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Business Law

Principles and Practices

Goldman, A., & Sigismond, W. (2014). Business Law: Principles and Practices (9th ed.). ,,.. K. ,_,_ ,_ Western Cengage Learning.

Cengage Advantage Books

PRINCIPLES AND PRACTICES

ort Law: Traditional Torts d Cyber Torts

CHAPTER PREVIEW

An Overview of Tort Law

Classification of Torts

ntentional Torts _-\s sault and Battery Fa ls e Imprisonment Inflic tion of Emotional Distress Defa mation: The Libel/Slander Distinction :nvasion of Privacy Wrongful Death ~1alicious Prosecution Fraud Interference with a Business Relationship Trespass Co nversion _ -u isance T heft of Trade Secrets

Defenses to Intentional Torts

Unintentional Torts (Negligence)

Defense Strategies that Bar or Limit a Lawsuit for Negligence Contributory Negligence Comparative Negligence _-\ ss umption of Risk

Strict Liability in Tort

Cyber Torts O nli ne Defamation O nli ne Privacy

Legal Remedies for Torts

Tort Litigation Reform

77

CHAPTER

HIGHLIGHTS

~ Suppose ' 1

~You're the --~UDGE

Society demands that all of its citizens not harm others. Consequently, when

someone harms you or your property, that person becomes legally liable for

his or her wrongful acts because that person has deviated from acceptable

behavior. Liability can be due to an injury caused by intentional acts or by

negligence, or for reasons other than fault. These wrongful acts are called

torts. This chapter deals with tort law and the legal rights that victims have. Intentional (deliberate) torts are discussed first. Negligence, an unintentional

tort, is then discussed. The third and final category of torts discussed is strict

liability, or "liability without fault." This means that someone has responsibility

whether or not negligence was involved. A person being sued for a tort may

offer certain defenses, or reasons, to either reduce or eliminate his or her

liability for a tort. The chapter discusses these defenses. Tort law is always

developing to meet both the social changes in the United States and the

changing relationships between and among individuals. New ways to commit

a tort are growing, especially those committed on the Internet, which are

called cyber torts. Cyber torts will be discussed briefly in this chapter.

Facts A fringe group that stages protests at military funerals attended the funeral of a soldier who had been killed in action. They hoisted revolting signs that said hateful things about the U.S. military, the U.S. government, and the phrase "Thank God for 9/11." Feeling that the protesters ruined his son's funeral, the father became very depressed. He could no longer drive his car for long stretches alone with his thoughts. He made the comment to his friends that the act of the protesters was just as bad, if not worse, than if they had taken a gun and shot him. The father felt that this was a private funeral and that the protesters were disturb- ing to the service and to him personally and that they had no right to be there. The father also claimed that the outrageous conduct of the protesters caused him severe emotional suffering . He sued the protesters in tort for $5 million. The protesters claimed that they were within their First Amendment right to protest.

At Trial Based on the case of Snyder v. Phelps, the U.S. Supreme Court ruled against the father. Chief Justice Roberts, speaking for the majority of the Supreme Court, overturned the lower court's damage award to the father. The decision shielded the protesters, stating that the speech on the signs was directed to matters of public concern and thus protected their First Amendment rights. "The hateful remarks on the signs were not directed in any way at the funeral for the young man who made the ultimate sacrifice of fighting for our country," stated Justice Roberts. Besides, the protesters were standing lawfully on public property (under police supervision) 1 ,000 feet from the memorial service.

Questions 1. The father sued the protesters , claiming the violation of two personal torts.

Based on the information given in the facts above, identify these torts. 2. Was there grounds to sue the protesters for trespassing on public property? 3. Do you agree with the jury who ruled in favor of the father in the lower court?

Overview of Tort Law

_EARNING OBJECTIVE ~ Describe and classify torts .

rongful act causing injury -:;·her perso n or damage to

er's property

w: law dealing wi th private ,s and affecting individuals

:· han soc iety as a whole

assification of Torts

LEARNING OBJECTIVE ~ Describe and classify torts.

A 16-month-old child choked on a peanut butter sandwich and suffered brain damage . Rubin, who was having breakfast at a local diner, was severely scalded when a waitress carelessly spilled burning hot coffee on her arm and leg. Are these situations unusual? Unfortunately, injuries occur every day where someone else is responsible. Yet, as mentioned earlier, people have a duty not to cause harm to others. If they violate that duty and someone suffers a loss, the victim may sue the wrongdoer in tort. A tort occurs when a person sustains either phys- ical or emotional injury to his or her person or property damage as the result of some other person's deliberate wrongful act or that other person's carelessness (failure to act reasonably).

Tort law, which deals with a body of "private wrongs," is primarily case law (common law), including past and present (more modern) decisions. It was developed to protect people from the wrongful conduct of others in areas that are not covered by criminal law, which deals with "public wrongs" as pointed out in past chapters.

The person committing a tort is subject to a civil lawsuit and will be required to pay the victim compensation, called money damages, on the theory that society places demands on all citizens not to harm others or their possessions. Many wrongful acts are both torts and crimes because they harm both society and the individual. In such cases, the wrongdoer could be brought to court as the defendant (person against whom a legal action is brought) in separate civil and criminal trials. The two separate suits will not be barred by the rule against double jeopardy.

Harder, 18 years old, was charged with intoxication manslaughter as the result of killing Kelley with her automobile while "stoned out of her mind" on marijuana. Harder had also taken some prescription medication. The jury found that Harder was driving erratically, weaving in and out of traffic. Kelley's death occurred when Harder jumped the median on a major highway and hit Kelley, who was coming toward her (Harder) from the opposite direction. Harder was traveling at an excessive rate of speed. In addition to this conviction, Harder could be sued in a civil tort action by Kelley's next of kin for wrongful death.

It is interesting to note that criminal law is primarily statutory, but even in this age of legislation, tort law still has strong ties to the common law and has evolved primarily from particular cases. As social conditions change, relation- ships between individuals also change. New technologies, different moral values, and different fundamental beliefs have led to new torts being recognized, others being abolished, and present torts being applied to new situations. In recent years, for example, there has been increased recognition of a person's right to be protected against intrusions on peace of mind. This increased recognition has given rise to a tort called mental distress (discussed later in the chapter). This tort has been used successfully against those who harass others, such as against collection agents who use unorthodox tactics to secure payment of a debt and in the process cause the victim to suffer severe mental stress . Another response to social change has occurred in the area of the tort of defamation (libel and slander). The case of New York Times Co. v. Sullivan (376 U.S. 254), decided by the Supreme Court in 1964, laid the groundwork for the rejection of the concept that all defamatory speech is subject to a lawsuit. More is said about this case and its effect on the law of defamation later in the chapter.

Under the law, torts are classified as intentional torts, torts resulting from negli- gence, and torts based on the concept of strict liability. In intentional and negligent torts, the law imposes liability because of one person's "fault" in causing another

Intentional Torts

LEARNING OBJECTIVE~ Define the term intentional tort and

describe those intentional torts named in the chapter.

intentional tort: when one pe rson deliberately inflicts injury to another person or damages that person's property

battery: unlawfully striking another person

person's harm. On the other hand , in strict liability torts, a person is held liable i:;. the absence of either intent or negligence; that is, the person is liable without fa uL Keep in mind that some of the torts discussed can occur not only on a pers on o1. basis, but also in a business environment.

All persons, including minors (those who have not reached legal age), are legally responsible for their tor ts, which is especially true of the so-called inten- tional torts such as assault and battery. A minor's age is material, and a mi nor can escape liability when she or he is sued for negligence. (Intentional and negli - gent torts are discussed next .)

An intentional tort occurs when one deliberately inflicts injury on another or deliberately does damage to his or her property. The person committing the act wishes to harm you .

Intentional torts include (1) assault and battery, (2) false imprisonment, (3 infliction of emotional distress , (4) defamation, (5) invasion of privacy, (6) wrong- ful death , (7) malicious prosecution, (8) fraud, (9) interference with business relations , (10) trespass, (11) conversion, (12) nuisance, and (13) theft of trad e secrets.

Assault and Battery Under civil law, an assault is a threatening act by one person that leads another person to believe that he or she is about to suffer bodily harm. The victim, as a reasonable person, must believe that the threat is real- that something is going to happen here and now- even though the person making the threat may not actually intend to carry it out. Pointing an unloaded gun at someone and thre at- ening to shoot, for example, is an assault as long as the person being threatene d believes that the gun is loaded . A person who threatens to shoot but has no gun, however, will generally not be considered to have committed a tort.

In addition, a threat to carry out an unlawful act cannot be considered an assault if it does not seem reasonable that the threat can be carried out.

Gorgen, an unemployed laborer, was behind in his monthly payments on a personal loan from the Best Finance Company. The finance company's attempts to collect the installments due were unsuccessful. One evening, a collector, a burly, 6-foot-tall man from the finance company, appeared at Gorgen's house, pounded on the door, and said: "I am a bill collector. If you don't pay up what you owe to the Best Finance Company, I am going to take it out of your hide!" Gorgen became frightened and refused to unlock and open the door. He now brings a legal action against the collector for assault, claiming that the collector's words placed him in fear. Since it does not seem reasonable that the bill collector could carry out his threat at that time, the bill collector's conduct generally will not be considered an assault.

The tort of battery consists of the intentional and wrongful physical contact with a person without consent. The physical contact may be harmful and cause injury- as in kicking, shoving, throwing an object that strikes a person, or disfiguring a person. Merely touching a person offensively- for example, by displaying affection without permission-also constitutes a battery. A battery may also involve contact with any thing attached to the body, such as when a display of affection consists of kis sing the sleeve of a person's blouse. Battery very often includes an assault because the wrongdoers will generally threaten to commit the battery (assault) before actually doing it, and when the threat is carried out, a battery occurs.

