Business Law and The Regulation of Business 10th Edition Mann Solutions Manual

Business Law and the Regulation of
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1
Chapter 7
INTENTIONAL TORTS
A. Harm to the Person d. False Light
1. Battery e. Defenses
2. Assault 3. Misuse of Legal Procedure
3. False Imprisonment C. Harm to Property
4. Infliction of Emotional Distress 1. Real Property
B. Harm to Right of Dignity a. Trespass
1. Defamation b. Nuisance
a. Elements of Defamation 2. Personal Property
b. Defenses to Defamation a. Trespass
2. Invasion of Privacy b. Conversion
a. Appropriation D. Harm to Economic Interests
b. Intrusion 1. Interference with Contractual Relations
c. Public Disclosure of Private Facts 2. Disparagement
3. Fraudulent Misrepresentation
Cases in This Chapter

Philip Morris USA v. Williams Frank B. Hall & Co., Inc. v. Buck
Ferrell v. Mikula White v. Samsung Electronics America, Inc.
Texaco, Inc. v. Pennzoil, Co.
TEACHING NOTES
The law of torts has three principle objectives: (1) to compensate persons who sustain harm or loss from
another’s tortious conduct, (2) to place the cost of compensation on those parties who should bear it, and (3) to
prevent future harm and losses. Compensatory damages compensate the plaintiff for his injury. Punitive
damages punish or make an example of the wrongdoer, in cases where the defendant’s conduct was intentional
and outrageous, showing malice or a fraudulent or evil motive.
As used in tort law, intent means that the defendant desired to bring about the actual consequences of his
physical action or that he believes those consequences are substantially certain.
The most basic elements of intent are:
1. it is a state of mind
2. about consequences of an act (or omission of an act) and not about the act itself
3. and it includes both having in the mind a desire to bring about given consequences, and having in mind
a belief (or knowledge) that given consequences are substantially certain to result from the act.
NOTE: See Figure 7-1 in the textbook.
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2 INTENTIONAL TORTS CHAPTER 7
CASE
Philip Morris v. Williams
FACTS: This lawsuit arises out of the death of Jesse procedures for awarding punitive damages and to amounts
Williams, a heavy cigarette smoker. Williams’ widow forbidden as “grossly excessive.” [Citation] (requiring
represents his estate in this state lawsuit for negligence and judicial review of the size of punitive awards); [citation]
deceit against Philip Morris, the manufacturer of Marlboro, (review must be de novo); [citation] (excessiveness decision
the brand that Williams smoked. A jury found that depends upon the reprehensibility of the defendant’s
Williams’ death was caused by smoking; that Williams conduct, whether the award bears a reasonable relationship
smoked in significant part because he thought it was safe to to the actual and potential harm caused by the defendant to
do so; and that Philip Morris knowingly and falsely led him the plaintiff, and the difference between the award and
to believe that this was so. The jury found that both Philip sanctions “authorized or imposed in comparable cases”);
Morris and Williams were negligent and that Philip Morris [citation] (excessiveness more likely where ratio exceeds
had engaged in deceit. In respect to deceit, it awarded single digits). Because we shall not decide whether the
compensatory damages of about $821,000 along with $79.5 award here at issue is “grossly excessive,” we need now
million in punitive damages. only consider the Constitution’s procedural limitations.
The trial judge subsequently found the $79.5 million In our view, the Constitution’s Due Process Clause forbids
punitive damages award “excessive” and reduced it to $32 a State to use a punitive damages award to punish a
million. Both sides appealed. The Oregon Court of Appeals defendant for injury that it inflicts upon nonparties or those
rejected Philip Morris’ arguments and restored the $79.5 whom they directly represent, i.e., injury that it inflicts upon
million jury award. Subsequently, the Oregon Supreme those who are, essentially, strangers to the litigation. For
Court rejected Philip Morris’ arguments that the trial court one thing, the Due Process Clause prohibits a State from
should have instructed the jury that it could not punish punishing an individual without first providing that
Philip Morris for injury to persons not before the court, and individual with “an opportunity to present every available
that the roughly 100-to-1 ratio of the $79.5 million punitive defense.” [Citation.] Yet a defendant threatened with
damages award to the compensatory damages amount was punishment for injuring a nonparty victim has no
“grossly excessive”. opportunity to defend against the charge, by showing, for
example in a case such as this, that the other victim was not
The U.S. Supreme Court granted Philip Morris certiorari on entitled to damages because he or she knew that smoking
its claims that (1) Oregon had unconstitutionally permitted was dangerous or did not rely upon the defendant’s
it to be punished for harming nonparty victims; and (2) statements to the contrary.
Oregon had in effect disregarded “the constitutional
requirement that punitive damages be reasonably related to ***Finally, we can find no authority supporting the use of
the plaintiff’s harm.” punitive damages awards for the purpose of punishing a
defendant for harming others. We have said that it may be
DECISION: The Oregon Supreme Court’s judgment is appropriate to consider the reasonableness of a punitive
vacated, and the case is remanded. damages award in light of the potential harm the
OPINION: BREYER, J. This Court has long made clear defendant’s conduct could have caused. But we have made
that “punitive damages may properly be imposed to further clear that the potential harm at issue was harm potentially
a State’s legitimate interests in punishing unlawful conduct caused the plaintiff. [Citation] (“We have been reluctant to
and deterring its repetition.” [Citations.] At the same time, identify concrete constitutional limits on the ratio between
we have emphasized the need to avoid an arbitrary harm, or potential harm, to the plaintiff and the punitive
determination of an award’s amount. Unless a State insists damages award”) ***
upon proper standards that will cabin the jury’s *** Evidence of actual harm to nonparties can help to show
discretionary authority, its punitive damages system may that the conduct that harmed the plaintiff also posed a
deprive a defendant of “fair notice . . . of the severity of the substantial risk of harm to the general public, and so was
penalty that a State may impose,” [citation]; it may threaten particularly reprehensible—although counsel may argue in
“arbitrary punishments,” i.e., punishments that reflect not a particular case that conduct resulting in no harm to others
an “application of law” but “a decisionmaker’s caprice,” nonetheless posed a grave risk to the public, or the
[citation]; and, where the amounts are sufficiently large, it converse. Yet for the reasons given above, a jury may not
may impose one State’s (or one jury’s) “policy choice,” say go further than this and use a punitive damages verdict to
as to the conditions under which (or even whether) certain punish a defendant directly on account of harms it is alleged
products can be sold, upon “neighboring States” with to have visited on nonparties.
different public policies, [citation].
*** We therefore conclude that the Due Process Clause
For these and similar reasons, this Court has found that the requires States to provide assurance that juries are not
Constitution imposes certain limits, in respect both to asking the wrong question, i.e., seeking, not simply to
CHAPTER 7 INTENTIONAL TORTS 3
determine reprehensibility, but also to punish for harm defendant for harm to nonparties.” [Citation.]
caused strangers. ***
*** As the preceding discussion makes clear, we believe that
The instruction that Philip Morris said the trial court should the Oregon Supreme Court applied the wrong constitutional
have given distinguishes between using harm to others as standard when considering Philip Morris’ appeal. We
part of the “reasonable relationship” equation (which it remand this case so that the Oregon Supreme Court can
would allow) and using it directly as a basis for punishment. apply the standard we have set forth. Because the
The instruction asked the trial court to tell the jury that “you application of this standard may lead to the need for a new
may consider the extent of harm suffered by others in trial, or a change in the level of the punitive damages
determining what [the] reasonable relationship is” between award, we shall not consider whether the award is
Philip Morris’ punishable misconduct and harm caused to constitutionally “grossly excessive.”
Jesse Williams, “[but] you are not to punish the defendant INTERPRETATION: In most states, a jury may award
for the impact of its alleged misconduct on other persons, punitive damages if a defendant’s tortious conduct is
who may bring lawsuits of their own in which other juries intentional and outrageous, but the amount of damages must
can resolve their claims . . . .” [Citation.] And as the Oregon not be grossly excessive and may not punish the defendant
Supreme Court explicitly recognized, Philip Morris argued for harm caused to parties other than the plaintiff.
that the Constitution “prohibits the state, acting through a
civil jury, from using punitive damages to punish a
Case Questions
1. What is the constitutional issue in this case?
2. What is the function of punitive damages?
Ethical Question: Is it ethical to impose punishment in a civil case without the protections provided to
defendants in a criminal proceeding? Explain.
Critical Thinking Question: Can juries be adequately instructed to make the distinction required by the U.S.
Supreme Court? Explain.
*** Chapter Objective ***

Identify and describe the torts that protect against intentional harm to personal rights.
A. HARM TO THE PERSON

Battery
Consists of intentional infliction of harmful or offensive bodily contact. Such contact does not have to be with
the person’s body; it may be touching the individual’s clothing or some object that is being held.
Assault
Is essentially the intentional creation of a mental impression that an offensive or harmful bodily contact is about
to occur. The intended victim must be aware of the imminent danger.
False Imprisonment
Is the intentional interference with a person’s freedom of movement by unlawful confinement. The person must
be aware of the confinement or harmed by it. Mere obstruction of someone’s freedom of movement is
insufficient so long as there is a reasonable, alternative exit available.
Infliction of Emotional Distress

