The Law of Torts

THE LAW OF TORTS

SLIDE I THE LAW OF TORT comes from the French word “to wrong someone: SLIDE 2 WHAT IS A TORT? Book definition: private wring committed by one person against another A tort occurs when someone deliberately or through carelessness causes harm or loss to another person or their property.

It’s a civil law matter which means only the interests of the particular individuals who were harmed are involved. (Personal injury)

The main purpose of tort law is for the wrongdoer (defendant) to compensate (pay back) the person who suffered a loss or injury (plaintiff), not to punish the person who is responsible (no jail time). Process involves determining who is at fault and the extent of the damage. The wrongdoer must repay the injured person. This is generally about money. What are they going to look at: who is at fault and what injuries sustained?

Was freezing rain falling when Martina fell? Was Stewart teasing Reuben’s dog?

If Main Street Pharmacy and Reuben were found to be at fault, they would have to pay for any loss or injury. This payment is called "damages." This would include out-of-pocket expenses such as dental or medical bills, lost wages or the cost of a new jacket.

There are other types of damages for which a dollar value is hard to attach. Martina and Stewart suffered pain which cannot be reversed. An amount of money may be given to compensate for things such as pain and suffering.

Most torts involve automobile accidents. Most involve “negligence”

(SHOW VIDEO OF GIRL AND DOG BITE) SLIDE 4 Actually five areas of tort: intentional, negligence, strict liability, true legal accident, and a group (nuisance, fraud, invasion of privacy, defamation of character) We will look at each separately.

The key word is INTENT. The person knew that what they were doing would harm someone. Person who commits tort: tortfeasor (Assault, battery, trespassing, false arrest, false imprisonment, infliction of emotional distress--sending a letter to an individual falsely informing the person that a close family member had been killed in an accident.

FYI --A WRONG IN CRIMINAL LAW IS CRIME; A WRONG IN CIVIL LAW IS TORT.

TAKE THE VICTIM AS YOU FIND THEM: You have a friend and want their attention so you kick them in the leg. Your friend has a wound and your kick irritates that wound. It gets infected--your friend loses his leg--you get sued. YOUR DEFENSE: LACK OF KNOWLEDGE, YOU DIDN’T INTEND TO HURT FRIEND, ONLY GET HIS ATTENTION

IT DOESN’T MATTER THAT THERE WAS AN INJURY BEFGORE, YOUR ACTIONS MADE THE CONDITION WORSE AND YOU WILL BE LIABLE FOR MOST CONSEQUENCES.

NEGLIGENCE--This is a huge area of personal injury-- Medical Malpractice big. We’ll go back to this area. A study concluded in 2006 indicated 1.5M people per year are harmed by some form of medical malpractice.

STRICT LIABILITY ---this applies to ultrahazardous activities that involves great risk to people and property (ex: using explosives, keeping wild animals, storing flammable materials in populated areas) It can also apply to product liability cases. Asbestos cases, heart medications, helmets, smoking, if you are a dynamite manufacturer, etc.. One well known is:

Liebeck v. McDonald's Corporation, a.k.a. the "McDonald's coffee case", is a well-known product liability lawsuit in the United States that became a flashpoint in the debate in the U.S. over tort reform.

In February, 1992, Liebeck, a 79-year-old woman from Albuquerque, New Mexico, ordered a 49-cent cup of coffee from the drive-thru of a local McDonald's restaurant, which she then spilled on her lap. The hot coffee scalded her, and she subsequently sued McDonald's. In 1994, the jury awarded her US$2.7 million in damages. The award was reduced to $640,000 by the judge. The decision was appealed by both McDonalds and Liebeck, and the parties eventually settled out of court for an undisclosed amount.

You own a dog but you must have control over that dog. If your dog should bite someone, you will be strictly liable--whether your dog has never shown biting tendencies or not. (Video on little girl bitten by dog

Someone gets hurt, but no one is at fault--it’s a rare situation. You are walking through the Penetentiary Glen and a tree falls on you. Rare--Act of God/Nature.

