Published on December 11, 2007
Slide1: Chapter 5 Intentional Torts, Negligence, and Strict Liability Three Kinds of Torts: Three Kinds of Torts A tort is a wrong There are three kinds of torts Intentional torts Unintentional torts (negligence) Strict liability Intentional tort: Intentional tort Where the defendant possessed the intent to do the act that caused the plaintiff's injuries Intentional Torts against Persons: Intentional Torts against Persons Assault Battery False imprisonment Defamation of character Invasion of the right to privacy Misappropriation of right to publicity (appropriation) Intentional infliction of emotional distress Malicious prosecution Intentional Torts against Persons: Intentional Torts against Persons Assault Threat of immediate harm, or Any action that arouses reasonable apprehension of imminent harm Battery Unauthorized and harmful or offensive physical contact with another person Transferred intent Intentional Torts against Persons: Intentional Torts against Persons False imprisonment Intentional confinement or restraint of another without authority or justification and without that person’s consent Merchant protection statutes Intentional Torts against Persons: Intentional Torts against Persons Defamation False statements made by one person about another Untrue statement of fact Intentionally or accidentally published to a third party Slander Libel Public figures as plaintiffs Proof of actual malice Intentional Torts against Persons: Intentional Torts against Persons Invasion of right to privacy Violation of person’s right to live life without unwarranted or undesired publicity Truth no defense Appropriation Appropriate a living person’s name or identity for commercial purposes Intentional Torts against Persons: Intentional Torts against Persons Intentional infliction of emotional distress Extreme conduct causes severe emotional distress Roach v. Stern Intentional Torts against Property: Intentional Torts against Property Trespass to land Interference with owner’s right to exclusive possession of land Trespass to and conversion of personal property Injury to property or interference with enjoyment of property Depriving true owner of use of property by exercising ownership rights. E.g. Failure to return. Elements of Unintentional Torts (Negligence): Elements of Unintentional Torts (Negligence) To be successful in a negligence lawsuit, the plaintiff must prove: The defendant owed a duty of care to the plaintiff The defendant breached this duty of care The plaintiff suffered injury The defendant’s negligent act caused the plaintiff’s injury Elements of Unintentional Torts (Negligence): Elements of Unintentional Torts (Negligence) Duty of care Obligation not to cause unreasonable harm or risk of harm Reasonable person standard Breach of duty of care Sins of commission or omission Causation: Causation Causation in fact The defendant’s negligent act must be the causation in fact or actual cause of the plaintiff’s injuries Proximate cause A point along the 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 Professional Malpractice: Professional Malpractice Professionals, such as doctors, lawyers, architects, accountants, and others owe a duty of ordinary care, called the reasonable professional standard, in providing their services A professional who breaches this duty is liable for professional malpractice Negligent Infliction of Emotional Distress: Negligent Infliction of Emotional Distress Negligent infliction of emotional distress is a tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct A plaintiff must prove that A relative was killed or injured by the defendant The plaintiff suffered severe emotional distress The plaintiff’s mental distress resulted from a sensory and contemporaneous observance of the accident Special Negligence Doctrines: Special Negligence Doctrines Negligence per se Res ipsa loquitur Dram shop acts Social host liability Guest statutes Good Samaritan laws Fireman’s rule “Danger invites rescue” doctrine Liability of common carriers and innkeepers Liability of landowners Special Negligence Doctrines: Special Negligence Doctrines Negligence per se Violation of statute or ordinance constitutes breach of duty of care Res ipsa loquitur Presumption of negligence Defendant in exclusive control Plaintiff would not have suffered injury but for someone’s negligence Burden of proof on defendant Special Negligence Doctrines: Special Negligence Doctrines Dram shop acts Taverns and bartenders liable for injuries caused by patrons served too much alcohol Social host liability Social hosts liable for injuries Guest statutes Drivers not liable to hitchhikers for ordinary negligence Danger invites rescue Injured rescuer can sue person causing danger Special Negligence Doctrines: Special Negligence Doctrines Liability of