Legal Wrongs And Their Remedies

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Chapter 10: Torts: Legal Wrongs and Their Remedies David Baumer, Spring 2003

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Transcript of Legal Wrongs And Their Remedies

Page 1: Legal Wrongs And Their Remedies

Chapter 10: Torts: Legal Wrongs and Their Remedies

David Baumer, Spring 2003

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Classification of Torts

– A tort is a non-contractual interaction in which the defendant wrongfully harms the plaintiff

• Torts could be – intentional--def. knew or should have known his actions would

harm the pl.

– due to negligence or lack of reasonable care

– evaluated under a strict liability standard--for certain dangerous activities defs. are liable w/o fault for the harm they cause

• Punitive damages are only recoverable if the tort is intentional or nearly so

– Def. must have had a reckless disregard for safety--driving school kids while utterly drunk

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Damages in Tort Cases

– Compensatory damages• Theory is to compensate the def. for his or her losses

– Economic losses--present value of lost future income and FMV of property

– Pls. can recover for pain and suffering, mental anguish and depression

– Impossible to fully compensate wrongful death pls. but theory often used is to replace income to survivors

– Punitive Damages• Theory is to punish def. and deter others from doing

the same thing

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Intentional Torts: Assault, Battery and False Imprisonment

• Def. is liable for an intentional tort if the injury suffered by the pl. was not intended

– Def. is liable for wrongful death even though he may have been aiming to maim the pl.

• Assault and battery often occur together, but not always

– Assault occurs when intentional actions of the def. place the pl. in apprehension of immediate harmful or offensive contact

– Battery takes place when the def. intentionally contacts the pl. in a harmful or offensive manner without justification

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Intentional Torts: Assault, Battery and False Imprisonment

• False imprisonment occurs when the def., without justification, intentionally confines the pl. within boundaries set by the def.

• Defenses– In the past companies have been able to escape liability for

intentional torts of employees by claiming that such actions were not authorized

– Employers have been found liable if at the time of intentional torts, the employee was working on the job and advancing the interests of the employer

• Employers are more likely liable if at the time of the tort they had prior notice that this employee was aggressive

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Intentional Torts: Defenses

• Employers are liable for intentional torts if they aid and abet these employees

– Employers can be liable if they were negligent in hiring

• E.g., failure to get background checks on camp counselors who then molest some children

• Other defenses--– For assault and battery defs. are allowed to use reasonable

force under the circumstances to defend themselves, their property and others who are attacked

– For most batteries in sports contests the def. can use consent by the pl. as a defense

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Intentional Torts: Defenses

– Shopkeepers are often defs. in false imprisonment suits

• The shopkeeper, or its security, mistakenly detains a suspected shoplifter

• Most states have passed statutes that give a defense to shopkeepers who

– had probable cause to believe the pl. was shoplifting

– and behaved reasonably in detaining the pl.

• Pl. was not needlessly embarrassed

• Pl. was not detained for an excessively long period

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Intentional Infliction of Emotional Distress

• Intentional infliction of emotional distress– Intentional actions that are

– extreme and outrageous behavior that result in

– severe emotional distress

• This tort has been used against bill collectors and practical jokers

– Increasingly it is being used against companies who fail to curb sexual harassment

– Statute of limitations for this tort is longer than for ‘64 Civil Rights Act

– Could be used against cyberstalkers

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Invasion of Privacy

• Any of the following has been held as an invasion of privacy

– Intrusion into a person’s solitude--a remedy against stalkers, wiretaps, hackers

– Placing a person in a false light--e.g., doctored photographs

– Public revelation of facts that the public would find repugnant

– Commercial use of someone’s name or likeness

• Must get permission of a celebrity before using the celebrity in a commercial

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Reasonable Expectation of Privacy

– If a person has a reasonable expectation of privacy, then the law will protect that interest

• Phone conversations, what happens behind closed doors, trash

– In law public figures (celebrities, politicians, athletes) have a diminished expectation of privacy

• Public officials are not entitled to privacy in the manner in which they conduct their official duties

– Misappropriation--of a person’s name or likeness• Akin to trespass to personal property without permission

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Defamation

• Defamation takes place when the def.– Makes false statements about the pl.

