Negligent Tort
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Chapter 6
Criminal Law Criminal law is the branch of law that concerns itself with the punishment of prohibited behavior seen as harmful to society as a whole. In every society, criminal law is the primary vehicle through which government imposes standards of behavior for its citizens as a means of preventing antisocial behavior and maintaining order. Because criminal law punishes behavior deemed to be damaging to society, it is the branch of law that most clearly re�lects a society's ethical values. All crimes are offenses against society, and convicted criminals are punished by having them forfeit their property (by having to pay a �ine), their freedom, and even their lives, depending on the seriousness of their crime. In a criminal trial, a prosecutor (the government representative who is charged with proving the guilt at trial of individuals accused of committing crimes) charges a person suspected of committing a crime (the criminal defendant) in order to have that person punished by having to pay a �ine, being sentenced to jail, or both. In extreme cases, convicted criminals may also be put to death. Thus, criminal law is punitive in nature, with the intended result of a successful conviction being the punishment of the criminal for having committed the prohibited act.
Although criminal law in both England and the United States developed as common law based on custom and tradition, today all states have extensive criminal codes that enumerate a wide range of prohibited conduct and specify its punishment. As is often the case in our legal system, there are important differences in criminal law statutes at the state and federal level, in terms of both the kinds of conduct that are prohibited and the kinds of punishment that can be exacted for such conduct. Despite these differences, there are still many similarities in the kinds of conduct that are prohibited in each of the 50 states and by the federal government, since all criminal statutes trace their roots to the common law. Most states today have incorporated at least in part the Model Penal Code promulgated by the American Law Institute in 1962 and revised in 1981. (Go to the American Law Institute website (http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=92) to access this source.) In this chapter, we will focus on areas of criminal law that are fairly standard in most states. Keep in mind, however, that the law is �luid and subject to revision and change; this is particularly true in the area of criminal law, where legislatures are constantly making changes, both to the types of conduct deemed criminal and to the punishment for such conduct, in order to re�lect changing societal values and varying needs for law and order.
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6.1 Elements of a Crime There are two elements to every crime that the prosecution must prove before a criminal defendant can be found guilty of having committed a crime: (1) a criminal act or omission by the accused and (2) the existence of a wrongful state of mind or intent at the time of the commission of the wrongful act or omission. (A criminal omission is a failure to act when the law imposes a duty to act, such as the duty of a parent to care for and protect a minor child.) If a criminal act (or criminal omission) is carried out with the required criminal intent, then a crime is complete; but criminal intent alone or a harmful act that was not committed with the required criminal intent does not rise to the level of a crime. A few examples should help to illustrate.
1. Jane hates Josh and wishes he were dead. She spends every waking moment hoping for his demise and imagining ingenious, painful ways of bringing it about. One day, Josh is struck by lightning and dies, much to Jane's delight. Jane is guilty of no crime, since she committed no act to help bring about Josh's death.
2. Jane wishes Josh were dead. She takes a butcher knife and plunges it into Josh, intending to kill him. Josh dies. Jane is guilty of a crime (murder) since she undertook a criminal act (plunging the knife into Josh) while possessing the necessary criminal intent (the intent to kill him).
3. Jane, while deer hunting, sees the luckless Josh in the woods 100 yards away. He is wearing a tan deerskin-colored coat and hat and crawling on all fours looking for a lost contact lens. Believing Josh to be a deer, Jane shoots and kills him. Jane is not guilty of a crime under the facts given, despite the fact that a criminal act was committed (homicide), since she lacked the required criminal intent. (The wrongful act was caused by a mistake rather than the intent to do harm.)
In general, failure to act will not result in criminal liability unless the accused had a duty to act. In our society, individuals are generally free to stand by and do nothing when others are faced with danger unless:
1. There is a special relationship that by its nature requires the bystander to come to the assistance of the person in danger; or
2. The dangerous situation was caused or contributed to by the bystander.
If a special relationship exists that imposes a duty to act on a bystander, or if the bystander contributed through his actions to placing the victim in a dangerous situation, then the bystander will be guilty of criminal omission if he does not render assistance. The following example will illustrate:
Sam, a sadistic sociopath who enjoys others' suffering, watches as a sightless stranger crosses a busy intersection while a tractor-trailer approaches her at a high rate of speed. He does not warn the stranger of the danger or move to assist her. If the truck strikes the sightless woman, Sam will not generally be guilty of any crime. As a stranger, he has no duty to warn or assist another in danger. His failure to do so is clearly morally reprehensible, but since he did not place the woman in the dangerous situation and owed her no legal duty, he is guilty of no crime in failing to assist her through word or deed. Sam would, however, have had an af�irmative duty to at least warn the woman if he were the woman's husband or father, or if he were a police of�icer on duty whose responsibility is to protect and safeguard the welfare of all citizens in his community.
It is possible to be guilty of a crime without having the required criminal intent in a few kinds of special cases. There are certain types of behavior that legislatures want to prevent regardless of the intent of the person engaging in the behavior, usually because of the inherently dangerous nature of the behavior and the danger it poses to others. Such criminal offenses are termed strict liability crimes. Whenever a strict liability crime is involved, the only issue is whether the act was committed; the mental state of the person committing the act is irrelevant. Typical strict liability offenses include traf�ic violations and driving while under the in�luence of alcohol or other drugs. If a person is accused of speeding or running a red light, for example, all that needs to be shown by the prosecutor is that the act occurred. It is irrelevant that the accused did not intend to speed or did not see the red light before crossing it; what is punishable is the act itself. Likewise, with driving while under the in�luence or driving with ability impaired, the fact that the accused may not have intended the violation or was so intoxicated that he or she lacked the ability to form criminal intent is irrelevant.
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Types of Crimes
6.2 Classi�ication of Crimes Traditionally, crimes have been classi�ied into three basic categories based upon their seriousness: felonies, misdemeanors, and violations. Felonies are the most serious crimes and are punishable by more than one year's imprisonment in a state or federal penitentiary. Misdemeanors are less serious criminal offenses that can carry a maximum penalty of one year's imprisonment. Violations are minor offenses that typically are punishable by a �ine or short prison sentence of 30 days or less.
Felonies and misdemeanors are further subdivided into other categories based upon the maximum penalty by which they are punishable. The following example is typical, but be aware that, in keeping with our common law system, there is great variation in the criminal statutes among the states in both the classi�ications and punishment of crimes.
First-degree felony: Punishable by death or imprisonment from 15 years to life, or by a �ine of up to $250,000
Second-degree felony: Punishable by imprisonment of up to 15 years and/or a �ine of up to $10,000
Third-degree felony: Punishable by imprisonment of up to 5 years and/or a �ine of up to $5,000
Violations are also classed by their type and the maximum sentence or �ine to which violators can be subjected. Common violations include minor traf�ic infractions as well as such offenses as littering and spitting on the sidewalk. The maximum �ine for each violation is commonly $500 or less.
Types of Crimes From Title: Crime, Law, and Enforcement: Due Process (https://fod.infobase.com/PortalPlaylists.aspx?wID=100753&xtid=48002)
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6.3 Crimes in Business: White Collar Crime The most common type of crime that you will experience in your work life is socalled white collar crime. When most people speak of white collar crime, they mean nonviolent state or federal crimes committed in a business setting. There are literally hundreds of types of white collar crimes, ranging from insurance fraud to embezzlement, so it is impossible to cover all of these in one textbook. As a manager, your primary concerns should be the following:
1. Not engaging in illegal behavior, even unknowingly;
2. Keeping clear, concise, and organized records in the event that your business is investigated or subpoenaed;
3. Complying with all local, state, and federal taxes; and
4. Complying with all laws regarding workers, such as those from the Occupational Safety and Health Administration (OSHA), workers' compensation board, Social Security, and the Federal Insurance Contributions Act (FICA).
Furthermore, as an employee, rather than a manager, you should be aware of your duty to not engage in illegal activity even when ordered to do so by a superior. Following orders is not an excuse for illegal conduct and can result in criminal charges.
Fraud in the Workplace
As a manager, it is important that you be acutely aware of fraud in the workplace. In a 2012 survey of businesses, the Association of Certi�ied Fraud Examiners determined that the typical organization loses 5% of its revenues to fraud each year, which translates to $3.5 trillion worldwide per year for all businesses—a staggering amount (Report to the Nations on Occupation Fraud and Abuse: 2012 Global Fraud Study). Fraud is the most likely crime to take place at work, and perhaps surprisingly, the fraud perpetrator usually has no prior fraud charges or convictions. Employees who commit fraud at work are most likely to be in one of six departments: accounting, operations, sales, executive/ upper management, customer service, or purchasing.
Computer Fraud and Hacking
One of the more likely types of fraud taking place in business is computer fraud. The federal statute law that governs this crime is known as the Computer Fraud and Abuse Act (18 USC §1030). This federal law makes the following acts illegal:
1. Intentionally accessing a computer without authorization to obtain: Information contained in a �inancial record of a �inancial institution, or contained in a �ile of a consumer reporting agency on a consumer;
Information from any department or agency of the United States; or
Information from any protected computer;
2. Intentionally accessing without authorization a government computer and affecting the use of the government's operation of the computer; and
3. Knowingly accessing a protected computer with the intent to defraud and thereby obtaining anything of value.
For example, in International Airport Centers v. Citrin (which can be found at here (http://caselaw.�indlaw.com/us-7th-circuit/1392048.html) ), an employee erased all the information on his laptop computer when he quit his job. Much of the data he erased was valuable information that the company needed. One reason he chose to delete all the �iles was to hide his own improper conduct. The provision of the Computer Fraud and Abuse Act (CFAA) on which the employer relied was successfully applied against the employee.
Consider the key excerpts from the following case (citations omitted) and its application of the CFAA to an employee:
Cases to Consider: U.S. v. Nosal
U.S. v. Nosal (676 F.3d 854) C.A.9 (Cal.) (2012)
Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for non-business purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act.
David Nosal used to work for Korn/Ferry, an executive search �irm. Shortly after he left the company, he convinced some of his former colleagues who were still working for Korn/Ferry to help him start a competing business. The employees used their log-in credentials to download source lists, names and contact information from a con�idential database on the company's computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/ Ferry had a policy that forbade disclosing con�idential information. The government indicted Nosal on twenty counts, including trade secret theft, mail fraud, conspiracy and violations of the CFAA. The CFAA counts charged Nosal with violations of 18 U.S.C. §1030(a)(4), for aiding and abetting the Korn/ Ferry employees in "exceed[ing their] authorized access" with intent to defraud.
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Nosal �iled a motion to dismiss the CFAA counts, arguing that the statute targets only hackers, not individuals who access a computer with authorization but then misuse information they obtain by means of such access.
Discussion
The CFAA de�ines "exceeds authorized access" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. §1030(e)(6). This language can be read either of two ways: First, as Nosal suggests and the district court held, it could refer to someone who's authorized to access only certain data or �iles but accesses unauthorized data or �iles—what is colloquially known as "hacking." For example, assume an employee is permitted to access only product information on the company's computer but accesses customer data: He would "exceed [ ] authorized access" if he looks at the customer lists. Second, as the government proposes, the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.
***
Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking, recognizing that, "[i]n intentionally trespassing into someone else's computer �iles, the offender obtains at the very least information as to how to break into that computer system."
Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it's unlikely that you'll be prosecuted for watching Reason.tv on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.
Enforcement of the CFAA against minor workplace dalliances is not chimerical. Employers have invoked the CFAA against employees in civil cases.
***
Employer-employee and company-consumer relationships are traditionally governed by tort and contract law; the government's proposed interpretation of the CFAA allows private parties to manipulate their computer-use and personnel policies so as to turn these relationships into ones policed by the criminal law.
Basing criminal liability on violations of private computer use policies can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com.
. . . The Internet is a means for communicating via computers: Whenever we access a web page, commence a download, post a message on somebody's Facebook wall, shop on Amazon, bid on eBay, publish a blog, rate a movie on IMDb, read www.NYT.com (http://www.nytimes.com/) , watch YouTube and do the thousands of other things we routinely do online, we are using one computer to send commands to other computers at remote locations. Our access to those remote computers is governed by a series of private agreements and policies that most people are only dimly aware of and virtually no one reads or understands.
For example, it's not widely known that, up until very recently, Google forbade minors from using its services. . . . Adopting the government's interpretation would turn vast numbers of teens and pre-teens into juvenile delinquents—and their parents and teachers into delinquency contributors. Similarly, Facebook makes it a violation of the terms of service to let anyone log into your account. ("You will not share your password, . . . let anyone else access your account, or do anything else that might jeopardize the security of your account.") (last visited Mar. 4, 2012). Yet it's very common for people to let close friends and relatives check their email or access their online accounts. Some may be aware that, if discovered, they may suffer a rebuke from the ISP or a loss of access, but few imagine they might be marched off to federal prison for doing so.
Not only are the terms of service vague and generally unknown—unless you look real hard at the small print at the bottom of a webpage— but website owners retain the right to change the terms at any time and without notice. Accordingly, behavior that wasn't criminal yesterday can become criminal today without an act of Congress, and without any notice whatsoever.
The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17-year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight.
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We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA "target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation."
Conclusion
Because Nosal's accomplices had permission to access the company database and obtain the information contained within, the government's charges fail to meet the element of "without authorization, or exceeds authorized access" under 18 U.S.C. §1030(a)(4). Accordingly, we af�irm the judgment of the district court dismissing counts 2 and 4–7 for failure to state an offense. The government may, of course, prosecute Nosal on the remaining counts of the indictment.
Af�irmed.
Read the full text of the case here (http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf) .
Questions to Consider
1. What does the Computer Fraud and Abuse Act make illegal?
2. What was the defendant in this case charged with doing that was allegedly illegal?
3. What did the court say was legal under the act? What did the court say was illegal under the act?
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6.4 Crimes Against Property Crimes against property include offenses that result in the destruction of property or the permanent or temporary deprivation of the owner's right to exclusively use and enjoy real or personal property.
