BUSI 2301 Chapter 5: Tort Law Study Guide A tort is a violation of another persons rights or a civil wrongdoing that

does not arise out of a contract or statute. The person who commits the tort is called the tortfeasor. The primary types are intentional, negligent, and strict-liability torts. The primary objective of tort law is to provide compensation for injured parties. States have slightly different definitions of each tort. Potential tort liability should concern business managers. Torts are most commonly classified as intentional, negligent, or strict- liability torts. Each category differs in terms of the elements needed to prove the tort, the available damages, the available defenses, and the degree of willfulness of the actor. Intentional torts occur when the defendant takes an action intending certain consequences will result or knowing certain consequences are likely to result. o The intent at issue is not intent to harm but, rather, is intent to engage in a specific act, which ultimately results in an injury, physical or economic, to another. Negligent torts occur when the defendant acts in a way that subjects other people to an unreasonable risk of harm. In other words, the defendant is careless to someone elses detriment. Strict-liability torts occur when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes.

Intentional Torts Intentional torts are divided into the following three categories: (1) torts against persons, a. Assault is a civil wrong that occurs when one person intentionally and voluntarily places another in fear or apprehension of an immediate, offensive physical harm. Assault does not require actual contact. Assault is often immediately followed by battery, just a b immediately follows a. b. Battery is a civil wrong that occurs when one person intentionally and voluntarily brings about a non-consented harmful or offensive contact with a person or something closely associated with him or her. Battery requires an actual contact. Injury does not have to result. i. Defenses to battery include: consent, self-defense, defense of others, and defense of property (Texas castle defense applies to home and vehicles)

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c. Defamation is a false statement or an action that harms the reputation or character of an individual, business, product, group, government, or nation. Subjective opinions that are not capable of being proved are generally not actionable. One of the important elements of defamation is that the defamatory statement must be damaging to someones reputation. i) If the defamation is published in a permanent form, such as printed in a magazine or newspaper or on television, it is known as libel. ii) If the defamation is made orally, it is slander. Mnemonic: Libel is Letter; Slander is Spoken. i. A person who is accused of defamation can raise two defenses: truth and privilege. (i) Truth is frequently considered to be an absolute defense. That is, one cannot be held liable for defamation, regardless of whether damages result, if the statement made was the truth. (ii) Privilege is an affirmative defense in a defamation action. An affirmative defense occurs when the defendant admits to the accusation but argues that there is a reason why he should not be held liable. A privilege is either absolute or conditional. 1. When an absolute privilege exists, one cannot be sued for defamation for any false statements made, regardless of intent or knowledge of the falsity of the claim. Absolute privilege arises in only a limited number of circumstances. The speech and debate clause of the U. S. Constitution gives an absolute privilege to individuals speaking on the House and Senate floors during congressional debate and during a judicial proceeding. 2. Under a conditional privilege, a party will not be held liable for defamation unless the false statement was made with actual malice (knowledge of its falsity or reckless disregard for its truth). Businesspersons should be most concerned about the conditional privilege that arises with respect to job recommendations. The employer will not be held liable as long as the statement was made in good faith and was made only to those who had a legitimate interest in the information being communicated. Another conditional privilege is the public figure privilege. (2) torts against property, a. Trespass to realty, also called trespass to real property, occurs when someone goes on anothers property without permission or places something on anothers property without permission. Page 2 of 11

