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2. Would you suppose Fuerschbach continued to work for Southwest?
One would presume she had the good sense to resign when she sued everyone in the place,
Add. Case: Nelson v. Carroll (Ct. App., MD, 1999)--Carroll went to a bar to demand that
Nelson repay him some money he owed him. Carroll, who had been drinking, hit Nelson in the
head with a gun and shot him, causing serious injury. Nelson sued for battery. Carroll defended
that the shooting was an accident. The lower court held for Carroll. Nelson appealed.
Decision: Reversed. This was a battery. Carroll intended to cause a harmful or offensive
Add. Case: Funeral Serv. by Gregory v. Bluefield Comm. Hosp. (W.Va., Sup. Ct.,
1991)--Gregory, a mortician, was sent a body from a hospital that was infected with AIDS. The
hospital did not tell Gregory that the cause of death was an infectious disease, which is normal
practice. Later he learned the truth and sued for battery. The hospital was held not responsible.
The contact with the body was not offensive at the time it occurred.
Decision: Gregory was offended by the touching, but only after the fact. At the time he touched
the body he was not offended, so even if the hospital intentionally hid the truth from him and
Add. Case: Caudel v. Betts (S.Ct., La., 1987)--Employees at a company Christmas party were
horsing around with some electrical equipment (auto condenser), shocking each other. The
owner of the business, Betts, joined in, chasing employee Caudel around and shocking him with
the condenser. It was all in fun, but Caudel did not like being shocked, so he locked himself in his
office to get away. He developed severe headaches, had to have surgery, and still suffered
numbness on one side of his head. He sued his employer for intentional tort of battery. Employer
claimed that the injury was exclusively covered by worker’s compensation, so he could not sue in
tort, and that it was not an intentional tort because it was innocent fun.
Decision: The court held that intentional torts are not prohibited from suit by worker’s
compensation. Even though Betts’ motive was not malicious and he had no intention to injure
Add. Case: White v. Univ. of Idaho (S.Ct., Id., 1990)--Music Prof. Neher was a guest at the
Whites’ house. Mrs. White was sitting down. “Unanticipated by Mrs. White, Prof. Neher walked
up behind her and touched her back with both of his hands in a movement later described as one
a pianist would make in striking and lifting the fingers from a keyboard. The resulting contact
generated unexpectedly harmful injuries . . . Nerve damage that required major surgery....
Neher explained that he has occasionally used this contact method in teaching his piano
students. White said Neher’s act took her by surprise and was non-consensual . . . that she would
not have consented to such contact and that she found it offensive.”
Decision: The Idaho Supreme Court held that the action was an intentional tort for which Neher,
Add. Discussion: Batteries include whatever juries find to be offensive contact. Recent cases
have included blowing cigar smoke in the face of an anti-smoking advocate (634 NE2d 697);
throwing a guest at a party into a swimming pool (606 NYS2d 444); and taking a CD-player
back from the hands of a customer who tried to take it without paying for repairs (512 NW2d
319).
Assault and Battery—These torts are often linked together, but may occur independently.
Issue Spotter: Dealing with Drunks
This happened in West v. East Tennessee Pioneer Oil (172 SW3d 545). A guy who was clearly
drunk came in for beer and gas. The store refused to sell him beer but let him buy gas. He drove
off, plowed into West, seriously injuring him. The Tennessee high court held it was negligent to
sell gasoline as the risk was foreseeable that a drunk could cause an accident. There was a duty
of care to persons on the roadway not to sell gasoline to clearly intoxicated patrons. The duty to
act with reasonable care includes not selling gas in such cases. So such stores must have clear
policies, although who is drunk can be hard to determine. In this case, other store patrons
recalled the guy as belligerent drunk. Signs should be posted—no alcoholic beverages or
gasoline sold to people who have been drinking. The clerk also should have called 911 to report
the guy being on the road—there would be no duty to try to stop the guy—that could lead to an
assault or false imprisonment charge—but being proactive may help reduce liability.
Defenses—One is permitted to interfere with another’s person under some circumstances.
