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9. Torts 9.1 Introduction LEARNING OBJECTIVES 1. Define torts. 2. Understand intentional torts, and how to defend against an accusation of one. 3. Explore negligence. 4. Explain strict liability and how product liability affects manufacturers. A tort can be understood as a civil wrong to a person or property other than breach of contract. A tort is any legally recognizable injury arising from the conduct (or sometimes failure to act) of persons or corporations. There are several key differences between torts and contracts, which are also different than crimes: Torts | 134 Contract Tort Crime Obligation The parties agree to a contract; which imposes duties on them Civil law imposes duties Legislatures pass laws prohibiting certain conduct Enforcement Party to contract or beneficiary sues for breach of contract Injured party sues for tort claims Government prosecutes Consequences Monetary damages Monetary damages; injunction Criminal conviction may include fine, imprisonment, & restitution Some conduct can be both a crime and a tort. If Allie punches Bentley without provocation, then Allie has committed both the tort of battery and the crime of battery. In the tort case, Bentley could sue Allie in civil court for money damages (typically for his medical bills). That case would be tried based on the civil burden of proof—preponderance of the evidence. That same action, however, could result in Allie being charged with criminal battery. If convicted beyond a reasonable doubt, Allie may have to pay a fine or go to jail. The standard of proof in a criminal case (beyond a reasonable doubt) is far higher than the standard of proof in a civil case (a preponderance of evidence). Therefore, victims of crimes often wait to bring related tort claims against a defendant until after the criminal trial is over. If the defendant is convicted of a crime, it is easier and less expensive to prove liability at a civil trial. Torts can be broadly categorized into three categories, depending on the level of intent demonstrated by the tortfeasor (the person committing the tort). If the tortfeasor acted with intent to cause the damage or harm, then 135 | Torts an intentional tort has occurred. If the tortfeasor didn’t act intentionally but failed to act as a reasonable person, then negligence occurs. Finally, strict liability occurs where the tortfeasor is held responsible regardless of intent. Figure 9.1 Tort Liability Diagram Counselor’s Corner Not every injury or harm gives rise to a legal claim. You can’t sue someone just because your feelings are hurt or something bad happened. Even though you may have been through something harmful, if the law doesn’t recognize the injury as something you can recover for, you don’t have a legal claim. Lawsuits are meant to address really bad injuries or really bad behavior. Many things that drive us crazy when dealing with other people are things that we just have to learn to Torts | 136 deal with. Or resolve in another forum. ~Heather C., attorney 9.2 Intentional Torts In an intentional tort, the tortfeasor intends the consequences of his or her act, or knew with substantial certainty that certain consequences would result. This intent can be transferred. For example, if someone swings a baseball bat at someone else but the person ducks and the bat hits a third person, the person hit is the victim of a tort even if the person swinging the bat had no intention of hitting the person actually injured. It is useful to think of torts based on the type of rights being protected. 137 | Torts Theory of Liability Description Interference with Personal Freedom Assault Causing the apprehension or fear of immediate harmful or offensive contact Battery Application of force that results in harmful or offensive contact with a person’s body False Imprisonment Intentional confinement or restrain of a person’s movements without justification or consent Intentional Infliction of Emotional Distress Intentionally or recklessly causing another person severe emotional distress through extreme or outrageous acts Interference with Property Rights Trespass to Land Unauthorized entry onto land that is visibly enclosed & owned by another Trespass to Personal Property Taking or harming another’s personal property without permission Conversion Wrongful possession or disposition of property as if it were one’s own with the intent to do so permanently Nuisance Condition or situation that interferes with the use or enjoyment of property Interference with Economic Relations Disparagement False & injurious statement that discredits or detracts from the reputation of another’s property, product or business Interference with Contractual Relations Intentional inducement of a party to break an existing contract Interference with Prospective Advantage Intentional interference with a potential business relationship Misappropriation Using another’s property dishonestly for one’s own use Wrongful Communications Defamation Harming the reputation of another by making a false statement Torts | 138 Slander Spoken defamation Libel Written defamation Invasion of Privacy Violating someone’s right to be left alone or to restrict public access to confidential information through: • appropriating the person’s name or likeness; • invasion of physical solitude; • publicly disclosing private facts; or • false light Fraud Intentional misstatement of a material fact that is relied upon by a third party Interference with Personal Freedom Assault is the threat of force on another that causes that person to have a reasonable apprehension or fear of immediate harmful or offensive contact. Actual fear or physical injuries are not required for assault. It is also not necessary for the tortfeasor to intend to cause apprehension or fear. If someone points a realistic-looking toy pistol at a stranger and says “give me all your money” as a joke, it is still assault if a reasonable person would have had apprehension or fear in that situation. The intentional element of assault exists here, because the tortfeasor intended to point the realistic-looking toy at the stranger. Battery is the application of force to another that results in harmful or offensive conduct. It includes any non-consensual touching, even if physical injuries are not present. In battery, the contact or touching does not have to be to the person. Grabbing someone’s clothing or possessions they are holding is battery. Notice that assault and battery are not always present together. Assault can occur without physically touching the victim. Similarly, a surgeon who performs 139 | Torts unwanted surgery or inappropriately touches a patient who is sedated has committed battery but not assault because the patient did not feel fear or apprehension. When someone is sued for assault or battery, several defenses are available. The first is consent. Boxers have consented to being battered when competing. Self-defense and defense of others also may be available defenses, as long as the self-defense is proportionate to the initial force. False imprisonment occurs when someone intentionally confines or restrains another person’s movement or activities without justification. The protected interest is the right to travel and move freely without impediment. This tort requires actual and present confinement. False imprisonment is challenging for retailers and other businesses that interact regularly with the public, such as hotels and restaurants. The shopkeeper’s privilege allows businesses to detain suspected thieves until law enforcement arrives. The detention must be reasonable, however. Store employees must not use excessive force in detaining the suspect, and the justification, manner, and time of the detention must be reasonable. Intentional infliction of emotional distress occurs when a tortfeasor intentionally or recklessly causes another person severe emotional distress through extreme and outrageous acts. A plaintiff has to prove the defendant’s actions would be outrageous to a reasonable member of the community. The standard is objective. It is not enough for the plaintiff to believe the defendant acted outrageously. Although the standard for outrageous conduct is objective, the measurement is made against the particular sensitivities of the plaintiff. Exploiting a known sensitivity in a child, the elderly, or pregnant women can constitute intentional infliction of emotional distress. Businesses must be careful when handling sensitive employment situations to avoid potential Torts | 140