determining that the $4.5 million punitive damages award would bankrupt Becker & Poliakoff. In short, the trial court found that Dr. Pettingil’s opinion placed the law firm’s net worth at $9.7 million to $11.1 million, and that “a $4.5 million punitive damages award constitutes forty percent of the net worth of the company.” This amount, the court reasoned, was “too large” and exceeded “the highest amount that can be sustained based upon the evidence.” Explaining how it arrived at the $2 million remittitur amount, the court stated the following:

The court finds that the maximum award that will not be excessive is $2 million which constitutes about 18%–20% of the firm’s net worth. Dr. Pettingil’s testimony establishes sufficient assets to bear this amount. His testimony established annual earnings of $675,000.00 per year increasing by 3% in 2010 and every year thereafter, $3 million per year in extraordinary compensation and a total of $1.5 million in retained earnings. Over 2009 and 2010 this would amount to assets exposable to collection of a punitive damage award of $6 million to $9 million, depending upon the extent of payment to officers’ extraordinary compensation.

$2 million is as close to disgorging what the jury determined to be ill-gotten gains as Defendant’s financial wealth will tolerate.

Contrary to Young’s contention, the trial court did not improperly substitute its judgment for that of the jury, but instead properly exercised its discretion in reviewing the award upon the financial information in evidence. While a punitive damages award should be painful enough to provide some retribution and deterrence, it should not financially destroy a defendant. We, therefore, do not disturb the amount of the punitive damages ordered by remittitur; reasonable people could differ over this matter, and, therefore, no clear abuse of discretion is shown.

We further find any error in the trial court’s ruling that prohibited Dr. Pettingil from testifying that an award of $10 million would not bankrupt Becker & Poliakoff to be harmless. Here, the witness was allowed to state his opinion concerning valuation of the firm’s net worth and its financial ability to pay an award. And, even without hearing the witness’s opinion as to whether an award of $10 million would bankrupt the firm, the jury still awarded $4.5 million in punitive damages—an amount the trial court found to be excessive in relation to the firm’s net worth.

We reject Becker & Poliakoff’s argument that the punitive damages award should have been set aside or remitted further. In connection with this argument, Becker & Poliakoff argues that the only “loss” cognizable in this case would have been loss of wages and that mental anguish damages were precluded by the impact rule. Assuming, without deciding, that the damages for mental anguish were not properly awardable as compensatory damages in this case, it is clear that the jury awarded at least some compensatory damages for breach of fiduciary duty. Thus, we need not consider whether punitive damages could have been awarded in this case in the absence of actual damages. *

*  Young v. Becker & Poliakoff 88 So.3d 1002 (2012).

Accordingly, we affirm the final judgment.

Although the BMW v. Gore guidelines have led to even more damages awards being overturned, most people fail to recognize that even before BMW and Campbell, most multimillion-dollar damages awards by juries making headlines and fueling the debate over limiting punitive damages were rarely paid and certainly not promptly paid. In September 1995, for example, a federal jury in Alaska slapped Exxon Corporation with the largest punitive damages award ever imposed on a corporation: $5 billion awarded to 32,000 people who were injured by the Exxon Valdez oil spill in March 1989. The award was 10 times the economic loss of $500 million suffered by the plaintiffs. Before the time for filing posttrial material had closed, Exxon had filed a total of 22 motions. Eventually, the appellate court ordered the trial judge to reduce the “excessive” award, so District Court Judge Holland reduced the punitive damages award to $4 billion— but in 2006, the appellate court said that the reduction was insufficient and further reduced the award to $2.5 billion. In late 2007, the U.S. Supreme Court refused to hear the final appeal of Exxon in this case. See  Table 11-2  for some examples of appeals courts’ reductions of extravagant punitive damages awarded by juries.

States tend to take a more active role in limiting punitive damages. For example, on February 2, 1994, the Texas Supreme Court handed down a decision in the case of Transportation v. Moriel  8  that is expected to make it more difficult for plaintiffs in that state to recover punitive damages, and many commentators believe that the ruling will influence decision makers in other states. Moriel suffered a broken pelvis and became impotent as a result of having a stack of countertops fall on him while he was working. He sued the insurance company when it delayed payment on some of his medical bills. The jury awarded Moriel $101,000 in compensatory damages, with $100,000 of that total being for mental anguish, and $1 million in punitive damages. The state court of appeals affirmed

8  879 S.W.2d 10 (Tex. 1994).

Table 11-2 Some Major Punitive Damage Awards

Case	Jury Award	Ultimate Resolution
Geragos v. Borer	Attorney Geragos was defending Michael Jackson. Geragos chartered a private plane from XtraJet, Inc., to fly with Jackson from Las Vegas to Santa Barbara, so that Jackson could surrender for his arrest. Borer, the owner of XtraJet, installed hidden cameras on the plane, and then attempted to sell the recordings of Jackson and Geragos on their flight. When Geragos found out, he sued Borer, claiming, among other things, invasion of privacy, misappropriation of name and likeness, and unfair business practices. He received an award for $2.25 million in compensatory damages and $9 million in punitive damages.	On appeal in 2010, compensatory damages were reduced to $150,000 and punitive damages to $600,000. The judge found the punitive award to be so excessive under the circumstances as to violate due process. He believed that a ratio of no more than 4 to 1 was appropriate given that Borer’s conduct was not as reprehensible as other forms of punishable conduct, in that he did not endanger anyone’s health or safety, he did not target a financially vulnerable victim, and he had never engaged in similar misconduct in the past.
Frankson v. Browne & Williamson	A jury awarded the widow Gladys Frankson $350,000 in compensatory damages and $20 million in punitive damages following the death of her husband, who died from lung cancer caused by his using the defendant’s cigarettes.	In June 2004, the Supreme Court of New York did not strictly follow the 4:1 ratio in State Farm v. Campbell, but it held that the punitive damages were still excessive and reduced the punitive damages award to $5 million if the plaintiff agreed to the new amounts. Otherwise, the judge directed a new trial on the issue of punitive damages.
Diamond Woodworks, Inc. v. Argonaut Insurance Co.	A jury awarded compensatory damages and $14 million in punitive damages to an employee who was denied insurance benefits after being injured at his place of employment.	The trial court reduced the punitive damages to $5.5 million, but the appellate court granted the defendant’s motion for a new trial only if the defendant agreed to a remittitur of $1 million in punitive damages, in accordance with the 4:1 ratio established in State Farm v. Campbell.
Conroy v. Owens-Corning Fiberglass	A jury awarded $3.37 million in compensatory damages and $54 million in punitive damages to the families of three men who contracted mesothelioma from long-term workplace exposure to asbestos.	On appeal, punitive damages were reduced from $18.2 million per plaintiff to $1 million and one cent per plaintiff. The plaintiffs then settled for an undisclosed amount.
Liebeck v. McDonald’s	A jury awarded Stella Liebeck $2.9 million in damages, including $2.7 million in punitive damages for extensive burns she received when she spilled hot coffee (170°F) on her legs. Jurors were influenced by McDonald’s having known that prior customers had received severe burns from its coffee and its ongoing failure to warn customers about its unusually hot product.	The trial court reduced the award by 77 percent to $640,000. The parties subsequently settled the case for an undisclosed amount.

the verdict. The Texas Supreme Court struck down the punitive damages award, holding that an insurance company’s refusal to pay a claim does not justify punitive damages unless the failure to pay was in bad faith and the insurer knew that its action would probably bring about extraordinary harm such as “death, grievous physical injury or genuine likelihood of financial catastrophe.”

An example of a state law limiting punitive damages is that of Missouri, which limits punitive damages to five hundred thousand dollars or five times the net amount of the judgment awarded to the plaintiff against the defendant. Such limitations, however, do not apply if the state of Missouri is the plaintiff requesting the award of punitive damages, or the defendant pleads guilty to or is convicted of a felony arising out of the acts or omissions pled by the plaintiff. The restriction also doesn’t apply to cases arising under a limited number of Missouri statutes. 9  Many pieces of legislation designed to reform tort law have been proposed at both the federal and the state levels. The majority of these proposals contained provisions limiting punitive damages, and many focused on medical malpractice. For example, in 1995, the proposed federal Common Sense Legal Reform Act contained a provision limiting punitive damages in certain types of tort cases—namely, torts involving defective products (so-called product liability cases, which are discussed in  Chapter 12 ). This legislation would allow punitive damages in such cases only when the plaintiff could prove by clear and convincing evidence that the harm suffered was caused by “actual malice.” Such damages would also be limited to $250,000 or three times the actual economic harm incurred by the plaintiff, whichever was greater. Part of this legislation, including the cap on punitive damages, was passed in 1996 but was vetoed by President Clinton. In 2011, HR 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 was proposed. The act would have imposed limits on medical malpractice litigation in state and federal courts by capping awards and attorney fees, modifying the statute of limitations, and eliminating joint and several liability.

9  Missouri Revised Statutes Chapter 510, Section 510-265, August 28, 2012.

Until 2005, reformers at the federal level had very little success. In February of 2005, however, in response to arguments that state tort laws lack uniformity, the Class Action Fairness Act, designed to transfer jurisdiction in large, multistate class action tort suits from state courts to federal courts, was signed into law. Because state courts commonly give larger awards in class action suits than do federal courts, the new legislation was seen as a way to reduce the awards in such cases.

According to the Federal Judicial Center, the law did have one very swift and certain impact on the courts: It sharply increased the number of class action suits filed in and removed to the federal courts. 10  Under the law, the federal courts have jurisdiction over class action cases in which (1) the aggregate value

10  Maricia Coyle, “Class Action Changes Bring Quick Impact,” National Jaw Journal 6 (Oct. 2, 2006).

Comparative Law Corner Punitive Damages in Japan

Punitive damages have been a major source of contention in the United States. Tort reformists in the United States argue fervently for caps on the amount of punitive damages. Other groups argue that large punitive damages are necessary to discourage large corporations from committing torts, because compensatory damages are often less expensive than ceasing to commit torts. Very few people in the United States, however, argue for the complete elimination of punitive damages.

The view of punitive damages is very different in Japan. Japan’s Supreme Court has ruled many times that punitive damages violate Japan’s public policy. Recently, the Japanese legislature passed a law forbidding the acceptance of punitive damages in foreign courts as well. Although Japan’s lack of punitive damages is not entirely unusual (many European countries do not have a system of punitive damages either), the reinforcement of this ban on punitive damages is atypical. Many of the other European countries that lack systems of punitive damages are moving toward having damages beyond compensation and acceptance of foreign awards of punitive damages.

Not everyone in Japan is against punitive damages, however. Some Japanese businesses have indicated that they would like some sort of punitive damages in cases of patent infringement. Most of the companies that favor an expansion of infringement damages are secondary industries, such as pharmaceuticals, rather than major industries such as automobiles. The major industries seem content with the damages system in its current form.

Linking Law and Business Marketing

The establishment of torts for the purpose of deterring future crimes relates to a familiar concept in the field of marketing. This idea, advertising, is defined as the “presentation and promotion of ideas, goods, or services by an identified sponsor.” Advertisers hope that what they are promoting will gain acceptance by the general public. Similarly, the law of torts is created to promote fair and just behavior among civilians. One intent of torts is that potential wrongdoers will refrain from injuring other persons or their property because of the consequences entailed in tort laws.

of the claims exceeds $5 million; (2) there are at least 100 class members; (3) any member of the plaintiff class is a citizen of a state different from any defendant; and (4) two-thirds or more of the class members and primary defendants are not members of the state in which the action was originally filed.

Tort reform advocates at the state level have been more successful thus far. Almost every state has passed some sort of tort reform legislation. Since 1986, 34 of these state tort reform laws limited punitive damages awards in some fashion. 11  Many of these reform efforts, however, have been struck down by the courts.