INTENTIONAL TORT-liable for almost all the consequences. You take the victim as you find them--if I have a bad back and through your actions, irriated my bad back problem-- such as hitting me in the back, poking at my back, jumping on my back, you will be responsible for consequences. You may not have foreseen the harm/danger but will be held.

You knew what you were doing could harm someone, did it anyway, liable for consequences.

UNINTENTIONAL TORT--We each have a duty to look out for each other, and through negligence, breach that duty.

INTENTIONAL TORTS LISTED ON P. 81 OF YOUR BOOK LET’S LOOK AT A FEW OF THEM. SLIDE 12 BATTERY - EVERY TORT HAS A GIST (jist) WORD--(KEY WORD) and battery is contact. Looking for some form of contact. It is the unwanted touch, regardless of intent of the wrongdoer. A defendant who emphatically pokes the plaintiff in the chest with his index finger to emphasize a point may be culpable for battery (although the damages award that results may well be nominal). A defendant who spits on a plaintiff, even though there is little chance that the spitting will cause any injury other than to the plaintiff's dignity, has committed a battery.

ASSAULT - ASSAULT occurs because the victim FEARS immediate battery. The fear alone does not constitute assault. Terrorist with a grenade on a plane--assault--yes, it’s immediate Two men wave metal pipes threateningly at each other in an alley. They are ten feet away from each other. When one man advances, the other retreats, maintaining the distance between them. The police come and break up the disturbance. They charge each man with assault.

The men would probably not be found guilty in an American common law jurisdiction. Being ten feet away does not make it likely or apparent that he would have the present ability to carry out an unlawful act.

However, they would probably be found guilty in a modern American jurisdiction. Each actor is trying to cause bodily injury to another and the fear of bodily injury is reasonable

if you believe a person is going to spit on you, depending upon the context it may be reasonable to push the person away, but it would not be reasonable to hit the person with a baseball bat. Fear of being spit on may be assault. Your defense is the push to avoid it.

Just because I fear someone because they said they would hurt me does not meet level of apprehension.

ASSAULT AND BATTERY TIED CLOSELY TOGETHER. If Matt has his hat beside him, not on his head, and I approach him and start threatening to knot the hat to the ground--assault If Matt has the hat on his head and I knock it off--that is battery SLIDE 14 Gist word is confinement. Knowing you cannot leave. You must have knowledge of the confinement. ex: I shut the door and say no one can leave. The bell rings and everyone has to stay here--Ryan is sleeping at the time. Ryan could not sue for false imprisonment because he was not aware of the confinement. If you don’t have knowledge of the confinement, you cannot sue for it. No reasonable means of escape is false imprisonment. You can try to escape but could get hurt escaping.

Will be looking for three conditions for false imprisonment: 1. is there confinement--door shut, can’t leave 2. is there knowledge of the confinement? 3. is there no reasonable means of escape. If there is a back door then is would not be false imprisonment because there is a means of exiting. ex: I have my bazooka. If you leave this room, I will kill you tomorrow. False imprisonment? No because you can leave.

Not favored by most courts because it is a wide open area. ex: The Texas case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The defendant then showed this videotape to numerous individuals and caused severe distress to the plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent infliction of emotional distress. Courts would not recognize infliction of mental distress claim but rather considered it a tort of negligence--defamation of character, invasion of privacy issue. ex: An elderly couple owned a motel and put an ad for a housekeeper. A beautiful girl applied until she opened her mouth--her teeth were terrible. She worked for them and did a good job. One day, the couple told her she was such a good worker and her appearance would improve so much if she got dentures--you can pay us off over the year. She gets the dentures and looks great--like a movie star. One day she tells them she got an offer from a hotel chain and was giving them notice. The couple were distraught. She said she would still pay off the loan but I need the money for my family.

Don’t you feel any guilt about leaving us? I have to take care of my family. She starts to walk away and the husband grabs her and tells the wife to get the teeth from her mouth. The wife puts her hands in the girls mouth and grabs the dentures.

The girl is toothless. Does she have a right to sue the owners? For what? They just wanted the dentures back. They paid for them. This is extreme and outrageous conduct. How many say she had a great case for intentional and mental distress. She won and won big. The couple lost their hotel.