Consent is when the injured party gave permission to interfere with his or her person, such as
injury in contact sports. Privilege may excuse a would-be tort, also (rare). Self-defense and
defense of others or of property allows us to protect persons and property with the force that is
reasonable under the circumstances. Defense of property rarely allows use of deadly force.
Add. Case: Muldovan v. McEachern (Sup. Ct., Ga., 1999)-- Two 17-year-old boys, Muldovan
and McEachern, were drinking and playing with a pistol. Despite warnings from others to stop,
they kept loading and unloading the gun, handing it back and forth, pointing it at each other, and
pulling the trigger. McEachern told Muldovan to pull the trigger; he did and killed McEachern.
McEachern’s parents sued Muldovan for negligence, intentional battery, and willful misconduct.
The trial court granted Muldovan summary judgment, holding that McEachern assumed the risk
of being killed; the fact of intoxication did not matter. The appeals court reversed, holding that
assumption of the risk is not a defense in case of willful misconduct. Muldovan appealed.
Decision: The Georgia high court reversed. “A voluntarily intoxicated person’s acts will be
evaluated by the same standard as a sober person’s acts... The affirmative defense of assumption
of the risk bars recovery when it is established that a plaintiff ‘without coercion or
Add. Case: Katko v. Briney (Sup.Ct., Iowa, 1971)--The Brineys were farmers. On their
property was an old house that was not inhabited. They kept things stored there, posted it with
no trespassing signs, and boarded it up. It was broken into many times and things were stolen.
The Brineys installed a shotgun designed to shoot a burglar in the legs. Katko broke in and was
shot in the right leg, which was damaged. His hospital bills and lost wages amounted to about
$4,000. He sued the Brineys for damages, including pain and suffering and was awarded
$20,000 actual damages and $10,000 punitive damages. The Brineys appealed.
Decision: Affirmed. One may use reasonable force to protect property, but that right is subject to
qualification that one may not use such means of force as will take human life or inflict great
False Imprisonment—Intentional holding of a person that restricts their freedom of movement;
physical contact or threats of violence not required.
CASE: Forgie-Buccioni v. Hannaford Bros. (1st Cir., 2005)—Buccioni bought merchandise in
a store. When he got to his car, he realized he picked up the wrong kind of one item, so he took it
back into the store, put it on the counter, and told a clerk he would go get the kind he wanted
(same price). He told the clerk he had what he needed and left the store, leaving the product he
originally bought on the counter. A manager went outside after him, brought him back in the
store and called the police. Buccioni was arrested, but the charges were dropped. He sued for
false imprisonment and the jury awarded him $100,000. The store appealed.
Decision: Affirmed. Elements are: defendant intended to restrain; defendant’s act did restrain;
and plaintiff was harmed by restraint. The jury could find that Buccioni was restrained. He did
Questions: 1. How should the manager have handled the situation?
He should have gotten all the facts as best they could be determined. He did not listen to
Buccioni’s explanation that the box of Drixoral he brought back into the store had been paid for;
2. Does $100,000 for an hour of Buccioni’s time seem reasonable?
It is within the range of reason. As the court noted, Buccioni’s legal fees were over $15,000, he
Add. Case: Russell v. Kinney Contractors (Ct. App., IL, 2003)—Kinney was advertising for
construction workers. It did not want to hire union workers. Russell and other union workers
went to apply for work. Kinney locked the gate at the construction site behind them and called
the police, claiming trespass. They sued for false imprisonment. The trial court held it was a
matter of labor law for the NLRB. Russell appealed.
Decision: There may be a labor law issue here, but there is also a common law false
Shoplifting: Most states have statutes that codify the traditional defense for merchants who
Add. Case: Caldwell v. K-Mart (Ct. App., S.C., 1985)--A store guard thought Caldwell put
merchandise in her purse. When she left the store, he approached her. She showed him the inside
of the purse, but there was no merchandise. He asked her to come back in the store. They walked
around for about 15 minutes while he told her that he saw her take things. Another employee
told Caldwell she could leave. She was distressed, sued for false imprisonment, and won $75,000
damages and $100,000 punitive damages; K-Mart appealed.
