6-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin.

6-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin

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2•Crimes

•Intentional Torts•Negligence and Strict Liability•Intellectual Property and Unfair

Competition

Crimes and Torts

PA

R

T

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Intentional Torts

PA ET RHC 6

The good have no need of an advocate.

Phocion

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• Define tort and explain types of wrongfulness

• Understand concept of damages• Understand elements of intentional

torts that interfere with personal or property rights, including assault, defamation, invasion of privacy, nuisance, and trespass

Learning Objectives

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• A tort is a civil wrong that is not a breach of a contract

• Four types of wrongfulness are involved:– Intent– Recklessness– Negligence– Strict liability

Definition of a Tort

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• Standard of proof that plaintiff must satisfy in a tort case is preponderance of the evidence standard

• A plaintiff who wins a tort case usually recovers compensatory damages for the harm suffered as a result of defendant’s wrongful act

• Particularly bad behavior may result in an award of punitive damages

The Basics

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• Battery• Assault• Intentional Infliction of Emotional

Distress• False Imprisonment • Defamation• Invasion of Privacy• Misuse of Legal Proceedings• Deceit (Fraud)

Interference with Personal Rights

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• Intentional and harmful or offensive touching of another without the person’s consent– No liability if person consented

• Contact is harmful if it produces bodily injury, but battery includes nonharmful contact that is offensive (reasonable person standard)– Example: Howard v. Wilson case

Battery

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• Assault occurs when there is an intentional attempt or threat to cause a harmful or offensive contact with another person, if the attempt causes a reasonable apprehension of imminent battery in other person’s mind

• Irrelevant whether threatened contact really occurs, as long as plaintiff had apprehension of immediate or imminent contact– Plaintiff must actually see or feel the

potential contact

Assault

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• Most courts allow recovery for emotional distress even if no other tort is proven

• All courts require the wrongdoer’s conduct to be outrageous before liability is imposed

• Most courts apply reasonable person test • See

Durham v. McDonald’s Restaurants of Oklahoma, Inc.: Court applied elements of intentional infliction of emotional distress to facts involving a manager’s allegedly inappropriate treatment of an employee

Intentional Infliction of Emotional Distress

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• False imprisonment is intentional confinement of another for an appreciable time without his or her consent– confinement must be complete, though a few

minutes is enough– no liability if plaintiff consented to confinement

• Example: Pope v. Rostraver Shop and Save– Defendant’s conduct did not constitute a

confinement as required by the elements of false imprisonment and plaintiff never tested the reasonableness of her belief of confinement

False Imprisonment

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• Defamation is an 1) unprivileged 2) publication of 3) false and defamatory 4) statements concerning another person

• Libel refers to written defamation and slander refers to oral defamation

• Truth is a complete defense in a defamation case

Defamation

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• Another defense to defamation is privilege (Calor v. Ashland Hospital Corp.)– Examples: statements made by

participants in judicial proceedings, by officials in the course of their duties, by one spouse to the other in private, and fair and accurate media reports (fair comment) of defamatory matter that appears in proceedings of official government action or originates from public meetings

Defamation

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• New York Times Co. v. Sullivan (1964): the U.S. Supreme Court held that when a public official brings a defamation case, s/he must prove the usual elements of defamation and actual malice (a First Amendment–based fault requirement)– Actual malice means knowledge of falsity or

reckless disregard for the truth– (See Kipper v. NYP Holdings Co.)

• Rule of this case extended to include a public figure, but does not include private figures

Defamation & Free Speech

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• Invasion of privacy refers to four distinct torts:– Intrusion on Solitude or Seclusion

• Applies only with reasonable expectation of privacy

– Public Disclosure of Private Facts– False Light Publicity– Commercial Appropriation of Name or

Likeness (See C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P.)

Invasion of Privacy

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• Three intentional torts protect people against the harm that can result from wrongfully instituted legal proceedings:– Malicious prosecution: wrongful institution of

criminal proceedings– Wrongful use of civil proceedings: wrongfully

instituted civil suits– Abuse of process: imposes liability on those

who initiate legal proceedings, whether criminal or civil, for a primary purpose other than the one for which the proceedings were designed

Misuse of Legal Proceedings

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• Deceit (or fraud) is the formal name for the tort claim available to victims of knowing or intentional misrepresentations– Often tied to a breach of contract claim– Requires proof of false statement of material

fact, knowingly or recklessly made by defendant with intent to induce reliance by the plaintiff, along with actual, justifiable, and detrimental reliance on plaintiff’s past

Deceit (Fraud)

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• Trespass to Land• Private Nuisance• Conversion

Interference with Property Rights

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• Any unauthorized or unprivileged intentional intrusion upon another’s real property, including physically entering plaintiff’s land, causing another person or object to do so, remaining on the land after one’s right to remain has ceased, and invading airspace above land or subsurface below – Intent required for liability is simply the intent to

be on the land, so a person may be liable even if the trespass resulted from a mistaken belief that entry was legally justified

Trespass to Land

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• Involves some interference with plaintiff ’s use and enjoyment of the land

• Unlike trespass to land, nuisance does not require a physical invasion of the property– Includes odors, noise, smoke, light, vibration

• Liability requires the interference to be intentional, substantial and unreasonable

Private Nuisance

Stephens v. Pillen concerned odor from hog farming operations

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• Defendant’s intentional exercise of dominion or control over plaintiff’s personal property without plaintiff’s consent through:– Acquisition– Removal– Transfer to another– Withholding possession– Destruction or alteration– Use

Conversion

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Thought Question

• For several intentional torts, such as defamation or false imprisonment, there may be rights belonging to the defendant, such as free speech or protection of property. How should a judge or jury balance these interests?