b. Private nuisance occurs when a person uses her property in an unreasonable manner that harms a neighbors use or enjoyment of his property. Using ones property in a manner that caused the neighbor to be subjected to flooding, vibrations, excessive noise, or smoke could lead to a nuisance claim. c. Trespass to personal property is the temporary interference with anothers use or enjoyment of his or her personal property. Example: borrowing a bike without permission [You do not need to know this for the test] d. Conversion is the permanent interference with anothers use and enjoyment of his or her personal property. It is not a defense to conversion for a person to argue that she believed she had a legal claim to the goods. Example: stealing the bike or innocently possessing stolen goods [you do not need to know this for the test] (3) and torts against economic interests. a. The five most common torts against economic interests, frequently referred to as business torts, are. i. Disparagement is similar to defamation, but it is a businesss or products reputation that has been tarnished. ii. To successfully bring a claim of intentional interference with contract, the plaintiff must prove (1) a valid and enforceable contract between the two parties existed; (2) the defendant party (a third party) knew of the existence of the contract and its terms; (3) the defendant intentionally undertook steps to cause one of the parties to breach the contract; and (4) the plaintiff was injured as a result of the breach. Example: one employer tries to lure an employee away from another employer. iii. Unfair competition is the act of competing with another not to make a profit but for the sole purpose of driving that other out of business. [you do not need to know this for the test] iv. Misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by any person with a responsibility to care for and protect another's assets (a fiduciary duty). (from on-line dictionary) [you do not need to know this for the test] v. Fraudulent misrepresentation occurs when one uses intentional deceit to facilitate personal gain. [you do not need to know this for the test]

Negligent Torts Negligence is behavior that creates an unreasonable risk of harm to others. Unlike intentional torts, which result from a persons willfully taking actions that are likely to cause injury, negligent torts involve the failure to exercise reasonable care to protect anothers person or property. Page 3 of 11

To win a negligence case, the plaintiff must prove four elements: (1) duty, The defendant must owe a duty to the plaintiff. In some particular situations, the law specifies the duty of care one individual owes to another. o Landowners have a duty of care to protect individuals on their property. o Similarly, businesses have a duty of care to customers who enter business property. The courts generally hold that businesses have a duty of care to protect their customers against foreseeable risks about which the owner knew or reasonably should have known. o When professionals are serving in their professional capacity, courts generally hold that they have a higher duty of care to clients than does the ordinary person. This is a malpractice claim. In most cases, the courts use the reasonable person standard to determine the defendants duty of care. The reasonable person standard is a measurement of the way members of society expect an individual to act in a given situation. (2) breach of duty, (3) causation, Causation has two elements: actual cause (but for) and proximate cause (refers to the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions was it reasonably foreseeable at the time of the breach of duty?). The plaintiff must prove both. and (4) damages. A person must seek compensatory damages, or damages intended to reimburse a plaintiff for her or his losses. In typical negligence cases, courts rarely award punitive damages, or exemplary damages, which are imposed to punish the offender and deter others from committing similar offenses. Res ipsa loquitur literally means the thing speaks for itself. It is a doctrine that allows the judge or jury to infer that, more likely than not, the defendants negligence was the cause of the plaintiffs harm, even though there is no direct evidence of the defendants lack of due care. [you do not need to know this for the test] Negligence per se is a doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendant violated a criminal statute that was designed to prevent the type of harm that the plaintiff incurred.

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Defendants can successfully rebut negligence claims with contributory negligence, comparative negligence, assumption of the risk, and other special negligence defenses: Contributory negligence is the old common law defense, which has been supplanted by comparative negligence in many jurisdictions, including Texas. It is a defense to negligence whereby the defendant can escape all liability by proving that the plaintiff failed to act in a way that would protect him or her from an unreasonable risk of harm and that the plaintiffs negligent behavior contributed in some way to the plaintiffs accident. [you do not need to know this for the test] Last-clear-chance doctrine is a doctrine used by the plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent. [you do not need to know this for the test] Modified comparative negligence is defense accepted in some states (including Texas) whereby the defendant is not liable for the percentage of harm that he or she can prove can be attributed to the plaintiffs own negligence if the plaintiff s negligence is responsible for less than 51 percent of the harm. If the defendant establishes that the plaintiffs negligence caused more than 50 percent of the harm, the defendant has no liability. A plaintiffs recovery is reduced by the degree of his or her fault. By definition, "comparative negligence" (which Texas officially calls "proportionate responsibility") is just that: The defendant argues that he was not the only one who was careless, and that the injured person (the plaintiff) shares some of the blame for his own injuries. If a defendant proves that the plaintiff was also negligent, the plaintiff's recovery will be reduced in an amount equal to the plaintiff's own negligence. In Texas, if the plaintiff is found to be over 50% responsible for his own injuries, then he is barred from recovering any damages. In cases involving comparative negligence, the jury will determine the percentage of responsibility of each plaintiff, of each defendant, and of other responsible persons. Assumption of the risk is a defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk the defendant caused. Good Samaritan statute is a statute that exempts from liability a person, such as a physician passerby, who voluntarily renders aid to an injured person but negligently, but not unreasonably negligently, causes injury while rendering the aid.

