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 consequences 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 answer 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?

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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 accepted 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 approval 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 latent 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 single 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 individual, and DOES 1 through 100.” Folded inside the complaint was a summons giving 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 development. 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 protected 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 occur 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 lawsuits alleging wrongful acts by others, a small number of tort cases do not involve 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. Therefore, the intentional tort of arson is distinguished from person. The intent relates to the the negligent tort of reckless driving—even though either tort can result in resulting harm, not to the act someone’s death from burns. The negligent driver might have intended to drive that causes the harm. carelessly, but unlike the arsonist, did not intend to cause property damage or personal injury. Intentional and negligent torts are discussed in more detail later in this chapter.

TORTS AND CRIMES It is possible for the same act to be both a tort and a crime—as are the four examples mentioned in the preceding paragraph: assault, fraud, arson, and reckless driving. But most tortious acts and omissions do not violate criminal laws. Slan- der and medical malpractice are examples of noncriminal acts that are actionable as torts. But statutes make some acts of negligence—such as the failure to maintain a hotel sprinkler system in good operating condition—criminal offenses, as well. Note that the violation of law (having defective sprinklers) might be a crime even if no injury results, but a tort does not occur until someone has been harmed. It also is a criminal offense to operate automobiles with serious me- chanical deficiencies—inoperative headlights or a suspension system with illegal modifications, for example—but again, no tort exists until someone is harmed. The law regarding assault provides an interesting illustration of several legal An assault is an unlawful principles under the law of torts and also criminal law. By definition, assault is attempt or credible threat to an unlawful attempt—or a credible threat—to physically injure another person. physically injure another To constitute a tort, the aggressor must harm the victim either physically or person. emotionally. Physical harm can be either a physical trauma—something a doctor could diagnose as such—or simply offensive physical contact. The unwanted Battery is unlawful and physical contact is known as a battery—whether physical injury results or not. intentional physical contact that Because battery cannot be accidental, one cannot commit battery without also produces trauma or offensive committing assault. touching of another person. To harm the victim emotionally, but without physical contact, the aggressor must appear to have the ability to injure her victim and must display sufficient force (or threatening behavior) to provoke fear or apprehension in the victim. Thus, the tort of assault requires either physical contact or the victim’s fear and apprehension. In many jurisdictions, however, the crime of assault does not require that the victim actually be in fear or apprehension, so long as the behavior of the assailant is threatening and she intends to harm the victim. Thus, an aver- age person—without special skills in physical combat—who unwittingly takes a swing at the world’s heavyweight boxing champion, but misses, nonetheless commits a crime but probably not a tort—unless the champ is easily frightened. The reason for this difference in criminal and tort law is found in the different objectives underlying the law of torts and the law of crimes. The law of torts is designed to compensate people for their actual injuries (including apprehension or fright) caused by the wrongful acts or omissions of others. If the victim of an assault is neither struck nor even frightened, there might be no civil injury requiring compensation. In criminal law, however, deterrence is the primary ob- jective. For reasons of peace and public order, society has a strong interest in discouraging even the unsuccessful assaults that fail to injure or frighten the in- The Law of Torts 5 tended victims. The incompetence of the assailant and the fearlessness of the intended victim are not relevant to the deterrent purpose of criminal law. The same principle of deterrence underlies criminal penalties for violations of traffic laws and building codes, even in the absence of actual injury to others. The law regarding assault illustrates yet another principle of tort law: the right to live in peace. Although the assailant might swing and miss, a frightened victim has been deprived of her right to peace and security. Tort law recognizes this right to be left alone, and it is an area of law that is developing rapidly. We now see courts awarding damages and issuing injunctions against obsessive persons who “stalk” and harass others who do not want their attentions. Some jurisdictions now recognize the “intentional infliction of emotional distress” as a separate cause of action in tort.

BREACH OF CONTRACT AND THE LAW OF TORTS

A breach of contract is not, by itself, a tort—although in some circumstances both a tort and a breach might result from the same act or omission. For example, a shopkeeper who is in a dispute with his landlord could commit a tort, a crime, and a breach of contract in one fell stroke by setting fire to the building. The difference between a breach of contract and a tort is the source of the duty that is violated. Torts result from violating the duties that are imposed by law upon us all. A breach of contract results from violating duties created by a particular contract. Whereas tort law imposes duties upon everyone, a contract imposes duties only upon those persons who become willing parties to that contract. Because contracts can be made so casually, without even a spoken or written word, someone might innocently and in good faith deny that he has made a contract at all. Does a “good faith” denial demonstrate that a mutual intent to form a contract—that is, a “meeting of the minds”—never existed? If so, there is no contract; and, if there is no contract, there can be no breach. However, a bad Bad faith is the conscious intent faith denial that a contract exists is both a breach of the contract and a tort. to evade one’s legal or ethical responsibilities.

THE LAW OF NEGLIGENT TORTS

The vehicle owner who allows her car’s brake pads to wear down to nothing has committed a negligent tort if the faulty brakes cause an accident, even if someone else was driving the vehicle at the time. Although the vehicle owner might A negligent tort is the have made a conscious decision to postpone repairing the brakes, she probably unintentional and avoidable did not actually intend that the vehicle be driven unsafely. She certainly did not harming of another person when intend that an accident result. This is an example of a tort of negligence. If the a duty exists to avoid or prevent such harm. vehicle owner postponed the brake repairs with actual knowledge that the vehicle would be unsafe, she has committed gross negligence. In all negligence, the Negligence is the failure to use tort lies in the failure to use the necessary care in doing what is otherwise reasonable care to avoid injury permissible—owning and operating a car, for example. Most traffic accidents in- to others. volve negligent torts. The example of the postponed brake repairs illustrates a potential tort of Gross negligence is more than omission—that is, the failure to do what the owner had a duty to do. The earlier carelessness; it is the intentional example of a hotel sprinkler system not being properly maintained is a similar and callous disregard for the tort of omission. Recall, however, that injury must result for either omission to injury that the tortfeasor’s act or constitute a tort. Otherwise, these examples are simply violations of the motor omission is likely to cause to vehicle and building codes, respectively. other persons. 6 CHAPTER 12

THE DUTY OF CARE The duty of care is the Negligence law is based upon the idea that every person owes a duty of care to affirmative obligation to avoid others who might be affected by his conduct. In some situations, the duty of care negligent conduct that might requires us to refrain from doing something: firing a pistol into the sky to cele- result in harm to others. brate July 4th, for example. In other circumstances, the duty requires us to take positive action: reporting our pet animal to public authorities or a licensed vet- erinarian if it displays obvious symptoms of rabies. As explained in Chapter 3, a duty requiring us to take positive action at our own initiative is known as an affirmative duty. Our general duty of care is found mostly in the common law, but some specific duties are imposed by statute. For example, most states have a statute that requires that swimming pools be fenced so that children will not fall in. Some jurisdictions have statutes that impose a duty to keep firearms and ammunition in separate locations in a home. A statutory duty is not necessarily greater than a common law duty, but it might be easier to establish that the statutory duty exists.

ESTABLISHING A BREACH OF THE DUTY OF CARE Negligence is the violation of our duty of care. To be a tort, that violation must be the cause of someone’s injury or loss. The tort of negligence has four elements: ■ a duty of care ■ a violation of that duty ■ a cause-and-effect relationship between the violation of that duty and some injury to another person or to the property of another ■ actual damage that can be compensated The greatest difficulty in negligence litigation is often defining the duty owed by the defendant to the plaintiff and showing an actual violation of that duty. A duty to the general public does not depend upon any particular relationship: If we accidentally run down a pedestrian in a crosswalk, it makes no difference under the law whether he is our employee or a stranger. Our relationship to that victim would be significant only if it presented a motive for intentional injury. There are many duties that do arise from particular relationships. Teachers have duties to their students that they do not have toward strangers: an obligation to report evidence of possible child abuse, for example. Bus drivers and ship captains, medical doctors and accountants, employers and partners, bartenders and butchers, all have special duties that derive from their relationships with particular persons: passengers, clients, employees, partners, and cus- tomers. Some of these relationships are unique in that the duty of care is ele- vated to that of a fiduciary. Bartenders and butchers, however, owe particular duties to their patrons even though they are not in a fiduciary relationship. The bartender offers an example of a special duty to the general public that arises from one’s occupation or business: The bartender might be liable to strangers if she continues to serve an intoxicated patron who later causes a traffic accident. Some states have particular statutes imposing that liability (“dram shop acts”), but the courts of other jurisdictions have found that liability to already exist under common law. The same principle can apply to other profes- sions: A garage mechanic might be liable under common law for injuries to strangers that result from defective repairs to an automobile brake system. In the latter examples, the duty to the general public—as opposed to a duty strictly to the patron—is associated with a particular occupation or business. The duty might be heightened by the professional experience and expertise of the bartender and the garage mechanic. But what about the duty of a social host The Law of Torts 7 serving drinks to his cocktail party guests or an amateur mechanic who fixes the neighbor’s car’s brakes for free? Depending upon state law, the social host might have a liability similar to that of the bartender—lessened perhaps by his less extensive experience in recognizing the signs of intoxication. The amateur mechanic might be in a more difficult situation because he has assumed a task—fixing braking systems—that is inherently technical and, in every instance, requires expertise. The social host does not need to be concerned that each drink he serves might cause an accident, but the amateur mechanic must realize that every brake job offers the opportunity for disaster. The general rule is that a person owes a duty of care to every person who foreseeably could be injured by his negligence. Determining which injuries are foreseeable, and which are not, can be a daunting task, but it is a question of fact for the jury to decide. The rule followed in a minority of the states is that a person owes the duty of care to everyone who is actually injured by his negligence. That rule makes the duty of care universal to all humankind because it is impossible to foresee every injury that could result from our negligence.

