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Chapter 8
TORTS
RESTATEMENT
Torts are civil breaches of conduct that permit recovery by individuals who are victims of the breaches. To
establish liability for a tort there are various elements of proof required. For some torts, the party must establish
a specific act and intent. For negligence, the party seeking recovery must establish that there was a duty
(statutory or imposed as a general standard of conduct such as professional competence), a causal relationship
between the breach of duty and the injury, and a foreseeability of the injury resulting from the breach of duty.
Intentional torts are those committed voluntarily and include false imprisonment, emotional distress, invasion of
privacy, defamation (slander and libel), disparagement, contract or business relationship interference, trespass
and computer torts.
Liability for negligence is based on the standard of the reasonable person, a standard that requires a certain
degree of care on the part of all citizens with respect to each other. The liability of the defendant is mitigated to
the extent negligence of the plaintiff is established through the defenses of contributory or comparative
negligence.
STUDENT LEARNING OUTCOMES
LO.1: Explain the difference between torts and crimes.
LO.2: Distinguish between an assault and a battery.
LO.3: Explain the three different torts of invasion of privacy.
LO.4: Explain the torts of defamation and defenses.
LO.5: Explain the elements of negligence and defenses.
LO.6: Explain the tort of strict liability and why very few defenses are available.
INSTRUCTOR’S INSIGHTS
Break the chapter down into four components – related Learning Outcomes are indicated in ( ):
1. What are the general characteristics of torts and principles of tort law?
Present the differences between crimes and torts (LO.1)
Discuss the basis for tort liability
2. What are the elements and requirements for intentional torts?
Distinguish between an assault and a battery (LO.2)
Discuss the following torts and provide the elements of proof required:
false imprisonment
intentional infliction of emotional distress
invasion of privacy (LO.3)
3. What is negligence?
List the elements of negligence (LO.5)
4. What is strict liability?
Define strict liability (LO.6)
CHAPTER OUTLINE
I. What are the General Characteristics and General Principles of Tort Law?
A. What is a tort?
1. A tort is a violation of a private duty
B. Tort and crime distinguished
1. A crime is a violation of public duty that imposes a sentence of a fine and/or jail time
2. Tort is a violation of private duty that gives a right of compensation – use O.J. Simpson example to
C. Types of torts
1. Intentional torts
2. Negligence
a. Careless actions
3. Strict liability
a. Imposed for activity so dangerous that there must be full accountability
II. What are the Elements and Requirements for Intentional Torts?
A. Assault
1. Intentional act
B. Battery
1. Intentional, wrongful touching of another
CASE BRIEF: Moore v. Beye
122 P.3d 1212 (Mont. 2005)
FACTS: Moore and Beye had an altercation after a public meeting regarding airport expansion. Beye
punched Moore on the left side of the jaw. Moore stumbled, but caught himself before falling.
He then exclaimed to the crowd, “You saw that. You are my witnesses. I’ve been assaulted. I
want that man arrested.” Ravalli County deputies took Beye into custody and the State charged
ISSUE: Were Moore’s injuries directly caused by Beye’s battery of Moore?
REASONING: Beye presented the testimony of several eyewitnesses and a medical expert that Moore
C. False imprisonment
1. Intentional detention of a person without consent
3. Defense is the shopkeeper’s privilege
a. Reasonable basis to detain
b. Reasonable detention
CASE BRIEF: Holguin v. Sally's Beauty Supply, Inc.
264 P.3d 732 (N. Mex. App. 2011)
FACTS: Patricia Holguin went to Sally’s Beauty Supply Store carrying her “eco-friendly canvas shopping
tote,” a large bag that is conspicuous when used. Upon entering the store, there were no posted
signs stating that shopping totes were not allowed. She picked up a can of mousse that was not
exactly what she wanted and started to carry it in her tote toward the front counter to ask the
ISSUE: Did Holguin “willfully conceal” a can of mouse by simply placing the object in an “eco-friendly
canvas shopping tote” to carry to the front of the store to ask a question?
REASONING: The court of appeals reversed the district court’s decision. In general, merchants and their
employees have a conditional privilege to detain a person free from civil liability based on
probable cause, or reasonable grounds to believe that the individual “willfully concealed”
merchandise without paying for it, provided the detention is for a reasonable time and
conducted in a reasonable manner. “Willfully concealed,” however, requires more than merely
putting merchandise out of sight. In self-service stores customers have implied permission to
pick up, handle, move, try on, replace, and carry about merchandise within the store. There
D. Intentional infliction of emotion distress
1. Conduct beyond the bounds of decency
E. Invasion of privacy
1. Intrusion into private affairs (microphone in an office or home)
CASE BRIEF: Ignat v. Yum! Brands, Inc.
154 Cal. Rptr. 3d 275 (Cal. App. 2013)
FACTS: Melissa Ignat suffered from a bipolar disorder for which she was being treated with
medications. Side effects of medication adjustments occasionally caused her to miss work. She
alleged that after returning from one such absence her supervisor, Mary Shipma, informed her
ISSUE: Can the right of privacy be violated only by a writing, not by word of mouth?
