978-1285427003 Chapter 6 Lecture Note Part 1

Unlock access to all the studying documents.

View Full Document

Suggested Additional Assignments

Research: Criticism by the Press

Ask students to find a newspaper article, editorial, or column that harshly criticizes someone. Has the author or

publisher made efforts to avoid a claim of libel? How?

Research: Online Defamation

Ask students to find an online posting either on a social networking site or celebrity gossip site that harshly criticizes

someone. Has the author made efforts to avoid a claim of defamation? What unique features of the Internet make

pursuing a defamation claim difficult? Should the Internet Service Provider be responsible too?

Research: Tortious Interference

In the financial pages of a newspaper, students should find an article about two corporations negotiating a major

contract, such as for the sale of a subsidiary. Ask them to outline a hypothetical in which a third corporation enters

the negotiations. When is it lawful for a third party to force its way into the bargaining, and when is it tortious

interference with a prospective advantage? What preventive law steps should that company’s CEO take?

Chapter Overview

Chapter Theme

A wide variety of intended acts can have unintended consequences. With intentional torts, the defendant may not

have intended to harm the plaintiff, but her deliberate actions have resulted in alleged injury. Anticipating the harm

that can result enables us to consider carefully the actions themselves.

Introduction

“Tort” means “wrong.” A tort is a violation of a duty imposed by the civil law. Torts differ from crimes in that crimes

are prosecuted by the government. Tort cases are filed by the wronged party. A particular action may be both a tort

and a crime. A tort also differs from a contract dispute in that in a tort, there is usually no prior agreement between

the parties. The law itself creates the duty breached by the defendant in a tort case.

Intentional Torts

Defamation

Defamation is a false statement that harms someone’s reputation. Four elements: Defamatory statement, that is false,

communicated to someone other than the plaintiff, that somehow injures the plaintiff.

Slander: oral defamation.

Libel: written defamation.

Slander per se: False statements about sexual behavior, crimes, contagious diseases, and professional abilities. A

plaintiff does is not required to prove injury in slander per se cases.

Mere statement of opinion does not constitute defamation.

Additional Case: You Be the Judge: Yeagle v. Collegiate Times1

Facts: Sharon Yeagle was the Assistant to the Vice President of Students Affairs and Virginia Polytechnic Institute

and State University. One of Yeagle’s duties was to help students apply to the Governor’s Fellows Program. The

school newspaper published an article describing the university’s success in placing students and included a quote

from Yeagle. Under Yeagle’s name in the article was the phrase “Director of Butt Licking.”

Yeagle sued the Collegiate Times for defamation and the trial court dismissed the case ruling that no

reasonable person would take the words literally. Yeagle appealed.

Issue: Was the phrase defamatory, or was it deliberate exaggeration that no reasonable person would take

literally?

Holding: Judgment for Collegiate Times affirmed. The Court held that the phrase was no more than rhetorical

hyperbole. Although the phrase was disgusting, offensive, and in bad taste, it could not reasonably be understood as

stating an actual fact about Yeagle’s job title or her conduct, or that she committed a crime of moral turpitude.

Yeagle’s assertion that the phrase demonstrated a lack of integrity in the performance of her duties also failed. The

phrase could not reasonably be considered as conveying factual information about Yeagle, thus it did not support a

cause of action for defamation.

1 255 Va. 293, 497 S.E.2d 136, 1998 Va. LEXIS 32, Virginia Supreme Court, 1998.

Question: Why does the Court look at phrase in the context in which it appeared, from the standpoint of the

average reader?

Answer: The phrase could not be read in a vacuum. The same phrase appearing on the front page of a national

Question: What was the context in which the phrase appeared?

Answer: The phrase was in a student newspaper, readers of which appreciate humor and lively language. In this

Question: Why is that important? The photo and caption offended Yeagle.

Answer: It is important because without an untrue statement of fact, Yeagle cannot prove a prima facie case of

defamation.

Opinion

Opinions generally cannot be proven true or false, and so they do not usually amount to defamation.

Public Personalities

Government officials and other types of public figures such as actors and athletes receive less protection from

defamation. A public official or public figure can win a defamation case only by proving actual malice by the

defendant. Actual malice means that the defendant knew the statement was false or acted with reckless disregard of

the truth.