The Standard of “Due Care” Everyone has a duty to act as a reasonably prudent person would act under the same or similar circumstances. That standard of care is known as due care. It is Due care is the degree of a question of fact for the jury or judge to determine whether someone’s conduct prudence a reasonable person is in particular circumstances was reasonably prudent. Conduct that violates a expected to exercise so as to statute (e.g., reckless driving) creates a presumption of negligence. The latter avoid harm to others. It is the conduct is known as negligence per se (or “automatic negligence”). standard for measuring one’s Because circumstances influence the degree of care owed, it can range from duty of care under any given circumstances. minimal to extraordinary. If the situation is fraught with risk to others—a bungee cord jumping business or sky diving school, for example—a greater degree of Negligence per se is dangerous care is owed. Disregarding for a moment the understandable view, held by some, conduct that is prohibited by that almost any adult on a skateboard is acting with gross negligence—at least statute. In establishing to his own physical jeopardy—he is not required to exercise the same degree of negligence, statutory care toward pedestrians that he would be required to use if he were driving a car. prohibitions make it This is because the potential for death and injury to pedestrians is much less in unnecessary to show that a collisions with skateboarders. reasonable person would not Any special training and expertise that one has can increase the degree of engage in the same conduct care owed. Someone who claims to be an expert or professional will be held to under the circumstances. the higher standard of skill and expertise usually possessed by such persons, even though the tortfeasor is not, in fact, a person with such skill or expertise. He cannot use his dishonesty and actual lack of expertise to escape the greater liability because those injured by his conduct might have relied upon his false claims of expertise and were harmed by his deception. A trained beach lifeguard might be held liable for extraordinary injuries in- curred by a victim during a rescue—for example, a skull fracture resulting from a collision with rocks. An untrained bystander, however, would not have been liable for those same injuries had he attempted the rescue. One reason for this difference is that the untrained bystander—even an expert swimmer—might be un- aware of the additional danger occasioned by ocean currents or waves along his The Good Samaritan doctrine shields from liability a bystander chosen rescue route. The trained lifeguard should be aware of the special risks who voluntarily comes to the aid posed by surf and rocks and should be better able to avoid or mitigate those of a person in danger of life or dangers. Under the common law, the Good Samaritan doctrine shields the in- limb unless that volunteer tervening bystander from liability unless he acts with reckless disregard for the substantially worsens the victim and actually increases the danger to that victim. Most states have en- victim’s situation by some acted statutes incorporating this doctrine. reckless action. 8 CHAPTER 12

Medical personnel are in a similar position, in that they are expected under the law to use the skill of a person with their level of training and expertise. Be- cause licensed medical doctors are more highly trained than are registered nurses, the doctor is held to a higher standard of care than is the nurse. Some states have enacted special “Medical Good Samaritan” statutes to limit the liability of qualified medical personnel who come forward as volunteers to assist in emergency situations that arise outside of the scope of their employment (e.g., automobile accidents or in-flight emergencies).

NEGLIGENCE AS THE CAUSE OF AN INJURY The third required element of negligence is causation. Once the legal duty owed to the plaintiff has been established and the court has determined that the defendant violated that duty by some act or omission, the court must next decide whether that negligence was the proximate cause of the plaintiff’s injury. It is entirely possible for a person to be negligent, yet not be the cause of a particular injury. Under the law of negligence, there can be no recovery unless the defendant’s negligence is shown to be the cause of the plaintiff’s injury. The proximate cause, or legal A proximate cause is the legal cause of the injury, as opposed to some other cause, of an injury is the event intervening event. (In some jurisdictions, the term “proximate cause” is losing that produces an injury that, favor, and “legal cause,” is used instead.) An intervening force is an independ- absent that event, would not ent cause that interrupts the natural cause-and-effect chain of events that fol- have occurred. To be the lowed from the defendant’s wrongful act. Proximate cause can be one of the proximate cause, the effect of most difficult concepts in tort law, but two illustrative examples should convey that event must not have been the basic idea of this principle. unforeseeably altered by some other intervening force or event. At an amateur baseball game, dozens of spectators crowd along the base- lines. Ignoring this dangerous situation, the pitcher delivers his fastball and An intervening force is an the batter’s line drive hits a spectator in the head. The pitcher might later unforeseen event that alters the argue that the batter’s action was the only proximate cause of the injury—if effect of the defendant’s action, the batter had not swung, no one would have been injured. But the batter’s thereby resulting in the decision to swing was provoked or induced by the pitcher’s fastball—both plaintiff’s injury. players were playing a game of baseball. In fact, under the rules of baseball, the pitcher’s fastball was tantamount to a challenge for the batter to hit the ball. The batter’s swing is not an intervening force in the legal sense because it was clearly foreseeable to the pitcher. In this situation, the pitcher and batter are acting in concert to create the proximate cause of the bystander’s injury. Under the facts of this situation, the actions of both players (i.e., the pitch and the swing) were indispensable elements to create the injury. Although the batter’s swing was an intervening force under the laws of physics, it was not an intervening force under the law of torts. The batter’s action and the potential injury were both clearly foreseeable to the pitcher, and the batter did not interrupt the natural cause-and-effect chain of events. Both the pitcher and the batter (and perhaps the volunteer umpire, if any) might be liable for negligently proceeding with the game under those dangerous conditions. The concept of proximate or legal cause, then, does not always require that there be a sole cause for the injury. The most common example of multiple causes is an automobile accident in which the negligent conduct of several drivers contributes to the accident and the resulting injuries (for example, two drivers colliding when they simultaneously attempt unsafe lane changes). If the negligence of a particular driver does not contribute directly to the accident, is that driver’s negligence nonetheless a legal cause? Consider the following case. Two intoxicated friends leave a bar at midnight, both in the same car. Al- though drunk, the driver is able to maintain his lane and remains below the speed limit. In fact, other than driving while in his state of intoxication, he does not violate any traffic law. As his car is proceeding with the green light through The Law of Torts 9 a blind intersection, a truck runs the red light and broadsides the car, injuring the intoxicated driver and his passenger. Although he was illegally driving under the influence, the first driver’s wrongful act was not the proximate cause of his passenger’s injuries. There was an unforeseen independent, intervening cause: the wrongful act of the truck driver who ran the red light. In analyzing such cases, courts often use the “but for” test: Would the accident not have happened “but for” the first driver’s decision to drive while intoxicated? Clearly, our case fails the “but for” test: The first driver’s intoxication did not cause the accident. It would have occurred even if he had been sober but had driven the same route at the same time and at the same lawful speed. The truck driver’s negligent and illegal act was not a foreseeable and natural event arising from the first driver’s decision to drive while intoxicated. Of course, the intoxicated driver is subject to criminal penalties even in the absence of any tort liability. Unfortunately, questions of proximate or legal cause are not often so distinct as they are in the preceding examples.

RESPONSIBILITY FOR THE ACTS OF AGENTS AND EMPLOYEES

The doctrine of respondeat superior sometimes makes employers and The doctrine of respondeat principals responsible—and legally liable—for the wrongful actions and omis- superior holds one responsible sions of their employees and agents, respectively. That is because employers for the tortious actions of his and principals have a duty to control the actions of employees and agents so agents or employees who are that others will not be injured. Because employers often have insurance and acting on his behalf. much greater assets than does an employee, the doctrine of respondeat superior has encouraged the filing of lawsuits that otherwise might not be pursued A principal is one who against the employee alone. authorizes another to act on his behalf (i.e., to serve as his However, the doctrine of respondeat superior is limited to events that occur agent). in the course of the tortfeasor’s employment or agency. This limitation has led to numerous lawsuits in which the critical issue has been whether an employee’s An agent is one who is temporary detour for personal business, while driving from point A to point B authorized to act on behalf of on his employer’s business, took him far enough and long enough from the another (the principal). shorter, straight-line route so that he was no longer “acting in the course of his employment” when he negligently caused an auto accident during the detour. Agency is the legal relationship between a principal and her agent. It is also the scope of Ethics Watch authority granted to the agent The legal relationship between employer and employee is very similar to that between by the principal. principal and agent. When the legal assistant is performing his usual duties and responsibilities on behalf of the supervising attorney, that attorney can be liable for any tortious conduct by the legal assistant. Potentially, a client could be liable also if the tortious conduct is directly related to the attorney’s representation of that client—for example, making a libelous statement about an opposing party in correspondence written by the legal assistant to a third party.

