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The Law of Torts

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The Law of Torts CHAPTERCHAPTER 1212 The Law of Torts It makes no difference whether a good man has defrauded a bad man or a bad man defrauded a good man, or whether a good or bad man has committed adul- tery: the law can look only to the amount of damage done. Aristotle If America is—as some say—“a most litigious society,” it is because Americans so often seek remedies in court instead of seeking mediation or yielding to soci- etal pressures to compromise, as happens in so many traditional cultures. Chap- ter 12 considers our obligation to “do no harm” to others and discusses the con- sequences of breaching that legal obligation. Civil wrongs—known as “torts” in the law—result from intentional acts, unintentional accidents, and from failure to act when one is legally obligated to do something. The chapter compares the “no harm–no foul” rule of tort law to the stricter standards of criminal law. The student who has carefully read this chapter should be prepared to an- swer these questions: ■ What is a tort, and are torts crimes? ■ What is negligence? ■ What is strict liability? ■ What are the most common intentional torts? ■ What is the difference between actual and constructive fraud? ■ Can one sue for intentional infliction of emotional distress? ■ What is a nuisance? ■ Can one sue for the invasion of privacy? ■ What is malicious prosecution? ■ How are new “causes of action” discovered by the courts? ■ Does a cause of action survive the death of either the tortfeasor or the victim? ■ Can one sue the government? 1 2 CHAPTER 12 SCENARIO The city hall chambers were crowded with a standing-room-only audience. Some of the spectators were holding placards bearing slogans such as “Save Our Neighbor- hood,” “No More Development!!” and “STOP Corporate Greed.” The seven council members were listening with varying expressions of boredom or annoyance as an elderly woman spoke into the microphone. “We know that several of you have ac- cepted large campaign contributions from this development company, and we will hold you accountable if you let that money sway your vote against the people,” she concluded. She returned to her seat amid thunderous applause. The next speaker was to be Jonathan Merrill. Until six weeks ago, Jonathan had never been politically active and usually tried to avoid controversy. But when he learned that the city council was expected to approve development of a new shopping mall adjacent to his old, middle-class neighborhood, he became incensed. The proposed mall was to be located on a large parcel of land presently zoned for public parks. The proposed development had already re- ceived the city planning commission’s recommendation for a zoning change, and the city council was deliberating approval of that change as well as final ap- proval of the environmental impact reports. Jonathan began circulating a neighborhood petition opposing the shopping mall development. Neighborhood meetings were held in his living room until the crowd became too large. The meetings were then moved to the multipurpose room in the local elementary school. Jonathan found himself to be a somewhat reluctant, de facto leader and chief spokesperson for the loosely organized Citi- zens for Preserving North Park. As he approached the microphone, Jonathan fingered a few cards on which he had scrawled talking points for his statement to the city council. “The Mid- land Mall Corporation has deceived this council,” he began. “Their figures for ve- hicular traffic and air pollution are grossly understated, and they know it. Be- yond that, they outright lied to us when our citizens’ group met with their top management and architects to ask them to scale back this proposal.” Someone in the crowd called out, “You tell ’em, Johnnie!” Jonathan was discovering a la- tent talent for making a stem-winder speech, and the cheering crowd was on its feet when he concluded with these words: “There is no place for a Midland Mall in our neighborhood, and if you approve this proposal, we will recall every sin- gle council member who votes for it!” Ten days later, Jonathan was approached by a stranger as he walked toward his car in his employer’s parking lot. The stranger asked, “Are you Jonathan Mer- rill?” When Jonathan nodded, the stranger handed him a thick document. Un- folding the official-looking document, Jonathan saw that it was entitled “COM- PLAINT FOR LIBEL, SLANDER, AND INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE.” The plaintiff was “MIDLAND MALL CORPORATION, a Delaware Corporation.” Named as defendants were “CITIZENS FOR PRESERVING NORTH PARK, an unincorporated association, JONATHAN MERRILL, an individ- ual, and DOES 1 through 100.” Folded inside the complaint was a summons giv- ing Jonathan 30 days within which to respond to the lawsuit. ■ Jonathan is