CHAPTER 6
ELEMENTS OF TORTS
Torts are one part of the common law that affect business. Tort law changes more than other parts
of the common law; increased tort liability over time as values and ideas about liability evolve.
This has caused much complaining by business groups about tort law, leading to lobbying for
statutes that would limit tort liability.
TORTS AND THE LEGAL SYSTEM—Torts are civil wrongs committed when one invades
the protected interests of another. Liability is imposed for conduct that unreasonably interferes
with the interests of another. The concept is elastic as social values change over time, so new tort
actions are not uncommon.
Business and Torts—Most tort actions faced by businesses are when it, via its agents,
employees, or products, inflicts injuries on other persons or businesses. Most torts suffered by
employees are covered by worker compensation laws instead of tort law. Torts are classified as
intentional, based on negligence, or strict liability. Some torts are peculiar to business and will be
covered in Chapter 7.
Role of Tort Law—Tort law is to provide compensation for wrongful injuries on the wrongdoer
and to attempt to return the plaintiff to the position he or she would have been in were it not for
the tort. Some torts are also crimes, but this is private or civil law, not public or criminal law.
NEGLIGENCE BASED TORTS—Concerns unintentional but careless conduct that breaches a
duty of care owed to a party who suffers an injury caused by the conduct. The conduct in
question created an unreasonable risk of harm. Elements: 1) wrongdoer owed a duty of care to
injured party; 2) the duty was breached by an act or omission by wrongdoer (negligence); 3)
causation between the negligent conduct and resulting harm; and 4) damages suffered by injured
party.
Add. Case: Cousin v. Enterprise Leasing Co. (Sup. Ct., Miss., 2007)–Rogers rented a car
from Enterprise rent-a-car. She gave the Enterprise employee her license when she rented the
car. Unknown to the employee was that the license had been suspended. The next day, Rogers
ran a stop sign and hit another car, injuring Cousin, who required surgery. Rogers was cited for
driving with a suspended license. Cousin sued Enterprise, claiming negligence per se for renting
a car to a person with a suspended license. The trial court dismissed the complaint; Cousin
appealed.
Decision: Affirmed. Mississippi law requires that rental companies only rent to persons who
have valid licenses. But it was not negligence per se, in violation of the statute, to rent to a
Add. Case: Fisel v. Wynns (Sup.Ct., Fla., 1996)–Wynns lived on 40 acres in rural Florida and
had cattle. One night, an unknown person opened a gate and cattle got out. Fisel was driving
home late at night and ran into a cow standing on the road. She sued Wynns for negligence for
the injuries she suffered; the lower courts rejected her claim. She appealed.
Decision: Affirmed. Owners are liable for animal escapes due to negligence. But where the
escape is due to the act of an unknown person, and the gate was in a position where Wynns could
International Perspective: No Litigation Jackpots in New Zealand
N.Z., a common law country, largely abandoned tort suit for personal injuries in favor of the
Accident Compensation Corporation which provided payments as a result of accidents. Much
like workers’ compensation, it provides for lost wages and other costs incurred. No litigation
results from negligent incidents.
Duty of Care—Negligence means that a person’s conduct violates the duty of care in a particular
situation. The conduct that would be expected of a reasonable person under the circumstances
determines the due care or ordinary care expected. How a person ought to behave depends on the
circumstances—the reasonable person may be a skilled engineer or knowledgeable tax advisor.
CASE: Squish La Fish v. Thomco Specialty Products (11th Cir., 1998)—Squish has a patent on
“Tuna Squeeze,” a plastic device to squeeze the oil or water from a can of tuna when opened. To
fill an order of 2 million units, it hired Thomco to provide an adhesive to hold the device on a
piece of cardboard that would be used to display the units at stores. Thomco recommended a
particular adhesive that failed to work, the distributor canceled the order. Squish sued Thomco
for negligent misrepresentation; district court held for Thomco; Squish appealed.
Decision: Reversed. Plaintiff met the elements: defendant negligently supplied false information;
plaintiff was justified in relying on the information; and economic injury resulted. Case must be
Questions: 1. The appeals court held that Thomco could be liable for negligent misrepresentation
to Squish La Fish. Did Thomco intend to mislead Squish about the adhesive used in the
packaging?
It is hard to imagine there was any incentive to mislead. This was a mistake, but it either falls on
Thomco or perhaps they could throw it back on 3M, if it provided incorrect information to
Thomco, a seller of its product. But most likely it was a mistake and, of course, the sales rep for
2. Would it seem a good defense for Thomco to say that Squish and ProPack should have tested
the adhesive before going into production?