STRICT LIABILITY IN TORT LAW The doctrine of strict liability Most torts are either intentional or the result of negligence. However, there is holds one liable for certain one class of torts that does not require either intent or negligence. These are types of unintentional injuries the torts of strict liability. Strict liability is a doctrine that imposes liability for even if no negligence is shown. 10 CHAPTER 12

personal injury or property damage even though the defendant was not negligent and did not intend to harm anyone. It is termed “strict” because the defendant cannot escape liability by showing that he used reasonable care and prudence in his conduct. Because this doctrine is so severe, its application is limited to particular types of activity. Traditionally, strict liability was limited to inherently dangerous activities: using dynamite, keeping wild animals or vicious domesticated animals, using poisonous gases, and so forth. In recent times, however, strict liability has been imposed by statute on toxic waste contamination (e.g., leakage from under- ground gasoline storage tanks) and under common law to the manufacturing Under the doctrine of strict and sale of all consumer products. The latter is known as strict products liability. products liability, In recent decades, strict products liability has become an important area of liti- manufacturers are liable for any gation law. Manufacturers and retailers have faced enormous numbers of law- injuries caused by defective suits that claim a defective product caused personal injury. products, without the The unique feature of strict products liability is that the plaintiff need not requirement to show negligence prove that the manufacturer or seller is at fault (by reason of negligence or breach in the design or manufacturing of warranty, for example), but only that: processes. The liability extends to bystanders as well as to ■ the product is defective subsequent purchasers of used ■ the defect caused the plaintiff’s injury products. The legal theory is that strict liability compensates the injured person, encour- ages product safety, and spreads the financial burdens of product improvement and compensation for the victim across the marketplace through higher prices for that product. Strict liability also recognizes the great difficulty and expense in proving negligence of the manufacturer in the design or manufacture of a product. The imposition of strict liability has also caused the insurance industry to encourage “defensive engineering” by manufacturers, so that injuries— and therefore liability exposure—will be reduced.

STRICT LIABILITY AND THE IMPLIED WARRANTY OF FITNESS Prior to strict products liability, injured consumers brought actions against a In the commercial sale of goods, manufacturer for negligence or for breach of implied warranty of “fitness for a there is an implied warranty particular purpose.” Under the doctrine of implied warranty, every product is that the goods are fit for the presumed to be fit for the uses for which consumers are known to purchase it. purposes for which they are If the product is not fit for those uses, the manufacturer or seller has breached commonly purchased. The that implied warranty. The warranty is not limited to the purposes for which the warranty (i.e., the seller’s product is marketed. If the manufacturer or seller is aware that the product is guarantee) is implied by commonly purchased for other purposes, it must be fit for those purposes as operation of law, even if it is not expressed in the words well. Thus, a bicycle marketed for riding on paved streets must be fit also for mo- of the contract. tocross competition if the manufacturer or seller knows that it commonly is purchased for that use as well. Unfortunately, the implied warranty is found in the contract among the manufacturer, the retailer, and the consumer. It generally protects only the purchaser—not bystanders nor any nonpurchasers who might use that product. The manufacturer and seller also owe a duty under implied warranty only to the original purchaser of a new product, not subsequent purchasers who buy it as a used product. In contrast, the doctrine of strict liability makes the manufacturer and seller liable for injury even to bystanders and subsequent purchasers. The duty owed does not arise from a particular contract with a particular customer, but from the decision to place that product in the marketplace where, eventually, it might endanger nonpurchasers as well as purchasers. Thus, passengers in automo- The Law of Torts 11 biles and neighbors who borrow lawn mowers have standing to sue a manufacturer or seller under strict products liability if they are injured as a result of a defect in that product. By contrast, under the doctrine of implied warranty, the passengers and neighbors would have no standing to sue.

ASSUMPTION OF RISK

A major issue in products liability litigation is the duty of the manufacturer and seller to warn the consumer and other users of the product about the risks associated with that product. This issue arose in part because defendant manufacturers and retailers claimed that the user or purchaser had “assumed the risk” by knowingly using a potentially dangerous product (e.g., an electric hedge trimmer). Assumption of risk is an affirmative defense against liability based The decision by a person to upon the principle that the person who agrees to risk a known injury should not engage in clearly dangerous be able to recover damages when that foreseeable injury does, in fact, occur. The activities creates an assumption assumption of risk defense is ineffective, however, if the manufacturer has in- of risk by that participant. He tentionally or negligently introduced risks that a reasonable person cannot foresee. cannot recover from others for Plaintiffs have countered the assumption of risk defense by arguing that the the foreseeable injuries that result from his participation. By risk is not fully known to the ordinary user if the better informed seller or man- voluntarily participating, he ufacturer has not adequately disclosed it. Other defenses to strict liability in- accepts (“assumes”) the usual clude misuse of the product (e.g., using a hedge trimmer to shorten a picket risks of injury inherent in that fence) and an unauthorized modification to the product that increases the risk activity. of injury (e.g., removing a safety guard). Until recently, tobacco manufacturers defeated every lawsuit based in strict liability doctrine, often by successfully raising the defense of an assumption of risk by the smoker. Ironically, that defense has been strengthened by the Sur- geon General’s warning that federal law requires on each cigarette package and in all tobacco advertising—the very federal law that the tobacco industry itself fought furiously to defeat in Congress. Recent evidence suggests, however, that the tobacco industry concealed from consumers and from Congress the industry’s own research results that demonstrated that nicotine is addictive—a char- acteristic that the tobacco industry had long denied. (See the Case in Point, “The Tobacco Papers,” in Chapter 3.) If that allegation proves to be true, the assumption of risk defense might be overcome by the industry’s failure to disclose known addictive properties of tobacco. One unintended result of strict products liability has been the near extinc- tion of light aircraft production in the United States. Piper and Cessna, for example, both suspended production of small aircraft for the American general aviation market due to the enormous costs of insurance and litigation defense. It is ironic that both manufacturers had a large backlog of unfilled orders when they stopped production. Critics of strict products liability argue that countless other, less obvious economic harms have resulted from the burdens imposed on business by that doctrine. Defenders of the doctrine argue that countless consumer products have been made far safer by the economic incentive to avoid lawsuits for strict liability—thereby preventing countless injuries and deaths.

SCENARIO

Louis Fridel is a paralegal specializing in aviation accident litigation. His Atlanta law firm represents the manufacturers of the aircraft or aircraft parts that are alleged to be the cause of personal injuries or deaths. In most such lawsuits, the 12 CHAPTER 12

plaintiff alleges that the aircraft or part in question was defective and that the defect resulted in the plaintiff’s injuries. The defect can be in the design of the product or it can be a result of defective manufacture or assembly. Louis began his litigation practice in a personal injury firm where he worked on a number of automobile accident cases, including some involving tread sep- aration of Firestone tires mounted on Ford Explorer SUVs. “We represented the injured consumers, or their surviving family members,” Louis explains. “I spent a lot of time in the late 1990s trying to track down other cases in which tread sep- aration led to rollovers of the SUV. We began to develop data that suggested the original equipment tires might be an improper match for the SUVs on which they were mounted. That’s when I developed a real interest in product liability law.” Louis joined his present firm when he moved to Georgia. “I had assumed that I would join another plaintiff’s PI firm here, but my current employer offered a better salary and benefits package. Actually, I haven’t found it that difficult to transi- tion from working for plaintiffs to working for the defendant manufacturer. I’ve seen the same kind of litigation from both sides of the fence, now. It’s interesting— I used to think that manufacturers were rather callous and irresponsible. Now I see that some consumers are unreasonable as well. Perhaps it is the natural result of our adversarial litigation process. It causes both plaintiff and defendant to raise allegations and defenses that are, at times, far-fetched.” ■

COMMON INTENTIONAL TORTS

Intentional and negligent torts are distinguished from each other by the tortfeasor’s state of mind. In a negligent tort, it does not matter what the offender intended to do—the result of his negligent conduct is what counts. An intentional tort, on the other hand, requires that the tortfeasor actually intended to harm the plaintiff or his property. Many lawsuits over intentional torts involve an assault. Other intentional torts that frequently find their way into a courtroom include libel, slander, fraud, and infliction of emotional distress. Actions for intentional breach of contract are also common, but a breach alone is not a tort because the duty violated is created by the contract and not by common law or statute. DEFAMATION OF CHARACTER “Defamation” was not even mentioned in the preceding paragraph, but the two general forms of defamation were mentioned: libel and slander. The essence of Defamation of character occurs defamation of character is an intentional false statement that tends to injure a when one makes false person’s reputation. Libel is defamation by recorded sound or picture, painting, statements that damage the printed word, drawing, sculpture, or effigy. Slander is oral defamation. The key reputation of another person. difference is that slander is an instantaneous occurrence, gone in the moment after it has been uttered, while libelous publications can remain for future gen- Libel is the publication of erations to read, view, or hear. defamatory statements in some The elements of defamation are: enduring form (e.g., print, film, recording, drawing, etc.). ■ the defendant made a false statement about the plaintiff ■ the statement was “published”—communicated to others Slander is the oral publication ■ the plaintiff’s identity was recognizable from the statement of defamatory statements without putting them into some ■ the statement, if believed, would damage the plaintiff’s reputation enduring form. It is not necessary to show that anyone actually believed the defamatory statement because that would require the plaintiff to suffer a second humiliation The Law of Torts 13 when those who believed the false statement were called to testify. Additionally, belief is not required because it would be unjust to permit disgraceful lies to be circulated about a good person on the basis that—because of the plaintiff’s good character—no one would believe such lies. The result would protect from defamation only those persons of questionable character about whom false statements are readily believed. Finally, witnesses who actually believed the false statements might be reluctant to acknowledge their gullibility. The jury (or the judge, in a trial by court) may evaluate the damaging impact that the statement would have if believed. If a statement has alternative interpretations, it is only necessary that one reasonable interpretation of that statement would defame the plaintiff.