Arson
Under common law, arson was de�ined as the intentional burning of another's home. Today, the de�inition of arson has been substantially expanded in the criminal law statutes of most jurisdictions to include the intentional burning of another's occupied structure or the intentional burning of any property, including one's own, for the purpose of collecting insurance. For purposes of arson, an occupied structure is usually de�ined as any personal or real property that is constructed so as to permit overnight accommodation of persons or the conducting of business therein, whether or not the structure is actually occupied at the time that it is burned. Thus, all homes and businesses are subject to arson, as are mobile homes and trailers that are set up for human occupancy. Arson is typically a second-degree felony.
Criminal Mischief
Damaging the personal or real property of another purposely, recklessly, or negligently by the use of explosives, �ire, or other dangerous means constitutes criminal mischief. Criminal mischief can be a third-degree felony, a class A, B, or C misdemeanor, or a violation, depending on the nature and extent of the damage caused. (Under §220.3, paragraph 2 of the Model Penal Code, for example, it is a third-degree felony if damage in excess of $5,000 is caused, a misdemeanor if more than $100 but less than $5,000 in damages is caused, a petty misdemeanor if more than $25 but less than $100 in damages is caused, and a violation if $25 or less in damages results from the criminal mischief.)
Burglary
Under common law, burglary was de�ined as breaking and entering into the dwelling house of another at night with the intent to commit a serious crime inside. As is the case with arson, modern criminal law statutes have liberalized the de�inition to be less restrictive. A common de�inition of burglary today is breaking and entering any occupied structure with the intent of committing any crime inside. The requirement of a breaking is ful�illed whenever the burglar exerts any amount of force to gain access to a building; turning a doorknob or gently pushing in a door that is unlocked both constitute a suf�icient breaking in most states. The requirement of entering is satis�ied by the intrusion of any part of a person or any tool in his or her control into the occupied structure. The crime is complete as soon as the breaking and entering is accomplished, provided that the burglar intended to commit a crime inside (see Section 6.1 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec6.1#sec6.1) , Elements of a Crime).
The following three examples constitute the crime of burglary.
Bob Burglar kicks in a door and enters Victoria Victim's home in order to steal her valuables. Once inside, he is scared off by Victoria wielding a shotgun before he has a chance to take anything of value.
Belinda Burglar pushes an unlocked door and walks into Vince Victim's apartment in order to physically assault him.
Ben Burglar slides open a window to Victoria's home and, using a �ishing pole, manages to hook and reel in a purse and a gold chain from her nightstand as she sleeps.
Bob, Belinda, and Ben are all guilty of burglary since the requirement of breaking and entering with a criminal intent is met in all three cases. Notice that in the third case, Ben never physically enters Victoria's home; nevertheless, when he casts the �ishing line through the window, it is the same as if he had entered himself. Notice too, in that example, that the sliding up of an unlocked window constitutes a suf�icient breaking, and the crime is complete as soon as the line is cast through the window with the intent to commit a crime (stealing the purse and chain), even if he fails to snag the personal property after several casts and goes away empty handed.
Burglary is usually a third-degree felony, but it can be raised to a second-degree felony in many states if the crime is committed at night, if anyone is injured during the commission of the crime, or if the burglar carries a deadly weapon during the burglary.
Criminal Trespass
Anyone who knowingly enters real property owned by another without permission to do so is guilty of criminal trespass, a misdemeanor. Entering any building not open to the general public without permission constitutes criminal trespass, as does the entering into posted land that warns intruders not to trespass, or the entering into land that the trespasser knows or reasonably should have known belongs to another. Failure to leave another's property when instructed to do so also constitutes trespass, even if the trespasser originally was given permission to enter the land by its owner or tenant. Willfully throwing a rock onto another's land is trespass, as is �iring a bullet or arrow above another's land—even if the bullet or arrow never touches the ground. On the other hand, if a ball accidentally bounces onto a neighbor's land when children are playing basketball, it would not constitute trespass because the ball was not intentionally thrown there. But the intentional act of retrieving the basketball without consent would constitute trespass.
Under common law, property rights extended below one's real property (subsurface rights) to the center of the earth and above one's property (air rights) all the way to the heavens. Today, every jurisdiction limits air rights, typically to a given number of feet above the tallest structure on one's land. Were this
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not the case, it would be virtually impossible to engage in civil aviation, and even satellites orbiting miles above the earth would be trespassing on landowners' air rights.
Robbery
A theft that is accomplished through either the use of force or the threat of force constitutes the crime of robbery. Robbery is usually a second-degree felony, but it can become a �irst-degree felony if the perpetrator in�licts or attempts to in�lict serious bodily harm during the course of the crime.
Larceny
The intentional taking and carrying away of the property of another with the intent to permanently deprive the owner of its use constitutes the crime of larceny. Larceny can be either a third-degree felony or misdemeanor, depending upon the value of the stolen property.
Embezzlement
The misappropriation of property in one's care belonging to another constitutes the crime of embezzlement, which is typically punishable the same as larceny.
Receiving Stolen Property
A person who purchases or otherwise acquires stolen property is guilty of the crime of receiving stolen property, which is usually punishable exactly the same way as larceny, provided that the property is received with actual knowledge that it was stolen or under circumstances that should have made the receiver suspicious that it might be stolen.
Theft of Services
A person who knowingly receives the bene�it of services that are available for compensation through the use of deception or any physical means to avoid paying for such services is guilty of theft of services, a crime punishable the same way as larceny. Common examples of theft of services include using slugs in public telephones, vending machines, or parking meters, as well as illegal hookups to cable services and the use of illegal descramblers to obtain scrambled satellite broadcasts.
Forgery
The crime of forgery consists of any material alteration to a written document issued by another that is made in order to defraud or mislead anyone. The crime of forgery is a felony or misdemeanor depending on the nature of the offense. Altering government or commercial enterprise instruments that purport to have monetary value, such as currency, stamps, stocks, bonds, and similar instruments, represents a second-degree felony. Altering documents that affect legal relationships, such as wills, trusts, deeds, contracts, and claims releases, is a felony in the third degree. Any other forgery, such as the material alteration of the date in a driver's license, is a misdemeanor.
Issuing a Bad Check
It is a misdemeanor to issue a bad check: a check drawn on an account that no longer exists or on an account with insuf�icient funds to honor the check when it is presented. In many states, a person may avoid criminal liability for such checks, also known as bounced checks, by promptly paying the due amount (typically within 10 days of the notice of dishonor).
Credit Card Fraud
Using a forged or stolen credit card to obtain goods, services, or cash advances and using a credit card after it has been canceled or recalled constitutes credit card fraud. Credit card fraud is usually a third-degree felony if the amount of the fraudulent charge exceeds $500 or a misdemeanor if the amount is $500 or less.
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6.5 Bribery, Extortion, and Crimes Against the Judicial Process To ensure fairness in the administration of justice and in the normal conduct of business, the criminal statutes of every state prohibit conduct that seeks to interfere with fair business practices or the impartial administration of justice.
Bribery of a Public Official
At common law, the crime of bribery consisted of promising to give something of value in exchange for a public of�icial's of�icial conduct. The solicitation, acceptance, or promise to give or accept a bribe—called bribery of a public of�icial—is all equally punishable as a misdemeanor. The consideration involved need not be monetary; a promise of sexual favors made to a judge, police of�icer, or housing inspector for favorable of�icial action is as much bribery as a promise to exchange money or goods for such action.
Commercial Bribery
It is a misdemeanor in most states to solicit, accept, or agree to accept anything of value in exchange for violating a duty of �idelity owed to one's employer, client, or company as an employee, of�icer of a corporation, partner, trustee, guardian, or member of a profession. Commercial bribery applies to a wide variety of settings and would include each of the following:
A promise by a parent to pay a little league umpire $100 if he does not call a child out on strikes;
A promise to give the CEO of XYZ Company an executive position in ABC Company if she discloses trade secrets;
An offer by a plaintiff 's attorney to a defendant's attorney in a civil suit to pay him $100,000 if he loses the case;
An offer of a new car by an unquali�ied applicant to Ivy League University to the director of admissions if she is accepted as a student;
An offer of a designer suit made by Failing Student to Scruffy Professor in exchange for a passing grade.
Threatening a Public Official
Threatening any public of�icial with harm in order to in�luence of�icial action is a misdemeanor. Making similar threats to in�luence a judicial or administrative proceeding, however, is a third-degree felony. (Members of a jury are deemed public of�icials for purposes of this crime.)
Influence Peddling
It is a misdemeanor to solicit, receive, or agree to receive any consideration for the trading of political in�luence by a public servant. This crime, called in�luence peddling, includes the solicitation, giving, or receiving of a political endorsement by a public of�icial in exchange for something of value.
Perjury
Making a material misrepresentation while under oath or through a sworn statement (such as an af�idavit) constitutes the crime of perjury, a third-degree felony. A misrepresentation is material if it can affect the course or outcome of a proceeding.
Tampering With Public Records
It is a misdemeanor to knowingly falsify, destroy, or attempt to hide any of�icial government record or document. This crime, called tampering with public records, also includes creating or using falsi�ied documentation issued by the government, such as using a false Social Security or Alien Registration Card. If the tampering is done to defraud or injure anyone, then the offense is a third-degree felony. Simply carrying a false Social Security card, for example, is a misdemeanor, but using it to attempt to obtain social services that one is not entitled to receive, thereby defrauding the government, is a third-degree felony.
Obstruction of Justice
Any intentional interference with the administration of justice in a person's of�icial or private conduct is a misdemeanor called obstruction of justice, regardless of whether such interference is obtained through physical force or of�icial action. Physically interfering with an arrest, disrupting courtroom proceedings, or giving false information that misleads police in an investigation are all examples of obstructing justice.
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6.6 Attempted Crimes and Criminal Conspiracy The law punishes not only completed criminal acts, but also the attempted commission of a crime that for some reason is not completed. In addition, conspiring to commit a crime, whether or not the crime is ultimately committed, is a separate offense unto itself.
Aiding in the Commission of a Crime
Any assistance rendered to a criminal in the commission of a crime, called aiding in the commission of a crime, and hiding or converting the proceeds of criminal activity are punishable as a misdemeanor. If the underlying crime was a �irst- or second-degree felony, however, then facilitating its commission is a third-degree felony.
The Crime of Attempt
Under the Model Penal Code and the criminal codes of most states, the attempt to commit a crime that is not ultimately carried out is punishable to the same degree that the crime itself would have been punishable if completed. In general, in order to convict a criminal defendant for a crime of attempt, all that is necessary is that the defendant have taken a substantial step toward committing the criminal act and that the defendant have acted with the required criminal intent. The penalty for attempting a crime is the same as that for committing the crime attempted, with the exception that �irst-degree crimes become second-degree attempted crimes.
For example, attempted murder is a second-degree felony because murder is a �irst-degree felony. But attempted robbery is a second-degree felony because robbery is a seconddegree felony, and attempted larceny is either a third-degree felony or a misdemeanor depending on the value of the goods, exactly as is the case with larceny itself.
It must be noted that a defendant can be tried and convicted for either the attempt to commit a crime or the crime itself, but not both.
Criminal Conspiracy
Either planning and agreeing to commit a crime with others or agreeing to assist others in the commission of a crime results in the crime of criminal conspiracy. Criminal conspiracy, like the crime of attempt, is subject to the same punishment as the underlying crime that the conspirators intend to perpetrate. As is the case with the crime of attempt, criminal conspiracies to commit crimes that are �irst-degree felonies are punished as seconddegree felonies, and the punishment for conspiring to commit any second-degree felony or lower crime is exactly the same as for the underlying crime itself.
The crime of conspiracy is a completely separate crime from the underlying crime that the conspirators intend to commit. Therefore, persons found guilty of criminal conspiracy can also be found guilty of the underlying crime that the conspirators perpetrated, or its attempt if the crime was not fully carried out. The following example will illustrate.
Tom, Dick, and Harriet agree to kill Bill Billionaire and to steal the valuables from his home. Tom agrees to buy a gun from a local illegal gun dealer that specializes in untraceable weapons, Dick agrees to drive the car and disable Bill's alarm system, while Harriet agrees to do the actual killing. On the appointed day, the three thugs arrive at Bill's home and break in. Harriet attempts to shoot Bill several times, but the gun jams and will not �ire. The three panic, run out, and are arrested a short time later. They are charged with burglary and criminal conspiracy to commit murder, and Harriet is charged with attempted murder. Under the facts given, the three are guilty on all counts.
Despite the fact that there was a criminal conspiracy to commit more than one crime in the example (burglary and murder), there can be only a single conviction for any conspiracy that is ongoing. In this case, the conspiracy charge would be based on attempted murder rather than burglary, since it is the more serious offense. Similarly, if a group of bank robbers plan and execute a dozen successful robberies, they can be charged with 12 separate counts of bank robbery but only a single count of conspiracy to commit bank robbery, since the criminal af�iliation was ongoing and subject to the same agreement by the parties to commit the crimes.
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6.7 Defenses to Criminal Liability As previously noted, there are two prerequisites to criminal liability: a criminal act and criminal intent. Unless a prosecutor can establish both beyond a reasonable doubt, the defendant is entitled to an acquittal. It stands to reason, then, that criminal defendants can avoid a conviction by presenting evidence that they did not commit the criminal act (such as an alibi that shows they were not present in the area at the time the crime was committed) or, if the criminal act occurred, that the defendant lacked the required intent for criminal culpability. To put it another way, criminal defense attorneys have two basic pillars on which to base their defense: that the act in question was not committed by the criminal defendant or that, if the act was committed, the defendant did not possess the requisite criminal intent. In addition, behavior that is normally criminal may be justi�iable under certain circumstances, such as the intentional in�liction of bodily harm to another in self-defense.