- se imprisonment: unlawfully ling a person's freedom of

men!

se arrest: unauthorized detainment a officer of the law

Cambisi, a waitress in a coffee shop, got angry with a customer and threatened to throw a cup of coffee in the customer's face unless he left the restaurant. The customer refused to leave, so the waitress carried out her threat and threw coffee in his face. Cambisi committed both assault (the customer saw the coffee coming at him) and battery (the customer got the coffee in his face).

The courts have held that a battery occurs even if there is no physical contact, such as when a prankster pulls a chair out from under a person who then sits down and is injured when he or she "hits" the floor. Although there is no physical contact between the prankster and the person sitting down, the prankster has committed a battery because the intended consequences of removing the chair is that the victim falls to the floor. As far as the law is concerned, it is the same as pushing the victim to the floor. On the other hand, if the removal of the chair had been unintended, there is no battery.

Injuries inflicted during contact sports such as boxing, football, and wres- tling are generally not considered the result of a battery as long as the contact is within the rules of the game.

False Imprisonment False imprisonment occurs when a person is unlawfully and intentionally forced by another person to remain in a certain place- a room, an automobile, a boat, a building, an office, a hotel lobby, or some spot on the open street- so that his or her freedom of movement is restricted and no reasonable escape route is available.

At the beginning of his psychology class, Professor Hicks asked Sullivan to remain after class to discuss her poor attendance record. At the end of the class, Sullivan refused to stay because of another commitment. Professor Hicks then blocked the entrance to the door so that Sullivan was not able to leave as she wished to do. Sullivan may claim false imprisonment.

In this case, if the classroom had another exit (that would not lead to injury) and Sullivan could easily have left through that exit, she would have no claim for false imprisonment. To be falsely imprisoned, the confinement must be total.

When a person is unlawfully detained by an authorized official, such as a po- lice officer, a security guard, or a loss prevention officer in a store, the term false arrest is used.

Kessler, a taxi driver parked at a cab stand, was suddenly approached by several police officers. They ordered him out of his cab at gunpoint, frisked and handcuffed him, and put him in the back seat of a squad car. He was driven to the police precinct station and charged with breaking into a house, assaulting the homeowner, and stealing her money and jewelry. Kessler's arrest was based on the victim's identification of him from a photo that had been "doctored" by the police investigators to resemble the description of the man believed to have attacked her. Police suspected that a cab driver was involved, but at first, the victim could not identify Kessler from the group of photographs presented to her. When the real assailant was arrested a few hours later, Kessler was officially freed from all blame. Police action in this case constituted false arrest.

One of the most common and most litigated false arrest situations is that of the retail merchant who detains a customer suspected of shoplifting (the crime of theft). In most states , a merchant has no legal liability for the detention if he or she can prove that reasonable grounds existed to believe the customer had shoplifted. In a lawsuit, the test of reasonableness will be left to the jury. The jury will weigh this question after taking into consideration what the average, cautious, intelligent person would have done in similar circumstances, given the facts in the case. Even if the test of reasonableness is met, however, the merchant

infliction of emotional distress: when one person's extreme conduct causes severe mental suffering in another; also called outrage

couLd stiLI be Liable if the customer is detained for an unreasonable length of or in an unreasonable manner.

One way for the retailer to avoid liability in a false arrest suit is to prove - the customer consented to being detained, perhaps by freely accompanyin5 security guard to the detention area after being stopped as a suspected shop lii;::_ Whether the customer went freely may again be a question decided by a jur y.

While vacationing, Phoenix, a 70-year-old man, went shopping in the men's department of a large clothing store. While trying on a suit, he changed his clothes in the dressing room and placed his expensive belt i his overcoat pocket, with the gold buckle hanging out. Phoenix purchas the suit but left it for alterations. As he stepped out of the door to leave the store (forgetting to place the belt back on his pants), a security guar, standing at the door spotted the belt. He firmly grasped Phoenix's arm and told him that he had better come to the security office and explain to the manager where he got the belt. In the meantime, another securit}' guard stepped in front of Phoenix to prevent him from leaving. Under these circumstances, Phoenix agreed to return to the store. As he returne he suffered a heart attack and subsequently was hospitalized for several weeks. A jury in this case would probably determine that Phoenix was illegally detained and would award him damages.

In this case, the jury would reason that the conduct of the security guards was not reasonable under the circumstances and that Phoenix, with one security gu ar firmly grasping his arm and the other standing in front of him, had no choice bu: to return to the store.

Some courts have dismissed shoplifting cases because a customer was stoppe inside the store and had not passed the checkout counter. Customers accused oi shoplifting defended on the grounds that, although it may have appeared to the security guard that the items in question were being concealed, they intende to pay for the items when they reached the checkout counter. In these cases, a rea- sonable doubt as to the intention of the customers existed in the mind s of the JUrors.

Infliction of Emotional Distress The tort of infliction of emotional distress (also called outrage) occurs when one person's extreme and outrageous conduct causes severe emotional suffering in another as a result of public humiliation, shame, anxiety, fright, or grief. Cou rt today allow a person to recover damages for the infliction of emotional distress, regardless of whether this distress is associated with physical injury.

To prevent people from flooding the courts with trivial lawsuits for the nor- mal emotional stresses of day-to-day living- such as insults, obscene or abus ive language, discourtesies, and profanity- courts have ruled that the person suing must prove that his or her emotional stress was beyond the bounds of decency and was severe and atrocious. The stress must be more than a reasonable person would expect to endure, for ex ample, if a person is high-strung, the standard for outrageousness is lower than for a person of average temperament. Based on this ruling, the element of outrageous conduct is rigorous and difficult to prove. Con- sequently, some courts may require the victim to produce evidence of a physica l or emotional illness established by a medical professional such as a physician or psychiatrist.

Pogue, a practical joker, amused himself late one evening by phoning his friend's wife and telling her an untrue story. He said that her husband, while on the way home from the business meeting he was attending, had been in a serious accident and had been taken to a local hospital, where he was listed in critical condition. Pogue's friend's wife became hysterical, requiring sedation and weeks of hospitalization. The shock

:'Tients that injure a person's - _ ation

= der: oral false statements that ·e a person's reputation

: wri tten false statements that ·e a person's reputation

produced serious and permanent physical consequences. As a result, the wife could legally sue Pogue for intentionally inflicting emotional distress on her.

Today, lawsuits for the infliction of emotional distress are often brought against collection agencies for the unreasonably humiliating tactics they use to force debtors to pay bills. A review of court cases indicates that representatives of collection agencies have harassed debtors by making threatening remarks ("you will lose your job if you don't pay") and calling them names ("deadbeat") . The conduct of these representatives in some cases caused their victims to require hospitalization for severe emotional stress, and the victims brought lawsuits against them.

Defamation: The Libel/Slander Distinction The tort of defamation permits recovery for reputational harm based on a blend of common law and First Amendment principles. Oral or written false statements that injure a person's reputation are called defamation. A person's reputation is in- jured when he or she is held up to hatred, contempt, or ridicule, causing others to lose respect for or avoid that person as a result. Stated concisely, a defamatory statement brings disgrace on a person. Oral defamation is called slander, whereas written defamation is called libel. Libel is considered more harmful than slander because the printed word is more permanent than the spoken word and therefore can be circulated more widely. Because slander is considered less harmful, those suing for this tort must show that they suffered a financial loss flowing from the defamation. (The law does not presume that the communication of the statements caused the person suing any damage.) Only rarely do those suing for libel have to prove financial loss. Under the common law, however, certain slanderous state - ments were deemed so horrible that reputational injury to a victim can be pre- sumed even without proof of financial loss. There are four such situations, referred to as "slander per se." They are (1) communications that directly question the vic - tim's competence to perform adequately in his or her trade or profession; (2) state - ments claiming that the victim has a loathsome disease; (3) allegations of serious criminal misbehavior by the victim; and (4) suggestions of a lack of chastity in a woman. With written statements, the law presumes that some damage will flow from the communication of the written statements, such as the loss of reputation and respect in the community. Sometimes defamatory communications are directed to unnamed members of a group. If the group is small and a statement seems to be directed at each member of the group, each person may bring a defamation action. The larger the group, however, the less likely a court is to consider a defamation action by all the affected group members.

Private Citizens To sue for either slander or libel under the states' laws, a private citizen must prove that the false (untrue) statements were "published," that is, communicated to at least one other person.

Mario had been jilted by his 50-year-old girlfriend Tina after three years of going together. In fact, they were about to become engaged. Mario was so despondent and so angry over his breakup with Tina that he wrote a sixty-page manuscript called "The Tina Chronicles," where he falsely said she had HIV and bipolar disorder. He then sent copies of the manuscript to Orchard Middle School, where Tina taught sixth grade; to the Midcliff Central School District Middle School, where Tina had previously taught; to Tina's mother; and to Tina's adult children. Tina's attorney produced medical test results showing neither Tina nor Mario had HIV. The bipolar claim was unsupported. Since Marias's manuscript was a book of lies that he had distributed to Tina's coworkers and family

'i 1 _, . . '" . ; .iJiL -. · . .. ~;! . . '

-- --- ,. ___ • - - -- • ·--· - · t

(this distribution constituted publication) and since Mario deliberate _ distributed copies of the manuscript to injure Tina's reputation, Tin.J could bring a tort action against Mario for libel.