Defenses to Defamation Truth is an absolute defense against a suit for defamation. It is not necessary that a statement be true in every detail, so long as the statement is both generally true and is true in its assertions about all material facts. Thus, the following statement probably would not be defamatory if the italicized portions were true: “The alleged child molester had been a resident of the North Park area and a scout leader for some years. He was previously convicted of child molestation before coming to this city.” However, it could be argued that a false statement that the accused had been a scout leader, when made in connection with a true report about the current charge against him, implies a breach of that special trust placed in adult leaders of young people, thereby unjustly exacerbating the damage to his reputation resulting from the criminal charges against him. Although truth would be an absolute defense for the accused defamer, the defamer’s own good faith belief that the statement is true might not be a sufficient defense if the statement is actually false. The reason is that the person defamed has been harmed (or at least exposed to potential harm) in spite of the defamer’s good intentions. Thus, defamation can be a negligent tort in some circumstances. The innocence of the defamer’s intention might become an issue in determining the appropriate damages to be awarded to the plaintiff.

Defamation and the News Media The news media face special problems with regard to defamation. The media’s acknowledged responsibility is to inform the public of matters of general interest. However, the news media can be liable if their false reports defame an individual, even when the media are quoting or paraphrasing the statements of others. In the latter situation, the media have a duty to avoid spreading libelous statements. In the days of weekly newspapers and no electronic media, life was much slower and editors had ample time to check their facts before publishing. Today, the media are under enormous pressure to beat the competition. In the age of Cable News Network and satellite transmissions, the electronic media have a new “deadline” every 10 minutes. One protection against liability is the common practice of reporting about the “reputed Mafia chief” and the “alleged bank robber.” A landmark Supreme Court case, New York Times v. Sullivan, 376 U.S. 254 (1964), concerned false statements made in a full-page newspaper advertise- ment. It was in Sullivan that the Supreme Court first applied the First Amend- ment to the law of libel. The most obvious problems arise in the arena of political debate and in what the U.S. Supreme Court has termed subjects of “general public interest.” The potential “chilling effect” on the news media and political partisans, if held strictly liable for false statements, could be very damaging to 14 CHAPTER 12

a democratic society. Because a free-ranging debate about political, philosophi- cal, and artistic matters is so important to the public interest—and so closely related to the very purpose of the First Amendment—the Sullivan Court held that public officials cannot recover damages for libel unless they can prove that their In defamation law, actual malice defamers acted with actual malice. In this context, actual malice means that the exists when the defendant defendant either knew that the statement was false, or that he made the state- publishes the defamatory ment in “reckless disregard” for the truth. The latter standard creates what statement with knowledge that it could be called a tort of “reckless defamation,” which combines intent to make a is false or in reckless disregard damaging statement with negligence (i.e., the failure to check the facts before of its possible falsity. making that false statement). The law of defamation is state law, but it inevitably creates a conflict with the rights of free speech and press under the First Amendment, a matter of federal law. Because of the constitutional implications, a number of defamation lawsuits have reached the U.S. Supreme Court in recent decades, and the Court has laid down a variety of limitations on the ability of plaintiffs to pursue defamation suits. Public officials and other “public figures” are now deemed to have assumed the risk of harsh criticism by virtue of having voluntarily entered into political careers, movie stardom, professional sports, or other venues of public notoriety. The Supreme Court has said that public figures cannot claim the right to Practice Tip enjoy the benefits of their chosen pursuits without also accepting the hardships The trial court in Gertz entered of that choice. In effect, the Supreme Court has adopted President Harry Tru- a judgment NOV in the man’s famous adage: “If you can’t take the heat, get out of the kitchen.” defendant publisher’s favor. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court refused This is remarkable in this to apply the Sullivan standard of actual malice to cases in which private citizens situation because the jury had are defamed. The Gertz case is an interesting one in several respects. The earlier followed the court’s instruc- Sullivan decision had created, in effect, a limited “publisher’s immunity” from li- tions on the law and awarded ability for libel so long as the defendant was publishing material about a public damages based upon the official and the false statements were not published in “actual malice.” In later court’s earlier finding that the cases, that limited immunity was extended to publications about “public fig- defendant had committed libel ures” who do not hold public office. The Gertz Court reviewed these principles per se under Illinois law. Then and made clear that they are a compromise between the rights of persons in- the court changed its mind, jured by defamatory statements, on the one hand, and the First Amendment deciding that the defendant rights of publishers, on the other. The Court stated that our protection against enjoyed the “publisher’s defamation must yield somewhat, so that the communication media will not en- immunity” established in New gage in excessive self-censorship out of their reluctance to risk liability for York Times Co. v. Sullivan, defamation. The Court explicitly acknowledged in Gertz that this compromise supra. In effect, the U.S. will leave some wrongfully defamed persons with no available remedy at law. District Court belatedly decided In Gertz, the Supreme Court resolved the issue by refusing to apply the “ac- that the case should never tual malice” standard of Sullivan to defamation of private individuals. But then, have gone to the jury, and the in dicta, the Court went beyond that central issue to state its views about ap- defendant’s pretrial motion for propriate damages in defamation cases. The Court stated that damage awards summary judgment should must be limited to actual damages and may not include punitive damages have been granted. against the defaming tortfeasor. Apparently, any damages in excess of these limitations would be an unconstitutional infringement upon First Amendment rights. As dicta, these statements have no value as precedent and are not bind- ing upon the lower courts. They might, however, signal how the Supreme Court per se Libel is a false statement would rule if those questions are presented in a later case. so egregious that it is The Gertz case was decided by a 5–4 vote, with several dissenting opinions defamatory on its face, giving rise to a legal presumption that from both conservative and liberal justices. In the Court’s opinion (excerpt fol- the plaintiff has been injured by lows), it refers to its prior decision in New York Times Co. v. Sullivan, supra, as that statement and, therefore, “New York Times,” rather than as “Sullivan.” Perhaps this reflects the Court’s actionable without proof of self-proclaimed, overriding concern for the First Amendment rights of the actual injury. newspaper. The Law of Torts 15

A CASE IN POINT

Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974)

Mr. Justice POWELL delivered the opinion of the Court. This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. [Citation omitted.] I In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family re- tained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio. Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960’s the magazine began to warn of a na- tionwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictator- ship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 respondent published the resulting article under the title ‘FRAME-UP: Richard Nuccio And The War On Police.’ The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police. In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner’s inquest into the boy’s death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner’s remote connection with the prosecution of Nuccio, respondent’s magazine portrayed him as an architect of the ‘frame-up.’ According to the article, the police file on petitioner took ‘a big, Irish cop to lift.’ The article stated that petitioner had been an official of the ‘Marxist League for Industrial Democracy, originally known as the Inter- collegiate Socialist Society, which has advocated the violent seizure of our government.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Commu- nist organization that ‘probably did more than any other outfit to plan the Com- munist attack on the Chicago police during the 1968 Democratic Convention.’ These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstra- tions in Chicago. There was also no basis for the charge that petitioner was a ‘Leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marx- ist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’ The managing editor of American Opinion made no effort to verify or sub- stantiate the charges against petitioner. Instead, he appended an editorial intro- duction stating that the author had ‘conducted extensive research into the 16 CHAPTER 12

Richard Nuccio Case.’ And he included in the article a photograph of petitioner and wrote the caption that appeared under it: ‘Elmer Gertz of Red Guild harasses Nuccio.’ Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago. Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. . . . After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation. [Footnote omitted.] It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, ll L.Ed.2d 686 (1964). Under this rule respondent would escape liability unless petitioner could prove publication of defamatory falsehood ‘with actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ [Citation omitted.] . . . The District Court denied respondent’s motion for summary judgment in a memorandum opinion of September 16, 1970. ...After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner. Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent’s con- tention that that privilege protected discussion of any public issue with regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury’s verdict. [Footnote omitted.] . . . Petitioner appealed to contest the applicability of the New York Times standard to this case. . . . [Footnotes omitted.] . . . After reviewing the record, the Court of Appeals endorsed the District Court’s conclusion that petitioner had failed to show by clear and convincing evidence that respondent had acted with ‘actual malice’ as defined by New York Times. . . . The Court of Appeals therefore affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse. II The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. . . . * * * * III ... Under the First Amendment there is no such thing as a false idea. How- ever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. [Footnote omitted.] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721. . . . The Law of Torts 17

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’ [Citation omitted.] And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. . . . Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord ade- quate protection to First Amendment liberties...... Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted upon them by defamatory falsehood. We would not lightly require the State to abandon this purpose. . . . Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.... In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise. [Citation omitted.] To that end this Court has extended a measure of strategic protection to defamatory falsehood. The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold government office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship. ...And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. ...Forthereasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them. * * * * ... The first remedy of any victim of defamation is self-help—using available op- portunities to contradict the lie or correct the error and thereby to minimize its ad- verse impact on reputation. Public officials and public figures usually enjoy signifi- cantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. [Footnote omitted.] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. ... An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. . . . Those classed as public figures stand in a similar position. . . . For the most part those who attain this status have assumed roles of especial prominence in the affairs of society.... Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury 18 CHAPTER 12

from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. . . . He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. For these reasons we conclude that the States should retain substantial lat- itude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. . . . We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. [Foot- note omitted.] . . . IV ... For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of the falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of the injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. ...Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by publication of a false fact...... It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. . . . We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. . . . We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the general rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. . . . In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. V

* * * * We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Be- cause the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion. It is ordered. Reversed and remanded. The Law of Torts 19

As mentioned in Gertz, the Supreme Court has determined that statements of pure opinion cannot be defamatory because they express no statement of fact—other than about what the accused defamer thinks about the plaintiff. Under this rule, literary critics and political columnists should have less worry about defamation suits. The potential problem, of course, is that statements of purported fact and statements of opinion are sometimes difficult to distinguish.

