Business Law

Eleventh Edition

Chapter 5
Intentional Torts and
Negligence

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Intentional Torts and Negligence

• Tort comes from the Latin word tortum, meaning "wrong.“

Tortus in Latin means "twisted."
• A tort, in common law jurisdiction, is a civil wrong that
causes a person to suffer loss or harm, resulting in legal
liability for the other person who commits the tortious act. It
can include intentional infliction of emotional distress,
negligence, financial loss, injury, invasion of privacy, and
numerous other harms

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Intentional Torts and Negligence

• Negligence and intentionally performed wrongful

actions are legally distinct. Understanding the difference
between negligence and intentional torts is vital when
you're pursuing a legal claim
• distinguishing intentional damage from unintentional
damage.

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Intentional Torts and Negligence

• Injured party brings civil lawsuit to look for compensation for a wrong
done to the party or to the party’s property
• Tort damages are available as compensation (monetary damages)
• If the victim of a tort dies, beneficiaries can bring a wrongful death
action against defendant to recover damages

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Intentional Torts (1 of 11)
• Category of torts that requires that the defendant possessed the intent to do
the act that caused the plaintiff’s injuries
• Assault
– Threat of immediate harm or offensive contact
– Any action that arouses reasonable apprehension of imminent harm
 Actual physical contact is unnecessary

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Intentional Torts (2 of 11)
• Battery

– Unauthorized and harmful or offensive physical contact with

another person that causes injury
– There can be direct and/or indirect physical contact between
victim and perpetrator
– May accompany assault

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Intentional Torts (3 of 11)
• Doctrine of transferred intent

– Applies when a person acts with the intent to injure one

person but actually injures another
– Law transfers perpetrator’s intent from target to actual
victim
– Victim can sue the perpetrator

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Intentional Torts (4 of 11)
• False imprisonment

– Intentional confinement or restraint of another person without

authority or justification and without that person’s consent by:
 Physical force
 Barriers
 Threats of physical harm
 False arrest

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Intentional Torts (5 of 11)
• Shoplifting and merchant protection statutes

– Merchants may stop, detain, and investigate suspected

shoplifters without being held liable for false
imprisonment if:

 There are reasonable grounds for suspicion

 Suspects are detained for only a reasonable time
 Investigations are conducted in reasonable manner

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 Intentional Torts (6 of 11)
• Misappropriation of the right to publicity
to take (something) for one's own use, typically without the owner's permission.

– Attempt by another person to appropriate a living person’s name

or identity for commercial purposes
– Also called tort of appropriation
– Plaintiff’s recourse :
Recover the unauthorized profits made by the offender
Obtain an order for preventing further unauthorized use of his or her
name or identity

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Intentional Torts (7 of 11)

• Invasion of the right to privacy

– Violation of a person’s right to live his or her life without being

subjected to unwanted and undesired publicity

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 Intentional Torts (8 of 11)
• Defamation of character: False statement(s) made by one person about another

• Slander: Oral defamation

• Libel: False statements that appear in media (published)

• Plaintiff must prove that:

– Defendant made an untrue statement of fact about plaintiff
– Statement was intentionally or accidentally published to a third party

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Intentional Torts (9 of 11)
• Defamation and Public Figures as Plaintiffs

• In New York Times Co. v. Sullivan, the U.S. Supreme Court held that
public officials cannot recover for defamation unless they can prove
that the defendant acted with “actual malice.”
• Actual malice means that the defendant made the false statement
knowingly or with reckless disregard of its falsity.
• This requirement has since been extended to public figure plaintiffs
such as movie stars, sports personalities, and other celebrities.

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Intentional Torts (10 of 11)
• Disparagement
– False statements made about a competitor’s products, services,
property, or business reputation

• Intentional misrepresentation (fraud)

– Intentional defrauding of a person out of money, property, or
something else of value

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Intentional Torts (11 of 11)
• Intentional infliction of emotional distress

– Extreme and outrageous conduct that intentionally or recklessly

causes severe emotional distress to another person
– Also known as tort of outrage

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Intentional Torts (11 of 11)
Malicious prosecution

Lawsuit in which the original defendant sues the original

plaintiff for improperly filing a lawsuit

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Unintentional Torts (Negligence) (1 of 5)