Sometimes determining whether an oral or written statement is defama:~­ becomes a question of law for a court to decide. In such cases , the court mus: ~­ view the phraseology used and decide whether it is reasonable to assume t ha· - offending words are defamatory in the contex t in which they were said or ten. If something is false but does not damage reputation, there is no cia:.= Courts are guided by the First Amendment's guarantee of free speech, keeping - mind that the amendment does not establish an absolute freedom for citi ze n· - speak or publish. Courts have to balance the reputation of one person with -- free speech rights of the other person. T his amendment does protect a p erm right to state an opinion (make a personal comment) about someone else. F.::: example, ridiculing (making fun of) a person, calling him or her names, -- making an insulting remark about the person's ancestry generally cannot becOI::.:- the basis of an action for defamation, no matter how offensive the remark might be. On the other hand, the First Amendment does not protect a perr~­ whose expressions incite a riot.

The defamatory statement communicated to a third person may be man~ either intentionally (deliberately) or negligently (carelessly).

Judge Crance was at a party when she told another judge that he was incompetent and should not run in the next election. Others at the party overheard Crance's statements. Her remark amounts to slander.

In this case, the publication element would be satisfied even though Crance intended her remark only for the judge. She was negligent in her communication. Crance, however, would have had no liability if only the judge had heard her remark. Derogatory remarks made directly to a person in a face-to -face conver- sation that others do not hear do not constitute publication, even though these remarks are false. Similarly, sending a letter containing derogatory rem arks directly to the victim, with the intention that no one else read it, does not amo un- to publication . Persons who repeat or republish defamation can also be hel liable by a plaintiff (person suing) . The pla intiff can sue the first person to speak or write a libelous comment as well as those who repeat the defamation.

True statements are not defamatory, no matter how much hurt a person suf- fers. However, the evidence to prove the truth may not be readily available. For example, if you tell people that your family attorney has a long history of mental instability, you should be ready with substantial evidence such as health records , sworn statements of other clients, or written documentation of your relati on- ships with your attorney to show that he does have this history. Only then can you be free of a lawsuit for defamation. But keep in mind that your "positive '' feeling and all your accumulated evidence about the truth of the information you collected is one thing; proving it in court is another.

Public Officials and Public Figures In 1964, the U.S. Supreme Court swept aside states' laws on defamation as they applied to certain people who were involved in matters of public concern. Unti l the 1964 ruling, state law allowed any person to succeed in a lawsuit for defama- tion simply by proving that statements made about him or her were false and defamatory. The Supreme Cour t's 1964 decision in N ew York Times Co. v. Sullivan changed that. Balancing the right of states to protect the good names of their citizens against the right of free expression, the Court stated that from now on, a public official must prove that published statements about his or her public-not private- life were not only false and defamatory but also that the person or persons who published them did so with actual malice. Without proof of actual malice, the public official would have great difficulty winning a defamation case, especially

against the media. This decision by the Supreme Court, really aimed at the media, gave reporters the right to publish in areas of public concern without regard to the public official's interest in his or her reputation. Actual malice is defined as either a deliberate lie or reckless indifference to truth (the person publishing the statements doesn't care whether they are true or false). In this New York Times decision, the Court held that people in public life must both expect and accept a harsher degree of criticism about their conduct and motives than must private citizens. The Court reasoned that public persons have access to the media and thus can rebut criticisms about their life; also, public persons place themselves in the limelight and therefore leave themselves open to discussion by the public. Public officials have been broadly defined as holders of major offices (having substantial administrative or policymaking responsibilities) in the executive, legislative, and judicial branches of the government; also included in this defini- tion are low- and middle-level public employees, such as police officers, public school teachers and college professors, incumbents in public office, and candidates running for public office.

In a newspaper editorial, Alent, the governor of a large Midwestern state, was called «corrupt and a graft collector and not worthy of being elected to another term." Alent, claiming that these statements were untrue, initiated a lawsuit against the newspaper for libel. Because Alent can be considered a public figure, she would have a more difficult time proving her case.

In other leading cases since 1964, the Supreme Court extended the actual malice requirement to public figures, further reasoning that information about their public life also deserves constitutional protection. As defined by the Court, public figures fall into two categories: those who are famous or widely known, giving the public a legitimate interest in all phases of their lives, and those private citizens who voluntarily attr act public attention. Famous and widely known public figures include sports figures, movie stars, well-known entertainers, inventors, and former presidents. An example of a private citizen who voluntarily attracted public attention is a college football coach who came into public prominence by being accused of fi xing a college football game. A retired general (no longer a public official) who made a speech on a college campus to influence public opinion and caused students to protest is another example of those who become public figures by thrusting themselves into public controversy.

In view of the foregoing discussion, it can be said that the law of defamation has been significantly affected by the New York Times rule . Whereas suits against private citizens are governed by state laws, suits against public officials and public figures are now governed by the stricter federal constitutional stan- dard (requiring proof of actual malice) as set down in New York Times Co. v. Sullivan. Comparing the state standard with the federal constitutional standard, you will discover that it is easier for a private person to recover for defamation than a public figure.

Qualified Privileges Qualified (conditional) privileges have developed because of the common law's strict liability approach to defamation. There are certain types of communica- tions that must be protected because of legal and social reasons. One of the most protective means of communication is the "Fair and Accurate Report." This privilege allows a report of public meetings and generally information in public records provided that it is unbiased and accurate.

Invasion of Privacy Invasion of privacy evolved as a common law right and was later supplemented in some instances by state statutes and as a federal constitutional right derived through Supreme Court decisions that ruled there were "zones of privacy" implicit in the Bill

invasion of privacy: violating one's right to be left alone

of Rights. The right to privacy, however, is not expressly mentioned in the Bill or Rights. Federal privacy rights not only prevent governmental or state action, they can also govern private companies, such as a law passed by Congress (the Fair Credir Reporting Act of 1970) requiring credit bureaus to implement procedures to prevem the reporting of obsolete or inaccurate information about an individual.

The essence of the right of privacy is that a person has the right to be left alone or to be free from unauthorized publicity and from wrongful intrusion into his or her private life by another person or the government. A violation of these rights is called invasion of privacy. Under common law and state statutes. invasions of privacy generally occur in one of the following forms:

1. Using a person's name or picture for an advertisement or other commercia l purpose without consent. A statement called a release (generally in writing), giving another permission to use a picture for the purpose covered in the release, waives any right of privacy that might be infringed upon as a result of the publication of the photograph.

Parratto, a professional photographer, photographed Antonina, a statewide beauty contestant, without express or implied permission and exhibited her image in a public art and photography show in a large metropolitan city gallery where she lived. The show attracted art and photography enthusiasts from around the city. Several visitors to the gallery purchased her photograph. Parratto received a commission for these sales. Antonina could sue Parratto for damages for violating her statutory right to privacy and for using her image for commercial purposes.

2. Intruding upon a person's right to be left alone. Examples include peeping in windows; compulsory blood testing; illegally searching someone's suitcase; entering, without permission or legal authority, into a person's house or office; or tapping a person's telephone and then listening to the person's private conversations when such tapping is prohibited by federal and/or state law. In this context, there is increasing concern about the amount of information about individuals that is stored in databases (computer data files). Computers have made it possible to collect and store a vast amount of private information concerning people's income, phone calls, credit purchases, and other personal data. Many people fear that these data files threaten our right to privacy. Since the early 1970s, the federal government has passed several laws to limit the use of and access to computer data banks .

3. Wrongfully disclosing true but offensive and embarrassing information about another person's private life that the public does not have the right to know.

Fanton, a high school principal, unknown to his district superintendent or to anyone else in the district, was under the care of Dr. Ralph Moresee, a psychiatrist, for mental problems that in no way interfered with his job. At a school district social function, Dr. Moresee discussed Fanton's psychotherapy sessions with some of Fanton's colleagues, including the superintendent of schools and two board members. Fanton was in no way dangerous, and there was no need for Dr. Moresee to warn others about him. As a result of Dr. Moresee's revelation about Fanton's condition to the superintendent and board members, Fanton lost his job as principal.

In this case, Dr. Moresee had no legitimate reasons to discuss Fanton's psychotherapy sessions with Fanton's superiors and colleagues, even though the information was true. The information was not noteworthy. It dealt with a person's private life and was not of the nature that the public had a right to know about. Consequently, the di scussion by Dr. Moresee amounted to an

ngful death: wrongful act that -.;;._ses the death of another

:o icious prosecution: wrongfully a ing a lawsuit against one who ~ done no wrong

invasion of privacy. On the other hand, if Fanton were a public official such as a member of Congress representing people's interests in government, his mental state would be of concern to the public, and therefore, invasion of privacy would not be an issue . The right to privacy of a public official or a public figure is given less protection than that of private citizens who become involved in matters of public interest and whose personal and/or family background is exposed to public view (as in the preceding case). The courts permit an invasion of a person's privacy in these cases because there is a legitimate public interest in newsworthy events.

4. Publicizing information that creates a false picture of a person. The information must be untrue, highly offensive, and place the other person in a false light. An example of such information is an article written in a law journal implying that a certain attorney was unethical and dishonest, when in fact she or he was not. Publishing such a story would also involve the tort of defamation. A person might be more inclined to bring suit for being placed in a false light, however, because the law allows more time to bring that type of suit than it does for defamation.

Wrongful Death A person who commits a wrongful act that intentionally causes the death of another can be sued for damages for wrongful death. Intentionally killing a bank teller during the course of a bank robbery is an example of a situation in which the family of the deceased person (usually the spouse, children, or parents) could sue.

A wrongful death action can also be pursued if the victim was killed acciden- tally (e.g., by a person driving in an intoxicated condition or high on drugs) or died as a result of the negligent (careless) act of another, as in the following example.

A high school allowed students to leave the building or eat in the cafeteria, but those who chose to stay were required to leave the building after eating and remain there until the bell rang to announce the resumption of classes. John, a 15-year-old freshman at the school, ate his lunch quickly and then went outside to play football with his friends. During the game, a fight broke out, and one of the boys, who was high on cocaine, pulled out a gun and accidentally shot John who was not one of the students involved in the fight. John's parents could sue the boy (and maybe the boy's parents) for wrongful death.

