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Chapter 7

INTENTIONAL TORTS

A. Intent 3. Misuse of Legal Procedure

B. Harm to the Person D. Harm to Property

1. Battery 1. Real Property

2. Assault a. Trespass

3. False Imprisonment b. Nuisance

4. Infliction of Emotional Distress 2. Personal Property

C. Harm to Right of Dignity a. Trespass

1. Defamation b. Conversion

a. Elements of Defamation E. Harm to Economic Interests

b. Defenses to Defamation 1. Interference with Contractual Relations

2. Invasion of Privacy 2. Disparagement

Cases in This Chapter

Philip Morris USA v. Williams

Ferrell v. Mikula.

Frank B. Hall & Co., Inc. v. Buck

White v. Samsung Electronics America, Inc.

Chapter Outcomes

After reading and studying this chapter, the student should be able to:

Identify and describe the torts that protect against intentional harm to personal rights.

Explain the application of the various privileges to defamation suits and how they are affected by

whether the plaintiff is (a) a public figure, (b) a public official, or (c) a private person.

Describe and distinguish the four torts comprising invasion of privacy.

Identify and describe the torts that protect against harm to property.

Distinguish among interference with contractual relations, disparagement, and fraudulent

misrepresentation.

TEACHING NOTES

In general, a tort is committed when:

1. a duty owed by one person to another

2. is breached and

3. proximately causes

4. injury or damage to the owner of a legally protected interest.

The law of torts has three principle objectives: (1) to compensate persons who

sustain harm or loss from another’s tortious conduct, (2) to place the cost of

compensation on those parties who should bear it, and (3) to prevent future

harm and losses. Compensatory damages compensate the plainti& for his injury.

Punitive damages punish or make an example of the wrongdoer, in cases where

the defendant’s conduct was intentional and outrageous, showing malice or a

fraudulent or evil motive.

CASE 7-1

PHILIP MORRIS USA v. WILLIAMS

Supreme Court of the United States, 2007

549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940

http://scholar.google.com/scholar_case?case=3002949669360902078&q=549+U.S.+346&hl=en&as_sdt=2,34

Breyer, J.

This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent

[plaintiff at trial], Williams’ widow, represents his estate in this state lawsuit for negligence and

deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A

jury found that Williams’ death was caused by smoking; that Williams smoked in significant part

because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to

believe that this was so. The jury ultimately found that Philip Morris was negligent (as was

Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue

here, it awarded compensatory damages of about $821,000 (about $21,000 economic and

$800,000 noneconomic) along with $79.5 million in punitive damages.

The trial judge subsequently found the $79.5 million punitive damages award “excessive,”

Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim

that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and

(2) whether Oregon had in effect disregarded “the constitutional requirement that punitive

damages be reasonably related to the plaintiff’s harm.” [Citation.] We granted certiorari limited

to these two questions.

* * *

This Court has long made clear that “punitive damages may properly be imposed to further a

State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”

[Citations.] At the same time, we have emphasized the need to avoid an arbitrary determination

of an award’s amount. Unless a State insists upon proper standards that will cabin the jury’s

caprice,” [citation]; and, where the amounts are sufficiently large, it may impose one State’s (or

one jury’s) “policy choice,” say as to the conditions under which (or even whether) certain

products can be sold, upon “neighboring States” with different public policies, [citation].

For these and similar reasons, this Court has found that the Constitution imposes certain

limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as

“grossly excessive.” [Citation] (requiring judicial review of the size of punitive awards);

[citation] (review must be de novo); [citation] (excessiveness decision depends upon the

reprehensibility of the defendant’s conduct, whether the award bears a reasonable relationship to

the actual and potential harm caused by the defendant to the plaintiff, and the difference between

the award and sanctions “authorized or imposed in comparable cases”); [citation] (excessiveness

more likely where ratio exceeds single digits). Because we shall not decide whether the award

* * * [W]e can find no authority supporting the use of punitive damages awards for the

purpose of punishing a defendant for harming others. We have said that it may be appropriate to

consider the reasonableness of a punitive damages award in light of the potential harm the

defendant’s conduct could have caused. But we have made clear that the potential harm at issue

was harm potentially caused the plaintiff. [Citation.] (“We have been reluctant to identify

concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and

the punitive damages award”). * * *

* * * Evidence of actual harm to nonparties can help to show that the conduct that harmed

the plaintiff also posed a substantial risk of harm to the general public, and so was particularly

reprehensible—although counsel may argue in a particular case that conduct resulting in no harm

to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given

* * *

The instruction that Philip Morris said the trial court should have given distinguishes

between using harm to others as part of the “reasonable relationship” equation (which it would

allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell

the jury that “you may consider the extent of harm suffered by others in determining what [the]

reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to

Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged

misconduct on other persons, who may bring lawsuits of their own in which other juries can

