Week 2

Torts
 Donoghue V Stevenson case

Tort Means “Wrong”

A tort is a violation of a duty imposed by civil law.

The fly-in-bottle lawsuit – Tan Hiep Phat

2
 §1: Basis of Tort Law
• Doing business today involves risks, both
legal and financial.
• A tort is a civil injury designed to provide
compensation for injury to a legally
protected, tangible or intangible, interest.
• There are intentional and unintentional
(negligence) torts.

3
§2: Intentional Torts Against Persons
and Business Relationships
• The person committing the tort, the
Tortfeasor or Defendant, must “intend” to
commit the act. Intend means:
• Tortfeasor intended the consequences of her act;
or
• She knew with substantial certainty that certain
consequences would result.

4
 Types of Intentional Torts
• Assault and Battery.
• False Imprisonment.
• Infliction of Emotional Distress.
• Defamation.
• Invasion of Privacy.
• Business Torts.

5
 Assault
• Intentional, unexcused act that:
• Creates a reasonable apprehension of fear, or
• Immediate harmful or offensive contact.
• NO CONTACT NECESSARY.

6
 Battery
• Battery is the completion of the Assault:
• Intentional or Unexcused.
• Harmful, Offensive or Unwelcome.
• Physical Contact.

7
 Defenses to
Assault & Battery
• Consent.
• Self-Defense (reasonable force).
• Defense of Others (reasonable force).
• Defense of Property.

8
 False Imprisonment
• The Intentional confinement or restraint.
• Of another person’s activities.
• Without justification.
• Merchants may reasonably detain
customers if there is probable cause.

9
 Intentional Infliction of
Emotional Distress
• An intentional act that is:
• Extreme and outrageous, that
• Results in severe emotional distress in another.
• Most courts require some physical
symptom or illness.

10
 Defamation
• Right to free speech is constrained by
duty we owe each other to refrain from
making false statements.
• Orally breaching this duty is slander;
breaching it in print or media is libel.

11
Dai Nam JSC's CEO prosecuted

12
 Defamation
• Gravamen of defamation is the
“publication” of a false statement that
holds an individual up to hatred,
contempt or ridicule in the community.
• Publication requires communication to a
3rd party.

13
 Defamation-Damages [1]
• Damages for Libel.
• General Damages are presumed; Plaintiff does
not have to show actual injury.
• General damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.

14
 Defamation-Damages [2]
• Damages for Slander.
• Rule: Plaintiff must prove “special damages”
(actual economic loss).
• Exceptions for Slander Per Se (loathsome
disease, business improprieties, serious crime,
non-chaste).

15
 Defamation-Defenses
• Truth is generally an absolute defense.
• Privileged (or Immune) Speech.
• Absolute: judicial & legislative proceedings.
• Qualified: Employee Evaluations.

16
 Defamation-Public Figures
• Public figures exercise substantial
governmental power or are otherwise in
the public limelight.
• To prevail, they must show “actual
malice”: statement was made with either
knowledge of falsity or reckless disregard
for the truth.

17
 Invasion of Privacy
• Every person has a fundamental right to
solitude freedom from public scrutiny.
• Use of Person’s Name or Likeness.
• Intrusion on Individual’s Affairs or Seclusion.
• Publication of Information that Places a Person
in False Light.
• Public Disclosure of Private Facts.

18
 Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.

19
 Fraud
• Fraudulent misrepresentation involves
intentional deceit:
• Misrepresentation of material fact;
• Intent to induce another to rely;
• Justifiable reliance by innocent party;
• Damages as a result of reliance;
• Causal connection.

20
 Wrongful Interference
• Tort that interferes with a contractual
relationship.
• Occurs when:
• Defendant knows about contract between A and B;
• Intentionally induces either A or B to breach the
contract; and
• Defendant benefits from breach.

21
 Wrongful Interference
• With a Business Relationship occurs
when:
• Established business relationship;
• Tortfeasor, using predatory methods, causes
relationship to end; and
• Plaintiff suffers damages.
• Bona fide competitive behavior is a
defense to this tort.

22
 §3: Intentional Torts
to Property
• Trespass to land occurs when a person,
without permission:
• Physically enters onto, above or below the
surface of another’s land; or
• Causes anything to enter onto the land; or
• Remains, or permits anything to remain, on the
land.

23
Intentional Torts to Property [2]
• Trespass to personal property is the
Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
• Disparagement of Property.
• Slander of Title or Quality.