Decision: Affirmed. False imprisonment requires 1) defendant restrained plaintiff, 2) restraint
was intentional, and 3) restraint was unlawful. These conditions were met. Given her initial
Add. Case: Ferimo v. Fedco (Sup.Ct., Cal., 1994)--Ferimo was a clerk at a Fedco store. The
manager called her to a room and interrogated her with three security personnel about her
alleged theft of $5. They said witnesses who saw the theft were in the next room. They swore at
her and demanded a confession. They said if she denied it, they would call the police. She denied
the theft and asked to leave or to call her mother and was told no. She tried to leave, but a
security guard blocked the door and gestured her to stop. After an hour she was hysterical. They
told her there were no witnesses, they believed her innocence, and she could leave. She sued for
false imprisonment. Fedco claimed she could not sue because tort actions were prohibited by
workers’ compensation.
Decision: For Ferimo. While most torts against employers are prohibited by workers’
compensation, false imprisonment is outside the employment bargain. The tort of false
Add. Case: Faulkenberry v. Springs Mills (Sup. Ct., S.C., 1978) Background: Faulkenberry
worked at a textile plant. Other employees reported that she put cloth in her purse. Security
guards stopped her at the gate house. A supervisor walked her back to the mill and discussed the
matter with her for about 20 minutes. She refused to open her purse. She left and sued for false
imprisonment and won. Springs Mills appealed.
Decision: Reversed. The “tort of false imprisonment consists in depriving the plaintiff of his or
her liberty without lawful justification.” The employer had probable cause for detaining her. She
Add. Info: Shoplifters: States have statutes limiting liability of merchants if they have
reasonable grounds for detaining a suspected shoplifter. The statutes generally codify common
law standards. In Arkansas: “A merchant may detain, for a reasonable length of time, a person
he or she has reasonable cause to believe is shoplifting.” In all cases, such as detaining an
employee suspected of taking company property, the person doing the detaining should keep
their hands to themselves (do no searching of the person or the articles they are carrying), use
minimal force, and keep quiet, so as not to spread the news of the detention to others. If
detention is non-physical, brief, and quiet, they usually do not lead to successful suits. The party
doing the detaining should not try to “solve” the matter by trying to force a confession; if there
is to be prosecution of the suspect, call the police immediately. As the supreme court of
California noted: “Merchants who detain individuals whom they have probable cause to believe
are about to injure their property are privileged against a false imprisonment action.”
Infliction of Emotional Distress—Also called mental distress; it is outrageous or reckless
conduct that creates severe mental or emotional distress in another; no physical injury required in
most states. Suits involving nasty debt collectors are not uncommon.
CASE: Lawler v. Montblanc North America (9th Cir., 20913)—Lawler was employed full time
as manager of a Montblanc store. Medical conditions required that she only work 20 hours per
week. When the company president visited the store, he was critical of the way it was run. When
Lawler said she could only work part time, she was offered severance pay. She sued for
discrimination (irrelevant here) and emotional distress but the trial court held for Montblanc; she
appealed.
Decision: Affirmed. A claim of intentional infliction of emotional distress requires 1) extreme
and outrageous conduct with reckless disregard for emotional impact; 2) plaintiff suffers severe
Questions: 1. Why do you think the standard for emotional distress is so tough to meet?
Otherwise there would be endless claims. Rudeness that causes hurt feelings does not rise to the
2. Was the behavior of Lawlers’ boss ethical in how he treated her?
It appears not—or at least was insensitive. One can tell someone things are not being done right
Issue Spotter: Dealing with the Elderly and their Heirs
The Appellate Court of Connecticut dealt with a similar matter in Del Core v. Mohican Historic
Housing Assoc. (2004). The court held that the owner of the facility owed no duty to heirs for
failure to notify them of the death of their relative–especially since there was no notice that the
resident wished for anyone to be notified. Probably it makes sense to collect information from
clients about next of kin and such. Who do they want contacted in what event? Who has legal
authority to make medical decisions in the event of incapacity, and so forth. Such facilities are
aware of all this. The legal duty is probably not much different from the ethical obligation,
except that if a client has refused to provide names of persons to be contacted, perhaps they
should be questioned about that periodically and encouraged to provide a name.