Balancing Defamation Against Free Expression As in many areas of the law, defamation is a problem that requires a balancing of competing interests, such as: ■ the individual’s right to privacy ■ the individual’s right to be free of defamation ■ the public’s right to information about matters of public interest ■ the individual’s right to free expression ■ the media’s right to freedom of the press And all of these rights relate to the doctrine of public policy, which does not al- low one right to totally extinguish another and favors free and open discourse in a democratic society. For constitutional and public policy reasons, individuals generally may not be sued for defamatory statements they make in official government proceedings. The U.S. Constitution, Article I, Section 6, states: “[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” Most state constitutions grant similar immunity to members of the state legislature (and sometimes to other public officials) for statements made in their official capacities. Statutory or common law also exempts judges, attorneys, and witnesses from defamation suits for statements made in court proceedings or before legislative bodies, although they are still subject to criminal penalties for perjury if a false statement is knowingly made under oath. This immunity also does not shield attorneys, parties, and witnesses from contempt of court for statements made in court proceedings. The news media and the public are also immune from liability when reporting accurately what has been stated by participants in official government proceedings.

Ethics Watch Although an attorney, party, or witness is absolutely immune for defamatory statements made in court, or in documents submitted to a court, that immunity does not apply to statements made outside of the court proceedings. Consequently, a paralegal could be liable for repeating outside the law firm information that has been shown to be false and defamatory. Although a paralegal—as a private citizen—is free to report what has already been stated in court, discretion should be the rule.

FRAUDULENT MISREPRESENTATION Fraud is the intentional use of deceit to induce someone to give some benefit to Fraud is the intentional use of the tortfeasor. In less precise terms, fraud is cheating. In litigation, fraud usually deceit to induce someone to arises in the context of inducing someone to enter into a contract—inducing a per- give some benefit to the son to buy a used car by turning the odometer back, for example, or furnishing tortfeasor. false information to a bank in order to obtain a loan. However, fraud sometimes occurs in the context of ongoing business relationships—when a partner main- tains two sets of books, for example, and keeps an unfair portion of the partner- ship’s profits for himself. 20 CHAPTER 12

Fraud is also committed when: ■ a debtor transfers his assets to friends, relatives, or entities controlled by the debtor (e.g., trusts or corporations) in order to conceal those A fraudulent transfer is the assets from his creditors (fraudulent transfers or “conveyances”) conveyance of title in some ■ a taxpayer conceals income from the Internal Revenue Service (tax property to another person so fraud) that a creditor is cheated or delayed in her efforts to gain ■ a trustee uses property of the trust estate for her own benefit or possession of, or title to, that transfers title to that property into her own name as an individual property. (conversion) ■ an investment manager uses the funds contributed by subsequent Conversion is the unauthorized investors to pay a promised return to earlier investors in the same enter- possession and use of someone prise (Ponzi scheme) else’s property so that the true ■ owner is effectively deprived a litigating party knowingly presents fabricated evidence to the court of his ownership rights (fraud on court) permanently (or for an indefinite ■ election officials permit living persons to cast votes under the names of period). deceased persons (election fraud) Of course, the preceding is only a partial list among many forms of fraud. A Ponzi scheme is a fraudulent “investment” scam in which a small portion of the funds provided by subsequent Ethics Watch investors is used to pay ostensible “profits” to the earlier A legal assistant commits fraud if he “pads” his time sheet or expense account, re- investors in the scheme, while gardless of whether the client or the employing attorney is the one being cheated. A the tortfeasor actually diverts legal assistant could be an accessory to fraud if he knowingly facilitates fraud by his the great bulk of all invested employer against the interest of a client or any other person. funds to his own use. Fraud can also constitute a breach of contract—either because it breaches In most jurisdictions, all the implied covenant of good faith and fair dealing, or because it is fraudulent contracts include an implied conduct that violates explicit terms of the contract. In either case, the injured covenant of good faith and fair party would have two causes of action in a lawsuit: fraud and breach of contract. dealing—that is, an implied But a breach of contract is never fraud unless it is done deceitfully. promise by all parties that each will implement the contract fairly and in good faith. The Actual Fraud purpose of the covenant is to ensure that each party receives The required elements in a cause of action for actual fraud (also known as “in- the benefit of the bargain he tentional misrepresentation”) are: made. ■ a false representation by the defendant ■ knowledge by the defendant that the representation is false Actual fraud is the intentional deception of another person so ■ intent to deceive the plaintiff that, induced by that deception, ■ reliance by the plaintiff upon the misrepresentation the victim will rely upon the ■ justifiable reliance by the plaintiff misrepresentation and provide some benefit to the tortfeasor. ■ damages to the plaintiff resulting from that reliance The false representation must be of a past or present fact because no one can know the future. It must also be a misrepresentation of a material fact—one that would influence the decision of the person being deceived. The false representation might be an affirmative one—i.e., a false statement—or it might be an intentional concealment of a material fact. If a seller places furniture over damaged areas in a hardwood floor so that the prospective buyer would not see that damage, that would be an example of intentional concealment. Turning a car’s odometer back would be a false statement if the buyer’s attention is drawn to the auto’s “low mileage.” The Law of Torts 21

Generally, silence is not considered to be misrepresentation unless one person has a duty to disclose material facts to another person. For example, some states have statutes that require homeowners to disclose all known defects in a house prior to selling that property. A duty to disclose sometimes exists under common law. For example, a fiduciary may not remain silent when he is aware of any fact that would be material to the decision of his client or beneficiary. A seller of commercially zoned property has an affirmative duty to disclose that zoning if she learns that the buyer plans to use the property for residential purposes.

Scienter in Actual Fraud Knowledge that the representation is false—called scienter—is a required ele- Scienter is the tortfeasor’s ment of actual fraud. Under the law, however, scienter exists if the defendant has conscious knowledge that he made a false statement without any reasonable basis for that statement. A real has fraudulently misrepresented estate agent who claims that a piece of land is ideal for growing rice—a fact that or concealed material facts. turns out to be untrue—has made a misrepresentation if he lacks actual information that reasonably supports that statement. The misrepresentation must be made with intent to deceive—with an intention that the other person will rely upon that false representation. If a defendant can show that he honestly believed that the false representation was actually true, there is no intent. However, a jury may infer deceptive intent from the evidence before it—for example, if the jury does not believe the defendant’s protes- tations of good faith. Because all torts require that actual damage be caused by the wrongful conduct of the defendant, a cause of action for fraud requires that the plaintiff actually rely upon the defendant’s misrepresentation and be harmed by that reliance. If the buyer of a house employs a qualified building contractor to inspect that house before the buyer commits to completing the purchase, the jury may conclude that she did not actually rely upon the seller’s misrepresentations, but instead relied upon the contractor’s inspection. Reliance upon a misrepresentation must be justifiable—that is, it must be reasonable. To be justifiable, the plaintiff’s reliance must be foreseeable (i.e., reasonably predictable to the defendant). Although representations that are obviously false cannot be relied upon, the plaintiff is under no duty to conduct her own investigation to discover whether representations are true or false because that would relieve the defendant from any responsibility for his intended deceit. In the situation described in the preceding paragraph, the buyer had no duty to hire a contractor to inspect the house. An allegation of justifiable reliance might be supported by the defendant’s superior knowledge. For example, a certified expert in precious gems might be liable if he falsely tells his customer that a diamond would appraise for twice the purchase price. On the other hand, if the jeweler says “this is the investment of a lifetime,” he will not be liable. The latter statement is considered to be “puffery”—the type of vague, inflated sales pitch that no customer has a right Puffery is a seller’s vague to rely upon. characterization of a product’s A real estate agent who claims that property values in a certain area are value or quality without the “sure to double in value within the next 5 years” has expressed no more than an statement of a specific fact upon opinion. Because future property values cannot be known, they are never “facts” which a prospective buyer can and no one has a right to rely upon such statements. This situation differs from reasonably rely. the diamond sale just described because the jeweler was representing the current value of the diamond, not future trends in diamond values. Statements of future intentions are misrepresentations if the speaker actually does not intend to act accordingly. In other words, the speaker’s state of mind (at the moment the statement is made) governs. If the speaker sincerely states 22 CHAPTER 12

a future intention, it does not become a misrepresentation if he later changes his mind. Of course, if the statement of future intent was actually a promise, and a contract was formed, the speaker might be innocent of fraud but liable for breach of contract. Finally, the plaintiff must demonstrate that he was actually damaged by the misrepresentation. If the plaintiff has alleged that he was fraudulently induced to enter into a contract—in other words, he would never had made the contract if he had known the truth—he nonetheless has no cause of action for fraud if he ended up getting the benefit of his bargain and was not otherwise harmed by the misrepresentation. Thus, if a seller misrepresents the value of land, the buyer might have no cause of action if the land actually appreciates substantially above that value within a reasonable time and before the misrepresentation is discovered.