being sued. He and his wife have few assets, other than their home, and little in savings. The Citizens for Preserving North Park has less than A SLAPP suit is a lawsuit filed with the intent of silencing $1,000 in its bank account. It is unlikely that Midland Mall Corporation has any citizen complaints before a interest in the negligible assets of these defendants. In reality, Midland Mall government agency. SLAPP doesn’t want their money—it simply wants their silence. stands for “strategic litigation Midland Mall’s lawsuit against Jonathan and the neighborhood citizens against public participation.” group is known as a SLAPP suit. SLAPP is an acronym for “strategic litigation The Law of Torts 3 against public participation.” Corporations sometimes file SLAPP suits against individuals who appear before government agencies to challenge their business activities. In the opening scenario, the developer has filed a SLAPP suit against citizens who have appeared before a city council to oppose a proposed devel- opment. The hapless defendants will find themselves besieged with legal ma- neuvers forcing them to pay substantial attorneys’ fees and go through consid- erable emotional stress. Of course, Midland Mall will gladly drop the lawsuit if Jonathan and the citizens’ group will sign an out-of-court settlement in which they promise to cease all opposition to the proposed development. The Midland Mall Corporation’s complaint alleges the tort of “interference with prospective economic advantage,” a typical allegation in SLAPP lawsuits. Yet, on the rare occasions when they actually go to trial, SLAPP suits are seldom won by the corporate plaintiffs because the citizen defendants are usually pro- tected by their First Amendment rights of petition and free speech. In fact, some SLAPP defendants have won substantial money damages in “anti-SLAPP” counter-suits for malicious prosecution. But the expense, stress, and inconven- ience of litigation often forces SLAPP defendants to withdraw their objections to the proposed business activity in order to get the troublesome lawsuit dropped. TORTS: WRONGFUL ACTS AND OMISSIONS A tort is a civil wrong—some act or omission that violates our duty to avoid A tort is a civil wrong—a harming others. It might be a public duty, such as our duty to drive safely and wrongful act or omission that obey traffic laws. Or, it might be a private duty under the law, such as the duty harms another person. of a trustee to a beneficiary. A tort is termed a “civil” wrong because it can oc- cur without a corresponding criminal act. Although, as will be seen, some acts are both crimes and torts, a criminal act is not an essential element for most torts. But there must always be an injury to have a tort. The expression “no harm–no foul” applies to the law of torts. The person who commits a tort is called a tortfeasor. A tortfeasor is a person who Wrongful acts or omissions that harm another person account for the commits a tort. greatest number of lawsuits, by far, and personal injury cases account for the great bulk of these lawsuits. A typical personal injury case involves an automobile accident, and negligence is the most common allegation by the plaintiff. But personal injury cases come in a variety of other forms as well: slip-and-fall, medical malpractice, dog bite, injury caused by a defective product, and assault and battery. On-the-job injuries are in a special cate- gory handled under worker’s compensation law, and employees generally cannot bring a tort action against their employer for job-related injuries or illness. Under the law, a personal injury can be defined much more broadly than A personal injury is damage to just physical trauma. Libel and slander, malicious prosecution, false arrest, in- one’s person. In a narrow sense, vasion of privacy, sexual harassment, and age discrimination are examples of it is physical or emotional personal injuries that might leave no physical marks (although physical ail- trauma, but in a broader sense it ments do often follow). A personal injury violates the person’s right to be left in can be any invasion of one’s peace. personal right to be left in peace. Although personal injury—especially physical injury—predominates in law- suits alleging wrongful acts by others, a small number of tort cases do not in- volve personal injury. These less frequent lawsuits might concern such things as fraud, embezzlement, vandalism, theft of trade secrets, or unfair business practices. 4 CHAPTER 12 INTENTIONAL AND ACCIDENTAL TORTS A tort can be either intentional or accidental. Assault, fraud, and arson are ex- An intentional tort is a civil amples of intentional torts; the perpetrator of these tortious acts intends to wrong intended by the harm his victim. In the law of torts, intent refers to the injury, not to the conduct tortfeasor to harm another causing the injury.
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