Download The Common Law

Tort Law
UT-Austin Edinburgh Summer Program 2008
Tort Means “Wrong”
A tort is a violation of a duty imposed by civil
law. E.g.,
 Defamation -- making a false statement
about someone - written or verbal
 Negligence -- performing wrong surgery
 Interference with contract -- stealing a client
away from a competitor
 Fraud -- offering to sell something that
doesn’t exist
UT-Austin Edinburgh Summer Program 2008
Categories of Tort Law:
Based on Defendant’s State of Mind

Intentional Torts
 Does
not necessarily require an intention to
harm the victim, only an intention to perform the
act which caused the injury. (Intentionally
throwing an object, but not meaning to hit
anyone is a tort if it causes injury to someone.)

Negligence and Strict Liability
 Unintentional
torts
UT-Austin Edinburgh Summer Program 2008
Categories of Tort Law:
Based on Rights at Stake
Infringements of personal rights
(assault, battery, false imprisonment, defamation,
intentional infliction of emotional distress and invasion
of privacy)
vs.
Infringements of business or property
rights
(trespass, nuisance, fraud, conversion, product
disparagement and interference with contract)
UT-Austin Edinburgh Summer Program 2008
Businesses and Tort Liability
Why should businesspeople (or business
students) care about personal torts? What
do they have to do with business?
Businesses can be vicariously liable for torts
committed by their employees during the
course of their employment, under the
doctrine of “respondeat superior.”
UT-Austin Edinburgh Summer Program 2008
Compensatory Damages

A jury may award compensatory damages -- payment
for injury --to a plaintiff who prevails in a civil suit.

The Single Recovery Principle mandates that the court
must decide all damages -- past, present and future -at one time and settle the matter completely.

Damages may include money for three purposes:
 to restore any loss (such as medical expenses)
caused by the illegal action
 to restore lost wages if the injury kept the defendant
from working
 to compensate for pain and suffering
UT-Austin Edinburgh Summer Program 2008
Punitive Damages



While the purpose of compensatory damages is to
help the victim recover what was lost, punitive
damages are intended to punish the guilty party.
 Intended for conduct that is outrageous and
extreme
 Designed to “make an example” out of the
defendant and to deter others
Sometimes punitive damage awards are huge, but
in most cases they are close to or less than the
amount of compensatory damages awarded.
BMW v. Gore
UT-Austin Edinburgh Summer Program 2008
Intentional Torts against Persons:
Assault and Battery


Assault is an action that causes the victim to fear an
imminent offensive contact.
 Assault can occur without the contact ever
happening.
 Pulling a gun on someone -- even if it is unloaded -is usually considered assault.
 Fear must be reasonable.
Battery is a touching of another person in a way that is
unwanted or offensive.
 The touch does not have to hurt the victim -- sexual
touching that is offensive, but not painful, is battery.
 An intentional action that does hurt someone may be
battery even if the injury is unintentional.
UT-Austin Edinburgh Summer Program 2008
Intentional Torts Against Persons
False Imprisonment
False imprisonment is the restraint of someone
against their will and without reasonable cause.

An employer who doesn’t let a sick employee go
home might be guilty of false imprisonment.

If the police detain a person with no reason to
suspect him of any crime, it could be false
imprisonment.

In general, a store may detain a person suspected
of shoplifting if there is a reasonable basis for the
charge and the detention is done reasonably (in
private and for a reasonable time).
UT-Austin Edinburgh Summer Program 2008
Intentional Infliction of Emotional Distress
•
Roach v. Stern

Historically, no recovery was allowed if the
injury was only emotional instead of physical.
Today, most courts allow a plaintiff to recover
from a defendant who intentionally causes
emotional injury.
 Behavior causing injury must be extreme and
outrageous.
 Must have caused serious emotional harm.
Some courts allow recovery for emotional injury
caused by negligent behavior.