General Questions:

Should the law continue to require all public personalities to prove actual malice? Why or why not?

Should a court consider the value to society of the communication involved before requiring a public

personality to prove actual malice? If so, how should the court measure such value?

Additional Case: Sally Heath, as Guardian Ad Litem for Jane Doe, a Minor

Child, v. Playboy Enterprises, Inc. (PEI)2

Facts: The facts are not in dispute. In 1987, Tanena Love brought a paternity action against Christopher Carson in

Florida on behalf of Cristal Love Carson, her minor child. Carson is the son of Johnny Carson, the late night

television talk show host. The circuit court ordered Carson to pay $175.00 per month in child support for Cristal.

The hearings on the paternity action received extensive news coverage. Television crews and other members of the

media appeared at the Broward County Courthouse to report on the paternity action. Newspaper and magazine

accounts of the proceedings appeared regularly. Love posed with Cristal for numerous media photographs, gave

interviews, and appeared on several television talk shows.

This lawsuit arises from Playboy Entertainment, Inc.’s (PEI) account of the paternity action in the March 1988 issue

of Playboy entitled “The Year In Sex.” A photo of Love holding her daughter Cristal appeared with a brief text that

mentioned Love’s paternity action in a section of the issue entitled “Sex Styles of the Rich and Famous.” The picture

was taken on the steps of the Courthouse during one of Love’s court appearances. The text next to the photograph

states:

HEEERE’S CHRISTAL [sic]! Johnny Carson’s number one son, Christopher, was ordered to pay $175

weekly in child support for year-old Christal [sic] Love Carson, his daughter by aspiring actress Tanena

Love Green. Johnny’s youngest boy, Cory, has also fathered an illegitimate child.

Sally Heath, as guardian ad litem for Cristal, filed this action against PEI based on publication. Heath claims PEI

invaded the child’s privacy by publishing this article about the child’s paternity and photograph of mother and child

on courthouse steps.

Issue: Were the photographs and facts as published by PEI private?

Holding: No. The Court concludes that the facts published in the Playboy article were not private. The prior

publication of all facts published in the March 1988, issue of Playboy proves their public nature. Re-publication of

these facts cannot be actionable as an invasion of privacy as a matter of law.

2 732 F.Supp. 1145, United States District Court, S.D. Florida.

The photograph was taken in a public place. The text contained facts from public judicial records. All facts had been

made public prior to the Playboy article. All information was obtained by legitimate means. Therefore, plaintiff has

failed to state a claim for invasion of privacy based on the theory of publication of private facts. No private facts

were disclosed.

Question: Even if these facts were deemed public by the court, is the decision appropriate for a minor child

with no ability to consent?

Online Defamation

The Communications Decency Act of 1996 (CDA) grants immunity to Internet service providers (ISPs) from

liability for defamation when publishing information originating from a third party.

Privilege

In certain cases, speakers are given protection from being sued for defamation. This protection is called “privilege.”

Absolute privilege is given to those speaking in courtrooms and legislative sessions.

False Imprisonment

False imprisonment is the intentional restraint of another person without a reasonable cause and without consent.

Most states have regulations that govern how long and under what circumstances a customer or employee may be

held for suspicion of shoplifting or theft.

Intentional In%iction of Emotional Distress

Intentional Infliction of Emotional Distress consists of extreme and outrageous conduct that causes serious

emotional harm.

Case: Jane Doe and Nancy Roe v. Lynn Mills3

Facts: Late one night, an anti-abortion protestor named Robert Thomas climbed into a dumpster located behind the

Women’s Advisory Center, an abortion clinic. He found documents indicating that the plaintiffs were soon to have

abortions at the clinic. Thomas gave the information to Lynn Mills. The next day, Mills and Sister Lois Mitoraj

created signs, using the women’s names, indicating that they were about to undergo abortions, and urging them not

to “kill their babies.”

Doe and Roe (not their real names) sued, claiming intentional infliction of emotional distress (as well as breach of

privacy, discussed later in this chapter). The trial court dismissed the lawsuit, ruling that the defendants’ conduct was

not extreme and outrageous. The plaintiffs appealed.