The measure of damages is the loss of income (e.g., as a wage earner), com- panionship (enjoyment of a close relationship), and services (as a mother, wife, husband, etc.) that the surviving relatives would have received from the deceased had she or he not been killed. Damages are sometimes hard to determine, espe - cially when juries must measure the impact of the death of a very young person as in the preceding case problem or other factors such as the value of companion- ship. Courts nevertheless instruct juries in these cases to "fix" an award based on what they think is appropriate, keeping in mind that every life has some pecuni- ary value.

Malicious Prosecution The tort of malicious prosecution arises when one individual, without a legiti- mate reason and solely to harass another individual, initiates either a criminal or a civil action against that other individual. To sue for this tort, a person must show among other things that (1) there were no real grounds for the criminal or civil action (i.e., the instigator of the action did not honestly believe that the ac- cused did anything wrong), (2) there was an intent to injure, and (3) the action was not successful.

fraud: deliberate false statement or concealment of a material fact

interference with a business relationship: intentional procuring of breach of a valid contract

Wentis gave Bright, his fiancee, a diamond bracelet as an engagement gift. When Bright broke off the engagement, Wentis became very angry and promised to "get even with her." He then sued Bright for conversio claiming that he had lent her the bracelet to wear to a formal party and that she had then refused to return it to him. During the trial, Bright introduced testimony from the jeweler to prove that she was with We nt:s when he purchased the bracelet and that Wentis had told the jeweler th.r it was an engagement present. Wentis lost the case. Bright could then su Wentis for malicious prosecution.

Fraud The tort of fraud occurs when false statements of fact are deliberately ma de : deceive, resulting in injury or loss to another. Facts that are deliberately hid de may also constitute fraud. Fraud is discussed in greater detail in connection w '- the law of contracts in Chapter 14.

Because of an economic downturn, the Zilo Computer Company, in an attempt to make its financial statements look better, falsely boosted sales figures by reporting sales as being made before the merchandise was actually sold. This maneuver made it appear that the company w as making a profit when in reality it was losing money. The practice of falsely reporting sales amounted to accounting fraud.

The Security and Exchange Commission (SEC) has identified a form of cr iL-- inal fraud called affinity fraud. This type of fraud involves scam artists wh prey upon members of a group of individuals with like interests, rel igious backgrounds, military backgrounds, or church groups. A spectacularly success- ful example of this type of fraud was Bernard Madoff's Ponzi scheme. Madof£ as a Jew, swindled over $50 billion from Jewish friends and Jewish philanthropies The SEC also uncovered schemes that were directed at members of group s suet. as the Jehovah's Witnesses, African-Americans , and Korean -Americans . Ir is interesting to note that in these cases, it was a lot easier to believe the sales pir- from someone who possesses the same interests ("one of us") than it is hearing from an outsider whose sales pitch would seem too good to be true. The le sso- here is that you should not automatically trust someone pitching an investme-- because he or she seems to share your age, background, and social or religious connections .

Interference with a Business Relationship A person who intentionally and without proper justification persuades one part:"- to breach his or her legally enforceable contract with another party has commi~­ ted the tort known as interference with a business relationship. The rationale for such a tort is that to allow a third person to interfere with a contract to the poin- that one of the parties breaches it would weaken the value of contracts.

Petrosino, a well-known computer consultant, was in the second year of a three-year contract with the Rex Corporation. Convinced that Petrosino was the only person who could solve their computer problems, the chief executive officer of Computer International lured Petrosino into breaking his contract with Rex and coming to work for Computer International at a substantially higher salary. Petrosino did break his contract, and as a result, Rex suffered a huge monetary loss on a new project Petrosino was working on. Rex has a cause of action against Computer International for intentional interference with a contract as long as Computer International was aware that a contract existed between Rex and Petrosino and that its offer to Petrosino would intetfere wit/1 that contract.

pass: illegally entering or --a rti ng on the property of another

ersion: wrongfully exercising - •ol or ownership over another's

- :;~nal property

nee: use of one's property to -; or disturb others

Trespass Trespass is an unlawfu l interference with someone else's possession of his or her real or personal property. Real property is land and anything permanently attached to the land, such as a building, whereas personal property consists of something tangible and movable. Walking on or driving over another person's land without permission or refusing to leave a building after the owner has with- drawn permission to remain are examples of a trespass to rea l property. Posting "No Trespassing" signs conspicuously around the real property is always a good idea. If signs are posted, then a person caught on the la ndowner's property with- out permission can more easily be established as a trespasser. Vandalizing a car by breaking a window and destroying a person's car phone is an example of a trespass to personal property.

A group of college students held a picnic on McDowell's beachfront property without permission while McDowell was on vacation. These students committed a trespass.

A person who owns real property generally owns a reasonable amount of the air space above the land. Therefore, a person may be liable as a trespasser by allowing the branches of a tree growing on his or her property to hang over onto a neighbor's property, thus violating this neighbor's air space.

A person also commits a trespass by wrongfully throwing or placing an ob - ject on another's property, such as by dumping garbage on another person's land. What the law is saying about trespassing in these examples is that the trespasser is "insulting the owner's title (ownership)" by treating the property as if it were his or her own.

Conversion The tort of conversion occurs when one person wrongfully takes control of the personal property (a car, an item of clothing or jewelry, etc.) of another and exer- cises the right of ownership, thus depriving the owner of the use of the property.

One evening, in front of a neighborhood grocery store, Cooper spotted a car with its motor running. He drove away in the car and left the state for several weeks to visit a friend. On the way back to his home state, he was stopped for speeding. When he could not produce evidence to show that the car was registered in his name, he was taken into custody. Cooper admitted the car was stolen. The owner of the car could bring an action against Cooper for conversion.

Conversion also occurs when someone purchases stolen property and then, after a proper demand is made, refuses to return it to its rightful owner. Still another example of conversion is taking building materials from a neighbor's garage for personal use and with no intent of returning them.

A person who commits the tort of conversion may also be found guilty of the crime of theft (stealing) .

Nuisance A nuisance arises when a person uses her or his property unreasonably or unlaw- fully or when her or his conduct is unreasonable, causing discomfort or inconve- nience to others . There are two types of nuisances : public and private . A public nuisance is an act that affects the general public . Communities, for example, may enact a public nuisance law that subjects individuals in a neighborhood who con- duct illegal drug sales , prostitution, or disorderly conduct to civil penalties. A public nuisance that occurs in many older neighborhoods is abandoned, run- down houses with property maintenance issues, such as falling gutters, sinking roofs, boarded-up windows, and unmowed lawns. A private nuisance is an act affecting a limited number of individuals-often just one person or one house - hold-for example, excessive noise , smoke, pollution, or fire hazard.

injunction: court order forbidding a person from doing a certain act

theft of trade secrets: unlawfully acquiring information vital to a business

Schultz operated a small music shop in his garage that was open in the evening between the hours of 7 P.M. and 11 P.M. The loud noises from people trying out various musical instruments disturbed the next-door neighbors. Such noise may be a nuisance, and the next-door neighbors may be able to stop Schultz from running his shop out of his garage. Als there may be a zoning ordinance prohibiting a for-profit business in a residential area.

There are no hard-and-fast rules for determining when a certain act is co .... - sidered a private nuisance. The courts tend to consider the effect of the act on the average person and the commonsense realities of the situation. For example. - college student races the motor on his or her cycle several nights a week -- midnight, causing a neighbor to lose sleep from the loud noise. This act may tx considered a nuisance. If done during the day, however, this same act wmL.: probably not be considered a nuisance.

It is often more important to end a nuisance than to sue and recover mone To end a nuisance, the injured party would ask the court to issue an injunctio a court order restraining a person from doing or continuing some act.

Theft of Trade Secrets Theft of trade secrets occurs when one person or business unlawfully acquir-- and uses the trade secrets of another person or business. A trade secret consir- of any information (e.g., financial, scientific, technical), technique, or proces_ that is used in a business and that gives this business an advantage over a com- petitor that does not know about it. It may be a secret formula (e.g., Coca-Cola a chemical compound, a marketing technique, a process of manufacturing, a cus- tomer list, or anything else that would have value to a competitor.

A trade secret may be acquired by industrial espionage (e.g., electron;.:: surveillance, spying), bribery, fraud, or interception of communications . .'". competitor who wrongfully obtains a trade secret or a trusted employee w wrongfully discloses such information commits a tort.

Defenses to Intentional Torts

LEARNING OBJECTIVE ~ Summarize the defenses to

intentional torts .

Earlier in this chapter, some defenses were discussed under the various categori of torts, such as truth being a defense to the tort of defamation. The follow iL= defenses can also reduce or eliminate liability for the tort:

1. Consent. A person may consent to a tort by words or may imply consent b conduct. For example, a professional football player implicitly consents to the physical contact associated with that sport by agreeing to participate. Therefore, an injured player usually cannot sue for battery. The person giving consent must have the ability to do so. A person who is mentally incompetent, for example, generally cannot give consent if unaware of the consequences of his or her consent.

2. Privilege. The privilege to say or do something, even if another is injured, :.s allowed by law under certain circumstances. For example, a witness at a criminal trial is allowed to make statements that might constitute slander outside the courtroom. The statements are privileged as long as they rel ate to the issues in the trial. Self-defense is a privileged action available to a person who is in danger of being physically harmed and who cannot seek police protection in time to prevent bodily injury.