11  Congressional Budget Office, The Effects of Tort Reform: Evidence from the States (June 2004).

Classifications of Torts

There are three classifications of torts: intentional, negligent, and strict liability. The primary distinguishing feature among them is the degree of willfulness of the wrongful conduct.  Intentional torts  are those wherein the defendant took some purposeful action that he or she knew, or should have known, would harm the plaintiff.  Negligent torts  involve carelessness on the part of the defendant. Finally,  strict liability torts  involve inherently dangerous actions and impose liability on the defendant regardless of how careful he or she was. Defenses for the various categories of torts differ, as do the types of damages generally awarded ( Table 11-3 ).

intentional tort

A civil wrong that involves taking some purposeful action that the defendant knew, or should have known, would harm the person, property, or economic interests of the plaintiff.

negligent tort

A civil wrong that involves a failure to meet the standard of care a reasonable person would meet and, because of that failure, harm to another results.

strict liability tort

A civil wrong that involves taking action that is so inherently dangerous under the circumstances of its performance that no amount of due care can make it safe.

Intentional Torts

Intentional torts, the most “willful” torts, include a substantial number of carefully defined wrongful acts. What each of these acts has in common is the element of intent. Intent here does not mean a specific determination to cause harm to the plaintiff; rather, it means the determination to do a specific physical act that may lead to harming the plaintiff’s person, property, or economic interests.

Intentional torts can be divided into three categories based on the interest being harmed: torts against persons, torts against property, and torts against economic interests. The following sections discuss a number of specific torts that fall into each category, along with the defenses to each.

Intentional Torts against Persons

There are a number of torts against persons. We will discuss five of the most common ones: assault and battery, defamation, privacy torts, false imprisonment, and intentional infliction of emotional distress.

Assault and Battery

 Torts against persons consist of harm to another’s physical or mental integrity. One of the most common torts against the person is assault. An  assault  is the intentional placing of another in fear or apprehension of an

Table 11-3 Categories of Torts

Type	Description and Examples	Common Defenses	Type of Damages Usually Awarded
Intentional Torts	Purposeful action that results in harm	Specific to subtype
Against persons	Assault and battery	· Self-defense · Defense of another · Defense of property	Compensatory damages for medical bills, lost wages, and pain and suffering
	Defamation	· Truth · Privilege, absolute (congressional and courtroom speech) · Privilege, conditional (speech concerning public figures or in employment context)	Compensatory damages for measurable financial losses
	Invasion of privacy	· Waiver by plaintiff of right to privacy	Compensatory damages for any resultant economic loss and pain and suffering
	False imprisonment	· Posted warnings of observation	Compensatory damages for treatment of physical injuries and lost time at work
	Intentional infliction of emotional distress	· Shopkeepers’ privilege	Compensatory damages for the treatment of physical illness resulting from the emotional distress
Against property	Trespass to realty		Compensatory damages for harm caused to property and losses suffered by rightful owner
	Trespass to personalty		Compensatory damages for harm to the property
	Conversion		Compensatory damages for full value of converted item
Against economic interests	Disparagement	· Truth	Compensatory damages for actual economic loss
	Intentional interference with a contract	· No knowledge of contract	Compensatory damages for loss of expected benefits from the contract
	Unfair competition		Compensatory damages for lost profits
	Misappropriation	· Independent origination · Denial of discussion of idea	Compensatory damages for economic losses
Negligent Torts	Careless action that results in harm	· No duty · No breach of duty · No causation (actual or proximate) · No damages suffered by plaintiff · Contributory negligence by plaintiff · Pure comparative negligence · Modified comparative negligence	Compensatory damages for injuries, including medical bills, lost time from work, harm to property, and pain and suffering
Strict Liability Torts	Action that is so inherently dangerous that no amount of due care can make it safe	· Assumption of risk	Compensatory damages for personal injury and harm to property

immediate, offensive bodily contact. All of those elements must be present for an assault to exist. Thus, if the defendant pointed a gun at the plaintiff and threatened to shoot and the plaintiff believed the defendant would shoot, an assault would have taken place. If the plaintiff, however, thought that the defendant was joking when making the threat, there was no assault because there was no apprehension on the part of the plaintiff. Likewise, a threat to commit harm in a week is not an assault because there is no question of immediate bodily harm. A threat made with an unloaded gun, as long as the plaintiff does not know the defendant is incapable of carrying out the threat, however, is an assault.

assault

Intentional placing of a person in fear or apprehension of an immediate, offensive bodily contact.

An assault is frequently, but not always, followed by a  battery , which is an intentional, unwanted, offensive bodily contact. Punching someone in the nose is a battery, whereas accidentally bumping into someone on a crowded street is not. The term bodily contact has been broadly interpreted to include such diverse situations as the defendant’s using a projectile, such as a gun, to make physical contact with the plaintiff, and a defendant’s pulling a chair out from under the plaintiff. A number of well-known figures, such as the boxer Mike Tyson, have been sued for battery.

battery

Intentional, unwanted, and offensive bodily contact.

Defenses to Battery

 The most common defense to a battery is self-defense. If one is attacked, one may repel the attacker—but with only that degree of force reasonably necessary to protect oneself. In most states, if a third person is in trouble, one may defend that person with the same degree of force that one would reasonably use to defend oneself, so long as the third party is unable to act in his or her own defense and there is a socially recognized duty to defend that person. This situation is often referred to as defense of another.

A third defense that may be raised against a charge of battery is defense of property. A person can use reasonable force to defend home and property from an intruder. Deadly force in defense of property, however, is rarely, if ever, considered justified.

Defamation

 Another tort that most people have heard of is defamation.  Defamation  is the intentional publication (communication to a third party) of a false statement that is harmful to the plaintiff’s reputation. If the defamation is published in a permanent form—for example, in a piece of writing or on television—the tort is called  libel ; if it is spoken, it is called  slander .

defamation

Intentional publication (communication to a third party) of a false statement that is harmful to the plaintiff’s reputation.

libel

Publication of a defamatory statement in permanent form.

slander

Spoken defamatory statement.

Once a plaintiff proves the elements of a case of libel, “general” damages are presumed as a matter of law. These damages provide the plaintiff with compensation for harms that are hard to quantify but that would almost certainly arise from libel, such as feelings of humiliation and loss of standing in the community. In the case of slander, however, the plaintiff must prove “special” damages, which means that to recover damages, the plaintiff must demonstrate an actual monetary loss resulting or flowing from the slanderous statement.

There is an exception to this limitation on damages, however, and the exception is for statements that constitute slander per se. These are statements that are considered by their very nature to be so obviously harmful to a person that no proof of special damages is needed. Traditionally, statements are considered slander per se if they are statements that say (1) one has a loathsome communicable disease; (2) one has committed improprieties in the performance of his or her profession; (3) one has committed or been imprisoned for a serious crime; and (4) an unmarried female is not chaste.

One example of a libel case is the Warnaco claim against Calvin Klein. On the Larry King Live television show, Calvin Klein accused Warnaco, the company that manufactures Calvin Klein jeans and underwear, of making and selling substandard Calvin Klein products. In response, Warnaco brought a libel claim against Calvin Klein personally. 12

12  National Law Journal B9 (Feb 16, 1998).

There are limits on what is considered defamation. For instance, someone can say something that is potentially harmful to another’s reputation but not suffer any consequences for saying it if the statement is merely one of opinion and not a statement of a fact. For example, in a 1997 case, Randolph Cook claimed to have had a past relationship with Oprah Winfrey. During that relationship, he claimed, Winfrey used cocaine regularly. Cook contacted several media outlets with his claim. After Winfrey heard about this, she called Cook a liar, both privately and publicly. Cook sued Winfrey for defamation, among other things, but because calling someone a liar is only an opinion, and one cannot be sued for stating one’s opinion, the case was dismissed. 13  Likewise, it was not defamatory for employees of Apple Computer Company to refer to the famous astronomer Carl Sagan as “butthead astronomer.” 14

13  Cook v. Winfrey, 975 F. Supp. 1045 (N.D. Ill. 1977).

14  Sagan v. Apple Computer Co., 874 F. Supp. 1972 (C.D. Cal. 1994).

Hypothetically Speaking

Suppose that. . . . Explain why defamation did or did not occur. If the facts were slightly differently in that . . . how would this change affect the validity of the defamation claim?

Defamation has become a little more confusing since people began communicating over the Internet. This medium of communication has generated two questions. First, when does a false statement made over this information network constitute defamation? Second, who can be held liable if defamation does exist? Both the legislatures and the courts have been grappling with these issues. The following case illustrates one court’s approach.

 Case 11-2 Nemet Chevrolet, Ltd. v.  Consumeraffairs.com , Inc.

United States Court of Appeals for the Fourth Circuit 591 F.3d 250 (2009)

The plaintiff, Nemet Chevrolet, Ltd., is in the business of selling and servicing automobiles. The defendant,  Consumeraffairs.com , Inc., operates a website where consumers can comment on the quality of goods and services, including those at Nemet Chevrolet. Nemet felt that several of the postings on the defendant’s website were false and harmful to its business reputation, so it filed suit alleging defamation. The defendant filed a motion to dismiss, under Federal Rule 12(b)(6), for failure to state a claim upon which relief could be granted. According to the defendant, the statements on its website are protected by the Communications Decency Act of 1996 (CDA), which prevents plaintiffs from holding Internet service providers liable for the publication of information created and developed by others. The district court granted the motion with leave to amend the complaint. The plaintiff amended, but the defendant filed another 12(b)(6) motion to dismiss. The district court again granted the dismissal. The plaintiff appealed.

Circuit Judge Agee

Recognizing that the Internet provided a valuable and increasingly utilized source of information for citizens, Congress carved out a sphere of immunity from state lawsuits for providers of interactive computer services to preserve the “vibrant and competitive free market” of ideas on the Internet. The CDA bars the institution of a “cause of action” or imposition of “liability” under “any State or local law that is inconsistent” with the terms of § 230. As relevant here, § 230 prohibits a “provider or user of an interactive computer service” from being held responsible “as the publisher or speaker of any information provided by another information content provider.” Assuming a person meets the statutory definition of an “interactive computer service provider,” the scope of § 230 immunity turns on whether that persons’ actions also make it an “information content provider.” The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

Taken together, these provisions bar state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties. Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them. State-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.

To further the policies underlying the CDA, courts have generally accorded § 230 immunity a broad scope. This Circuit has recognized the “obvious chilling effect” the “specter of tort liability” would otherwise pose to interactive computer service providers given the “prolific” nature of speech on the Internet. Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, “immunity is an immunity from suit rather than a mere defense to liability” and “it is effectively lost if a case is erroneously permitted to go to trial.” We thus aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from “ultimate liability,” but also from “having to fight costly and protracted legal battles.”

Nemet does not dispute that  Consumeraffairs.com  is an interactive computer service provider under the CDA. What Nemet contends is that  Consumeraffairs.com  is also an information content provider as to the twenty posts and, therefore, cannot qualify for § 230 immunity. In other words, Nemet’s argument is that its amended complaint pleads sufficient facts to show  Consumeraffairs.com  is an information content provider for purposes of denying statutory immunity to  Consumeraffairs.com  at this stage in the proceedings.

. . . We must determine . . . whether the facts pled by Nemet, as to the application of CDA immunity, make its claim that  Consumeraffairs.com  is an information content provider merely possible or whether Nemet has nudged that claim “across the line from conceivable to plausible.”