VIDE0: INFLICTION OF MENTAL DISTRESS

Trespass to Property--Intrusion--going on someone else’s property without permission. Property owners can use reasonable force to protect property but setting booby traps to hurt trespassers or shooting them is extreme. Meter readers, door-to-door salesman, missionaries (Jehovah Witnesses) or police officers have legal right and would not be treated as trespassers. Making property private property can be done by a fence, sign. In some jurisdictions, trespassing is not limited to humans--if cattle or dogs enter your property, you are responsible for the animal’s trespass.

Trespass to Chattels--chattel being a person’s personal property. Any action that intentionally interferes with a plaintiff’s possessory interest in his personal property may be subject to a trespass to chattels claim The mechanic at the garage test drives your car and returns a damaged vehicle--he has an accident along the way. Harm must be done to the plaintiff--economic harm in this case. Current uses of this claim include internet: internet spam, internet advertising, and complaints against spyware. SLIDE 19 Conversion--Wrongful interference with another’s property. Stealing is a form of conversion. conversion can also be accomplished by moving, transferring, discarding, hiding, vandalizing, or destroying another person's chattel. Merely using another person's chattel can be grounds for conversion in certain cases. ex: You borrow my lawnmower--don’t return it; in fact, you sell it at your garage sale.

REVIEW OF SLIDES 1-19

THERE ARE DEFENSES TO INTENTIONAL TORTS: You get hit playing football===consent--you gave permission Right to defend yourself with as much force as used against you--Self defense You are in a bar and see an innocent person being beat on--you go to his assistance---defense of others You have the right to defend what is yours--defense of property Public/Private Necessity-- Public is for the greater good--ex: burning of towns to stop spread of cholera Condemning neighborhood--toxic landfill homes built on Private Necessity--damage to another’s property out of necessity-- Out of boat--storm comes up, race to shore, hit a private dock Will have to pay for dock repairs but necessary to save live

NUISANCE-- Your next door neighbor has a band and makes noise at 2-3 am every morning; the plant near where you lives emits a terrible odor every day- -nuisance However, what if you moved in knowing the conditions of the plant--any tort? NO SLIDE 22 INVASION OF RIGHT TO PRIVACY You have the right to your little corner of the world--it’s your business, no pictures of you and then putting them in the paper, etc.---invasion of privacy

Unwarranted appropriation or exploitation of one’s personality: ex: you get a picture or personally autographed picture from a public figure (ROCK STAR) You make copies of it and sell it for money. You cannot exploit a person without their permission. You cannot publicize affairs. How about those that dishonor an office such as Clinton affair You cannot intrude in another’s life or activities (taking pictures as bathing nude by pool at their home; pictures through a window, etc.

March Playboy Issue (2006) Jessica Alba is suing Playboy for unauthorized use of her image for commercial purposes. The result: She dropped the suit after Hefner sent her a personal letter of apology, donated money to two of her charities. CURRENT--- Miss New Jersey posed for pictures with suggestive captions on a private site on the internet. She is being blackmailed to relinquish her crown or the pictures will go public. She has refused at this point.

NO TORT if you consent to the invasion. Sure you can take pictures of us at the pool. Qualified Privilege granted teachers--invasion of privacy granted me as long as talking about your class work/behavior, etc. Am I protected outside of school? NO Absolute privilege granted Congressmen. Why do you think they talk the way they do? Kerry saying their wouldn’t have been this mess in the Middle East if he had been President. Ridiculous but absolute privilege. SLIDE 25 FRAUD - another type of business type tort. Intentionally deception/trickery Rick Case Honda sold a 2001 bike as a 2003 bike. They claimed there was no differences. The judge said it was a 2001--misrepresented as 2003. This is fraud. The promotion of tobacco products provides one example of a deception that has resulted in untold public harm over many decades. Indeed, at the end of the twentieth century after some fifty years of avoidance, the tobacco industry was being called to task for its deceptive actions. Substantial financial penalties have been ordered by the courts.