In a criminal trial, the prosecutor must establish beyond a reasonable doubt both that a criminal act occurred and that the defendant committed the act with the required criminal intent. In turn, all that counsel for the defense needs to do in order to be entitled to an acquittal is to inject a reasonable doubt into the minds of jurors as to the defendant having committed the alleged act or as to the defendant having acted with the required criminal intent. Even in situations when the defense cannot effectively raise a reasonable doubt as to a defendant's guilt, there are some af�irmative defenses that the defense can raise to excuse criminal liability. When any of the af�irmative defenses is raised at trial, the burden of proof is on the defendant's attorney to prove the defense by a preponderance of the evidence. The following example will illustrate.
Andrew Angry runs up to Don Dunderhead, a candidate for political of�ice in his state, yelling "I'm going to punch your lights out, you blundering idiot. I've been listening to your meandering speeches for months and have yet to hear you say a single thing that makes any sense." Andrew then jumps onto the speaker's platform and beats Don silly. At his trial for aggravated assault, Andrew's attorney won't be able to deny either the act or the intent, since both were broadcast for a week over every television news program. But she might be able to assert an af�irmative defense, such as insanity or intoxication, to win Andrew's acquittal.
Speci�ic defenses to criminal liability include insanity, intoxication, infancy, self-defense, defense of others, defense of property, and entrapment.
Insanity
The basic premise behind the insanity defense is that a person who, owing to some mental illness or de�iciency, commits a criminal act that he or she would not otherwise commit should not be held responsible for such an act. A defendant who effectively raises an insanity defense in fact proves to the satisfaction of the jury that, even though he or she committed the criminal act as charged, the act was committed without the requisite criminal intent. In other words, whenever the insanity defense is successfully used, the defense convinces the jury that although a criminal act was committed, its cause was not criminal intent but rather the defendant's mental in�irmity.
Intoxication
The defense of intoxication is very similar to the insanity defense in that it seeks to exculpate criminal behavior by showing that, at the time the behavior took place, the criminal defendant was incapable of forming criminal intent because he or she was intoxicated.
If the intoxication is involuntary, the intoxication is treated exactly in the same manner as insanity. If, for example, a state subscribes to the Model Penal Code de�inition of insanity, then a person who is involuntarily intoxicated cannot be found guilty of a crime if the intoxication prevented the defendant at the time of committing the criminal act from recognizing the wrongfulness of his conduct or from conforming his conduct to the requirements of the law. In order to qualify for involuntary intoxication, the defendant must establish that he or she was tricked or forced into taking the intoxicating substance.
In cases of voluntary intoxication, where the defendant took the intoxicating substance freely, the effect on the defense varies depending on the nature of the crime. If the crime is one that requires a �inding of willful criminal intent in order to prove culpability, as is the case with such offenses as murder, rape, or robbery, then it makes no difference whether the intoxication was voluntary or involuntary. Voluntary intoxication will not be a valid defense, however, when the crime is one that does not require willful criminal intent, such as a strict liability crime (driving while intoxicated or general traf�ic offenses, for example) or a crime based on negligence or recklessness, such as reckless endangerment or negligent homicide. The following two examples will illustrate.
Juan while at a party eats several cookies that, unknown to him, have been laced with LSD. An hour later, while his world seems to melt around him, Juan burns down his college's administration building and drives away in the college president's car. He then drives the car at 95 miles per hour in a 15-mph school zone, killing a pedestrian. He is charged with arson, vehicular manslaughter, larceny of the automobile, speeding, and driving while intoxicated. In most states, he has a valid defense of involuntary intoxication to all charges, since none of the offenses would have been committed but for his unintentional intoxication.
If Juan committed the above offenses after voluntarily drinking a �ifth of vodka while at the party and became so drunk as to lose the ability to know what he was doing, however, his voluntary intoxication would be a valid defense in most states to the arson and larceny charges, for they require willful intent, but not to the manslaughter, speeding, or driving-while-intoxicated charges, since these are offenses based on recklessness and strict liability.
Self-Defense
A person is free to use reasonable force in defense against an unprovoked attack. A person may generally use any necessary force to repel a physical attack or the threat of an attack. A person faced with an attack that he or she reasonably believes may cause death or serious bodily injury may use any physical
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force to repel such a threat or attack, up to and including deadly physical force. The key to the justi�ication of the use of force is the reasonableness in the mind of the victim of the perceived danger. If, for example, a mugger pulls a realistic-looking toy gun on a victim who shoots him with a real gun in response, the victim of the mugging would be justi�ied in repelling the attack even if the mugger were killed in the process, provided that he or she reasonably feared death or serious injury before fending off the attack. If the mugger's gun in the last example were clearly visible to the victim as a neon- green, transparent toy water pistol, however, the shooting in self-defense would not be justi�ied. In addition, some states require that a victim exhaust all reasonable options, including �light from the scene, where practical, before resorting to the use of deadly force (other states have laws that allow would-be victims to "stand their ground"). Even in states where the victim must exhaust reasonable options, though, he or she may generally use deadly force to repel a reasonably perceived threat of death or serious injury within his or her own home without �irst trying to evade the home invader.
Defense of Others
In every state, a person who rushes to the aid of another who is being victimized may use as much force in defending the person as the person could use himself in his own defense. Thus, if Susan, a passerby, sees Sam with his back against a wall being held up by a gunman who is threatening to kill him, she can use any force against the assailant that Sam himself could use (she can injure or even kill the assailant in this example, since Sam is clearly in danger of death or serious bodily injury). A problem arises for good Samaritans when, as is often the case, they act impulsively and base their actions on how things appear, not how they actually are.
Mohammed, a passerby, notices Carla, who is dressed as a police of�icer, being held at gunpoint by Frank, whom he hears saying "If you move, I'll shoot." Mohammed, sure that a police of�icer is in danger, tackles Frank, wrestles with him for the gun, and shoots him during the scuf�le. Later, he learns that Frank was an undercover police of�icer attempting to arrest Carla, who had held up a convenience store while impersonating a police of�icer.
Mohammed's fate as a mistaken good Samaritan depends upon the state where the action occurred. In some states, Mohammed's actions would be judged simply on their reasonableness under the circumstances; if a reasonable person would have believed Carla to have been a police of�icer in danger, then Mohammed's actions would be justi�ied and not subject him to criminal liability. In other states, however, good Samaritans are held to "stand in the shoes" of persons they try to defend; in such states, a person can use only as much force as the perceived victim had a legal right to use against the perceived attacker. In a state with such a rule, Mohammed would be criminally liable for the injury in�licted on Frank (the undercover police of�icer) since Carla, the person he perceived to be a victim, in fact had no actual right to defend herself under the circumstances.
Defense of Property
All states recognize the right of an individual to protect property from being taken, misused, or damaged by another. Any force short of deadly physical force (force that may reasonably be expected to cause death or life-threatening injury) may be used to protect one's property. In other words, you may threaten, restrain, or physically prevent another from harming or taking your property, but you may not kill or seriously wound another merely to protect your property. Keep in mind that you may use deadly physical force if you reasonably feel threatened with death or serious bodily injury. For example, in most states, you may use deadly force to protect yourself from a carjacking during the course of which you are threatened with serious injury, but you may not use deadly force to prevent your car from being stolen from your driveway by shooting the thief from inside your home when you are not directly being threatened.
Entrapment
A person who is enticed or convinced to commit a crime by law enforcement agents when he or she is not otherwise predisposed to commit such a crime can escape criminal liability by asserting the defense of entrapment. In order to successfully assert the defense, the criminal defendant must prove two elements:
1. That the commission of the crime was instigated or enticed by a law enforcement agent(s); and
2. That the crime would not have been committed but for the enticement or instigation of the law enforcement agent(s).
It is not enough for a defendant to show that police provided the opportunity for the crime to occur or that police suggested the crime's commission; to successfully assert an entrapment defense, the defendant must show that he or she was not predisposed to commit the crime. Let's look at two examples for the sake of clari�ication.
Lina, an undercover police of�icer, offers to purchase a vial of crack cocaine from Freddy, a drug dealer. Freddy sells Lina the crack and Lina immediately arrests him.
Lyssandra, a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), offers Rosalie, a state legislator, $20,000 to transport a kilogram of heroin from a contact in Mexico. Rosalie initially refuses, but Lyssandra manages to convince her, wearing down her resistance through the use of hard-sell tactics over a period of several weeks. When Rosalie delivers the drugs, Lyssandra arrests her for drug traf�icking.
Freddy, in the �irst example, will not be able to successfully assert the defense of entrapment. Even though he was approached by a police of�icer, he was clearly predisposed to commit the crime and was not in any way convinced to do so. In the second example, however, Rosalie will be able to successfully assert the defense of entrapment, since it is clear from the facts given that she was not predisposed to commit the crime but was convinced to do so by Lyssandra.
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In the real world, the more pressure a police of�icer needs to exert on a would-be perpetrator to agree to commit the illegal act, the likelier it is that the defendant will be able to successfully assert the defense of entrapment. A criminal defendant who offers little or no resistance to the suggestion of committing a crime will not be able to successfully assert the defense of entrapment. One of the key elements for prosecutors trying to overcome the defense when it is raised is the criminal predisposition of the defendant to commit the crime. Predisposition is usually shown by a pattern of previous behavior; thus, persons who are enticed by police to commit criminal acts that they are known to have committed in the past have a very dif�icult time in raising the defense of entrapment because their previous acts point to a predisposition to commit the crime they are charged with.
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6.8 Responding to a Criminal Investigation This section will cover two events that may take place during the course of a criminal investigation, search and seizure and grand jury inquiries.
Search and Seizure
The Fourth Amendment provides that a search of a person or place and the seizure of a person (arrest) or property cannot take place without probable cause. Probable cause is a standard meaning "more likely than not that a crime has been committed." If the police see someone sell another person crack cocaine, there is probable cause to arrest, for example, because the crime is being committed in front of the police, or "in plain view." If there is probable cause, but the crime is not committed in plain view, the police may obtain either a search or arrest warrant, which may be served on a business or residence. The seizure of people or property can then legally take place. From a strictly legal (as opposed to ethical) point of view, if a police of�icer arrives at a place of business without a warrant and makes inquiries about business activities or a particular employee, the business does not have to answer those questions or turn over any documents.
If serious crimes are involved, the district attorney will most likely convene a grand jury to bring a criminal proceeding against a business or individual, as described next.
Grand Jury Inquiries
Criminal charges for white collar crime will most likely begin with proceedings in a grand jury. Grand juries are convened by the state or federal prosecutor for the purpose of presenting evidence to a group of jurors, who then determine whether there is enough evidence to issue an indictment, which is a formal criminal charge against the defendant.Grand juries can conduct extensive investigations and subpoena all sorts of records. One question that may confront you as a manager is how you should appropriately respond to a subpoena.
The subpoena may be for a person to appear before the grand jury, for the production of records, or both (i.e., for a person to bring speci�ic records). A subpoena is an order from the court that can take a number of forms. A subpoena test is an order to show up at a deposition to give testimony. A subpoena duces tecum is an order issued to produce records. A simple subpoena is an order to show up at a criminal proceeding to testify.
The subpoena will most likely be served at the workplace by a police of�icer or, if a federal matter, by an FBI agent. To prevent the embarrassment of being served at work, a business should have its attorney receive the subpoena, if possible.
As a general rule, the materials (�iles) requested in a subpoena are presumed to be reasonable under the case U.S. v. R. Enterprises, Inc. (498 U.S. 292, 111 S. Ct. 722, 112 L.Ed.2d 795 [1991]), unless "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury investigation." Since it is relatively easy to show that any information is relevant to any procedure, this standard is considered extremely low, meaning that anything is subject to the subpoena. As a manager, it is imperative that you respond to a subpoena in a timely and professional manner. This means that you should contact the of�ice that issued the subpoena, show up at court early, dress professionally, and present all records in an organized manner. The best circumstance, of course, is to refer the matter to the business's counsel where a subpoena is concerned, since it indicates that a serious criminal matter is under way.
In the event that the subpoena or the legal proceeding personally involves you in any way, then it is imperative that you hire your own attorney and that your attorney respond to the subpoena and deal directly with the prosecutor's of�ice. Even if you have the best intentions and are completely innocent, criminal proceedings are intimidating, complicated, and can result in serious consequences. The cost of hiring an experienced criminal defense attorney is well worth protecting your freedom. Although your attorney cannot be present inside the grand jury room if you testify, you can leave the grand jury room and confer with your attorney to obtain advice about your answers during the session.
For further information about responding to criminal actions, consult the following:
1. "Business Crime: What to Do When the Law Pursues You (http://www.mitexeced.com/lal/images/51333_sloan-rev.pdf) ," by John Akula, MIT Sloan Management Review.
2. Responding to Federal Criminal Trial Subpoenas (http://www.orrick.com/�ileupload/2121.pdf) ; and Federal Grand Jury Crash Course (http://corporate.�indlaw.com/litigation-disputes/federal-grand-jury-crash-course.html) .
3. Federal Practice: Responding to a Subpoena (http://www.weil.com/�iles/Publication/925ba5e1-3ebb-4758-8e83- a1424fdff940/Presentation/PublicationAttachment/e8247337-b86d-4df9-b01b-a953f20b0545/10.18.10-
Federal%20Practice%20Responding%20To%20A%20Subpoena%20(1-503-1741)%20(2)%20(2).pdf) , by David J. Lender, Jared R. Friedmann, and Jason B. Bonk Weil, Gotshal & Manges LLP.
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Key Terms
Click on each key term to see the de�inition.
aiding in the commission of a crime (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Rendering assistance to a criminal in the commission of a crime, hiding, or converting the proceeds of criminal activity; punishable as a misdemeanor.
arson (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Intentional burning of any property, including one's own, for the purpose of collecting insurance.
Association of Certi�ied Fraud Examiners (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A U.S. organization that publishes literature and educates the public in the areas of fraud and certi�ies fraud examiners.
bribery of a public of�icial (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Promising to give something of value in exchange for a public of�icial's of�icial conduct.
burglary (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Breaking and entering any occupied structure with the intent of committing any crime inside.
commercial bribery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
To solicit, accept, or agree to accept anything of value in exchange for violating a duty of �idelity owed to one's employer, client, or company as an employee, of�icer of a corporation, partner, trustee, guardian, or member of a profession; a misdemeanor in most states.