– that are heard or seen by third parties

– that harm the pl.’s reputation

• A publisher of an author who libels someone is equally liable

– Newsstands and libraries are not liable for libel unless they know the material they are distributing is libelous

• Defenses to defamation– Truth = def. has the burden of proof to prove what he said

was accurate

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Defamation

• Defenses to defamation suits– Privilege

• Participants in courtrooms and legislative proceedings have absolute privilege

• Qualified privileges exist for credit bureaus– Federal legislation provides protection if they follow certain

procedures when confronted by people who claim they have been defamed

– Job recommendations and evaluations--many states require pls. in these cases to show the employer knowingly gave out false information

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Defamation

– If the def. is the media and the pl. is a public figure

• The pl. has to show legal malice– Def. knew the statements were false or

– Def. had a reckless disregard for the truth

• The media can protect themselves, from the consequences of their own mistakes by requiring reporters to find two independent sources for their articles

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Fraudulent Misrepresentation

• Fraud or deceit could be tort– Five elements

• Misrepresentation of material facts

• Scienter

• Intend to defraud

• Reasonable reliance by the pl. on the misrepresentation

• Causation between the misrepresentation and the pl.’s damages

– There are numerous defenses: the statements were true, not intentional, pl.’s reliance on the statements was not justified, the misrepresentations did not cause the pl.’s damages

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Wrongful Takings and Intermeddling

• Conversion– Exercise of dominion or control over the property of

another without justification

• A conversion could be the result of an innocent mistake

• Damages in conversion are equal to the FMV of the property converted

• Conversion could take place with far less than a theft

• Trespass to personal property--intermeddling– Intentional and wrongful interference with the owner’s

possession or use of personal property

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Trespass to Personal Property

– Damages are equal to • difference in fair market value before and after the

trespass--often not much

• more recently trespass to personal property has been used against various interference that occurs in cyberspace

– Aggregators interfere with online auctions and have been successfully sued

– So far suits against Internet reporting of sports contests have not been successful

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Trespass to Real Property

– Trespass to real property• Takes place when a person goes onto the land of

another without permission or justification– Applies to intrusions that occur above and below the

surface

– Landowners are entitled to airspace over their land to a reasonable level

• Defenses – Emergency

– Recovery of personal property

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Negligence

– Defendant owes a duty to pl.• Pl. breaches the duty

• Pl. is harmed and the actions of the def.

• Are the proximate cause of the pl.’s injuries

– The negligence of the def. is based on a reasonable person standard

• If the def.’s actions fall below that standard then the def. is negligent

• Driving in excess of the speed limit is not acting reasonably

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Proximate Cause

• Proximate cause is legal causation– “But for” the actions of the def. the pl. would not have

been harmed and

– The harm to the pl. was reasonably foreseeable

• Even if the def. was in the wrong he or she is not liable for freak accidents

• Duties of landowners and possessors– At CL, landowners have a duty not to create pitfalls for

trespassers

• Landowners are liable for creating attractive nuisances--creating risks that foreseeable trespassers (children) could not appreciate

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Landowners and Possessors

– People who come on your land with your permission are called licensees

• You have a duty to warn about known dangers

• For business invitees you have a duty to warn – about dangers that you knew or should have known about

– Professionals have a duty of care consistent with their profession

• Those that hold themselves out as specialists must according to the standards of the specialty

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Negligence Per Se and Res Ipsa Loquitur

• In some situations negligence is defined by statute, – Speed limits, safety standards for products

• Res Ipsa Loquitur--the thing speaks for itself– When the def. is in control of the instrumentality that

causes the harm and

– The harm would not have normally have occurred but for negligence

– Effect of showing res ipsa is that the burden of proof shifts from pl. to def.

– E.g., a pedestrian is injured while walking legally next to a construction site and a brick falls on his head

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Defenses in Negligence Suits

– Superceding or intervening cause

• After the def. has been negligence an event occurs which causes harm to the pl.

