BLTS 11e IM-Ch04 - NACM



Chapter 4Tort LawIntroductionYour students may enjoy reading this chapter—they should see a relationship between society’s interest in compensating injured parties and its interest in taking steps against those who cause the injuries. It may be helpful in analyzing a given situation to note in which circumstances one interest is dominant and those in which they are equal.This chapter provides an overview of tort law, covering many of the intentional torts, as well as negligence and strict liability, in which intent is not an element. Part of doing business is the risk of being involved in a lawsuit. An ever-increasing business operating cost is the premium to obtain liability insurance to pay an adverse judgment in a suit. Many of these suits involve torts. In fact, in the United States today, negligence is the dominant cause of action for accidental injuries.Chapter OutlineI.The Basis of Tort LawTort law compensates those who suffer a loss or injury due to another’s wrongful act.A.The Purpose of Tort LawThe purpose of tort law is to provide an injured party with a remedy for the violation of legally recognized and protected interests (physical security, freedom of movement, and property).B.Damages Available in Tort pensatory Damages?Special damages cover quantifiable losses (medical expenses, lost wages and benefits, the loss of irreplaceable items, and the costs of repairing or replacing damaged property).?General damages are for non-monetary harm (pain and suffering, disfigurement, loss of reputation, loss of companionship or consortium, loss or impairment of mental or physical capacity).2.Punitive DamagesThese punish a wrongdoer and deter others from similar wrongdoing, and are awarded only when conduct was particularly egregious or reprehensible. Punitive damages are subject to the limits of the due process clause of the U.S. Constitution.Enhancing Your Lecture—????Tort Damages in Other Nations?????In contrast to U.S. courts, courts in Europe generally limit damages to compensatory damages; punitive damages are virtually unheard of in European countries. Even when plaintiffs do win compensatory damages, they generally receive much less than would be awarded in a similar case brought in the United States. In part, this is because citizens of European countries usually receive government-provided health care and relatively generous social security benefits. Another reason, though, is that European courts tend to view the duty of care and the concept of risk differently than U.S. courts do. In the United States, if a swimmer falls off a high diving board and is injured, a court may decide that the pool owner should be held liable, given that such a fall is a foreseeable risk. If punitive damages are awarded, they could total millions of dollars. In a similar situation in Europe, a court might hold that the plaintiff, not the pool owner, was responsible for the injury.Tort laws in other nations also differ in the way damages are calculated. For example, under Swiss law and Turkish law, a court is permitted to reduce the amount of damages if an award of full damages would cause undue hardship for the party who was found negligent. In the United States, in contrast, the courts normally do not take a party’s economic circumstances into consideration.For Critical AnalysisWhat impact might the typically greater damages awards in the United States have on a businessperson’s decision about whether to keep the firm’s operations in the United States or move them to another country? Does the potential cost of paying damages encourage large corporations to outsource jobs to other nations? Why or why not?C.Tort ReformThe tort law system has been criticized as encouraging unfounded lawsuits, excessive damages, and costly consequences (such as physicians’ ordering unnecessary tests).1.Types of ReformMeasures include:?Limits on damages.?Caps on attorneys’ fees.?Payment of both parties’ expenses by the losing party.2.Federal ReformAt the federal level, the Class Action Fairness Act (CAFA) of 2005 shifted jurisdiction over cases involving large numbers of plaintiffs and large amounts of potential awards to the federal courts.3.State ReformAt the state level, about half of the states have limited damages—or banned punitive damages—especially in medical malpractice cases.D.Classifications of TortsTorts can be classified as intentional or unintentional. E.DefensesDefenses available vary depending on the specific tort involved. Defenses may include consent, comparative negligence, and a statute of limitations.II.Intentional Torts against Persons?An intentional tort requires intent. Intent 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. The law generally assumes that one intends the normal consequences of his or her actions. Thus, a push is an intentional tort because the object of the push can ordinarily be expected to go flying.?Intent can be transferred when a defendant intends to harm to one individual, but unintentionally harms a second person.A.Assault and Battery1.AssaultAn intentional, unexcused threat of immediate harmful or offensive contact, such as words or acts that create in another person a reasonable apprehension or fear of harmful contact, is an assault. The interest protected is freedom from having to expect harmful or offensive contact.2.Battery?A battery is an unexcused, harmful, or offensive physical contact intentionally performed. The contact can be to any part of the body or anything attached to it—including an automobile in which one is sitting—and can be made by some force the defendant sets in motion.?Damages can be for emotional harm or loss of reputation, and for physical harm.?Defenses include self-defense and defense of others.B.False ImprisonmentFalse imprisonment is the intentional confinement or restraint of another person without justification. The interest protected is the freedom to move without restraint.?Confinement can be by physical barriers, physical restraint, or threats of physical force. Moral pressure or threats of future consequences are not sufficient.?Most states allow a merchant’s security personnel to detain a suspected shoplifter if there is reasonable cause for suspicion and the confinement is reasonable.C.Intentional Infliction of Emotional DistressIntentional infliction of emotional distress is an act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.1.Outrageous ConductThe focus in an emotional distress suit is usually on the nature of the act—a single indignity or annoyance may not be enough, but repeated annoyances, coupled with threats, may be.2.Limited by the First AmendmentThe First Amendment’s guarantee of freedom of speech limits emotional distress claims when the outrageous conduct consists of speech about a public figure.Additional Background—Infliction of Emotional DistressImagine that Dave invites Beth to a swimming party. At the party, Dave gives Beth a suit that