common carriers and innkeepers Duty of utmost care Responsibility to provide security to passengers or guests Liability of landowners Invitees and licensees: duty of ordinary care (prevent injury) Trespassers: duty not to willfully or wantonly injure (prevent intentional injury) Defenses Against Negligence: Defenses Against Negligence Assumption of the risk Plaintiff knowingly enters into a risky activity that results in injury Contributory negligence Plaintiff partially at fault cannot recover against negligent defendant Comparative negligence Pure CN: Damages apportioned according to fault Partial CN: Plaintiff’s responsibility must be less than 50% Superseding or intervening event Business Torts: Business Torts Entering certain businesses and professions without a license Intentional misrepresentation (fraud) Civil RICO Strict Liability: Strict Liability Strict liability is liability without fault Strict liability doctrine There are certain activities that place the public at risk of injury even if reasonable care is taken The public should have some means of compensation if such injury occurs Strict liability was first imposed for abnormally dangerous activities Cases : Cases Fischer v. Pepsi Cola Bottling Co. of Omaha, Inc. Facts: On March 4, 1987, Fischer was in Omaha, Nebraska, attending a seminar, and was the guest of the Red Lion Inn. Fischer returned to the hotel for a swim. Following his swim, Fischer visited the eleventh floor of the Red Lion to purchase a pop from the vending machine. Fischer was still wearing his wet swimming trunks and was barefoot. As he inserted his money into the vending machine, an electrical current passed through the trunk of his body. Fischer returned to his hotel room and reported the incident to the service desk. Later that evening Fischer experienced a burning sensation while urinating. Upon his return home, Fischer began experiencing pain during as well as difficulty sustaining an erection. This led to problems with his sexual relationship with his wife. When his condition persisted, he sought medical treatment. Responding to a call by Red Lion, a service technician employed by Pepsi inspected the vending machine, but found nothing wrong. At the time he performed his inspection, Renner was wearing tennis shoes with rubber soles. Renner then called John Gruebel, Pepsi’s service foreman, and asked him to check the machine to see if he, Renner, had missed anything. Gruebel inspected the machine and received an electrical shock when he inserted his key to open it. Gruebel unplugged the machine, followed the power cord from the electrical socket to the rear of the machine, and found that the cord was resting underneath the machine’s metal cabinet. He noticed that the power cord’s metal conducting wires were exposed and came into contact with the machine’s cabinet. Issue: Is Pepsi liable for negligence? Cases : Cases Decision: Pepsi was negligent for failing to inspect the vending machine. Where evidence of a defect is produced and a repairman or route man through reasonable inspection could have discovered a defect, a finding of liability for failure to inspect may be proper. Here, uncontroverted testimony of a defective power cord was introduced. Additionally, Gruebel testified that he discovered the cord by simply moving the machine and following the cord from the electrical outlet to the rear of the machine’s cabinet. Although Pepsi argued that the cord may have been damaged by someone moving or shaking the machine and causing it to land on the power cord, an efficient intervening cause, there was testimony that an empty vending machine weighs 500 pounds and a fully stocked one weighs 600 pounds. Based on the above facts and testimony, the jury found that Pepsi’s negligence was the proximate cause of Fischer’s injury. Cases : Cases Estrada v. Aeronaues de Mexico, SA. Facts: On the morning of August 31, 1986, Theresa Estrada left her home to buy some breakfast food at a nearby grocery store. When Estrada left for the store, her husband Frank Estrada, was in his pajamas reading the newspaper in the living room. Three of the Estrada’s children, Alex, Javier, and Anjelica, were still in bed. Returning from the store, Estrada saw and felt a big explosion. Although Estrada did not know it at the time, an Aeromexico passenger airliner had just crashed into her home after colliding with a privately owned plane flown by William Kramer. Within minutes, Estrada had maneuvered her way through the debris and had arrived at her home to find it engulfed in flames. Burning homes, cars, and debris surrounded her. Estrada brought this action against the United States, Aeromexico, and the Kramer Estate for wrongful death of the Estrada family and for negligent infliction of emotional distress on Theresa Estrada. Issue: Could Estrada receive