That will be a defense; that a responsible producer would have tested the component parts before
presuming that the entire production could be done without testing. That defense is weaker in a
Add. Case: Bethlehem Steel v. Ernst & Whinney (Sup. Ct., Tenn., 1991)–Ernst, an
accounting firm, did an audited financial statement for Jackson, a company that Ernst knew was
dealing with Bethlehem. Jackson needed a good report to be buy steel on credit. The report
overstated Jackson’s financial status. It soon went bankrupt, leaving Bethlehem on the hook for
unpaid steel. Bethlehem sued Ernst. A jury awarded $400,000; the judge set aside the verdict;
Bethlehem appealed.
Decision: New trial ordered. This is a case of negligent misrepresentation. Ordinarily a
professional, such as an accountant, is only liable to their clients that rely on their work, but
Add. Case: Mastriano v. Blyer (Sup. Ct., Maine, 2001)–Dionne had been drinking at a bar.
The bartender refused to serve him any more. A patron called Blyer Taxi to give Dionne a ride
home. A friend walked Dionne to the cab and told the driver to take him home. Dionne told the
driver to take him to another bar, which he did. Dionne went into the bar. Later, the same driver
got a call from the second bar to pick up Dionne. Dionne told him to take him back to the first
bar, which he did. Later, Dionne died in a one car accident when he drove himself home drunk.
Dionne’s estate sued Blyer for negligence for not taking Dionne home. The trial court dismissed;
the estate appealed.
Decision: Affirmed. A common carrier, such as a taxi, owes its passengers a duty that requires
the exercise of the highest degree of care compatible with the practical operation of the service,
which includes leaving passengers at a reasonably safe location. Blyer did not breach a duty
Causation—In negligence there must be causation—a logical linkage—between the careless
conduct and the injury suffered.
Res Ipsa Loquitur—A doctrine that applies (the thing speaks for itself) when the plaintiff has a
very strong case that will require a good defense to defeat.
Add. Case: Miller v. Jacoby (Sup. Ct., Wash., 2001)–Miller was operated on for kidney
problems. The surgeon placed a drain in the wound to help healing. He intended that the drain
be removed several days later. Dr. Jacoby removed the drain a few days later. Several months
later, an examination showed that part of the drain had not been removed and surgery was
needed. Miller sued. The trial court held for defendants, relying on expert testimony that Jacoby
“met the standard of care of a reasonably prudent urologist.” The court of appeals affirmed.
Miller appealed.
Decision: Reversed. Expert testimony is required to establish if there was negligence inserting
the drain during surgery, as that is a complex matter not within the ordinary experience of a
layperson. Expert testimony is not required to establish that there was negligence in failing to
remove the drain completely. A breach of a duty of care may be proven by circumstantial
Add. Case: Rogers v. Norfolk Southern (Ct. App., S.C., 2000)–Rogers, a railroad track
inspector for Norfolk, was sent to inspect a hole reported near a sidetrack on property owned by
U.S. Silica. The hole was created by an underground pipeline blowout on Silica property, a fact
unknown to Norfolk or Rogers. As Rogers approached the hole, the ground collapsed, he fell and
suffered serious injuries. He sued Norfolk and Silica for negligence. The jury awarded $3
million; of which Norfolk was 30 percent responsible, Silica was 70 percent responsible. Norfolk
appealed.
Decision: Reversed. To prevail in a common-law negligence action in a suit such as this, the
plaintiff must show duty, breach of duty, foreseeability, and causation. Norfolk had no
knowledge, actual or constructive, that the underground pipe had caused the hole under the
Cause in Fact—Evidence links a person’s conduct with the result that would not have occurred
“but for” that conduct.
Proximate Cause—The standard in most states, requiring that the injury have been foreseeable
by a reasonable person under the circumstances and that the injury suffered be reasonably related
to the negligent act. The chain of events cannot be too far fetched.
CASE: Palsgraf v. Long Island RR (S.Ct., 1928)—While Helen Palsgraf was waiting on the
platform for her train, a man ran and jumped on a train that had started to move. Conductor
helped pull him on; man dropped package containing fireworks. They exploded when run over
by train. Shock wave caused equipment on platform to fall and injure Palsgraf who sued RR for
negligence. Jury found for her; upheld on appeal; appealed to NY high court.
Decision: Reversed. Actionable negligence involves an invasion of a legally protected interest. It
means there was an absence of care under the circumstances. The RR is not shown to have
Questions: 1. Why was there no negligence on the part of the railroad?