Computer Fraud and Abuse Act (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Federal law (18 USC §1030), which makes it illegal to intentionally access a computer without authorization to obtain consumer �inancial or U.S. government information, or to access a protected computer with the intent to defraud (through hacking).
credit card fraud (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Using a forged or stolen credit card to obtain goods, services, or cash advances or using a credit card after it has been canceled or recalled.
crime of attempt (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Taking a substantial step toward committing a criminal act, wherein the defendant acted with criminal intent.
criminal act or omission (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A wrong as de�ined by state or federal statute.
criminal conspiracy (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Either planning and agreeing to commit a crime with others or agreeing to assist others in the commission of a crime.
criminal intent (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Also known as mens rea (literally, guilty mind), the de�inition of criminal intent varies from crime to crime. The mens rea for murder is the intent to kill; for robbery, it is the intent to permanently deprive the owner of his property.
criminal mischief (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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Damaging the personal or real property of another purposely, recklessly, or negligently by the use of explosives, �ire, or other dangerous means.
criminal trespass (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Knowingly entering (or refusing to leave when asked) real property owned by another without permission to do so.
embezzlement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The misappropriation of property in one's care belonging to another.
entrapment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Being enticed or convinced to commit a crime by law enforcement agents when not otherwise predisposed to do so; a defense that can be asserted to escape criminal liability.
felony (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The most serious type of crime; punishable by more than one year's imprisonment in a state or federal penitentiary.
forgery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Material alteration to a written document issued by another that is made in order to defraud or mislead.
grand jury (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Group of jurors convened by the state or federal prosecutor for the purpose of presenting evidence; the jury determines whether evidence is suf�icient to indict (formally charge) the defendant with a crime.
indictment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Formal written accusation of a criminal charge against a defendant, brought by a grand jury.
in�luence peddling (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
To solicit, receive, or agree to receive any consideration for the trading of political in�luence by a public servant; a misdemeanor.
issuing a bad check (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
To issue a check drawn on an account that no longer exists or on an account with insuf�icient funds to honor the check when it is presented.
larceny (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The intentional taking and carrying away of the property of another with the intent to permanently deprive the owner of its use.
misdemeanor (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Offense that can carry a maximum penalty of one year's imprisonment.
Model Penal Code (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Criminal law guidelines promulgated by the American Law Institute in 1962 and revised in 1981.
obstruction of justice (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Any intentional interference with the administration of justice in a person's of�icial or private conduct; a misdemeanor.
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perjury (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Making a material misrepresentation while under oath or through a sworn statement.
probable cause (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
More likely than not, a crime has been committed: standard used by police before arresting a person or seizing property.
prosecution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The state district attorney or U.S. Attorney who brings criminal charges against a defendant on behalf of the government.
robbery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A theft that is accomplished through either the use of force or the threat of force.
simple subpoena (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A court order to appear at a criminal proceeding to testify.
subpoena (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Legal document issued by a court ordering the receiving party to testify in court or to bring documents to court.
subpoena duces tecum (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A court order issued to produce records.
subpoena test (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A court order to appear at a deposition to give testimony.
tampering with public records (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
To knowingly falsify, destroy, or attempt to hide any of�icial government record or document; a misdemeanor.
theft of services (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Knowingly receiving the bene�it of services that are available for compensation through the use of deception or any physical means to avoid paying for such services.
violation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Minor offense that is typically punishable by a �ine or prison sentence of 30 days or less.
white collar crime (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Nonviolent state or federal crime committed in a business setting.
wrongful state of mind (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The mindset necessary to �ind in the defendant for a criminal conviction.
Chapter 6 Flashcards
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Critical Thinking and Discussion Questions
1. What is the basic purview of criminal law? What are the de�ining elements of all crimes?
2. What is a grand jury proceeding?
3. What is a subpoena? What types of subpoenas are there?
4. In general, is there a legal duty for citizens in our society to come to the assistance of those in need? Should there be one, in your opinion? Explain fully.
5. Consider the many uses you and your friends make of computers and devices to access the Internet. Where would you draw the line as to what data on a computer are work- or school-related rather than personal? How would you write such a law? What language would you use?
6. Your immediate supervisor asks that you write a computer policy for your company. Assume that no one has a laptop computer to take home and that all computing is done on site at your company headquarters. Based on the Nosal case, what sort of company policy would you develop?
7. Ben sets �ire to a grain silo in his neighbor's farm after a heated argument. Fortunately, the silo is not attached to the neighbor's house or barn, so the damage does not spread beyond the destruction of the silo and its contents. The next day, Ben is arrested and charged with arson. Should he be convicted of the crime if the prosecutor can show that he purposely set the �ire? Explain.
8. Spark and Flash, malicious but less than brilliant arsonists, agree to burn down a number of apartment buildings in exchange for a fee from landlords eager to collect insurance on unpro�itable rent-controlled apartment buildings. As they arrive at the �irst site, they slosh several gallons of gasoline onto the building only to discover that they neglected to bring matches or a lighter. Housing police arrest the two after observing them go from door to door asking tenants for matches. What crime or crimes, if any, can they be charged with, and what is the maximum penalty they face for each crime or crimes?
Rendering assistance to a criminal in the commission of a crime, hiding, or converting the proceeds of criminal activity; punishable as a misdemeanor.
C l i c k c a rd t o s e e t e r m 👆
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Chapter 7
Intentional Torts Tort law is grounded in the principle that individuals have the right to be left alone—to live free of unreasonable interference from others. Torts, from the Latin torquere (to twist) and tortus (twisted), make up the branch of law that governs civil wrongs (other than breach of contract) for which a court will provide a remedy. The purpose of tort law is to provide just compensation to injured parties for civil injuries in�licted by others.
At �irst glance, it is easy to confuse tort law with criminal law insofar as both attempt to exact a penalty for wrongful conduct. Such confusion is exacerbated by the fact that many crimes are also torts. What distinguishes a crime from a tort, however, is the nature of the offense. As discussed in Chapter 6 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/ch06#ch06) , criminal law concerns itself with wrongs against society as a whole and is punitive in nature, whereas tort law concerns itself with wrongs against individuals and is primarily compensatory in nature. To put it another way, crimes are wrongs against society, whereas torts are offenses against individuals. With that said, many torts and crimes, such as assault and battery, look exactly the same. Often the distinction comes down to who is bringing the action.
For example, in an assault and battery incident, the person injured could sue the defendant for money damages for the tort of assault and battery. He or she could also ask the district attorney to bring criminal charges for assault. The civil proceeding would take place at one time in a civil court, and if the plaintiff "won," it would result in a money judgment for the plaintiff. The criminal proceeding, on the other hand, could result in a conviction and a possible jail sentence if the defendant were found guilty. Each is a separate proceeding in a different type of court before a different judge; in the civil case, the plaintiff is represented by an attorney; in the criminal case, the state represents the interests of the "people" in seeking justice. Thus, the very same incident can result in both a civil and a criminal trial.
Although not every action that an individual may consider objectionable may rise to the level of an actionable tort (a recognized civil wrong other than breach of contract for which a court may grant civil relief ), tort law as it has developed from early common law through today recognizes a large number of speci�ic torts that persons can in�lict on one another.
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Business Crimes and Business Torts
7.1 Elements of Intentional Torts All intentional torts have at least three elements. Thus, for the plaintiff to prevail in a civil lawsuit against the defendant for an intentional tort, the plaintiff must convince the jury by a preponderance of the evidence that each of the following occurred:
1. An act (by the defendant) of conscious volition. That is, the defendant was awake (not, e.g., sleepwalking or having an epileptic seizure) when the tort occurred.
2. Intent. That is, the defendant understood the consequences of his or her act. (Note that "intent" here does not mean that the defendant meant to commit the tort.)
3. Damages. The plaintiff suffered some sort of physical or bodily injuries. Bodily injuries may include both physical and mental harm in some instances.
Some torts also require a fourth element—actual damages, meaning that the plaintiffs must produce a receipt showing their damages. This is true, for example, in the tort of intentional in�liction of emotional distress.
To illustrate how intentional torts are actually applied to a business in a civil lawsuit, please read the following hypothetical situation. Then consider each of the torts discussed afterward and decide whether or not it applies to this hypothetical situation.
Andrea Quigley owns a large hardware store located in Ames, Iowa. On the day in question, Kent Kesey entered the store with the stated purpose of purchasing door hinges, a hammer, and nails for a home improvement project. Kent testi�ied that he spent about 30 minutes looking for the wares he was interested in purchasing. He further testi�ied that he tried to �ind a shopping cart or a basket in which to place the items but that the store was so crowded and busy that he could not locate either. As a result, he put the hinges in his pants pocket and the hammer in his back pocket and continued shopping.
One of the employees in the store immediately noticed that Kesey had a hammer sticking out of the back of his pants and that he looked suspicious. The employee approached Kesey and watched him from further down the aisle. As he watched, he noticed that Kesey was trying to juggle a large amount of merchandise in his arms and, while so doing, placed a bag of nails in his front left pants pocket. At that point, the employee approached Kesey and asked him what he was doing. Kesey replied, "What are you talking about?" The employee said, "I saw you shoplifting," to which Kesey replied, "I was not." At that point, the employee reached out and grabbed Kesey by the arm and said, "Come with me to the back of�ice." Kesey resisted and the employee pulled him harder. "Leave me alone!" Kesey yelled, "You're hurting me!" The employee dragged Kesey to the back of the store and yelled back, "If you hadn't been shoplifting, this wouldn't be happening!"
The employee then emptied Kesey's pockets of any items and escorted him to a chair in the manager's of�ice, where he left him and locked the door. The store was quite busy that day, so the employee forgot about Kesey. A few hours later, Andrea Quigley approached the employee and asked him who the stranger was in her of�ice. "Oops," the employee said, "I forgot to tell you about him." After questioning Kesey, Andrea released him. Six months later, Andrea received a summons and complaint naming her business as the defendant in a tort lawsuit for $1 million in damages.
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7.2 Intentional Torts Against Persons The �irst type of tort that will be explored is intentional torts against persons. While reading about the most common torts of this type, keep in mind that the following torts come into existence only if a duty owed by the tortfeasor (the person who perpetrates a tort) to the victim is breached. When intentional torts against persons are involved, the duty typically breached is the duty to refrain from undue interference with the right of others to be left alone.
Assault
The tort of assault consists of placing someone in apprehension of imminent, unwanted touching (battery), to which they did not consent. For the tort to be complete, all that is required is that the victim believe that he or she is about to be touched. It is not necessary that a battery actually take place or that the defendant intended to touch the victim. The tort seeks to compensate victims for the apprehension they suffer when they reasonably believe they are about to be touched. All that is required is that the apprehension be reasonably realistic for the tort to be complete.
When the employee grabbed Kesey and escorted him back to the manager's of�ice, that action completed the tort of both assault and battery. To prove assault, Kesey would have to show that he was in actual fear or apprehension of a battery. He also would have to convince the jury that his fear was reasonable under the circumstances.
Battery
Battery is an unpermitted touching that is either harmful or offensive. Any intentional touching that has not been consented to can give rise to the tort, whether or not serious injury occurs; the extent of the injury is relevant only in determining the monetary damages to which the victim is entitled. For purposes of the tort, an act of touching is deemed offensive if a reasonable person would object to the touching under similar circumstances. Punching someone on the nose without provocation is clearly a battery. But so is kissing or hugging a stranger without permission, since a reasonable person would likely �ind such unwanted touching objectionable. Consent can be assumed by the nature of the relationship between the parties; thus, kissing one's spouse or signi�icant other or hugging a friend is not generally considered a tort. Nor is it a tort to punch a boxer on the nose during a boxing match, no matter the damage that such contact may in�lict.
When the employee grabbed Kesey and escorted him to the of�ice, the actual grabbing is an unpermitted touching for the purposes of a tort.
Intentional Infliction of Emotional Distress
Intentionally causing someone to suffer extreme emotional distress by engaging in extremely cruel, outrageous conduct constitutes the tort of intentional in�liction of emotional distress. Like assault, this tort attempts to compensate victims for the apprehension to which they are subjected by the willful acts of others.
In order for this tort to arise, the conduct of the defendant must be outrageous and shockingly cruel. Conduct that is merely unkind or hurtful will not give rise to the tort regardless of the pain that such conduct causes the person at whom it is directed. Telling someone "You're ugly and stupid," for example, will not give rise to the tort regardless of the devastation these words may cause for the person hearing them; the statement may be unkind, antisocial, and mean-spirited, but it is not suf�iciently shocking to constitute intentional in�liction of emotional distress. In contrast, calling someone to tell him his mother has died, when in fact she has not, rises to the level of outrage that must be met for this tort to be actionable. Recall also that this tort requires the fourth element of actual damages. This may take the form, for example, of a psychiatrist's bill or medication needed as a result of the distress.
To prove intentional in�liction of emotional distress, Kesey would have to show that the employee's conduct rose to the level of "extreme and outrageous conduct." Whether or not behavior is "extreme or outrageous" is a determination the jury would have to make in its deliberations.
False Imprisonment
Intentionally interfering, without just cause, with a person's right to freely move about constitutes the tort of false imprisonment. The restriction can be physical or psychological in nature. Tying a person to a chair without justi�ication clearly constitutes the tort, but so does threatening a person with recriminations if she leaves—even if no physical restraint is used.
In business, this tort is of particular interest to retailers who frequently question suspected shoplifters. Holding someone for questioning who is reasonably suspected of shoplifting is permissible, as long as (1) the retailer has probable cause to believe that the person has stolen merchandise and (2) the length of time the person's movements are restrained is reasonable. A customer who is unreasonably detained or who is questioned for an unreasonable length of time can successfully sue for false imprisonment.
To prove false imprisonment, Kesey would have to show that he was con�ined to a bounded area with no reasonable means of escape. Again, this is a jury decision, but the facts that Kesey was left in a locked room with no access to a telephone and that the employee forgot he was being held there are all indicia of false imprisonment.