Consists of outrageous conduct that falls well beyond the bounds of decency and which causes the person to
suffer severe mental and emotional harm. Many courts allow recovery even if no physical injury occurs.
CASE
Ferrell v. Mikula
FACTS: On Friday night, August 6, 2006, 18-year old 24. He could have tried to obtain more information to
Racquel Ferrell and 13-year-old Kristie Ferrell went to Ruby determine whether the people in the car he pointed out were
Tuesday. After they ate and paid their bill, the girls left the the people who had been sitting at Table 24, but did not do
restaurant, got into their car, and drove out of the parking lot. so.
As they entered the highway, Racquel noticed a black truck Racquel Ferrell and the parents of Kristie Ferrell sued Ruby
following her very closely with its headlights on high. A Tuesday, Inc. and its manager, Christian Mikula, for false
marked police car by the side of the road pulled onto the imprisonment and intentional infliction of emotional distress.
highway between the girls’ car and the following truck and The trial court granted the defendants’ motion for summary
pulled the car over. The officer pulled Racquel out of the car, judgment on all counts. The Ferrells appealed.
placed her in handcuffs, and put her in the back seat of his
patrol car. Another officer removed Kristie from the car, DECISION: Summary judgment on the claim for intentional
placed her in handcuffs, and put her in the back of another infliction of emotional distress is affirmed; summary
patrol car. judgment on the claim for false imprisonment is reversed.
All of the police officers gathered to talk to the driver of the OPINION: Barnes, C. J. In this case, the Ferrells were
truck that had been following the Ferrells, who turned out to detained without a warrant, and thus have a claim for false
be a uniformed off-duty police officer working as a security imprisonment ***. [Citation.] “False imprisonment is the
guard for Ruby Tuesday. The officer who arrested Racquel unlawful detention of the person of another, for any length of
returned to the patrol car where she was being held and told time, whereby such person is deprived of his personal
her if she had not paid her Ruby Tuesday bill she was going liberty.” [Citation.] “The only essential elements of the action
to jail. She protested, and the officer conferred again with the being the detention and its unlawfulness, malice and the want
other officers, then returned to the car and said, “It was a of probable cause need not be shown.” [Citations.]
mistake.” He explained that the manager at the restaurant had The evidence in this case clearly establishes that the Ferrells
sent the off-duty officer after them because he said the girls were detained. Although “ ‘imprisonment’ was originally
had not paid their bill, but they did not fit the description of intended to have meant stone walls and iron bars, ... under
the two people who had walked out without paying. The modern tort law an individual may be imprisoned when his
officers removed the handcuffs from Racquel and Kristie and movements are restrained in the open street, or in a traveling
returned them to their car. After asking for Racquel’s driver’s automobile.” [Citation.] Ruby Tuesday does not argue
license and obtaining information about both girls, the officer otherwise, but instead argues that the evidence established
told them they were free to go. sufficient probable cause and the plaintiffs failed to establish
Christian Mikula had been an assistant manager for about a that Mikula acted with malice. But malice is not an element
month, and was the only manager at Ruby Tuesday that of false imprisonment, ***. Further, *** the mere existence
night. One of the servers, Robert, reported that his customers of probable cause standing alone has no real defensive
at Table 24 had a complaint, so Mikula talked to the couple bearing on the issue of liability [for false imprisonment].
and told them he would “take care of” the food item in [Citation.]
question. The customers were a man and a woman in their ***
late 20s to early 30s. Mikula left the table to discuss the Arresting or procuring the arrest of a person without a
matter with Robert, after which server Aaron told Mikula that warrant constitutes a tort, “unless he can justify under some
the patrons at Table 24 had left without paying. Mikula of the exceptions in which arrest and imprisonment without a
looked at the table, confirmed they had not left any money warrant are permitted by law, [citations]”. Generally, one
for the bill, and went out the main entrance. He saw a car “who causes or directs the arrest of another by an officer
pulling out of the parking lot, and said to the off-duty officer, without a warrant may be held liable for false imprisonment,
“Hey, I think they just left without paying.”The officer said, in the absence of justification, and the burden of proving that
“Who, them?” Mikula said, “I think so,” and the officer got such imprisonment lies within an exception rests upon the
up and went to his vehicle. person ... causing the imprisonment.”[Citations.] ***
Mikula knew the officer was going to follow the people in Accordingly, as the Ferrells have established an unlawful
the car and would stop them, but did not ask the officer if he detention, the next issue to consider is whether Mikula
had seen who got into the car. He did not give the officer a “caused” the arrest. Whether a party is potentially liable for
description of the people at Table 24, and did not know the false imprisonment by “directly or indirectly urg[ing] a law
race, age, gender, or number of people in the car being enforcement official to begin criminal proceedings” or is not
followed. He did not know if there were people in any of the liable because he “merely relates facts to an official who then
other cars in the parking lot. He did not ask any other people makes an independent decision to arrest” is a factual question
in the restaurant if they had seen the people at Table 24 leave for the jury. [Citation.] The party need not expressly request
the building, which had two exits. He did not know how long an arrest, but may be liable if his conduct and acts “procured
the people had been gone before Aaron told him they left, or and directed the arrest.” [Citation.]
whether another customer had picked up money from Table
*** recitation of the facts to an average member of the

community would arouse his resentment against the actor,
Here, Mikula told the officer that the car leaving the parking and lead him to exclaim, “Outrageous!”
lot contained people who left without paying for their food,
although he did not know or try to ascertain who was in the [Citation.]
car. He also knew the officer was going to detain the people In this case, the action upon which the Ferrells base their
in the car and could have tried to stop him, but made no emotional distress claim is being stopped by the police,
attempt to do so. Accordingly, the trial court erred in granting placed in handcuffs, and held in a patrol car for a short period
summary judgment to the defendants on the plaintiffs’ false of time before being released. While this incident was
imprisonment claim. unfortunate, the question raised by the evidence was whether
*** the restaurant manager’s actions were negligent, not whether
he acted maliciously or his conduct was extreme, atrocious,
The Ferrells also contend that the trial court erred in granting or utterly intolerable. Accordingly, the trial court did not err
summary judgment to the defendants on their claim for in granting the defendants’ motion for summary judgment on
intentional infliction of emotional distress. The elements of a the Ferrells’ claim for intentional infliction of emotional
cause of action for intentional infliction of emotional distress distress.
are: (1) intentional or reckless conduct; (2) that is extreme
and outrageous; (3) a causal connection between the INTERPRETATION: False imprisonment is the unlawful
wrongful conduct and the emotional distress; and (4) severe detention of the person of another, for any length of time,
emotional distress. [Citation.] Further, whereby such person is deprived of his personal liberty
unless there is a legally recognized justification. Liability is
[l]iability for this tort has been found only where the conduct imposed under the tort of infliction of emotional distress for
has been so outrageous in character, and so extreme in intentional or reckless conduct that is extreme and outrageous
degree, as to go beyond all possible bounds of decency, and and that causes severe emotional distress.
to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the
Case Questions
1. Define the elements of false imprisonment and apply them to this case.
2. Was there any point at which Racquel and Kristie were confined and not free to leave?
3. Was the detention conducted in a reasonable manner?
Ethical Question: Does the manager’s (alleged) failure to verify the occupants of the Ferrells’ car before
sending the security guard after them make any difference in this case? Explain.
Critical Thinking Question: Do you agree that the manager’s conduct was negligent at most and thus not
reckless?
C. HARM TO RIGHT OF DIGNITY

