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Chapter 7
Tort Law, Product Liability and Consumer Law
Chapter Outline
1. Introduction
2. The Basis of Tort Law
3. Intentional Torts
4. Negligence
5. Cyber Torts: Defamation Online
6. Strict Liability
7. Product Liability
8. Consumer Law
Chapter Objectives
After completing this chapter, you will know:
 What a tort is, the purpose of tort law, and the three basic categories of torts
 The four elements of negligence
 What is meant by strict liability and the underlying policy for imposing strict
product liability
 What defenses can be raised in product liability actions
 Some of the ways in which the government protects consumers against unfair
business practices and harmful products
Chapter Outline
I. INTRODUCTION
A. Torts are wrongful actions.
B. The word tort is French for “wrong.”
C. The field of tort law continues to expand.
II. THE BASIS OF TORT LAW
A. Two notions serve as the basis of all torts.
i. Wrongs
ii. Compensation
B. In a tort action, one person or group brings a personal-injury suit against another
person or group to obtain compensation or other relief for the harm suffered.
C. Tort suits involve “private” wrongs, distinguishable from criminal actions that
involve “public” wrongs.
D. The purpose of tort law is to provide remedies for the invasion of various
interests.
E. There are three broad classifications of torts.
i. Intentional Torts
ii. Negligence
iii. Strict Liability
F. The classification of a particular tort depends largely on how the tort occurs
(intentionally or unintentionally) and the surrounding circumstances.
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Intentional Intentions
An intentional tort requires only that the tortfeasor, the actor/wrongdoer, intended, or
knew with substantial certainty, that certain consequences would result from the
action. When reviewing a fact pattern, consider what an ordinary, reasonable
individual would know or intend by the action.
III. INTENTIONAL TORTS
A. An intentional tort, requires intent.
B. “Intent” does not necessarily mean that the actor (referred to as the tortfeasor)
intended to harm someone; rather, it means that the actor intended the
consequences of his or her act or knew with substantial certainty that certain
consequences would result from the act.
C. Intentional Torts Against Persons
i. Assault and Battery
1. Assault is any intentional act that causes another to reasonably fear
immediate harmful or offensive contact.
2. Battery is harmful or offensive physical contact, intentionally performed.
3. Compensation for assault and battery can include compensation for the
emotional harm or loss of reputation resulting from a battery, as well as for
physical harm.
4. Defenses to assault and battery include:
a. Consent
b. Self-defense
c. Defense of others
d. Defense of property
ii. False Imprisonment
1. False Imprisonment is defined as the intentional confinement or restraint
of another person’s activities without justification.
2. False imprisonment can be accomplished by using a physical barrier,
using physical restraint or threatening the use of physical force.
3. There is a privilege to detain for merchants. If there is probable cause, a
merchant can detain a person suspected of shoplifting.
iii. Intentional Infliction of Emotional Distress
1. Intentional Infliction of Emotional Distress is an intentional act that
amounts to extreme and outrageous conduct resulting in severe emotional
distress to another.
iv. Defamation
1. Wrongfully hurting a person’s good reputation constitutes the tort of
defamation.
2. The law imposes a general duty on all persons to refrain from making
false, defamatory statements about others.
a. Breaching this duty orally involves the tort of slander.
b. Breaching this duty in writing involves the tort of libel.
3. Slander Per Se requires no proof of injury or harm for these false
utterances to be actionable.
a. A statement that another person has a loathsome communicable
disease.
b. A statement that another has committed certain improprieties while
engaged in a profession or trade.
c. A statement that someone has been imprisoned for a serious crime.
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d. A statement that an unmarried woman is unchaste.
4. The Publication Requirement
a. Publication means that the defamatory statements are
communicated to persons other than the defamed party.
5. Defenses Against Defamation
a. Truth is normally an absolute defense against a defamation charge.
b. Another defense is that the statements were privileged
communications and thus the defendant is immune from liability.
c. False and defamatory statements made about a public figure and
that are published in the press are privileged if they are made without
actual malice- there was knowledge that the statement was false or
there was an intentional disregard for the truth. .
v. Invasion of the Right to Privacy
1. A person has a right to solitude and freedom from prying public eyes, or
privacy.
2. Some state constitutions, and a number of federal and state statutes,
explicitly provide for privacy rights.