Issue: Did the plaintiffs make a valid claim of intentional infliction of emotional distress?

Decision: Yes. The plaintiffs made a valid claim of intentional infliction of emotional distress.

Reasoning: A defendant is liable for the intentional infliction of emotional distress only when his conduct is

outrageous in character, extreme in degree, and utterly intolerable in a civilized community. A good test is whether

the average member of the community would respond to the defendant’s conduct by exclaiming, “Outrageous!”

These defendants had a constitutional right to protest against abortions, but they had no such right to publicize

private matters. Their behavior here might well have caused the average person to say, “Outrageous!” The

plaintiffs were entitled to a trial, so that a jury could decide whether the defendants inflicted emotional distress.

Question: According to the Appeals Court, how does the law determine whether a defendant’s conduct is

sufficiently extreme to constitute this tort?

Answer: The court said that the elements have probably been established if the average member of the

Question: Don’t the defendants have a First Amendment right to express their opinions?

Answer: Yes. The court acknowledges that the defendants have a right to express their views on abortion. What

3 212 Mich. App. 73, 536 N.W.2d 824, 1995 Mich. App. LEXIS 313 Michigan Court of Appeals, 1995.

Question: Does the Appeals Court ruling mean that the plaintiffs have proven their case of intentional infliction

of emotional distress?

Answer: No. The ruling simply means that the plaintiffs are entitled to a jury trial. The court is ruling that the

Additional Intentional Torts

Battery and Assault

Assault and battery are related, but not identical. Battery is an intentional touching of another person in a way that

is harmful or offensive. Assault occurs when a defendant does some act that makes a plaintiff fear an imminent

battery.

Trespass, Conversion, and Fraud

Trespass is intentionally entering land that belongs to someone else or remaining on the land after being asked to

leave.

Conversion is taking or using someone’s personal property without consent.

Fraud is injuring another person by deliberate deception.

Damages

Compensatory Damages

Monetary damages designed to restore an injured party to the position he was in before the defendant’s conduct

caused injury. Generally include medical bills, lost wages, and pain and suffering.

Punitive Damages

Monetary damages intended to punish the defendant for conduct that is extreme and outrageous.

Landmark Case: State Farm v. Campbell4

Facts: While attempting to pass several cars on a two-lane road, Campbell drove into oncoming traffic. An innocent

driver swerved to avoid Campbell and died in a collision with a third driver. The family of the deceased driver and

the surviving third driver both sued Campbell.

As Campbell’s insurer, State Farm represented him in the lawsuit. It turned down an offer to settle the case for

$50,000, the limit of Campbell’s policy. The company had nothing to gain by settling because even if Campbell lost

big at trial State Farm’s liability was capped at $50,000.

A jury returned a judgment against Campbell for $185,000. He was responsible for the $135,000 that exceeded

his policy limit. He argued with State Farm, claiming that it should have settled the case. Eventually, State Farm

paid the entire $185,000, but Campbell still sued the company, alleging fraud and intentional infliction of emotional

distress.

His lawyers presented evidence that State Farm had deliberately acted in its own best interests rather than his.

The jury was convinced, and in the end, Campbell won an award of $1 million in compensatory damages, and $145

million in punitive damages. State Farm appealed.

Issue: Did the punitive damages violate the Due Process Clause?

Decision: Yes. A ratio of punitive-to-compensatory damages of 145-to-1 was excessive, especially where the

plaintiff suffered limited harm.

Reasoning: The goal of punitive damages is to prevent and punish wrongdoing. However, the Due Process Clause

requires that people have fair warning about what conduct will be punished and how severe the penalty will be.

When punitive damages are grossly excessive, they violate this provision of the Constitution.

Punitive damages are reasonable only if they are proportionate both to the amount of harm suffered by the plaintiff

and to the compensatory damages awarded. We do not impose any precise limit on punitive damages awards,

because results will depend on the particular facts of each case. However, we are skeptical of any awards in which

4 538 U.S. 408 Supreme Court of the United States (2003).

the ratio between punitive and compensatory damages is greater than nine. Awards at this level are unlikely to

satisfy due process, while still achieving the State’s goals of prevention and punishment. Double-digit ratios could

be possible, but only in cases of extreme harm.