Constructive Fraud Constructive fraud is a Whereas actual fraud requires an intent to deceive, constructive fraud (also negligent misrepresentation of a known as “negligent misrepresentation”) does not require deceptive intent. In- material fact made to a person stead, in constructive fraud the representation relied upon by the plaintiff has to whom the tortfeasor owes a been negligently made by the defendant. Actual fraud also requires scienter— preexisting duty. knowledge that the representation is false; constructive fraud does not require that knowledge. Unlike actual fraud, constructive fraud requires that the person at fault has breached a preexisting duty to the injured party. The duty breached might be a statutory duty or one under contract or common law. Constructive fraud most often occurs when the defendant owes a professional or fiduciary duty to the plaintiff or when the negligent misrepresentation occurs in the conduct of a business. An insurance agent who carelessly states to a prospective client that a particular policy meets his need might be liable for constructive fraud if the client relies upon that advice and purchases the policy even though it effectively excludes him from coverage due to a preexisting medical condition. Although a representation made without any reasonable basis legally con- stitutes knowledge of its falsity under actual fraud, the defendant in constructive fraud normally has a reasonable basis for making the representation but would have learned of its falsity had he investigated thoroughly. The negligence usually stems from the defendant’s inadequate investigation to confirm his belief in the representation made. In actual fraud, a defendant is liable to all victims who foreseeably could learn of the false representation. In constructive fraud, however, the defendant generally is liable only to those he intends to receive his representation: his cus- tomers, clients, and so forth. Figure 12.1 summarizes the distinctions between actual and constructive fraud.

THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The traditional rule was that causing emotional distress was not a tort in its own right, but only one measure of damages arising from the commission of a recognized intentional tort, such as assault or false imprisonment. One reason for this The intentional infliction of rule was the reluctance of courts to award damages for an “injury” so easily emotional distress is extreme and outrageous conduct by the feigned. In recent years, however, the courts of most states have accepted tortfeasor that exceeds all intentional infliction of emotional distress as a distinct tort. The result is that bounds of decency and causes a plaintiff need not prove that the defendant’s conduct was otherwise tortious. the victim to experience severe If evidence shows that the plaintiff’s conduct was intended to inflict severe emo- emotional distress. tional distress, and that it succeeded in doing so, a cause of action might exist. The Law of Torts 23

FIGURE 12.1 Actual and Constructive Fraud

ACTUAL CONSTRUCTIVE False representation ✓✓ Knowledge by defendant that ✓ representation is false Intent to deceive ✓ Reliance on representation ✓✓ Justifiable reliance ✓✓ Damages resulting from reliance ✓✓ Negligent representation ✓ Breach of preexisting duty to the ✓ damaged person Liability to all who foreseeably ✓ could learn of representation Liability only to person to whom ✓ representation was directed

Nonetheless, the courts’ earlier reluctance in recognizing this tort is reflected in the elements required to state a cause of action. The elements of the intentional infliction of emotional distress are: ■ extreme and outrageous conduct by the defendant ■ intent to inflict emotional distress ■ severe emotional distress resulting from the defendant’s conduct To qualify as extreme and outrageous, the conduct must go well beyond the kind of rude, insulting, profane, and offensive conduct one occasionally encounters. The conduct must be so outrageous that it transcends all concepts of decency. In evaluating conduct, the courts will consider the context in which it occurs and the parties involved. Conduct sufficiently extreme and outrageous in a social gathering might not be tortious if it were to occur among the participants in a professional football game. Conduct directed by an adult toward a young child would cross the threshold more easily than the same conduct directed at another adult. Examples of extreme and outrageous conduct cited by the Restatement (Sec- ond) of Torts1 include: ■ as a practical joke, telling someone that her spouse has been seriously injured and is confined to a hospital, causing emotional distress to the woman ■ giving a guest a bathing suit that the giver knows will dissolve in water, leaving the guest naked in front of men and women she has just met, causing extreme embarrassment, shame, and humiliation ■ telling a farmer known to believe in witchcraft that a “hex” has been put on the farm, causing the farmer to believe that it will not grow crops so that he will sell the farm to the defendant, thereby causing severe emotional distress and illness In most torts, the defendant “takes his plaintiff as he finds him”—meaning that the defendant is responsible for injuries that result from both the plaintiff’s wrongful conduct and any special vulnerability of the particular victim, provid- ing that some injury from that conduct is foreseeable. Thus, a driver might be liable for the unusually severe injuries suffered by an elderly person whose bones 24 CHAPTER 12

are brittle, so long as a typical pedestrian would have been injured—although less seriously—by the same impact. However, the infliction of emotional distress is strictly limited to those damages that are foreseeable. Damages cannot arise from the unknown sensitivity of a particular individual. However, if the defendant is aware of that peculiar sensitivity and nonetheless acts recklessly without regard to the likelihood of emotional harm, he might be held liable. That rule is implicit in the requirement that the actor intends to cause severe emotional distress or mental anguish. In the situation of a victim known by the defendant to be hypersensitive, that intent to inflict the distress can be inferred by the jury from conduct that is extreme and outrageous and was committed with the knowledge that emotional distress is virtually inevitable.

PUBLIC AND PRIVATE NUISANCES There is a legal presumption that one is entitled to the reasonable use and enjoyment of one’s property. Otherwise, the primary purposes of property owner- A nuisance is any use of one’s ship would be defeated. A nuisance arises when another person’s conduct un- property that unreasonably reasonably interferes with that use or enjoyment, or substantially diminishes interferes with a neighbor’s the value of that property. In a residential neighborhood, launching rockets into substantial use and enjoyment the sky from one’s backyard might cause unreasonable noise and also the ap- of her property or that prehension of possible injury among the neighbors. The same activity in a re- diminishes the value of the mote desert location might bother no one. One of the purposes of zoning ordi- neighbor’s property. nances is to harmonize the activities of adjacent landowners and their tenants (e.g., farming, commerce, or residential use), thus minimizing nuisance complaints. The covenants, conditions, and restrictions (CC&Rs) established by homeowners’ associations have a similar purpose, but provide for more intru- sive restrictions (and greater protections) than provided by nuisance law. Trespass is the unauthorized The concept of nuisance is closely related to that of trespass upon one’s intrusion onto the land owned property. In the usual concept of trespass, someone damages another’s property by another person. At common right by an unauthorized physical invasion. The invasion can be an entry (e.g., law, trespass included any by a hunter or by trash dumped across the property line). It might also be the unlawful interference with construction of a building that overhangs the property of a neighbor. One of the another’s property rights. more common forms of trespass is the construction of a boundary fence that actually lies within the neighbor’s property, depriving her of the use of several inches (feet or yards) of her property. A continuing controversy is the intrusion of aircraft overhead and the obstruction of horizontal views by buildings or trees. Because there is no physical invasion, the latter example actually ap- proaches the concept of “nuisance.” A public nuisance is one that A nuisance can be either a public nuisance, affecting the community at interferes with the lawful rights large, or a private nuisance, affecting one or a few neighbors. A public nuisance of the public at large. interferes with rights common to all, whereas a private nuisance interferes with the rights of only those persons immediately affected. In some jurisdictions, cer- A private nuisance is one that tain types of public nuisances can carry criminal penalties as well as civil liabil- interferes with the lawful rights ity; however, private nuisances are matters of civil liability, only. Public nui- of one or a few neighbors. sances might include such activities as: ■ habitually selling illegal drugs from a residence ■ continually discharging pollutants from a manufacturing site ■ operating a night club that draws throngs of party-goers who regularly carouse and vandalize in nearby residential neighborhoods ■ keeping dangerous animals on the premises Of course, there are often specific statutory prohibitions for these kinds of conduct (e.g., discharging pollutants), but in their absence an action may be The Law of Torts 25 brought under the theory of nuisance. In most jurisdictions, only the government has standing to sue for a public nuisance. However, an individual might have standing under the same facts to sue for a private nuisance if the defendant’s conduct also causes injuries peculiar to that individual plaintiff (i.e., different from those injuries to the public at large). In actions for private nuisance, the plaintiff must either be in possession of the property interest that is harmed or have the right of immediate possession. Conduct that harms the property interests of only one or a few persons would not be a public nuisance, but is actionable as a private nuisance. This dis- tinction often hangs upon the specific circumstances in which the offending conduct occurs. Keeping dangerous animals on property adjacent to an elementary school is quite different from keeping them on an isolated farm. In the latter circumstance, the conduct might not constitute a nuisance at all, unless there is a neighbor who lives in fear of attack. Due to the isolated location, a public nuisance would be unlikely, but a neighbor could bring an action for private nuisance. Conduct is not actionable as a nuisance unless the harm to the property interests of others is both substantial and unreasonable. The reasonableness of the conduct is determined in light of all relevant factors, such as the customary and usual practices of other landowners in the same circumstances. Any benefit to third parties that derives from the challenged conduct (e.g., night club cus- tomers who do not vandalize the neighborhood) will be considered, as will be the cost to the defendant of eliminating the alleged nuisance. In a few states, however, intentional conduct is sufficient to establish a nuisance, even if that conduct is reasonable. Thus, a farmer might be enjoined from spreading noxious fertilizers on his land adjacent to a neighbor’s home, even though the use of such fertilizers is the customary practice of farmers. The remedies available for nuisance vary depending upon the nature of the nuisance. If the offensive conduct has ceased, monetary damages are available. If a nuisance is continuing in nature, the plaintiff might have to choose between suing for the diminishment in value of his own land or suing periodically for past damages. If the nuisance is continuing but can be discontinued, the plaintiff may seek an injunction against the offending conduct. In the latter situation, monetary damages may be awarded for the past injuries to the plaintiff’s property interests.