3. Four actions that are invasion of privacy:
a. The use of a person’s name, picture or other likeness for
commercial use without permission.
b. Intrusion into a person’s affairs or seclusion.
c. Publication of information that puts a person in a false light.
d. Public disclosure of private facts about a person.
vi. Appropriation
1. The use by one person of another person’s name, likeness, or other
identifying characteristic, without permission and for the benefit of the user,
constitutes the tort of appropriation.
vii. Misrepresentation (Fraud)
1. A misrepresentation leads another to believe in a condition that is
different from the condition that actually exists. This is often accomplished
through a false or an incorrect statement.
a. Elements of Misrepresentation/Fraud
(i) Misrepresentation is make with knowledge that the facts are
false or there is reckless disregard for the truth.
(ii) There is intent for the person to rely on the misrepresentation
(iii) The person does rely on the false information.
(iv) There is harm caused because of the reliance.
(v) There is a causal connection between the false information
and the harm.
2. The tort of fraudulent misrepresentation, or fraud, involves intentional
deceit for personal gain.
viii. Wrongful Interference
1. Many lawsuit involve situations in which an individual or business is
accused of wrongfully interfering with the business of another.
a. Wrongful Interference with a Contractual Relationship
(i) Valid contract in place.
(ii) A third party knows about the contract.
(iii) The third party intentionally causes one of the parties to
breach the contract.
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b. Wrongful Interference with a Business Relationship – a person is
unreasonably interfering with another’s business to gain a share of the
market.
2. Defenses to Wrongful Interference
a. If the interference was justified, or permissible, a person will not be
liable for this tort.
D. Intentional Torts Against Property
i. Trespass to Land
1. A trespass to land occurs whenever a person, without permission, enters
onto land that is owned by another, causes anything to enter onto the land,
remains on the land, or permits anything to remain on it.
2. Trespass Criteria, Rights, and Duties
a. The owner must show that a person is a trespasser, not a guest.
3. Defenses Against Trespass to Land
a. The trespass was warranted, for example, to assist someone in
danger.
ii. Trespass to Personal Property
1. Whenever any individual unlawfully harms the personal property of
another or otherwise interferes with the owner’s right to exclusively possess
that personal property, trespass to personal property occurs.
iii. Conversion
1. Whenever personal property is wrongfully taken from its rightful owner,
the act of conversion occurs.
Oops … It Wasn’t Me
A negligence action requires analysis of the following;
1. Did defendant owe a duty of care to plaintiff?
2. Did defendant breach that duty?
3. Did plaintiff suffer a legally recognizable injury?
4. Did defendant’s breach cause plaintiff’s injury?
An additional mnemonic aid could be “ABCD”:
A = A duty of care
B = Breach of the duty of care
C = Causation (the breach must cause an injury)
D = Damage (injury or harm)
E. Intentional Torts and the Paralegal—Tort lawsuits are frequent occurrences and
paralegals will spend a substantial amount of time servicing clients who want to
bring or defend against tort lawsuits.
IV. NEGLIGENCE
A. The tort of negligence occurs when someone suffers injury because of another’s
failure to live up to a required duty of care.
B. To succeed in a negligence action, the plaintiff must prove that:
i. The defendant owed a duty of care to the plaintiff
ii. The defendant breached that duty
iii. The plaintiff suffered a legally recognizable injury
iv. Defendant’s breach caused the plaintiff’s injury.
C. The Duty of Care and Its Breach
i. Central to the tort of negligence is the concept of a duty of care.
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ii. The duty of care is defined and measured by the reasonable person
standard, or how a reasonable person would have acted in the same
circumstances. Generally, whether the duty of care has been breached is
determined on a case by case basis.
1. The Duty of Landowners—exercise reasonable care to protect persons
coming onto their property from harm.
a. Duty to Business Invitees. Retailers and other firms that explicitly or
implicitly invite persons to come onto their premises are charged with
a duty to exercise reasonable care to protect those persons,
considered business invitees.
b. Open and Obvious Risks. Some risks are so obvious that the owner
need not warn of them.
2. The Duty of Professionals
a. If an individual has knowledge, skill, or intelligence superior to that
of an ordinary person, the individual’s conduct must be consistent with
that status.
b. If a professional violates his or her duty of care, he or she may be
sued for malpractice.
D. The Injury Requirement and Damages
i. To recover damages (receive compensation), the plaintiff in a tort lawsuit
must prove that she suffered a legally recognizable injury.
ii. The purpose of tort law is not to punish people for the torts that they commit
but to compensate injured parties for damages suffered.