In the amended complaint, Nemet recited the specific language from each customer about his or her automobile complaint for each of the twenty posts it claimed were defamatory. Then, Nemet pled as to each of the posts as follows:

Upon information and belief, Defendant participated in the preparation of this complaint by soliciting the complaint, steering the complaint into a specific category designed to attract attention by consumer class action lawyers, contacting the consumer to ask questions about the complaint and to help her draft or revise her complaint, and promising the consumer that she could obtain some financial recovery by joining a class action lawsuit. Defendant is therefore responsible, in whole or in part, for developing the substance and content of the false complaint . . . about the Plaintiffs.

. . . In short, Nemet argues [that] the language . . . shows  Consumeraffairs.com ’s culpability as an information content provider either through (1) the “structure and design of its website,” or (2) its participation in “the preparation of” consumer complaints: i.e., that  Consumeraffairs.com  “solicit[ed]” its customers’ complaints, “steered” them into “specific categor[ies] designed to attract attention by consumer class action lawyers, contact[ed]” customers to ask “questions about” their complaints and to “help” them “draft or revise” their complaints, and “promis[ed]” customers would “obtain some financial recovery by joining a class action lawsuit.”

We first examine the structure and design of the website argument, which encompasses all the facts pled in the Development Paragraph except for the claim  Consumeraffairs.com  asked questions and “help[ed] draft or revise her complaint.” . . .

Even accepting as true all of the facts Nemet pled as to  Consumeraffairs.com ’s liability for the structure and design of its website, the amended complaint “does not show, or even intimate,” that  Consumeraffairs.com  contributed to the allegedly fraudulent nature of the comments at issue. Thus, . . . Nemet’s pleading not only fails to show it is plausible that  Consumeraffairs.com  is an information content provider, but not that it is even a likely possibility.

We now turn to the remaining factual allegations, common to all twenty posts from the Development Paragraph, that  Consumeraffairs.com  is an information content provider because it contacted “the consumer to ask questions about the complaint and to help her draft or revise her complaint.” Nemet fails to make any cognizable argument as to how a website operator who contacts a potential user with questions thus “develops” or “creates” the website content. Assuming it to be true that  Consumeraffairs.com  contacted the consumers to ask some unknown question, this bare allegation proves nothing as to Nemet’s claim [that]  Consumeraffairs.com  is an information content provider.

The remaining claim, of revising or redrafting the consumer complaint, fares no better. Nemet has not pled what  Consumeraffairs.com  ostensibly revised or redrafted or how such affected the post. . . .

Moreover, in view of our decision in Zeran, Nemet was required to plead facts to show [that] any alleged drafting or revision by  Consumeraffairs.com  was something more than a website operator performs as part of its traditional editorial function. It has failed to plead any such facts. . . . § 230 forbids the imposition of publisher liability on a service provider for the exercise of its “editorial and self-regulatory functions.”

We thus conclude that the Development Paragraph failed, as a matter of law, to state facts upon which it could be concluded that it was plausible that  Consumeraffairs.com  was an information content provider. Accordingly, as to the Development Paragraph, the district court did not err in granting the Rule 12(b)(6) motion to dismiss because Nemet failed to plead facts sufficient to show [that]  Consumeraffairs.com  was an information content provider and not covered by CDA immunity.

Even if the facts pled in the Development Paragraph are insufficient for Rule 12(b)(6) purposes, Nemet separately argues that as to eight of the twenty posts, the amended complaint pled other facts which show [that]  Consumeraffairs.com  is an information content provider. Thus, Nemet argues [that] the motion to dismiss should not have been granted as to these eight posts. . . . [A]s to the eight posts, Nemet pled as to each that “[b]ased upon the information provided in the post, [Nemet] could not determine which customer, if any, this post pertained to.”

. . . Nemet’s sole factual basis for the claim that  Consumeraffairs.com  is the author, and thus an information content provider not entitled to CDA immunity, is that Nemet cannot find the customer in its records based on the information in the post.

Because Nemet was unable to identify the authors of these comments based on “the date, model of car, and first name” recorded online, Nemet alleges that these comments were “fabricated” by  Consumeraffairs.com  “for the purpose of attracting other consumer complaints.” But this is pure speculation and a conclusory allegation of an element of the immunity claim. . . . Nemet has not pled that  Consumeraffairs.com  created the allegedly defamatory eight posts based on any tangible fact, but solely because it [Nemet] can’t find a similar name or vehicle of the time period in Nemet’s business records. Of course, the post could be anonymous, falsified by the consumer, or simply missed by Nemet. There is nothing but Nemet’s speculation which pleads  Consumeraffairs.com ’s role as an actual author in the Fabrication Paragraph.

On appeal, Nemet argues that its supporting allegations nonetheless . . . [present] adequate facts that  Consumeraffairs.com  is the author of the eight posts, but each is meritless. These allegations include (1) that Nemet has an excellent professional reputation, (2) none of the consumer complaints at issue have been reported to or acted upon by the New York City Department of Consumer Affairs, (3)  Consumeraffairs.com ’s sole source of income is advertising and this advertising is tied to its webpage content, and (4) some of the posts on  Consumeraffairs.com ’s website appeared online after their listed creation date. Nemet’s allegations in this regard do not allow us to draw any reasonable inferences that would aid the sufficiency of its amended complaint.

That Nemet may have an overall excellent professional reputation, earned in part from a paucity of complaints reported to New York City’s Department of Consumer Affairs, does not allow us to reasonably infer that the particular instances of consumer dissatisfaction alleged on  Consumeraffairs.com ’s website are false. Furthermore, Nemet’s allegations in regard to the source of  Consumeraffairs.com ’s revenue stream are irrelevant, as we have already established that  Consumeraffairs.com ’s development of class-action lawsuits does not render it an information content provider with respect to the allegedly defamatory content of the posts at issue. Finally, the fact that some of these comments appeared on  Consumeraffairs.com ’s website after their listed creation date does not reasonably suggest that they were fabricated by  Consumeraffairs.com . Any number of reasons could cause such a delay, including  Consumeraffairs.com ’s review for inappropriate content. . . .

Viewed in their best light, Nemet’s well-pled allegations allow us to infer no more than “the mere possibility” that  Consumeraffairs.com  was responsible for the creation or development of the allegedly defamatory content at issue. Nemet has thus failed to nudge its claims that  Consumeraffairs.com  is an information content provider for any of the twenty posts across the line from the “conceivable to plausible.” As a result,  Consumeraffairs.com  is entitled to § 230 immunity and the district court did not err by granting the motion to dismiss. *

*  Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. United States Court of Appeals for the Fourth Circuit 591 F.3d 250 (2009).

Judgment Affirmed.

Critical Thinking About The Law

In every legal case, there are at least two separate conclusions. The plaintiff believes that the court should rule one way, whereas the defendant thinks that the court should rule another. In Case 11-2, plaintiff Nemet provided one conclusion, but the court supported a conclusion more similar to  Consumeraffairs.com ’s conclusion. The court’s reasoning provides the answer for why the court reached its particular conclusion. The following questions address the court’s reasoning.

1. Identify the court’s conclusion in Case 11-2.

Clue: Reread the final paragraph of the court’s decision.

2. What are the reasons the court provides to support this conclusion?

Clue: Look at the court’s application of the Communications Decency Act.

3. To demonstrate the significance of primary ethical norms in court decisions such as this one, identify the ethical norm that would have reversed this decision.

Clue: This norm is related to prioritizing the plaintiff’s rights over those of the defendant in cases such as Case 11-2.

Defenses to Defamation

 There are two primary types of defenses to a defamation action: truth and privilege. It is often stated that truth is an absolute defense. In other words, if I make an honest statement that harms the reputation of the defendant, there has been no defamation. For the ordinary plaintiff, however, a defendant cannot use the excuse that he or she thought the statement was true. Only when a possible privilege exists is the defendant’s incorrect belief about the truth of the statement important.

Privilege is the second type of defense in a defamation action. Most privileges arise under certain circumstances in which our society has decided that encouraging people to speak is more important than protecting people’s reputations.

There are two types of privilege: (1) absolute and (2) qualified or conditional. When an  absolute privilege  exists, one can make any statement, true or false, and cannot be sued for defamation. There are very few situations in which such a privilege exists. The Speech and Debate Clause of the U.S. Constitution gives an absolute privilege to individuals speaking on the House and Senate floors during congressional debate. This privilege encourages the most robust debate possible over potential legislation. Another absolute privilege arises in the courtroom during a trial.

absolute privilege

The right to make any statement, true or false, about someone and not be held liable for defamation.

Applying the Law to the Facts . . .

Consider a situation where Jerry and Melissa are witnesses in a trial, and during the trial, Jerry makes false statements about Melissa that cause harm to her reputation. After the trial, Melissa sues Jerry for defamation. Which defense to defamation would Jerry use to protect his speech? Would this defense work for him in light of the circumstances under which he made his statements? What if he had made the comments to Melissa in the hallway, and an unseen reporter had overheard them and published them in the newspaper without checking their accuracy? Is anyone liable now?

The other type of privilege is a qualified or conditional privilege. A  conditional privilege  provides that one will not be held liable for defamation unless the false statement was made with malice. Malice has a special meaning in a defamation case: it means knowledge of the falsity of the statement or reckless disregard for the truth. In other words, the defendant either knew that the statement was false or could easily have discovered whether it was false.

conditional privilege

The right to make a false statement about someone and not be held liable for defamation provided the statement was made without malice.

The conditional privilege most often used is the public figure privilege. People in the public eye, such as politicians, often find themselves the victims of false rumors. When a defendant has made a false statement about a public figure—a person who has thrust herself or himself into the public eye and who generally has access to the media—the defendant will raise the public figure privilege as a defense to charges of defamation. If the defendant proves that the plaintiff is a public figure, the plaintiff will have to additionally prove that the defamation was made with malice (defined as knowledge of the falsity or reckless disregard for the truth) in order to recover for defamation.

The reason for this privilege to comment freely about public figures as long as statements are made without malice is to encourage open discussion about persons who have a significant impact on our lives. Also, because public figures generally have access to the media, they are in a position to defend themselves and, therefore, need less protection than an ordinary private citizen.

A libel or slander case brought by a public figure sometimes appears quite complex. First, the public figure plaintiff proves that the defendant made a false statement that harmed the plaintiff’s reputation. Then the defendant must prove

Exhibit 11-1 The Shifting Burden of Proof in a Defamation Case

that the plaintiff is in fact a public figure. Then the burden of proof shifts back to the plaintiff, who must prove that the statements were made with malice ( Exhibit 11-1 ).

There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. The public figure for all purposes was defined in the foregoing paragraph. Movie stars, musicians, and politicians fall into that category. The public figure for a limited purpose is a private figure who achieves substantial media attention for a specific activity. That person is then considered a public figure but only for matters related to that activity. For example, the leader of an antiabortion group would be considered a public figure for matters related to abortion. Thus, if the activist brought a defamation suit against a defendant who falsely stated that the activist had undergone three abortions as a teenager, the activist would have to prove that the defendant knew the statement was false, or acted recklessly, without even trying to check the veracity of the claim. In contrast, had the defendant claimed that the activist stole money from at least three former employers, no public figure privilege would arise, and it would not be necessary for the activist to prove that the claim had been made with malice.

Some people are trying to argue that the public figure privilege should also apply in another context: when the defamatory statement is published over the Internet. The rationale for this privilege is twofold. First, remember that part of the reason for the public figure privilege is that the public figure who has been defamed has access to the media and, therefore, has the ability to defend himself or herself. Likewise, when a person is defamed over the Internet, the defamed party can respond with a few keystrokes. Thus, there is less need for the stronger legal protection we ordinarily give to the private party. A second reason is that we want to encourage free expression and the exchange of ideas on the Internet. Requiring a plaintiff to prove malice would encourage such free discussion because people would not have to worry about making errors when they speak about others.