INVASION OF PRIVACY There is a presumption in law that each individual has a right to be left “in peace.” One who violates that right in a substantial way can incur civil liability for that invasion. Thus, one who is unsuccessful in battery might still be liable for assault. Nonphysical “assaults” are recognized also in the law of defamation. A somewhat recent extension of such principles has given rise to a more general The right of privacy is the right to be left in peace, without right of privacy. unwarranted disclosure by The right of privacy protects us from certain intrusions by government (e.g., others of our private matters. as in protecting women’s access to abortion) and from unwarranted private intrusions into personal matters (e.g., secretly recording private conversations). This discussion will focus upon the latter type of intrusions by private individu- An invasion of privacy is any als and organizations known as wrongful invasions of privacy. conduct that violates the right of privacy, including the It is important to understand that the common law protects only those as- unauthorized use of one’s name pects of our life for which we have a reasonable expectation of privacy. Individu- or photograph for commercial als surrender some expectations of privacy when they become rock stars or can- purposes or the unauthorized didates for public office. In addition, public policy favors open disclosure of some disclosure of private matters types of “private” information when a person involuntarily becomes a “public that exposes the victim to figure”—persons accused of crimes, for example. Finally, individuals and the shame or embarrassment. 26 CHAPTER 12

news media enjoy First Amendment freedoms of speech and press, and our individual right to privacy must be balanced with these constitutional rights of others.

Unauthorized Intrusion into One’s Private Life This area of privacy law rests upon the essence of the right of privacy: to be left alone and to go unnoticed by others. The clearest examples of the breach of this right are such things as: ■ secret recording of private conversations ■ covert photography with hidden cameras ■ stalking behavior Unauthorized intrusion can also occur when a visitor examines a hospital pa- tient’s chart or an investigator persuades a bank employee to reveal a customer’s bank account information. Oddly enough, Hollywood has often portrayed telescopic eavesdropping through the windows of one’s neighbors as a benign pastime that leads to solving crimes, most notably in the films Rear Win- dow (with James Stewart and Grace Kelly) and Body Double (with Craig Wasson and Melanie Griffith). To be actionable as an invasion of privacy, the intrusion must be highly offensive under prevailing community standards. However, there is no requirement that the information obtained be made public—it is enough that the plaintiff’s reasonable expectation of privacy has been egregiously breached. The measure of damages will be the emotional distress experienced by the plaintiff upon discovery of the intrusion. Although publication is not a required element of the tort, most often it is through some form of publication that the plaintiff first learns of the invasion. Publication can occur by word of mouth, on the In- ternet, in print, or by other means.

Publication of Private Information This area of privacy law is less clearly defined than most others. The information protected against unauthorized publication is essentially similar to those aspects of one’s personal life that are protected against unauthorized eavesdropping or covert inquiry. When it is impossible to demonstrate that the information was obtained by egregious intrusion, a cause of action might lie for unauthorized publication. To be actionable, the publication must be highly offensive to a reasonable person. The offensive quality of the publication is based largely upon the private nature of its content, although the manner of publication can be a factor as well. Because the content of the publication is so central to this cause of action, it is defined in part by content that is not considered to be highly offensive. Thus, the following types of content do not meet the highly offensive standard: ■ information in court records, records of births and death, etc. ■ reports or images of conduct that occurs in public places ■ reports or images of private conduct that do not expose the plaintiff to embarrassment or ridicule Public figures receive less protection under the law than does the general public. In addition, the news media enjoy a privilege to publish information that is newsworthy and of public interest. This very broad exception makes it ex- ceedingly difficult for public figures to prevail in a cause of action for unauthorized disclosure of private facts. The exception also extends to nonpublic figures whose profession creates a public interest in how they perform their profes- The Law of Torts 27 sional duties: medical doctors, school teachers, attorneys, and so forth. For these professionals, an unauthorized disclosure of private conduct would be protected if that conduct had some reasonable relevance to their performance of professional duties. Unlike defamation, truth alone is no defense to an action for unauthorized disclosure. In fact, the truth of the disclosure is irrelevant to unauthorized disclosure. True or not, the disclosure has intruded upon the plaintiff’s right of privacy. Consent, however, is an absolute defense to this cause of action. In Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976), the Court of Appeals held that a magazine could not rely upon a subject’s prior consent if that subject later withdrew his consent to the magazine to print embar- rassing private facts.

Unauthorized Use of a Person’s Name or Image for Commercial Purposes Two interests are at stake here: the right of privacy and the right to profit from the commercial value of one’s name or image. Both interests can be simultaneously infringed by a single, unauthorized commercial use. While nonpublic figures tend to have less commercial value at stake, public figures tend to have a lesser expectation of privacy. Consequently, the privacy interest is usually paramount for nonpublic figures and the commercial interest is usually paramount for famous personalities.

MALICIOUS PROSECUTION After observing the expense and emotional stress endured by many law firm clients, some litigation paralegals resolve never to be either a plaintiff or defendant in a lawsuit. Even when fighting the good and just cause, litigation can be a draining experience. Even more devastating is to be the innocent defendant in a serious civil or criminal matter. For the less scrupulous plaintiff, bringing an adversary to answer before a court of law can be a tempting device even if there is no reasonable basis for the prosecution. This can be particularly tempting for large corporations and very wealthy individuals who have resources that can overwhelm those of most individual defendants. The common law tort of malicious prosecution developed as a remedy for de- Malicious prosecution is the fendants who were maliciously prosecuted in unwarranted criminal actions. In the bad faith institution of legal great majority of states, it has been expanded to provide a remedy for unwar- proceedings (civil or criminal) ranted civil actions brought by the plaintiff out of malice toward the defendant. In against a defendant as a means some jurisdictions, the latter tort is called “malicious use of process” or “wrong- of harassment or punishment ful use of civil proceedings” to distinguish it from malicious criminal prosecution. and without probable cause under the law. The more common term, which shall be used here, is malicious prosecution. In an action for malicious prosecution arising from either a criminal or civil proceeding, the plaintiff in that prior action must have brought that action out of malice and without probable cause under the law. That prior action must have been terminated by a determination on its merits and in favor of the defendant. If any of these elements is missing, a subsequent action by that defendant for malicious prosecution will not lie. Of course, whether the underlying malicious prosecution was in a civil or criminal proceeding, the subsequent suit in tort for malicious prosecution is a civil matter and is a separate proceeding from that underlying case. In some jurisdictions, malicious criminal prosecution is itself a criminal offense if knowingly and corruptly undertaken by the defendant. Depending upon the facts, it also could constitute a 28 CHAPTER 12

criminal offense under federal law (42 U.S.C. § 1983) for depriving a person of her constitutional rights. State and federal prosecutors, however, enjoy an absolute common law immunity from civil suit for malicious conduct of their prosecutorial duties. It is ordinary citizens or other officials—other than the prosecutor—who can be liable for inducing the criminal prosecution without probable cause. The tort of malicious prosecution is often termed a “disfavored” cause of action because the courts fear that it could deter “the ordinary citizen’s willing- ness to report criminal conduct or to bring a civil dispute to the court. . . .” Shel- don Appel Company v. Albert & Oliker, 47 Cal.3d 863, 872 (1989). Consequently, some states require that the plaintiff who is pleading malicious prosecution also show some “special injury” beyond the ordinary emotional distress and expense of defending a meritless lawsuit. Among the elements of malicious prosecution, the more troublesome are the requirements that the prior lawsuit was brought out of malice and without “probable cause.” Obviously, it is not unusual for a plaintiff to feel malice toward the defendant he sues, and it is entirely possible that, absent that malice, many lawsuits might not be pursued at all. So, in that sense, “malicious” prosecutions are not all that unusual. However, the plaintiff’s malicious motivation alone (in the prior lawsuit) will not support a cause of action in a subsequent lawsuit. Any sincere plaintiff who is pleading a prior malicious prosecution by the defendant is almost certain to feel malice also toward that defendant—who first sued him. Malice, alone, could lead to an endless chain of lawsuits. The real threshold issue for malicious prosecution is the prior plaintiff’s lack of probable cause for bringing the original lawsuit. In this context, “probable cause” is the factual and legal basis for bringing the lawsuit. Probable cause exists if a reasonable attorney would believe that it is possible to prevail under the facts known to her, and under the law. If the facts are in dispute, a jury may determine those issues. But once the facts are determined—or if they are undisputed—probable cause becomes a question of law that only the court may determine. If probable cause is missing, malice becomes the critical element for malicious prosecution. In this context, malice is more than ill will—or even hatred. Malice exists in the basis for the plaintiff’s decision to file suit. If the plaintiff de- spises the defendant but files suit to obtain a remedy for actual injuries, an action for malicious prosecution will not lie. After all, that is why the courts exist— to provide remedies for actual wrongs. Malicious prosecution occurs when the plaintiff’s motive is not to seek a remedy, but instead to harass or punish the defendant regardless of the merits of the case. Because malice hangs upon the plaintiff’s state of mind, it is a question of fact that a jury can determine. Some jurisdictions permit the jury to infer malice from the plaintiff’s lack of probable cause. Of course, that inference is more easily made when reaching a verdict against the plaintiff’s attorney, who jurors might think “should know better” than to bring a lawsuit without probable cause. It has become commonplace to plead malicious prosecution not only against the plaintiff in the underlying case, but also against that plaintiff’s legal counsel. Thus, the perceived “threat” of malicious prosecution lawsuits has been a growing concern in the legal profession. Of particular concern is the pos- sibility that some professional liability policies (“errors and omissions” policies) might not insure the attorney for a knowingly malicious act. It is not difficult to understand why attorneys are so often named in lawsuits for malicious prosecution. They, better than their clients, can evaluate the question of probable cause and have an ethical duty to inform their clients if they believe that probable cause does not exist. Naming the attorney provides a second “pocket,” if not a “deeper pocket,” for the recovery of any damages. The Law of Torts 29

