Tort Law

Negligence is a tort There are also intentional torts

Time For Some Tort Law Perspective

Contract law is primarily concerned with the ways private agreements will be enforced the law of deals Torts is the law of duties people have certain interests which others have the duty to respect The existence of these duties does not depend on agreements they are broader social obligations

More Perspective
The violation of the duty is the tort Tort law is that body of principles which defines these interests, duties, and the remedies available when the duties have not been met Interests protected by tort law: bodily integrity, ones reputation, controlling access to ones property, etc.

Negligence
Negligence distinguished from intentional torts because it does not require intentional conduct Rather, the focus is on the reasonableness of the defendants conduct The bulk of legal issues can be resolved by asking how a reasonable person would respond to a particular issue.

Elements of a Negligence Claim

Defendant owed a duty to the plaintiff to act reasonably under the circumstances That duty was breached A causal connection exists between the plaintiffs injury and the defendants breach The plaintiff suffered an actual loss or injury

Duty
A person with a legal duty to another is required to act reasonably under the circumstances to avoid harming the other person. Standard is an objective one: what would a reasonable person of ordinary prudence do under the circumstances? Threshold question: do I have a duty of care to you?

Duty
This question is strictly a state-law question and different states have different formulations. New Jersey: Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of consideration of public policy. Huh?

Duty
Most courts assess a bevy of factors. For instance: the foreseeability of harm to the injured party (this one is a big one) whether future harm could be prevented by imposing a duty the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach the social utility of the defendant's conduct from which the injury arose

Duties are Created on a Case-By-Case Basis (Examples)

Duty to rescue: no general duty to rescue unless you decide to undertake a rescue or if you have a special relationship with the person in need of rescue Duty of landlord: legal duty to keep the property reasonably safe Duty of professionals (lawyers, doctors, accountants) Manufacturer of products

Breach of Duty
Assuming a duty, was the duty breached? Generally speaking, required standard of conduct is that of a reasonable person WWRPD? If specially trained (attorneys, doctors, etc.), care of a reasonably skilled member of profession or trade Again, the extent of a duty is developed on a case-by-case basis

Causal Connection
Plaintiff claiming negligence must prove that the defendants breach of duty caused the injury The plaintiff would not have been harmed but for the defendants negligence What if there is more than one defendant? Apply substantial-factor test: was the defendants conduct a substantial factor in bringing about the plaintiffs injury?

Injury
A pretense to share my five favorite law firm commercials
6. 5. 4. 3. 2. "Hammer" "Machete" "Gamer" "Charmer" "Flint"

Defenses
Contributory negligence: if plaintiff was also negligent in any manner, he cannot recover any damages (minority position) Comparative negligence: generally speaking, right to recovery is discounted by amount plaintiff was negligent (majority position) Assumption of risk: plaintiff (1) knew the risk was present (2) understood its nature and (3) voluntarily chose to incur the risk

The Sesame Street Version Of The Negligence Elements

Duty Breach Causation Damages

Negligence In A Particular Context Negligent Hiring

Lets assume you are the HR manager for a cable company and you need to hire cable technicians The cable technicians drive vans, work with other employees off site, and go into customers homes Do you owe a duty to the other employees, motorists, customers?

Negligence In A Particular Context Negligent Hiring

What is the duty generally? WWRPD? What does it mean specifically, i.e., what do you have an obligation to do in order to avoid a negligence claim?

BREAK

Tort Law
What is a tort? A tort is a civil wrong resulting in injury to a person or property A tort case is brought by the injured party to obtain compensation for the wrong done Why tort law? When people talk about tort reform, what are they talking about?

The McDonalds Case

Jury awarded $2.86 million to a woman who scalded herself with hot coffee she purchased from fast food restaurant McDonald's http://www.youtube.com/watch?v=k9zPOX FhNa4

The McDonalds Case

McDonald's coffee was served much hotter (at least 20 degrees more so) than at other restaurants. McDonald's knew its coffee sometimes caused serious injuries -more than 700 incidents of scalding coffee burns in the past decade have been settled by the corporation -- and yet they never so much as consulted a burn expert regarding the issue. The woman involved in this infamous case suffered very serious injuries -- third degree burns on her groin, thighs, and buttocks that required skin grafts and a seven-day hospital stay.

The woman, an 81-year-old former department store clerk who had never before filed suit against anyone, said she wouldn't have brought the lawsuit against McDonald's had the corporation not dismissed her request for compensation for medical bills.

