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Intentional Torts and
Business Torts
Progress everywhere today does
seem to come so very heavily
disguised as chaos.
Joyce Grenfell, British actor
Tort
• Violation of a duty imposed by civil
law
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Defamation - Concerns false statements that
harm someone’s reputation
◦ Libel: Written defamation
◦ Slander: Oral defamation
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Elements in a defamation case
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Defamatory statement
Falseness
Communicated
Injury
Slander Per Se
•False statements about sexual behavior,
crimes, contagious diseases, and
professional abilities
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Opinion - Generally cannot be proven true or
false
◦ Do not usually amount to defamation
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Related defense - Cases where a supposed
statement of fact clearly should not be taken
literally
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Public personalities
◦ Receive less protection from defamation
◦ Can win a defamation case only by proving actual
malice by the defendant
 Actual malice: The defendant knew the statement was
false or acted with reckless disregard of the truth
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Online defamation
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Privilege
◦ Defendants receive additional protection from
defamation cases when it is important for them to
speak freely
◦ Absolute privilege: A witness testifying in a court or
legislature may never be sued for defamation
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False imprisonment
◦ Intentional restraint of another person without
reasonable cause and without consent
◦ Most commonly arise in retail stores, which
sometimes detain employees or customers for
suspected theft
Intentional Infliction of Emotional Distress
• An intentional tort in which the harm results from
extreme and outrageous conduct that causes
serious emotional harm
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Battery: An intentional touching of another
person in a way that is harmful or offensive
Assault: An act that makes a person
reasonably fear an imminent battery
Fraud: Injuring another person by deliberate
deception
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Money intended to restore a plaintiff to the
position he was in before the injury
Methods by which damages are calculated:
◦ A plaintiff receives money for medical expenses
that he has proven by:
 Producing bills from doctors, hospitals, physical
therapists, and psychotherapists
◦ The defendants are liable for lost wages
◦ A plaintiff is paid for pain and suffering
The Single Recovery Principle
• Requires a court to settle the matter once and
for all, by awarding a lump sum for past and
future expenses
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Damages that are intended to punish the
defendant for conduct that is extreme and
outrageous
Three ‘guideposts’ to consider when
awarding punitive damages:
◦ The reprehensibility of the defendant’s conduct
◦ The ratio between the harm suffered and the award
◦ The difference between the punitive award and any
civil penalties used in similar cases
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Occur almost exclusively in a commercial
setting
Tortious interference with business relations
◦ When healthy competition becomes illegal
interference
 Interference with a contract
 Interference with a prospective advantage
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An intentional tort in which the defendant
improperly induced a third party to breach a
contract with the plaintiff
◦ Exists when:
 There was a contract between the plaintiff and a third
party
 The defendant knew of the contract
 The defendant improperly induced the third party to
breach the contract or made performance of the
contract impossible
 There was injury to the plaintiff
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Defendant may also rely on the defense of
justification
◦ A claim that special circumstances made its conduct
fair
◦ Defendant must show that:
 It was acting to protect an existing economic interest
 It was acting in the public interest
 The existing contract could be terminated at will by
either party
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Malicious interference with a developing
economic relationship
◦ There need not be any contract
◦ Plaintiff must show more than just the hope of a
profit
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Intrusion: A tort in which a reasonable person
would find the invasion of her private life
offensive
◦ For example: Peeping, wiretapping
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Commercial exploitation
◦ The right to which prohibits the use of someone’s
likeness or voice for commercial purposes without
permission
◦ Covers the right to make money from publicity
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To win a negligence case, a plaintiff must
prove:
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Duty of due care
Breach
Factual cause
Proximate cause
Damages
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Special duty - Landowners
◦ Lowest liability - Trespassing adults
 Trespasser: A person on another’s property without
consent
◦ Mid-level liability - Trespassing children
◦ Higher liability - Licensee
 Licensee: A person on another’s land for her own
purposes but with the owner’s permission
◦ Highest liability - Invitee
 Invitee: A person who has a right to enter another’s
property because it is a public place or a business
open to the public
◦ Special duty - Professionals
◦ Special duty - Hiring and retention
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If a legal duty of care exists, then a plaintiff
must show that the defendant did not meet it
◦ Negligence per se
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Factual cause: When the defendant’s breach
led to the ultimate harm
Proximate cause: For the defendant to be
liable, the type of harm must have been
reasonably foreseeable
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Res ipsa loquitur: The facts imply that the
defendant’s negligence caused the accident
◦ Applies when:
 The defendant had exclusive control of the thing that
caused the harm
 The harm normally would not have occurred without
negligence
 The plaintiff had no role in causing the harm
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Plaintiff must prove that he has been injured
or that he has had some kind of measureable
losses
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Contributory negligence: If the plaintiff is
even slightly negligent, he/she recovers
nothing
Comparative negligence: A plaintiff may
generally recover even if he/she is partially
responsible
Assumption of the Risk
• A person who voluntarily enters a situation that
has an obvious danger cannot complain if she is
injured
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Imposes a much higher level of liability when
harm results from ultrahazardous acts or
defective products
◦ Ultrahazardous activities
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Using harmful chemicals
Operating explosives
Keeping wild animals
Bringing dangerous substances onto property
Activities where the danger to the general public is
especially great
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One who sells any product in a defective
condition, unreasonably dangerous to the
consumer is subject to liability for physical
harm thereby caused to the consumer, if:
◦ The seller is engaged in the business of selling such
a product
◦ It is expected to and does reach the consumer
without substantial change in the condition in
which it is sold
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The rule stated in Subsection (1) applies
although:
◦ The seller has exercised all possible care in the
preparation and sale of his product
◦ The user or consumer has not bought the product
from or entered into any contractual relation with
the seller
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Consumer expectation – Where a court finds
the manufacturer liable for defective design
if:
◦ The product is less safe than a reasonable
consumer would expect
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Risk-utility test - Principal factors include:
The value of the product
The gravity, or seriousness, of the danger
The likelihood that such danger will occur
The mechanical feasibility of a safer alternative
design
◦ The adverse consequences of an alternative design
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“Although tortious acts and their consequences are
diverse, two generalities apply. First, the boundaries
of intentional torts are imprecise, the outcome of a
particular case depending to a considerable extent
upon the fact finder who analyzes it. Second, the
thoughtful executive and the careful citizen, aware of
the shifting standards and potentially vast liability,
will strive to ensure that his or her conduct never
provides that fact finder an opportunity to give
judgment.”