Chapter 5
C. J. Cardozo
I. Teacher to Teacher Dialogue
obligations that arise from a civil dispute in tort.
I start by providing some background on the origins of the word “tort” and where it fits into
the legal landscape vis-à-vis crimes and other disturbances of the peace. I also introduce students
to the concept of the big picture where they will be asked to look at the variety of resolution paths
The other interesting aspect of teaching this material is that it introduces students to the
concept of elements or components of a tort or crime or, for that matter, most legal doctrines. I
encourage them to think in terms of negligence as not the first answer, but rather as the result of a
component building block process where negligence is the product of showing the elements are in
much wider eyes.
II. Chapter Objectives
1. List and describe intentional torts against persons.
2. List and explain the elements necessary to prove negligence.
INTENTIONAL TORTS AND
NEGLIGENCE
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Intentional Torts and Negligence
3. Describe the business-related torts of disparagement and fraud.
4. Describe special negligence doctrines.
5. Describe and apply the doctrine of strict liability.
III. Key Question Checklist
How would you classify this tort—intentional, negligence, strict liability?
Is this an intentional tort and if so, are there any appropriate defenses?
IV. Text Materials
The key objectives of this chapter are to itemize the classifications of tort law as used in our
Tort is the French word for a wrong.
Tort law allows an injured party to bring a civil action seeking compensation for wrongs done to
the party or their property. Monetary damages are sought in order to compensate the injured
Intentional Torts
Assault – Assault is an action that causes a reasonable apprehension and threat of imminent harm
Battery – The unauthorized and harmful or offensive physical contact with another person,
False Imprisonment – The intentional restraint or confinement of a person without their consent
Shoplifting and Merchant Protection Statutes – Almost every state allows merchants to stop,
Case 5.1. False Imprisonment: Wal-Mart Stores, Inc. v. Cockrell
61 S.W.3d 774, 2001 Tex. App. Lexis 7992 (2001), Court of Appeals of Texas
Facts: Karl Cockrell was stopped by Raymond Navarro, a Walmart loss-prevention officer while
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Cockrell sued for false imprisonment; Walmart countered that they were protected under the
shopkeeper’s privilege. The trial court found in favor of Cockrell; Walmart appealed.
Issue: Does the shopkeeper’s privilege protect Walmart from liability under the circumstances of
the case?
Decision: No.
Reason: The Court of Appeals upheld the trial court’s finding that Walmart had falsely
Ethics Questions
Navarro did not act responsibly. Neither he nor any other employee saw Cockrell steal anything.
Further, the students should question why the bandage had to be removed, since it is highly
Misappropriation of the Right to Publicity – The tort of appropriation occurs when another
Invasion of the Right to Privacy – The law protects each person’s right to not be subjected to
intrusions into their private lives.
Defamation of Character – This tort requires that the plaintiff prove that the defendant made an
untrue statement of fact about the plaintiff that was, intentionally or accidentally, published to a
Disparagement – Disparagement, trade libel, product disparagement, and slander of title are all
misrepresentation, and was injured.
Intentional Infliction of Emotional Distress – If the intentional or reckless extreme and
Critical Legal Thinking – This question addresses the American Rule of damages. In some
states and with some statutes, there is cost shifting available for legal expenses. Other countries
Intentional Torts and Negligence
Unintentional Torts (Negligence)
reasonable child standard.
Duty of Care – To determine whether a defendant is liable for negligence, it must first be
ascertained whether the defendant owed a duty of care to the plaintiff. Duty of care refers to the
of an action.
Injury to Plaintiff – Even if the court finds that there is a duty to care, the plaintiff must suffer
an injury in order to bring suit.
hospitalization and skin grafts.
Liebeck asked McDonald’s to cover her medical expenses. They refused and offered her a
much smaller amount as a settlement. She sued. McDonald’s denied any negligence and asserted
that she had caused her injuries by removing the top from the cup.
McDonald’s quality-control rule requires that the restaurant serve coffee at 180-190 degrees,
rather exceptional situation. Apparently, McDonalds received notice that $800 is too low of a
settlement in this case. Student answers will vary.
Case 5.2 Negligence: Jones v. City of Seattle, Washington
impaired from an on the job injury. This is a very bad set of facts in a union friendly state.
Perhaps not trying this case and settling it would have been a better option for the defense.
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Critical Legal Thinking Case Proximate Cause
Palsgraf v. The Long Island Railroad Company, 248 NY 339
This case examines the issue of proximate cause. The court determined that negligence is
actionable only if it involves the invasion of a legally protected interest.
Case 5.3 Duty of Care: James v. Meow Media, Inc.
300 F.3d 683, 2002 USApp. Lexis 16185 (2002), United States Court of Appeals for the Sixth
Circuit
Facts: The parents of the three dead children sued the producers and distributors of the violent
liable for negligence. The plaintiffs appealed.
Issue: Are the video and movie producers liable to the plaintiffs for selling and licensing violent
video games and movies to Carneal, who killed the plaintiffs’ three children?