Dave knows will dissolve in water. When Beth goes swimming, the suit dissolves, leaving Beth naked in the presence of the other guests. Beth suffers extreme embarrassment, shame, and humiliation. Is Dave liable for intentional infliction of emotional distress? Under the circumstances, Dave is liable for Beth’s emotional distress. Liability can be found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond what has been described as “all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”Suppose that while arguing over the telephone with Michelle, an airline reservations operator, about a full refund for a cancellation, Phil calls her a liar and says that he would punch her in the mouth if he were there. Michelle suffers emotional distress over Phil’s statements, cannot sleep, and becomes ill. Is Phil liable for intentional infliction of emotional distress? Phil’s statements may be insulting, but they are not so outrageous or extreme as to result in liability. The Restatement (Second) of Torts, Section 46, Comment d, states, “[L]iability clearly does not extend to mere insults, indignities, .??.??. or other trivialities. .??.??. [People] must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. .??.??. [S]ome safety valve must be left through which irascible tempers may blow off relatively harmless steam.”Even when conduct is extreme and outrageous, as of the early 1990s, at least five states and the District of Columbia required a physical injury or impact to recover for the negligent infliction of emotional distress. At least seventeen other states required that the plaintiff either be in the zone of danger or exhibit objective physical manifestations of the emotional injury. An exception existed, however, in at least eighteen states to the physical impact/zone of danger requirements to cover situations when a bystander suffered emotional injuries as a result of witnessing harm to immediate family members. In Dillon v. Legg, 44 P.2d 9123 (Cal. 1968), the court set forth factors to consider in determining whether emotional injury to a bystander is foreseeable: (1) whether the plaintiff was located near the scene of the accident; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident; and (3) whether the plaintiff and the victim were closely related.D.DefamationWrongfully hurting another’s reputation is defamation. Doing so orally is slander; doing it in writing or in a form of communication that has the potentially harmful qualities characteristic of writing (pictures, signs, statues, and films) is libel. To establish defamation requires proof of—?A false statement of fact.?The statement must be about the plaintiff and tend to harm the plaintiff’s reputation.?Publication to one other than the one being defamed.?Actual malice if the plaintiff is a public figure.1.Statement of Fact RequirementStatements of opinion are not actionable as defamatory because they are protected under the First Amendment.2.The Publication RequirementDefamation requires that the publication of the statement (that is, that it be communicated to someone other than the defamed party).3.Damages for LibelBecause libelous statements are written, can be circulated widely, and are typically a result of deliberation, general damages are presumed. Showing an actual injury is not required.4.Damages for SlanderBecause slanderous statements have a temporary quality, special damages must be proved. Proof of injury—an actual economic loss—is required. Exceptions to the requirement of proof of special damages are—?A statement that another has a loathsome disease (including sexually transmitted diseases and mental illness).?A statement that another has committed improprieties while engaged in a profession or trade.?A statement that another has committed or has been imprisoned for a serious crime.?A statement that an unmarried woman is unchaste.Enhancing Your Lecture—????Is Online Defamation Slander or Libel??????The distinction between slander and libel is important because, as noted elsewhere, a plaintiff must prove “special damages” to establish the defendant’s liability for slander. How does this letter of tort law apply to online defamatory statements? This novel question came before a California appellate court in 2003. At stake was an award of $775,000 in damages, which a trial jury had awarded to Varian Medical Systems, Inc., the plaintiff in the case. The jury awarded the damages after deciding that the false and derogatory statements about the company made by two former employees on various Internet bulletin boards constituted defamation. The defendants appealed, claiming that even if they had defamed Varian, their statements constituted was slander, not libel. Thus, Varian could not be awarded damages because it had not proved “special damages”—a requirement in a case alleging slander.The appellate court disagreed. The court held that the messages on the bulletin boards were “writings.” In the court’s eyes, “the only difference between the publications defendants made in this case and traditionally libelous publications is defendants’ choice to disseminate the writings electronically.”aThe Bottom LineOne of the defendants’ arguments in this case was that statements posted on Internet bulletin boards are “typically freewheeling and irreverent” and that no reasonable person would regard such statements as true. The appellate court made it clear, however, that defamatory statements, even if made online, are not exempt from “established legal and social norms” or “the civilizing influence of the law.”a. Varian Medical Systems, Inc. v. Delfino, 113 Cal.App.4th 273, 6 Cal.Rptr.3d 325 (6th Dist. 2003).5.Defenses to DefamationThese include the truth. Other defenses are as follows:a.Privileged Communications?Absolute privilege—statements made by attorneys and judges in a courtroom during a trial and by government officials during legislative debate.?Qualified or conditional privilege—statements in good faith limited to those who have a legitimate interest in the statements, such as statements by an employer in an employee’s written evaluation.b.Public FiguresStatements made about public figures are usually related to matters of general public interest and will not constitute defamation unless they are made with actual malice (knowledge of falsity or reckless disregard for the truth).Additional Background—Thoughtless Comments and SlanderMcClune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990) provides an example of how thoughtless comments can become slander.Robert McCune was a single, twenty-seven-year-old man, who grew up in Springfield, Nebraska (population: 800). He worked in neighboring Gretna with his brother, selling lawn sprinkler systems and managing the installation crews. McCune’s mother, Betty Holz, was a home health aide. One of Holz’s coworkers was Patricia Dieleman. Lois Keyes was one of Dieleman’s patients. On July 8, Keyes’ daughter told Keyes and Rose