Another use of the conditional privilege arises with respect to job recommendations. To encourage employers to give honest assessments of their former employees, an employer who makes a false statement about a former worker can be held liable only if the statement is made with malice.

Privacy Torts

 Although truth may be an absolute defense to defamation, one is not necessarily allowed to reveal everything one knows about another person. The recently developed tort of invasion of privacy is used to allow a person to keep private matters confidential. Just as defamation has two forms, libel and slander, the tort of invasion of privacy is really four distinct torts: (1) public disclosure of private facts, (2) false light, (3) appropriation, and (4) invasion of privacy.

Public disclosure of private facts  occurs when the defendant makes public a fact about the plaintiff that the plaintiff is entitled to keep private. The disclosure must be unwarranted, and the plaintiff must not have waived his or her right to privacy. For example, if the defendant worked in a clinic and revealed the names of women who had obtained abortions at the clinic, the defendant would be liable for public disclosure of private facts.

public disclosure of private facts

A privacy tort that consists of unwarranted disclosure of a private fact about a person.

False light  occurs when you do not actually make a defamatory statement about someone, but by your actions you place the person in a false light. For example, a neighborhood newsletter publishes a story captioned “Gang Warfare Growing in Our Community,” and between the caption and the article is an untitled photo of four girls sitting on the hood of a car. The photo is clear enough that the girls’ identities are obvious. If these girls are not gang members, they have been placed in a false light and may sue the publisher. Often, illustrations in tabloids may lead to false-light claims.

false light

A privacy tort that consists of intentionally taking actions that would lead observers to make false assumptions about the person.

Appropriation  of a person’s name for commercial gain occurs when a defendant uses another’s name or likeness without that person’s permission for commercial gain. This tort, for example, prohibits a cereal company from putting an athlete’s picture on its cereal box without obtaining the athlete’s permission.

appropriation

A privacy tort that consists of using a person’s name or likeness for commercial gain without the person’s permission.

The final privacy tort is  invasion of privacy , which occurs when someone invades another’s solitude, seclusion, or personal affairs when that person has the right to expect privacy. One example of invasion of privacy is wiretapping and using someone’s password to gain access to the person’s electronic mail messages. In another example, an owner of an ice skating rink who installed two-way mirrors in the women’s dressing room would have committed an invasion of privacy, because the skaters should be able to expect a certain degree of privacy in a dressing room. Of course, the degree of privacy one may reasonably expect varies greatly. For example, if one is trying on clothes in a department store fitting room where signs are posted saying that the “area is under

Technology and the Legal Environment CAN-SPAM: Putting Spam on the Stand

Spam, or unsolicited commercial email, constitutes more than one-half of all electronic mail traffic. The flooding of these unwanted messages prompted Congress to impose regulations on such messages. For instance, Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act), which took effect in January 2004. The act states, “Most of these messages are fraudulent or deceptive in one or more respects.” Consequently, Congress created three provisions for spammers. First, spammers must clearly label their messages as advertisements, avoiding misleading or untruthful subject lines that function simply to entice readers to view such messages. Second, spammers must provide a clear and convenient opt-out option in their messages, whereby recipients may reject future emails from these spammers. Third, spammers must send messages from legitimate return addresses, while also including the sender’s postal address. These three restrictions on spammers, however, do not apply in situations in which a recipient has given prior affirmative consent to receive spam messages.

Congress created this federal act to preempt most state laws against spammers while making exceptions for state laws related to deceptive information in commercial electronic mail. The Federal Trade Commission, along with other federal and state agencies and attorneys general, can bring suit against spammers. Violations of the CAN-SPAM Act could result in civil and criminal penalties, including heavy fines and possible imprisonment.

observation to deter shoplifting,” it would not be unreasonable for the store to have authorized security guards of the same sex as the dressing-room occupants observing the dressing rooms.

invasion of privacy

A privacy tort that consists of encroaching on the solitude, seclusion, or personal affairs of someone who has the right to expect privacy.

False Imprisonment

 False imprisonment is the intentional restraint or confinement of a person against that person’s will and without justification. The tort protects our freedom of movement. The confinement cannot be by moral force alone. There must be either physical restraint, such as locking a door; physical force, such as holding someone down; or threats of physical force.

Most cases of false imprisonment are brought against security guards and retailers. In fact, this tort is brought so frequently against retailers who have detained a person suspected of shoplifting that it has become known as the “shopkeepers’ tort.” In most states, retailers who detain suspected shoplifters for questioning are entitled to raise “the shopkeepers’ privilege.” Under this privilege, a merchant who has reason to believe that a person has shoplifted may detain the person for questioning about the incident. The detention must be conducted in a reasonable manner, and the suspect can be held for only a reasonable time.

Even if one is successful in bringing an action for false imprisonment, damages are often not easy to prove. Obviously, a person who is physically restrained might have medical bills for treatment of physical injuries, but most cases do not involve physical harm. Usually, plaintiffs ask for a monetary award to compensate them for time lost from work, pain and suffering from the mental distress, and humiliation.

Occasionally, however, as in the 2006 case of Jackson v. Rich’s, 15  the store personnel’s behavior leaves the jury no choice but to award the plaintiff a huge verdict. Jackson was leaving the store after buying some clothes for her terminally ill son when Rich’s plainclothes detectives stopped her and told her that she had been caught shoplifting. Remembering the kidnapping and murder a few years earlier of a woman who had been abducted from the same parking lot, Jackson was terrified and offered to let the men search her bag. They said they could do that only in the store’s detention room. She refused to go with them and attempted to use her cell phone to call 911. They took her phone and said they were the police. They handcuffed her and escorted her, crying, through the store, then handcuffed her to a bar in the store’s detention center so that she could not move. She asked to call the police again, but they still refused. A manager then came in and examined her receipt and told the men that they could unhook her and let her go. He then apologized and offered her a discount on her purchase.

15  Natalie White, “False Arrest for Shoplifting Yields $1.2 Million Verdict,” Lawyer’s Weekly, May 22, 2006, p. 10.

After two hours of deliberation, the jury awarded Jackson $1.2 million in compensatory damages for emotional distress. The plaintiff had testified that as a result of the incident, she no longer can go shopping alone, wear anything tight around her wrists, or be in close quarters. She gets frightened when anyone gets too close to her.

The jury felt that the security men’s approach was overkill, when all they needed to do was ask to see what was in the bag, especially because she had offered to show it to them. According to store policy, they should not approach anyone unless they have shoplifting on tape. In Jackson’s case, before leaving the store, she had seen a shirt that she thought might match the shorts she had just bought. She took the shorts out of the bag to compare them and then put the shorts back into the bag. The security officers saw her putting the shorts back into the bag and jumped to the conclusion that she had been shoplifting.

Before arguments for punitive damages could be made in the case, the defendants settled for a confidential amount.

Intentional Infliction of Emotional Distress

 This tort arises when the defendant engages in outrageous, intentional conduct that is likely to cause extreme emotional distress to the party toward whom such conduct is directed. For example, a debt collector calls a debtor and tells the debtor that he is a police officer and he is sorry to inform the debtor that his wife has just been killed in an auto accident, and her last words to the medic at the scene of the crash were, “God must be punishing me for our not paying our debts.” Such conduct would most likely be interpreted as the  intentional infliction of emotional distress .

intentional infliction of emotional distress

Intentionally engaging in outrageous conduct that is likely to cause extreme emotional pain to the person toward whom the conduct is directed.

In most states, to recover damages for intentional infliction of emotional distress, the plaintiff must demonstrate some physical symptoms caused by his or her emotional distress. For example, in the preceding example, if the plaintiff had high blood pressure and after hearing the message had a heart attack, the heart attack would provide the necessary physical basis to prove his injury. Other physical symptoms commonly arising from emotional distress include headaches, a sudden onset of high blood pressure, hives, chills, inability to sleep, or inability to get out of bed.

Although some people argue that the requirement of physical harm puts an undue burden on the plaintiff, others fear that without the requirement of physical symptoms of harm, it would be too easy to successfully recover damages in a situation in which there is not any real harm. For example, critics point to the 1998 suit filed against Dennis Rodman of the Chicago Bulls for intentional infliction of emotional distress as an illustration of abuse of the tort. Rodman and a friend were playing craps at the Mirage Hotel in Las Vegas. While playing, Rodman allegedly rubbed the dealer’s bald head for good luck. The dealer claimed that this act caused him “embarrassment, indignity, degradation, and anger.” Because of the severe results of Rodman’s head-rubbing, the dealer sought damages in excess of $10,000. 16

16  “Across the USA: Nevada,” Lawyers Weekly. Accessed February 25, 2008. www.lawyersweekly.com.

Intentional Torts against Property

The second category of intentional torts involves damage to property.  Trespass to realty , also called trespass to real property, occurs when a person intentionally enters the land of another or causes an object to be placed on the land of another without the landowner’s permission. Trespass to realty also occurs when one originally enters another’s land with permission, is told to leave, and yet remains on the land. It is no defense to argue that one did not know that the land belonged to another; the intent refers to intentionally being on that particular piece of land.

trespass to realty (trespass to real property)

Intentionally entering the land of another or causing an object to be placed on the land of another without the landowner’s permission.

Trespass to personalty  occurs when one intentionally interferes with another’s use and enjoyment of his or her personal property. It is usually of short duration, but the trespasser is liable for any harm caused to the property or any loss suffered by the true owner as a result of the trespasser’s having used the property.

trespass to personalty

Intentionally exercising dominion and control over another’s personal property.

Conversion  is a more extreme wrong. It occurs when the defendant deprives the owner of his or her use and enjoyment of personal property. Traditionally, the tort required the defendant’s permanent removal of the property from the owner’s possession and control, such that the item could not be recovered or restored to its original condition. Today, however, a serious deprivation, even if not permanent, may constitute conversion. The plaintiff usually recovers damages for the full value of the converted item.

conversion

Intentional permanent removal of property from the rightful owner’s possession and control.

If I take my neighbor’s car for a drive without permission, but I return it unharmed before the owner knows I have it, I have committed trespass to personalty, but the true owner suffers no damages. If I take the car and hit a tree, damaging the bumper, before I return the car, I have again committed trespass to personalty and will be liable for the cost of repairing the car. If I take the car and sell it to a salvage firm that tears the car apart and sells its parts, I have committed conversion and will be liable for replacing the car.

Intentional Torts against Economic Interests

Torts against economic interests are the torts that most commonly arise within the business context. One such tort is  disparagement .

disparagement

Intentionally defaming a business product or service.

To win a disparagement case, a plaintiff must prove four elements. First, the defendant made a false statement of a material fact about the plaintiff’s business, product, or service. In general, the types of statements that are actionable are statements about the quality, honesty, or reputation of the business, as well as statements about the ownership of the business property. The second element is publication. Remember, publication in the context of any kind of defamation action means communication to a third party. So, if the defendant makes disparaging comments about the plaintiff’s business in a public address to a consumer group or in an advertisement, the defendant has published the statement.

Table 11-4 Elements of Disparagement

1. A false statement of a material fact about the plaintiff’s product or service 2. Publication 3. Damage to the reputation of the product or service 4. Economic loss

Third, there must be harm to the reputation of the business, product, or service. Finally, there must be actual economic loss as a result of the false statements. Proving the economic loss that provides a basis for compensatory damages is not always easy. Usually, damages will be based on a decrease in profits that can be linked to the publication of the false statement. An alternative, albeit a less common way to prove damages, is to demonstrate that the plaintiff had been negotiating a contract with a third party, but the third party lost interest shortly after publication of the false statement. The profits the plaintiff would have made on the contract would be the damages.  Table 11-4  lists the elements of disparagement.