damages for negligent inflection of emotional damages? Cases : Cases Decision: Estrada established the necessary elements to receive damages for negligent inflection of emotional distress. Reason: Hug, J. A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, that plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and (3) as a result suffers serious emotional distress, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. Since Estrada was present at the scene of the fire, she was present at the scene of the injury-producing event. Estrada understandably experienced great emotional distress as a result of watching helplessly as flames engulfed her home and burned her family to death. Cases : Cases : Knight v. Jewett Facts: On January 25, 1987, the day of the 1987 Super Bowl football game, plaintiff Kendra Knight and defendant Michael Jewett, together with a number of other social acquaintances, attended a Super Bowl party at the home of a mutual friend. During half time of the Super Bowl, several guests decided to play an informal game of touch football on an adjoining dirt lot, using a “peewee” football. Each team had four or five players and included both women and men; plaintiff and defendant were on opposing teams. No rules were explicitly discussed before the game. Five to ten minutes into the game, defendant ran into plaintiff during a play. According to plaintiff, at that point she told defendant “not to play so rough or I was going to have to stop playing.” Her declaration stated that “[defendant] seemed to acknowledge my statement and left me with the impression that he would play less rough prospectively.” In his deposition, defendant recalled that plaintiff had asked him to “be careful,” but did not remember plaintiff saying she would stop playing. On the very next play, plaintiff sustained the injuries that gave rise to the present lawsuit. As defendant recalled the incident, his team was on defense on that play, and he jumped up in an attempt to intercept a pass. He touched the ball but did not catch it, and in coming down collided with plaintiff, knocking her over. When he landed, he stepped backward onto plaintiff’s right hand, injuring her hand and little finger. Both plaintiff and Andrea Starr, another participant in the game who was on the same team as plaintiff, recalled the incident differently from defendant. According to their declarations, at the time plaintiff was injured, Starr had already caught the pass. Defendant was running toward Starr, when he ran into plaintiff from behind, knocked her down, and stepped on her hand. Starr also stated that, after knocking plaintiff down, defendant continued running until he tagged Starr, “which tag was hard enough to cause me to lose my balance, resulting in a twisting or spraining of my ankle.” The game ended with plaintiff’s injury, and plaintiff sought treatment shortly thereafter. After three operations failed to restore the movement in her little finger or to relieve the ongoing pain of the injury, plaintiff’s finger was amputated. Plaintiff then instituted the present proceeding, seeking damages from defendant on theories of negligence and assault and battery. Issue: Was recovery barred by the doctrine of assumption of risk? Cases : Cases Decision: A divided California Supreme Court decided recovery was barred by the doctrine of assumption of risk. Reason: George, J. In cases involving “primary assumption of risk,” where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from a particular risk of harm that caused the injury, the doctrine continues to operate as a complete bar to the plaintiff’s recovery. In cases involving “secondary assumption of risk,” where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty, the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. The resolution of this issue turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff. The court concluded that a participant in an active sport breaches a legal duty of care to other participants, i.e., engages in conduct that properly may subject him or her to financial liability, only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. The declarations filed in support of and in opposition to the summary judgment motion establish that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. The defendant’s conduct in the course of the touch football game did not breach any legal duty of care owed to plaintiff. Accordingly, this case falls within the primary assumption of risk doctrine, and thus the trial properly granted summary judgment in favor of defendant. Cases : Cases Klein v. Pyrodyne Corp. Facts: Pyrodyne, while involved in displaying fireworks at a public gathering had one of the mortar launchers discharge a rocket on a horizontal trajectory. The rocket exploded near a crowd of onlookers, and Klein was