Neitzel that a friend of McCune’s was dying of AIDS. That evening, as Dieleman was tending to Keyes, Keyes told Dieleman that she did not want Holz to care for her. When Dieleman asked why, Neitzel responded, “Didn’t you know her son, Bobbie, has AIDS?” McCune did not have AIDS. Dieleman reported Neitzel’s remarks to a friend of hers and to Holz. Neitzel spoke of the conversation with Keyes’ seven daughters, her own husband, her sister, her brother, and her four sons.When McCune learned of Neitzel’s statement, he began to avoid Springfield, where he had previously visited his mother and friends at least twice a week. He avoided some family gatherings. A Springfield resident confronted him regarding AIDS. His work deteriorated dramatically. He had problems with the workers he supervised because of the rumor. He began to drink continuously, and sought professional counseling and attended Alcoholics Anonymous meetings. Near the end of July, McCune’s brother informed him that the installation crews had lost respect for him due to the rumors and that he had to resign or be fired. McCune resigned and left the Springfield area. He suffered from headaches and sleeplessness, was lethargic, and gained weight. He found a new job in Iowa, to begin nine months later, doing the same type of work that he had done with his brother.McCune filed a petition, alleging that Neitzel had falsely accused him of having AIDS. After trial, the jury returned a verdict in McCune’s favor for $25,350.E.Invasion of the Right to Privacy and Appropriation1.Invasion of PrivacyFour different acts qualify as tortious invasions of privacy—?Intrusion into an individual’s affairs or seclusion—Invading someone’s home, illegally searching someone’s belongings, eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing, window peeping.?False light—Publishing information that places a person in a false light.?Public disclosure of private facts—Publicly disclosing private facts about an individual that an ordinary person would find objectionable.?Appropriation of identity—Using a person’s name or picture or other likeness for commercial purposes without permission.2.AppropriationMost states have codified the tort of appropriation or right of publicity. States differ as to the degree of likeness needed to impose liability.F.Fraudulent MisrepresentationFraud involves intentional deceit for personal gain. The elements are—?Misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth.?Intent to induce another to rely on the misrepresentation.?Justifiable reliance by the deceived party.?Damages.?Causal connection between the misrepresentation and the injury suffered.Case Synopsis—Case 4.1: Revell v. GuidoJoseph Guido bought nine houses in Stillwater, New York, that lacked a functioning waste disposal system. Guido had a septic system installed. When sewage was later found on the property, Guido had the system partially replaced. Meanwhile, the Environmental Protection Agency found diesel fuel in samples of water from four of the houses. Guido listed the houses for sale. Prospective buyer Danny Revell was given a property information sheet that stated “Septic system totally new—each field totally replaced.” In response to questions from Revell’s bank, Guido denied any knowledge of environmental problems. Revell bought the houses. Within a month, the septic system failed, requiring substantial remediation efforts. The lender foreclosed on the property, and Revell declared bankruptcy. Revell then filed a suit in a New York state court against Guido, alleging fraud. From a judgment in Revell’s favor, Guido appealed.A state intermediate appellate court affirmed. The facts of the case met all of the requirements for establishing fraud. The property’s information sheet and Guido’s responses to the bank’s questions misrepresented the facts. Guido’s intent to deceive was shown by the “cavalier manner” in which he answered the questionnaire and his knowledge of the problems with the septic system. A visual inspection of the property did not reveal those problems—the plaintiffs' reliance on the property information sheet was thus justified. The evidence of damages included “receipts, invoices, billing statements and canceled checks.”..................................................................................................................................................Notes and QuestionsWhy did the defendant commit fraud in this case? The most likely motive for the defendant’s commission of fraud in this case is part of the definition of the tort—fraud involves intentional deceit for personal gain. The defendant may have believed that had he not misrepresented the condition of the property, a profit on its sale would have been more difficult to realize.How does the result in this case fulfill society’s interest in compensating injured parties and its interest in taking steps against those who cause the injuries? Tort law compensates those who suffer a loss or injury due to another’s wrongful act. The purpose of tort law is to provide an injured party with a remedy for the violation of legally recognized and protected interests (property, for example). In this case, an award to the plaintiff of damages meets society’s two goals of compensating injured parties and in taking steps against the party who caused the injury.1.Statement of Fact versus OpinionTo constitute fraudulent misrepresentation, a statement of fact must be involved. Reliance on an opinion is not justified unless the person making the statement has superior knowledge of the subject matter, and puffery, or seller’s talk, (“This is the best product!”) is too subjective.2.Negligent MisrepresentationUnlike ordinary fraud, negligent misrepresentation does not require knowledge that a representation is false nor intent to defraud, but only the lack of a reasonable basis for believing a statement is true.G.Abusive or Frivolous LitigationPersons have a right not to be sued in the absence of a legally just and proper reason. Torts related to abusive litigation include malicious prosecution (suing out of malice without probable cause) and abuse of process (using a legal process in an improper manner or to accomplish a purpose for which it was no t designed). The latter does not require proof of malice or a loss in a prior legal proceeding.H.Wrongful Interference1.Wrongful Interference with a Contractual RelationshipAny lawful contract can be the basis for this action. The plaintiff must prove that the defendant actually induced the breach of a contractual relationship, however, not merely that the defendant reaped the benefits of a broken contract. The elements are—?A valid, enforceable contract between two parties.?A third party’s knowledge of the contract.?The third party’s intentionally causing either of the two parties to break the contract.2.Wrongful Interference with a Business RelationshipIndividuals may not interfere unreasonably with another’s