If you borrow money from a friend telling them you need it for lunch and you intend to buy cigarettes with it, that is fraud.

There is a story about a rabbi and a young man. In a little village 98% Jewish, the rabbi was the most respected person in the village. In fact, most parents would be honored to have their daughter marry the rabbi. The rabbi was very popular and all the girls gathered around him all the time. One young man loved a girl that loved the rabbi. The young man spread some gossip about the rabbi--that he was gay. Soon, the parents were shielding their daughters and children from the rabbi. The young man regretting what he did, told the rabbi what he did and asked for his forgiveness. Being a good rabbi, he said he would forgive him but first he must do something. He told him to bring a pillow and a knife to the mountain top. The next morning the rabbi and the young man met at the mountaintop. The rabbi told him to hold the pillow up high and with his knife, slit the pillow in half which he did. The pillow was filled with feathers which scattered everywhere. The rabbi said, now go collect all of the feathers and you will be forgiven. The moral: once a false rumor is started, it is never forgotten. There is always lingering doubt. SLIDE 27

Defamation is the publication of untrue statements about someone else that injure that person's reputation or character. Defamation is a matter of tort law. SLANDER--oral defamation--spoken words-- LIBEL - written defamation but also print, pictures, anything in visual form SLIDE 28 1) Is calling someone an idiot enough? no. To qualify for defamation, a defamatory statement must be made about the plaintiff (untrue statements that injure the person’s reputation/character) ex: But if you turn in an essay, and the rumor is spread that that got your information from the Internet--plagiarism and it is not true--that is a defamatory statement. You pass around that two teachers are having an affair and it is not true--slander/defamation of character. 2) Something must be communicated to a third party 3) There must be injury to your reputation HANDOUT OF NY VS. SULLIVAN In New York Times v. Sullivan, the Supreme Court held that the First Amendment requires that, before a public official can recover damages for a defamatory statement, he must prove it was made with "actual malice", even if state laws otherwise allow recovery for negligent defamation. The Court has since expanded this to cover not only public officials but "public figures", including individuals who involve themselves in controversies.

Examples of defamatory statements

Defamatory statement must assert fact; not opinions. Your opinion does not hold up in a court of law SLIDE 31 What is your defense? You were given consent to say what you said; it is true; you have absolute or qualified privilege to say what you said. Congressmen have absolute privilege. This is to ensure their ability to debate openly on legislative/judicial issues without fear of being sued. Teachers have qualified Privilege as discussed previously.

SO WHAT IS THE DIFFERENCE BETWEEN A PUBLIC AND PRIVATE PERSON? Private Person--you and me Public Person--they have freely chosen this lifestyle and with it they are exposed to close scrutiny by the press and paparazzi. Public personalities must show it damaged their reputation more than that of an average person. ex: Mel Gibson and his anti-sementic remarks about Jews while drunk. If true, could ruin his career????

FYI -Innocent Construction Rule:

FYI: SO WHAT DOES A DEFAMATORY STATEMENT HAVE TO SHOW?

VIDEO: RESTAURANT W/BUGS

NEGLIGENCE -- Failure to exercise reasonable care under the circumstances so that a foreseeable risk to another person is created resulting in an injury to the plaintiff. ex: I am eating a banana, and I throw the banana peel by the door. Right away your mind should have a vision of what could happen if you slip on the banana. That is a foreseeable risk. We are talking about he failure to exercise reasonable care under the circumstances. Anyone that sees a banana peel on the floor--are you going to pick it up or just ignore it? A reasonable person would be able to foresee the risk. That is negligence--failure to exercise reasonable care under the circumstances so that a foreseeable risk to the other person is created resulting in an injury to the plaintiff. ARTICLE ON EDITH RODRIGUEZ.

1. Everyone owes a DUTY to everyone else not to hurt somebody. 2. If this duty is breached (violated) and because of that breach, we suffer damages but to win money on this, you must be able to directly point the finger at someone and say you caused it--you threw that banana peel on the floor and caused my injury 3. That is causation--that ability to point your finger at the person who breached their duty and say you did it. (causation---act that produces an effect) 4. You will be responsible for my injuries through what is called damages. The key to Tort Negligence Law--were you the reason that another person was hurt. Did you create a foreseeable risk?