Campbell’s award had a triple-digit ratio of 145-to-1. That is, the lower court awarded Campbell $145 million in

punitive damages and $1 million in compensatory damages. What was the extent of their harm? Campbell suffered a

year and a half of emotional distress. He had no physical injuries or trauma. His economic damage was not

significant either, since State Farm paid the excess verdict. One million dollars was adequate compensation for his

stress and hurt feelings.

Judgment reversed and case remanded to the lower court.

Question: What is the limit on punitive damages?

Question: Why did Campbell’s lawyers asked for such a high amount in punitive damages?

Answer: Possibly to send a message to State Farm, and all insurance companies, that in the context of legal

Additional Case: Exxon Shipping Co. et al. v. Baker et al.5

Facts: In 1989, the Exxon supertanker Valdez ran aground on a reef in Alaska spilling 11 million gallons of crude oil

into Prince William Sound. The captain of the Valdez, John Hazelwood had completed a 28-day alcohol treatment

program while employed by Exxon, as his superiors knew, but dropped out of the required follow-up program and

stopped attending Alcoholics Anonymous meetings. Witnesses testified that before the Valdez left port on the night

of the spill, Hazelwood drank at least five double vodkas, which is about fifteen ounces of 80-proof alcohol, enough

“that a non-alcoholic would have passed out.”

The accident occurred after Hazelwood, inexplicably left the bridge, leaving a difficult course correction to an

unlicensed subordinate. The officer failed to make a necessary turn and the tanker ran aground on Bligh Reef,

tearing the hull open and spilling the millions of gallons of oil.

As a result, Exxon spent about $2.1 billion in cleanup efforts. The United States charged the company with

criminal violations of the Clean Water Act, the Refuse Act of 1899, the Migratory Bird Treaty Act, the Ports and

Waterways Safety Act, and the Dangerous Cargo Act. Exxon pleaded guilty and agreed to pay a $150 million fine,

which was later reduced to $25 million plus restitution of $100 million. A civil action by the United States and the

state of Alaska resulted in a consent decree whereby Exxon will pay $900 million toward restoring natural resources,

and Exxon paid another $300 million in voluntary settlements with fishermen, property owners, and other private

parties.

The remaining civil cases were consolidated and a class of plaintiffs sought punitive damages. Exxon admitted

it was negligent in the disaster and liable for compensatory damages. In charging the jury on the issue of punitive

damages, the court told the jurors that the purpose of punitive damages was to punish and deter defendants. The

court instructed the jury to consider the reprehensibility of the defendant’s conduct, their financial condition, the

magnitude of the harm, and any mitigating facts. The jury awarded $5,000 in punitive damages against Hazelwood

and $5 billion against Exxon. Exxon appealed the punitive damage award to the Court of Appeals for the Ninth

Circuit. That Court remanded twice for adjustments and reduced the award to $2.5 billion. Exxon appealed to the

United States Supreme Court.6

Issue: Was the punitive damage award excessive?

Holding: Yes, the decision of the Court of Appeals is vacated and remanded.

Excerpts from Justice Souter’s Opinion: Exxon argues that the $2.5 billion punitive damage award exceeds the

bounds justified by the punitive damages goal of deterring reckless (or worse) conduct. This claim hits at the heart

of our understanding of where punitive damages fit in the modern civil law and reasonable standards of process in

administering punitive damages. The consensus today is that punitive damages are aimed not at compensation but

principally at retribution and deterring harmful conduct; conduct that is outrageous, grossly negligent, willful,

wanton, and even worse.

5 128 S.Ct. 2605 (2008).

6 Exxon appealed on other grounds also, but for the purposes of this manual, only the issue of the

punitive damage award is discussed.

Although American punitive damages have come under much criticism lately, many of the studies seem to

undercut much of that criticism. Although some studies show the dollar amounts growing, the real problem is the

unpredictable nature of punitive awards. Available studies show that the median ratio of punitive-to-compensatory

awards has remained 1:1; however, the spread between high and low awards is great which means in the outlier

cases defendants are being subjected to punitive damages that greatly exceed the compensatory damages.

