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Chapter 8
Causation
Causation between a partys act & anothers injury.
Cause in fact shows the persons conduct is the actual cause of
the event that created the injury (some courts call this the but for
test [sine qua non rule]).
Proximate cause indicates that the liability bears a reasonable
relationship to the negligent conduct.
In some cases, case is so obvious, res ipsa loquitur (the thing
speaks for itself) applies.
If consequences are too remote no liability.
If there is an intervening or superseding event/conduct no
liability.
Chain of events created by a partys actions must be foreseeable.
Some states replace proximate cause with substantial factor test
in bringing about the injury.
See Palsgraf v. Long Island RR Co.
Watch ME Dance!
Megan Zacher was with friends,
drinking at Calico Jacks Cantina
birthday celebration
Calico had a Shake It Like Shakira
contest.
Top prize of $250
Zacher got on top of bar to dance (or
shake) and fell off.
Suffered injury that required surgery.
Zacher sued Calico for negligence.
Her lawyer said bar owners should
have known the contest was
dangerous and likely to lead to
injury.
Defenses To A
Negligence Action
Assumption of Risk
The injured party knew or
should have known of the
risk and voluntarily
assumed it.
Complete bar to the
plaintiffs case
Contributory Negligence
Plaintiffs action
contributed to the injuries.
Plaintiffs case is
completely barred.
Comparative Negligence
Damages are reduced by
the % of injuries caused by
plaintiffs own negligence.
Pure Comparative
Negligence
Comparative Negligence
50% Rule
Assault
Battery
False Imprisonment
Infliction of Emotional Distress
Invasion of Privacy
Defamation: Libel and Slander
Intent
State of mind of defendant
Person knew what he/she was
doing
Person knew, or should have
known, the possible
consequences of the act
Knowledge that certain
results would likely occur
Willful acts invading protected
interests
A reasonable person would
have known that the action
would create harmful
circumstances
ASSAULT
BATTERY
Unlawful touching
Intentional physical
contact without
consent
Use of fist, hand, or
kicking
Use of weapons, i.e.
guns or stick
Unwanted kiss? Has
been held to be a
battery
Assault & Battery
often linked together
in a lawsuit
Defenses
Consent
Privilege
Self defense
Defense of others/Defense of
property
Most states have stand
your ground doctrines
No requirement to retreat
Allow force for force &
deadly force for deadly
force
See Fuerschbach v. Southwest Airlines
Fuerschbach v. Southwest
Airlines Company
Fuerschbach worked as customer service representative for
Southwest Airlines at Albuquerque airport.
Airline prides itself on being fun-loving, spirited company.
After new employees finish probationary period, they are often
subject to a prank to celebrate the event.
Her supervisor thought would be fun to set up a mock arrest.
To help with the prank, two Albuquerque police officers came to
the counter, told her of outstanding warrants against her,
handcuffed her and told her she was under arrest.
She began to cry, so officers took her to the back.
All the employees jumped and yelled Congratulations for being off
probation!
Handcuffs removed; little party began. She kept crying and was
sent home.
Saw a psychologist who said she suffered post-traumatic stress
disorder.
(Continued on next slide)
Fuerschbach v. Southwest
Airlines Company, cont.
Fuerschbach sued everyone connected with the event on
numerous grounds, including assault and battery.
District court granted summary judgment for defendants and
did not allow the matter to go to trial.
HELD: Reversed. Summary judgment vacated re: assault and
battery claim. She can go to trial.
District court said officers were courteous and professional.
Issue: Did the actions offend a reasonable sense of personal
dignity?
HELD: Jury might be able to conclude that being handcuffed
and leading the person to walk fifteen feet offends a reasonable
sense of personal dignity.
Police handcuffed her tightly offensive contact.
Note: Some other claims allowed to go forward; others denied.
The only claim against Southwest Airlines was a Workers
Compensation claim because, under NM law there was no
intent by anyone to harm her at work.