In 13 states, a closely related tort has been created: food disparagement. Dubbed “veggie libel” and “banana bills” by their critics, these laws provide ranchers and farmers a cause of action when someone spreads false information about the safety of a food product. The first major test of one of these laws came in a $6.7 million case filed by a rancher in a federal district court against talk-show host Oprah Winfrey and one of her guests. They were discussing the potential for U.S. cattle to contract mad cow disease, and, at one point, Oprah said that was it—the conversation had stopped her from ever eating a burger again. After the broadcast, which the show’s producers said tried to show both sides of the issue, the price of cattle futures fell.

The Texas law at issue provides that anyone who says that a perishable food product is unsafe, knowing the statement is false, may be required to pay damages to the producer of the product. The defendants originally asked that the case be dismissed on the ground that the law unconstitutionally interferes with free speech. The judge dismissed the food-disparagement claims on the grounds that the cattlemen did not prove that “knowingly false” statements were made and that a perishable food was not involved. The jury then decided there was no case under traditional business disparagement law either.

Another tort against economic interests is the tort of intentional interference with a contract, a complex and difficult tort to prove. To prove the tort of  intentional interference with a contract , the plaintiff must demonstrate that:

intentional interference with a contract

Knowingly and successfully taking action for the purpose of enticing a third party to breach a valid contract with the plaintiff.

1. The plaintiff had a valid contract with a third party.

2. The defendant knew of the contract and its terms.

3. The defendant took action knowing that it was highly likely to cause the third party to breach the contract with the plaintiff.

4. The defendant undertook the action for the purpose of causing the third party to breach the contract.

5. The third party did in fact breach the contract.

6. As a result of the breach, the plaintiff was injured.

Some of the most common cases concerning intentional interference with contracts in the business setting involve employers taking employees from another firm when they know that the employees have contracts for a set period of time. Luring an employee from a successful competitor is often a delicate situation. There is no problem if the employee does not have a contract for a fixed period of time, but if the employee is indeed bound by a contract of employment for a fixed term or by a contractual agreement not to work for a competitor for a set period of time, then pursuit of the employee opens a second employer with knowledge of the contract to liability.

A third tort against economic interest is  unfair competition . Our legal system assumes that individuals go into business for the purpose of making a profit. Competition is supposed to drive inefficient firms out of business because the more efficient firms will be able to provide less expensive goods and services. For this system to work, however, firms must be in business to make a profit. Therefore, it is unlawful for a person to go into business for the purpose of causing a loss of business to another without regard for his or her own profit.

unfair competition

Entering into business for the sole purpose of causing a loss of business to another firm.

For example, assume that Mark wants to open a painting business but his father wants him to go to college. When Mark opens his business, his father starts a competing firm and is able to underbid every job his son bids because the father is willing to lose money. He just wants to force his son out of business. The father in this example is engaging in unfair competition.

Misappropriation is another tort against economic interest that is difficult to prove.  Misappropriation  occurs when a person presents an unsolicited idea for a product, service, or even method of marketing to a business with the expectation of compensation if the idea is used by the firm and the firm subsequently uses the idea without compensating the individual. The individual may then have the basis for an action for misappropriation.

misappropriation

Use of an unsolicited idea for a product, service, or marketing method without compensating the originator of the idea.

The firm may always defend on the ground that it had already independently come up with the idea that the plaintiff proposed. The firm may also deny that the idea was even discussed. It is, therefore, extremely important that anyone offering an unsolicited idea to a firm have that idea and the offer to the firm documented.

Negligent Torts

Elements of Negligence

The second classification of torts is negligent torts.  Negligence  results not from the willful wrongdoing of a party but from carelessness. A person is said to be negligent when her or his behavior falls below the standard of care necessary to protect others from an unreasonable risk of harm. To prove negligence, a plaintiff must establish four elements: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Failure to establish any one of those elements precludes recovery by the plaintiff.

negligence

Failure to live up to the standard of care that a reasonable person would meet to protect others from an unreasonable risk of harm.

The first element to be proved is duty. The duty is the standard of care that the defendant owes the plaintiff. Under certain circumstances, a law establishes the duty of care for a particular party, but the courts generally use a “reasonable person” standard. Under this standard, the defendant must have exercised the degree of care and skill that a reasonable person would have exercised in similar circumstances to protect the plaintiff from an unreasonable risk of injury.

The reasonable-person standard is an objective standard; it is an illustration of how members of society would expect an individual to act in a certain situation. Thus, the reasonable person is careful and wise. In negligence cases, a judge or jury must determine what the reasonable person would do in a similar situation and compare this standard to the actions of the individual in the case before it.

One of the reasons that a future business manager should be knowledgeable about duty of care is that courts generally expect businesses to meet a reasonable duty of care for customers who enter onto the businesses’ property. Thus, businesses must warn customers about potential risks they might encounter while on the property, or even better, make sure that the property is safe for customers. Even if a business attempts to warn its customers about potential hazards, the business might still be considered negligent. For example, in a case decided in Los Angeles, 17  a woman sued the House of Blues restaurant because she tripped over lumber that was being stored on the front porch of the restaurant. Although the lumber was marked with yellow construction tape, the woman received $91,366 in damages.

17  Haywood v. Baseline Construction Co., No. SC004942 (Los Angeles County Sup. Ct. 1999).

The next element to be proved is a breach of duty. Once the plaintiff establishes the duty required of the defendant under the circumstances, the plaintiff must show that the defendant’s conduct was not consistent with that duty. For example, a reasonable person does not leave a campfire burning unattended in the woods. A defendant who builds a campfire and then goes home without putting out the campfire has breached her or his duty of care to the owner of the campground and to other campers whose safety is endangered by the unguarded campfire.

The third element is causation. Causation is really two elements: actual cause and proximate cause. Actual cause is a factual matter of whether the defendant’s conduct resulted in the plaintiff’s injury. The breach of the duty must have resulted directly in the plaintiff’s harm. To ascertain whether the breach of duty was the actual cause of the plaintiff’s harm, one must ask, “If the defendant had obeyed his or her duty, would the plaintiff still have been injured?” If the answer is no, then the defendant’s breach was the actual cause of the plaintiff’s harm.

Proximate cause is a question of how far society wishes to extend liability. In the majority of states, proximate cause is defined as foreseeability. Proximate cause exists if both the plaintiff and the type of injury incurred by the plaintiff are foreseeable. For example, it is foreseeable that if a tire falls off a car, the car may run off the road and hit a pedestrian. It is not foreseeable that the pedestrian is carrying dynamite, which he will throw when he sees the car speeding toward him, causing the dynamite to explode, causing vibrations that shatter a window six blocks away, and causing glass shards to fly and cut a secretary. Neither the secretary nor the secretary’s injury would be foreseeable, so the secretary would not succeed in a suit for negligence against the manufacturer of the car in most states, because of the lack of proximate cause. Proximate cause, however, would not prevent the pedestrian from suing in this example, because a pedestrian is a foreseeable victim when a car goes out of control.

In a minority of states, the courts do not differentiate between actual and proximate cause; once actual cause is proved, proximate cause is said to exist. Thus, in the minority of states, both the pedestrian and the secretary in the preceding example would be able to recover.

Damages, or compensable injury, are the final element. The defendant’s action must have resulted in some harm to the plaintiff for which the plaintiff can be compensated. A party cannot bring an action in negligence seeking only nominal damages. One example of negligence involved the tragic death of R&B vocalist Aaliyah Dana Haughton, who died August 25, 2001, in an airplane accident, following the completion of her music video titled “Rock the Boat.” 18  Blackground Records, which had entered into a recording agreement with Aaliyah, brought suit against Instinct Productions, a company that produced Aaliyah’s music video and made transportation arrangements for the filming. Blackground sued Instinct for negligence, claiming that Blackground and Instinct shared a long, trusting relationship, from which Instinct owed a duty to Blackground to provide safe transportation for Aaliyah. Blackground argued that Instinct breached this duty, causing foreseeable economic harm to Blackground, whose financial success depended primarily on Aaliyah. The trial court ruled in favor of Blackground, awarding it damages. On appeal, however, the case was reversed, and the appellate court labeled Blackground’s lawsuit as frivolous.

18  “Negligence Action Brought against Video Producer over Air Crash Death of Popular Singer Advances,” New York Law Journal 2 (June 3, 2004).

In any negligence case, the plaintiff must show that the defendant owed a duty of care to the plaintiff and breached that duty, causing foreseeable harm to the plaintiff for which the plaintiff is seeking compensation. Place yourself in the plaintiff’s position to see that proving negligence is often difficult. Frequently, direct proof of the defendant’s negligent conduct does not exist because it was destroyed and there were no witnesses to the negligent act. To make it easier for plaintiffs to recover in negligence cases, most courts have adopted two doctrines that may apply in such situations: res ipsa loquitur and negligence per se.

Res ipsa loquitur  literally means “the thing speaks for itself.” The plaintiff uses this doctrine to allow the judge or jury to infer that the defendant’s negligence was the cause of the plaintiff’s harm when there is no direct evidence of the defendant’s lack of due care. To establish res ipsa loquitur in most states, the plaintiff must demonstrate that:

res ipsa loquitur

Legal doctrine that allows a judge or a jury to infer negligence on the basis of the fact that accidents of the type that happened to the plaintiff generally do not occur in the absence of negligence on the part of someone in the defendant’s position.

1. The event was of a kind that ordinarily does not occur in the absence of negligence.

2. Other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated.

3. The indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Proof of these elements does not require a finding of negligence; it merely permits such a finding.

One of the earliest uses of res ipsa loquitur was the case of Escola v. Coca-Cola. 19  In this case, the plaintiff, a waitress, was injured when a bottle of Coca-Cola that she was removing from a case exploded in her hand. From the facts that (1) bottled soft drinks ordinarily do not spontaneously explode and (2) the bottles had been sitting in a case, undisturbed, in the restaurant for approximately 36 hours before the plaintiff simply removed the bottle from the case, the jury reasonably inferred that the defendant’s negligence during filling of the bottle resulted in its explosion. The plaintiff, therefore, could recover without direct proof of the defendant’s negligence. The doctrine has subsequently been used in numerous accident cases in which there was no direct evidence of negligence. Note that the jury does not have to infer negligence, but it may. The defendant’s best response to the use of this doctrine is to try to demonstrate other possible and plausible causes of the accident.

19  24 Cal. 2d 453, 150 P.2d 436 (Cal. 1944).

Another doctrine that may aid the plaintiff is  negligence per se . If a statute is enacted to prevent a certain type of harm and a defendant violates that statute, causing that type of harm to befall the plaintiff, the plaintiff may use proof of the violation of the statute as proof of negligence. For example, it is unlawful to sell certain types of glue to minors because they may inhale it to obtain a euphoric feeling. Such a use of the glue may lead to severe health problems or death. If a retailer sold such glue to a minor who died from sniffing the glue, proof of the sale in violation of the statute establishes negligence per se by the retailer.

negligence per se

Legal doctrine that says when a statute has been enacted to prevent a certain type of harm and the defendant violates that statute, causing that type of harm to befall the plaintiff, the plaintiff may use proof of the violation as proof of negligence.

Defenses to Negligence

Although the courts have created the two foregoing doctrines to help plaintiffs establish their cases, the courts also accept certain defenses that will relieve a defendant from liability, even if the plaintiff has successfully established the elements of negligence.