3. Necessity. In an emergency, a person may need to act to protect himsel f or herself from harm or the threat of imminent harm but in the process may commit an intentional tort. If the emergency is sufficiently great and the person acts reasonably, the law may excuse the tort, recognizing that wha-

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the person did constituted a necessity. Many of the decided cases involve threats of harm from forces of nature, such as fires, floods, and storms. Consider the case of a person who docks his or her small boat on private property during a severe storm and then finds shelter on the property. This person is not a trespasser in the sense that he or she can be expelled from the land. Nevertheless, this person may be required to compensate the owner of the land for any damages done to the property by the boat. In a famous case, the mayor of San Francisco made the decision during a major fire to burn down several private homes to establish a fire break. In this case, the mayor, as a public official, was not held liable for any damage caused.

Answer True (T) or False (F). 1. A tort is a public wrong. T F 2. Defamation can be either slander or libel. T F 3 . Dumping garbage on a neighbor's lawn is an example of the

tort of trespass. T F 4. A person who buys stolen property may be guilty of conversion. T F 5. In most states, the doctrine of comparative negligence has been

replaced by the doctrine of contributory negligence. T F

Marlow entered Rollands Discount Department Store to purchase a thumb drive for her computer. It was a warm day, and she was wearing a linen blouse that she had purchased at the same store the week before. In fact, it still had the price tag attached to the outside of it. Marlow went through the checkout line, paid for the thumb drive, and hurried to her car in the parking lot. As she unlocked the car door, she heard a voice say, "Lady, I want to talk with you." It was the store security officer. He pre- sented his badge and asked Marlow to return to the store with him, and she did, will - ingly, although she was a little puzzled. Once she got back into the store she followed the security officer to a private room used as a holding place for suspected shoplift- ers until the police arrived. When in the room he confronted her with this statement: "I have reason to believe that you stole the blouse that you are wearing because the price tag is visibly showing." She explained that she had purchased the blouse previ- ously. She then demanded to see the manager who was called to the scene and quickly arrived. The manager asked if she had proof of the purchase. Marlow then produced her check register showing that check number 9564, dated one week before the current date, had been written to Rollands Discount Department Store for the same blouse she was wearing. The amount on the check matched the amount on the price tag. The manager then said "I am really sorry. There has been a terrible mistake. You may go now." She actually had remained in the private room for only fifteen minutes, including the time it took the manager to reach the room . Marlow then sued Rollands Discount Department Store for false arrest.

Questions 1. Did the security officer have a right to question Marlow? 2. Was Marlow illegally detained? 3. Does Marlow have a case for false arrest? 4. Is it wise to detain a suspect inside the store who had not yet passed the

checkout counter?

Unintentional Torts (Negligence)

LEARNING OBJECTIVE c Define the unintentional tort of

negligence and describe the elements necessary to

prove negligence.

negligence: breach of a legal duty to act carefully, resulting in injury to another or damage to another's property

In addition to the intentional torts, there is the tort of negligence. Neg».=,- an unintentional tort. In negligence cases, the defendant (person bei::g never set out (intended) to commit the act (e.g., injury to another p erso;: she is accused of committing. Rather, the act of negligence stems fro m car'- thoughtless conduct on the part of the defendant. The result of this ca re!:: proximately (directly) causes injuries to another person or damage s ro person's property. Torts are one of the largest areas of litigation, and the ~ of negligence is the source of a large percentage of these lawsuits .

A person bringing a lawsuit for negligence must prove certain elemenr- erally, the courts decide whether the proof is adequate or not. The eleme;l:: the same whether the plaintiff was injured by a careless driver, exp os:::-_ asbestos, or a surgeon who performed an incorrect operation . Each or-- elements is now discussed.

1. The defendant owed a legal duty to the plaintiff to act carefully. A du. care arises whenever a person should reasonably anticipate (foresee ) rh -- harm or injury is likely to result if he or she acts or fails to act in a cer.:2. way. This "foreseeability" test implies that the defendant should h aYe known better and, consequently, should have behaved differently.

Anglin was late for work. As he approached a busy intersection in his car, he began to speed up because the caution light was showing and k about to change to red. The light changed before he got to the intersect but because of his lateness, Anglin decided to "chance it" and go thro the red light. As he did, he injured a pedestrian who had the right of u and was crossing the street at the crosswalk.

A court in this case would probably decide in favor of the pedestrian. reasoning that Anglin had a legal duty to stop at the red light (as motor vehicle laws require) and that he should have "foreseen" that "chancing r- by going through a red light created the risk of injury, property dam age. - - both. In contrast, take the case of a patient's death after a successful operation because careless orderlies dropped the patient down a flight o- stairs. In this case, a court would probably rule that the doctor who performed the operation is not liable for negligence because the patient death was not "foreseeable" by the doctor.

2. The defendant breached the duty to act carefully. Once it is determined th-- a duty exists, the person suing for negligence must show the court that the defendant breached that duty by failing to act carefully. In making its decision, the court will apply the hypothetical "reasonable person" standar.- which constitutes society's judgment on how a person should behave in certain circumstances. The court will compare the conduct of the defend am: with the conduct of the "reasonable person," defined as a normal, average individual. In deciding what is normal, the court will consider the person's age, intelligence, experience, and physical condition; for example, a blind or hearing-impaired person with low intelligence and the person who is extremely careless are each held to a standard of reasonable care. It is not enough that the defendant believed in good faith that he or she was being careful. The real issue is how the "reasonable person" would have acted. Because of this issue, a minor child, for example, may not be held to the same standard for a negligent act as an adult.

3. The defendant's failure to act carefully proximately caused the plaintiff's {person suing) injury. After proving that the defendant had a legal duty an that there was a breach of that duty (i .e., the defendant failed to act carefully), the plaintiff in a negligence action must demonstrate that the breach proximately cause d the plaintiff's injuries. Proximately means that

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the damages or injury has directly resulted from the negligence. In an example of the patient who died because of being dropped down a flight of stairs after a successful operation, the doctor's operation was not the proximate cause of the patient's death. The direct cause of the patient's death was the carelessness of the orderlies.

4. The defendant's negligence caused the plaintiff to suffer physical injury or damage. As the final element of a negligence action, the plaintiff must prove that he or she suffered a physical injury or damage. In most states, a defendant may also be liable if, in addition to physical injury (e.g., the loss of an arm or leg), the defendant caused emotional distress (e.g., mental harm such as shock or fright).

A number of lawsuits for negligence center on medical malpractice. Medical malpractice is negligence committed by a medical professional while treating the patient that causes injury, loss, or damage.

The term professional is usually applied to a doctor, nurse, dentist, hospital worker, attorney, accountant, public official, or any person who is considered to be a member of a profession.

Lynch was scheduled for surgery to repair a hernia. During the operation, doctors also confirmed bladder cancer, a condition that had been suspected but had gone untreated for months despite an MRI and other continuing signs that this condition existed. A review of the case by Lynch's attorney revealed that doctors failed to act on her cancer symptoms that ultimately caused her death shortly after the hernia operation. Lynch's doctors may be subject to a malpractice lawsuit by Lynch's next of kin.

In this case, malpractice was probably easily determined. Suppose, however, that you had open heart surgery and complications set in that caused severe pain and suf- fering requiring extended hospitalization. Then, because you became immobile, home care was required for several months. To win a malpractice case against the doctor, you would first have to determine if the doctor's actions violated the standards of good medical practice. In court, the jury would rely on expert witness testimony (at least one other competent heart surgeon considered a specialist) to determine what he or she would have done under the same circumstances.

efense Strategies that Bar or Limit a Lawsuit for Negligence

:..EARNING OBJECTIVE ~ Explain the defense strategies

that bar or limit a lawsuit for negligence.

"butory negligence: defense ~l ured party's negligence led to

parative negligence: comparing -egligence of the injured party

_ -e one being sued

Contributory Negligence People who are sued for negligence may present defenses for their actions that can reduce or even eliminate their liability for this tort. One such defense is contribu- tory negligence. Contributory negligence refers to any negligence on the part of the injured person that led (contributed) to the injury. If contributory negligence can be proved, the injured party may be denied damages, even if the negligence was slight.

You were hit by Arnold, who was speeding at the time of the accident. You sued Arnold for negligence. At the trial, Arnold's attorney proved that you did not cross the street at the crosswalk, nor did you look to the right and left before stepping off the sidewalk into the street. Because your own negligence contributed to the accident, you could lose your case.

Comparative Negligence In many jurisdictions, the harsh rules of contributory negligence have been replaced by the doctrine of comparative negligence, which is considered fairer because in most accidents no one person is 100 percent at fault. With comparative negligence, the negligence of the injured party who is suing (plaintiff) and that of

assumption of risk: defense against people who voluntarily expose themselves to a risk of harm, suffer an injury, and then sue

Strict Liability in Tort --- LEARNING OBJECTIVE c

Define strict liability in tort.

strict liability: legal responsibility for harm done to another even when there is no proof of fault on the part of the party that caused the harm

the person being sued (defendants) are compared. Consequently, if the injure- party is partially at fault, he or she can still collect, but the award of dam age_ would be reduced by the percentage of fault on his or her part.

A jury awarded Minster $100,000 in damages for injuries for a car accident caused by Lovenhim; however, Minster was 25 percent at fault.

Under the rule of comparative negligence, Minster would be entitled to on •. $75,000 ($100,000 minus 25 percent). Furthermore, Minster could have had ~ adjustment to his damage award until he was 50 percent at fault . If he had beer: found to be more than 50 percent at fault (e.g., 51 percent), in most states he would be unable to collect any amount of damages. This approach respond s to the question that has surfaced in prior cases and among judges and legal writers: Why should a person who is suing but was himself or herself negligent and whose negligence contributed proximately to his or her own harm be let "off the hoo kr: The court does not wish to aid those who do not have clean hands.