Add. Case: White v. Monsanto (Sup. Ct., La., 1991)--A “church-going woman in her late
forties” was cursed at by her supervisor (who was cursing several employees at once for not
working). She immediately suffered medical problems, including what doctors thought at first
was a heart attack, linked to her shock of the foul language. The company covered her medical
expenses and paid her regular salary while she was out for a week. She continued to be bothered
by dreams about the incident. Jury awarded her $60,000 from employer Monsanto.
Decision: The Louisiana high court held that she could not recover for intentional infliction of
emotional distress, reversing the award. The verbal attack was not addressed specifically at her,
Add. Case: Dobran v. Franciscan Medical Center (Sup. Ct., Ohio, 2004)--Dobran had a mole
removed that was found to be a malignant melanoma. He then had lymph nodes removed that
could be studied to see if the cancer had spread beyond the mole. Tests were done at the lab in
Ohio, but the samples were then sent to a more advanced lab for further review. The samples
thawed before arrival, making them useless. Dobran sued all parties involved in handling the
samples for negligence, contending that the destruction of the samples created a fear of cancer
that caused an extreme emotional distress due to the uncertainty of the test results. The district
court dismissed the suit; the appeals court reversed, allowing the suit to proceed; the defendants
appealed.
Decision: Reversed. Dobran’s fear that the cancer would spread could not be the basis for a
claim of negligent infliction of emotional distress against healthcare professionals. His actual
Add. Disc.: Courts require defendants’ behavior to be outrageous; in some states it is called the
tort of outrage. In an Oregon case, the court threw out a suit for emotional distress by a
customer whose credit card was rejected for use due to a miscalculation of his payment record.
The Nebraska high court denied an emotional distress claim as a part of an action against an
insurance company that denied payment of death benefits in bad faith. It was reckless bad faith
breach of contract, but not so outrageous as to allow emotional distress claim. But in a
California appeals case, an award of $50,000 for emotional distress was upheld for a
homeowner who suffered severe basement damage and foundation problems in a new home. The
builder was liable for the construction problems and for the emotional distress suffered by the
owner due to the discomfort caused by the problem and the strain of arguing with the contractor
to get the problems repaired. That case is an outlier.
Add. Case: Russo v. White (Sup.Ct., Va., 1991)--Russo dated White one time, then refused to
date him again. For months he would call her frequently and hang up. She reported this to
police, he was convicted of a misdemeanor. He kept doing this for several more months; many
times a day. Phone company worked with police to catch him doing that; more charges were
filed by police. She sued for intentional infliction of emotional distress.
Decision: Court held that her nervousness, sleeplessness, stress, withdrawal, and inability to
concentrate at work were “not the type of extreme emotional distress that is so severe that no
Add. Case: Roling v. Daily (Sup. Ct., Iowa, 1999)--Roling suffered injuries when a car crossed
the center line and ran into his truck. Two occupants of the car were killed. Roling was
depressed by the accident and kept having flashbacks to seeing the mangled bodies. He saw a
psychologist for two years. He sued the estates of the deceased for causing the accident for
emotional distress. The jury awarded $151,186, but the judge overturned the verdict, holding he
did not show there was a relationship between his injuries and the emotional distress. Roling
appealed.
Decision: Reversed. In such a case, the plaintiff does not have to have an expert witness testify
as to the fact of his physical injuries; the record on that was clear. In emotional distress, expert
testimony at trial is required. Damages for negligent infliction of emotional distress are usually
Add. Disc.: Traditionally, only persons suffering an injury could claim for emotional distress.