business to gain a share of the market. The distinction between competition and predatory behavior often depends on whether a business is attempting to attract customers in general or to solicit only those customers who have already shown an interest in the product or service of a competitor.3.Defenses to Wrongful InterferenceBona fide competitive behavior is a privileged interference even if it results in the breaking of a contract. The public policy that favors free competition in advertising outweighs the instability that competitive activity might cause in contractual relations.III.Intentional Torts against PropertyA wrong against property is a wrong against the individual who has legally recognized rights with regard to the property. The law categorizes property as real property (land and things permanently attached thereto) and personal property (items that are movable).A.Trespass to LandHarm to the land is not required. Trespass to land occurs when a person, without permission—?Enters onto another’s land,?Causes anything or anyone to enter onto the land, or?Remains on the land, or permits anything to remain on it.1.Establishing Trespass Trespassers include guests who are asked to leave. A trespasser is liable for property damage. A trespasser assumes the risks of the premises (unless the owner laid a trap to injure a trespasser or had a duty to warn of dangers on the property).2.DamagesA trespasser is liable for property damage. A property owner may be liable for injuries to the trespasser under a reasonable duty of care rule (to post warning signs, for example) or the attractive nuisance doctrine. But a trespasser can be removed by reasonable force.3.Defenses against Trespass to Land?The trespass was warranted, as when one enters to help another in danger.?The so-called owner did not have rights to the property.B.Trespass to Personal PropertyWhen an individual unlawfully harms another’s personal property or otherwise interferes with the owner’s right to exclusive possession and enjoyment, trespass to personal property occurs. The tort may entail acts of damage, dispossession, or both. A complete defense exists if the trespass was warranted.C.ConversionWhen a person wrongfully possesses or uses the personal property of another as if it were theirs, conversion occurs.?Conversion is trespass to personal property more serious in terms of duration and use. Unlawfully taking property is trespass; unlawfully retaining it is conversion.?Believing one is entitled to the property is not a defense. Thus, someone who buys stolen goods is guilty of conversion even if he or she did not know the goods were stolen. The owner can seek their return or damages.Case Synopsis—Case 4.2: Welco Electronics, Inc. v. MoraNicholas Mora used Welco Electronics, Inc.’s credit card to obtain money—more than $370,000—from Welco through charges to Mora’s company AQM. Welco filed a suit in a California state court against Mora, alleging conversion. The court issued a judgment in Welco’s favor. Mora appealed.A state intermediate appellate court affirmed. “Historically, the tort of conversion was limited to tangible property and did not apply to intangible property,” but “modern courts *??*??* have permitted conversion claims against intangible interests. *??*??* The tort of conversion has been adapted to new property rights and modern means of commercial transactions.” The court reasoned that when Mora misappropriated Welco’s credit card and used it, he took part of Welco’s credit balance with the credit card company and the result was an unauthorized transfer to Mora of Welco’s property rights...................................................................................................................................................Notes and QuestionsWhat is PayPal, information and how can it be the subject of a conversion? PayPal provides an intermediary account for online purchases. PayPal charges the seller a fee for its service. Customers fund their PayPal accounts through electronic transfers from their own financial institution (from a checking account, for example, via a debit card or credit card). Customers have the right to control the use of their account Information, which can be used to withdraw funds from their bank accounts. Possession of the debit card, credit card, or PayPal account information is similar to the intangible property interest in a check. The wrongful debiting of funds from a customer's account would interfere with the customer’s right to possess and use those funds, and constitute conversion.Does the holding in this case mean that any transaction involving a credit card that leads to a dispute is subject to a cause of action for conversion? No, the holding in this case does not mean that any transaction involving a credit card that leads to a dispute can be subject to a cause of action for conversion. In this case, the court held that the misappropriation of a credit card that occurred here constituted a theft and a conversion.Other transactions involving credit cards that can lead to disputes occur when persons use credit cards to buy or pay for goods or services. Disputes might arise regarding the quality of the goods, any fault concerning the quality of the service, or the appropriateness of the charge. But a person’s willing use of a credit card to pay for goods or services has no relationship to the circumstances in this case. Here, Welco did not consent to its credit card or its information being used by or on behalf of Mora. This is not a simple failure to pay money owed, which of course would not constitute conversion, nor does it concern a simple overcharge, which also does not constitute conversion.D.Disparagement of PropertyThis occurs when economically injurious falsehoods are made about another’s product or property.?Publication of false information about another’s product, alleging it is not what its seller claims, is slander of quality. Actual damages must be proved. Improper publication may be both slander of quality and defamation.?When publication denies or casts doubt on another’s legal ownership of property, and when this results in financial loss to the owner, slander of title may exist. This is usually done knowingly.IV.Unintentional Torts (Negligence)?Under negligence theory, a tortfeasor neither wishes to bring about the consequences of an act nor believes that they will occur. The actor’s conduct merely creates a risk of the consequences. Without the creation of a risk, there can be no negligence.?The risk must be foreseeable—that is, it must be such that a reasonable person would anticipate it and guard against it. In determining whether the conduct creating the risk was reasonable, courts consider the nature of the possible harm. A very slight risk of a dangerous explosion might be unreasonable; a distinct possibility of burning one’s fingers on a stove might be reasonable.?Negligence requires proof of