This Is a Real
Arrest!
Chicago police officers brought allegedly drunk driver to
hospital.
Officers told Nurse Lisa Hofstra to draw a blood sample
to measure blood alcohol level.
She refused because, by hospital rules, someone must
be admitted to hospital before procedure is performed.
Officer handcuffed Hofstra & put her into a squad car for
45 minutes.
She sued Chicago Police Department for false arrest.
Was awarded $78,000.
Her attorney noted that nurses work for hospitals and
not for the Chicago Police Department
False Imprisonment
(False Arrest)
Intentional holding,
detaining or confinement
Freedom to come and go is
restrained
Restraint
May be physical
May be mental (i.e. through
verbal threats)
Defense by businesses
regarding detention of
shoplifters:
Restraint was in a
reasonable manner
Restraint was in a
reasonable time
Basis for the detention
was valid
See Forgie-Buccioni v. Hannaford
Brothers
Forgie-Buccioni v.
Hannaford Brothers
Forgie-Buccioni went into grocery store; paid for items and left
Realized he had bought wrong kind of Drixoral (cold med.)
Left other items in his car and went back into store
Told clerk he was going to exchange Drixoral and left the box he
had paid for on the counter
Buccioni found box he wanted & picked up other items to buy
Told different clerk that he had already paid for Drixoral and then
paid for other items
Left store, but manager, Frender, went to parking lot and ask him
to come back to the store
Said he had not paid for Drixoral
Frender put Buccioni in stores security room to discuss matter
and called police
Officer arrested Buccioni. Charges later dropped. (Continued)
Forgie-Buccioni v.
Hannaford Brothers, cont.
Infliction of Emotional
Distress
Intentional conduct: So outrageous, it creates severe mental or
emotional distress
Petty insults, annoying behavior, bad language? Usually not
actionable; we must have tough skin.
Bill collectors or landlords who badger, are profane, or threaten lay
the background for a lawsuit.
EX: Louisiana court gave an award to a woman who found her
comatose husband being chewed by rats in a hospital
Reynolds was sales rep. for Ethicon in 1999. In 2002 she was assigned to a
new division based in Sioux Falls, S.D.
Company reviewed the sales in her territories and decided her region was
weak.
A week after Reynolds told her supervisor, Burns, she was pregnant, he
met with her; said Sioux Falls office would be closed; offered her the
Louisville or St. Louis office or a severance package.
Several weeks later, she suffered a miscarriage.
Blamed the elimination of her position soon after she became pregnant for
the reason of her miscarriage.
She refused to transfer or take severance package. Was fired.
Sued Burns and Ethicon for infliction of mental distress.
District court granted summary judgment for defendant. She appealed.
HELD. Affirmed.
For infliction of emotional distress, conduct must be so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency . . . atrocious, and utterly intolerable in a civilized community.
While termination may be upsetting, it does not constitute extreme or
outrageous conduct.
Invasion of Privacy
Infringement on a persons right of solitude & freedom
from unwarranted public exposure
Use of a persons name or picture without permission
Intrusion on solitude (i.e. wiretap)
Placing a person in false light (publishing a false story)
Public exposure of private facts (debts, drug use)
Defenses
Right of privacy waived by public figures, politicians,
entertainers, sports personalities, etc.
Information about an individual taken from public files or
records
Defamation
(Libel/Slander)
Defenses to Defamation
Truth is a complete defense in some states
Absolute privilege is an immunity
Legislators in committee sessions
Participants in judicial proceedings
Conditional privilege eliminates liability if the false statement
was published in good faith.
If there is no malice
In order to protect a persons legitimate interests
Constitutional privilege
Members of the press may publish opinion about public
officials, figures, or those of public interest if there is no
actual malice (absence of malice)
See Libel in Foreign Courts (U.S. communications companies sued in
U.K. which does not allow news media extensive privilege)
See Test Yourself, p. 174