UT-Austin Edinburgh Summer Program 2008
Intentional Torts Against Persons:
Defamation

Defamation is irresponsible speech
to harm another’s reputation.
 Written
defamation is libel.
 Verbal defamation is slander.
UT-Austin Edinburgh Summer Program 2008
Intentional Torts Against Persons
Defamation (cont’d)

There are four facts to prove to win a
defamation suit:
 Defamatory
statement: injury to reputation.
 Falsity: The statement is false.
 Publication/communication: The statement
was communicated to a third party.
 Injury: must be proven in slander cases;
assumed in libel cases.
UT-Austin Edinburgh Summer Program 2008
Defamation (cont’d)
“Mr. Smith is a jerk. He is insufferable. I think
he is the stupidest, meanest person I have
ever met.”

Opinion -- to be defamation, the statement
must be provable and not simply
someone’s opinion.
 Vague
terms in the statement usually indicate
it is an opinion, not a provable fact.
 Extreme exaggerations are usually not taken
as fact.
UT-Austin Edinburgh Summer Program 2008
Defamation (cont’d)

Public Personalities
 Includes:
public officials (police and
politicians) and public figures (movie stars
and other celebrities)
 Public personalities have a harder time
winning a defamation case because they
have to prove that the defendant acted with
actual malice.
UT-Austin Edinburgh Summer Program 2008
Defamation: Defenses

Truth
UT-Austin Edinburgh Summer Program 2008
Defamation: Defenses


Truth
Privilege
 Defendants
receive extra protection in
special cases.
 Sigal Construction Corp. v. Stansbury
 In courtrooms and legislatures, speakers
have absolute privilege. They may speak
freely, as long as they reasonably believe
what they are saying is true.
 When information is legitimately needed, the
speaker giving it has qualified privilege. This
may happen when someone reports a
suspected criminal act.
UT-Austin Edinburgh Summer Program 2008
Privacy and Publicity

Intrusion (prying into someone’s private life) is a
tort if a reasonable person would find it offensive.
 Examples: wiretapping, stalking, peeping

Disclosure of Embarrassing Private Facts is when
something extremely embarrassing is made
public with no need for the public to know. So
how do shock TV shows get away with
humiliating people for fun and profit?

False Light is when something false and
offensive is told about someone.
 Parody
defense to defamation and false light
torts: Flynt v. Falwell. Why is this a
defense?
UT-Austin Edinburgh Summer Program 2008
False Advertising

Commercial Exploitation is when a person’s
image or voice is used for commercial
purposes without that person’s permission.
 Midler

case (not in your readings)
Waits v. Frito-Lay
UT-Austin Edinburgh Summer Program 2008
Product Defamation
•
State Statutes outlawing “defamation” of
products
• Oprah and Texas beef
• Honda and emu ranchers
UT-Austin Edinburgh Summer Program 2008
Interference with Business Relations
(a/k/a Interference with Contract)
•
Texaco v. Pennzoil
Interference with a contract exists if the plaintiff
can prove these elements:
 There
was a contract between the plaintiff and a
third party and the defendant knew of the
contract.
 The defendant induced the third party to breach
the contract or make performance impossible.
 There was injury to the plaintiff.
UT-Austin Edinburgh Summer Program 2008
Negligence
Paintiff must prove:




Duty of due care -- there must be a duty
owed to the plaintiff.
Breach -- duty must be breached.
Proximate cause -- it must have been
foreseeable that the action would cause this
kind of harm, AND action was actual cause of
harm
Injury -- the plaintiff must have been hurt.
UT-Austin Edinburgh Summer Program 2008
Duty of Care



Foreseeable plaintiff
Dramshop/Social Host cases
 Minority view: social host is liable
 Is majority view when drinker is child
Landowner cases
 Trespasser
 Licensee
 Invitee
 Izquierdo v. Gyroscope, Inc.
UT-Austin Edinburgh Summer Program 2008
Breach of Duty

A defendant breaches his duty of due care by
failing to behave the way a reasonable person
would under similar circumstances. What about:







Absent-minded defendants?
Not very smart defendants?
Children?
Physical disabilities?
Intoxicated defendants?
Professionals?
Circumstances count


Knowledgeable plaintiff
Stressful situations
UT-Austin Edinburgh Summer Program 2008
Breach of Duty (cont’d)

Companies and Employees -- courts
have found companies liable for hiring
and retaining employees known to be
violent, when those employees later
injured co-workers.