four elements—1.Duty of care.2.Breach of the duty.3.Causation (the breach must have caused the injury).4.Damages—a legally recognizable injury.A.The Duty of Care and Its BreachNegligence involves the careless performance of a legally required duty or the failure to perform a legally required act. Courts consider the nature of the act, the manner in which it is performed, and the nature of the injury in determining whether a duty is breached.1.The Reasonable Person StandardDuty is measured by a standard of reasonableness. The measure is objective—how would a reasonable person act in the same circumstances? The answer defines the duty: a reasonable person would exercise reasonable care.2.The Duty of Landownersa.Duty to Warn Business Invitees of RisksBusiness firms that invite persons onto their premises usually have a duty to exercise reasonable care to protect their business invitees against foreseeable risks that the owner knew or should have known about.b.Obvious Risks Are an ExceptionObvious risks are an exception, but risks that are obvious to an owner may not be to another party, such as a child.3.The Duty of ProfessionalsAn individual with knowledge, skill, or intelligence superior to that of an ordinary person has a higher standard of care—that which is reasonable in light of those capabilities.B.CausationThe breach of the duty of care must have caused the harm for which recovery is sought.1.Courts Ask Two QuestionsThere must be (1) causation in fact and (2) the act must be the proximate cause of the injury.?If an injury would not have occurred without the breach, there is causation in fact. Causation in fact can usually be determined by the but-for test: But for the wrongful act, the injury would not have occurred. ?Proximate cause is a question not of fact but of law and policy: Is the connection between an act and an injury strong enough to justify imposing liability?2.ForeseeabilityIt would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury so a determination of proximate cause is linked to the concept of foreseeability.C.The Injury Requirement and DamagesWithout an injury (loss, harm, wrong, or invasion of a protected interest), there is nothing to recover. The purpose of damages is to compensate injured parties. To discourage grossly negligent behavior, punitive damages may be awarded.D.Defenses to NegligenceBesides the defenses noted below, a defendant might assert that a plaintiff failed to prove one or more of the required elements for negligence.1.Assumption of Risk?This defense requires that the injured person knew of the risk and voluntarily assumed it. The risk can be assumed by express agreement or implied by the plaintiff’s knowledge of the risk and subsequent conduct.?The defense does not apply in emergency situations or when a statute protects a class of people from specific harm and a member of the class is injured by that harm.Case Synopsis—Case 4.3: Taylor v. Baseball Club of Seattle, L.P.During the pre-game warm-up to a Mariners game, Delinda Taylor was struck in the face by an errantly thrown baseball. To recover for her injuries, she sued the Mariners in a Washington state court, alleging negligence. The Mariners argued that Taylor, a Mariners fan, was familiar with the inherent risk of balls entering the stands, and thus assumed the risk of her injury. The court dismissed the case. Taylor appealed.A state intermediate appellate court affirmed. There was substantial evidence that Taylor was familiar with the game. As a spectator in an unprotected area of seats, she voluntarily undertook the risk associated with being hit by an errant ball thrown during warm-ups before the start of the game. The Mariners had satisfied their duty to protect spectators from balls entering the stands by providing a protective screen behind home plate. Taylor chose not to sit in the protected area...................................................................................................................................................Notes and QuestionsAre there any sports events at which a player, spectator, or other participant might not be held to have assumed the risk of an injury? Are there injuries that a participant would likely not have assumed the risk of? There may not be a sports event at which a participant could avoid an assumption-of-risk defense. There are injuries, however, for which a participant could avoid such a defense. These include any injuries caused by risks that are greater than, or different from, the risks normally associated with the activity.How might the outcome in this case have been avoided? First, the factual consequence—the plaintiff’s injury—might have been avoided if the plaintiff had been paying closer attention to the actions of the players. Second, the cost of that consequence might have been distributed differently if the court had ruled in favor of the plaintiff. This ruling might have been based on the reasoning that the expense to injured individuals would be less if it were spread among all of an event’s participants and sponsors.What is the basis underlying the defense of assumption of risk, and how does that basis support the court’s decision in this case? The basis for the defense of assumption of risk is knowledge and consent—knowing a risk, a party voluntarily consents to it. In this case, the plaintiff was aware of the risk of an errant ball and assumed that risk by choosing to sit where she did.Had the plaintiff prevailed, how might the venues for baseball be different? Fences and backstops might be more common, and spectators and other participants, including vendors, might be relegated to seating farther from the field. It is also possible that fewer games would be played and that increased ticket fees would be charged to cover the additional cost of insurance.Should plaintiffs be required to prove the amount of their damages with certainty and exactitude? Why or why not? Generally, no. Definitive and precise proof of damages is rarely possible, and in fact, is not required. Rough justice in a determination of damages is often the most that can be achieved. The evidence of harm or injury need only furnish a reasonable basis for approximating damages.Additional Cases Addressing this Issue —Assumption of RiskCases involving the defense of assumption of risk against claims of negligence include the following:?Rudzinski v. BB, 2010 WL 2723105 (D.S.C. 2010) (risk of being hit by a fellow golfer swinging his club at high speed was an inherent and inescapable risk posed by golfing, and since the golfer voluntarily encountered this risk through participation in the sport, he assumed any harm flowing from his co-participant's attempts to strike the ball).?Sanchez v. Candia Woods Golf Links, 161 N.H. 201, 13 A.3d 268 (2010) (getting hit with an errant golf ball was a risk inherent in the game of golf, which golfer voluntarily assumed).?Morabito v. MacArthur, 7 A.D.3d 792, 894 N.Y.S.2d 