• A doctrine that says a person is liable for harm that is the foreseeable
consequence of his or her actions

• Negligence: Omission to do something which a reasonable person

would do, or doing something which a wise/sensible and reasonable
person would not do

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Unintentional Torts (Negligence) (2 of 5)
• Elements of a Negligence Lawsuit

– The defendant owed a duty of care to the plaintiff

– The defendant breached the duty of care
– The plaintiff suffered injury

– The defendant’s negligent act was the actual cause of the plaintiff’s injury
– Or the defendant’s negligent act was the proximate cause of the plaintiff’s
injuries

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Unintentional Torts (Negligence) (3 of 5)
• Duty of care: Obligation people owe each other not to
cause any unreasonable harm or risk of harm
– Tests used to determine whether a duty of care was
owed:
 Reasonable person standard: Test used to determine
whether a defendant owes a duty of care
 Reasonable professional standard

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Unintentional Torts (Negligence) (4 of 5)
• Breach of duty of care: Failure to exercise care or to act
as a reasonable person would act
• Injury to plaintiff
– Personal injury or damage to the plaintiff’s property
– Damages cannot be recovered if the plaintiff suffered
no injury
– Damages recoverable depend on the effect of the
injury on the plaintiff’s life or profession

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Unintentional Torts (Negligence) (5 of 5)
Actual cause

– Causation in fact: A person who commits a negligent

act is not liable unless actual cause can be proven

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Unintentional Torts (Negligence) (5 of 5)
 Proximate cause (legal cause): A point along a chain of events
caused by a negligent party after which this party is no longer legally
responsible for the consequences of his or her actions

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There are two types of causation to look at. You must consider both of the following:

•The actual cause of the accident

•The proximate cause of the accident
In some situations, this is very straightforward because the same action is both the proximate and actual
cause. But, in other situations, they are different. This can affect your right to recover compensation.

What Is Actual Cause?

Actual cause is also called cause in fact. It is the event that was the immediate and direct cause of an
accident.
For example, if you are walking across the street while a driver is stopped at a red light and the driver’s car
suddenly enters the intersection and strikes you, the movement of this vehicle is the actual cause of the
accident.
If the driver’s car hadn’t moved into the intersection while you were walking, you would not have been hit.

What Is Proximate Cause?

The proximate cause may be different from the actual cause or the same. Proximate cause is also called
legal cause. It refers to a primary cause or an incident that set everything in motion.
If a car that is stopped at a red light enters into an intersection while you’re walking across it and strikes
you, the car’s movement is the actual cause or cause in fact of the pedestrian crash.
But, if the car that struck you was rear-ended by a large truck that pulled up behind it and the truck caused
the car to move involuntarily into the intersection, the truck was actually the underlying cause of the
incident. Its failure to stop would be the proximate cause of the pedestrian accident.
In this case, the actual cause and the proximate (or legal) cause would be different.

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Special Negligence Doctrines (1 of 4)
• Professional malpractice
– Liability of a professional who breaches his or her duty of ordinary care
– Also known as a breach of reasonable professional standard

• Negligent infliction of emotional distress

– Tort that permits a person to recover for emotional distress caused by the
defendant’s negligent conduct

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Special Negligence Doctrines (2 of 4)

• Negligence per se
– Violation of a statute or an ordinance constitutes the breach of
the duty of care
– Negligence per se is a doctrine in US law whereby an act is considered
negligent because it violates a statute (or regulation). The doctrine is effectively a
form of strict liability.

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Special Negligence Doctrines (2 of 4)
Res ipsa loquitur

• Injury would not have ordinarily occurred but for someone’s

negligence
• The defendant has exclusive control over the situation

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Special Negligence Doctrines (3 of 4)
• Gross negligence: A person is liable for harm that is
caused by his or her intentional misconduct or reckless
behavior
– Punitive damages may be assessed

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Defenses Against Negligence (1 of 2)

• Superseding or intervening event

– An event for which defendant is not responsible

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Defenses Against Negligence (2 of 2)

• Contributory negligence
– Plaintiff who is partly at fault for his or her own injuries
cannot recover against negligent defendant

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Strict Liability
• Liability without fault
– Certain activities that can place the public at risk of injury even if
reasonable care is taken
– Public should have some means of compensation if such injury
occurs

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