Defamation
Consists of either an oral or written false communication that causes injury to a person’s reputation.
Elements of Defamation —The burden of proof is on the plaintiff to prove the falsity of the defamatory
statement. The communication must be published, which means that it must be communicated to a third party.
Oral communications are referred to as slander; written communications as libel. Truth is a complete defense
to defamation.
CASE
Frank B. Hall & Co., Inc. v. Buck
Facts: On June 1, 1976, Larry W. Buck, an established being reduced because of his failure to generate sufficient
salesman in the insurance business, began working for income for the firm. On March 31, 1977, Kaliff and Lester
Frank B. Hall & Co. In the course of the ensuing months, Eckert, Hall's office manager, fired Buck. Buck was unable
Buck brought several major accounts to Hall and produced to procure subsequent employment with another insurance
substantial commission income for the firm. In October firm. He hired an investigator, Lloyd Barber, to discover the
1976, Mendel Kaliff, then president of Frank B. Hall & Co. true reasons for his dismissal and for his inability to find
of Texas, informed Buck that his salary and benefits were other employment.
Barber contacted Kaliff, Eckert, and Virginia Hilley, a Hall defamed is a publication, unless the communication is
employee, and told them he was an investigator and was invited by the person defamed or his agent. Restatement §
seeking information about Buck's employment with the 577 comment e. We have already determined that the
firm. Barber conducted tape-recorded interviews with the evidence is sufficient to show that Buck did not know what
three in September and October of 1977. Kaliff accused Kaliff, Eckert or Hilley would say and that he did not
Buck of being disruptive, untrustworthy, paranoid, hostile, procure the defamatory statements to create a lawsuit. Thus,
untruthful, and of padding his expense account. Eckert the fact that Barber may have been acting at Buck’s request
referred to Buck as "a zero" and a "classical sociopath" who is not fatal to Buck’s cause of action. There is absolutely no
was ruthless, irrational, and disliked by other employees. proof that Barber induced Kaliff, Eckert or Hilley to make
Hilley stated that any of the defamatory comments.***
Buck could have been charged with theft for certain When an ambiguity exists, a fact issue is presented. The
materials he brought with him from his former employer to court, by submission of proper fact issues, should let the
Hall. Buck sued Hall for damages for defamation and was jury render its verdict on whether the statements were fairly
awarded over $1.9 million by a jury -- $605,000 for actual susceptible to the construction placed thereon by the
damages and $1,300,000 for punitive damages. Hall then plaintiff. [Citation.] Here, the jury found (1) Eckert made a
brought this appeal. statement calculated to convey that Buck had been
terminated because of serious misconduct; (2) the statement
Decision: Judgment for Buck affirmed. was slanderous or libelous; (3) the statement was made with
Opinion: Junell, J. Any act wherein the defamatory matter malice; (4) the statement was published; and (5) damage
is intentionally or negligently communicated to a third directly resulted from the statement. The jury also found the
person is a publication. In the case of slander, the act is statements were not substantially true. The jury thus
usually the speaking of the words. Restatement (Second) determined that these statements, which were capable of a
Torts § 577 comment a (1977). There is ample support in defamatory meaning, were understood as such by
the record to show that these individuals intentionally Barber.***
communicated disparaging remarks to a third person. The We hold that the evidence supports the award of actual
jury was instructed that “Publication means to communicate damages and the amount awarded is not manifestly unjust.
defamatory words to some third person in such a way that Furthermore, in responding to the issue on exemplary
he understands the words to be defamatory A statement is damages, the jury was instructed that exemplary damages
not published if it was unauthorized, invited or procured by must be based on a finding that Hall “acted with ill will, bad
Buck and if Buck knew in advance the contents of the intent, malice or gross disregard to the rights of Buck.”
invited communication.” In response to special issues, the Although there is no fixed ratio between exemplary and
jury found that the slanderous statements were made and actual damages, exemplary damages must be reasonably
published to Barber.*** apportioned to the actual damages sustained. [Citation.]
A defamer cannot escape liability by showing that, although Because of the actual damages [$605,000] and the abundant
he desired to defame the plaintiff, he did not desire to evidence of malice, we hold that the award of punitive
defame him to the person to whom he in fact intentionally damages [$1,300,000] was not unreasonable. ***
published the defamatory communication. The publication Interpretation: The key elements of defamation are that
is complete although the publisher is mistaken as to the the statements made are false, injure the plaintiff’s
identity of the person to whom the publication is made. reputation, and are published.
Restatement (Second) of Torts § 577 comment l (1977).
Likewise, communication to an agent of the person
Case Questions
1. Define “publication” as it is used in regard to defamation. How does this definition differ from the
conventional definition of publication, for example, with regard to books? What constituted publication in
this case?
2. Under what circumstances would the statements of opinion have been held to be non-defamatory?
3. If Buck made the following statement: “Barber, collect all the information you can because I want to sue that
company into bankruptcy,” would the outcome have been altered?
Ethical Question: Did Hall’s employees act ethically? Did Buck act ethically in hiring an investigator to obtain
the information? Explain.
Critical Thinking Question: Should a company respond to inquiries for information about former or current
employees? Explain.
Explain the application of the various privileges to defamation suits and how they are affected
by whether the plaintiff is a (a) public figure, (b) public official, or (c) private person.
Defenses to Defamation — A privilege is a legal defense to what would otherwise be defamation; it provides
immunity from liability when the defamation furthers a societal interest of greater importance than the injury
caused by it. Three kinds of privilege apply to defamation:
Absolute privilege protects the defendant regardless of motive or intent. It has been confined to those few
situations where public policy clearly favors complete freedom of speech and includes: (1) statements made by
participants regarding a judicial proceeding; (2) statements made by members of Congress on the floor of
Congress; (3) statements made by certain executive officers while performing their governmental duty; and (4)
statements made between spouses when they are alone.
Conditional privilege depends on the proper use of the privilege. A person has a conditional privilege to
publish defamatory matter to protect his own legitimate interests. It also extends to cases where the publisher
and the recipient have a common interest, as with letters of reference. It can be forfeited by improper use.
Constitutional privilege arises from the First Amendment to the Constitution, which guarantees freedom of
speech and freedom of the press. This extends to the right to comment about public officials or public figures
so long as it is done without malice. A private individual bringing a defamation suit need not prove malice as
negligence is sufficient.
Congress enacted Section 230 of the Communications Decency Act of 1996 (CDA) granting immunity to
Internet service providers (ISPs) from liability for defamation when publishing information originating from a
third party. A court has interpreted this provision of the CDA as immunizing an ISP that refused to remove or
retract an allegedly defamatory posting made on its bulletin board.

