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bul4310_chap_4.pptxChapter 4: Torts
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Oxford/iStockphoto.com
Diverse, Ethical, Online and Global Environment
Roger LeRoy Miller
BUSINESS LAW TODAY
TEXT and CASES
10th Ed.
COMPREHENSIVE EDITION
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The Basis of Tort Law
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A tort is a private, civil legal action to obtain monetary damages from a legal injury a person or property. (as opposed to a criminal act, which wrongs society)
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The Basis of Tort Law
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Purpose of Tort Law.
Provide remedies for invasion or violation of protected interests.
Society recognizes an interest in:
Personal physical safety.
Protecting real and personal property.
Protecting certain intangible interests (such as reputation).
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The Basis of Tort Law
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Damages Available in Tort:
Compensatory Damages: actual losses. Puts plaintiff in position he or she would have been in if the tort had not occurred.
Economic Damages: quantifiable such as lost wages, medical bills. Noneconomic Damages: nonmonetary losses such as pain and suffering, loss of companionship.
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The Basis of Tort Law
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Damages Available in Tort:
Punitive Damages: extra damages to punish wrongdoer, and deter others.
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Limits on Damages- noneconomic damages
Noneconomic compensatory damages – Florida legislature capped noneconomic damages against practitioners in medical malpractice cases to $500,000 per claimant, and $1 million in total. Against nonpractitioners (ex., hospitals), $750,000 per claimant, $1.5 million in total. BUT the Florida Supreme Court in 2014 removed these caps in medical malpractice wrongful death cases, in Estate of McCall v. United States.
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Limits on Punitive Damages
Gore v. BMW
State Farm v. Campbell
Exxon Shipping v. Baker
Also, Florida statute caps punitive damages at 3X compensatory or $500,000; or 4X compensatory or $2 million if motivated solely by unreasonable financial gain with high likelihood of injury; or if specific intent to harm the plaintiff, no caps
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The Basis of Tort Law
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Classification of Torts:
Intentional.
Negligence.
Strict Liability (absolute liability).
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Plaintiff (injured party) sues the Defendant (tortfeasor).
In an intentional tort, the plaintiff must only prove by a preponderance of the evidence that the defendant “intended” the consequences of his action and knew with substantial certainty that consequences would result from that act.
Intentional Torts Against Persons
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Assault and Battery.
Assault: the reasonable apprehension or fear of immediate contact.
Battery: completion (contact) of the assault.
Intentional Torts Against Persons
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Assault and Battery.
Defenses:
Consent (can’t consent to a crime).
Self-Defense and Others (Florida stand your ground).
Defense of Property (less protection than defending oneself).
Intentional Torts Against Persons
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False Imprisonment.
Confinement or restraint of another person’s activities without justification.
Merchants can detain a suspected shoplifter as long as there is probable cause, only for a reasonable time.
Intentional Torts Against Persons
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Intentional Infliction of Emotional Distress.
Extreme and outrageous conduct.
Intentional Torts Against Persons
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Intentional Torts Against Persons
Defamation.
Publication of a false statement (oral or written) that injures a person’s good reputation.
Slander is oral, Libel is written. Statements made on the internet may be libel.
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Intentional Torts Against Persons
Defamation.
Statement of Fact Requirement: Fact or Opinion??
Opinions are free speech and generally not actionable.
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Intentional Torts Against Persons
Defamation.
Publication Requirement: third party must hear or see statement. An individual who re-publishes the statement may be liable.
Publication may be privileged.
Even statements ‘overhead’ can be considered published.
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Defenses Against Defamation.
Truth is normally an absolute defense.
Statement was Privileged:
Absolute: judicial and legislative proceedings.
Qualified: good faith, limited.
Intentional Torts Against Persons
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Defenses Against Defamation.
Public Figures: plaintiff must show statement made with “actual malice,” due to First Amendment.
Intentional Torts Against Persons
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Invasion of the Right to Privacy.
A person has the right to solitude. Breach of that duty is a tort.
Intrusion into private affairs or seclusion.
False Light.
Public disclosure of private facts.
Rights of internet users?
Intentional Torts Against Persons
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Intentional Torts Against Persons
Appropriation.
Use of another person’s name, likeness or other identifying characteristic, without permission, with benefit to user.
Bette Midler v. Ford case alluded to in the text
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Intentional Torts Against Persons
Fraudulent Misrepresentation.
Intentional deception of another that causes belief in a condition that is different from the condition that already exists.
Includes several elements:
Knowing misrepresentation of fact.
Intent to induce innocent party to rely.
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Intentional Torts Against Persons
Fraudulent Misrepresentation.