The guard was simply helping a man get on the train. If anything, he was doing his duty
2. Why is there no proximate cause in this situation?
The situation was too farfetched Justice Cardozo noted. No one had any reason to suspect that an
ordinary looking package would pose a danger. No one—the man or the guards—had any reason
Add. Case: Goldberg v. Florida Power & Light (Sup. Ct., Fla., 2005)—FP&L was working on
a power line knocked out in a storm. They turned off a traffic signal light but did nothing to
control traffic. Goldberg was in a fatal accident at the intersection. Jury found FP&L negligent
and awarded $37 million, reduced to $10 million by the judge. Appeals court held FP&L not
negligent. Goldberg appealed.
Decision: Court verdict reinstated. FP&L had a common law duty to warn of the traffic hazard
Add. Case: Dept. of Highway Safety v. Saleme (Ct. App., Fla., 2007)– Trooper Lozano had his
car on the side of a road, watching for speeding motorcyclists. Saleme was driving his cycle
down the road. Another cycle passed him going 100 mph. Lozano pulled out to chase the
speeding cycle. About 200 feet later, Saleme ran into the back of the Lozano’s car. He claimed he
was going 65 mph. Given the length of his skid mark, the police estimated Saleme was going
80-85 mph when he slammed on the brakes before he hit Lozano. He sued the highway patrol for
injuries. The jury found Salame 85% responsible; Lozano 15%. The highway patrol appealed.
Decision: Reversed and remanded. There is a rebuttable presumption that the negligence of the
rear driver in a rear-end collision was the sole proximate cause of the accident, which may be
rebutted when the driver produces evidence which shows that the real fact is not as presumed.
Add Case: Hamblin v. State (Ct. App., Ariz., 2006)–Salinas, age 15, was on probation for
assault and was awaiting the start of a deferred jail term. He had violated terms of his parole but
was allowed to remain on parole. During this time he killed Hamblin during an armed robbery.
Hamblin’s heirs sued the state of Arizona and law enforcement agencies for negligence for
failure to arrest Salinas for violation of his probation. They contended that the state’s willful
ignorance of Salina’s conduct allowed him to be free so that he could kill Hamblin. The trial
court dismissed the suit. Hamblin appealed.
Decision: Affirmed. To maintain a negligence action, a tort plaintiff must prove duty, breach of
duty, causation and damages. Causation is a two-part inquiry; both cause in fact, or “but for”
causation, and proximate cause must be present for legal liability to attach. Proximate cause is a
Substantial Factor—Some states, including California, use the substantial factor standard instead
of proximate cause. A legal cause of injury is a cause which is a substantial factor in bringing
about injury. The case that triggered the rule in California, Mitchell v. Gonzales, involved a
family taking a neighbor boy on a lake trip. The parents did not watch the boy while he was in
the lake. Not being a swimmer, he drowned. The Calif. high court noted that the parents did not
do anything to cause him to drown, so there was no proximate cause as the jury understood the
term, but they were negligent for not watching the boy, so their action was a substantial factor in
the injury, for which they could be held responsible.
Intervening Conduct—If the causal connection between an act and the resulting harm is broken
by another act or event (intervening conduct), that is a superseding cause that may relieve
liability. However, danger invited rescue, as the law wants to encourage rescue, so the negligent
party is liable to all injured in rescue efforts.
Add. Case: Belmont Homes v. Stewart (Sup. Ct., Miss., 2001)–As Stewart was driving she let
the right side of the car go off the pavement onto the gravel shoulder. The right front tire
dropped into a rut that was 9 inches deep and ran along next to the pavement. When Stewart
tried to get out of the rut she lost control, wrecked, and was injured. She sued Belmont which
made the rut by its transport of mobile homes along the road. The rut begins at the factory site
and ran down the road for miles. The highway department knew of the ruts, but issued the
company permits to travel on the highway anyway. The jury awarded Stewart $250,000. Belmont
appealed.
Decision: Affirmed. Belmont owed a duty to not cause damage to the highway and so was liable.
It had the right to use the road, but in a manner not to be a danger to the public. Belmont
Evolving Changes in the Law of Negligence—Courts change rules as there is learning from
cases over time. More courts are looking to the Restatement (Third) of Torts which does not
focus so much on ordinary duty of reasonable care. If there is physical danger; that duty exists.
There is also a move away from “substantial factor” in favor of “scope of liability” related to the
risks present in a specific situation. These changes will take years to evolve.