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7.3 Intentional Torts Against Property Another type of common tort involves interference with or damage to an individual's right to exclusively enjoy his or her personal and real property.
Trespass to Land
Trespass to land involves an intentional physical act that results in an unjusti�ied intrusion onto another's land without the owner's consent. This tort can be dif�icult for students to grasp because its meaning is "the intent to put your foot down" and not the intent to trespass. Suppose that you are mistakenly on someone else's property. You could still be liable for this tort because you were walking or meant to put your foot down. This is true even if you were lost in the woods and had no idea you were on someone else's property. Although no actual damages may have been caused to the land, the court may award what are called nominal damages (damages in name only, usually $1). Where the nature of the trespass is continuing or where damage is actually done to the land, substantial damage awards are likely. A property owner may also ask for an injunction from the judge—an order prohibiting the trespasser from continuing to trespass in the future. Injunctive relief is awarded by judges typically when trespass is of a continuing nature. Trespass to land is an important remedy for landowners to protect their rights in their property. Otherwise, anyone could walk, camp, or basically move onto someone else's land without the landowner's permission; stated another way, landowners would have no method of removing people from their land.
A Closer Look: Injunctive Relief
The principle of injunctive relief is illustrated by recent events in which the City of New York evicted and criminally charged a trespasser who refused to leave a privately owned but publicly accessible park, following an Occupy Wall Street movement sit-in. For information about this event and its legal nuances, go here (http://www.nytimes.com/2012/04/09/nyregion/judge-says-brook�ield-had-right-to-clear-zuccotti-park.html) , and then consider the following questions.
Questions to Consider
1. What legal argument would you make on behalf of the trespassers if you represented them in the hearing?
2. What legal argument would you make on behalf of the City of New York?
3. What social policy arguments could the City of New York make? The trespassers?
As you will see in Unit V, Chapter 19, Real and Personal Property, ownership of land extends to the land itself, any permanent structures on it, and the space above and below the land. For purposes of the tort of trespass to land, any physical intrusion into another's real estate can give rise to the tort; walking on another's land, purposely throwing a ball on it, tunneling underneath it, or �iring a gun or arrow over it all constitute the tort of trespass.
Where the trespass is the result of an emergency situation, such as �leeing a dangerous wild animal or entering land to assist someone in danger, the trespass is deemed excused. Even in these exceptional cases, trespassers must leave as soon as they learn they are trespassing or as soon as the emergency situation ends; otherwise, they will be subject to criminal and tort liability.
People going into a store to buy goods like Kesey are deemed "invitees" and are therefore not liable for trespassing. Trespassing to land does not apply to this situation.
Intentional Torts
Click here (https://media.thuze.com/MediaService/MediaService.svc/constellation/book/AUBUS670.12.2/{pdfs}ch07.pdf)
SLIDE 1 OF 13
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for a pdf of this slideshow.
Trespass to Personal Property
Personal property includes items like your cell phone, clothing, car, and any other type of property other than land. If someone damages another's personal property, he has committed the intentional tort of trespass to personal property.
Although Kesey would not be able to prove trespass to land, he might be able to prove trespass to personal property. If his watch or clothing were damaged in the forcible escort back to the of�ice, that would be trespass to personal property.
Conversion
If the defendant interferes with someone's personal property to such a degree that it is ruined or lost, then this is conversion. The tort of conversion consists of permanently depriving the owner of personal property of its use and enjoyment through theft or destruction.
If the employee never returned the items from Kesey's pockets (assuming the items belonged to Kesey, e.g., his money, a wallet), then that would be the tort of conversion. It would be up to the jury to decide how much money the damages would be worth.
Shopkeepers' Statutes
Many states have what are called Shopkeepers' statutes, which protect store owners from lawsuits such as these. However, the actions by the store owner have to be reasonable. Leaving someone in a locked room is not reasonable.
Consider the tort case Guijosa v. Wal-Mart Stores. In this lawsuit, the plaintiffs brought claims for malicious prosecution and false imprisonment against Wal- Mart, Inc., for their detention and arrest after they were allegedly seen taking baseball caps from the store.
Wal-Mart sought summary judgment on the ground that it is immune from liability, pursuant to the Washington statute that allowed a shopkeeper to detain the suspects for a reasonable time when it had probable cause to suspect them of shoplifting. The three men argued that the detention was for an unreasonable amount of time under the statute. Excerpts from the decision of the court follow:
Cases to Consider: Guijosa v. Wal-Mart Stores
Guijosa v. Wal-Mart Stores, 101 Wn. 777 (2000)
The claim arises from an alleged shoplifting incident at the Wal-Mart in Shelton, Washington. Trial testimony con�licted about whether Delgado and Guijosa were wearing baseball caps when they entered the Wal-Mart. All parties agreed Hernandez wore a baseball cap when he entered the store. While shopping, Delgado and Guijosa tried on hats from a sale bin and decided to purchase two. Rhonda Liburdi, a loss prevention associate, testi�ied she saw Guijosa tear off the price tag and place the hat on his head. She also saw Delgado walk away from the bin wearing a cap. A sales associate testi�ied that when the trio approached the bin, only Hernandez was wearing a cap, but when the three walked away from the bin, they each wore a hat. Delgado and Guijosa paid for some hats at the checkstand. Liburdi asked the cashier if they paid for the hats on their heads; the cashier replied no. Liburdi stopped the trio in the front vestibule of Wal-Mart, telling them she was detaining them for taking the hats without paying.
Liburdi requested they proceed to a security of�ice at the back of the store. She asked a coworker, David Opfer, to assist her. Guijosa was the only one of the three who spoke English. He told Liburdi the hats belonged to them. Delgado and Guijosa both testi�ied that Delgado's cap had been purchased two weeks before, and Guijosa's cap the previous day. Guijosa told Delgado and Hernandez to refuse to answer Liburdi's questions. Guijosa also told Liburdi that the three would make a statement to the police. Liburdi called the Shelton police, who arrived approximately 20–30 minutes later. The police �iled charges against Delgado and Guijosa based on Liburdi's statements.
***
. . . The trial court gave an instruction based on the defense found in the shopkeeper's privilege statute, RCW 4.24.220. The jury found that Wal-Mart proved by a preponderance of the evidence that they detained the plaintiffs for a reasonable time on reasonable grounds, and thus it was allowed the defense to any civil claim found in the shopkeeper's privilege statute. Therefore, the jury found for Wal-Mart on the false imprisonment and battery claims. The jury also found for Wal-Mart on the malicious prosecution claim.
***
[6] RCW 4.24.220 ("shopkeeper's privilege statute") creates a "reasonable grounds" defense for retailers in an action for unlawful detention, arising from a shoplifting investigation for shoplifting taking place at their retail establishment. See e.g. State v. Johnston, 85 Wn. App. 549, 933 P.2d 448 (1997). The statute provides the defense:
In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning
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by a peace of�icer or by the owner of the mercantile establishment, his authorized employee or agent, and that such peace of�icer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.
***
In any criminal action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace of�icer, by the owner of the mercantile establishment, or by the owner's authorized employee or agent, and that such peace of�icer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.
. . . Under the wording of RCW 9A.16.080, the time for detention is "time to permit such investigation or questioning by a peace of�icer, by the owner of the mercantile establishment, or by the owner's authorized employee or agent." Therefore, the crucial inquiry under RCW 9A.16.080 is whether store security possessed reasonable grounds for arrest, because "the authority to make the arrest . . . must necessarily carry with it the privilege of using all reasonable force to effect it." (citation omitted).
RCW 9A.16.080 clearly provides that a storeowner may detain a suspected shoplifter and wait for the police to arrive, without facing criminal liability. We construe related statutes as a whole, trying to give effect to all the language and to harmonize all provisions (citation omitted). It does not make sense that our Legislature intended to provide a defense from criminal liability, if, once detained, store security chooses to wait for the police, but to not provide this same defense from civil liability in the same circumstances. Therefore, the statute allows detention for a reasonable time after the "apprehension" for the investigative process, including waiting for the arrival of the police. And, Liburdi possessed the right to make this warrantless arrest of plaintiffs, even absent a breach of the peace, so long as "reasonable grounds" existed.
The existence of "reasonable grounds" within the meaning of RCW 4.24.220 to detain a person for shoplifting can be analogized to whether probable cause existed for arrest. (citation omitted) Therefore, whether "reasonable grounds" existed for detention in the shoplifting context is a question of fact. Moore, (citations omitted). A trial court should only grant a motion for a directed verdict if, as a matter of law, no evidence or reasonable inferences exist to sustain a verdict for the nonmoving party. (citation omitted) Therefore, the trial court properly denied the motion for a directed verdict, because there was a question of fact for determination by the jury—whether there existed "reasonable grounds" for detention of the three plaintiffs. We hold that the trial court correctly submitted the shopkeeper's privilege instruction to the jury.
On the other hand, plaintiffs' argument can be characterized not as an objection to an assertion of the privilege (i.e., whether reasonable grounds exist), but a challenge to the scope of the privilege (i.e., whether the detention went beyond a reasonable time). Plaintiffs touch upon this argument when stating that it was improper for the court to assume that "reasonable time" was a question of fact to be decided "case by case," along with a determination of "reasonable grounds." Plaintiffs correctly state that statutes enacted in derogation of the common law are to be strictly construed absent legislative intent to the contrary. (citation omitted) Therefore, plaintiffs argue that because the statute clearly de�ines "reasonable time," it is not an issue for the trier of fact to determine under the speci�ic circumstances of the case. But, in order to read RCW 4.24.220 in harmony with RCW 9A.16.080, plaintiffs' interpretation cannot be correct. Where legislative intent is to the contrary, we do not strictly construe the statute. (citation omitted) Also, although Moore, 20 Wn. App. at 489, held that the whether "reasonable grounds" for the detention exists is a question of fact for the jury, no Washington cases have speci�ically held that whether the detention was for a "reasonable time" is also a question of fact. Generally, however, the reasonableness of a shopkeeper's detention as a whole depends upon the facts and circumstances of the case. (citation omitted) Other jurisdictions examining the time-speci�ic issue under a shopkeeper's privilege statute have looked to all the circumstances of the detention to determine whether the time was "reasonable." See e.g. Adams v. Zayre Corp., 499 N.E.2d 678 (111. App. 1986) (holding detention of customer not reasonable where shopper detained for 15 minutes after it was determined there were no grounds for holding shopper). Additionally, the Washington shopkeeper's statute de�ines "reasonable time" as not only time enough to attempt to obtain a statement, but also as "the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise." RCW 4.24.220. This necessarily requires an examination of the entire circumstances of the detention. As a matter of law, we would not hold that the approximately 20–30 minutes in this case that plaintiffs waited for the police to arrive was an unreasonable amount of time for Liburdi to attempt to get their statements, and investigate ownership of the merchandise. Furthermore, it is persuasive that plaintiffs did not produce the receipts during this time, and also told Liburdi that they would voluntarily make a statement to police, which they later made.
Therefore, the question of whether a shopkeeper detained a shoplifter for a "reasonable time" may be dependent upon the circumstances of the speci�ic case. Reading RCW 4.24.220 in harmony with RCW 9A.16.080, we hold that RCW 4.24.220 does not allow a detention of suspected
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shoplifters only for the amount time required for them to refuse to make a statement to store security. As a matter of public policy, storeowners should be able to hold suspected shoplifters for a reasonable amount of time to await the police's arrival and seek the police's determination of whether probable cause exists for an arrest.
[25] In this case, there was substantial evidence that Wal-Mart had reasonable grounds to detain the plaintiffs, and was therefore entitled to an instruction on the shopkeeper's privilege. Both Liburdi and the sales associate testi�ied they saw Guijosa and Delgado approach the bin without hats, and leave with hats. Then, Liburdi observed them exit the store without paying. The police found there was probable cause to charge based on this same information.
Read the full text of the case here (http://caselaw.�indlaw.com/wa-supreme-court/1404966.html) .
Questions to Consider
1. Who won the case?
2. What did the plaintiff sue for? What defenses were raised?
3. What are the most important factors that a court will consider when deciding whether or not a store acted reasonably when suspecting a person of shoplifting?
4. How would you, as a manager, instruct your employees to act when they suspect someone of shoplifting?
5. How would you, as a manager, write a company policy regarding shoplifting in your business?
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7.4 Other Types of Intentional Torts Unlike the sample case, Jones v. Target Corp., which litigated wrongful imprisonment for alleged shoplifting, intentional torts against persons or property rarely go to trial. Thus, you are unlikely to personally experience these torts in either your business or personal life. Other types of intentional torts, however, have important rami�ications for business, so you should familiarize yourself with them.
Appropriation of a Person's Name or Likeness for Commercial Use
The law recognizes the right of individuals to pro�it from the use of their name or likeness, as well as to prevent others from using their name or likeness for commercial purposes without consent. Thus, the tort of appropriation consists of using a person's name or likeness for commercial purposes without his or her permission. For example, suppose that a photographer takes a picture of a very photogenic �ive-year-old girl in the park and then sells that photograph to a company that then uses it to advertise children's toys. Even though the photograph was taken in a public place, before one is allowed to use another's image or likeness for monetary gain, permission must be obtained. In a different spin on the same situation, a newspaper, magazine, or television newscast can use the same picture without the child's (guardian's) consent for a newsworthy purpose: Such use does not constitute a commercial purpose under the law.
Intrusion Into Seclusion
This tort deals with willfully observing the private conduct of others under circumstances where an expectation of privacy exists. Before the intrusion into seclusion tort arises, three conditions must be met:
1. The conduct observed must be private, not public;
2. The intrusion must be willful; and
3. The nature of the intrusion must be such that it is objectionable to a reasonable person.
There can be no reasonable expectation of privacy for persons who carry out their private business in plain view. Thus, a passerby who glances into an open ground-level window from the street is not guilty of invasion of privacy regardless of the private nature of the acts observed inside. This was the case in Boring v. Google, Inc. (No. 09-2350, 2010 U.S. App. LEXIS 1891 [3rd Cir. 2010]), in which the Borings claimed that Google intruded on their seclusion when its Street View car drove down their private road to take pictures of their house, which were then displayed on Google's Street View feature. The court held that, while this was physical trespass on their land, the picture displayed was legal in that it did not actually display the Borings' image.