The McDonalds Case

Reports indicated that McDonald's consistently kept its coffee at 185 degrees. Third degree burns occur at this temperature in just two to seven seconds, requiring skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain, and disability. A McDonald's quality assurance manager testified in the case that the corporation was aware of the risk of serving dangerously hot coffee and had no plans to either turn down the heat or to post warning about the possibility of severe burns, even though most customers wouldn't think it was possible. After careful deliberation, the jury found McDonald's was liable because the facts were overwhelmingly against the company. When it came to the punitive damages, the jury found that McDonalds had engaged in willful, reckless, malicious, or wanton conduct and rendered a punitive damage award of $2.7 million. (The equivalent of just two days of coffee sales, McDonald's Corp. generates revenues in excess of $1.3 million daily from the sale of its coffee, selling 1 billion cups each year.)

Tort Reform in the Context Health Care

http://www.youtube.com/watch?v=jsgcJKB JqxU 19 states already have caps on pain and suffering damages In those states, have the costs of medical care or malpractice premiums declined? http://www.thestreetratings.com/malpractic e.asp http://www.youtube.com/watch?v=6TjRkc1 ufwM

Intentional Torts Require Intentional Conduct

Surprise . . . intent (the subjective desire to cause the consequences of an act) is an element of every intentional tort it can be actual or implied Actual intent demonstrated by evidence that the defendant intended a specific consequence to a particular individual (purpose) Implied intent if the defendant knew that the consequences of the act were substantially certain, even if he did not actually intend any of the specific consequences

Example
Ted dumps trash out of the third floor window onto a busy sidewalk and hits Alexa If he intended to hit Alexa, you clearly have the requisite intent (actual intent) If in dumping trash out of the window, Ted hitting Alexa was substantially certain to hit at least one pedestrian, intent to hit Alexa can be implied At the very least, it is probably negligent (the other end of the intent continuum)

Intentional Torts to Protect Persons

Battery
(1) intentional, (2) nonconsensual, (3) harmful or offensive contact with the plaintiffs body or with something in contact with the plaintiffs body. Involves an actual contact The harmfulness/offensiveness is measured against a reasonable person standard, i.e., looking at a contact objectively, as a reasonable person would see it, would this contact be considered offensive or harmful?

Battery Examples
Person emphatically pokes the plaintiff in the chest with his index finger to emphasize a point. Battery or not? Person spits on a plaintiff, even though there is little chance that the spitting will cause any injury other than to the plaintiff's dignity. Battery or not? Person gets jostled on a subway in a rush to get off the subway. Battery or not?

Assault
Does not require contact (1) Intentional, (2) nonconsensual act that (3) gives rise to the apprehension (though not necessarily the fear) that a harmful or offensive contact is imminent. Generally requires a threatening gesture plus the ability to follow through immediately with a battery Its an unconsummated battery

Assault Examples
Defendant points a realistic toy gun at the plaintiff from fifty feet away. Assault or not? I will beat you up if you come to class next week. Assault or not?

Intentional Infliction of Emotional Distress

Elements (1) extreme and outrageous conduct by the defendant; (2) with intent to cause; (3) severe emotional suffering; and (4) causation of severe emotional distress Extreme and outrageous conduct: known as the tort of "outrage," due to a classic formulation of the standard: the conduct must be such that it would cause a reasonable person to exclaim "Outrageous!" in response. Some general factors that will persuade that the conduct was extreme and outrageous: (1) there was a pattern of conduct, not just an isolated incident; (2) the plaintiff was vulnerable and the defendant knew it; (3) the defendant was in a position of power, etc.

 Extreme and outrageous conduct is conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. Suffering must be severe -- quantified by the intensity, duration, and any physical manifestations of the distress

IIED Examples
Defendant told a woman that her husband had been seriously injured (broken both his legs) and that she needed to go to him and help carry him home. She was so frightened at the news and at not being able to find him where the defendant said he was that her hair turned white, she became ill, etc.

Intentional Tort To Protect Persons -- Defenses

Consent explicit or implied Self defense or defense of others

here

Defamation
Defamation is the (1) communication (publication) to a third party (2) of an untrue statement that (3) injures the plaintiffs reputation by exposing him to hatred, ridicule or contempt. Libel written defamation
Put something on an article, damages someones reputation

Slander spoken defamation

Defamation
Defamation is one of the few torts which budge up against legitimate Constitutional issues the First Amendment Pure opinion cant form the basis of a defamation claim With that said, it is hard to distinguish between fact or opinion in practice Generally speaking, any statement that suggests a factual basis can support a cause of action for defamation

Fact/Opinion Examples
Sagan v. Apple: Butt-Head Astronomer no statement of fact about competency as an astronomer merely, humorous
Statement of opinion, calling someone an asshole Even if an opinion satisfies all elements of defamation, it cant be defamation
Must determine if they are implying a set of facts