Describe and distinguish the four torts comprising invasion of privacy.
Invasion of Privacy
Consists of four separate torts: (a) appropriation of a person’s name or likeness; (b) unreasonable intrusion on
the seclusion of another; (c) unreasonable public disclosure of private facts; and (d) unreasonable publicity that
places another in false light in the public eye.
Appropriation — of someone’s name or likeness for personal benefit is not permitted. Individuals have a right
to exclusive use of their own name and identity for pecuniary gain. Also called right of publicity.
CASE
White v. Samsung Electronics
Facts: Plaintiff, Vanna White, is the hostess of “Wheel of this claim.
Fortune,” one of the most popular game shows in Decision: Judgment reversed.
television history. Samsung Electronics and David
Deutsch Associates ran an advertisement for video Opinion: Goodwin, J.White argues that the district court
cassette recorders which depicted a robot dressed in a wig, erred in granting summary judgment to defendants on
gown, and jewelry chosen to resemble White’s hair and White’s common law right of publicity claim. In
dress. The robot was posed in a stance, for which White is Eastwood v. Superior Court, [citation], the California
famous, next to a game board, which is instantly court of appeal stated that the common law right of
recognizable as the Wheel of Fortune game show set. The publicity cause of action “may be pleaded by alleging (1)
caption of the ad read: “Longest-running game show. the defendant’s use of the plaintiff’s identity; (2) the
2012 A.D.” Defendants referred to the ad as the “Vanna appropriation of plaintiff’s name or likeness to
White” ad. White neither consented to the ads nor was defendant’s advantage, commercially or otherwise; (3)
she paid for them. White sued Samsung and Deutsch lack of consent, and (4) resulting injury.” [Citation.] The
under the California common law right of publicity. The district court dismissed White’s claim for failure to satisfy
district court granted summary judgment against White on Eastwood’s second prong, reasoning that defendants had
not appropriated White’s “name or likeness” with their publicity *** too narrow” and held that the right was
robot ad. We agree that the robot ad did not make use of implicated because the defendant had appropriated
White’s name or likeness. However, the common law Carson’s identity by using, inter alia, the phrase “Here’s
right of publicity is not so confined. Johnny.” [Citation.]
The Eastwood court did not hold that the right of publicity These cases teach not only that the common law right of
cause of action could be pleaded only by alleging an publicity reaches means of appropriation other than name
appropriation of name or likeness. Eastwood involved an or likeness, but that the specific means of appropriation
unauthorized use of photographs of Clint Eastwood and of are relevant only for determining whether the defendant
his name. Accordingly, the Eastwood court had no has in fact appropriated the plaintiff’s identity. The right
occasion to consider the extent beyond the use of name or of publicity does not require that appropriations of identity
likeness to which the right of publicity reaches. That court be accomplished through particular means to be
held only that the right of publicity cause of action “may actionable. It is noteworthy that the Midler and Carson
be” pleaded by alleging, inter alia, appropriation of name defendants not only avoided using the plaintiff’s name or
or likeness, not that the action may be pleaded only in likeness, but they also avoided appropriating the
those terms. celebrity’s voice, signature, and photograph. The
The “name or likeness” formulation referred to in photograph in Motschenbacher did include the plaintiff,
Eastwood originated not as an element of the right of but because the plaintiff was not visible the driver could
publicity cause of action, but as a description of the types have been an actor or dummy and the analysis in the case
of cases in which the cause of action had been recognized. would have been the same.
The source of this formulation is Prosser, Privacy, 48 Although the defendants in these cases avoided the most
Cal.L.Rev. 383, 401–07 (1960), one of the earliest and obvious means of appropriating the plaintiffs’ identities,
most enduring articulations of the common law right of each of their actions directly implicated the commercial
publicity cause of action. In looking at the case law to that interests which the right of publicity is designed to protect.
point, Prosser recognized that right of publicity cases As the Carson court explained:
involved one of two basic factual scenarios: name [t]he right of publicity has developed to protect the
appropriation, and picture or other likeness appropriation. commercial interest of celebrities in their identities. The
[Citation.] theory of the right is that a celebrity’s identity can be
Even though Prosser focused on appropriations of name or valuable in the promotion of products, and the celebrity
likeness in discussing the right of publicity, he noted that has an interest that may be protected from the
“[i]t is not impossible that there might be appropriation of unauthorized commercial exploitation of that identity ***
the plaintiff’s identity, as by impersonation, without use of If the celebrity’s identity is commercially exploited, there
either his name of his likeness, and that this would be an has been an invasion of his right whether or not his “name
invasion of his right of privacy.” [Citation.] At the time or likeness” is used.
Prosser wrote, he noted however, that “[n]o such case [Citation.] It is not important how the defendant has
appears to have arisen.” [Citation.] appropriated the plaintiff’s identity, but whether the
Since Prosser’s early formulation, the case law has borne defendant has done so. Motschenbacher, Midler, and
out his insight that the right of publicity is not limited to Carson teach the impossibility of treating the right of
the appropriation of name or likeness. In Motschenbacher publicity as guarding only against a laundry list of specific
v. R.J. Reynolds Tobacco Co., [citation], the defendant had means of appropriating identity. A rule which says that the
used a photograph of the plaintiff’s race car in a television right of publicity can be infringed only through the use of
commercial. Although the plaintiff appeared driving the nine different methods of appropriating identity merely
car in the photograph, his features were not visible. Even challenges the clever advertising strategist to come up
though the defendant had not appropriated the plaintiff’s with the tenth.
name or likeness, this court held that plaintiff’s California Indeed, if we treated the means of appropriation as
right of publicity claim should reach the jury. dispositive in our analysis of the right of publicity, we
In Midler, this court held that, even though the defendants would not only weaken the right but effectively eviscerate
had not used Midler’s name or likeness, Midler had stated it. The right would fail to protect those plaintiffs most in
a claim for violation of her California common law right need of its protection. Advertisers use celebrities to
of publicity because “the defendants *** for their own promote their products. The more popular the celebrity,
profit in selling their product did appropriate part of her the greater the number of people who recognize her, and
identity” by using a Midler sound-alike. [Citation.] the greater the visibility for the product. The identities of
In Carson v. Here’s Johnny Portable Toilets, Inc., the most popular celebrities are not only the most
[citation], the defendant had marketed portable toilets attractive for advertisers, but also the easiest to evoke
under the brand name “Here’s Johnny”—Johnny Carson’s without resorting to obvious means such as name,
signature “Tonight Show” introduction—without Carson’s likeness, or voice.
permission. The district court had dismissed Carson’s Consider a hypothetical advertisement which depicts a
Michigan common law right of publicity claim because mechanical robot with male features, an African-
the defendants had not used Carson’s “name or likeness.” American complexion, and a bald head. The robot is
[Citation.] In reversing the district court, the sixth circuit wearing black hightop Air Jordan basketball sneakers, and
found “the district court’s conception of the right of a red basketball uniform with black trim, baggy shorts,
and the number 23 (though not revealing “Bulls” or turns letters, and does this on the Wheel of Fortune game
“Jordan” lettering). The ad depicts the robot dunking a show. She is the only one. Indeed, defendants themselves
basketball one-handed, stiff-armed, legs extended like referred to their ad as the “Vanna White” ad. We are not
open scissors, and tongue hanging out. Now envision that surprised.
this ad is run on television during professional basketball Television and other media create marketable celebrity
games. Considered individually, the robot’s physical identity value. Considerable energy and ingenuity are
attributes, its dress, and its stance tells us little. Taken expended by those who have achieved celebrity value to
together, they lead to the only conclusion that any sports exploit it for profit. The law protects the celebrity’s sole
viewer who has registered a discernible pulse in the past right to exploit this value whether the celebrity has
five years would reach: the ad is about Michael Jordan. achieved her fame out of rare ability, dumb luck, or a
Viewed separately, the individual aspects of the combination thereof. We decline Samsung and Deutsch’s
advertisement in the present case say little. Viewed invitation to permit the evisceration of the common law
together, they leave little doubt about the celebrity the ad right of publicity through means as facile as those in this
is meant to depict. The female shaped robot is wearing a case. Because White has alleged facts showing that
long gown, blond wig, and large jewelry. Vanna White Samsung and Deutsch had appropriated her identity, the
dresses exactly like this at times, but so do many other district court erred by rejecting, on summary judgment,
women. The robot is in the process of turning a block White’s common law right of publicity claim.
letter on a game-board. Vanna White dresses like this Interpretation: The tort of appropriation protects a
while turning letters on a game-board but perhaps person’s exclusive right to exploit the value of her
similarly attired Scrabble-playing women do this as well. identity.
The robot is standing on what looks to be the Wheel of
Fortune game show set. Vanna White dresses like this,
Case Questions
1. Does the tort of appropriation protect only a person’s name or likeness?
2. What are the elements of this tort?
3. What interests are protected by this tort? How was Vanna White harmed by the defendant?
Ethical Question: Did Samsung act ethically? Explain.
Critical Thinking Question: What are the interests protected by this tort?
Intrusion — concerns the unreasonable and highly offensive interference with a person’s solitude or seclusion.
It applies to places and events or occurrences where the individual has a heightened right of privacy on which
the wrongdoer intrudes, such as unauthorized entry into home or eavesdropping on a private conversation.
Information contained in public records is not covered.
Public Disclosure of Private Facts — applies where private, though true, facts about another are publicized.
“Publicized” means the private facts must be communicated to the public at large, whereas publication is
communication to even a single third party.
False Light — involves publicity that creates an untruthful public impression. There must be either knowledge
of the untruthfulness or a reckless disregard of the truth. Again, publicity and not merely publication is
required.
Defenses — absolute, conditional, and constitutional privilege apply to the publication of any matter that is an
invasion of privacy to the same extent as they do to defamation.
Misuse of Legal Procedure

Is comprised of three torts, each of which protects an individual from being subjected to unjustifiable litigation:
Malicious Prosecution — bringing a criminal proceeding without probable cause, for an improper purpose,
resulting in a finding of not guilty.
Wrongful Civil Proceedings — like malicious prosecution, except in a civil suit.
Abuse of Process — use of legal proceedings for purposes other than their intended purposes, even if there is
probable cause.
Identify and describe the torts that protect against harm to property.
C. HARM TO PROPERTY
Real Property
Real property is land and anything attached to it, such as buildings, trees, and minerals. The possessor of land
has the right to its exclusive use and quiet enjoyment.
Trespass — A person is liable for trespass to real property if he intentionally (1) enters or remains on land in
the possession of another; (2) causes a thing or a third person to do so; or (3) fails to remove from the land a
thing that he is under a duty to remove. Liability exists even though no actual damage occurs. Mistake is no
defense. A trespass may be committed on, beneath, or above the surface of the land.
Nuisance — A nontrespassory invasion of another’s interest in the use and private enjoyment of land.
Nuisance does not require interference with another’s right to exclusive possession of land. It imposes liability
for significant and unreasonable harm to another’s use or enjoyment of land such as by the emission of
unpleasant odors, smoke, dust, gas, or pollutants.
Personal Property
Personal property is any type of property other than an interest in land; protected interests include the retention
of possession of the property, the physical condition and usability at the present time, and the property’s
availability for use in the future.
Trespass — Trespass to personal property consists of the intentional dispossession or unauthorized use of the
personal property of another. For trespass, the owner recovers damages for the actual harm to the property or
for loss of possession.
Conversion — Conversion is the intentional exercise of dominion or control over another’s personal property
that so seriously interferes with the other’s right of control as to justly require the payment of full value for the
property. All conversions are trespasses, but not all trespasses are conversion.
D. HARM TO ECONOMIC INTERESTS

Economic interests include a person’s existing and prospective contractual relations, business reputation, name
and likeness, and freedom from deception.

Distinguish among interference with contractual relations, disparagement, and fraudulent misrepresentation.
Interference with Contractual Relations