Strict liability is the third type of tort (intentional torts and negligence are the other two). It is liability without fault. The law holds an individual liable without fault when the activity in which she engages satisfies three conditions: (1) It involves a risk of serious harm to people or property; (2) it is so inherently dangerous that it cannot ever be safely undertaken; and (3) it is not usually performed in the immediate community. Examples: dynamite blasting in a populated area and keeping animals that have not been domesticated.

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Damages There are three types of damages available in tort cases: compensatory, nominal, and punitive. The primary type of damages is compensatory damages, damages designed to compensate the victim for all the harm caused by the person who committed the tort, often referred to as the tortfeasor. Compensatory damages are intended to make the plaintiff whole. o Compensatory damages are typically awarded for pain and suffering, costs of repairing dam-aged property, medical expenses, and lost wages. o Attorney fees are not compensatory damages. o Nominal damages are a small amount of money (typically, $1 or $5) given to recognize that a defendant did indeed commit a tort in a case where there were no compensable damages suffered by the plaintiff. o Punitive damages (exemplary damages) are awarded to punish the defendant. They are given only when the defendants conduct is extremely outrageous. The purposes of punitive damages are: (1) to punish the defendant and (2) to deter him and others who are similarly situated from engaging in that kind of activity If punitive damages are excessive (compared to the compensatory damages), courts may reduce them. [While you should know the name of the case that follows, you do not need to understand the specifics about the case. The name of the case is: Palsgraf v. Long Island Railroad.]

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Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 162 N.E. 99 (N.Y. 1928). Facts Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train. The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded when it hit the tracks. The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the courts judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed. Issues How is the duty of due care that is owed determined? To whom does a party owe the duty of due care? Holding and Rule (Cardozo Zone of Danger rule) A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. The court held that the conduct of Long Island Railroads guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf. To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee. Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgrafs safety from the appearances of the circumstances to a reasonable person. Long Island Railroads liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional. Disposition Reversed judgment for Long Island Railroad.

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248 NY 339 HELEN PALSGRAF, Respondent, v. The LONG ISLAND RAILROAD COMPANY, Appellant. Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, reversed. (Argued February 24, 1928; decided May 29, 1928.) CARDOZO, Ch. J. Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues. The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do" The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor ([*342] Sullivan v. Dunham, 161 N. Y. 290). If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury" "The ideas of negligence and duty are strictly correlative" (BOWEN, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another. Page 8 of 11

A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff's right upon the basis of a wrong to someone else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one's neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform. The argument for the plaintiff is built upon the shifting meanings of such words as "wrong" and "wrongful," and shares their instability. What the plaintiff must show is "a wrong" to herself, i. e., a violation of her own right, and not merely a wrong to someone else, nor conduct "wrongful" because unsocial, but not "a wrong" to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the Page 9 of 11

possibility of an accident was clear to the ordinarily prudent eye" (Munsey v. Webb, 231 U. S. 150, 156; Condran v. Park & Tilford, 213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as shooting, are so imminently dangerous to anyone who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one's peril (Jeremiah Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101 Mich. 370, 374) [*345] These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.] 524). The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent. Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (BOWEN, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one's bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, [*346] pp. 189, 190). For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental Page 10 of 11

difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach of a duty owing to himself. The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary There is room for argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong. The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

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