Initially, all states made available a strong defense to negligence:  contributory negligence . Under this defense, the defendant must prove that (1) the plaintiff did not exercise the degree of care that one would ordinarily exercise to protect oneself from an unreasonable risk of harm and (2) this failure contributed to causing the plaintiff’s own harm. Proof of such contributory negligence is an absolute bar to recovery. In other words, once the defendant proves that the plaintiff was contributorily negligent, the defendant wins the lawsuit and will not have to pay any damages to the plaintiff. Because of the harshness of this defense, many states adopted the last-clear-chance doctrine ( Exhibit 11-2 ). Under this doctrine, once the defendant establishes contributory negligence on the part of the plaintiff, the plaintiff may still recover by showing that the defendant had the last clear opportunity to avoid the accident that resulted in the plaintiff’s loss.

contributory negligence

A defense to negligence that consists of proving that the plaintiff did not exercise the ordinary degree of care to protect against an unreasonable risk of harm and that this failure contributed to causing the plaintiff’s harm.

The adoption of this doctrine, however, still left a lot of situations in which an extremely careless defendant caused a great deal of harm to a plaintiff who was barred from recovery because of minimal contributory negligence. Thus, today, most states have replaced the contributory negligence defense with either pure or modified  comparative negligence . Under a pure comparative negligence defense, the court determines the percentage of fault of the defendant, and that is the percentage of damages for which the defendant is liable. Damages under modified comparative negligence are calculated in the same manner, except that the defendant must be more than 50 percent at fault before the plaintiff can recover. Twenty-eight states have modified comparative negligence, 13 have pure comparative negligence, and 9 have contributory negligence. Remember,

Exhibit 11-2 Application of the Last-Clear-Chance Doctrine

every state adopts one of these three defenses. The parties do not get to pick from among them. If a party resides in a state that uses a defense that is not favorable to that party, however, he or she can always argue that the state should change its law to accept a different defense. For example, a plaintiff residing in a state that still allows the contributory negligence defense might try to argue that the state should follow the trend and modernize its law by moving to modified comparative negligence and abolishing the contributory negligence defense.

comparative negligence

A defense that allocates recovery based on percentage of fault allocated to plaintiff and defendant; available in either pure or modified form.

Another defense that may be used in a negligence case is  assumption of the risk , in which the defendant must show that the plaintiff voluntarily and unreasonably encountered a known risk. To successfully use this defense, the defendant must establish that the harm suffered was indeed the risk assumed. For example, in one case, a plaintiff was using a grinding wheel while wearing only his eyeglasses, not the safety goggles provided by his employer to keep the pieces of stone chips and dust from flying into his eyes. The defective grinding wheel exploded into three pieces, and one piece flew into the plaintiff’s eye, blinding him. When the plaintiff sued the defendant manufacturer, the defendant raised the defense of assumption of the risk. The court struck down that attempted use of the defense, noting that the wearing of safety goggles was not intended to prevent harm from exploding grinding wheels and that if any risk was assumed by the plaintiff, it was the risk of getting a small stone chip in his eye. As the plaintiff could not have known that the wheel would explode, he could not have assumed the risk.

assumption of the risk

A defense to negligence based on showing that the plaintiff voluntarily and unreasonably encountered a known risk and that the harm the plaintiff suffered was the harm that was risked.

In the following case, the court discusses the applicability of both assumption of the risk and comparative negligence in the context of a rather unusual injury at a baseball game.

 Case 11-3 Coomer v. Kansas City Royals

Supreme Court of Missouri 437 S.W.3d 184

Coomer and his father were watching the Royals host the Detroit Tigers. Coomer and his father left their assigned seats early in the game and moved to empty seats six rows behind the visitors’ dugout. Shortly after Coomer changed seats, Sluggerrr, the team mascot, began the “Hotdog Launch,” a feature of every Royals home game since 2000. The launch occurs between innings, when Sluggerrr uses an air gun to shoot hotdogs from the roof of the visitors’ dugout to fans seated beyond hand-tossing range, and tosses hotdogs by hand to the fans seated nearby when his assistant is loading the airgun. Sluggerrr generally tossed the hotdogs underhand while facing the fans but sometimes throws overhand, behind his back, and side-armed. Coomer and his father were seated approximately 15 to 20 feet from Sluggerrr, directly in his view. After employing his hotdog-shaped airgun to send hotdogs to distant fans, Sluggerrr began to toss hotdogs by hand to fans seated near Coomer. Coomer saw Sluggerrr turn away from the crowd as if to prepare for a behind-the-back throw, and turned to look at the scoreboard. A “split second later,” he was hit in the face by a hotdog, and suffered a torn and detached retina that required surgery for a replacement lens.

Coomer sued for negligence, and the jury was given instruction for determining whether Coomer had assumed the risk of being injured by a flying hot dog, as well as for applying the comparative negligence. The jury found that Coomer was 100% responsible for his own injury, but it was not clear whether the jury had used comparative negligence or assumption of the risk to come to their decision in favor of the Royals. Coomer appealed on grounds of improper jury instructions.

En Banc

. . . Among the jury instructions was one asking the jury to decide whether the risk of being injured by Sluggerrr’s hotdog toss is one of the inherent risks of watching a Royals home game that Coomer assumed merely by attending. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. This Court holds that the risk of being injured by Sluggerrr’s hotdog toss is not one of the inherent risks of watching a Royals home game.

In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. Such risks are an unavoidable—even desirable—part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95–mph fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play. The risk of being injured by Sluggerrr’s hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance.

. . . [T]he key inquiry here is whether the risk which led to plaintiff’s injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. . . . Can [this] be said about the antics of the mascot? We think not. Actually, the . . . person who dressed up as Sluggerrr recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics.

. . . if Coomer was injured by a risk that is an inherent part of watching the Royals play baseball, the team had no duty to protect him and cannot be liable for his injuries. But, if Coomer’s injury resulted from a risk that is not an inherent part of watching baseball in person—or if the negligence of the Royals altered or increased one of these inherent risks and caused Coomer’s injury—the jury is entitled to hold the Royals liable for such negligence and, to the extent the reasonableness of Coomer’s actions are in dispute, the jury must apportion fault between the parties using comparative fault principles. This approach has been used in Missouri and around the country.

. . . First, the Court holds that the evidence was sufficient to justify submitting Coomer’s comparative fault to the jury. Coomer contends that, because he was “just sitting there,” this cannot constitute negligence. The jury might reach that conclusion and, as a result, not attribute any percentage of the fault to Coomer. But that is not the only conclusion supported by this evidence. The evidence also was sufficient for the jury to find that Coomer acted unreasonably by: (a) watching Sluggerrr go into his leonine wind-up in preparation for a behind-the-back hotdog toss and then (b) choosing the precise moment that Sluggerrr was releasing the hotdog to let his gaze—and attention—wander elsewhere. The jury may find that this failure to keep a careful lookout, among other reasons, was sufficient to assess some percentage of fault to Coomer.

If this case is tried again on remand . . . If the jury finds that Sluggerrr failed to use reasonable care when he threw the hotdog at Coomer and injured him, it will assess a percentage of fault to the Royals . . . [I]f the evidence on retrial is the same as here, the jury may conclude that Coomer failed to use reasonable care to protect himself from Sluggerrr’s negligence (failing to keep an adequate lookout or otherwise) and, on that basis, it could assess a percentage of fault to Coomer under a proper comparative fault instruction. *

*  Coomer v. Kansas City Royals, Supreme Court of Missouri. 437 S.W.3d 184.

Reversed, in favor of Coomer and remanded.

Although it involves neither contributory negligence nor assumption of the risk, the following case demonstrates an interesting defense where the argument was essentially that the accident was “unavoidable.”

 Case 11-4 Venkateswarlu Thota and North Texas Cardiology Center v. Margaret Young

366 S.W.3d 678 (2012)

On March 10, 2005 William (Ronnie) Young died of leukemia. Preceeding his death, Ronnie additionally suffered from angina, hypertension, a rare blood disorder called polycythemia vera, and coronary artery disease. In 2001, Ronnie went to cardiologist Venkateswarlu Thota for chest pains. Medications did not work and finally Thota recommended a procedure called coronary angiography. After Thota performed the procedure, Ronnie went home. Ronnie later was rushed back to the hospital due to a tear in his artery from the surgery. Ronnie underwent many surgeries in the following months as a result of Thota’s surgery. Eventually Ronnie died from leukemia that was caused by his struggle with polycythemia vera. Ronnie’s wife brought a lawsuit against the hospital and Thota claiming Thota was negligent due to: 1. Not obtaining Ronnie’s full medical history; 2. Not considering Ronnie’s other medical problems might interfere with Thota’s procedure; 3. Lacerating not only an artery but the wrong artery during the procedure; 4. Not seeing the artery tear before Ronnie was discharged; 5. Not being able to diagnose and treat the artery tear.

Justice Green

Did the negligence, if any, of those named below, proximately cause the injury in question, if any?

“Negligence,” when used with respect to the conduct of Venkat Thota, M.D., means failure to use ordinary care, that is, failing to do that which a cardiologist of ordinary prudence would have done under the same or similar circumstances or doing that which a cardiologist of ordinary prudence would not have done under the same or similar circumstances.

“Ordinary care,” when used with respect to the conduct of Venkat Thota, M.D., means that degree of care that a cardiologist of ordinary prudence would use under the same or similar circumstances.

“Proximate cause,” when used with respect to the conduct of Venkat Thota, M.D., means that cause which, in a natural and continuous sequence unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a cardiologist using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

“New and independent cause,” when used with respect to the conduct of Venkat Thota, M.D., means the act or omission of a separate and independent agency, not reasonably foreseeable by a cardiologist exercising ordinary care, that destroys the causal connection, if any, between the act or omission inquired about and the injury in question and thereby becomes the immediate cause of such injury.

“Negligence,” when used with respect to the conduct of [Ronnie] Young means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

“Ordinary care,” when used with respect to the conduct of [Ronnie] Young means that degree of care that a person of ordinary prudence would use under the same or similar circumstances.

“Proximate cause,” when used with respect to the conduct of [Ronnie] Young means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

We simply cannot determine, on this evidence, whether the jury properly found Dr. Thota not negligent, properly found that his negligence was excused based upon the unavoidable accident instruction, or improperly found that his negligence was excused based upon the new and independent cause instruction alone or combined with its improper finding of Ronnie’s negligence. *

*  Venkateswarlu Thota, and North Texas Cardiology Center,v. Margaret YOUNG 366 S.W.3d 678 (2012).

While Casteel’s presumed harm analysis is necessary in instances where the appellate court cannot determine “whether the improperly submitted theories formed the sole basis for the jury’s finding” because the broad-form question mixed valid and invalid theories of liability, or when the broad-form question commingled damage elements that are unsupported by legally sufficient evidence, an improper inferential rebuttal instruction and improper defensive theory of contributory negligence presented in a broad-form question with separate answer blanks in a single-theory-of-liability case does not prevent the harmed party from obtaining meaningful appellate review. When a trial court abuses its discretion by including erroneous charge questions or instructions in a single-theory-of-liability case, our traditional harmless error analysis applies and the appellate courts should review the entire record to determine whether the charge errors probably caused the rendition of an improper judgment.

Because we hold that Casteel’s presumed harm analysis does not apply, we next consider whether, applying traditional harmless error analysis, the alleged charge errors constitute reversible error. We address Young’s objections to the inclusion of Ronnie’s contributory negligence and the instruction of new and independent cause in turn.