An improper interference aimed at inducing a party to a contract not to perform. Liability requires that a person
act with the purpose of interfering with another’s contract and with the knowledge that interference is
substantially certain to occur as a result of her actions.
CASE
Texaco, Inc. v. Pennzoil Co.
Facts: Pennzoil negotiated with Gordon Getty and the J. We find that an inference could arise that Texaco had some
Paul Getty Museum over the purchase by Pennzoil of all the knowledge of Pennzoil’s agreement with the Getty entities,
Getty Oil stock held by each. Gordon Getty, who was also a given the evidence of Texaco’s detailed studies of the
director of Getty Oil, held about 40.2 percent of the Pennzoil plan, its knowledge that some members of the
outstanding shares of Getty Oil. The Museum held 11.8 Getty board were not happy with Pennzoil’s price, and its
percent. On January 2, a Memorandum of Agreement was subsequent formulation of strategy to “stop the [Pennzoil]
drafted, setting forth the terms reached by Pennzoil, Gordon train” ***
Getty, and the Museum. After increasing the offering price ***
to $110 per share plus a $5 "stub" or bonus, the Board of
Directors of Getty Oil voted on January 3 to accept the A necessary element of the plaintiff’s cause of action is a
Pennzoil deal. Accordingly, on January 4 both Getty Oil showing that the defendant took an active part in persuading
and Pennzoil issued press releases, announcing an a party to a contract to breach it. [Citation.] Merely entering
agreement in principle on the terms of the Memorandum of into a contract with a party with the knowledge of that
Agreement but at the higher price. party’s contractual obligations to someone else is not the
same as inducing a breach. [Citation.] It is necessary that
Having learned of the impending sale of Getty Oil stock to there be some act of interference or of persuading a party to
Pennzoil, Texaco hurriedly called several in-house breach, for example by offering better terms or other
meetings, and hired an investment banker as well, to incentives, for tort liability to arise. [Citations.] The issue of
determine a feasible price range for acquiring Getty Oil. On whether a defendant affirmatively took steps to induce the
January 5, Texaco decided on $125 per share and breach of an existing contract is a question of fact for the
authorized its officers to take any steps necessary to jury. [Citation.]
conclude a deal. Texaco met first with a lawyer for the
Museum, then with Gordon Getty. Texaco stressed to Getty ***
that if he hesitated in selling his shares, he might be "locked The evidence discussed above on Texaco’s calculated
out" in a minority position. On January 6 the Getty Oil formulation and implementation of its ideal strategy to
Board of Directors voted to withdraw from the Pennzoil acquire Getty is also inconsistent with its contention that it
deal and unanimously voted to accept the $125 per share was merely the passive target of Getty’s aggressive
Texaco offer. Pennzoil sued and won an award of $7.53 solicitation campaign and did nothing more than to accept
billion in compensatory damages and $3 billion in punitive terms that Getty Oil and the Museum had proposed. The
damages based on tortious interference with a contract. evidence showed that Texaco knew it had to act quickly,
Texaco appealed. and that it had “24 hours” to “stop the train.” Texaco’s
Decision: Judgment for Pennzoil. strategy was to approach the Museum first, through its “key
person” Lipton, to obtain the Museum’s shares, and then to
Opinion: Warren, J. New York law requires knowledge by “talk to Gordon.” It knew that the Trust instrument
a defendant of the existence of contractual rights as an permitted Gordon Getty to sell the Trust shares only to
element of the tort of inducing a breach of that contract. avoid a loss, and it knew of the trustee’s fear of being left in
[Citation.] However, the defendant need not have full a powerless minority ownership position at Getty Oil.
knowledge of all the detailed terms of the contract. Texaco notes indicated a deliberate strategy to “create
[Citations.] concern that he will take a loss;” “if there’s a tender offer
The element of knowledge by the defendant is a question of and Gordon doesn’t tender, then he could wind up with
fact, and proof may be predicated on circumstantial paper”; and “pressure.” This evidence contradicts the
evidence. [Citation.] Since there was no direct evidence of contention that Texaco passively accepted a deal proposed
Texaco’s knowledge of a contract in this case, the question by the other parties.
is whether there was legally and factually sufficient Interpretation: The tort of interference with contractual
circumstantial evidence from which the trier of fact relations protects a party to a contract from a third party
reasonably could have inferred knowledge. who intentionally and improperly induces the other
*** contracting party not to perform the contract.
Case Questions
1. Must there always be direct evidence of an alleged interferer’s knowledge of and intent to interfere with a
contractual obligation?
2. Will merely entering into a contract with a party with knowledge of that party’s contractual obligations to
someone else meet all of the requisite elements of the interference with contractual relations cause of action?
3. What is the public policy justification for preventing interference with contractual relations? Why might
punitive damages been awarded in this case?

Ethical Question: Did Texaco act ethically? Explain.
Critical Thinking Question: Does the protection afforded by this tort conflict with society’s interest in free
competition? Explain.
Disparagement
Involves intentional or reckless publication of false facts which injure a person’s economic or monetary
interests. Absolute, conditional, and constitutional privilege apply to the same extent to disparagement as they
do to defamation.
Fraudulent Misrepresentation
The intentional misrepresentation of a material fact; imposes liability for the monetary loss caused by a
justifiable reliance on the misrepresentation.
NOTE: Concept Review: Intentional Torts lists the interests protected by each tort.
FEATURE: Ethical Dilemma

What May One Do to Attract Clients from a Previous Employer?
This dilemma focuses on three attorneys who break away from a law firm to form their own practice and their attempts to attract
clients away from their former firm. *** See below.
ETHICAL DILEMMA DISCUSSION

“What May One Do To Attract Clients From a Previous Employer?”
Legal Background
The present conduct could give rise to an action for the tortious interference with contractual relations. This tort
has been recognized at common law in many states and was highly publicized in Texaco, Inc. v. Pennzoil Co.,
729 S.W.2d 768 (1987). See also Adler, Barish, Daniels, Levin, and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d
1175 (1978) in which the Supreme Court of Pennsylvania held that the sending of letters by attorneys to former
clients in violation of the Code of Professional Responsibility amounted to tortious interference with contractual
relations.
Tortious interference is defined by the Restatement (Second) of Torts as “One who intentionally and improperly
interferes with the performance of a contract (except a contract to marry) between another and a third person by
inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for
the pecuniary loss resulting to the other from the failure of the third person to perform the contract”. Section
767 of the Restatement (Second) defines “improper conduct” based on the facts and circumstances including the
nature of the actor’s conduct, the actor’s motives, the interests of the other with which the actor’s conduct
interferes, the interest sought to be advanced by the actor, the social interest in protecting freedom of action by
the actor, the contractual interests of the other, the proximity or remoteness of the actor’s conduct to the
interference, and the relations between the parties.
Social Policy and Ethical Considerations