The World Trade Center tragedy is a great negligence case against our government intelligence policy. The way the entire thing was set up; Think about what the terrorists had to plan to take down the Word Trade Center. 1. Did our government have a duty to protect its citizens 2. Was that duty broken? 3. Could a finger be pointed at the breakdown of duty? Our intelligence? over 6,000 people died 4. Did we suffer damages? Loss of life. How do you fix a cost to a life, a limb, emotional trauma, loss of business. We are finding in hindsight that we were lax in our security, we got careless. SLIDE 37 911 Call by 5-year old. His mom just had a heart attack.

VIDEO--DEATH OF STEPMOM--FRANTIC CALL MADE TO RESCUE This really happened in Dallas and there was a negligence case. This was an 8-minute time frame on the phone with the son. Could they have saved her life? Possibly. The nurse was fired. The police officer suspended. The stepson sued for $400,000. This was a case of true negligence.

There must be a foreseeable plaintiff and everyone here is a foreseeable plaintiff. If anything happens to you in this classroom, I could be charged with negligence if I don’t do anything. ex: I come into the classroom and you are all standing one one foot blindfolded. I say cute and move on with the lesson leaving you as I see you. Are you a foreseeable plaintiff? Yes. Do I owe a reasonable standard of care?

Under normal circumstances, reasonable care should be provided all in need. Under horrendous circumstances such as the World Trade Center, choices must be made as to who should live and die. Negligence? As long as justifications can be made.

The rules state that children under the age of 4 are incapable of negligence but over 4, they are compared with those of similar attributes, such as similar age, intelligence, experience. In other words, over 4, it is the belief that they know right from wrong, what may be dangerous, etc.

This is a sad case of a 4-year-old who got his hands on a gun, killed his sister, seriously wounds his brother. (2 SLIDES)

professionals--you go to your regular family doctor with problems. What degree of care of you expect? Average. Reasonable care

If sent to a specialist--what degree of care of you expect? National standards to abide by

Common Carriers and Innkeepers-- Common Carrier--Bus; Innkeeper--Hotels ex: If staying at a hotel you leave so the maid can make up the room. She leaves the door open and tends to another room. Someone comes in and steals your luggage--they are liable--they were negligent. ex: If a guy is on the bus--he uses the restroom but forgets to lock the door The bus driver swerves and hits his brakes to avoid a woman jaywalking across the street. As a result, the door flies open, the guy is thrown off the toilet, hits the side wall and his bare behind is exposed to everyone on the bus. Slight negligence? NO. He should have locked the door

GUEST STATUTES--you are hitch hiking. You are a non-paying guest so you must show complete disregard on the part of the other party. A car stops and picks you up--you get in, the driver offers you some cocaine, no say no but the driver uses it while driving--an accident occurs--Reckless disregard for your safety.

Derby: Elephant vs. Hartford

WHAT WAS THE NEGLIGENCE MODEL IN SUMMARY: 1. Duty--everyone has a duty not to harm anyone else. 2.Was there a breach of duty--did your actions inflict harm 3. Was there causation--you caused it 4. Are there damages?

ex: The banana peel--you take the thrower of the peel out of the picture, would anyone have gotten hurt. If the answer is no, YOU caused the injury==that is actual causation. Causation is hard to prove: If the foreseeable risk (such as a banana peel) can’t be foreseen, you cannot hold person liable even if you know they are guilty. ex: A woman gets a call her sister died. She calls the paper and tells them not to deliver for two weeks because she will not be home. They deliver it anyway. Her house is vandalized while she is gone. When she returns, she finds papers spread all over her yard and house vandalized. Sues the paper. Would she win? Take paper issue out of the picture, would anything have happened? Maybe, maybe not. The trier of fact would look at the foreseeability or lack of foreseeability? Her house may have been broken into anyway and vandalized.