24
 §4: Negligence
• Tortfeasor does not intend the consequences of
the act or believes they will occur.
• Actor’s conduct merely creates a foreseeable
risk of injury. Analysis:
• Defendant owed Plaintiff a duty of care;
• Defendant breached that duty;
• Plaintiff suffered legal injury;
• Defendant’s breach caused the injury.

25
 Duty of Care
• Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant
knew or should have known about.
• Courts use reasonable person standard
(jury) to determine whether duty exists.

26
 Duty of Care: Foreseeability
• The consequences of an act are legally
foreseeable if they are consequences that
typically occur in the course of event.
• Whether an act is foreseeable is generally
considered a matter of fact determined
by the reasonable person standard (jury).

27
 Duty of Care
• Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
• Professionals may owe higher duty of
care based on special education, skill or
intelligence. Breach of duty is called
professional malpractice.

28
 Injury and Damages
• To recover, Plaintiff must show legally
recognizable injury.
• Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
• Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.

29
 Causation
Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
• Causation in Fact, and
• Proximate Cause.

30
 Causation in Fact
• Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
• Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.

31
 Proximate Causation
• An act is the proximate (or legal) cause of
the injury when the causal connection
between the act and injury is strong
enough to impose liability.
• Foreseeability of injury is an important
factor.
• Think of proximate cause as an unbroken
chain of events.

32
Ex: Factual Cause & Foreseeable Harm
Mechanic fails
to fix Car Factual
Mechanic
customer’s accident, cause and
is liable to foreseeable
brakes, which car hitting
cyclist type of
causes... bicyclist
injury

Car Noise from Mechanic Factual

accident, accident startles is NOT cause, but
car someone who liable for no
foreseeable
hitting falls out a falling
type of
bicyclist window person injury

Car accident, Mechanic No

Bicyclist
car is NOT factual
hits pothole
does not hit liable to cause
and crashes
bicyclist cyclist
 Defenses to Negligence

• Assumption of Risk.
• Superceding Intervening Cause.
• Contributory or Comparative
Negligence.

34
 Assumption of Risk
• Plaintiff has adequate notice and
understanding of the risks associated with
an activity.
• He knowingly and willingly engages in the
act anyway.
• Plaintiff, in the eyes of the law, assumes
the risk of injuries that fall within the
scope of the risk understood.

35
 Superseding Cause
• act and Plaintiff’s injury relieving DeA
unforeseeable, intervening act that occurs
after Defendant’s act that breaks the
causal relationship between Defendant’s
fendant of liability.
• If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.

36
 Contributory Negligence [1]
• Under common law, if Plaintiff in any way
caused his injury, he was barred from
recovery.
• Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
• The operative concept in comparative
negligence is that one cannot recover from
another for any injuries one has caused to
oneself.
37
 Comparative Negligence
• In determining liability, the amount of
damages a Plaintiff causes to herself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
• However, if Plaintiff is more than 50%
liable, she recovers nothing.

38
 Special Negligence Doctrines
• Res Ipsa Loquiter.
• Negligence Per Se occurs when Defendant
violates statute that causes injury to
Plaintiff:
• Statute sets out standard of care.
• Plaintiff is member of class intended to be
protected by statute.
• Statute designed to prevent Plaintiff’s injury.
39
 Special Negligence Statutes
• “Danger Invites Rescue” Doctrine.
• Good Samaritan Statutes.
• Dram Shop Acts.

40
 §5: Cyber Torts
• Who should be liable for online defamation?
• Communications Decency Act shields online
providers from liability.
• Zeran v. America Online (1997).
• Piercing Veil of Anonymity—ISP’s can disclose
personal info if ordered by a court.
• Liability for SPAM.
• CompuServe v. Cyber Promotions (1997).
• Liablility for computer virus?

41
• A contractor used dynamite to loosen a
rocky hillside. The blast from the
dynamite caused a house foundation to
crack. The house was located over a half
mile away from the dynamite site. The
contractor was careful when using the
dynamite and no allegation of negligence
is made. However, the house owner
claims the contractor is liable for damage
to the foundation. Is the house owner
correct? Explain

42
Strict Liability and
Product Liability
 §1: Strict Liability
• Defendant’s liability for strict liability is
without regard to:
• Fault.
• Foreseeability.
• Standard of Care.
• Causation.
• Liability is based on creation of
extraordinary risk.

44
 Abnormally
Dangerous Activities
Defendant is strictly liable for an
“abnormally dangerous activity” if:
• Activity involves serious potential harm;
• Activity involves high degree of risk that
cannot be made safe; and
• Activity is not commonly performed in the
community or area.

45
 Wild Animals
• Persons who keep wild animals are
strictly liable for injuries caused by the
beast.
• Persons who keep domestic animals are
liable if the owner knew or should have
known that animal was dangerous.