1. Most would agree that Jones should not go along with the proposed mailing. The mailing involves the use
of confidential client files of a former employer and may violate the state’s Code of Ethics on self-
recommendation.
2. Jones could discuss the matter with a disinterested attorney to discuss the legal ramifications and to review
the applicable Code of Ethics. As a matter of public policy, increased continuing education requirements
for attorneys with particular emphasis on ethics and effective enforcement of disciplinary actions could be
helpful in deterring this type of conduct.
3. The competing social interests include the freedom of competition balanced against the importance of
privacy and fundamental notions of fair-play.
4. If the parties involved were accountants, the public at large and all users of financial statements would have
an interest in obtaining properly and consistently prepared financial statements. Frequent changes of
accountants can impede the audit process. The American Institute of Certified Public Accountants
(AICPA) has established a Statement on Auditing Standards (SAS 7) which governs the conduct of the
predecessor and successor auditors and requires that communications take place with regard to matters
affecting the integrity of the client. Further, some companies require stockholder approval of the retention
of present auditors or a change to new auditors.
The AICPA has its own ethical standards which prohibit solicitation in a manner that is false, misleading,
or deceptive. Solicitation by the use of coercion, overreaching or harassing conduct is prohibited. (Rule
502 of the Code of Professional Conduct.)
5. The Restatement (Second) of Torts lists a number of factors which provide guidance on the degree of
protection afforded. (See discussion above regarding Section 767.) The determination of tortious
interference remains highly factual. While the case-by-case approach creates uncertainty, it is an approach
which has the advantage of balancing the competing social interests in each individual case.
6. Jones should be quite concerned with the wording of the letter regarding comparisons made with Adle &
Bart. Tortious interference is a highly factual determination and the outcome of a lawsuit could turn on the
exact wording. Further, the wording could potentially expose Jones to a lawsuit for libel.
ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. The Penguin intentionally hits Batman with his umbrella. Batman, stunned by the blow, falls
backwards, knocking Robin down. Robin's leg is broken in the fall, and he cries out, “Holy
broken bat bones! My leg is broken.” Who, if anyone, is liable to Robin? Why?
Answer: Battery. The Penguin is liable to Robin for battery. Section 13 of the Restatement
imposes liability if the actor (Penguin) intends to injure a third person (Batman) and causes
injury (directly or indirectly) to the person of the other (Robin). Batman is not liable because
he did not act with intent and, as Section 14 states, “To make the actor liable for a battery,
the harmful bodily contact must be caused by an act done by the person whose liability is in
question.”
2. CEO was convinced by his employee, M. Ploy, that a coworker, A. Cused, had been stealing
money from the company. At lunch that day in the company cafeteria, CEO discharges
Cused from her employment, accuses her of stealing from the company, searches through
her purse over her objections, and finally forcibly escorts her to his office to await the
arrival of the police, which he has his secretary summon. Cused is indicted for
embezzlement but subsequently is acquitted upon establishing her innocence. What rights, if
any, does Cused have against CEO?
Answer: Injury or Damage to the Person CEO might be liable for slander if there was no basis
for the embezzlement accusation and there was a publication of the defamatory information
to someone else in the cafeteria. By taking the employee’s purse, CEO committed a
trespass to personal property, an intentional dispossession or unauthorized use of another’s
property. This constituted an interference with the employee’s right to exclusive use and
possession. By searching the purse, the CEO has committed the tort of intrusion. Cused
could also demonstrate that CEO’s physical contact constituted a battery, which is the
intentional infliction of harmful or offensive bodily contact. Cused did not consent to the
touching. An action might also lie for emotional distress since the courts now grant
recovery for mental anguish despite a lack of physical injury. Also, there may be false
imprisonment if there was not a lawful restraint under local shoplifting law. Finally, given
the acquittal, a claim for malicious prosecution could be made if CEO filed the charges
without probable cause and for an improper purpose.
3. Ralph kisses Edith while she is asleep but does not waken or harm her. Edith sues Ralph for
battery. Has a battery been committed?
Answer: Battery. Yes. Decision for Edith. Section 18 provides: “(1) An actor is subject to
liability to another for battery if (a) he acts intending to cause a harmful or offensive contact
with the person of the other or third person, or an imminent apprehension of such a contact,
and (b) an offensive contact with the person of the other directly or indirectly results.” All
of these elements have been satisfied by the facts of this problem. Moreover, Comment d to
Section 18 states: “In order that the actor may be liable under the statement in this
Subsection, it is not necessary that the other should know of the offensive contact which is
inflicted upon him at the time when it is inflicted. The actor’s liability is based upon his
intentional invasion of the other’s dignitary interest in the inviolability of his person and the
affront to it while it is being perpetrated.”
4. Claude, a creditor seeking to collect a debt, calls on Dianne and demands payment in a
rude and insolent manner. When Dianne says that she cannot pay, Claude calls Dianne a
deadbeat and says that he will never trust her again. Is Claude liable to Dianne? If so, for
what tort?
Answer: Intentional Infliction of Emotional Distress. No. Liability for infliction of emotional
distress would not arise out of these facts. Liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities. There is no occasion
for the law to intervene in every case where someone’s feelings are hurt. Comment d to
Section 46. In this case, although Claude’s behavior was unthinkable, it was not sufficient
to support a claim of infliction of emotional distress. Moreover, there is no defamation
because there has been no communication to a third party.
5. Lana, a ten-year-old child, is run over by a car negligently driven by Mitchell. Lana, at the
time of the accident, was acting reasonably and without negligence. Clark, a newspaper
reporter, photographs Lana while she is lying in the street in great pain. Two years later,
Perry, the publisher of a newspaper, prints Clark's picture of Lana in his newspaper as a
lead to an article concerning the negligence of children. The caption under the picture
reads: “They ask to be killed.” Lana, who has recovered from the accident, brings suit
against Clark and Perry. What result?
Answer: Invasion of Privacy: False Light. Judgment for Lana against Perry but not against
Clark. The facts make out a case against Perry for the tort of invasion of privacy; in
particular, placing another in a false light. Section 652E of the Restatement imposes
liability for publicity which places another in a false light. It is unlikely that Perry could
utilize the First Amendment as a defense because Lana was neither a public official nor a
public figure. Even if that defense were available, it is forfeited if Perry acted with
“malice,” which appears to be the case here because Perry acted in reckless disregard of the
truth. Clark did not commit the tort of intrusion because he photographed an event that
occurred in public.
6. The Saturday Evening Post featured an article entitled “The Story of a College Football
Fix,” characterized in the subtitle as “A Shocking Report of How Wally Butts and Bear
Bryant Rigged a Game Last Fall.” Butts was athletic director of the University of Georgia,
and Bryant was head coach of the University of Alabama. The article was based on a claim
by one George Burnett that he had accidentally overheard a long-distance telephone
conversation between Butts and Bryant in the course of which Butts divulged information on
plays Georgia would use in the upcoming game against Alabama. The writer assigned to the
story by the Post was not a football expert, did not interview either Butts or Bryant, and did
not personally see the notes Burnett had made of the telephone conversation. Butts admitted
that he had a long-distance telephone conversation with Bryant but denied that any advance
information on prospective football plays was given. Has Butts been defamed by the Post?
Answer: Defamation. Yes. Decision for Butts. The publication was defamatory because it was
a communication that injured Butts’ good name. Although Butts was a public figure, the
magazine published the story in reckless disregard of the truth, which constitutes malice and
results in a loss of First Amendment protection. Curtis Publishing Co. v. Butts, 388 U. S.
130.
7. Joan, a patient confined in a hospital, has a rare disease that is of great interest to the
public. Carol, a television reporter, requests Joan to consent to an interview. Joan refuses,
but Carol, nonetheless, enters Joan's room over her objection and photographs her. Joan
brings a suit against Carol. Is Carol liable? If so, for what tort?
Answer: Invasion of Privacy: Intrusion. Yes, Carol is liable to Joan. Carol has committed the
tort of intrusion, the invasion of privacy with unreasonable and highly offensive interference
with the solitude or seclusion of another. Restatement, Section 652B. Such unreasonable
interference would include improper entry into another’s dwelling. This form of invasion of
privacy is committed once the intrusion occurs, as publication is not required. The defense
of constitutional privilege would not be available.
If Carol published the photograph, she would also be liable to Joan for public disclosure of
private facts. The law of privacy imposes liability for the offensive publication of private
information about another. As with intrusion, this tort only applies to private, not public,
information regarding the plaintiff, but unlike intrusion it requires publicity. This tort
applies to truthful private information if the matter published would be offensive and
objectionable to a reasonable person of ordinary sensibilities.
8. Owner has a place on his land where he piles trash. The pile has been there for three
months. John, a neighbor of Owner and without Owner's consent or knowledge, throws
trash onto the trashpile. Owner learns that John has done this and sues him. What tort, if
any, has John committed?
Answer: Real Property: Trespass John is liable for trespass. Section 158 provides:
“One is subject to liability to another for trespass, irrespective of whether he thereby causes
harm to any legally protected interest of the other, if he intentionally
(a)enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c)fails to remove from the land a thing which he is under a duty to remove.”
The actor without himself entering the land may invade another’s interest in its exclusive
possession by throwing, propelling, or placing a thing either on or beneath the surface of the
land or in the air space above it. Comment i.
9. Chris leaves her car parked in front of a store. There are no signs that say Chris cannot
park there. The store owner, however, needs the car moved to enable a delivery truck to
unload. He releases the brake and pushes Chris's car three or four feet, doing no harm to
the car. Chris returns and sees that her car has been moved and is very angry. She threatens
to sue the store owner for trespass to her personal property. Can she recover?
Answer: Personal Property: Trespass. Probably not. Liability for trespass to a chattel (movable
personal property) is imposed only if–(a) the actor dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is
deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the
possessor, or harm is caused to some person or thing in which the possessor has a legally
protected interest. Section 218. The deprivation of use, not amounting to a dispossession,
necessary to render the actor liable for his use or other intermeddling with the chattel of
another without the other’s consent must be for a time so substantial that it is possible to
estimate the loss caused thereby. A mere momentary or theoretical deprivation of use is not
sufficient unless there is a dispossession. Comment i.
10. Carr borrowed John's brand-new Ford Escort for the purpose of going to the store. He told
John he would be right back. Carr then decided, however, to go to the beach while he had
the car. Can John recover from Carr the value of the automobile? If so, for what tort?
Answer: Conversion. The tort for which John can recover depends in part on the amount of time
Carr has the vehicle. John can definitely recover for a trespass to personal property since
Carr dispossessed John of the vehicle beyond the authorized use. This would apply if the