REASONING: Times have changed since 1890. Private facts can be just as widely disclosed through oral
media as through written ones. Disclosure in writing is not required to maintain a cause of
action for public disclosure of private facts.
CASE BRIEF: Orthopedic Systems, Inc. v. Schlein
135 Cal. Rptr. 3d 200 (Cal. App. 2011)
FACTS: OSI and Dr. Schlein entered into a contract were OSI would manufacture and sell an
unpatented product designed by Schlein. OSI agreed to pay Schlein royalties. OSI stopped
ISSUE: Did state law limit damages to $750, precluding Dr. Schlein from recouping profits
made from the misappropriation of his name?
REASONING: The court held that Schlein was entitled to the $1.2 million in profits as opposed to the statutory
amount of $750. The court held that if a company makes money by using a person’s name, it
does not make sense to limit the individual to statutory damages when real damages exist.
Interpreting the statute to limit damages to $750 when profits existed would not be in the spirit
of the statute.
F. Defamation
1. Slander – oral or spoken
2. Libel – written (some states include a broadcast)
3. Statement about a person’s honesty, reputation or integrity that is untrue that is heard and
4. Defenses
a. Truth
b. Privilege such as Congressional debate
c. Qualified media privilege for coverage of celebrities/public figures – must prove malice
G. Product disparagement
1. Slander of title or trade libel
2. Product disparagement
H. Wrongful interference with contracts (tortious interference)
1. Third party induces breach of contract
I. Trespass
1. Unpermitted entry to land
III. What is Negligence?
A. Elements of negligence
1. Duty of reasonable care: the reasonable person
Because negligence is such an important area, make sure you work through a hypothetical case
Pat, a college student, is driving home from class and is having problems with the tape
deck in the automobile. Suddenly, the cassette in the unit starts spitting out tape all over
Ask your class to answer the following questions:
Did Pat fail to exercise the degree of care that a reasonable person would have exercised
under the circumstances? Yes. If so, what would a reasonable person have done? A
Pat? Yes.
Use Lowe and Cost as example.
2. Variable character of the standard
a. Does not tell you in advance what should be done
3. Degree of care/duty of care
a. Defined as what an ordinary prudent person would exercise under the circumstances
4. Duty
a. Imposed by statute
5. Causation
a. “But for” test
CASE BRIEF: Palsgraf v. Long Island R.R. Co.
162 N.E. 99 (N.Y. 1928)
FACTS: Helen Palsgraf was standing on the platform at the railroad station for the Long Island Railway
as she waited for her train to Rockaway Beach. Two men at the other end of the platform where
Mrs. Palsgraf was standing ran to catch another train that was already moving. One man, with
the help of a railroad employee who was on the train, made it safely onto the moving train, but
the second man, who was carrying a package, fell and dropped the package. The package, full
of fireworks, exploded, and the resulting vibrations on the platform caused the scales standing
near Mrs. Palsgraf to fall and strike and injure her. Mrs. Palsgraf sued the railroad for
negligence.
ISSUE: Did the Railroad employee cause Mrs. Palsgraf’s injury?
REASONING: The railroad was held not liable for Mrs. Palsgraf’s injuries. While the railroad could foresee
injury to those the employee helped onto the train and even those passengers in the same car,
6. Damages
a. Medical bills
b. Lost wages
B. Defenses to negligence
1. Contributory negligence – defense
2. Comparative negligence: assign percentage of fault, then applied to reduce recovery
3. Assumption of risk
CASE BRIEF: Hardesty v. American Seating Co.
194 F. Supp. 2d 447 (D. Md. 2002)
FACTS: Lawrence Hardesty is an over-the-road tractor-trailer truck driver who picked up a load of
stadium seating equipment for the NFL stadium under construction in Baltimore. The equipment
was packaged in large corrugated cardboard boxes weighing several hundred pounds. The
ISSUE: Was Hardesty contributorily negligent?
REASONING: Judgment for American Seating Co., as the claim is barred by Hardesty’s contributory
negligence. His decision to ignore the loading process by remaining in his truck, oblivious to
the manner and means of the loading of the trailer, coupled with his own failure to examine the
C. Liability for negligence
1. Age (minor) is not always a defense
DISCUSSION POINTS: Sports & Entertainment Law
Liability for Injuries Under the Sports Exception Doctrine
1. Proof of reckless or international conduct is much more difficult to establish than proving a negligence case.
A court may consider four factors in determining the extent of the duty owed by the defendants under the
heightened reckless or intentional conduct standard of care: (1) the normal expectations of participants in
3. In Mallin v. Paesani, 892 A.2d 1043 (Conn. Super 2005), the court determined that golf was not a contact
team sport where the sports exception applied. Golf is neither a team sport in the true sense nor a contact
sport. Negligence law applied.
a. Defendant sets in motion series of events
4. Bystander recovery
a. Some recovery allowed
DISCUSSION POINTS: Thinking Things Through
Torts and Public Policy
Some additional facts on Stella Liebeck’s injuries may be considered. Her grandson was driving the car and he
parked his car so Liebeck could add cream and sugar. She placed the cup between her knees and pulled the lid
toward her to remove it when the cup spilled the coffee into her lap. Note that today McDonald’s employees add
the cream and sugar to reduce the risk of harm.