AAUW lawsuit: ambulance chaser with an interest only in slam dunk cases could reasonably be interpreted to imply a factual statement//context was important as well

Defenses to Defamation
Absolute privilege: defame with impunity in the following contexts: Statement made by a government official in the performance of government duties Participants in judicial proceedings Statement made between spouses

Defenses to Defamation
The truth is a defense The law presumes the plaintiff has a pristine reputation Burden on defendant to prove truth

Defenses to Defamation
Qualified privilege, i.e., a privilege which can be lost under certain circumstances A defamatory statement is protected by a qualified privilege if "made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause. Examples: an employer's response to unemployment claims, workers' compensation claims, or a response to a request for verification of employment.

 The plaintiff may typically only overcome a qualified privilege by showing actual malice. It is the plaintiff's burden to show that the defendant did not have "reasonable and proper grounds" for the allegedly defamatory statement.

Defamation of Public Figures and Media Defendants

The media (newspapers, television, or radio) have a virtually absolute privilege when they are commenting on a public official (legislators, judges, police officers) or a public figure (people in the public eye includes public corporations) Plaintiff in such a case must show actual malice statement was made with the knowledge that it was false or with a reckless disregard as to whether it was false in effect, this is an extremely high burden

Hustler Magazine v. Falwell

http://en.wikipedia.org/wiki/File:Falwellhust ler.jpg The court is going to protect this sort of parody of public figures did not satisfy the actual malice standard

Defamation Cases
http://www.infopackets.com/news/internet/ 2009/20090313_teen_files_3m_defamatio n_lawsuit_against_facebook.htm http://abcnews.go.com/Entertainment/story ?id=105826&page=1 http://www.youtube.com/watch?v=VL9Pft7 HoB8

Intentional Torts That Protect Property

ON EXAM!!! What are four property torts give me an example of each

Torts Protecting Property

1. Trespass invasion of land without the consent of the owner land need not be injured get off my property 2. Nuisance nontrespassory unreasonable interference with the use and enjoyment of land turn down your f***ing radio

Torts Protecting Property

3. Conversion exercise of dominion and control over the personal property of another who took my stuff
theft

4. Trespass to Personal Property personal property is interfered with but not converted (ie, taken, destroyed, or substantially altered) dont use my stuff
Didnt steal it or take off with it but used it

Intentional Torts To Protect Certain Economic Interests and Business Relationships

Disparagement
Publication of statements derogatory to a business in order to discourage others from dealing with the plaintiffs 1. D made false statements 2. About the quality or ownership of the plaintiffs goods or services 3. knowing that the statements were false or with conscious indifference 4. statements caused actual harm

Unfair Trade Practices

Most states have exceptionally broad Unfair Trade Practices statutes E.g., Louisianas Unfair Trade Practices and Consumer Protection Law proscribes unfair methods of competition and unfair or deceptive acts and practices which occur in the conduct of any trade or commerce.

Unfair Trade Practices

The essential elements of an unfair trade practice claim in Louisiana are proof of: 1. an unfair or deceptive trade practice, 2. that impacts a consumer or business competitor, 3. which has caused actual damage.

Unfair Trade Practices

A deceptive practice involves an element of fraud, deceit or misrepresentation, and an unfair practice is one that is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.

*Interference with Contractual Relations

Protects the right to enjoy the benefits of legally binding agreements and provides a remedy when the defendant intentionally induces another person to breach a contract with the plaintiff Typically requires the defendant to know (or should have known) about the existence of a contract and induce the party to breach

Pennzoil v. Texaco
http://www.youtube.com/watch?v=UEc8Xz n1WqU

Respondeat Superior
Means Let the master answer Employer is vicariously liable for the torts of the employee acting within the course and scope of employment Key question to impute liability: was commission of tort within the course and scope of employment? Activities must be closely connected to what the employee is employed to do or reasonably incidental to it

Successor Liability
Entities that purchase a business may be held liable for tortious acts of the previous owner Contentious subject in purchase agreements

The Top 3 Things You Should Know About Constitutional Law

Necessity of State Action

The Constitution is a check on governmental (state and federal) power. Unlike state actors, private actors are generally not required to afford individuals Constitutional rights. Application: Do you have First Amendment rights at work? School?

Federalism
Authority to govern is divided between federal and state governments Federal government has only those powers provided by the U.S. Constitution All other powers belong to states (discuss Supremacy Clause) For every piece of legislation passed by Congress, you must find Constitutional authority

Commerce Clause
Provides the basis for most federal regulation of business. Clause empowers Congress to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes. Almost any activity, even if purely intrastate, could be covered if it substantially affected interstate commerce.