beach is just a few miles away and Carr is only gone for a few hours or so. Recovery would
not be for the full value of the car. If, however, the beach is hundreds of miles away and
Carr keeps the vehicle for an unreasonably long time, John may be able to recover for
conversion. This is a much more significant interference with the other’s right of control,
and would allow John to recover the full value of the vehicle. Section 222A.
11. Marcia Samms claimed that David Eccles had repeatedly and persistently called her at
various hours, including late at night, from May to December, soliciting her to have illicit
sexual relations with him. She also claimed that on one occasion Eccles came over to her
residence to again solicit sex and indecently exposed himself to her. Mrs. Samms had never
encouraged Eccles but had continuously repulsed his “insulting, indecent, and obscene”
proposals. She brought suit against Eccles, claiming she suffered great anxiety and fear for
her personal safety and severe emotional distress, demanding actual and punitive damages.
Can she recover? If so, for what tort?
Answer: Infliction of Emotional Distress. Yes, Samms could recover for Infliction of
Emotional Distress. The courts recognize a cause of action for severe emotional distress
even if not accompanied by bodily impact or physical injury, where defendant engaged in
intentional conduct aimed at the plaintiff (1) with the purpose of inflicting emotional
distress, or (2) where any reasonable person should have known that emotional distress
would result. Also, the conduct must be outrageous and intolerable according to general
community standards of decency and morality. Eccles’ conduct constitutes more than a
mere solicitation, considering that it persisted for eight months and also involved indecent
exposure. The aggravating circumstances are sufficient to give Samms a cause of action
based solely on her emotional distress. Samms v. Eccles, 358 P.2d 344 (1931).
12. National Bond and Investment Company sent two of its employees to repossess Whithorn's
car after he failed to complete the payments. The two repossessors located Whithorn while
he was driving his car. They followed him and hailed him down in order to make the
repossession. Whithorn refused to abandon his car and demanded evidence of their
authority. The two repossessors became impatient and called a wrecker. They ordered the
driver of the wrecker to hook Whithorn's car and move it down the street while Whithorn
was still inside the vehicle. Whithorn started the car and tried to escape, but the wrecker
lifted the car off the road and progressed seventy-five to one hundred feet until Whithorn
managed to stall the wrecker. Has National Bond committed the tort of false imprisonment?
Answer: False imprisonment. Yes, National Bond falsely imprisoned Whithorn. The result of
Whithorn’s departure would have been an automatic parting with his automobile, which he
did not desire to part with and which he did not have to part with, and which the two
repossessors had no right to take over his protests. He had a legal right to be in his car at the
time the repossessors hooked up the car and forcibly dragged Whithorn down the street.
This was a restraint imposed upon him and a detention of his person, such as to constitute a
false imprisonment. National Bond & Investment Co. v. Whithorn, 123 S.W.2d 263 (1939).
13. In March 1975 William Proxmire, a United States senator from Wisconsin, initiated the
“Golden Fleece of the Month Award” to publicize what he believed to be wasteful
government spending. The second of these awards was given to the Federal agencies that
had for seven years funded Dr. Hutchinson's research on stress levels in animals. The
award was made in a speech Proxmire gave in the Senate; the text was also incorporated
into an advance press release that was sent to 275 members of the national news media.
Proxmire also referred to the research again in two subsequent newsletters letters sent to
100,000 constituents and during a television interview. Hutchinson then brought this action
alleging defamation resulting in personal and economic injury. Assuming that Hutchinson
proved that the statements were false and defamatory, would he prevail?
Answer: Defamation/Constitutional Privilege. Yes, Dr. Hutchinson would prevail. Proxmire’s
speech on the Senate floor was immune from liability, but the advance news release, the
newsletters and the comments made by Senator Proxmire during the television news
interviews were not privileged under the Speech and Debate clause of the U.S. Constitution.
Nor are they protected by the First Amendment as to defamatory comments made. Dr.
Hutchinson was not a public figure prior to receiving the Golden Fleece Award since his
published writings reached a relatively small audience concerned with research in human
behavior. Rather, any notoriety he achieved came as a result of the alleged defamation, and
therefore cannot serve as a basis for Proxmire’s defense. Hutchinson v. Proxmire, 443 U.S.
111.
14. Capune was attempting a trip from New York to Florida on an eighteen-foot-long
paddleboard. The trip was being covered by various media to gain publicity for Capune and
certain products he endorsed. By water, Capune approached a pier owned by Robbins, who
had posted signs prohibiting surfing and swimming around the pier. Capune was unaware
of these notices and attempted to continue his journey by passing under the pier. Robbins
ran up yelling and threw two bottles at Capune. Capune was frightened and tried to
maneuver his paddleboard to go around the pier. Robbins then threw a third bottle that hit
Capune on the head. Capune had to be helped out of the water and taken to the hospital. He
suffered a physical wound which required twenty-four sutures and, as a result, had to
discontinue his trip. Capune brought suit in tort against Robbins. Is Robbins liable? If so,
for which tort or torts?
Answer: Battery/Assault. Yes, Robbins is liable to Capune for battery. Robbins’ throwing the
bottles with the intent to frighten Capune constitutes sufficient intent to make Robbins liable
in battery for any injuries that resulted. The harmful physical contact resulted from Capune
being hit by the bottle thrown by Robbins. Capune v. Robbins, 273 NC. 581, 160 S.E.2d
881 (1968).
15. Ralph Nader, who has been a critic of General Motors Corp. for several years, claims that
when General Motors learned that Nader was about to publish a book entitled Unsafe at
any Speed, criticizing one of its automobiles, it decided to conduct a campaign of
intimidation against him. Specifically, Nader claims that GMC (a) conducted a series of
interviews with Nader's acquaintances, questioning them about his political, social, racial,
and religious views; (b) kept him under surveillance in public places for an unreasonable
length of time including close observation of him in a bank; (c) caused him to be accosted
by women for the purpose of entrapping him into illicit relationships; (d) made threatening,
harassing, and obnoxious telephone calls to him; (e) tapped his telephone and
eavesdropped by means of mechanical and electronic equipment on his private
conversations with others; and (f) conducted a “continuing” and harassing investigation of
him. Nader brought suit against GMC for invasion of privacy. Which, if any, of the alleged
actions would constitute invasion of privacy?
Answer: Intrusion. Judgment in part for Nader. The tort of invasion of one’s privacy includes
instances of intrusion by physical trespass or otherwise into areas from which an ordinary
man would reasonably expect that others should be excluded. The concern is not with one’s
broad right to be left alone, but rather with the right to keep one’s private affairs secret from
others. Thus, one must show that the questioned conduct was truly “intrusive” and that it
was designed to elicit information that would not be available through normal inquiry or
observation.
In the present case, only two of the activities complained of could constitute an invasion of
Nader’s privacy: (1) the unauthorized wiretapping and eavesdropping by electronic means,
and (2) certain potentially overzealous surveillance of Nader in a public place by closely
observing him in a bank. In contrast, the other activities may have uncovered information
of a personal nature about Nader, but this cannot be regarded as an invasion of his privacy
since it was gained from third persons. Presumably since Nader confided in these third
persons, he also assumed the risk that they would breach his confidence. Nader v. General
Motors Corp., 25 N.Y.2d 560, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970).
16. Bill Kinsey was charged with murdering his wife while working for the Peace Corps in
Tanzania. After waiting six months in jail he was acquitted at a trial that attracted wide
publicity. Five years later, while a graduate student at Stanford University, Kinsey had a
brief affair with Mary Macur. He abruptly ended the affair by telling Macur he would no
longer be seeing her because another woman, Sally Allen, was coming from England to live
with him. A few months later, Kinsey and Allen moved to Africa and were subsequently
married. Soon after Bill ended their affair, Macur began a letter writing campaign designed
to expose Bill and his mistreatment of her. Macur sent several letters to both Bill and Sally
Kinsey, their parents, their neighbors, their parents' neighbors, members of Bill's
dissertation committee, other faculty, and the president of Stanford University. The letters
contained statements accusing Bill of murdering his first wife, spending six months in jail
for the crime, being a rapist, and other questionable behavior. The Kinseys brought an
action for invasion of privacy, seeking damages and a permanent injunction. Will the
Kinseys prevail? If so, for what tort?
Answer: Invasion of Privacy. Judgment for the Kinseys. The tort of invasion of privacy
includes four separate torts, two of which are involved here: (1) the public disclosure of
true, embarrassing private facts concerning the plaintiff; and (2) publicity that places the
plaintiff in a false light in the public eye. In both of these torts there must be a
communication to the general public or a large number of people as opposed to private
communications. In this case, Macur sent the letters to approximately twenty people. The
recipients were such a diverse group, however, living in several different states and totally
unconnected either socially or professionally, that her campaign satisfied this requirement.
Macur claims that even if she invaded Kinsey’s privacy, it was privileged because he was a
public figure by virtue of his participation in the Peace Corps and his widely publicized
murder trial. The definition of a public figure is not clear, but membership in the Peace
Corps is not sufficient to make a person a public figure. Moreover, once Kinsey had been
acquitted at his trial, he was no longer a public figure and should be allowed “to melt into
the shadows of obscurity” once again. Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal.Rptr.
608 (1980).
17. Plaintiff, John W. Carson, was the host and star of “The Tonight Show,” a well-known
television program broadcast by the National Broadcasting Company. Carson also
appeared as an entertainer in nightclubs and theaters around the country. From the time he
began hosting “The Tonight Show” in 1962, he had been introduced on the show each night
with the phrase “Here's Johnny.” The phrase “Here's Johnny” is still generally associated
with Carson by a substantial segment of the television-viewing public. In 1967, to earn
additional income, Carson began authorizing use of this phrase by outside business
ventures.
Defendant, Here's Johnny Portable Toilets, Inc., is a Michigan corporation engaged in the
business of renting and selling “Here's Johnny” portable toilets. Defendant's founder was
aware at the time he formed the corporation that “Here's Johnny” was the introductory
slogan for Carson on “The Tonight Show.” He indicated that he coupled the phrase with a
second one, “The World's Foremost Commodian,” to make “a good play on a phrase.”
Carson brought suit for invasion of privacy. Should Carson recover? If so, for which tort?
Answer: Appropriation. Yes, Carson should recover for violation of his right of privacy. The
right of privacy involves four distinct torts, one of which is the appropriation of a person's
name or likeness. This tort, also known as the "right of publicity," protects the commercial
interests of celebrities in exploiting their identities and applies to these facts.
In this case there would have been no violation of Carson's right of publicity if the defendant
had used Carson's actual name, such as "J. William Carson Portable Toilet" or the "John
William Carson Portable Toilet" or the "J.W. Carson Portable Toilet." The reason is that,
though literally using the plaintiff's "name," the defendant would not have appropriated
Carson's identity as a celebrity. Here there was an appropriation of Carson's identity
without using his "name," because of the public's association of Carson with the phrase
"Here's Johnny." Carson v. Here's Johnny Portable Toilets, Inc.
18. Lemmie L. Ruffin, Jr., was an Alabama licensed agent for Pacific Mutual Life Insurance and
for Union Fidelity Life Insurance Company. Union wrote group health insurance policies