In the discovery process it was revealed that more than 700 complaints about the temperature of McDonald’s
coffee had been registered with the company some of which resulted in injuries. McDonald’s chose not to do
anything about the problem.
IV. What is Strict Liability?
A. Liability imposed for serious conduct
B. Very few if any defenses to these acts
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Right-to-publicity tort. Tiger sued the shipyard under Right-to-Publicity and breach of contract theories. (The
courts have struggled with the First Amendment right to express “facts” such as a right of the builder to…).
The courts have struggled with the issue of whether a Right-to-Publicity claim is nevertheless prohibited by
2. Defamation. Although the word “pimp” may be reasonably capable of a defamatory meaning when read in
isolation, we agree with the district court’s assessment that “the term loses its meaning when considered in
the context of this case where it appeared among other photos using loose, figurative slang language
3. Assumption of the risk not applicable where reckless conduct is involved. It is true that collisions between
snowboarders are one of the risks inherent in the sport of snowboarding, and if this case were brought on a
negligence theory related to an ordinary collision the defense would be successful. However, the plaintiff’s
4. Invasion of privacy. Judgment against both Cynthia and her family. The essential elements of the “public
disclosure of private facts” theory are public disclosure of private facts. A matter that is already public or has
5. Right of publicity. Bosley pursued the injunction under the right of publicity tort theory. Judgment for Bosley.
The First Amendment does not immunize defendants from damages for infringement of the right of publicity.
No significant editorial comment or artistic expression involving First Amendment protections applies in this
Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio)]
6. Negligence: Assumption of Risk. The State Supreme Court declined to adopt the Baseball Rule stating:
Under our system of limited government, the legislative branch is entrusted with decisions of
public policy. Judges and Justices are servants of the law, not the other way around. Judges are
Charles Fried, Balls and Strikes, 61 Emory L.J. 641, 642 (2012), quoting the Confirmation Hearing
on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Should the
7. Trespass. Damage to property by entry with the emissions; this is a trespass. [Maryland Heights Leasing,
Inc. v. Mallinckrodt, Inc., 706 S.W. 2d 218 (Mo. App.)]
8. Negligence; duty. The court held that the spontaneous explosion of the abandoned van’s gas tank was not
reasonably foreseeable and the city owed no duty to protect the boy who was playing nearby. The city was
9. Qualified privilege; defamation. The circumstances of the investigation, the relevance of the matter to the
employer’s business, and the fact that the statement was privately told to a superior led to the conclusion
10. Substantial factor test of proximate causation. No. The court applied the substantial cause test. Each
defendant had been a substantial cause of the plaintiff’s harm. Accordingly, neither defendant could defend
11. Primary assumption of the risk; comparative negligence. The appeals court decided that the doctrine of
primary assumption of the risk did not apply to the facts of this case. Such a doctrine is a complete defense.
Carl was not engaged in the sport of boating when he was injured. He may well have been comparatively
12. Negligence; duty. The driver who collided with the motorist owed no duty of care to the yet unconceived child
who later was delivered prematurely due to pressure from the motorist’s lumbo-peritoneal shunt. There was
no duty to the infant. [Hegyes v. Unjian Enterprises, Inc., 286 Cal. Rptr. 85 (Cal. App.)]
13. Comparative negligence statutes; assumption of risk. Kendra was not negligent in taking part in the game.
There was nothing in the fact of participation in the game that would have alerted a reasonable person to the
fact that such an injury was foreseeable. By taking part in the game, she voluntarily assumed risks of normal
For an advanced class, it may be noted that there is confusion in the law as to the relationship of contributory
negligence to assumption of risk. This typically results from failing to distinguish between whether the plaintiff
was negligent in acting as the plaintiff acted or whether the defendant was at fault. Justice Frankfurter of the
14. Duty; causation. The court of appeals reversed the directed verdict holding that a ship owner, however, may
have a higher duty of care than a land owner, depending on the danger. The case was remanded for trial
15. Requirement of duty for tort liability. The court held that there was no liability because there was no duty to
communicate any warning. The court reached this result on the grounds that psychiatry is not such a precise
A dissenting opinion points out that the majority of the court first decided that it desired that there be no
liability and then worked backward to justify that result by saying that there was no duty. It can be pointed out
The Florida statutes were amended in 1988 to protect the psychiatrist who concludes that a threat made by
his patient will be carried out. The statutes now provide that “the psychiatrist may disclose patient
LAWFLIX
Class Action (1991) (R)
Movie that depicts the magnitude of damages and recovery when multiple injuries occur. Provides insights on
Notting Hill (1999) (PG-13)
A story of famous star gets guy, dumps guy, gets guy back, dumps guy again, and then guy dumps famous star,
management system for classroom use.