More cases are allowing persons to recover for emotional distress when they witness someone
else suffer a terrible injury, but generally that is restricted to immediate family members. The
Oklahoma high court allowed a husband to recover for mental distress suffered when he saw his
wife hit by a car and dragged underneath it. The Sixth Circuit held that a worker might recover
for mental distress for having seen the worker next to him killed by a defective machine that
splattered brains, bone, and blood on plaintiff.
Invasion of Privacy—Intentional invasion of one’s right to solitude and to be free from
unwarranted public exposure. Can involve unauthorized use of a person’s name or photo for
advertising. Most common is false light invasion of privacy—written or oral publication of a
story containing serious misinformation.
CASE: James v. Bob Ross Buick (Ct. App., Ohio, 2006)—James had an excellent record as a
salesman at a Mercedes dealership but was fired. Soon after, the dealership sent letters to his
clients, signed with his name, encouraging them to shop for a new car. He sued for
misappropriation of his name, a form of invasion of privacy. Trial court held for the dealership.
James appealed.
Decision: Reversed and remanded. This is one category of invasion of privacy. Plus the forgery
Questions: 1. The appeals court held that James did have a claim for a kind of invasion of
privacy, the misappropriation of his name. What value would there be in a company using the
name of a sales representative?
Sales reps are paid on commission so that the successful ones who develop the most customers
earn the most (and the employers thereby profits). Well regarded sales reps (James worked there
2. What would the damages likely be in such a case? What would make them be higher or
smaller?
The compensatory damages should be the estimated value of the business to BRBI that comes
Add. Case: Pachowitz v. LeDoux (Ct. App., Wisc., 2003)--LeDoux was a volunteer EMT who
helped transport Pachowitz to the hospital when she may have suffered a drug overdose. LeDoux
told a mutual friend, Slocomb, about the matter, thinking she would want to help. Pachowitz
sued LeDoux for invasion of privacy. The jury awarded $3,000 plus attorney fees. LeDoux
appealed.
Decision: Affirmed. There was public disclosure of facts; the facts were a private matter; it was
Add. Case: Peoples Bank and Trust v. Globe Intl. (W.D., Ark., 1992)--96-year-old Nellie
Mitchell still worked at a newsstand in Mountain Home, Arkansas. She sued a tabloid publisher
to recover for unauthorized use of photograph of her that was used in a made-up article in the
Sun, “Pregnancy forces granny to quit work at age 101.” The story did not use her name and the
story was all fabricated. The Globe presumed Mitchell was dead when it used her photo.
Decision: Jury award of $1.5 million for false light invasion of privacy and for infliction of
emotional distress upheld. The false light in which she was placed by the publicity was 1) highly
Defenses—When people become public figures, their right to privacy is greatly reduced, so the
standards are different depending who the plaintiff is.
Add. Disc.: Behavior besides that directly involved in the tort influenced juries. For example, in
a case in San Diego, a woman was awarded $120,000 compensatory damages and $1 million
punitive damages for privacy violation. Employees at a department store had peepholes in the
ceiling above dressing rooms. The jurors were especially upset that the store’s manager called
the woman’s boss to try to get her to drop the suit.
Defamation—Intentional 1) false communication 2) to a third party, spoken (slander) or by
media (libel), that 3) injures a person’s reputation. Some statements about another person are so
harmful they are considered defamation per se, such as a claim that another person has
committed a serious crime.
Add. Case: Republic Tobacco v. North Atlantic Trading (7th Cir., 2004)--Republic and NA
compete in the cigarette paper market. NA sent customers letters critical of Republic, claiming it
violated patent and trademark laws in its displays and that it was in antitrust trouble. The patent
and trademark claims were untrue. NA was suing Republic for antitrust violations, which was
the source of that issue. Republic sued for defamation; won $3.36 million damages plus $4
million punitives. NA appealed.
Decision: Affirmed but modified. Per se defamation includes words that impute: commission of a
crime, a person has a loathsome disease, an inability to perform or want of integrity in the
Workplace Defamation—For businesses, defamation is most likely to come about when
managers make negative comments about current or former employees that injures their ability
to obtain employment.