injured. He sued Pyrodyne for strict liability. Pyrodyne claimed that harm occurred because the manufacturer of the rocket was negligent. Pyrodyne appealed a trial court decision for Klein. Issue: Is Pyrodyne strictly liable? Cases : Cases Pyrodyne is strictly liable to Klein. Reason: Any party carrying on an abnormally dangerous activity is strictly liable for harm that results. Any time a person ignites a rocket in the presence of a large crowd of people, a high risk of serious personal injury or property damage is created. Furthermore, no matter how much care is exercised, the high risk cannot be entirely eliminated. Thus, the activity is ultrahazardous. Therefore, this type of activity justifies the imposition of strict liability. Intervening acts of third parties relieve the party of this liability only if those acts were unforeseeable. Negligence on the part of the fireworks manufacturer is foreseeable. Therefore, Pyrodyne’s defense does not relieve it of liability. Cases : Cases Intentional Tort 5.1. Yes, Ross Grimsley and the Baltimore Baseball Club, Inc. are liable for the injuries suffered by David Manning when a ball thrown by Grimsley struck him. The Court held that the defendants were liable for the intentional tort of battery under the transferred intent doctrine. Under this doctrine, the law transfers the perpetrator’s intent from the target person to the actual victim of the act. In this case, the Court found that Grimsley was an expert pitcher, that on several occasions immediately following the heckling he looked directly at the hecklers, not just into the stands, and that the ball traveled at a right angle to the direction in which he had been pitching and in the direction of the hecklers. The jury could reasonably have inferred that Grimsley intended to throw the ball in the direction of the hecklers, to cause them imminent apprehension of being hit, to respond to conduct presently affecting his ability to warm up and, if the opportunity came, to play in the game itself. Thus, even though Grimsley aimed the ball at a heckler but hit Manning, the Court held Grimsley liable for an intentional tort to Manning under the transferred intent doctrine. The Baltimore Baseball Club, Inc., is liable because Grimsley was an agent of the Club at the time of the incident. Manning v. Grimsley, 643 F.2d 20 (1st Cir. 1981). Cases : Cases Merchant Protection Statute 5.2. No, K-Mart Enterprises, Inc. (K-Mart) is not liable to Deborah Johnson for false imprisonment. The Court held that K-Mart was protected from liability because it complied with the Wisconsin merchant protection statute. This statutory “shopkeeper’s privilege” permits merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if (1) there are reasonable grounds for the suspicion, (2) the suspect is only detained for a reasonable time, and (3) the investigation is conducted in a reasonable manner. In this case, the Court held that K-Mart had reasonable grounds to suspect Johnson of shoplifting because the price tag remained on the child’s seat and Johnson was hurrying to leave the store. Second, Johnson was detained for a reasonable time, i.e., for not more than 20 minutes. And third, the investigation was conducted in a reasonable manner. The security guard requested Johnson to return to the store, she was questioned in a reasonable manner, and was released as soon as the evidence indicated that she had not shoplifted the child’s seat. The Court held that K-Mart was protected from liability for false imprisonment by the statute. Johnson v. K-Mart Enterprises, Inc., 297 N.W.2d 74 (Wis.App. 1980). Cases : Cases Right to Privacy 5.3. Yes, Marvin Briscoe’s complaint stated a cause of action for invasion of the right to privacy. The law recognizes the right of each person to live his or her life without being subjected to unwarranted and undesired publicity. A successful plaintiff must prove that the defendant published a private fact about the plaintiff. If the fact is public information, there is no claim to privacy. The issue in this case is whether the publication by Reader’s Digest of the fact of Briscoe’s hijacking of a truck eleven years after the event occurred was the publication of private or public fact. The Court held that a fact that was once public may become private after the passage of time. The Court stated: The right to keep information private was bound to clash with the right to disseminate information to the public. We early noted the potential conflict between freedom of the press and right of privacy. Particularly deserving of First Amendment protection are reports of “hot news,” items of possible immediate public concern or interest. The need for constitutional protection is much greater under these circumstances, where deadlines must be met and quick decisions made, than in cases