DEVELOPING NEW THEORIES OF TORT LIABILITY

Although courts look to precedent to discover our general duties to each other, new grounds for tort liability are occasionally recognized. For example, an injured person files a lawsuit proposing a new theory of tort liability. Whether he wins or loses in the trial court, the case might be heard on appeal if it raises an important question of tort law. If the appellate court agrees with the plaintiff and recognizes a legal duty that has not been explicitly articulated previously, that state’s highest court might also entertain the case and, thus, settle the issue for all courts of that state. With few exceptions, court-defined torts are intended to state the existing law of that jurisdiction—law that was already implicit in statutes and/or earlier court decisions. By logical analysis of statutory and common law, the courts discover legal principles that have been latent but never explicitly articulated. Conceptually, this is similar to revealing the latent images in pho- tographic film when that film is finally developed—the image was there but not previously visible. Logically, the process is similar to solving problems in geometry: deriving solutions from the analysis of legal theorems and their corollaries—and, perhaps, discovering new legal corollaries. That was the process that led courts to recognize intentional infliction of emotional distress and strict products liability as distinct causes of action in tort. The doctrine of strict products liability defined by the California Supreme Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897 (1963), for example, was incorporated in the Restatement of Torts § 402A two years later, and soon became part of the common law in nearly every jurisdiction in the United States. In a similar fashion, the distinct tort of intentional infliction of emotional distress has been recognized by a growing number of state courts, and now is recognized in the Restatement (Second) of Torts § 46. (The Restate- ment is a persuasive, although nonbinding, summary of American common law. Court decisions often cite the Restatement as authority for their holdings.)

SURVIVAL OF CAUSES OF ACTION

Until recent times, the death of either the tortfeasor or the injured party meant that a cause of action expired and did not pass to the estate or the decedent’s relations. Most states, however, have enacted statutes that provide for the sur- vivability of some causes of action. These are usually personal injury or wrongful death causes. If the cause of action survives by operation of a statute, recovery can later be made by or against the estate of the decedent. Most survival statutes exclude causes of action for a decedent’s pain and suffering and for recovery of punitive damages against the estate of a decedent. Most states have statutes that establish a separate cause of action for the surviving family members of a decedent. In other words, the family asserts a new cause of action on its own behalf, not as surrogate plaintiffs for the decedent. Generally, the surviving relatives may sue only for their own financial losses under this new cause of action (e.g., financial support provided by the decedent or the monetary value of companionship and personal services). Some jurisdictions provide for this new cause of action while also permitting a lawsuit by the decedent’s estate. Thus, the estate and the surviving relatives may prosecute separate, but related, causes of action. 30 CHAPTER 12

The survivors’ damages would be limited to their pecuniary losses (as mentioned previously). Actuaries calculate the decedent’s working life expectancy and the wages he would have earned in that time. For nonwage earners, recovery is usually permitted for the value of “services” they would have provided to the survivors. If a surviving spouse has since remarried, that fact is not relevant to the calculation of damages for the lost support and services of the decedent. The latter rule recognizes that “but for” the wrongful death of the spouse, the re- marriage might not have occurred. Most states do not permit survivors to recover for their own ordinary grief or anguish resulting from a wrongful death. Some states, however, do permit recovery if the surviving relative actually witnessed a traumatic death scene, on the theory that it is a separate injury inflicted by the tortfeasor upon a separate victim.

GOVERNMENT IMMUNITY FROM TORT LIABILITY

The traditional doctrine was that “the crown can do no wrong” and, therefore, Sovereign immunity is the could not be sued. In modern times, this sovereign immunity has been greatly doctrine that precludes suing modified by state and federal statutes. The Federal Tort Claims Act permits the the government without its government to be sued for the negligent acts of federal employees and for most consent. intentional torts by federal law enforcement officers. However, the FTCA retains immunity for most “discretionary” acts performed by federal employees in the normal course of their duties. In addition, various Supreme Court rulings have seriously limited the effect of the Federal Tort Claims Act. In any event, all federal cabinet officers, judges, legislators, and prosecutors are almost completely immune from civil liability for actions taken within the scope of their duties, even if committed with malicious intent. The principle of sovereign immunity is not uniform under state laws. Each state has modified that immunity in some fashion, but the variations are so great that it is difficult to generalize. Most states have established mechanisms for bringing claims against state and local government. Most of the claims permitted by state law may be pursued in court. States generally grant complete immunity to the governor, state legislators, judges, and prosecutors for acts taken within the scope of their duties. In a recent series of 5–4 decisions, the U.S. Supreme Court—deferring to the doctrine of sovereign immunity—has held that state governments may not be sued by their citizens or employees for violating certain federal laws, such as the Age Discrimination in Employment Act.

A QUESTION OF ETHICS

Marlo Loreto is a brand new legal assistant fresh out of paralegal school and has been hired for an entry-level position in a personal injury firm. Her supervising attorney has assigned her to handle discovery responses in a number of lawsuits arising from automobile accidents. The cases involve claims against the insurance companies of defendant drivers, with substantial damages for medical treatment and pain and suffering. Prior to becoming a legal assistant, Marlo worked as a registered nurse in a large hospital. One morning, while reviewing medical reports from a client’s doctor, Marlo came across an apparent inconsistency between the doctor’s diagnosis and pro- jected treatment plan. She drew her supervising attorney’s attention to this apparent anomaly, assuming that it was a careless error on the doctor’s part. The The Law of Torts 31 attorney appeared angry upon receiving this news and immediately called the doctor in question: “Look, Arthur, you better damn well get your diagnosis and proposed treatment in sync, or we’re going to lose this case. This is the last time I’m going to put up with this kind of incompetence.” The attorney then told Marlo to shred the inaccurate report and wait for the corrected report to arrive the next day. Marlo was left with the impression that her supervising attorney was trying to pressure the doctor into giving a more “acceptable” report. She was troubled also by the attorney’s instruction to shred the first report. What, if anything, should Marlo do about her concerns?

CHAPTER SUMMARY

■ A tort is any civil wrong other than a breach of contract. ■ Torts can be either intentional or negligent. ■ Some actions are both civil torts and crimes. ■ Negligence is a violation of one’s duty of care toward others. ■ The vast majority of lawsuits allege negligent conduct by the defendant. ■ Strict liability does not require negligence or wrongful intent. ■ Suits for defamation or fraud are common non-negligent actions in tort. ■ In most jurisdictions, by operation of law every contract includes an implied covenant of good faith and fair dealing. ■ Actual fraud requires the intent to gain advantage through the deception of another person. ■ Constructive fraud requires a pre-existing legal duty to another person, but does not require actual intent to deceive that person. ■ Intentional infliction of emotional distress is a relatively new cause of action in tort. ■ A nuisance exists when one uses her property in an unreasonable manner that deprives others of the reasonable enjoyment of their property. ■ Invasion of privacy is the unauthorized and unreasonable use of another person’s name or image, or intrusion into that person’s private matters that are not a subject of valid public concern. ■ Malicious prosecution occurs when one causes criminal or civil proceedings to be brought against another for vindictive purposes without any valid basis under the facts and the law. ■ Courts recognize new causes of action in tort by analyzing existing principles of tort law. ■ In general, a cause of action does not survive the death of either the plaintiff or the defendant. ■ Except as otherwise provided by law, a government entity is immune from suit by its citizens.

KEY TERMS actual fraud agent bad faith actual malice assault battery agency assumption of risk constructive fraud 32 CHAPTER 12 conversion intervening force public nuisance covenant of good faith and fair invasion of privacy puffery dealing libel respondeat superior defamation of character libel per se right of privacy due care malicious prosecution scienter duty of care negligence slander fraud negligence per se SLAPP suit fraudulent transfer negligent tort sovereign immunity Good Samaritan doctrine nuisance strict liability gross negligence personal injury strict products liability implied warranty Ponzi scheme tort intentional infliction of principal tortfeasor emotional distress private nuisance trespass intentional tort proximate cause

ACTIVITIES AND ASSIGNMENTS

1. Read news reports of civil litigation and Identify the affirmative defenses that the tabloids distinguish those cases that involve allegations of might raise. intentional torts from those that involve negligent 4. Using Internet sites identified in Chapter 9, search torts. for cases that have applied the principle of strict 2. Read news reports of criminal prosecutions and liability in lawsuits against tobacco companies. identify any causes of action under tort law that 5. Using the Internet, search for U.S. Supreme Court might arise from the facts of those cases. decisions that have cited sovereign immunity in 3. Review several issues of tabloid newspapers that holding that a state government may not be sued are sold at supermarket checkout lines and by its citizens or employees. evaluate their articles for possible defamation.

END NOTES

1Restatement (Second) of Torts § 46 (1965)