In a 1995 class action lawsuit (Dwyer v. American Express, 652 N.E.2d 1351 [Ill. App. 1995]), consumers alleged that American Express had intruded on their seclusion by gathering information about their use of their American Express credit cards and then selling that information to third parties. The court held that the plaintiffs failed to satisfy the �irst element of the claim (i.e., unauthorized intrusion).
Likewise, selling magazine subscription lists without the subscribers' consent was also found not to be an invasion of privacy (Shibley v. Time, Inc., 341 N.E. 2d 337 [Ohio 1975]).
False Light
The false light tort consists of placing a person or persons in a false light by publishing true facts about them in such a way that unpopular views or actions are attributed to them. In order for the tort to arise, the views or actions that are attributed to the victim through portraying them in a false light must be objectionable to a reasonable person. The following example will illustrate.
Jane Doe, a prominent conservative politician, stops to give assistance to the victims of an automobile accident. She helps to extricate �ive people from their car and leaves after an ambulance arrives. She later learns that the �ive individuals (whom she had not previously met) happen to be members of an organization that is known to sponsor terrorism abroad. She reads the following headline in the next morning's paper: "Senator Doe Seen Driving Away from Accident Scene After a Meeting with Five Terrorists."
If Jane Doe sues the newspaper, what is the likely result? She would win on the facts, since the headline clearly places her in a false light—making it appear she has unlawfully left the scene of an accident (a criminal act) and further that she had an of�icial meeting with known terrorists (a hypocritical and objectionable course of action for someone in her position).
Public Disclosure of Private Facts
Publication of private facts that a reasonable person would �ind objectionable can also result in a valid invasion of privacy tort. This tort derives from a common law breach of con�idence tort. For it to arise, the facts disclosed must be private in nature, and disclosure must be objectionable to a reasonable person. The disclosure also needs to have been made under circumstances in which the plaintiff had a reasonable expectation that the defendant would keep the matter con�idential (e.g., a con�idential relationship, such as attorney–client privilege or priest–penitent, has to have existed between the parties). Note that truth is not a defense to this tort as long as the truth disclosed is not generally known and a reasonable person would object to its disclosure.
Defamation
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The tort of defamation consists of publishing false statements about a person that damage his or her reputation. Defamation takes two forms: libel, if the false statements are written or in a tangible form (e.g., electronic data on the Internet), and slander, if the false statements are spoken.
In order to successfully sue for defamation, the following three requirements must be established:
1. The statement must be false;
2. The statement must have a negative effect on the person's reputation; and
3. The statement must be published (communicated to one or more third parties).
If the person or company suing for defamation is a private party, once defamation is proven, the only question that remains is how to compensate the person monetarily. However, if the person who is suing is a public �igure (e.g., a celebrity), the defamatory statement must also be shown to be malicious. For purpose of this tort, malice is de�ined as making a false statement either with the actual knowledge that it is false or with reckless disregard for its truth or falsity. One type of defamation lawsuit becoming more prevalent is called false accusation in the workplace. This lawsuit occurs when the employer makes a statement about an employee, such as accusing him or her of stealing from the business. Because such a statement must be false and published to be actionable, employers should hold conferences with employees only in private of�ices with no one else present. In that way, there is no "publication"; only when a third party hears the statement does publication occur.
Since the advent of the Internet and social media such as Facebook and Twitter, it has become much easier to meet the publication requirement for the tort of defamation. As a result, business managers need to be cautious about defamation, as it can apply to the 21st-century workplace.
For their part, employees should be aware that posting defamatory statements on sites like Facebook could result in a lawsuit by an employer, or more commonly, in the loss of one's job. According to newspaper articles (http://www.guardian.co.uk/business/2008/nov/01/virgin-atlantic-facebook) , for example, Virgin Atlantic �ired 13 crew members who had posted comments on Facebook about faulty engines on the planes, cockroaches in the cabin, and rude passengers. To avoid such situations, employers should write clear guidelines and post them in public places in the workplace to make sure that company policy about such defamatory conduct is clearly communicated to employees.
A problem arises when the tort of defamation is aimed at a group of people. The larger the group, the more dif�icult it becomes to prove that any individual member is harmed by the statements, regardless of their falsity, maliciousness, or even viciousness. An example is the maligning of entire professions by such statements as "All lawyers are thieves," "All doctors are quacks," or "All accountants are cheats." The sheer size of these groups of professionals makes it impossible to show that any one person has been harmed by such blanket statements, even though, taken together and repeated often enough, they might indeed tend to damage the reputation of the group. If a group is small enough that its individual members are readily identi�iable, however, such general false statements can be the source of libel actions. Thus, publishing the statement "All lawyers are amoral liars, cheats, and scoundrels" is not actionable because no one lawyer can show signi�icant damage to his or her reputation from a statement aimed at an entire profession. In contrast, the slur "All lawyers in Smalltown are amoral liars, cheats, and scoundrels" could be the basis of a defamation lawsuit by any of only a handful of legal practitioners in Smalltown.
Disparagement
Disparagement (closely related to defamation) is a tort that consists of willfully misrepresenting the quality of a competitor's goods or services. The statements are untrue or misleading and are made to in�luence the public not to buy or use the product or services.
The food and beverage industry is a business sector especially affected by product disparagement. A comment posted on the Internet about food, even if totally false, can adversely impact consumer con�idence. Thus, many states have passed legislation that makes such lawsuits by food producers easier to win by lowering the standard of care while allowing for punitive damages and including attorney's fees in the damage award.
Fraud
One of the most important torts you will encounter in business is the tort of fraud. Consider, for example, that the United States spends more than $2 trillion on health care annually. More than 3% of that spending, or $68 billion, is lost to fraud each year, according to the National Health Care Anti-Fraud Association's 2008 statistics. (See the Coalition Against Insurance Fraud (http://www.insurancefraud.org/healthinsurance.htm) 's data for more details.)
Whether on the Internet, in your personal life, or by an act of one of your employees, fraud is one of the fastest-growing legal problems in the United States. Fraud accounts for 19% of the $600 billion to $800 billion in waste in the U.S. health care system annually. Fraud amounts to between $125 billion and $175 billion annually, including everything from bogus Medicare claims to kickbacks for worthless treatments and other services (Thomson Reuters, 2009).
Fraud occurs whenever one person intentionally misleads another into undertaking an action that causes tangible harm. In order for this tort to arise, the following �ive elements must be proven by the defrauded party:
1. A misrepresentation by the plaintiff to the defendant was made;
2. The misrepresentation was about a material fact;
3. The misrepresentation was made in order to induce the defendant to take some action;
4. The defendant relied on the misrepresentation; and
5. The plaintiff suffered a loss as a result of reliance on the defendant's misrepresentation.
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Wikimedia Commons/Public Domain
Charles Ponzi.
In the business setting, fraud can run the gamut from employee embezzlement to vendor fraud, management fraud, and investment scams. Managers can play a signi�icant role in helping to create an environment that discourages fraud by setting an ethical and legally sound example for employees. Clear communication to employees about acceptable behavior is the �irst way in which managers can start to create such an environment. An organizational structure in which employees have an opportunity to report any suspicious behavior without fear of repercussions also speaks loudly that fraud will not be tolerated. Managers should also be extremely careful when hiring new employees, performing due diligence and checking backgrounds and references. Furthermore, it is important to segregate employee duties and independently check con�idential or �inancial information. The business community has a strong ally in the Association of Certi�ied Fraud Examiners (www.acfe.com (http://www.acfe.com) ), which is dedicated to educating businesspeople and the public about fraud and its prevention. This organization offers training and certi�icates in fraud prevention.
Much has been written about fraud in the workplace and how to decrease its effects. For an excellent article discussing theft and fraud in small businesses, see Employee Theft: Identify and Prevent Fraud, Embezzlement, Pilfering, and Abuse (http://www.businessknowhow.com/manage/employee-theft.htm) by Patricia Schaefer. For a comprehensive text on fraud in the workplace, see Managing the Business Risk of Fraud: A Practical Guide, located here (http://www.acfe.com/uploadedFiles/ACFE_Website/Content/documents/managing-business-risk.pdf) .
A Closer Look: Ponzi Schemes
Ponzi schemes are one type of fraud seen in the �inancial service industry. Named for Charles Ponzi, a con artist in 1920s Boston who promised his investors a 50% return in only 45 days, prompting 40,000 people to invest. His scheme lasted less than a year before he was arrested. In a Ponzi scheme, multiple investors are promised a high return on their money if they will make an initial contribution to a retirement, mutual fund, or other investment vehicle. The fund managers then take the money to pay other investors as if they really did make a pro�it on their investment. In this pyramid, the con artists who plan the fraud continue to pay off people who �irst invested with money collected from those who later invest. Such a fraud requires the increasing membership of more and more investors and is necessarily self-limiting. Amazingly, however, some Ponzi schemes have lasted for decades. In 2009, Bernard Madoff was convicted of criminal fraud arising from one of the largest and longest Ponzi schemes in recent history, racking up billions of dollars in swindled assets. Read more about the Madoff case here (http://www.nytimes.com/2008/12/20/business/20madoff.html?ref=bernardlmadoff) . Then answer the following questions:
Questions to Consider
1. What were some of the key elements to Mr. Madoff 's early successes?
2. What events �inally led to the collapse of the Ponzi scheme? Why?
3. Suppose that you were an investor that lost money in this scheme and wished to bring a lawsuit under the tort of fraud.
a. What elements would you have to prove to win?
b. What would be your burden of proof ?
c. What would be the biggest roadblock to your successful completion of the lawsuit?
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Key Terms
Click on each key term to see the de�inition.
actionable tort (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A recognized civil wrong (other than breach of contract) for which a court may grant civil relief.
actual damages (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A monetary amount for which the plaintiff must produce a receipt showing speci�ic damages.
appropriation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In tort law, using a person's name or likeness for commercial purposes without his or her permission.
assault (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Placing someone in apprehension of imminent, unwanted touching (battery), to which the person did not consent.
battery (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Unpermitted touching that is either harmful or offensive.
conversion (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Permanently depriving the owner of personal property of its use and enjoyment through theft or destruction.
damages (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Some sort of physical or bodily injury suffered by the plaintiff. Bodily injuries may include both physical and mental harm.
defamation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Publishing false statements about a person that damage his or her reputation.
disparagement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Closely related to defamation, a tort that consists of willful misrepresentations about the quality of a competitor's goods or services that are untrue or misleading and that are meant to in�luence the public not to buy or use the product or services.
false accusation in the workplace (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A type of defamation lawsuit in which the employer makes a statement about the employee, such as accusing that person of stealing from the business.
false imprisonment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Intentionally interfering, without just cause, with a person's right to freely move about.
false light (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Publishing true facts about someone but in such a way that unpopular views or actions are attributed to that person.
fraud (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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A tort that consists of one person intentionally misleading another into undertaking an action that causes tangible harm.
injunction (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A court order prohibiting a trespasser from continuing to do trespass in the future.
injunctive relief (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A court order prohibiting a continual trespasser from trespassing on a particular property.
intent (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The defendant's understanding of the consequences of his or her act.
intentional in�liction of emotional distress (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Deliberately causing someone to suffer extreme psychological pain by engaging in extremely cruel, outrageous conduct.
intrusion into seclusion (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Willfully observing the private conduct of others under circumstances where an expectation of privacy exists.
invasion of privacy (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Publication of private facts that a reasonable person would �ind objectionable. Appropriation of a person's name or likeness for commercial use, false light, intrusion into seclusion, and public disclosure all constitute invasion of privacy torts.
libel (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A form of defamation in which false statements about a person are written or in a tangible form (e.g., as electronic data on the Internet).
malice (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Making a false statement either with the actual knowledge that it is false or with reckless disregard for its truth or falsity.
nominal damages (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Damages in name only, usually $1.
Ponzi scheme (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An investment fraud in which multiple investors are promised a high rate of return on their money. The fund managers then divert the money to pay early investors as if they really did make a pro�it on their investment.
Shopkeepers' statutes (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
State laws that protect store owners from lawsuits claiming false imprisonment, etc., if the store's agents exercised reasonable actions and used probable cause in detaining a person on their premises.
slander (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A form of defamation in which false statements are spoken about a person.
tortfeasor (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A person who perpetrates a tort.
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trespass to land (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An intentional physical act that results in an unjusti�ied intrusion onto another's land without the owner's consent.
Chapter 7 Flashcards
Critical Thinking and Discussion Questions
1. What distinguishes a crime from a tort?
2. What are the three elements of an intentional tort?
3. What are three types of intentional torts against persons? Against property?
4. When does malice need to be proven in a defamation action? How is malice de�ined?
5. What are the requirements for proving fraud?
6. Some types of behavior can be both a crime and a tort, thus subjecting persons who engage in such behavior to both criminal and civil penalties. Do you think such double punishment is justi�iable or unduly harsh? Why?
7. Bob, a prominent state politician with aspirations to federal of�ice, con�ides his marital in�idelity to his friend Maurice, asking him to keep the matter secret, since its disclosure could harm his election chances. Five years later, when Bob is a candidate for national of�ice, Maurice decides that fame and money are preferable to friendship and signs a lucrative deal to write a book about Bob's extramarital affair. Bob, furious at his friend's in�idelity to him, sues Maurice for the tort of libel. What will he need to prove in order to prevail over Maurice? Will he prevail? What other tort should Bob sue Maurice under?