– Assumption of risk

• Pl. is aware of the risk and voluntarily assumes it

• often defs. have pls. sign waivers so it is obvious that the pl. was aware of the risk

– Contributory negligence

• Pl.’s negligence contributed to his harm

• If shown it is a complete defense, but it has been abolished in most states

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Defenses in Negligence Suits

– Comparative negligence--– Percentage of liability by the pl. is subtracted from total

damages

– Most states require that the def.’s share of the liability or blame exceeds the pl.’s

– Good Samaritan Statutes• If a rescuer commits negligence while performing a

rescue, he or she is not liable

• Unless they are grossly negligent

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Strict Liability

• Torts that fall into the category of strict liability create liability for the def., even though the def. was not at fault– Two main categories of strict liability torts are:

• Unusually dangerous activity– Using dynamite, harboring wild animals, storing

hazardous waste

– Product liability

• Manufacturing and design

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Product Liability

• Product liability– Is composed of both tort and contract law– When a seller makes a warranty, the seller

creates strict liability for himself– In tort law,

• If you sell a product that has a defect, • and the product is the proximate cause of harm to

the pl. • you are strictly liable

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Product Liability

• Product liability is defined in the Restatements– Section 402A (1977 version)

• One who sells a product in defective condition, unreasonably dangerous to the consumer or user,

• Or to his property• Is liable for the harm to the pl. if• The seller is engaged in the business of selling this product, and• The product is expected to reach the consumer in a condition

that is substantially unchanged• Is liable to the pl. even though the seller exercised all possible

care• And there is no privity between the seller and pl.

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Product Liability

– Note that sellers are liable even though they have not handled the product

• In general manufacturers are primarily liable for defective products, but retailers and distributors could be liable if the manu. goes bankrupt

– In general, liability is based on a finding of a defect—

• three types: manufacturing, design, and inadequate warnings

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Product Defects

• Manufacturing defects– Defects that take place because the actual

product does not conform to the product design• Someone in the manufacturing process made a

mistake

• Manufacturing defects are sometimes based on the consumer expectations test

– Would an ordinary consumer expect the product to operate in this fashion, i.e., bicycles are expected to slow down when the operator applies the brakes

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Design Defects

• If there is a design defect, then all such products have the defect– Gives rise to class action suits and potentially huge

damage awards

– Three tests for design defects• Does the design conform to govt. requirements?

• Is the design at least equal to the industry average in terms of safety?

• Does the design pass a cost benefit test, such that any other design would cost far more than the gains in safety

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Design Defect

• The most recent restatement, the Restatement Third of 1998

– Calls for explicitly calls for tradeoffs between safety and cost

– Focus of Restatement Third is on foreseeable risks rather than intended use of the product

• If a use of a product is foreseeable and harmful, the seller should provide a warning

• If a product design fails any one of the tests: govt. regs, industry standards, or risk/safety tradeoffs, it will most likely be judged defective

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Inadequate Warnings

• Sellers must warn about foreseeable risks or else be liable for those who would have heeded such warnings

• Note that there is no obligation to warn about obvious risks

– Factors sellers should take into account in deciding whether to provide warnings

• Gravity and risks posed by the product

• Content and comprehensibility of the warnings

• Intensity of the expression--should signs be used

• Characteristics of user group

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Defenses

• Even though sellers of products are strictly liable for product defects there are defenses available

– Misuse of the product

– Ignoring warnings

– Assumption of risk

• In many cases, these defenses run together– Those who ignore warnings are assuming the risk

• Other defenses include– Tampering--if the seller can show that the product was safe

when it left his hands, it is a defense

– Govt. contractor defense

– State of the art defense--the risk could not have been known

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Software Products

• Currently to maintain a case against a seller or licensor of software the buyer or user has to show negligence

– For contract partners, software vendors limit liability and exclude warranties

– Third parties are not bound by contractual agreements

• Third parties can recover if it is foreseeable that negligent development of software will cause risks of harm

– For software products that have large potential impact on health and safety, the negligence standard can become a de facto strict liability standard

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Product Liability Reforms

• There is much controversy about product liability laws– Some have suggested that product liability be

made federal– Others have proposed caps on damages– State of the art defenses have been proposed