Assumption of Risk Another defense is assumption of risk . People who voluntarily expose themse lve to a risk of harm, suffer an injury, and then sue may be met in court with the de- fense known as assumption of risk. This defense can be raised by defendants (the persons being sued) who present evidence that they have been freed of respon si- bility for any wrong. A prime example involving assumption of risk is the fa n who buys a ticket to attend a bas eball game and then, while sitting in the specta- tor sec tion in the ballpark, is injured by a stray baseball hit by a player. In th is case, the fan may not have grounds to sue. Spectators who purchase a tick et assume the risk and accept the harm that may result (i.e., when they enter a ballpark to watch a game, a stray ball hit by a player may end up in the spectator section, hit someone, and cause an injury).

Keep in mind that negligence involves carelessness and that an unavoidab le accident is not carelessness but rather an accident that occurs no matter how careful you are. A person who suffers a heart attack behind the wheel of a ca r and causes an accident is not liable for damages unless she or he was on hea rt medication and decided to drive in spite of having sharp pains in the chest indic- ative of a heart attack. Furthermore, there is no liability when a child darts out in front of your car from behind a parked car in a strictly residential area if you are driving slowly and carefully yet still strike the child.

The third and final area of tort liability is strict liability. Under this concept, the law imposes liability on people for reasons other than fault. Thus, strict li- ability is referred to as "liability without fault." The courts and legislatures re- sponding to society have concluded that, regardless of how careful a person is , certain activities and certain products on the market present high risks of harm. Those who carry on these activities or sell these products should there- fore be liable for any harm caused to innocent victims. For example, people who keep on their property trained or domesticated animals (e.g., wolves and lions) considered naturally dangerous to humans are strictly liable for harm caused by the animals if they escape, no matter how careful the owners were in handling these animals. Strict liability is most often imposed on merchants, such as manufacturers of consumer products, who sell these products in an un- reasonably dangerous and defective condition because they have the responsi- bility of ensuring that their product is safe when used as directed. More is said about the sale of defective products to the public in Chapter 18 under the topic of product liability.

yber Torts

LEARNING OBJECTIVE~ Define cyber torts.

_ er tort: wrongful act causing :·son al injury or damage committed

e Internet

Genae underwent LASIK surgery at Holbrook Eye Associates. During the surgery, a surgical blade broke in Genae's eye and erratically cut her cornea. Genae suffered severe pain for several months following the surgery and now has hazed vision and needs a corneal transplant. She sued Holbrook Eye Associates under the theory of strict liability for a defective blade produced by the Merchant's Manufacturing Company that turned out to be unreasonably dangerous.

Some torts are committed in cyberspace. They are called cyber torts. They arise from communications on the Internet such as e-mail, blogs, Web site postings, or use of software. Like traditional torts , recovery from damages for a cyber tort is a civil matter. Unlike traditional torts committed in the "real world" often result- ing in physical injuries, damages resulting from cyber torts are primarily reputa - tional or economic.

Online Defamation Messages that Internet users send through cyberspace are not immune from law- suits if one of the users can prove damage to his or her reputation. Defamation laws are enforceable in the virtual world just as they are in the real world. Consequently, users are responsible for making sure the information they distribute is not defamatory. Existing laws relating to defamation, however, do not totally address defamatory statements made in cyberspace (online). Decisions in some major cyberspace libel cases have become legal precedent and are currently being followed in deciding online defamation cases. Owners or operators of a network of computers who write and publish on the network or provide a service to third parties as publishers and have editorial or censorial control are liable for defama - tory material that appears on their servers . A publisher could be the editor of an electronic newsletter, the operator of a bulletin board with monitoring capabilities where users are permitted to post messages that can be read by other users, or a discussion leader who sends messages to other members of a discussion group consisting of members from around the country or even around the world. If an Internet service provider is found to be a distributor, the Internet service provider will not be considered liable for materials that appear on its servers. A distributor is viewed much the same way as companies are legally viewed. Just as telephone companies attempt no control over what information is communicated across their wires and are not legally liable for the content of such communications, the service provider supplies the means for the user to send any message completely unedited or uncensored . Compare servers as distributors to newsstands and bookstores under traditional law. They generally are not liable for anything they sell.

Savin, a full-time journalist, also had a side business in which he published an electronic newsletter called the Cyber Express. He was sued by Michael Elray, owner of the Elray Corporation, for an article published by Savin in the Cyber Express. The article questioned Michael's marketing practices and at one point called the marketing practices scams. The article further stated that the attorney general's office had officially identified the marketing practices as scams. Michael's lawsuit was for libel. Michael Elray would win if he could prove that Savin's article was false and that his reputation was damaged.

Online Privacy The power of the computer is increasingly recognized as a threat to privacy. Web site owners have the ability to gather personal information about you as you surf

the Web, and they can then use this information as they see fit . Often, a We b si;:~ owner or manager will sell information such as your address, age, income, pla.:- of business, and a variety of other details about your life to a third party a: - profit. Thus, your very personal information that you most likely do not w ish :. share with anyone becomes a valuable commodity. Some online guidelines dew.- oped through online privacy groups recommend that businesses post a notice their Web sites stating how personal information will be used and to whom will be disclosed. Furthermore, these guidelines give Web site users an opp orru- nity either to remove personal information or to demand that the informatio- provided be kept private.

Another area dealing with privacy is the right of employers to tap in employees' e-mail. Employers contend that employees have no reasonable expec- tation of privacy with respect to information found in computers connected to 2. company-sponsored network. No warning, however, is displayed. While no lav- may have been violated, both employers and employees should agree on wha: their ex pectations are concerning messages and information that appear on the network. Employees should at least insist that a warning be displayed promi - nently in the workplace.

Another serious invasion of privacy is the ability of individuals to eave:.- drop on cell phone conversations. Congress has made it a crime to listen in on cell phone conversations as part of the Electronic Communications Privac . Act of 1986 . However, this type of activity is a very popular pastime in sp ite of the law. A person tapping into cell phone conversations can pick up credi- card numbers with expiration dates, listen to a spouse making plans to chea- on hi s or her mate, and hear just plain old gossip that might be used a s a blackma il scheme.

Legal Remedies for Torts -- LEARNING OBJECTIVE ~

Outline the legal remedies for torts.

damages: money paid by a defendant to a successful plaintiff in civil cases to compensate the plaintiff for his or her injuries

com pensatory damages: actual measurable damages

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The usual remedy available to the injured party for a tort is to sue in a court oi law and recover money damages from the person who committed the wrong. Contrary to what many people think, however, damages are not automatica lly awarded every time a to rt is committed and a lawsuit filed in court. Similarly. if the person being sued in tort is insured through an insurance company, it will not result in automatic damages. The plaintiff (person suing) has the burden of proving the types and amounts of damages suffered. Sometimes this will require expert testimony such as the presentation of the testimony of an accountant or appraiser. Courts will not compensate the insured party for damages considered as speculative or that are unsupported by evidence. On the other hand, however, an injured party may be able to present as evidence damages that are not yet fixe d. for ex ample, future damages based on the reasonable projection of an experr witne ss. Generally, the purpose of damages is to restore the injured party to the position he or she was in before the tort was committed (status quo).

The amount of damages a person can recover depends on the harm caused and the kind of tor t committed. Million-dollar awards are not uncommon in t he areas of medical malpractice and product liability, especially if the victims have suffered a seriously disabling injur y. In the case of a deliberate tort, both com- pensatory damages and punitive damages may be awarded. Compensatory dam- ages are actual, measurable damages suffered- such as hospital bills, doctor 's bills, pharmacy bills, and wages lost while a person's injuries prevent him or her from working- as well as those damages not so easy to measure, which courts call "pain and suffering. " Pain and suffering refer to both the actual physical pain and the mental anguish that result from the tor t. Examples of pain and suf- fering include the pain suffered from a back injury or the loss of an arm or leg and the emotional trauma of a perm anent disfigurement caused by an automo- bile accident. In civil cases, because there is no fixed rule by which to calculate

· ive damages: damages _ ed upon a wrongdoer as

s'lment for intentionally '""lilting a wrongful act

ort Litigation Reform

EARNING OBJECTIVE 1:] Synthesize what is happening in

the area of tort reform .

pain and suffering to compensate the plaintiff for his or her injuries, there is wide latitude for the amount that can be awarded. Punitive damages (also called exemplary damages), often referred to as "vindictive damages" or "smart money," are imposed on the wrongdoer by the court as punishment for an intentional tort, mostly in cases involving gross negligence, that is, where the activity that led to harm is extreme and the law believes there is a need to present a strong civil law deterrent. Although juries have broad discretion to award punitive damages in personal injury cases, in recent years the U.S. Supreme Court has expressed its unease with the size of punitive damages (see Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257; Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S . 1; and TXO Prod. Corp . v. Alliance Resources Corp., 113 S. Ct. 2711) and has said that punitive damage awards should be "reasonable and proportionate to the amount of harm." Many states have followed suit with legislation placing a cap on punitive damages.

Ritz hired a certified, personal trainer to guide him through a series of exercises. When a severe pain occurred in his lower back, the trainer told Ritz to ignore it, that the pain would go away. The intensity of the pain increased as Ritz continued his exercising. When he couldn't stand the pain any more, he went to a doctor only to discover that he had a herniated disk caused by doing improper exercises. Ritz could sue the trainer for the tort of negligence.

If successful in his lawsuit, Ritz would most likely be awarded compensatory damages. The amount awarded would depend on the actual amount spent for medical bills and the pain and suffering he endured.

Sometimes money damages will not provide the kind of relief needed. Rem- edies in equity (as discussed on page 13) protect parties when monetary damages are not adequate. If, for example, someone is disturbing you by creating a nui- sance, what you may really want the court to do is to stop the nuisance rather than award you money damages. You can do so by seeking an injunction, which is a remedy in equity (see "Nuisance," above).

Tort reform refers to proposed changes in the civil law tort system that requires individuals found to be at fault for harming others to compensate their victims. Awards are generally represented in money terms. Consequently, tort reform is primarily about economics: reduce large damage awards and high medical insur- ance premmms .