Issue Spotter: Effective Liability Releases
This case was the issue in Hyson v. White Water Mountain Resorts of Connecticut (Sup. Ct.,
Conn., 2003). The court held that a liability release clearly applied to accidental injuries suffered
by patrons, but that it did apply to claims that injuries were suffered due to negligence on the part
of the resort. The court held that a liability release must clearly state that it served to release the
resort from liability even if the claim of liability arose from an issue of negligence. Unless such
express language exists, the release does not cover such causes of action.
Defenses to a Negligence Action—A valid defense will prevent liability from being imposed in
what would otherwise be a tort. As with intentional torts, there are defenses of consent and
privilege, but also several others.
Assumption of Risk—When the injured party voluntarily assumed the risk of harm by engaging
in negligent or reckless conduct. The injured party knew or should have known of the danger,
such as the risk of injury when playing sports.
CASE: Geczi v. Lifetime Fitness (Ct. App., Ohio, 2012)—Geczi belonged to a workout club.
When using a treadmill one day, it went haywire causing her to suffer an injury. Apparently
employees knew the machine was bad, but it has not been shut down. She sued for negligence
and gross negligence, but as she had signed a liability waiver, the jury held for Lifetime. She
appealed.
Decision: Affirmed. Clear and unambiguous waivers, such as the one here, can be effective. It
Questions: 1. The court held that because of the liability waiver, the defendant was released from
liability even if the defendant had been grossly negligent. Should gross negligence be treated
differently than ordinary negligence?
Often gross negligence is treated differently than ordinary negligence. It requires willfulness,
which was not found to exist here. Had the jury ruled for Geczi, the appeals court may well have
2. Even if Lifetime had no obligation, would there be an ethical duty to put a sign on the
machine saying it was not working?
Yes—the cost of putting up a sign is trivial. Furthermore, it is good business practice to show
Add. Case: McCune v. Myrtle Beach Indoor Shooting Range (Ct. App., S.C., 2005)—
McCune was playing paintball. She rented equipment and signed a clear liability release form.
The mask came off her face; she was hit in an eye and blinded. She claimed the mask did not fit
properly. She sued for negligence. Trial court held for defendant; she appealed.
Decision: Affirmed. The risks were clearly covered in the release form, which was clear and
explicit. So the risks were known and accepted. There was no negligence on the part of the range
operators.
Add. Case: Caruso v. Mashantucket Pequot Gaming Enterprise (Mash. Pequot Tribal Ct.,
2010)–Caruso was gambling at the Foxwoods Casino owned by Mashantucket Pequot Gaming.
When he went to use the restroom, he noticed an attendant with a mop in his hand. Caruso
slipped and fell on an area that had just been mopped. He suffered injuries and sued the casino
for negligence for failing to place warning signs or around the just-mopped area. The casino
defended that Caruso was injured by his own negligence, in that he failed to be watchful of his
surroundings.
Decision: Judgment for casino. Caruso saw an employee holding a mop. He had to know that a
mopped tile floor could be slippery. That is common knowledge. So Caruso should have
Add. Case: Lilya v. Greater Gulf State Fair (Sup. Ct., Ala., 2003)–Lilya paid $5 to ride a
mechanical bull. He signed a form recognizing the risk and waiving responsibility for the
operator. He was thrown and suffered serious injuries. He sued for negligence. Trial court held
for the operator; Lilya appealed.
Decision: Affirmed. The danger was open and obvious. The statement signed by Lilya warned of
the dangers and he signed the warning notice, which was clear. He accepted the risks. The
Add. Case: Austin v. Titan Sports, dba World Wrestling Federation (Cir.Ct, Fla.,
1994)–Austin worked for WWF at a wrestling show at the Sundome in Tampa. He was
performing a stunt called a “rocker dropper” in which he was to be dropped to the mat by
another wrestler. “Austin’s head was driven into the mat, breaking his neck.” He told the other
wrestler he was hurt, but he continued to perform, furthering the damage and leaving Austin
quadriplegic. He charged WWF with negligence. WWF claimed Austin assumed the risk by
participating in the event.
Decision: The jury found WWF negligent and awarded Austin and his family members $26.73
Add. Case: Lee v. GNLV Corp. (Sup. Ct., Nev., 2001)–Sturms (who was found to have a blood
alcohol of 0.32%) was eating at a casino in Las Vegas. During the meal, he vomited and
slumped over in his chair. Security personnel came and checked his pulse, which was fading. The
paramedics were called; while they were on their way, security personnel began CPR, but did
not attempt mouth-to-mouth resuscitation. The paramedics took over, took Sturms to the hospital,
where he was declared dead. He died from food lodged in his airway. His wife sued the casino
for negligence for failure to take affirmative steps to try to save his life. The court dismissed the
suit. Plaintiff appealed.