1. Compensatory damages are intended to compensate, or reimburse, a
plaintiff for actual losses; to make the plaintiff whole.
2. Occasionally, punitive damages are awarded to punish the wrongdoer
and deter others from similar wrongdoing.
E. Causation
i. Another element necessary to a tort is causation. Two questions must be
answered in the affirmative for liability in tort to arise.
1. Causation in fact (the “but-for” test). Did the injury occur because of the
defendant’s act, or would it have occurred anyway?
2. Proximate cause (legal cause). Was the connection between the act and
an injury strong enough to justify imposing liability?
F. Defenses to Negligence – three affirmative defenses (defenses that can be used
to avoid liability even if the facts are true)
i. Assumption of Risk
1. Assumption of the risk is when the plaintiff voluntarily enters into a risky
situation, knowing the risk involved. The plaintiff will not be allowed to
recover.
ii. Superseding Cause
1. A superseding cause is an unforeseeable intervening event that breaks
the connection between a wrongful act and an injury to another.
iii. Contributory Negligence
1. In some jurisdictions, if the plaintiff was also negligence, the defendant
may raise the defense of contributory negligence.
2. Under the common-law doctrine of contributory negligence, no matter
how insignificant the plaintiff’s negligence is relative to the defendant’s
negligence, the plaintiff will be precluded from recovering any damages.
iv. Comparative Negligence
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1. The majority of states now allow recovery based on the doctrine of
comparative negligence.
2. This doctrine enables both the plaintiff’s and the defendant’s negligence
to be computed and the liability for damages distributed accordingly.
a. Pure comparative negligence states allow the plaintiff to recover,
even if the extent of his fault is greater than that of the defendant.
b. The 50-percent rule in many states prevents the plaintiff from
recovering if he was more than 50 percent at fault.
v. Special Negligence Doctrines and Statutes
1. Negligence Per Se
a. Certain conduct, whether it consists of an action or a failure to act,
may be treated as negligence per se (negligence in and of itself) .
b. Negligence per se may occur if an individual violates a statute or an
ordinance providing for a criminal penalty and that violation causes
another to be injured.
2. Special Negligence Statutes
a. Most states now have Good Samaritan statutes where persons who
are aided voluntarily by others cannot turn around and sue the “Good
Samaritans” for negligence.
b. Many states have passed Dram Shop Acts, under which a tavern
owner or bartender may be held liable for injuries caused by a person
who became intoxicated while drinking at the bar or who was already
intoxicated when served by the bartender.
V. CYBER TORTS: DEFAMATION ONLINE
A. Cyber Tort—not a new tort, but old torts that are now being committed in
cyberspace.
B. Liability of Internet Service Providers (ISPs)
i. Newspapers, magazines, and television and radio stations may be held liable
for defamatory remarks that they disseminate.
ii. Under the Communications Decency Act of 1996, Internet service providers
are not liable for such material.
C. Piercing the Veil of Anonymity
i. A problem in bringing an action for online defamation is discovering the
identify of the person who posted the defamatory message online.
ii. ISPs can disclose personal information about their customers only when
ordered to do so by a court.
iii. Plaintiffs are increasingly filing lawsuits against unidentified “John Does.”
Then, using the authority of the courts, they can obtain from the ISPs the
identities of the persons responsible for the messages.
VI. STRICT LIABILITY
A. Under the doctrine of strict liability, liability for injury is imposed for reasons other
than fault. Strict liability for damages proximately caused by an abnormally
dangerous or exceptional activity is one application of this doctrine.
i. Abnormally Dangerous Activities
1. An abnormally dangerous activity has three characteristics:
a. The activity involves potential harm, of a serious nature, to persons
or property.
b. The activity involves a high degree of risk that cannot be completely
guarded against by the exercise of reasonable care.
c. The activity is not commonly performed in the community or area.
ii. Other Applications of Strict Liability
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1. Strict liability may also apply to harm caused by animals.
2. Persons who keep wild animals are strictly liable for any harm inflicted by
the animals.
VII. PRODUCT LIABILITY—There are three theories of liability that plaintiffs can use to
sue a manufacturer for products liability, negligence, misrepresentation and strict liability.
A. Product Liability Based on Negligence
i. If a manufacturer fails to exercise due care to make a product safe, any
person who is injured by the product can sue the manufacturer for negligence.