Analyze these situations using
“reasonable person” standard.
UT-Austin Edinburgh Summer Program 2008
Breach of Duty (cont’d)

Negligence per se -- in special cases,
legislatures set a minimum standard for certain
groups of people. When a violation of that
statute hurts a member of that group, the duty
is breaof behavior.

E.g., violation of regulatory standard of care


Outlawed behavior
OSHA standards
UT-Austin Edinburgh Summer Program 2008
Causation
Factual Cause + Foreseeable Harm =
“Proximate Cause”

Factual Cause -- if the defendant’s
breach ultimately led to the injury, he is
liable.
 Does
not have to be the immediate cause
of injury, but must be the first in the direct
line.
 Intervening causes can break the direct
line
UT-Austin Edinburgh Summer Program 2008
Factual Cause + Foreseeable Harm =
“Proximate Cause”

Foreseeable Harm -- to be liable, this type
of harm must have been foreseeable.
 The defendant does not have to know
exactly what would happen -- just the type
of event.
 Palsgraf v. Long Island RR
 Ozzie Osbourne
UT-Austin Edinburgh Summer Program 2008
Ex: Factual Cause & Foreseeable
Harm
Mechanic fails
to fix customer’s
brakes, which
causes...
Car
accident,
car hitting
bicyclist
Car
accident,
car hitting
bicyclist
Noise from
accident startles
someone who falls
out a window
Mechanic is
liable to
cyclist
Mechanic is
NOT liable
for falling
person
Factual
cause and
foreseeable
type of injury
Factual
cause, but
no
foreseeable
type of injury
UT-Austin Edinburgh Summer Program 2008
Injury & Damages

Injury -- plaintiff must show genuine injury
 Future injury may be compensated, but
must be determined at the time of trial.

Damages -- are usually compensatory,
designed to restore what was lost. In
unusual cases, they may be punitive.
UT-Austin Edinburgh Summer Program 2008
Defenses to Negligence

Contributory Negligence

Assumption of Risk

Comparative Negligence
UT-Austin Edinburgh Summer Program 2008
Defenses to Negligence

Contributory Negligence
 In
a few states, if the plaintiff is AT ALL negligent,
he cannot recover damages from the defendant.

Assumption of Risk
 No

recovery if plaintiff voluntarily assumed risk
Comparative Negligence
 In
most states, if the plaintiff is negligent, a
percentage of negligence is applied to both the
defendant and the plaintiff.
 In some cases, a plaintiff found to be more than
50% negligent cannot recover at all.
UT-Austin Edinburgh Summer Program 2008
MORE EXAMPLES
Scenario #1:
Contributory Negl. Comparative Negl. Comparative Negl. Assumption of Risk
(50% cutoff)
P's Damages
P's fault
D's fault
D's Liability
(no cutoff)
$100,000
49%
51%
$0
$51,000
$51,000
$0
15,000.00
$0
Scenario #2:
P's Damages
P's fault
D's fault
D's Liability
$100,000
85%
15%
$0
$0 $
UT-Austin Edinburgh Summer Program 2008
Strict Liability
Some activities are so dangerous that the law imposes
a high burden on them. This is called strict liability.

Defective Products-- may incur strict liability.

Ultrahazardous Activities -- defendants are
virtually always held liable for harm.
 What
is ultrahazardous?
 Plaintiff
does not have to prove breach of duty or
foreseeable harm.
 Comparative
negligence does not apply -defendant engaging in ultrahazardous activity is
wholly liable.
UT-Austin Edinburgh Summer Program 2008
Strict Liability:
• “ultrahazardous” or “unreasonably
dangerous” activity
• Historically
• Modern applications
UT-Austin Edinburgh Summer Program 2008
TORT REFORM: a good idea?
UT-Austin Edinburgh Summer Program 2008