Decision: Affirmed. Under the common law, strangers are generally under no duty to aid those
in peril. If there is a special relationship between parties, such as between a teacher and a
student, then there is an affirmative duty to aid. Restaurant employees had a duty to come to the
Add. Info: Many states provide defenses for actions that could otherwise result in liability for
negligence. In many states there is charitable immunity. The supreme court of Virginia held “we
conclude that under the doctrine of charitable immunity, a volunteer of a charity is immune from
liability to the charity’s beneficiaries for negligence while the volunteer was engaged in the
charity’s work.” Efforts to limit liability for negligence by contract do not always work. The
Vermont high court struck down the validity of a release form skiers at Killington Ski Area had to
sign that released defendants from all liability resulting from negligence. The court held such a
term is void as contrary to public policy. A “business owner has a duty of active care to make
sure that its premises are in safe and suitable condition for its customers.” A ski area has a duty
to keep its premises reasonably safe.
Comparative Negligence—Negligence contributed by plaintiff that contributed to plaintiff’s
injury. The rule was adopted because contributory negligence thought too harsh (all or nothing).
Most states have adopted comparative negligence, splitting the damages between plaintiff and
defendant, although in many states, if the plaintiff is more than 50 percent responsible, nothing is
recovered. This aspect of when liability kicks in is often determined by statute.
Add. Case: Wassell v. Adams (7th Cir., 1989)–Wassell, 21, was visiting her fiance and staying
in a motel owned by Adams in a bad part of town. She opened the door at 1 AM when she heard
a knock. She did not see anyone through the peephole but presumed it was her fiance. A stranger
assaulted her and ran off. She sued the motel for negligence. The jury found damages to be
$850,000, and split them 97 percent the responsibility of plaintiff, 3 percent the responsibility of
defendant ($25,500). Wassell appealed.
Decision: Affirmed as within discretion of jury to determine comparative negligence and
allocate the responsibility. [Illinois, like many states, now holds that if the plaintiff is 50 percent
INTENTIONAL TORTS AGAINST PERSONS—Intentional interference with personal rights
and with property; the law imposes the greatest responsibility for such actions.
Establishing Intent—Intent: 1) the person knew what he was doing; 2) he knew or should have
known the consequence of their act; and 3) he should have known that certain results were likely
to occur. Example: shoot a gun into a crowd; you know it may injure someone, even though you
had no intent to injure anyone, you only wanted to put on a show of power. Motive (show of
power) is distinct from intent to commit the act that produced the harm. The act is also
distinguished from the consequences. Intentional torts are based on willful misconduct—acts that
a reasonable person would know invade the protected interests of others. Even if the misconduct
was in fun (the intent was “good” as may happen with horsing around), there was still the intent
to commit an act that violated the rights of another.
Assault—Intentional conduct directed at a person that places them in fear of immediate bodily
harm. No physical contact needed; how would a reasonable person have reacted under the
circumstances.
Add. Case: Lightning v. Roadway Express (11th Cir., 1995)–Jesse Lightning worked at a
Roadway terminal for two years before he was fired. His performance was marginal; he was
often in trouble for wasting time and not following orders. He was yelled at by a manager: “We
hate you. You don’t belong here.” and received calls at home telling him to quit. One supervisor
spit on him. Another supervisor called him in his office and yelled at him; an employee
restrained the supervisor from hitting Lighting. After he was fired, he sued for assault. He won at
trial; the company appealed.
Decision: Affirmed. A witness testified that an employee restrained the supervisor from hitting
Lighting, which was evidence to back up the assault charge. Lightning “reasonably apprehended
Battery—Intentional offensive physical contact without consent. No physical harm need result;
many cases today involve sexual harassment.
CASE: Fuerschbach v. Southwest Airlines (10th Cir., 2006)—When Fureschbach finished her
probationary period as an employee at Southwest, the employees threw a surprise party for her
and, as usual, played a prank. Police officers pretended to arrest her at work. She broke into tears
and would not stop crying and was finally sent home despite everyone telling her it was a gag.
Her psychologist said she suffered from post-traumatic stress disorder. She sued everyone
involved. District court dismissed suit. She appealed.
Decision: Reversed as to battery by police officers. A jury could conclude that the officers’
Questions: 1. The appeals court held that Fuerschbach could sue the officers for assault and
battery. The officers clearly did not mean to harm her, as it was a joke. Why could they be liable?
Motive does not get one off the hook. There have been many torts come about from a joke gone