B. Product Liability Based on Misrepresentation
i. When a manufacturer or seller misrepresents the quality, nature, or
appropriate use of the product, and the user is injured as a result, the basis of
liability may be the tort of fraud.
C. Strict Product Liability
i. A manufacturer that has exercised a reasonable degree of care can still be
held liable in strict liability if a product is defective and injures someone and if
the product was dangerous and unsafe.
ii. In order to prove strict liability, the plaintiff must meet the following
requirements:
1. The product must have been defective when it was sold.
2. The defendant is normally engaged in the selling of the product.
3. The product must be unreasonably dangerous.
4. The plaintiff or his or her property must have been harmed.
5. The defective condition was the proximate cause of the injury
6. The goods must not have been substantially changed from the time the
product was sold to the time the plaintiff was injured.
iii. Manufacturing Defects
a. A product that departs from its intended design, even though all possible
care was exercised in the preparation and marketing of the product, has a
manufacturing defect
b. Liability is imposed on the manufacturer regardless of whether they acted
“reasonably.”
iv. Design Defects
a. A product has a design defect if the foreseeable risks of harm posed by
the product could have been reduced or avoided by adopting a reasonable,
alternative design.
v. Warning Defects
a. A product may be deemed defective because inadequate instructions or
warnings in situations where the risk of harm was foreseeable and could
have been avoided if a proper warning had been given.
VIII. DEFENSES TO PRODUCT LIABILITY
A. Assumption of Risk
i. Assumption of the risk is when the risk is obvious and the user proceeded in
the face of that risk.
ii. Defendant must show:
1. Plaintiff knew and appreciated the danger created by the product defect.
2. Plaintiff voluntarily assumed the risk.
B. Product Misuse
i. This is the defendant’s claim that the plaintiff misused the product. However,
the injured party could claim he did not know that the product was dangerous
for a particular use.
C. Comparative Negligence
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i. Previously, the plaintiff’s conduct was not a defense to strict liability.
ii. Today, many jurisdictions consider the negligent or intentional actions of both
the plaintiff and the defendant when apportioning liability and damages.
D. Commonly-Known Dangers
i. The dangers associated with certain products are so commonly known that
manufacturers need not warn users of those dangers.
ii. If a plaintiff’s injury resulted from a commonly-known danger, the defendant
normally will not be liable.
E. Consumer Law
i. Since 1960, many laws have been passed to protect the health and safety of
consumers, a person who purchases products and services for personal or
household use.
ii. Federal administrative agencies are an important source of consumer
protection.
iii. Consumer law is all statutes, agency rules, and judicial decisions that serve
to protect the interests of consumers. Consumer law deals with deceptive
advertising, labeling and packaging, sales, consumer health and safety, and
credit protection.
1. Deceptive Advertising—The Federal Trace Commission is responsible
for regulating advertising to make sure deceptive practices are not
occurring.
a. Can be false statements about a company’s product or a
competitor’s product
2. Labeling and Packaging Laws
a. Labels must be accurate and in language that is easy to
understand.
b. Fair Packaging and Labeling Act requires that the label:
(i) Identify the product.
(ii) Net quantity of the contents.
(iii) Quantity of each serving.
3. Sales
a. Regulated by the Federal Trade Commission.
4. Consumer Health and Safety
a. Pure Food and Drug Act
b. Federal Food, Drug and Cosmetic Act
c. Meat Inspection Act
d. Consumer Product Safety Act
5. Consumer Credit Protection
a. Truth in Lending Act
(i) Disclosure Law.
(ii) Lenders must disclose credit and loan terms.
(iii) Equal Credit Opportunity Act – part of the Truth in Lending
Act. Prohibits credit discrimination.
b. Fair Credit Reporting.
(i) Protect consumers against inaccurate credit reports.
(ii) Credit reports may only be issued for specific reasons.
(iii) Consumers can request the source of any information.
(iv) Consumer can challenge any inaccurate information.
c. Fair and Accurate Credit Transactions Act
(i) Designed to combat identity theft.
(ii) National fraud alert system.
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(iii) Aides consumers in rebuilding their credit when it has been
harmed by identity theft.
d. Fair Debt Collection Practices
(i) Applies on to debt collection agencies.
(ii) Limits contact with consumers.
(iii) Limits collection techniques that can be used.
e. Garnishment
(i) Remedy available to a creditor for payment of a debt.
(ii) Creditor obtains an order of garnishment so the creditor can
seize property of the consumer, usually wages.
(iii) Amount that can be taken is limited.
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