Includes several elements:
Justifiable reliance by innocent party.
Damages.
Contrast: “puffery” or statements of opinion.
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Intentional Torts Against Persons
Abusive or Frivolous Litigation.
Plaintiff files suit based on malice or without a legitimate legal reason and loses the suit, he can be sued for malicious prosecution, recover costs of suit and, in some states, lost profits.
Abuse of process: does not require proof of malice or prior litigation.
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Wrongful Interference with Contractual Relationship.
Valid, enforceable contract exists between two parties.
Third party knows about contract.
Third party intentionally causes either party to breach the original contract.
Intentional Torts Against Persons
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Intentional Torts Against Persons
Wrongful Interference with Business Relationship.
Texaco v. Pennzoil
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Trespass to Land.
Occurs when a person, without permission, enters onto, above, or below surface of land owned by another.
Actual harm to the land is not required.
Intentional Torts Against Property
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Trespass to Personal Property.
Wrongfully taking or harm or interference with exclusive right of use of personal property (chattel) of another.
Intentional Torts Against Property
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Conversion.
Wrongfully taking or retaining possession of chattel/property of another (essentially the tort equivalent of the crime of theft)
Intentional Torts Against Property
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Intentional Torts Against Property
Disparagement of Property.
Occurs when economically injurious falsehoods are made about another’s property or product. Need to be careful of this in marketing
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Intentional Torts Against Property
Disparagement of Property.
Slander of Quality (Trade Libel): false statement about another’s product that caused a third party to refrain from dealing with plaintiff, causing financial loss.
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Negligence
A tort of negligence occurs when plaintiff is legally injured due to defendant’s failure to live up to a required duty of care causing foreseeable risk of injury.
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Unintentional Torts (Negligence)
Negligence Analysis:
Did the Defendant owe the Plaintiff a legal duty of care?
Did the Defendant breach that duty?
Did the Plaintiff suffer a legal injury?
Did the Defendant’s breach of duty cause the Plaintiff’s injury?
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Negligence: Duty of Care and Breach
Duty is based on the reasonable person standard.
How would a reasonable person have acted under the circumstances?
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Negligence: Duty of Care and Breach
Duty is based on the reasonable person standard.
Duty of Landowners to warn business invitees of risks, and keep common areas safe. Exception: Obvious risks.
Duty of Professionals to clients – malpractice (attorneys, CPA’s, doctors – ch. 41).
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Negligence: Causation
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Plaintiff must prove the tortious act was both the cause in fact and proximate cause of the injury.
Causation in Fact: “but for” defendant’s act, injury would not have occurred.
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Negligence: Causation
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Plaintiff must prove the tortious act was both the cause in fact and proximate cause of the injury.
Proximate Cause: defendant’s act created a foreseeable risk of injury to plaintiff (sufficient strong connection).
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Negligence: Injury Requirement and Damages
Plaintiff must suffer a legally recognizable injury.
Plaintiff must show she suffered loss or harm to legally protected interest.
Not all injuries can be compensated.
Compensatory damages are norm.
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Negligence: Defenses
Assumption of the Risk.
Voluntarily and knowingly undertaking a known risk
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Negligence: Defenses
Contributory and Comparative Negligence.
Contributory Negligence: uncommon.
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Negligence: Defenses
Comparative Negligence.
Comparative Negligence (much more common).
Florida’s comparative negligence statute reduced the % of economic and noneconomic damages by the % the plaintiff was at fault
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Special Negligence Doctrines and Statutes
Res Ipsa Loquitur. The thing speaks for itself – obvious negligence
Negligence Per Se: violation of law is legal breach of duty. Plaintiff must show:
Defendant broke a law/statute.
Plaintiff is in special class to be protected;
Statute designed to prevent injury to Plaintiff.
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Special Negligence Doctrines and Statutes
Good Samaritan Statutes. Florida law even extends to those helping injured animals.
Dram Shop Acts. Florida law – strict liability on selling alcohol to minors.
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Strict Liability
Does not require fault, intent or breach of duty.
Traditionally involved ‘abnormally dangerous’ activities and risk cannot be prevented.
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Strict Liability
Other Applications:
Dangerous Animals.
Product Liability—manufacturers and sellers of harmful or defective products.
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Strict Products Liability
One who sells a product both defective and unreasonably dangerous is strictly liable for the harm, under the Restatement of Torts section 402A.
The defect can be a design defect, a product (manufacturing defect), or a failure to warn.
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Strict Products Liability, con’t.
According to the Restatement, Strict Products Liability applies even though the company has exercised all possible care in making and selling the product, and to plaintiffs who haven’t even entered into a contract with the company (bystanders, passengers, etc.)
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