* * *

As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied

the wrong constitutional standard when considering Philip Morris’ appeal. We remand this case

so that the Oregon Supreme Court can apply the standard we have set forth. Because the

application of this standard may lead to the need for a new trial, or a change in the level of the

Tort law is primarily common law. The Restatement of Torts provides an orderly

presentation of this law. From 1934 to 1939, the American Law Institute (ALI)

adopted and promulgated the .rst Restatement. Since then, the Restatement has

served as a vital force in shaping the law of torts. Between 1965 and 1978, the

institute adopted and promulgated a second edition of the Restatement of Torts,

which revises and supersedes the .rst Restatement. This text will refer to the

second Restatement simply as the Restatement.

In 1996, the ALI approved the development of a new Restatement, called

Restatement Third, Torts: Liability for Physical and Emotional Harm, which addresses

the general or basic elements of the tort action for liability for accidental personal

injury, property damage, and emotional harm but does not cover liability for

economic loss. This work will replace comparable provisions in the Restatement

Second, Torts. The .nal work will be published in two volumes. Volume 1 is now

available and covers liability for negligence causing physical harm, duty, strict

liability, factual cause, and scope of liability (traditionally called proximate cause).

Volume 2 will cover a8rmative duties, emotional harm, landowner liability, and

liability of actors who retain independent contractors. Volume 2 is expected to be

published in 2011.

Because this new Restatement applies to nonintentional torts, it will be covered

extensively in the next chapter and it will be cited as the “Third Restatement.” A

few of its provisions, however, do apply to intentional torts and will be included in

this chapter. Comment c to Section 5 of the Third Restatement provides that the

least one piece of legislation that falls into the broad category of tort reform, but

these States have enacted di&erent changes or di&erent combinations of changes

a&ecting speci.c aspects of tort law. Approaches to tort reform that have been

taken at the State level include the following:

1. Laws that address speci.c types of claims; for example, limits on medical

malpractice awards or on the liability of providers of alcohol.

2. Laws abolishing joint and several liability or limiting the application of this rule.

Where joint and several liability is abolished, each one of the several defendants

is liable only for his share of the plainti&’s damages.

A. INTENT

As used in tort law, intent means that the defendant desired to bring about the

actual consequences of his physical action or that he believes those

consequences are substantially certain. The basic elements of intent are: 1.) it is

a state of mind 2.) about consequences of an act (or omission of an act) and not

about the act itself 3.) and it extend not only to having in the mind a purpose or

desire to bring about given consequences, but also to having in mind a belief (or

knowledge) that given consequences are substantially certain to result from the

act.

NOTE: See Figure 7-1 in the textbook.

*** Chapter Outcome ***

Identify and describe the torts that protect against intentional harm to personal rights.

B. HARM TO THE PERSON

Battery

Consists of intentional inAiction of harmful or o&ensive bodily contact. Such

contact does not necessarily have to be with the person’s body; it may consist of

touching the individual’s clothing or some object that is being held.

Assault

Is essentially the intentional creation of a mental impression that an o&ensive or

harmful bodily contact is about to occur. The intended victim must be aware of

the imminent danger.

False Imprisonment

there is a reasonable, alternative exit available.

CASE 7-2

FERRELL v. MIKULA

Court of Appeals of Georgia, 2008, reconsideration denied, 2008

295 Ga.App. 326, 672 S.E.2d

http://scholar.google.com/scholar_case?case=12901711244406213270&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Barnes, C. J.

Racquel Ferrell and the parents of Kristie Ferrell sued Ruby Tuesday, Inc. and its manager

Christian Mikula for false imprisonment, intentional infliction of emotional distress, * * *. After

extensive discovery, the defendants moved for summary judgment on all counts. In a one-page

order stating only that no genuine issues as to any material fact existed, the trial court granted the

* * *

* * * [T]he evidence shows that on Friday night, August 6, 2006, 18-year-old Racquel Ferrell

and 13-year-old Kristie Ferrell went to Ruby Tuesday. After they ate and paid their bill, the girls

left the restaurant, got into their car, and drove out of the parking lot. As they began to enter the

highway, Racquel noticed a black truck following her very closely with its headlights on high.