for municipalities, while Pacific did not. Plaintiffs Cleopatra Haslip, Cynthia Craig, Alma
M. Calhoun, and Eddie Hargrove were employees of Roosevelt City, Alabama. Ruffin gave
the city a single proposal for health and life insurance for its employees, which the city
approved. Both companies provided the coverage, however, Union provided the health
insurance and Pacific the life insurance. This packaging of coverage by two different and
unrelated insurers was not unusual. Union would send its billings for health premiums to
Ruffin at Pacific Mutual’s office. The city clerk each month issued a check for those
premiums and sent it to Ruffin. Ruffin, however, did not remit to Union the premium
payments he received from the city; instead, he misappropriated most of them. When Union
did not receive payment from the city, it sent notices of lapsed health coverage to the
plaintiffs, who did not know that their health policies had been canceled.
Plaintiff Haslip was subsequently hospitalized and because the hospital could not confirm
her health coverage, it required her to make a partial payment on her bill. Her physician,
when he was not paid, placed her account with a collection agency, which obtained against
Haslip a judgment that damaged her credit. Plaintiffs sued Pacific Mutual and Ruffin for
fraud. The case was submitted to a jury, which was instructed that if it found liability for
fraud, it could award punitive damages. The jury returned verdicts for the plaintiffs and
awarded Haslip $1,040,000, of which at least $840,000 was punitive damages. The Supreme
Court of Alabama affirmed the trial court’s judgment. Pacific Mutual appealed. Decision?
Answer: Punitive Damages. Judgment of the Supreme Court of Alabama in favor of the
plaintiffs affirmed. Under the traditional common law approach, the amount of a punitive
award initially is determined by a jury. Jurors are instructed to consider the gravity of the
wrong and the need to deter similar wrongful conduct in the future. The trial and appellate
courts then review the jury's determination to ensure that it is reasonable. While the
common law method for assessing punitive damages does not always deny due process,
neither is it always constitutional. The task in this case is to determine whether the Due
Process Clause of the Fourteenth Amendment renders the punitive damages award of this
case unconstitutional.
The Court concludes that the punitive damages the jury assessed against Pacific Mutual did
not violate the Due Process Clause. Even though Alabama law, like the law of most states,
imposes punitive damages for purposes of retribution and deterrence, this does not resolve
the issue. The trial judge's instructions gave the jury significant discretion, but such
discretion was not unlimited. It was confined to deterrence and retribution. The trial court
found specifically that the defendants' conduct evidenced intentional, malicious, gross, or
oppressive fraud. The Supreme Court of Alabama previously had decided that courts could
consider the following factors in determining whether an award of punitive damages was
excessive or inadequate: (a) whether a reasonable relationship existed between the punitive
damages award and the harm likely to result from the defendant's conduct as well as the
harm that actually had occurred; (b) the degree of reprehensibility of the defendant's
conduct, the duration of that conduct, the defendant's level of awareness, any concealment,
and the existence and frequency of similar past conduct; (c) the profitability to the defendant
of the wrongful conduct and the desirability of removing that profit and of having the
defendant also sustain a loss; (d) the "financial position" of the defendant; (e) all the costs of
litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these
sanctions to be taken in mitigation; and (g) the existence of other civil awards against the
defendant for the same conduct, these also to be taken in mitigation.
The Court concludes that the application of these standards by the courts of Alabama
imposes a sufficiently definite and meaningful constraint on the discretion of Alabama fact
finders (juries) in awarding punitive damages. The Alabama Supreme Court's post-verdict
review ensures that punitive damages awards are not grossly out of proportion to the
severity of the offense and have some understandable relationship to compensatory
damages.
19. Susan Jungclaus Peterson was a twenty-one-year-old student at Moorhead State University
who had lived most of her life on her family farm in Minnesota. Though Susan was a dean's
list student during her first year, her academic performance declined after she became
deeply involved in an international religious cult organization known locally as The Way of
Minnesota, Inc. The cult demanded an enormous psychological and monetary commitment
from Susan. Near the end of her junior year, her parents became alarmed by the changes in
Susan's physical and mental well-being and concluded that she had been "reduced to a
condition of psychological bondage by The Way." They sought help from Kathy Mills, a self-
styled "deprogrammer" of minds brainwashed by cults.
On May 24, Norman Jungclaus, Susan's father, picked up Susan at Moorhead State. Instead
of returning home, they went to the residence of Veronica Morgel, where Kathy Mills
attempted to deprogram Susan. For the first few days of her stay, Susan was unwilling to
discuss her involvement. She lay curled in a fetal position in her bedroom, plugging her ears
and hysterically screaming and crying while her father pleaded with her to listen. By the
third day, however, Susan's demeanor changed completely. She became friendly and
vivacious and communicated with her father. Susan also went roller skating and played
softball at a nearby park over the following weekend. She spent the next week in Columbus,
Ohio, with a former cult member who had shared her experiences of the previous week.
While in Columbus, she spoke daily by telephone with her fiancé, a member of The Way,
who begged her to return to the cult. Susan expressed the desire to get her fiancé out of the
organization, but a meeting between them could not be arranged outside the presence of
other members of The Way. Her parents attempted to persuade Susan to sign an agreement
releasing them from liability for their actions, but Susan refused. After nearly sixteen days
of "deprogramming" Susan left the Morgel residence and returned to her fiancé and The
Way. Upon the direction of The Way ministry, she brought this action against her parents
for false imprisonment. Will Susan prevail? Explain.
Answer: False Imprisonment. Judgment for Mr. and Mrs. Jungclaus. "If a person is aware of a
reasonable means of escape that does not present a danger of bodily or material harm, a
restriction is not total and complete and does not constitute unlawful imprisonment." Also, a
person cannot recover damages for any period of detention to which she voluntarily
consents. For the final thirteen days of the sixteen-day period, Susan willingly remained in
the company of her parents. She also had several reasonable and safe opportunities to escape
while playing softball, roller skating, and taking her trip to Ohio. Given that the
conditioning of the cult may have impaired her free will prior to her "deprogramming," it is
reasonable to infer from her subsequent consent that she would have consented to the first
three days' detention if she had had her full capacity. Furthermore, parents may place
limitations on their adult child's mobility, if they have a good-faith, reasonable belief that
the child's judgmental capacity has been seriously affected by a cult and if she at some point
assents to the limitations. Thus, Susan's assent during the thirteen-day period relieved her
parents of liability for false imprisonment.
20. Debra Agis was a waitress in a restaurant owned by the Howard Johnson Company. On
May 23, Roger Dionne, manager of the restaurant, called a meeting of all waitresses at
which he informed them that "there was some stealing going on." Dionne also stated that
the identity of the party or parties responsible was not known and that he would begin firing
all waitresses in alphabetical order until the guilty party or parties were detected. He then
fired Debra Agis, who allegedly "became greatly upset, began to cry, sustained emotional
distress, mental anguish, and loss of wages and earnings." Mrs. Agis brought this complaint
against the Howard Johnson Company and Roger Dionne, alleging that the defendants
acted recklessly and outrageously, intending to cause emotional distress and anguish. The
defendants argued that damages for emotional distress are not recoverable unless physical
injury occurs as a result of the distress. Will Agis be successful on her complaint?
Answer: Infliction of Emotional Distress. Yes. An individual "who, by extreme and outrageous
conduct and without privilege, causes severe emotional distress to another is subject to
liability for such emotional distress even though no bodily harm may result." Mrs. Agis
successfully established the following four essential elements: (1) that the defendants
intended to cause emotional distress or that they knew or should have known that emotional
distress was likely to result from their conduct; (2) that the defendants' conduct was
"extreme and outrageous" and "beyond all possible bounds of decency;" (3) that the
defendants' actions caused Mrs. Agis's distress; and (4) that Mrs. Agis's emotional distress
was "severe" and such "that no reasonable man could be expected to endure it."
21. The plaintiff, Edith Mitchell, was forcibly stopped as she exited a Wal-Mart (defendant)
store. The plaintiff, accompanied by her thirteen-year-old daughter, went through the
checkout and purchased several items at the defendant’s store. As she exited, the plaintiff
passed through an electronic antitheft device, which sounded an alarm. Robert Canady,
employed by the defendant as a “people greeter” and security guard, forcibly stopped the
plaintiff at the exit, grabbed the plaintiff’s bag, and told her to step back inside, but never
touched the plaintiff or her daughter and never threatened to touch either of them.
Nevertheless, the plaintiff described the security guard’s actions in her affidavit as “gruff,
loud, rude behavior.” This security guard removed every item the plaintiff had just
purchased and ran it through the security gate. One of the items still had a security code
unit on it, which an employee admitted could have been overlooked by the cashier. When the
security guard finished examining the contents of the plaintiffs’ bag, he put it on the
checkout counter. This examination of her bag took ten or fifteen minutes. Once her bag had
been checked, no employee of defendant ever told plaintiff she could not leave. The plaintiff
was never threatened with arrest. The plaintiff brought a tort action against the Wal-Mart
alleging false imprisonment, assault, battery, and intentional infliction of emotional distress.
Is the defendant liable for any of these torts? Explain.
Answer: False Imprisonment. No. The owner or operator of a mercantile establishment has the
right to detain a person reasonably suspected of shoplifting. The cause of detention must be
“established by competent evidence” and must be reasonable in length of time. In the case
of an establishment utilizing an anti-shoplifting or inventory control device, the automatic
activation of the device as a result of a person exiting the protected area shall constitute
reasonable cause for the detention of the person.
The agent’s alleged rudeness is irrelevant, as his actions were clearly in response to the
alarm, establishing probable cause. The plaintiff's claims for false arrest are without merit.
"[I]t makes no difference to 'reasonable cause' whether or not employee negligence in failing
to deactivate the special tag set the device off. What matters is whether the method and time
of detention were reasonable within statutory limitations.
Plaintiff was subjected to a ten- or fifteen-minute "detention" in the open, during which the
items in plaintiff's shopping bag were individually tested for the presence of the electronic
antitheft sensor and after which plaintiff's bag was returned to her and she was free to leave.
This procedure was perfectly reasonable. Causing embarrassment is not the same as
unlawful imprisonment.
Similarly, there was no unlawful restraint either by force or fear here, as is necessary to
recover for false imprisonment. It follows that the trial court correctly granted defendant's
motion for summary judgment.

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Business Law and the Regulation of

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Cases in This Chapter

* Chapter Objective *

A. HARM TO THE PERSON

Infliction of Emotional Distress

*** recitation of the facts to an average member of the

C. HARM TO RIGHT OF DIGNITY

* Chapter Objective *

* Chapter Objective *

Misuse of Legal Procedure

* Chapter Objective *

D. HARM TO ECONOMIC INTERESTS

* Chapter Objective *

Interference with Contractual Relations

punitive damages been awarded in this case?

FEATURE: Ethical Dilemma

ETHICAL DILEMMA DISCUSSION

Social Policy and Ethical Considerations

ANSWERS TO QUESTIONS AND CASE PROBLEMS

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