A recognized civil wrong (other than breach of contract) for which a court mayC l i c k c a rd t o s e e t e r m 👆
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Chapter 8
Negligence, Strict Liability, and Product Liability As Chapter 7 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/ch07#ch07) discussed, there is tort liability for certain types of intentional torts, both to people and to property. All of those torts were deemed intentional because they included three elements: an act of conscious volition; intent, which is de�ined as understanding the consequences of one's actions; and damages. In this chapter, we will explore liability even when there is no "intent" involved whatsoever, but rather, the torts are deemed unintentional. These are the torts of negligence, one of the most common types of torts business managers experience and one of the most expensive. In some cases, liability is imposed even if the defendant was not negligent but was engaged in ultra-hazardous activities. This is called absolute liability. An additional area of law is referred to as product liability, which refers to a lawsuit based on three combined causes of action: warranty, negligence, and strict liability. Under this theory, a plaintiff sues the manufacturers of the product for injuries sustained when the product malfunctions.
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Steve Helber/Associated Press
Negligence that results in death or injury to those who use a company's products can be expensive, time consuming, and damaging to a company's image.
8.1 The Four Elements of Negligence In business, negligence is costly on many levels. If a product manufacturer causes death or injury of those who use the company's products, the resultant legal action will be expensive and time consuming. Further, the publicity from such an action will likely result in lost pro�its as consumers refuse or are afraid to buy the product. If the company is publicly traded, the stock values will soon fall as a result. All these factors combine to cause catastrophic and possibly irretrievable damage to a business. For an example, look no further than the spate of asbestos litigation that has been brought for the past several decades and has resulted in many large manufacturers going out of business.
Every member of society is charged with a duty to act with reasonable care at all times in order to avoid harming others through carelessness. The law imposes a duty on each of us to take the precautions that a reasonably prudent person would take in order to prevent in�licting foreseeable injury on others as we go about our daily routines. If a person falls short of this standard of care and causes foreseeable injury to others, liability for the tort of negligence may arise. A defendant in an action for negligence is not charged with willful conduct but rather with failing to observe reasonable care under the circumstances. The reasonable person standard is an objective one; it requires each person in society to act in keeping with the standard of care that a reasonably prudent person would apply under the same circumstances. The reasonable person standard uses as its model a �ictional member of society that represents a citizen of average intelligence, average common sense, and average skills.
In order to successfully bring a suit for negligence, the plaintiff must establish four elements:
1. The defendant had a duty of care;
2. The defendant breached that duty of care owed him or her;
3. The breach directly caused the plaintiff 's injuries; and
4. The plaintiff did in fact suffer physical or mental harm or injury.
Duty of Care
The �irst requirement that the plaintiff must prove to the jury by a preponderance of the evidence is that the defendant owed a duty to the plaintiff. A duty of care (another name for the reasonable person standard) is the standard of behavior expected of a person in a particular situation. Because circumstances are always changing, the standard of care expected of one is always changing.
Consider driving a car on a highway that has a posted speed limit of 65 miles per hour. If the day is clear, the pavement dry, and the traf�ic light, then a reasonable person would drive the speed limit and be considered prudent for doing so. If, on the other hand, that same person were driving on the same road but under conditions that included fog, ice, and drizzling sleet, a reasonable person would slow down considerably. One could not argue that because the speed limit is 65 miles per hour, the person was not negligent. After all, the circumstances had changed, and reasonable people react to such a change. A jury would decide exactly how a reasonable person should have acted under the circumstances (should they have been driving 15 miles per hour, or perhaps pulled off the road?) by listening to the testimony of witnesses in the trial. Such witnesses could include other drivers who were on the same road that day, who could testify about the conditions they saw and how they reacted, as well as "experts" who could discuss how much vision drivers have in fog and details such as the average reaction times of drivers. All this information would then be synthesized by the jurors as they considered whether the defendant acted as a reasonable person under the circumstances.
Sometimes the duty of care is de�ined by statute rather than the reasonable person standard, in which case it is called statutory duty of care. Consider, for example, that a local ordinance mandates that all property owners must remove ice and snow from their sidewalks within 24 hours of a snowfall. When a standard of care is set by law and a pedestrian slips and falls on the unshoveled sidewalk, the defendant is presumed negligent because he or she violated the statute. As a result of this presumption, the burden of proof shifts to the defendant homeowner or business owner, who now has the burden of proving lack of negligence. Recall that in civil cases, the plaintiff normally has the burden of proving to the jury liability by the defendant. Here, however, the burden has shifted from the plaintiff to the defendant, which makes it much more dif�icult for defendants to win in court because they must now prove they were not negligent.
Once the duty of care has been established, the second element the plaintiff must prove to the jury is that the defendant fell below the standard of care. For example, if a reasonable person would pay attention when driving a car, then texting while driving would fall below the standard of a reasonable person. In short, falling below the duty of care is not exercising the care that a reasonably prudent person should have exercised under the circumstances.
Foreseeability and Proximate Cause
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The third and fourth elements of a negligence lawsuit concern whether it was foreseeable that the defendant's actions would cause the plaintiff to suffer harm or injury and whether the plaintiff did in fact suffer mental or physical harm or injury. If you light a match and throw it into a gas tank, it is foreseeable that the gas tank will explode. This is also called direct causation: the breach caused the injuries (explosion). Direct causation and foreseeability are terms used interchangeably.
In order for the plaintiffs to win a negligence lawsuit, it is necessary that they prove direct causation to prove negligence. Sometimes this is an easy task, and other times, impossible. The simplest type of example would be as follows: Suppose that a driver is careening ahead at 100 miles per hour, loses control of his car, and crashes into a crowd of people. A jury could �ind that a reasonable person would foresee that the breach (driving 100 mph) caused the injuries, and thus, it is foreseeable that if you drive 100 miles per hour, you are going to lose control of your car. Thus, we say it was "foreseeable" to the defendant that his or her breach of the duty of care would cause an accident.
Is it foreseeable, however, that someone is going to enter your business and start shooting at customers using real bullets? Suppose that you manage a fast- food restaurant that has never had any criminal or violent incidents occur on its premises. As a result, you do not have any extraordinary security in place, such as plainclothes police of�icers or security cameras. One day, an armed robber comes into the restaurant, threatens employees, and shoots a customer. The business is then sued by the customer on the basis of negligence. The question will be whether the restaurant had adequate security in place to protect its customers. One factor the court will consider is whether such an incident has occurred before. If no incident has ever occurred, then the business probably has no liability. Why? Because it was not reasonably foreseeable to the store that such an incident would occur.
A Closer Look: McDonald's Massacre
In July 1984 a shooting spree by a man at a San Diego McDonald's restaurant left 21 people dead and injured 19. Read the article here (http://articles.latimes.com/1986-02-09/local/me-6022_1_james-oliver-huberty) about the subsequent litigation by the survivors of the massacre:
Now read the following excerpt from the judge's opinion in Lopez v. McDonald's (193 Cal. App. 3d 495, 238 Cal. Rptr. 436):
The special relationship between a business establishment and its customers as a matter of law places an af�irmative duty on the proprietor to take reasonable precautions to protect patrons from reasonable anticipative criminal conduct of unknown third parties. . . . Nevertheless, the primary issue here is not whether a fast-food proprietor has a duty to protect plaintiffs from the potential criminal attacks perpetrated by unknown third parties, but rather to determine whether the boundaries of McDonald's general "duty" encompasses the burden to protect against once-in-a-lifetime massacres. We do this by evaluating this speci�ic event's reasonable foreseeability, or likelihood of occurrence under the circumstances, with applicable policy considerations in resolving whether liability should be restricted.
You can read the entire opinion here (http://law.justia.com/cases/california/calapp3d/193/495.html) .
Questions to Consider
1. Do you agree with the judge's ruling that such an occasion was unforeseeable, meaning there was no direct causation, and thus this particular McDonald's had no liability?
2. What evidence did the plaintiffs present to prove that McDonald's was guilty of negligence?
3. What measures could businesses like McDonald's take to prevent incidents such as this in the future?
On the other hand, if an incident has occurred before, then the duty of the business changes because the de�inition of foreseeability changes. We call this being on notice, meaning that the business is aware that it has a problem and needs to do something about it. It must take measures owing to its increased standard of care. What exactly does the business need to do? At the very least, it needs to increase security. But to what extent? To determine that, the business would be wise to use consultants to �ind out the industry standard. The industry standard of care refers to the duty of care established by experts in a particular �ield. For example, experts in the hotel industry could advise a business owner about ensuring reasonable safety at his or her hotel. It is important to know that businesses do not have a duty to make any place 100% safe. There is always the chance of injury or death, even walking down the street. Events can and do happen that are not foreseeable. Even so, businesses will be held liable for negligence if a jury believes an event was reasonably foreseeable.
The most famous case de�ining foreseeability is Palsgraf v. Long Island Railway Co. (248 N.Y. 339, 162 N.E. 99 [N.Y. 1928]). In this case, a passenger was running to jump on the train as it was leaving the station. A conductor leaned out of the moving train to pull the passenger aboard, and as he did so, the passenger dropped a package that contained explosives. The explosives ignited, setting off a signi�icant explosion that rattled the train station where Mrs. Palsgraf was standing. The heavy metal scales used to weigh goods that were located on the station platform shook from the explosion and fell on Mrs. Palsgraf 's head, signi�icantly injuring her.
What was the burning issue in this case? It turned on whether it was foreseeable that the conductor's actions would cause the scales to fall on Mrs. Palsgraf 's head. Of course, it is absolutely unforeseeable that such an improbable chain of events would occur. Therefore, no direct causation could be proven, and the plaintiff lost the case. You may be wondering, why not sue the passenger who was carrying the explosives? Although you might be able to prove that he caused the explosion, suing him would not be practical. After all, remember that a plaintiff ultimately wants to collect the most money
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possible at the end of the trial; therefore, it is usually prudent to sue the defendant who has the most money—in this case, the railway, and not an individual.
Palsgraf �irmly embedded in the law the idea that, if intervening circumstances contribute to the events leading to the injury, then negligence is not the cause of the injury. Palsgraf is an excellent example of a case where intervening events break the causal connection and render the initial act indirect.
Intervening causes include any outside circumstance not caused by the defendant and not within the defendant's control. In addition, a close link in space and time must be established between the injury and the negligent act, that is, proximate cause. If the person allegedly injured by the defendant's negligence was too distant in time or space from the defendant's negligent act so as to be outside of the zone of danger, the injury is not deemed proximately caused by the defendant's negligence. The following example should illustrate.
Leona, a careless driver, runs a red light at an intersection. Marvin, an even worse driver, sees Leona run the red light three blocks away and panics: He swerves right, steps hard on the accelerator (mistaking it for the brake), and crashes through the display window of a storefront.
Despite the fact that Leona was clearly negligent in her failure to stop at a red light, she is not responsible for Marvin's accident because her negligence was not its proximate cause. Leon was too far away (three blocks) to be in any danger when Leona crossed the intersection; his accident was the direct cause of his overreaction, not of Leona's negligence. Had he been only 50 feet away when Leona ran the light, he probably would have been considered within the zone of danger, and his actions might possibly have been attributed to Leona's negligence. But three city blocks is simply too far a distance for cause and effect, so the accident must be attributed to a separate intervening cause, namely, Marvin's poor driving skills and tendency to overreact to danger.
The last element of negligence consists of proving that the plaintiff suffered some type of physical harm or property damage. Such a claim can run into the millions of dollars, as juries may award "pain and suffering" damages as part of the award.
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8.2 Defenses to Negligence Even when negligence is established, it is still possible for a defendant to avoid tort liability by raising and proving one of three defenses: contributory negligence, comparative negligence, or assumption of risk (discussed below). The effect of these three defenses is to limit or even to completely void a defendant's tort liability.
All states in the United States follow either the doctrine of comparative negligence or the doctrine of contributory negligence. At last count, 46 states followed the doctrine of comparative negligence, while �ive states (including the District of Columbia) are considered pure contributory negligence states.
Contributory Negligence
In a "pure contributory negligence" state, at common law, a person suing another for negligence could recover damages only if he or she were free of any negligence. If the plaintiff 's negligence contributed even slightly to his or her injuries, the plaintiff 's contributory negligence would bar that person from recovering any damages from the defendant. Figure 8.1 illustrates this concept:
Figure 8.1: Plaintiff sues defendant for $100,000 for negligence
The jury decides that the defendant was 97% negligent but that the plaintiff was 3% negligent.
Since the plaintiff was 3% negligent, in a contributory negligence state, the plaintiff could recover nothing. When you consider that most accidents occur as a result of the negligence of both parties, the harshness of this rule becomes clear.
Comparative Negligence
Today, most states have abandoned contributory negligence as a complete defense to negligence actions in favor of comparative negligence. In a comparative negligence state, the plaintiff 's negligence is subtracted from the �inal award. Referring again to Figure 8.1, the following would be the result if the jury decided that the plaintiff is entitled to $100,000 in damages:
$100,000.00 damages decided by jury
– $3,000.00 Plaintiff 's 3% comparative negligence
= $97,000.00 Plaintiff 's total award
Thus, a comparative negligence defense allows plaintiffs whose negligence contributed to their injuries to sue negligent defendants. However, the plaintiffs' potential recovery of damages is limited to the percentage of damages not caused by their own negligence. To put it another way, comparative negligence allows a reduction in a plaintiff 's recovery proportional to his or her negligence. In the majority of jurisdictions that recognize comparative negligence, the jury is asked to assign a percentage of fault to each party in a negligence action—to decide, in essence, the relative fault of each person in causing the accident. After a jury assigns the proper percentage of culpability to each party, each party is entitled to recover from the other party damages equal to his or her actual damages minus a setoff for the percentage of his or her damages attributable to his or her own negligence.
Comparative negligence jurisdictions today are divided into two camps: those that recognize pure comparative negligence and those that recognize modi�ied comparative negligence. Pure comparative negligence jurisdictions allow plaintiffs to recover no matter what their percentage of negligence, whereas modi�ied comparative negligence jurisdictions allow plaintiffs to recover only if they are less than 50% negligent themselves. In the minority of jurisdictions, like New York, that recognize pure comparative negligence, a plaintiff who is 99% responsible for causing an accident can still recover 1% of his damages from a defendant who was only 1% negligent in bringing about the accident. This can cause some interesting problems (and legal dilemmas), as the following example illustrates.