As discussed earlier in the chapter, typical harms can include loss of income (while the person recovers), medical expenses, pain and suffering, loss of a body part, or loss of future income (if, for exa mple, an injury is permanent or the vic- tim dies). A person suing under the tort system for injuries "wishes to be made whole." This simply means that the victim wants to be restored to the position he or she was in had the victim not sustained the injury for which he or she is now seeking compensation (a return to status quo ante). Settlements with victims come through lawsuits against the person or persons causing injury and against physicians for malpractice. In many cases, jury awards have been excessive. It has been argued that extraordinary damage awards in the United States are a result of the jury system often unable to arrive at the cost of a person's loss of limbs or incapacity for life . Consequently, the costs of the tort system to insurance companies are steadily growing, causing physician insurance premiums to rise dramatically. In response to the resulting soaring physician insurance premiums, most state legislatures have enacted limits on noneconomic damages (e .g., pain and suffering). Caps generally range from $250,000 to $500,000. The caps in a few states go beyond $500,000 .

There are both positive and negative effects of tort reform. The p effect is that tort reform would reach its goal of reducing jury awards fo r malpractice lawsuits, which in turn would lower medical malpractice in-·- premiums. According to many consumers, however, placing a cap on jury a would make a victim who suffered severe pain and suffering amounting to than, say, a cap of $250,000 the loser. The victim would be the loser in the 5 that a he or she could end up receiving little or nothing after being subj ecrec- jury trial and paying attorney's fees. In fact, an attorney may not wish to <:a case for the reason that his or her fee would not be worth the effort neede_ prepare for a court trial and then dealing with the victim's insurance comp

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•

Fill in the blanks to complete each statement.

1. The terms "foreseeability" and "proximate cause" are associated with the to- -

2. Damages awarded as punishment for an intentional tort are called ___ _ damages .

3. A person suing for lost earnings in a tort action would be suing for ____ damages.

4. liability is the legal responsibility for harm done to another even whs-

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there is no proof of fault on the part of the party that caused the harm . 5. When money damages will not provide the appropriate relief in a civil case, ti"' E

plaintiff (person suing) may look to an action of to seek relief fro m the court.

Key Points in Chapter • • • A tort-a private wrong-is an intentional harmful act or a failure to act that causes physical or mental injury to another or damage to another's property. The perpetra- tor of a private wrong is subject to a civil lawsuit. All per- sons, including minors, are legally responsible for their torts.

Torts are classified as intentional, unintentional (based on negligence), and those based on the concept of strict liability ("liability without fault").

Some torts are committed in cyberspace. The usual remedy available to the injured party for

a tort is to sue in a court of law and recover money

Important Legal Terms

assumption of risk

battery

comparative negligence

compensatory damages

contributory negligence

convers10n

cyber tort

damages

defamation

false arrest

false imprisonment

fraud

infliction of emotional distress

injunction

intentional tort

damages from the person who committed the wro::::.,., Damages are not automatically awarded. The plain: (person suing) has the burden of proving the typ es amounts of damages suffered. When money damaE. will not provide relief, equitable remedies such as spe performance and injunction are ava ilable.

Tort litigation reform is primarily about economi reduce large damage awards and high medical insura - - premiums. Many states have placed limits on noneco.. - nomic damages (pain and suffering) to keep jury awar· from skyrocketing and to keep the cost of a doctor 's m' - practice insurance down.

interference with a business relationship

invasion of privacy

libel

malicious prosecution

malpractice

negligence

nUisance

;:.•r:··

punitive damages

slander

strict liability

theft of trade secrets

tort

tort law

trespass

wrongful death

estions and Problems for Discussion --------------------- Langley, a state beauty contest winner, was sunning hers elf by the pool at the hotel where she was raying. Without her permission, King took a photo

of her and sold the photo to Dansig for use in an advertising campaign. Langley has sued Dansig for damages for unauthorized use of her picture. Can Langley recover damages?

- Courtney, a 22-year-old call girl, became involved with a married politician who paid her several thousand dollars for an ongoing relationship. Once Courtney's identity became known and her relationship with this politician discovered, newspapers and Web sites splashed photos of Courtney in suggestive poses along with write -ups on the front and inside pages. The photos d istributed to the media actually came from ~ySpace pages. Her attorney lashed out at the media for thrusting the 22-year-old woman into the public light without her consent. The attorney, fu r ther contending that she was not a public figure, indicated that he was taking steps to bring a lawsuit fo r defamation against the various media outlets that published her image and wrote about her. A pokesperson for the media lashed back and stated

that the photos that appeared on MySpace were fo und to be noteworthy since the politician was in a high-ranking position. The spokesperson also made the point that the photos distributed were relevant tO the story about Courtney's relationship with the politician. Do you think that Courtney's attorney ha s a case? Daniels, age 70, who was experiencing severe chest pa ins, was immediately admitted to South View .\1emorial Hospital. Dr. Rose, an internist and Da niels's personal physician for many years, did a thorough examination, including an angiogram, and concluded that there was a blockage in two ar teries leading to the heart. Her diagnosis was that Da niels was having a heart attack. With Daniels's onsent, surgery was immediately performed, but he severe chest pains did not subside.

Consequently, Daniels's wife requested that Dr. Andrews, another well-known internist, take oYer the case. Dr. Andrews, upon examination, de termined that the severe chest pains were actually -he result of a kidney stone attack. He told Daniels's Yife that such an attack often produced severe chest ains similar to the pains experienced by a person av ing a heart attack. Daniels, within a few weeks

and with his consent, then underwent a procedure :or dissolving the several kidney stones. As a result f this procedure, the chest pains subsided. Does

Ja niels have a case against Dr. Rose? :_acey Myers, 76 years of age, claims that she has -uffere d severe emotional distress over a situation

concerning her dead husband who was buried by mistake in a section of the cemetery that isn't really a cemetery. Cemetery officials concede that the mistake was theirs and insist that the body will need to be moved to an appropriate part of the cemetery at no charge to Myers. She has been given an ultimatum to reach an agreement within a certain period of time, such as one day, or her husband's remains will automatically be moved. The struggle between Myers and cemetery officials has been going on for months through their attorneys. In her own words, Myers claims "that where a person is buried, that's where they should stay. It's a sacred trust." Where her husband is buried there is plenty of open space, and she claims that her husband loved open space. A cemetery official noted, however, that where her husband is buried will never become part of the cemetery. Under these circumstances, would Myers have an action in tort for severe emotional distress?

5. When his wife died of Alzheimer's disease in an Ohio hospital, Gomez instructed the attending physician to have her brain preserved for research purposes to help determine causes of the disease. The brain was placed in chemicals and sent to the National Research Lab for study. The package containing the brain, however, was lost when it arrived at the lab; it was never found. The husband, who said he would "never be able to totally bury" his wife because of the loss, suffered severe mental shock and was treated for several years by a well-known psychiatrist. For which tort or torts, if any, can the husband sue the National Research Lab?

6. Dr. Springer tried unsuccessfully for over a year to collect a $1,000 debt from Byrd, a prominent citizen of the community, for services rendered. One evening at a dinner party, Springer casually mentioned to several of his business friends, including the president of the local bank, that he had not been able to collect the overdue debt from Byrd. As a result, Byrd was denied a personal loan that he had applied for at the bank. Byrd claims that Springer's remark was slanderous and that Springer owes him damages. Is Byrd correct?

7. Marvelle had just mopped and waxed an area of the floor of his restaurant. He placed signs around the waxed area warning customers of the danger. Despite the warnings, Davis walked onto the waxed area. He slipped, fell, and broke an arm and a leg. Davis now claims that Marvelle is liable for the injuries he sustained. Is Davis correct?

8. Dr. Huggins, a dentist, was staying at the Ritz Hotel in Nashville, Tennessee, where he had a suite. When he went into the bathroom to shave, he flipped the

, • · ;f;c,'lliil . · I'' ' ' __ · _ -~- . ---- . 't ~·~

light switch on the wall. When he did, he received a tremendous jolt that threw him into the door frame, causing permanent injury to his right shoulder. He sued the hotel for negligence for failure to maintain electrical fixtures in a reasonably safe condition. The essence of his claim was that he could no longer work at his profession. Can Dr. Huggins legally recover damages from the hotel?

9. Coleman, a salesperson for a security company, wanted to get even with Cloos, the superintendent of the West Ridge School District, for not purchasing burglar alarms for the school district from Coleman's company. Coleman wrote a letter to the board of education falsely accusing Cloos of having been arrested in a neighboring community for possession of drugs. She also wrote that Cloos paid the local politicians to keep the incident off the police records. On what grounds could Cloos sue Coleman?

10. Marks was meeting her sister and a friend for dinner at a swanky restaurant. It was a warm summer evening, and because she was early, Marks decided to wait outside. She stood in front of the restaurant until her sister and friend arrived. Within a few minutes, a police car drove up and a police officer got out and forced Marks into the car,

Cases for Review

1. A man with a developmental disability and the mental capacity of a 5 -year-old made several visits to a retail store. Each time he was there, he caused a disturbance and was asked to leave. On one occasion when he was asked to leave, he threatened to kill the store owner. At this time, the police were called, and they arrested the man at the request of the store owner. He was charged with trespassing. The incident caught the eye of a local television station, which did a TV story on the man's trial and identified the retail store involved . The television station's version of the incidents that occurred in the store left out key facts about the man's threatened violence on several occasions while in the store and his admission of the threat he made to kill the store owner. As a result of the poor publicity, the store received several complaints about what was perceived as mistreatment of a person with a mental disability. The store owner sued the television station for defamation, contending that the TV version of what took place in the store damaged his reputation. Does the store owner have a case against the TV station? (Mohr. v. Grant, 68 P.3d 1159, Ct. App. Wash.)