When charge questions are submitted in a manner that allows the appellate court to determine whether the verdict was actually based on a valid theory of liability, the error may be harmless. Young’s argument that the inclusion of Ronnie’s contributory negligence was harmful error fails for several reasons. First, Dr. Thota could only have been negligent in causing the tear in Ronnie’s artery, and the jury failed to find that he was. The jury’s finding as to Dr. Thota’s non-negligence is entirely separate from its finding as to Ronnie’s negligence. Perhaps the jury was confused about whether to find Ronnie negligent and, despite the unavoidable accident instruction, believed that they had to find someone negligent. Either way, any error associated with the inclusion of a jury question regarding Ronnie’s negligence was harmless.

Moreover, when determining whether harm occurred, we consider the entire charge. Here, the clarifying instructions at the end of Question 1 made it clear that the jury could answer in any of the following combinations: (1) “Yes” to both Dr. Thota and Ronnie; (2) “No” to both; or (3) “Yes” to one and “No” to the other—the choice the jury ultimately made. The charge’s definition of proximate cause also clearly informed the jury that “[t]here may be more than one proximate cause of an event.” In light of the entire charge and the separate answer blanks for Dr. Thota and Ronnie, it is evident that the jury was well aware that its findings as to Dr. Thota’s and Ronnie’s negligence were separate and that there could be more than one proximate cause of an event.

At trial, Dr. Thota’s and Dr. Doherty’s testimony about Ronnie’s medical reports conflicted. Dr. Doherty testified that the standard of care for cardiac catheterization was to insert a needle and catheter into the right femoral artery below the inguinal ligament. In Dr. Doherty’s opinion, Dr. Thota punctured Ronnie’s artery at the wrong location, above the inguinal ligament and into the right external iliac artery. Dr. Doherty’s opinion was based on Dr. Walker’s report, the CT scan mentioned on Dr. Sudharshan’s report, and the bleed in Ronnie’s retroperitoneal cavity, which could occur when the puncture is too high, rather than the more visible femoral bleed that would occur if the puncture is in the femoral artery. In contrast, Dr. Thota claimed at trial that he did not breach the standard of care during Ronnie’s catheterization procedure. He testified that he had no problems inserting the catheter and that he believed he entered the artery at the appropriate location. Dr. Thota stated that Dr. Sudharshan’s finding that the puncture site was at “about the inguinal ligament,” would indicate that the puncture site was correct. He further testified that Dr. Walker’s report was ambiguous as to what he repaired and how far above or below the inguinal ligament the bleed originated. Also, Dr. Thota testified that a retroperitoneal bleed can occur with a femoral artery stick as well as an iliac artery stick and that, based on his review of the medical records and his own knowledge of the procedure, he met the standard of care.

Like many medical malpractice cases, this record contains conflicting expert opinions. The fact that Dr. Thota testified on his own behalf does not negate the weight that the jury could give to his testimony. Because of the conflicting testimony of Dr. Doherty and Dr. Thota, and because both testifying experts agreed that Ronnie was likely not bleeding upon his discharge from the hospital, the jury could have reasonably believed Dr. Thota’s opinions and discounted Dr. Doherty’s opinions. In circumstances where a reasonable jury could resolve conflicting evidence either way, we presume the jury did so in favor of the prevailing party.

Based on the conflicting evidence, the jury could have reasonably concluded that Dr. Thota did not breach the standard of care without reaching the issue of proximate cause. In that case, the jury would not have relied on the new and independent cause instruction because it pertains only to the proximate cause element. Thus, the record supports the jury’s finding of no negligence as to Dr. Thota. Accordingly, our review of the entire record provides no clear indication that the new and independent cause instruction, if erroneous, probably caused the rendition of an improper verdict. We therefore conclude that any error in the trial court’s submission of the new and independent cause instruction was harmless.

In sum, we hold that Young’s timely and specific no-evidence objections were sufficient to preserve the disputed charge issues for appellate review. Because the trial court submitted a broad-form question on a single theory of liability that included separate answer blanks for Dr. Thota’s and Ronnie’s negligence, we hold that the court of appeals misapplied Casteel and its presumed harm analysis. Even assuming the trial court abused its discretion by including a question as to Ronnie’s contributory negligence and an instruction on new and independent cause, for the reasons explained above, we hold that these alleged charge errors were harmless and did not probably cause the rendition of an improper judgment. Because Casteel’s presumed harm analysis does not apply and any error in the disputed charge issues was harmless, we need not address Dr. Thota’s remaining issues reversed and remanded.

Strict Liability Torts

A third type of tort is a strict liability tort. Under this theory, the defendant is engaged in an activity that is so inherently dangerous under the circumstances of its performance that no amount of due care can make it safe. The activity, however, does have some social utility, so we do not want to prohibit it entirely. Consequently, we allow people to engage in such activities, but hold them strictly liable for any damages caused by engaging in these activities. Inherently dangerous activities include blasting in a populated area and keeping nondomesticated animals. As you will see in  Chapter 12 , in today’s society, strict liability has had perhaps its greatest impact on cases involving products that are considered unreasonably dangerous.

Global Dimensions of Tort Law

With the increasing globalization of business, it is becoming more common for citizens of foreign countries to temporarily reside in the United States, as well as for U.S. citizens to reside abroad for long periods of time. There are also a number of people with dual citizenship. It is, therefore, a realistic possibility that one might get a tort judgment in the United States and need to enforce that judgment in a foreign nation.

Although many European nations are signatories to treaties regarding enforcement of foreign judgments, the United States has not signed any such treaties. Therefore, the extent to which a U.S. judgment will be enforced in a foreign nation depends on that nation’s laws. For example, some nations will review the judgment to ensure that it does not offend their country’s notion of due process.

One area in which at least two nations have been unwilling to fully enforce U.S. judgments is with respect to punitive damages awards. Both a German federal court and an English court have ruled that punitive damages awards violate their nation’s public policy interest in maintaining a purely compensatory tort system. They have, therefore, refused to enforce U.S. punitive damages awards. As international business and, thus, international litigation continue to grow, the U.S. business manager will have to become increasingly familiar with the policies of foreign courts.

Summary

Tort law provides a means for an injured party to obtain compensation from the party whose actions caused the injury. Tort law provides three types of damages. Compensatory damages, which are the most common, are designed to put the plaintiff in the position he or she would have been in had the tort not occurred. Nominal damages, available only in intentional tort cases, are a minimal amount, such as $1, and signify that the defendant’s behavior was wrongful but caused no harm. Punitive damages are assessed in addition to compensatory damages or nominal damages when the defendant’s conduct is egregious. Punitive damages are designed primarily to punish the defendant and deter such conduct in the future.

Torts are classified as intentional, negligent, or strict liability, depending on the degree of willfulness required for the tort. The most willful are the intentional torts, which are further categorized by the interest that is injured. Intentional torts against the person include assault, battery, defamation, intentional infliction of emotional distress, false imprisonment, and the privacy torts. Intentional torts against property include trespass to realty, trespass to personalty, and conversion. Intentional torts against economic interests include disparagement, intentional interference with contractual relations, misappropriation, and unfair competition.

Negligence can be thought of as the tort of carelessness. To prove negligence, one must prove four elements: (1) duty of care, (2) breach of duty, (3) causation, and (4) damages. Negligence per se and res ipsa loquitur are two doctrines that may help the plaintiff prove negligence. Defenses to negligence include contributory negligence, modified and pure comparative negligence, and assumption of the risk.

Strict liability occurs when one causes injury to another by engaging in an unreasonably dangerous activity.

Given the globalization of business, it is becoming increasingly likely that one might need to enforce a tort judgment rendered in the United States in a foreign country. The enforceability of such a judgment depends on that foreign nation’s laws; in several nations, including Germany and England, punitive damages awards will not be enforced.

Review Questions

1. 11-1 Evaluate the arguments for and against restricting the availability of punitive damages. Explain why you tend to agree more with one position than the other.

2. 11-2 Distinguish intentional torts from negligent torts.

3. 11-3 Define an assault and a battery, and explain how the two are related.

4. 11-4 Explain why it is harder to win a defamation action if you are a public figure.

5. 11-5 Explain the relationship between trespass to personalty and conversion.

6. 11-6 Your state is proposing to pass a food- disparagement law. Construct the strongest arguments you can in support of and in opposition to such a law. Explain how emphasizing the importance of different ethical norms could lead to a different attitude toward the proposed law.

Review Problems

1. 11-7  Karen writes Bob a long letter in which she falsely accuses him of stealing her bike. Bob is outraged because no one has ever questioned his character in that way before. He is so incensed that he shows the letter to several colleagues, as well as to his boss.

A few weeks later, he applies for a promotion and is turned down. When he asks his boss why he lost the promotion, his boss, very reluctantly, says that a number of people were concerned about Bob’s integrity in light of the recent accusations about his involvement in a bicycle theft. Bob sues Karen for defamation and intentional infliction of emotional distress. Why will he probably succeed or fail on each claim?

2. 11-8  Madeline enters into a contract with Canyon Canoes to go on a weeklong canoe trip down a river. The contract states that, although the firm provides experienced guides and high-quality equipment, they are not insurers of the adventurers’ safety. The firm cannot be responsible for harm resulting from ordinary dangers of outdoor activities. Madeline is injured when the Coleman stove she was provided with explodes. The explosion was caused by an inadequate repair that had been made by Canyon Canoes. The company raises the defense of assumption of the risk when she sues it for negligence. Is this a valid defense? Why or why not?

3. 11-9  Action Advertising hired Alice Jones as an account executive. She signed an employment contract under which she agreed to work for the agency for a one-year term for an annual salary of $45,000. After the manager of Creative Ads saw an exceptional set of ads that Jones had created, he called Jones, asking her whether she would be interested in changing jobs. When Jones explained that she was bound by contract for six more months, the manager said that the contract was unenforceable and further offered to double her salary if she came to work for him, because he did not believe that she was being paid what she was worth. If Jones quits and goes to work for Creative, is there a tort? If so, what would the remedy be? If not, why not?

4. 11-10  Sam was driving in excess of the speed limit and ran a red light at 11:00 p.m. He hit Suzanne’s car, which was crossing the intersection when he ran the red light. Sam had not seen Suzanne’s car because of his excess speed and also because she was driving a black car and had not turned on her headlights. Suzanne suffered extensive injuries and sued Sam for negligence. Detail the manner in which she tried to prove her case and describe how Sam attempted to defend himself. How do you think the court would resolve this dispute? How would the state in which the case arose affect the outcome?

5. 11-11  Bill is having marital difficulties and has an affair with Sara, from whom he contracts herpes. Hoping to work out his marital problems, he does not inform his wife of his infection. Four years later, Bill and his wife, Eva, divorce. A month later, before she has had any relationships with other men, Eva discovers that she has herpes. Knowing she could have contracted the disease from only one person, she sues her husband for negligence, battery, and intentional infliction of emotional distress. What arguments would she make to support each of these causes of action? Explain how you believe the court would respond to each argument.

6. 11-12  Devo Dynamite is imploding a building. Despite taking every known safety precaution and imploding the building at a time when the least traffic is likely to be in the area, the implosion is not perfect, and Ron, a passerby, is injured by a piece of flying debris. What tort may Devo be accused of committing? Explain why Ron is either likely or unlikely to be successful in his legal action.

Case Problems

1. 11-13  On January 22, 2007, Nyokia Stokes got into a conflict with another third grader at her school. That evening, the conflict transferred to the parents when the other girl’s mother and a male companion went to Nyokia’s home and threatened her. The police were called but deferred to the school. On January 23, 2007, a principal observed what looked like a fight among several adult women in the office of the school. The women were yelling, pulling out hair, and rolling around on the ground. At the principal’s urging, the police arrested the four women. After criminal charges were dropped, the four women brought a claim for false arrest against the principal and the Board of Education of the City of Chicago. The district court granted summary judgment to the defendants and plaintiffs appealed.