110 (2 Dept. 2010) (soccer player assumed risks of contact with another player during course of playing interscholastic game, precluding liability of opponent and his parents, as well as his school district and its board of education in personal injury action arising from player's collision with opponent during game).?Kalan v. Fox, 187 Ohio App.3d 687, 933 N.E.2d 337 (11 Dist. 2010) (collision between runner attempting to score and catcher was ordinary risk of softball that was reasonably foreseeable).?Deutsch v. Birk, 189 Ohio App.3d 129, 937 N.E.2d 638 (Ohio App. 12 Dist. 2010) (risk of crashing into a bicycle pushed onto trail was a foreseeable and customary risk inherent in the sport or recreational activity of bicycling, and thus a minor child who pushed her bicycle across trail into moving bicyclist’s path was not liable to moving bicyclist).?Bell v. Dean, 5 A.3d 266 (2010) (skier’s injuries, sustained in collision with snowboarder, arose from the general risk of colliding with another skier or snowboarder, and thus, because skier assumed the risk of such a collision, snowboarder owed no duty to protect skier from risk).2.Superseding Cause A superseding intervening force breaks the connection between a wrongful act and an injury.3.Contributory NegligenceIn a few states, contributory negligence absolves the tortfeasor completely if the injured person failed to exercise reasonable care.parative NegligenceIn most states, comparative negligence reduces the amount of the tortfeasor’s liability if the injured person failed to exercise reasonable care.?In a “pure” comparative negligence jurisdiction, a judge or jury assigns a percentage of fault to each responsible party and apportions damages accordingly.?In some states, under a “50 percent” rule, a plaintiff recovers nothing if he or she is determined to have been more than 50 percent at fault. Under a “51 percent” rule, a plaintiff recovers nothing if he or she is determined to have been more than half at fault.E.Special Negligence Doctrines and Statutes1.Res Ipsa LoquiturNegligence may be inferred (and a defendant must prove that he or she was not negligent) if the event causing damage or injury is one that ordinarily does not occur in the absence of negligence—train derailments, falling elevators, and so on. It must be caused by something within the exclusive control of the defendant, and it must not have been due to any act on the part of the injured party.2.Negligence Per SeThis may occur if an individual violates a statute providing for a criminal penalty and that violation causes another to be injured. The injured person must prove that the statute clearly sets out the expected standard of conduct, when and where it is expected, and of whom it is expected.3.“Danger Invites Rescue” DoctrineIf a person commits an act that endangers another, the person committing the act will be liable for any injuries the other party suffers as well as any injuries suffered by a third person attempting to rescue the endangered party.4.Good Samaritan StatutesMost states have Good Samaritan statutes, under which persons who are aided voluntarily by others cannot sue them for negligence.5.Dram Shop ActsIn many states, a tavern owner or bartender may be liable for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served. In some states, statutes impose liability, without proof of negligence, on social hosts (persons hosting parties) for injuries caused by guests who became intoxicated at the hosts’ homes.V.Strict LiabilityUnder the doctrine of strict liability, liability is imposed for reasons other than faultA.Abnormally Dangerous Activities Strict liability is applied to abnormally dangerous activities because of their extreme risk.B.Other Applications of Strict LiabilityStrict liability is imposed on persons who keep dangerous animals for any harm inflicted by the animals. Strict liability is also a theory applicable in product liability cases.Teaching Suggestions1.To illustrate any tort, set out the elements and provide a hypothetical in which one of the elements is missing. This helps students to identify and distinguish the elements in fact situations. For example, point out that to analyze circumstances involving potential negligence students should use a basic duty-breach-causation-injury analysis. If any of these elements is missing, there may be liability but it won’t be on a negligence theory. Possible hypotheticals include:a. Driving down a one-way street in the right direction, at no more than the posted speed limit, Walter hits a teenager, who is injured. The boy had jumped in front of Walter’s car from behind a stone wall to impress his friends by scaring Walter. Walter had a duty to drive his car in a safe manner; Walter’s car struck the boy; the boy was injured. But Walter is not liable because he did not breach the duty to drive with care.b. Driving on, at the next blind spot in the road, Walter honks his horn three times to warn any teenager who may be waiting to jump in front of his car. Two blocks away, an elderly woman believes the horn is an air raid siren and suffers a heart attack. Walter honked his horn; the honking caused the woman’s death. But Walter is not liable because there is no duty not to honk your horn.2.Tort law involves civil liability. This chapter provides an opportunity to emphasize the distinction between civil and criminal liability by providing examples of acts that constitute a tort and a crime, a tort and no crime, a crime and no tort, and no tort and no crime. For instance:a. At a downtown bar, Walter drinks to excess. As he is driving home, at the first intersection, he strikes and injures a pedestrian who was crossing with the light. Walter’s blood alcohol level proves to be twice the legal limit. Walter has committed at least one tort (negligence) and at least one crime (drunk driving).b. Believing he is entitled to Paula’s smartphone, Walter takes it. Walter has committed a tort (conversion) but no crime (because he lacked criminal intent).c. A mugger, gun drawn, sneaks up behind Walter on the street. A police officer seizes the mugger before Walter realizes what is happening. The mugger has committed a crime (attempted robbery) but no tort (because Walter suffered no injury).d. Walter is dying. Paula refuses to donate blood to save him. Paula has committed no tort and no crime.3.A mnemonic device to aid students in remembering the elements of a cause of action in negligence is ABCD.AA duty of care.BBreach of a duty of ausation (the breach of the duty of care must cause an injury).DDamage (injury or harm).Cyberlaw Link Ask students to consider the parameters of tort law in cyberspace. What is its potential and what are its limits? How might the tort of misappropriation be applied in cases of misconduct online? What are some of the tort causes of action that might apply to defective or misleading electronic transfers of information? Is a person who releases a “virus” into cyberspace liable in tort for any damage the virus does?Discussion Questions1.Which torts protect against the intentional interference with persons? Assault. An intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact. Battery. An unexcused, harmful, or offensive physical contact intentionally performed. False imprisonment. The intentional confinement or restraint of another person without justification. Infliction of emotional distress. An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. Defamation. Wrongfully hurting another’s reputation is defamation. (Doing so orally is slander; doing it in writing or in a form of communication that has the potentially harmful qualities characteristic of writing is libel.) Invasion of privacy. Using a person’s name or picture or other likeness for commercial purposes without permission; intruding into an individual’s affairs or seclusion; publishing information that places a person in a false light; publicly disclosing private facts about an individual that an ordinary person would find objectionable. Misrepresentation (fraud). Misstating facts or conditions with knowledge that they are false or with reckless disregard for the truth and an intent to deceive resulting in injury.2.What are defenses to charges of assault and battery? Consent. There is no liability for damage done by an act to which the injured person consented. Self-defense. An individual defending his or her life or physical wellbeing can use whatever force is reasonably necessary to prevent harmful contact. “Whatever force is reasonably necessary” is whatever force the individual believes is about to be used against him or her. Force cannot be used once danger has passed and cannot be used in revenge. Defense of others. An individual can act to defend others who are in danger to the same extent that he or she can act in self-protection. Defense of property. To defend property, individuals can use reasonable force—which does not include force that is likely to cause death or great bodily injury.3.What is the basis for the tort of defamation? The publication of a statement that holds an individual up to contempt, ridicule, or hatred. Publication means that the statements are made to or within the hearing of persons other than the defamed party (statements dictated to a secretary, for example). Republication is also defamatory—thus, a person who repeats defamatory statements is liable.4.What are defenses to charges of wrongful interference with the business rights of others? The interference was permissible. Bona fide competitive behavior is permitted even if it results in the breaking of a contract. Public policy favors free competition. Absent associated illegal activity, a businessperson will not incur liability for negotiating secretly behind a rival’s back, refusing to do business with a competitor, or refusing to deal with third parties until they stop doing business with a rival.5.What is appropriation? The use of one person’s name or likeness by another, without permission and for the benefit of the user, is appropriation. An individual’s right to privacy includes the right to the exclusive use of his or her identity. 6.Which torts protect against the intentional interference with property? Trespass to land. When a person, without permission, enters onto another’s land, or causes anything or anyone to enter onto the land, or remains on the land, or permits anything to remain on it. (Harm to the land is not required.) Trespass to personal property. When an individual unlawfully harms another’s personal property or otherwise interferes with the owner’s right to exclusive possession and enjoyment. Conversion. When the owner or rightful possessor of personal property is deprived of its use (in other words, a trespass to personal property so serious that a converter can be forced to buy the property—unlawfully taking property is trespass; unlawfully retaining it is conversion).7.Should the application of the concept of proximate cause be expanded to allow recovery in more cases, or should it be limited to reduce the frequency and amounts of recovery? Why? The application of the concept of proximate cause should be limited, because these and other tort suits are crippling business and inhibiting the economy for the benefit of lawyers and other persons who “game the system.” The application of the principle of proximate cause should be expanded, because the victims in negligent events often suffer horribly, with sometimes little, if any, other recourse for relief, and negligent actors should not be allowed to avoid liability by “gaming the system.”8.Suppose that George, the owner of a softball park, has a duty to provide a backstop to protect spectators who want the protection against the risk of being hit by a ball. Nikita, a visitor from Eastern Europe, sits in the stands behind the plate where the backstop should be. Nikita has never seen softball, knows nothing about it, and does not understand the danger. During the game, Nikita is struck and injured by a ball. Can Nikita recover from George for the injury? Nikita can recover from George for the injury. Assumption of risk involves the question of what an injured person knew, understood, and was willing to accept. Because Nikita knew nothing about softball, Nikita did not understand the risk and thus Nikita could not have willingly assumed it.9.Under the circumstances described in the previous question, Eldon, another spectator, also sits in the stands behind the plate where the backstop should be. Unlike Nikita, Eldon is fully aware of the risk. During the game, Eldon is struck and injured by a ball. Can Eldon definitely recover from George for the injury? Eldon may not be able to recover from George for the injury, despite George’s violation of the duty to provide protection for spectators. Unlike Nikita in the previous question, Eldon was aware of the risk and voluntarily assumed it.10.Large damages awards in tort litigation have to be paid by someone. If the defendant is insured, then insurance companies foot the bill. Ultimately, though, high insurance rates are passed on to consumers of goods and services in the United States. Consequently, tort reform that reduces the size and number of damages awards ultimately will mean lower costs of goods and services to consumers. The downside of these lower costs, though, might be higher risks of medical malpractice and dangerous products. Do you believe that this trade-off is real? Why or why not? Insurance often covers damages awards in the United States, and the premiums can be adjusted to reflect increased amounts of awards. But insurance premiums can also go up simply to increase the profits of the insurance companies. Such increases may also be passed on to consumers. If damages awards have been curtailed, businesses and consumers would thus be paying higher prices without a trade off. If insurance premiums were lowered