46
 §2: Product Liability
• Product Liability is not a new tort.
• Liability can be based on:
• Negligence;
• Misrepresentation; or
• Strict Liability;
• Warranty Theory.

47
 Product Liability
(Negligence)
Negligence-based product liability is
based on a manufacturer’s breach of the
reasonable standard of care and failing to
make a product safe.

48
 Product Liability
(Negligence) [2]
• Manufacturer must exercise “due care”
in:
• Designing products;
• Manufacturing and Assembling Products;
• Inspecting and Testing Products; and
• Placing adequate warning labels.

49
 Product Liability
(Negligence) [3]
• Manufacturers who violates state or federal
law in the manufacture or labeling of a
product, may be negligent per se.
• No privity of contract required between
Plaintiff and Manufacturer. Liability extends
to any person’s injuries caused by a negligently
made (defective) product.

50
 Product Liability
(Misrepresentation)
• Occurs when fraud committed against
consumer or user of product.
• Fraud must have been made knowingly
or with reckless disregard for safety.
• Plaintiff does not have to show product
was defective.

51
 §3: Strict Product Liability
• Manufacturers liable without regard to
fault based on public policy:
• Consumers must be protected from unsafe
products;
• Manufacturers should be liable to any user of
the product;
• Manufacturers, sellers and distributors can bear
the costs of injuries.

52
 Strict Product Liability [2]
• Requirements for strict liability:
• Product is unreasonably dangerous when sold
Defendant sells the product;
• Plaintiff injured by use or consumption of
product and defective condition is the
proximate cause of injury.
• Greenman v.Yuba Power Products (1962).

53
 Strict Product Liability [3]
Plaintiff must show product was so
“defective” it was “unreasonably
dangerous”:
• Product was dangerous beyond ordinary
consumer expectations; OR
• A less dangerous alternative was economically
feasible but rejected.

54
 Market Share Liability
• Theory of liability when multiple
Defendants contributed to manufacture
of defective product.
• Liability of each Defendant is
proportionate to the share of the market
held by each respective Defendant.

55
 Liability of Suppliers
• Suppliers of Component Parts may be
liable if:
• Component is defective at the time of
sale/distribution;
• Supplier “substantially participates” in the
design and integration of defective product.

56
 Liability of Suppliers [2]
• Manufacturers, distributors, suppliers,
sellers liable to an injured bystander who
did not purchase, use or consumer the
product.
• Injuries to bystanders from defective
products are reasonably foreseeable.

57
 §4: Strict Liability—
Restatement (3rd) of Torts
• The terms “unreasonably dangerous”
and “defective” are used interchangeably
and subject to differing definitions by
different courts.
• Restatement defines three different types
of defects: manufacturing, design and
warning defects.

58
 Strict Liability:
Manufacturing Defects
• Occurs when a product “departs from its
intended design even though all possible
care was exercised in the preparation and
marketing of the product.”

59
 Strict Liability:
Design Defects
• Occurs when the “foreseeable risks of
harm posed by the product could have
been reduced or avoided by the adoption
of a reasonable alternative . . . and the
omission of the alternative design renders
the product not reasonably safe.”

60
 Strict Liability:
Warning Defects
• A product may be defective because of
inadequate warnings or instructions.
• Liability based on foreseeability that
proper instructions/labels would have
made the product safe to use.

61
 Warning Defects [2]
• There is no duty to warn about obvious
or commonly known risks.
• Seller must also warn about injury due to
product misuse. Key is whether misuse
was foreseeable.

62
 §5: Defenses to
Product Liability
• Assumption of Risk.
• Product Misuse (Plaintiff does not know
the product is dangerous for a particular
use).
• Contributory/Comparative Negligence.
• Commonly known dangers.
• Statutes of Limitation.

63
• What about Vietnamese Law?

64
 Discussion
• Driving in a car, at a blind spot in the
road, Walter honks his horn three times.
Two blocks away, an elderly woman
believes the horn is an air raid siren and
suffers a heart attack. Walter honked his
horn, and the honking caused the
woman’s death.

65
 Criminal v Tort
• At a downtown bar, Walter drinks to excess. As he is driving
home, at the first intersection, he strikes and injures a pedestrian
who was crossing with the light. Walter’s blood alcohol level
proves to be twice the legal limit.
• Believing he is entitled to Paula’s typewriter, Ralph takes it..

• A mugger, gun drawn, sneaks up behind Steve on the street. A

police officer seizes the mugger before Steve realizes what is
happening..

• Tina is dying. Victor refuses to donate blood to save him.

66