The defendant was driving his new Ferrari at 135 miles per hour down the interstate. The plaintiff, a cautious driver, merged into the defendant's lane with her 2000 Toyota Corolla, not realizing the defendant's excessive speed. The defendant, unable to stop in time or to swerve out of the way, rear-ended the plaintiff, causing a total loss to both his car and the plaintiff's car. At trial, a jury �inds the defendant 90% negligent and the plaintiff 10% negligent (for failing to better estimate the defendant's excessive speed before merging onto the highway). If the defendant's car is worth $200,000 and the plaintiff's is worth only $1,000, the defendant will have to pay the plaintiff 90% of her loss ($1,000 × 90% = $900), while the plaintiff will have to pay the defendant 10% of his loss ($200,000 × 10% = $20,000). You decide whether this outcome is fair.
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Comparative negligence (especially in its pure form) has generally resulted in increased litigation, higher jury awards, and higher liability insurance premiums for consumers in states that have adopted it, which means most of us.
Good Samaritan Laws
Although the law imposes no duty to act on members of society to help one another out of dif�icult situations, in most states, so-called Good Samaritans who take it upon themselves to render assistance to a person in need open themselves to liability for both intentional and unintentional torts to persons they assist.
As a result, and to encourage Good Samaritans to assist injured people, many jurisdictions have enacted legislation to protect medical personnel such as doctors, nurses, and medical technicians who administer emergency assistance at accident sites. Such personnel are liable in many (but not all) jurisdictions only for gross negligence or willfully tortuous conduct. But in many jurisdictions, these Good Samaritan laws do not apply to nonmedical personnel who render assistance to accident victims. Thus, it is possible for a person who saves an accident victim's life by rushing him or her to the hospital but causes some other injury in the process to be successfully sued for a tort by the recovered but ungrateful victim. It is sad to say that the safest conduct in most states is for a passerby not to render assistance to accident victims. This is an excellent example of a place where the law and ethics are diametrically opposed.
Assumption of the Risk
A third defense that is a total bar to a recovery in both negligence and intentional torts is assumption of risk. If a plaintiff suffers some injury from engaging in an activity he or she knows to be dangerous, he cannot sue for any injury he sustains as a result. The key here is whether the plaintiff knew or should have known the inherent danger of engaging in the activity in question and whether he or she voluntarily assumed that risk. One who voluntarily engages in a dangerous sport such as boxing, skydiving, skiing, or auto racing, for example, cannot successfully sue for any reasonably foreseeable injury received from engaging in the sport. The same holds true for a person who knowingly uses a defective product. In each of the following examples, the injured party would be barred from recovering damages based on a defense of assumption of the risk.
Keep in mind that the defenses of assumption of risk and its close cousin, product misuse, are available to defendants in any tort action, including absolute liability and strict liability, which we will discuss next.
Negligence
Click here (https://media.thuze.com/MediaService/MediaService.svc/constellation/book/AUBUS670.12.2/{pdfs}ch08.pdf)
for a pdf of this slideshow.
SLIDE 1 OF 10
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8.3 Absolute Liability, Strict Liability, Product Liability, and Consumer Protection
Under certain circumstances, a person who is neither negligent nor guilty of an intentional tort may still be required to pay damages for injuries that result from his or her activities if that person engages in certain types of businesses that by de�inition are highly dangerous.
Ultra-Hazardous Activities
Ultra-hazardous activities such as the manufacturing or handling of explosives, for example, can never be made completely safe because of the nature of the materials involved. Persons who suffer an injury as a result of an ultra-hazardous activity are entitled to compensation without needing to show the defendant's fault or negligence. Once harm is linked to the ultra-hazardous activity, liability is absolute and automatic; the only issue becomes what compensation to award plaintiffs for their damages.
As with other torts, the defense of assumption of the risk may be available to defendants in absolute liability actions if it can be shown that a plaintiff knowingly and intentionally assumed the risk. Thus, while a defendant is normally absolutely liable for harm caused by an ultra-hazardous activity such as blasting or demolition work, a plaintiff who willfully walks into a building that is being demolished, ignoring obvious warnings to keep out, would be held to have assumed the risk of his injuries and barred from recovering damages for them.
Strict Liability in Tort
In contrast with absolute liability, strict liability is a recently developed theory in law that holds manufacturers, wholesalers, and retailers liable for defects in the design or manufacturing of products that render such products unreasonably dangerous to the intended users. It is not to be confused with the absolute liability that results from engaging in ultra-hazardous activities, discussed in the previous section, which pertain to speci�ic types of businesses, such as those that handle explosives. In strict liability, a manufacturer makes an unreasonably dangerous product owing to design or manufacturing defects. Examples include spoiled food, automobile tires that experience blowouts due to a manufacturing defect during normal use, and a car that ignites when rear-ended because of a defective design (see The Ford Pinto Case). Product liability, on the other hand, is the name given to the type of lawsuit in which the plaintiff sues for his or her injuries under three causes of action: warranty, negligence, and strict liability.
In order for strict liability to attach, the product must be unreasonably dangerous for its intended use, owing to a design or manufacturing defect, and the product must reach the consumer in unaltered form. (Products that are customized or otherwise changed after their manufacture and before they are sold to consumers are not subject to product liability claims because consumers injured by such altered products can still sue either the manufacturer or customizer under a negligence theory.)
It should be noted that the mere fact that a product is dangerous will not subject its manufacturer to a product liability claim; the product must be unreasonably dangerous owing to a design or manufacturing defect. Knives, guns, razor blades, and power tools all pose a danger even when properly used; therefore, before consumers can sue for product liability relating to these or any other product, they must show that the product was not merely dangerous but unreasonably so. Thus, a gun that explodes when �ired, a drill that short-circuits and shocks the user when properly used, or a chain saw whose chain breaks and �lies off during proper use would all qualify as strict product liability examples.
In addition, manufacturers generally do not have a duty to warn a customer about a product unless the manufacturer "knew or should have known" that the product would be used in a dangerous manner by the customer; had no reason to believe that the customer would realize the danger of the product; and failed to exercise reasonable care to inform the customer of the danger (Restatement of Torts §388). Consider, for example, the case of a lathe operator using a pair of safety glasses that shattered when hit by an object (American Optical Co. v. Weidenhamer, 457 N.E.2d 181 [Ind. 1983]). The court found no duty to warn on behalf of the manufacturer because the glasses were being used for their intended purpose and manufacturers cannot be liable for every type of incident possible. Similarly, if the manufacturer is unaware of any defect in the product, it has no duty to warn.
In summary, three criteria for strict product liability need to be met:
The product was properly used;
The product arrived to the consumer from the manufacturer in unaltered form; and
The product malfunctioned because of a manufacturing or design defect.
A Closer Look: The Ford Pinto Case
One of the most famous cases involving negligence and product liability is the Ford Pinto case. While this might seem outdated (as it involves a 1977 automobile), the lessons to be learned from the actions of Ford Motor Company and its managers are enduring. Start by reading the original lawsuit, Grimshaw v. Ford Motor Co (http://online.ceb.com/calcases/CA3/119CA3d757.htm) ., (119 Cal. App. 3d 757, 174 Cal. Rptr. 348 Cal. App. [4 Dist. 1981]), and then answer the following questions:
Critical Thinking Questions
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Associated Press
Failure to enact safety measures for the Ford Pinto led to a series of burn-related injuries and deaths in the 1970s.
1. Who were the plaintiffs in the original lawsuit, and what causes of action were they suing under?
2. Describe the designing and marketing of the Ford Pinto that took place at Ford.
3. What type of crash tests were performed by Ford on the car, and what were the results of the tests? What were the recommendations that resulted from the tests?
4. What were Ford Motor Company's responses to the recommendations? Why?
5. Who was Mr. Copp, and what role did he play in this case?
6. What was the design defect test, as formulated by the California courts?
7. What are some of the reasons the court upheld the amount of the punitive damages award?
Next Read Mark Dowie's article, "Pinto Madness (http://www.motherjones.com/politics/1977/09/pinto-madness) ," and answer the following questions:
Questions to Consider
1. What exactly was wrong with the car? What were its design �laws?
2. Why was the car built with such a defect?
3. Did the Ford management know there was anything wrong with the car?
4. What were the managerial decisions that led to the design �law in the Ford Pinto?
5. What actions by managers could have been taken to avoid these �laws?
6. What was Ford's "cost–bene�it analysis"?
7. What internal memos existed from Ford workers, and what did they describe regarding the Pinto?
8. What can you conclude from reading this case about the culture at Ford Motor Company at the time this car was designed? If you were in charge at the time, what would you have done differently?
Consumer Protection
Given the number of products manufactured each year that kill or maim individuals, the government has stepped in and created an administrative agency to deal with consumer protection: the Consumer Product Safety Commission. This federal agency is "charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency's jurisdiction" (click here (http://www.cpsc.gov/about/about.html) ). For example, the agency keeps track of amusement park ride injuries and regulates that industry. In 2001, it reported that there were more than "8,313 non-occupational amusement ride injuries treated in hospital emergency rooms" (click here (http://www.cpsc.gov/LIBRARY/Amus2002.pdf) ). Considering that this is only one industry the agency oversees, that is an astounding number of injuries caused by faulty products.
Consumer safety has hundreds of guidelines and statutes associated with it. They range from the well-known Consumer Product Safety Act (and the Consumer Product Safety Improvement Act, enacted in 2008 to modernize the law) to the more obscure Virginia Graeme Baker Pool and Spa Safety Act (passed in 2007 to mitigate the dangers associated with pools and spas); the Poison Prevention Packaging Act (passed to protect children under the age of �ive from poisonings caused by open containers); and the Flammable Fabrics Act (passed to regulate the �lammability of children's clothing), to name a few.
The website maintained by the agency at http://www.cpsc.gov (http://www.cpsc.gov) is a �irst-rate source of information about agency news and the current status of laws protecting consumers.
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Key Terms
Click on each key term to see the de�inition.
absolute liability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Also called liability without fault, imposed by law for injuries that result from certain kinds of activities that are, by nature, highly dangerous (e.g., wild animals, ultra-hazardous activities, and defective products).
assumption of risk (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A situation in which a plaintiff suffers some injury from engaging in an activity he or she knows to be dangerous. That person cannot sue for any injury sustained as a result because he or she has assumed the risk.
comparative negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The plaintiff 's negligence is �igured into the �inal award in a tort case.
contributory negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
At common law, a person suing another for negligence can recover damages only if he or she was free of any negligence.
direct causation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Close cause-and-effect relationship between an action and its consequences. Also known as foreseeability.
duty of care (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The standard of behavior expected of a person in a particular situation.
foreseeability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Knowledge that a particular action will have a certain (harmful) consequence, as viewed by a reasonable person. Same as direct causation.
Good Samaritan law (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Legislation to protect medical personnel, such as doctors, nurses, and medical technicians, who administer emergency assistance at accident sites from liability.
industry standard of care (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The duty of care established by experts in a particular �ield.
intervening cause (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In a tort case, any outside circumstance not caused by the defendant and not within the defendant's control.
modi�ied comparative negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A concept governing jurisdictions that allows plaintiffs to recover damages only if they are less than 50% negligent themselves.
negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
When a person falls short of a reasonable or statutory standard of care and causes foreseeable injury to others.
product liability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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A type of lawsuit in which the plaintiff sues under three theories: warranty, negligence, and strict liability for injuries sustained as the result of a product malfunction.
proximate cause (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A close link in space and time established between a harmful consequence and a negligent act.
pure comparative negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A concept governing jurisdictions that allows a plaintiff to recover damages no matter what his or her percentage of negligence.
pure contributory negligence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A concept governing jurisdictions that allows a plaintiff to recover damages only if he or she were free of any negligence.
reasonable person (care) standard (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Standard that requires each person in society to act in keeping with the level of consideration a reasonably prudent person would apply under the same circumstances.
statutory duty of care (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Duty of care de�ined by statute rather than the reasonable person standard.
strict liability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Also called strict liability under Section 402 A of the Restatement of Torts. The concept that manufacturers, wholesalers, and retailers are liable to consumers for injuries caused by defective goods.
ultra-hazardous activities (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Inherently dangerous activities that cannot be made safe. Anyone who is injured as a direct result of the activity is entitled to compensation as a matter of law, regardless of the level of care employed by the defendant to ensure safety.
Chapter 8 Flashcards
Critical Thinking and Discussion Questions
1. What is the essential breach of duty involved in the tort of negligence?
2. What must a plaintiff prove in a negligence action in order to prevail over the defendant?
Also called liability without fault, imposed by law for injuries that result from certain kinds of activities that are, by nature, highly dangerous (e.g., wild animals, ultra- hazardous activities and defective products)
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3. De�ine contributory negligence. At common law, what is the effect of �inding the plaintiff contributorily negligent?
4. What is the difference between contributory negligence and comparative negligence?
5. What are three defenses to tort liability?
6. In your view, what is the reason for Good Samaritan laws? Do they encourage detachment and serve to discourage people of good conscience from rendering assistance in emergency situations for fear of being sued? Discuss the ethical and sociological rami�ications of this issue. Do you have any suggestions for a model Good Samaritan law that would protect the safety of accident victims while encouraging citizens to render assistance in emergency situations?
7. Huge Car Company is in the process of developing a new family car: the WeGo. The company is very concerned about pricing for the vehicle and is determined that the cost must come in at around the $20,000 range. Thus, the company is making every effort to design and build a car that can meet that price. In so doing, the company decides that some of the metal structuring in the door frames and roof can be eliminated, at a substantial cost savings. The company makes the alterations and then tests the vehicle. In all the tests, the car performs better than average in terms of structural damage and injury to occupants. The company then hires an independent group of engineers to test the car and to come up with their own �indings. The engineers arrive at the same conclusion regarding the safety of the vehicle. The company then proceeds to produce the vehicle. About six months later, the Henderson family is killed when their WeGo �lips over and crushes all of the occupants. Discuss the outcome of a lawsuit by the Henderson Estate against Huge Car Company under the theory of negligence. Then discuss it under the theory of strict liability.