A penalty should be reasonably predictable in its severity, so that even Holmes’s “bad man” can look ahead and

know what the stakes are in deciding a course of conduct. Applying a quantifiable limit on punitive damages would

achieve this predictability. An acceptable standard can be found in the many studies which reflect the judgments of

judges and juries in thousands of cases dealing with conduct at all levels from malice to recklessness to gross

negligence. That data put the median ratio at less than 1:1. The Court finds that a 1:1 ratio is a fair upper limit in this

case where the action is worse than negligent but less than malicious, and where the compensatory damages are

high. Because the District Court’s calculation of the total amount of compensatory damages was $507.5 million, a

punitive-to-compensatory ratio of 1:1 yields maximum punitive damages in that amount.

General Question: Do you agree that $2.5 billion (or the original $5 billion) is excessive given the enormity of

the damage?

General Question: Is the maximum $507.5 million enough penalty to deter such a large corporation?

Question: Does a strict 1:1 ratio tie the hands of many courts that might feel it appropriate to award a greater

amount?

Answer: The Court does not think so. The Court noted that the vast majority of punitive damage awards fall

within a 1:1 ratio, and that a few rare outliers created excessive punitive awards. The Court analogized punitive

damages with criminal sentencing; both serve similar functions to deter and to punish. Historically, judges were

Business Torts

The following torts occur almost exclusively in a commercial setting.

Tortious Interference With Business Relations

This tort occurs when a defendant harms an existing contract or a prospective relationship that has a definite

expectation of success.

Tortious Interference With A Contract

Exists only if the plaintiff can establish the following four elements:

• There was a contract between the plaintiff and a third party;

• The defendant knew of the contract;

• The defendant improperly induced the third party to breach the contract or made performance of the contract

impossible; and

• There was injury to the plaintiff.

A defendant may rely on the defense of justification, a claim that special circumstances made its conduct fair.

Tortious Interference With A Prospective Advantage

A variation on interference with a contract. For this tort, there need be no contract; the plaintiff is claiming outside

interference with an expected economic relationship.

Additional Case: Carvel v Noonan7

Facts: For decades, Carvel sold its ice cream only through franchised stores. However, a decline in revenues caused

the company to begin selling its product in supermarkets. That effort expanded quickly, but many of the franchised

7 3 N.Y.3d 182, 785 N.Y.S.2d 359, 818 N.E. 2d 1100 New York Court of Appeals, 2004

stores (franchisees) went out of business. Franchisees filed suit, claiming tortious interference with a prospective

advantage. In particular, the plaintiffs argued that Carvel undersold them in supermarkets, and issued coupons only

redeemable there. The case reached New York’s highest Court.

Issue: Had Carvel committed tortious interference with a prospective advantage?

Holding: Judgment for Carvel. In the words of the Court:

The franchisees’ tort claim is that Carvel unlawfully interfered with the relationships between the franchisees

and their customers. The franchisees do not claim that the customers had binding contracts that Carvel induced

them to breach; they allege only that, by implementing its supermarket program, Carvel induced the customers

not to buy Carvel products from the franchisees. The juries have found that Carvel did so induce customers, and

the question for us is whether that inducement was tortious interference under New York law.

Inducing breach of a binding agreement and interfering with a nonbinding “economic relation” can both be

torts, but that the elements of the two torts are not the same. Where there has been no breach of an existing

contract, but only interference with prospective contract rights, however, plaintiff must show more culpable

conduct on the part of the defendant. The implication is that, as a general rule, the defendant’s conduct must

amount to a crime or an independent tort.

The franchisees’ claim that Carvel used wrongful economic pressure fails for two reasons. First, it is ill-founded

because the economic pressure that must be shown is not, as the franchisees assume, pressure on the

franchisees, but on the franchisees’ customers. All Carvel did to the franchisees’ customers was to make Carvel

goods available in supermarkets at attractive prices. Second, Carvel’s activities do not amount to the sort of

extreme and unfair “economic pressure” that might be “wrongful.” The crux of the franchisees’ complaint is that

Carvel distributed its products through competitive channels, to an extent and in a way that was inconsistent

with the franchisor-franchisee relationship. The relationship between franchisors and franchisees is a complex

one. It does not preclude all competition; and the extent to which competition is allowed should be determined

by the contracts between the parties, not by courts or juries seeking after the fact to devise a code of conduct.