You own property and people come onto your property. Undiscovered trespasser--if you have no knowledge of a trespasser, you have no basic duty of care. Let’s say you have a sinkhole on your property. If you don’t know it’s there you have no duty, but if you see footsteps---you must indicate a sinkhole -- we have a reasonable duty of care

Licensee -- door to door--if you have a dog, you better have control of it. If you open the door to the sales person and the dog flies out and bites them, you are liable.

Invited guests--if you invite guests and they are injured--you are responsible. You have a duty to check your property, steps, etc. for safety

Attractive Nuisance--swimming pools, old refrigerators, etc. you are responsible for any injuries that occur.

Some activities are so dangerous that the law will apply neither the principal of negligence or rules of intentional torts to them. Should these activities injure someone or damage being/property, those engaged in these activities will be held liable no matter how careful they were.

Animals--your dog bites someone--you are liable Exotic Pets--snakes, poisonous spiders, etc. Products--if people inured from defects in the project bought at the marketplace, the firm that manufactured the products will be held liable. ex: I buy a lawnmower, the blade flies off and injures me--firm liable I buy a lawnmover, modify it myself--the blade flies off--firm not liable Once you modify, you remove the liability from the manufacturer and cannot sue for any negligence.

DERBY: SLAGLE VS. WHITE CASTLE VIDEO: JUMPING THEIR WAY THROUGH COLLEGE DO VIDEO BRIEF: PLAINTIFF: ONE WITH CRUNCHED NOSE DEFENDANT: JUMPIN ATHLETE VIDEO: PLEASANT VS BLUE MOUND SWIM CLUB

DEFENSES TO NEGLIGENCE Contributory Negligence--the plaintiff assisted in his/her injury. It does not matter how slight the plaintiff’s negligence, if the defendant can prove he contributed, plaintiff loses. ex: I push you, you push me, I push, you push, I fall back and hurt myself. Contributory negligence.

Comparative Negligence in a car accident, one driver may swerve into another lane, causing traffic behind him to pile up. This pile up results in body damage to several cars. Though the driver that swerved has not directly caused the damages of this pile up (since he just swerved and drove away without crashing at all), he is most at fault for the damages occurring. Let’s say that this right after high school and everyone was tearing out of the parking lot. The first car that swerved causes the accident; however, the other cars following did not allow safe distance between them contributing to the pileup.

All sides will be looked at. The plaintiff’s recovery is reduced by the percent of their own negligence. Jim sues Tim for damages suffered. Although Tim swerved--he is 90% negligent but Jim did not allow safe distance so he is 10%. If the suit is for $100,000. He may only collect $90,000 because 10% responsible.

If the plaintiff found to be 51% at fault, cannot collect any damages because your negligence cannot be greater than the person you are suing. Say 3 people involved 2 defendants, 1 plaintiff. 1 defendant 40% at fault; 1 50% at fault, you 10%. Suing for 10,00 Defendant 1 $4000 Defendant 2 $5,000 You $1000 What is the court finds you 60% at fault--cannot collect if plaintiff found 51% a fault. That is comparative negligence.

Assumption of Risk-- You assumed the risk of getting hurt, therefore you should not collect. You knew you were going to get hurt, you took the risk ex: City of Mentor with skating rink; skiing, snowboarding, tobogganing. These sports entail risk, you assume that risk therefore cannot sue Notice how signs are posted everywhere with these sports.

Ohio has Comparative Risk, we don’t use Assumption of Risk theory.

LAST CLEAR CHANCE-- The last reasonable opportunity to avoid an accident or injury. One who has the last clear chance to avoid an injury and fails to do so is usually held solely responsible, notwithstanding the injured person's own contributory negligence Good example is a 4-way stop at an intersection. It is your turn to go, but another car starts into the intersection. You have a duty to avoid injury is possible. Again, Ohio uses the Comparative Risk rather than Last Clear Chance or Assumption of Risk in deciding negligence.

VIDEO: CHAIN SAW MASSACRE (VIDEO BRIEF) Fact: should know about case without having to read it --state facts Issue - begins with whether Decision--will judgment be for defendant or plaintiff Reason for your decision

LAST SLIDE: BASIC PROCEDURE IN CIVIL CASE GO OVER BRIEFLY.