where more considered editorial judgments are possible. There can be no doubt that reports of current criminal activities are the legitimate province of a free press. However, identification of the actor in reports of long past crimes usually serves little independent public purpose. Once legal proceedings have terminated, and a suspect or offender has been released, identification of the individual will not usually aid the administration of justice. There may be times, of course, when an event involving private citizens may be so unique as to capture the imagination of all. In such cases, e.g., the behavior of the passengers on the sinking Titanic, the Saint Valentine’s Day Massacre, purely private individuals may by an accident of history lose their privacy regarding that incident for all time. There need be no “reattraction” of the public eye because the public interest never wavered. Cases : Cases It would be a crass legal fiction to assert that a matter once public never becomes private again. Plaintiff is a man whose last offense took place 11 years before, who has paid his debt to society, who has friends and an 11-year-old daughter who were unaware of his early life, a man who has assumed a position in “respectable” society. Ideally, his neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life. Yet, as if in some bizarre canyon of echoes, petitioner’s past life pursues him through the pages of Reader’s Digest, now published in 13 languages and distributed in 100 nations, with circulation in California alone of almost 2,000,000 copies. The Court held that a jury could reasonably find that plaintiff’s identity as a former hijacker was not newsworthy, that revealing one’s criminal past for all to see is grossly offensive to most people, and that in no way can plaintiff be said to have voluntarily consented to the publicity accorded him. Briscoe had stated a cause of action for invasion of the right to privacy against Reader’s Digest. Briscoe v. Reader’s Digest Association, Inc., 4 Cal.2d 529, 93 Cal.Rptr. 866 (Cal. 1971). Cases : Cases Negligence 5.4. The Automobile Club of Southern California (Auto Club) wins. The Court held that the Auto Club was not negligent to Yanase. The law provides that in order for a defendant to be held liable for negligence, he must owe the plaintiff a duty of care and must breach this duty. In this case, the complaint failed to state sufficient facts to support an action for negligence against the Auto Club. This was because the Court found that the Auto Club did not owe or breach a duty to Yanase regarding the safety of the Royal Lodge. The Auto Club’s Tourbook never made a claim that the listing and rating service included a finding that the neighborhood surrounding the motel was safe or that its security measures were adequate. The Tourbook only addressed the motel’s accommodations as to the quality of its lodging, food, and services. The scope of any duty of care owed by Auto Club to its members did not extend to neighborhood safety and security measures. The Court granted Auto Club’s motion on the pleadings. Yanase v. Automobile Club of Southern California, 212 Cal.App.3d 468, 260 Cal.Rptr. 513 (Cal.App. 1989). Cases : Cases Causation 5.5. Yes, there was causation in fact and proximate cause linking the defendants’ negligence to the fatal accident in which Mr. Davis was killed. A person who commits a negligent act is not liable unless this act was the actual cause and proximate cause of the plaintiff’s injuries. Actual cause is measured by the “but for” test, which may be stated as follows: the defendant’s conduct is not a cause of the event if the event would have occurred without it. In this case, the Court held that if General Motors had not negligently manufactured the alternator, the truck would not have stalled, and there would not have been a stationary vehicle on the freeway for the decedent to hit. Therefore, causation in fact existed. The law establishes a point along the damage chain after which a negligent party is no longer responsible for the consequences of his negligent act. This limitation on liability is referred to as proximate cause or cause in foreseeability. The Court in this case held that General Motors’ negligence was the proximate cause of the decedent’s death. A jury could reasonably find that the malfunction of a piece of automotive equipment would place any person using the highway in danger of bodily injury. The Court held that the defendant’s negligence was the actual and proximate cause of Mr. Davis’ death. General Motors Corporation v. Davis, 233 S.E.2d 825 (Ga.App. 1977). Cases : Cases Negligence Per Se 5.6. Julius Ebanks wins. The Court held that he could recover damages from the New York City Transit Authority for the injuries suffered when his foot became caught in the escalator