to reflect lower damages awards—this seems unlikely, at least in the long run—it is not likely that a business would be willing to take higher risks with dangerous products. The business’s reputation could suffer, and its profits could as easily disappear as if they were paid to insurance companies as premiums. If tort liability is a businessperson’s primary concern, then locations in which damages awards are fewer in number and lower in amount might be appropriate places in which to choose to do business.Considering that punitive damages are intended in part to punish, should a defendant’s financial situation be taken into account in setting the amount? Yes, because the “punishment” might otherwise be disproportionate to the “wrong”—too small in a case involving a large, profitable corporation, or too big in a case involving a smaller business, which might then be left with nothing to compensate others who might be injured. No, because the focus should be on the harm suffered and the reprehensibility of the conduct, not the financial circumstances of the tortfeasor.Activity and Research Assignments1.Have students bring to the class current news articles about events that involve or might ultimately involve tort suits. Ask them to identify the parties to the actions, the tort(s) involved, and their predictions as to the outcomes of the cases.2.News reports of local, national, and international controversies involving the subjects considered in this chapter can often be found and may be used effectively in discussing this material. Events that are frequently widely publicized include competitors’ wrongfully attempting to obtain information and cases involving professional athletes. Have students keep an eye out for these and discuss them in class.3.Break the class into small discussion groups of four or five persons. Assign each group a negligence problem (possibly an end-of-chapter problem). Direct the students to act as jurors, decide the case, and apportion liability according to the system of comparative negligence.Explanation of Selected Footnotes in the TextFootnote 11: The case of New York Times Co. v. Sullivan grew out of an advertisement placed in the New York Times in 1960 to raise money for civil rights causes. Titled “Heed Their Rising Voices,” the ad stated that thousands of African-American students were engaging in nonviolent demonstrations in affirmation of their right to live in dignity. The ad claimed that the students’ efforts to uphold the guarantees of the Constitution and the Bill of Rights were being met by “an unprecedented wave of terror by those who would deny” those guarantees. The ad described a number of events by way of illustration, including the expulsion of students for demonstrating at the Alabama state capitol in Montgomery and the “truckloads of police armed with shotguns and tear gas [that] ringed the Alabama State College campus.” No specific public official was named. The ad asked for funds to support the student movement, the struggle for the right to vote, and the legal defense of Martin Luther King, Jr., who had been indicted for perjury. The ad was signed with the names of sixty-four well-known personalities in public affairs, religion, trade unions, and the arts. L.B. Sullivan, commissioner of the Montgomery police department, claimed that he was implicitly the butt of allegedly libelous charges. In fact, the ad was full of mistakes unrelated to the alleged libel (for example, the students had not been expelled for demonstrating at the capitol, but for demanding service at a lunch counter in the Montgomery County courthouse). Citing the unrelated mistakes, Sullivan’s former employer testified that he would not re-employ Sullivan if he believed “the things that the paper said he did.” Under Alabama law, the statements were found libelous per se on the ground that they injured Sullivan in his reputation, profession, trade, or business, and the jury awarded him $500,000. The Alabama Supreme Court affirmed the decision. The Times appealed. The United States Supreme Court reversed. The Supreme Court ruled that even applications of the law of libel must be made “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.” Only proof of “convincing clarity” that a false and defamatory statement concerning an identifiable official was made with “actual malice” could constitutionally justify an award of damages for defamation of official conduct. The court pointed out that erroneous statements are inevitable in free debate and must be protected if freedom of expression is to have the “breathing space” that it needs to survive.Footnote 16: At Giorgio’s Grill in Hollywood, Florida, as the manager knew, the wait staff and customers threw paper napkins on the floor, and no one picked them up. Because drinks were often spilled, sometimes the napkins were wet. Jane Izquierdo, a customer who knew of the napkin-throwing, slipped and fell, breaking her leg. She filed a suit in a Florida state court against Gyroscope, Inc., the owner of Giorgio’s, alleging negligence. A jury returned a verdict in favor of the defendant, and Izquierdo filed a motion for a new trial, which the court denied. She appealed. In Izquierdo v. Gyroscope, Inc., a state intermediate appellate court reversed and remanded. The court emphasized that the manager admitted the wet napkins were “a hazardous condition.” Izquierdo testified that she slipped, fell down on a wet floor, and found napkins on her shoes. “The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference.” The existence of napkins on the floor was obvious, but this “merely discharge[d] the landowner's duty to warn,” not the duty to maintain the premises in a reasonably safe condition.Can a plaintiff who knows of a dangerous condition also be negligent, and can this negligence be “compared” to the defendant’s negligence to assess liability? Yes. This is the doctrine of comparative negligence. The court in Izquierdo’s case acknowledged, “[A] jury could find that Izquierdo was negligent herself.” This could affect her recovery, but “the record in the present case shows at least some negligence on the part of the defendant.” Thus, “[t]he jury's verdict finding no negligence on the defendant's part is contrary to the manifest weight of the evidence,” warranting a new trial.Should the result in this case have been different if, in all the years that the napkin-throwing tradition existed, no one had ever fallen on them before Izquierdo? No. At the trial in this case, the manager of Giorgio's testified that “[i]n all the years the napkin-throwing tradition has existed, no one has ever fallen on them before Izquierdo’s fall.” The appellate court did not find this persuasive. In fact, if someone had fallen on the napkins before Izquierdo, then she would have had additional support for her argument that the club was negligent. ................
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