Decision: The Court of Appeals held that the defendants’ video game and movie producers and
distributors were not liable to the plaintiffs. The court cites a requirement that it be reasonable
intentional criminal acts.
Ethics Questions: A proximate cause is a point along a chain of events caused by a negligent
party after which this party is no longer legally responsible for the consequences of his or her
actions. The general test of proximate cause is foreseeability. A negligent party who is found to
be the actual cause—but not the proximate cause—of the plaintiff’s injuries is not liable to the
Special Negligence Doctrines
Professional Malpractice – If a professional breaches the reasonable profession duty of care
standard, it is called professional malpractice.
severe emotional distress.
Negligence Per Se – This form of negligence is based upon statutes that are enacted to prevent
the type of injury suffered by an individual intended to be protected by the statute.
negligence.
Intentional Torts and Negligence
Gross Negligence – A person is liable for harm that is caused by his or her own willful
misconduct or reckless behavior. Gross negligence opens the door to punitive damages for a
plaintiff.
accident.
Case 5.4 Gross Negligence: Aleo v. SLB Toys USA, Inc.
995 N.E. 2d 740, 2013 Mass. Lexis 709 (2013), Supreme Judicial Court of Massachusetts
Facts: A child died from a slide with an electric current made in China and sold by Toys “R” Us.
Issue: Is the defendant grossly negligent?
across that defective toys are not going to be tolerated in the United States.
Critical Legal Thinking – Public policy exists to encourage medical professionals, especially
doctors who have taken the Hippocratic oath, to use their skills to assist Americans who are in
liability in performing medical “duties.”
Attractive Nuisance Doctrine – A rule that imposed liability on a landowner to children who
Defenses Against Negligence
Assumption of Risk – Defendants can raise the issue that the plaintiff assumed the risk by
voluntarily and knowingly entering into risky activities.
Case 5.5 Obvious Danger: Martinez v. Houston McLane Company, LLC
society and I am surprised that fans are allowed to sit so close to the open baseball field. I
wonder whether this liability excuse will continue to exist in our American society.
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Comparative Negligence – The doctrine of pure comparative negligence apportions the
negligence between the plaintiff and defendant, and the defendant is responsible for his
Critical Legal Thinking – Comparative negligence seems to more fairly allocate risk across
parties. The difference is that in contributory negligence, the plaintiff is shut out of recovering
any damages if he is partially at fault in a negligence situation.
Strict Liability
recovery in those situations.
V. Key Terms and Concepts
Abnormally dangerous activities—Strict liability is imposed for abnormally dangerous
activities that cause injury or death.
necessary.
Assumption of the risk—A defense in which the defendant must prove that (1) the
plaintiff knew and appreciated the risk, and (2) the plaintiff voluntarily assumed the risk.
would act.
Comparative negligence—A doctrine that applies to negligent actions that says a plaintiff
who is contributorily negligent for his injuries is responsible for a proportional share of
the damages.
Contributory negligence—A doctrine that says a plaintiff who is partially at fault for his
business reputation.
Duty of care—The obligation people owe each other not to cause any unreasonable harm
or risk of harm.
False imprisonment—The intentional confinement or restraint of another person without
authority or justification and without that person’s consent.
Intentional Torts and Negligence
ordinary negligence.
Injury—The plaintiff must suffer personal injury or damage to his or her property in
order to recover monetary damages for the defendant’s negligence.
Intentional infliction of emotional distress—A tort that says a person whose extreme or
outrageous conduct intentionally or recklessly causes severe emotional distress to another
a buyer is injured thereby.
Intentional tort—Occurs when a person has intentionally committed a wrong against (1)
another person or his or her character, or (2) another person’s property.
Invasion of the right to privacy—A tort that constitutes the violation of a person’s right to
photograph, movie, video, etc.
Malicious prosecution—A lawsuit in which the original defendant sues the original
plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa.
Merchant protection statute—Statutes that allow merchants to stop, detain, and
investigate suspected shoplifters without being held liable for false imprisonment if (1)
breach of the duty of care.
Negligent infliction of emotional distress—A tort that permits a person to recover for
New York Times Co. v. Sullivan—In this case, the U.S. Supreme Court held that public
officials cannot recover for defamation unless they can prove that the defendant acted
with “actual malice.”
York case decided in 1928.
Partial comparative negligence—Several states have adopted partial comparative
negligence, which provides that a plaintiff must be less than 50 percent responsible for
ordinary care.
Proximate cause or legal cause—A point along a chain of events caused by a negligent
party after which this party is no longer legally responsible for the consequences of his or
her actions.
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celebrities.
Reasonable person standard—A test used to determine whether a defendant owes a duty
Reasonable professional standard—Defendants with a particular expertise or competence
are measured against a reasonable professional standard.
Scienter—Refers to intentional conduct.
Superseding event—A defendant is not liable for injuries caused by a superseding or
intervening event for which he or she is not responsible.
torts (negligence), and (3) strict liability.
Transferred intent doctrine—Under this doctrine, the law transfers the perpetrator’s intent
from the target to the actual victim of the act.