She could not see well out of her rear-view mirror with the bright lights behind her, so she

changed lanes, but the truck changed lanes with her and stayed close behind. She switched lanes

again, and the truck did too. A marked police car by the side of the road pulled onto the highway

between the girls’ car and the following truck and pulled the car over. After asking Racquel if she

had any drugs or weapons, the officer pulled her out of the car, placed her in handcuffs, and put

her in the back seat of his patrol car. Another officer removed Kristie from the car, placed her in

handcuffs, and put her in the back of another patrol car.

All of the police officers gathered to talk to the driver of the truck that had been following the

Ferrells, who turned out to be a uniformed off-duty police officer working as a security guard for

Ruby Tuesday. The officer who arrested Racquel returned to the patrol car where she was being

held and told her if she had not paid her Ruby Tuesday bill she was going to jail. She protested,

and the officer conferred again with the other officers, then returned to the car and said, “It was a

question. The customers were a man and a woman in their late 20s to early 30s. Mikula left the

table to discuss the matter with Robert, after which server Aaron told Mikula that the patrons at

Table 24 had left without paying. Mikula looked at the table, confirmed they had not left any

* * *

Mikula knew the officer was going to follow the people in the car and would stop them, but

did not ask the officer if he had seen who got into the car. He did not give the officer a

description of the people at Table 24, and did not know the race, age, gender, or number of

people in the car being followed. He did not know if there were people in any of the other cars in

the parking lot. He did not ask any other people in the restaurant if they had seen the people at

Table 24 leave the building, which had two exits. He did not know how long the people had been

gone before Aaron told him they left, or whether another customer had picked up money from

Table 24. He could have tried to obtain more information to determine whether the people in the

car he pointed out were the people who had been sitting at Table 24, but did not do so.

* * *

In this case, the Ferrells were detained without a warrant, and thus have a claim for false

imprisonment * * *. [Citation.] “False imprisonment is the unlawful detention of the person of

another, for any length of time, whereby such person is deprived of his personal liberty.”

[Citation.] “The only essential elements of the action being the detention and its unlawfulness,

* * *

Arresting or procuring the arrest of a person without a warrant constitutes a tort, “unless he

can justify under some of the exceptions in which arrest and imprisonment without a warrant are

permitted by law, [citations].” Generally, one “who causes or directs the arrest of another by an

officer without a warrant may be held liable for false imprisonment, in the absence of

justification, and the burden of proving that such imprisonment lies within an exception rests

upon the person… causing the imprisonment.” [Citations.] * * *

Accordingly, as the Ferrells have established an unlawful detention, the next issue to consider

is whether Mikula “caused” the arrest. Whether a party is potentially liable for false

imprisonment by “directly or indirectly urg[ing] a law enforcement official to begin criminal

proceedings” or is not liable because he “merely relates facts to an official who then makes an

independent decision to arrest” is a factual question for the jury. [Citation.] The party need not

expressly request an arrest, but may be liable if his conduct and acts “procured and directed the

arrest.” [Citation.]

* * *

The Ferrells also contend that the trial court erred in granting summary judgment to the

defendants on their claim for intentional infliction of emotional distress. The elements of a cause

of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct;

(2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the

emotional distress; and (4) severe emotional distress. [Citation.] Further,

[l]iability for this tort has been found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case

is one in which the recitation of the facts to an average member of the community would

arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

[Citation.]

In this case, the action upon which the Ferrells base their emotional distress claim is being

stopped by the police, placed in handcuffs, and held in a patrol car for a short period of time

Infliction of Emotional Distress

One of the more recently recognized torts is that of intentional or reckless

inAiction of emotional distress. Recklessness is conduct that evidences a

conscious disregard of or an indi&erence to the consequences of the act

committed. Consists of outrageous conduct that falls well beyond the bounds of

decency and which causes the person to su&er severe mental and emotional

harm. Many courts allow recovery even if no physical injury occurs.

D. HARM TO RIGHT OF DIGNITY

Defamation

Consists of either an oral or written false communication which causes injury to a

person’s reputation.