2. LeDoux, an emergency medical technician (EMT), provided emergency medical attention to Julie Pachowitz at her residence. Because she was

accusing her of being a prostitute. She was take- - the police precinct station, where she was questioned and released without being charged. - had no previous convictions and was employed-- full-time account executive at a local securities investment firm. Can Marks sue the police department for false arrest?

11. Popovici, an untenured college English teacher, being considered for a permanent appointment . When the president of the college discovered tha;: she was separated from her husband and seeking .::. divorce, he brought this information to a board o; trustees meeting and recommended that she not ~ rehired at the end of the term. The board of trust agreed , and Popovici was not granted tenure. She was then requested to leave her teaching position soon as the current school year ended. The president's request to the board that Popovici not ~­ rehired was based strictly on his fear that her divorce would harm the college's "image." Pop oYic was otherwise considered an "excellent teacher " and had been recommended for tenure by her department chair person. Did the president's recommendation to deny Popovici's tenure appointment, based on her marital situation, constitute a wrongful intrusion into her private li fe:

unresponsive and had poor vital signs, Pachowitz was taken to a hospital for treatment. When LeDoux came in contact with Slocomb, a good friend of Pachowitz who worked at another hospital, LeDoux told Slocomb that Pachowitz had taken a drug overdose. LeDoux was thinking that , as a friend, Slocomb could help Pachowitz with her drug problem. When Pachowitz learned that LeDoux had disclosed her drug problem to Slocomb, she sued LeDoux for invasion of privac y for publicizing private facts about her private life that was none of Slocomb's business . Does Pachowitz have a cause of action for invasion of privacy? (Pachowitz v. LeDoux, N .W. 2d, Ct. App . Wise.)

3. Cinquanta needed repairs to a neon sign hanging in front of his restaurant. He asked Burdett to do the repairs. Upon completion, a disagreement occurred over payment of the cost of the repairs. Cinquanta claimed that the insurance company would pay, but Burdett wanted his money immediately, which did not happen. One evening Burdett and some of his friends went to the restaurant and ordered ex pensive meals but refused to pay the bill. Cinquanta insisted on payment and would not accept Burdett's request to substitute the cost of the mea ls as payment for the repairs. Burdett, in front

of his friends and other patrons in the restaurant, -ailed Cinquanta a "crook" and a "deadbeat," clai ming that the insurance company had not paid ;:he bill for the repairs. Cinquanta sued Burdett for sl ander, claiming injury to his reputation as a

us iness owner. Was Burdett's statement grounds ior slander? (Cinquanta v. Burdett, 154 Colo 37, 38 8 P2d 779)

- Fischer was a guest at the Red Lion Inn, where he was attending a seminar. He went for a swim at the end of the first day of the seminar and then, still in

is wet bathing suit, went directly to the vending ;nachine to pu rchase a bottle of pop. When he inserted the money into the vending machine, he received an electrical shock because of defective ·;-,·iring. The electric shock was so severe that it left hi m impotent, as confirmed by a doctor. Fischer -ued Pepsi Cola Bottling Company, owner of the ··ending machines at the inn, for negligence. He -!a imed that Pepsi, although aware of the electrical roblems that made the use of the machines

da ngerous, did not "pull" routine maintenance to .::orrect these problems. Should Fischer be successful in his lawsuit? (Fischer v. Pepsi Cola Bottling Co m pany, 972 F.2d 906)

- :· imberly Dickerson entered a Wal-Mart Store in Te ffe rson Parish in Louisiana with some friends. :·im berly left her friends and went to the area of the -wre that sold stamp albums. She purchased the ·ramp album and a pack of gum, which the store .::Jerk placed in a bag. Kimberly then went to another area in the store where one of her friends

·as waiting. This area was in a secluded part of the ·rore. She proceeded to place her hand in the Wa l-M art bag to retrieve the gum she had just pu rchased . At that moment, Mrs. Neal, a customer -ervice manager, came along and saw what ·-imberly was doing. Since Kimberly's moves :eemed suspicious, she snatched Kimberly's bag, 5earched the bag, discovered a receipt, and then :ent them to the area where they claimed their other i-iends were shopping. This whole incident lasted .-.bout one minute. Kimberly was never told that she

-a s being detained and that they could not leave ~e store. Kimberly and her parents sued Wal-Mart .:or fa lse imprisonment. Does she have a legitimate .:ause of action? Keep in mind that Louisiana law :: ·Yes quasi-police powers to merchants to protect .:gainst shoplifting and gives them immunity from .1ability from malicious prosecution when the

erchant has reasonable cause to believe that a - eft of goods has occurred on their premises.

·.JUghn v. Wal-Mart Stores, 734 So.2d 156, Ct. .""\.pp. Louisiana, Fifth Circuit) Gonz alez was injured while a passenger in Garcia's .:ar. Garcia, who had been drinking heavily, lost .:ontrol of the car and caused it to roll over, landing

on its side. Gonzalez sued for damages for negligence. Garcia claimed comparative negligence as a defense. Testimony in court revealed that Gonzalez knew Garcia was intoxicated. The court concluded that Gonzalez could have taken a cab or called his wife for a ride. Instead, he took a dangerous route and rode with Garcia. Does Gonzalez's decision to ride with Garcia amount to negligence that makes him partially liable for the accident? (Gonzalez v. Garcia, 142 Cal. Rptr. 503)

7. This case deals with medical malpractice in which both the plaintiff and the defendant were doctors. The suit was brought by Dr. David Axelrad, a psychiatrist, the patient, against Dr. Richard Jackson, an internist, the attending physician. After months of intermittent abdominal cramps and diarrhea, Dr. Axelrad sought treatment from Dr. Jackson because the pains became more acute. Dr. Jackson prescribed a laxative and an enema for fecal impaction. Returning home, Axelrad followed his doctor's orders and immediately felt severe abdominal pain with nausea and chills. His wife took him to an emergency room, and he was hospitalized for further testing. Based on those tests, another doctor operated two days later for what was thought to be appendicitis but turned out to be diverticulitis and a perforated colon. A portion of the colon was removed and a temporary colostomy constructed. Axelrad subsequently had further surgery to reconnect the colon, which became complicated by a severe drug reaction . During the court trial, several facts came up that made it sound as if both doctor and patient were at fault . While conceding a patient with diverticulitis should not be treated with enemas, Dr. Jackson testified he did not suspect diverticulitis as it is normally associated with fever, constipation, and pain in the left lower quadrant, while Axelrad had reported no fever, diarrhea, or pain throughout his abdomen. During the trial, accusations of negligence went back and forth between the two doctors who asserted how each had been negligent. It was hard for the jury not to believe both since each could legally be considered an expert. A critical fact that came before the jury at the original trial was that both the plaintiff and defendant, as doctors, failed to reveal information that was significant to the medical malpractice case brought by Dr. Axelrad, How do you think the case was decided? (Jackson v. Axelrad, 142 S.W. 3d. 418 421 (Tex App -Houston))

8. One evening Racquet and Kristie Ferrell went to dinner at Ruby Tuesday. They paid their bill, left the restaurant, got into their car, and drove on to the highway. While driving along the highway, they noticed that they were being followed by a truck with its high beams on. They switched lanes and so

did the truck. One of the two police cars that was parked along the side of the road on the highway pulled out behind the girls and pulled them over. The other police car followed. The truck driver also stopped and told police that the girls had not paid their bill at Ruby Tuesday and that the manager sent him (an off-duty police officer acting as a security at Ruby Tuesday) after them. Each girl was then placed in the back of the police car and handcuffed. A further investigation determined that the manager of the restaurant had assumed it was Racquel and Kristie who left without paying on advice of the waiter who indicted them. It just so happened that the girls were leaving the restaurant at the time the waiter reported the no pay incident to the manager. The manager then told the security guard to follow the girls without any attempt to verify the authenticity of who actually left without paying. The Ferrell's sued the restaurant based on a claim of an illegal detention. During the trial, it was firmly established that the girls were detained. The question is do the Ferrell's have a legitimate claim of illegal detention against the manager of the restaurant? (Ferrell v. Mikula, 295 Ga App 326, 672 S.E. 2d)

9. Berger, a firefighter, responded to a chemical boil-over at Lip~on' s chemical manufacturing plant, the boil-over having been caused by Lipson's negligence. When Berger arrived on the scene, he asked whether any toxic chemicals were involved

and was told there were none. Actually, toxic chemicals were involved, and Berger was injure when he attempted to control the boil-over. In response to Berger's suit for damages, Lipson argued that a person, such as a firefighter, who engages in a hazardous activity in the normal course of duty, assumes the risk of danger and should be barred from recovery for injuries. Sho·- - the court accept this line of reasoning? (Lipso n \·. Superior Court, 644 P.2d 822)

10. Hairston purchased and took delivery of a new ~-­ from Haygood Lincoln-Mercury. As he drove ho.w from the Lincoln-Mercury dealership, the left rear wheel came off the car. Because there was no shoulder on the road, he stopped the car in the fa_;- right lane. A passing motorist who stopped to hel;- parked his van 20 feet behind Hairston's car. A flatbed truck, driven by Alexander and owned by the Alexander Tank and Equipment Co., came along and struck the van, knocking it into the rear of Hairston's automobile. Hairston, who had bee standing between his car and the van, was killed. There was conclusive evidence that Alexander wa- negligent in failing to keep his truck under proper control. Hairston's wife, Bettye, sued both Haygood and the Alexander Tank and Equipmen Co. for damages, alleging that their negligence ha caused her husband's death. Should Hairston's w iie succeed in her lawsuits? (Hairston v. Alexander Tank and Equipment Co., 311 S.E.2d 559)