Question: On what theory did the franchisees sue Carvel?

Question: What must a plaintiff prove to win on this theory?

Answer: The plaintiff must prove that (1) it had a definite and reasonable expectation of obtaining an

Question: What does “economic advantage” mean?

Question: How does this tort differ from tortious interference with contract?

Answer: The primary difference is that in tortious interference with contract the plaintiff had—naturally—

Question: What are the elements of tortious interference with contract?

Answer: (1) There was a contract between the plaintiff and a third party, (2) the defendant knew of the

Question: In the Carvel case, what was the basis for the plaintiffs’ claim of economic advantage?

Answer: The plaintiffs were Carvel franchisees—owners of Carvel-branded stores that sold Carvel ice

Question: What did Carvel do to upset the plaintiffs?

Answer: Carvel started to sell its products through other retail outlets such as supermarkets because its

Question: Did the Court agree that this conduct amounted to tortious interference with prospective

advantage?

Answer: No, for two reasons:

(1) Carvel did not exert any wrongful economic pressure on a third party—in this case, purchasers of

(2) Carvel’s activities were not extreme and unfair, merely competitive. The relationship between

Privacy and Publicity

Intrusion

The unreasonable and offensive intrusion into someone’s private life.

Commercial Exploitation

Unfair commercial exploitation by using someone’s name, likeness, or voice without permission.

Negligence

A plaintiff must prove five elements to win a negligence case:

• Duty of Due Care. The defendant had a legal responsibility to the plaintiff.

• Breach. The defendant breached her duty of care, or failed to meet her legal obligations.

• Factual Cause. The defendant’s conduct actually caused the injury.

• Proximate Cause. It was foreseeable that conduct like the defendant’s might cause this type of harm.

• Damages. The plaintiff has actually been hurt, or has actually suffered a measureable loss.

Discussion: The McDonald’s Hot Co2ee Case

Stella Liebeck sued McDonald’s for burns she suffered after spilling a cup of its take-out coffee in her lap. The

coffee that burned Liebeck was 180 degrees, 15-20 degrees hotter than coffee typically served in restaurants. The

jury considered whether McDonald’s acted improperly in selling 180-degree (or hotter) coffee that was significantly

hotter than a consumer would expect from common experience. Stella Liebeck incurred third-degree burns, received

skin grafts, and spent seven days in the hospital. Testimony at trial showed that before the lawsuit, McDonalds had

received over 700 complaints about burns, some of them third-degree, suffered by customers who spilled coffee on

themselves. A McDonalds’ executive testified that McDonalds knew of the risk of burns caused by its

hotter-than-average coffee and knew that most customers didn’t realize the specific risk posed by coffee at those

temperatures, but nevertheless didn’t intend to warn customers of the risk. The suit was not about a mere failure to

warn that coffee is hot; it was about failure to warn of the danger created by serving materially hotter-than-normal

coffee to customers who knew they were buying something hot.8

Discussing this case enables students to explore the concept of duty of due care and the cost/benefit calculus

involved in any business decision.

Additional Landmark Case: Palsgraf v. Long Island Railroad9

Facts: Helen Palsgraf was waiting on a railroad platform. As a train began to leave the station, a man carrying a

package ran to catch it. He jumped aboard but looked unsteady, so a guard on the car reached out to help him as

another guard, on the platform, pushed from behind. The man dropped the package, which struck the tracks and

exploded—since it was packed with fireworks. The shock knocked over some heavy scales at the far end of the

platform, and one of them struck Palsgraf. She sued the railroad.

Issue: Was the railroad liable for Palsgraf’s injuries?

Excerpts from Judge Cardozo’s Decision: The conduct of the defendant’s guard 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. Negligence is

the absence of care, according to the circumstances.

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. 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

8 To learn more about the facts of this case (e.g. —Liebeck was not driving when she spilled the coffee), see

http://www.vanosteen.com/mcdonalds-coffee-lawsuit.htm

9 248 N.Y. 339; 162 N.E. 99 Court of Appeals of New York, (1928).

to itself the quality of a tort because it happened to be a wrong with reference to someone 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.