under the doctrine of negligence per se. In a negligence per se action, the plaintiff must prove (1) that a statute existed, (2) the statute was enacted to prevent the type of injury suffered, and (3) the plaintiff was within the class of persons to be protected by the statute. Under the negligence per se doctrine, the injured party does not have to prove the plaintiff breached his duty because the statute establishes that. The Court in this case held that the building code established the requirement that a “gap” between an escalator step and escalator wall not exceed 3/8-inch. Evidence showed that the gap in this case in which Ebanks’ foot became caught was 2 inches, therefore violating the building code. The Court held that the building code was adopted by the city to prevent the type of injury suffered by Ebanks and that he was within the class of persons to be protected by the building code. The Court held that the elements for negligence per se had been established. Ebanks v. New York City Transit Authority, 70 N.Y.2d 621, 518 N.Y.S.2d 776 (N.Y.App. 1986). Cases : Cases Res Ipsa Loquitur 5.7. Yes, the doctrine of res ipsa loquitur applies to this case. When res ipsa loquitur applies, it raises an inference or presumption of negligence and places the burden on the defendants to prove they were not negligent. Res ipsa loquitur applies in a case where (1) the defendant had exclusive control of the instrumentality or situation that caused the injury and (2) the injury would not have ordinarily occurred but for someone’s negligence. The Court held that Elise Mack properly relied on the doctrine of res ipsa loquitur. The hospital and medical personnel, particularly Dr. Jahr, were in control of the situation in which Mack was injured. Further, the burns suffered by Mack because the grounding pad was not properly affixed to her during the surgery would not have ordinarily occurred but for someone else’s negligence. Mack was under anesthesia during the operation, was not in control of the situation, and did not contribute to the negligence in this case. The Court upheld a jury award of $75,000 to plaintiff Mack under the theory of res ipsa loquitur. Mack v. Lydia E. Hall Hospital, 503 N.Y.S.2d 131 (N.Y.Sup.Ct. 1986). Cases : Cases Social Host Liability 5.9. The Alpha Kappa Lambda Fraternity wins and is not liable for the death of one of its members, David Andres. The Court held that under Missouri law social hosts are not liable for injuries caused to persons to whom they serve alcoholic beverages, even minors. The Court applied public policy and reasoned that to impose liability upon social hosts would have a substantial impact on everyday social and family affairs. The Court also based its decision on the following facts: (1) that unlike commercial vendors of alcoholic beverages, social hosts do not realize any personal gain from the furnishing of alcoholic beverages and for this reason they have no incentive to encourage excessive consumption, (2) a typical social host lacks the experience required to evaluate the quantity of alcohol a guest can safely consume, and (3) commercial vendors are able to insure themselves against risks of furnishing alcoholic beverages while such insurance is not readily available to social hosts. The Court rendered judgment for the defendant fraternity. Note: Several states have held that social hosts are liable for injuries caused by serving excessive alcohol to guests or any alcohol to minors. Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. 1987). Cases : Cases Liability of Common Carriers 5.10. Carmen and Carla Lopez win. The Court held that the Southern California Rapid Transit District breached its duty of care and failed to protect Carmen and Carla from the violent attack they were victims of while riding an RTD bus. The State of California imposes a duty of utmost care (rather than ordinary care) on public and private carriers. The Court held that this duty includes an obligation to protect passengers from assaults by fellow passengers. Imposing this duty on public carriers is not unreasonable, since they have many methods that may be employed to protect passengers. The Court held that a special relationship exists between the carrier and the passenger because bus passengers are “sealed in a moving steel cocoon,” have no control over who is admitted onto the bus, and are wholly dependent on the bus driver to summon help or provide a means of escape when an occasion arises where such assistance is necessary. Further, the RTD was aware of previous violent attacks that had occurred on its bus routes. Lopez v. Southern California Rapid Transit District, 40 Cal.3d 780, 221 Cal.Rptr. 840 (Cal. 1985).
that should be submitted to the jury or whether the facts are one-sided in favor of one party." from LEGAL 298 at Mountain State