On appeal, the Stokes argue that because they were not the aggressors in the fight, the principal did not have probable cause to swear out the criminal complaints that caused their arrests. In this jurisdiction, probable cause exists if, at the time of the arrest, the circumstances known to the defendant are sufficient to cause a reasonable and prudent person to believe that the person committed an offense. Did the principal have probable cause? What reasons would you use to support your argument? Stokes v. Board of Education of Chicago, 599 F.3d 617 (7th Cir. 2010).

2. 11-14  Oprah Winfrey was sued for, in pertinent part, intentional infliction of emotional distress after making statements about Lerato Nomvuyo Mzamane’s performance as headmistress of the Oprah Winfrey Leadership Academy for Girls (OWLAG). OWLAG is a private academy in South Africa that provides education for children from impoverished families. After learning that one of the individuals working at the school had been abusive toward the students, Winfrey made statements to the effect that she had “lost confidence in [Mzamane’s] ability to run the school,” that Mzamane had failed to take student complaints “seriously,” that the abusers thought they were “protected by [Mzamane],” and other similar statements.

Winfrey moved for summary judgment. How do you think the court ruled? Does it matter whether this is a jurisdiction that requires a physical injury to succeed on a claim for intentional infliction of emotional distress? Are there any other claims that the plaintiff could or may have pursued in this case? Mzamane v. Winfrey, 2010 U.S. Dist. LEXIS 23491 (2010).

3. 11-15  In 2006, a 21-year-old girl named Christina Eilman was arrested at Midway Airport for causing a disturbance. Although she was mentally ill, a police officer took her from the airport and dropped her off in a neighborhood well known for being unsafe. Her family later pointed out that she was dressed in a way that attracted attention, she was unaware of where she was and mentally unable to appreciate the dangers surrounding her. Furthermore, she was a young white girl and her family argued that the officer dropped her off in a predominantly black, poverty stricken neighborhood where she stood out and could foreseeably be the victim of a crime. After being dropped off, Christina was sexually assaulted by a gang member and thrown out of a seven-story window. Her parents subsequently filed a lawsuit against the city and police officer for being negligence. How do you think the court decided? Paine v. Cason No. 10–1487 (2012).

4. 11-16  Plaintiffs Mr. and Mrs. Rye were receiving medical care and family planning services at Women’s Care Center of Memphis, MPLLC (“the Clinic”). Mrs. Rye had Rh negative blood, and was expected to receive an injection of RhoGAM from the Clinic during her time of pregnancy. The plaintiffs allege that Mrs. Rye did not receive this injection from her physician at the Clinic, and as a result, she became “Rh-sensitized” meaning that she had “antibodies in her body to Rh-positive blood.” The plaintiffs asserted that this incident caused physical injury to Mrs. Rye, disruption of family planning, infliction of emotional distress, and future medical expenses. The plaintiffs filed a complaint alleging medical malpractice against the defendant. The defendants argued that the failure to provide Mrs. Rye with the Rh injection did not cause any harm to the patient or her baby, but did concede that it may disrupt future family planning. The trial court declined summary judgment for plaintiffs’ physical injury claim. They granted summary judgment for the plaintiffs’ claim of future medical expenses related to future pregnancy. The defendant appealed this decision. How do you think the court ruled on appeal? Why? Rye v. Women’s Care Ctr. of Memphis, Tenn. App. LEXIS 131 (2014).

5. 11-17  Defendant Jean Mincolla spread a rumor that Mark Yonaty was gay. Mincolla’s alleged reasons were to cause Yonaty’s girlfriend to believe the rumors and thus breakup with him. After Mincolla spread the rumor to close family friends and family members of the girlfriend, Yonaty decided to file a lawsuit against Mincolla for defamation. Yonaty argued that telling others that one is gay or bisexual was insulting and embarrassing enough to constitute defamation. On the other hand, Mincolla’s side presented the argument that although Mincolla was trying to ruin Yonaty’s relationship, ultimately being called gay or bisexual was not shameful enough to constitute defamation. What was the court’s landmark decision in this case? Yonaty v. Mincolla, WL 1948006 (2012).

6. 11-18  In New York, lawsuits involving injuries caused by domestic animals are decided by applying a theory of strict liability. The suing party must demonstrate that the owner of the animal was aware of the animal’s tendencies to act dangerously. In 2007, Karen Hastings was driving her car down a road at 1:30 a.m. when she crashed her car into a cow that had wandered onto the dark road from Laurier Sauve’s property. Hastings argued that an owner should be liable for a large animal escaping from its enclosure because there should be negligence claims available to injured persons affected by the wandering animals. Even if the animals aren’t vicious, she pointed out that they were still dangerous when roaming free, seeing as she could not see the large animal on the dark road when she was driving in the middle of the night. The defendant argued that Hastings must prove that he was aware that the animal had a tendency or an inclination to cause harm to others, which he believed she couldn’t. How did the court decide? Hastings v. Sauve 2012 NY Slip Op 02535 (2012).

7. 11-19  Plaintiffs David Peshlakai and Darlene Thomas, husband and wife, were badly injured, and their daughters, Deshauna and Del Lynn Peshlakai, were killed, when their vehicle was crashed into by defendants James Ruiz and Gilbert Mendoza. Ruiz and Mendoza had very high blood alcohol levels at the time of the crash. According to the plaintiffs, Ruiz and Mendoza were continuously served alcohol by an Applebee’s restaurant, regardless of their apparent drunkenness. The plaintiffs brought suit for wrongful death, personal injuries, and loss of consortium and other damages against Ruiz and Mendoza, as well as the franchisee responsible for the Applebee’s Neighborhood Grill in Santa Fe, and Applebee’s International, Inc. How do you think the court ruled? Why? Peshlakai v. Ruiz, 39 F. Supp. 3d 1264 (d.n.m. 2014).

8. 11-20  Plaintiff Victor Restis was an entrepreneur for the shipping industry in Greece. His company, Enterprises Shipping and Trading s.a. (“EST”), was responsible for a fleet with a large commercial value. The plaintiff alleges that the defendant, a not-for-profit corporation named Uani, directed a campaign against the plaintiff which included defamatory publications, or a “name-and-shame campaign.” Uani identifies as a corporation that “seeks to prevent Iran from fulfilling its ambition of obtaining nuclear weapons” and “engages in private sanction campaigns and legislative initiatives focused on ending corporate support of the Iranian regime.” The plaintiff argues that the defendant’s campaign falsely accused the plaintiff company of engaging in illicit business dealings with Iranian oil and shipping entities. The plaintiff brought suit against the defendant, alleging that the defendant tortuously interfered with the plaintiff’s business relationships. How do you think the court ruled? Is the plaintiff required to show that the defendant acted solely out of malice? 2014 U.S. Dist. LEXIS Restis v. Am. Coalition against Nuclear Iran, Inc., 2014 U.S. Dist. LEXIS 139402 (s.d.n.y. 2014).

Thinking Critically about Relevant Legal Issues

In 2004, at Governor Schwarzenegger’s urging, California adopted a budget measure that involved taxing punitive damages awards 75 percent. What this measure did was to take a punitive damages award in a civil suit, give 25 percent of the award to the plaintiff, and then put the other 75 percent of the award in a state fund to be used for state needs. California was right to enact this legislation, and other states would be wise to do so as well. Governor Schwarzenegger has been an innovative leader, and even though he did not sign the bill to renew the legislation in 2006, he said that the idea was still good, but the legislation needed work before he would renew the law. Following the governor’s lead, other states should enact similar legislation to help meet state budgetary needs.

The idea of taxing punitive damages and giving a large percentage of the money to the state is useful because so many parties benefit from the arrangement. The plaintiff still receives some of the punitive damages, the tortfeasor is still punished for the wrongdoing that sparked the civil suit, and the taxpayers benefit from the state’s having more money to spend on its citizens. Besides, the purpose of punitive damages is to punish the tortfeasor, not to benefit the plaintiff, and California’s law still allows tortfeasors to be punished for their egregious behavior. The punitive element is still there, but what is different is that more people benefit from the tortfeasor’s wrongdoing, not just the one party that brought suit against the tortfeasor. The plaintiff is still compensated through compensatory damages, so she is not losing money she is owed. Rather, she no longer is awarded a windfall that was meant as punishment for another, not as reward for her injury.

Some critics argue that the tax is a bad idea because juries will be more likely to award higher punitive damages in order to bring in more tax revenue for the state. Higher damages, however, would help to further punish wrongdoers, as well as aid the state’s needs. Also, the critics fail to account for the fact that the vast majority of punitive damage awards are greatly reduced on appeal; thus, any initial raise in the damages assessed would probably be reduced on appeal, essentially making no difference in the final amount of punitive damages against the tortfeasor. The policy should make no significant change in the amount of damages awarded but will instead benefit more people, which should be the goal of any good state policy.

1. What are the issue and conclusion of this essay?

2. Is significant information missing from the preceding argument?

Clue:   What pieces of information would better aid you in deciding whether you agree with the author?

3. What ethical norm does the author appear to rely upon most in making the preceding argument?

4. Write an essay that someone who holds an opinion opposite to that of the essay the author might write.

Clue:  What other ethical norms could influence an opinion on this issue?

Assignment On The Internet

Now that you have a basic understanding of tort law, use the Internet and your critical thinking skills to evaluate arguments for tort reform. Find at least two websites, other than those that follow, with opposing views on the issue of tort reform. What is the primary argument of each one? What ethical norms support each argument?

After evaluating the arguments of others, formulate your own position about one aspect or area of tort reform. What ethical norms did you use in formulating your position?

The following links may be helpful in searching for other sites with positions on tort reform.

 On The Internet

1. www.newsbatch.com News Batch is a website dedicated to helping explain policy issues in such a manner that the general public has a better chance of understanding and following policy debates. News Batch integrates many charts and graphs into its policy summaries in an attempt to facilitate understanding of important policy issues. News Batch also supplies multiple links to other pro and antitort reform sites. Simply click on “Tort Reform” on the right side of the page.

2. www.whatistortreform.com What Is Tort Reform is a website that helps you figure out exactly what “tort reform” is. The website contains links to other sites that help explain relevant topics related to the issue of tort reform.

3. http://www.tortdeform.com/ Tortdeform: the Civil Justice Defense Blog contains posts discussing the dangers of certain types of tort reform.

4. www.law.cornell.edu Use the Wex Legal Encyclopedia at this website to explore recent court cases involving torts.

5. lp.findlaw.com This site provides several links to tort-law resources, such as state and local laws, cases, and several databases. Click on “Corporate Counsel,” then under the heading “Litigation and Disputes,” click on “Civil Litigation.”

For Future Reading

· Cain, Terrence, “Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater.” Chicago-Kent Law Review 89 (2014): 11.

· Durkin, Chelsea Sage. “How Strong Stands the Federal Tort Claims Act Wall? The Effect of the Good Samaritan and Negligence Per Se Doctrines on Governmental Tort Liability.” Arizona State Law Journal 39 (2007): 269.

· Klutinoty, Maria C. “Exxon Shipping Co. v. Baker: Why the Supreme Court Missed the Boat on Punitive Damages.” Akron Law Review 43 (2010): 203.

· Lytton, Timothy D. “Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law.” Connecticut Law Review 39 (2007): 809.

· Oster, Jan. “Communication, Defamation and Liability of Intermediaries.” Legal Studies 35 (2015): 348.

· Angerer II, Ronald P. “Moving Beyond a Brick and Mortar Understanding of State Action: The Case for a More Majestic State Action Doctrine to Protect Employee Privacy in the Workplace.” Charlotte Law Review 4 (2013): 1.

· Steele, Jenny. Tort Law: Text, Cases, and Materials. New York: Oxford University Press, 2007.