What the plaintiff must show is “a wrong” to herself and not merely a wrong to someone else. We are told that

one who drives at reckless speed through a crowded city street is guilty of a negligent act because the eye of

vigilance perceives the risk of damage. The risk reasonably to be perceived defines the duty to be obeyed.

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.

The law of causation, remote or proximate, is thus foreign to the case before us. 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. The

consequences to be followed must first be rooted in a wrong.

Duty of Due Care

Each of us has a duty to behave as a reasonable person would under the circumstances. Each of us is obligated to

avoid doing harm or putting others at unreasonable risk of harm.

Case: Hernandez v. Arizona Board of Regents10

Facts: The University of Arizona chapter of Delta Tau Delta fraternity gave a welcoming party for new members.

The fraternity’s officers knew that the majority of its members were under the legal drinking age, but permitted

everyone to consume alcohol. Minor John Rayner left the party, drove negligently, and caused a collision with an

auto driven by Ruben Hernandez. Rayner’s blood alcohol level was 0.15, exceeding the legal limit. The crash left

Hernandez blind, severely brain damaged, and quadriplegic.

Hernandez sued Rayner, who settled the case. Hernandez also sued the fraternity, its officers and national

organization, all fraternity members who contributed money to buy alcohol, the university, and others. The trial

court granted summary judgment for all defendants and the Court of Appeals affirmed. Hernandez appealed to the

Arizona Supreme Court.

Issue: Did the fraternity and the other defendants have a duty of due care to Hernandez?

Decision: The defendants did have a duty of due care to Hernandez. Reversed and remanded.

Reasoning: Historically, Arizona and most states have considered that consuming alcohol led to liability, but not

furnishing it. However, the common law also has had a longstanding rule that a defendant could be liable for

supplying some object to a person who is likely to endanger others. Giving a car to an intoxicated youth would be an

example of such behavior; the youth might easily use the object (the car) to injure other people.

There is little difference between giving a car to an intoxicated youth and giving alcohol to a young person with a

car. Both acts involve minors who, because of their age and inexperience, are likely to endanger third parties.

Moreover, furnishing alcohol to a minor violates several state statutes. As a result, most states have concluded that a

defendant who serves intoxicating drinks to a minor is legally responsible for resulting harm to third parties. Arizona

now joins that majority. The defendants did have a duty of due care to Hernandez and to the public in general.

Question: The two lower courts found for all defendants. Why?

Answer: Presumably, they found that the defendants had no duty to Hernandez or the general public. They

Question: What is the logic behind the lower courts’ position that a person or organization that pours

alcohol has no duty to the general public?

Answer: Historically, courts have held that it is a drunk driver who brought the harm on himself and others

• could not foresee the harm, or,

10 177 Ariz. 244, 866 P.2d 1330, 1994 Ariz. LEXIS 6 Arizona Supreme Court, 1994.

General Questions:

• Should an organizational host, such as a fraternity, be liable for an accident caused by an

intoxicated minor? Should this liability extend to all members?

• Should a social host be liable for an accident caused by an intoxicated guest?

• Teenaged children often host parties while their parents are away in which minors drink

alcohol. Should the host’s parents be liable for an accident caused by an intoxicated minor guest?

Special Duty: Landowners

In most states, a landowner’s duty of due care is lowest to trespassers; often higher to children (especially if

there is some man-made thing on the property that is likely to attract children); higher still to a licensee (anyone

on the land for her own purposes but with the owner’s permission); and highest of all to an invitee (someone on

the property as of right).

Special Duty: Professionals

A person at work has a heightened duty of care. While on the job, she must act as a reasonable person in her

profession.

Special Duty: Hiring and Retention

Companies can be liable for hiring or retaining violent employees. In some cases, companies have been found liable

for failing to check an applicant’s driving record, to contact personal references, or to search criminal records.

Courts have also found companies negligent for retaining dangerous workers. If an employee threatens a

coworker, the organization is not free to ignore the menacing conduct. If the employee acts on his threats, the

company may be liable.