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Chapter 6
Intentional Torts and Privacy
See Separate Lecture Outline System
INTRODUCTION
Your students may enjoy reading this, and the next, chapter—they should see a relationship between society’s interest
in compensating injured parties and its interest in taking steps against those who cause the injuries. It may be helpful in
analyzing a given situation to note in which circumstances one interest is dominant and those in which they are equal.
ADDITIONAL RESOURCES —
116 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
VIDEO SUPPLEMENTS
The following video supplements relate to topics discussed in this chapter—
PowerPoint Slides
To highlight some of this chapter’s key points, you might use the Lecture Review PowerPoint slides compiled for
Chapter 6.
Business Law Digital Video Library
The Business Law Digital Video Library at www.cengage.com/blaw/dvl offers a variety of videos for group or
individual review. Clips on topics covered in this chapter include the following.
• Legal Conflicts in Business
CHAPTER OUTLINE
I. The Basis of Tort Law
Tort law compensates those who suffer a loss or injury due to another’s wrongful act.
A. THE PURPOSE OF TORT LAW
The purpose of tort law is to provide an injured party with a remedy for the violation of legally recognized and
protected interests (personal safety, freedom of movement, property, and some intangibles, including privacy
and reputation).
B. DAMAGES AVAILABLE IN TORT ACTIONS
1. Compensatory Damages
Special damages cover quantifiable losses, such as medical expenses, lost wages and benefits, the loss of
2. Punitive Damages
These punish a wrongdoer and deter others from similar wrongdoing, and are awarded only when conduct
was particularly egregious or reprehensible. Punitive damages are subject to the limits of the due process
clause of the U.S. Constitution.
C. TORT REFORM
The tort law system has been criticized as encouraging trivial and unfounded lawsuits, excessive damage awards,
and costly changes in response (such as physicians’ ordering unnecessary tests). At the federal level, the Class
Action Fairness Act (CAFA) of 2005 shifted jurisdiction over cases involving large numbers of plaintiffs and large
amounts of potential awards to the federal courts. At the state level, about half of the states have limited
damages—or banned punitive damages—especially in medical malpractice cases.
ENHANCING YOUR LECTURE—
TORT DAMAGES IN OTHER NATIONS
In contrast to U.S. courts, courts in Europe generally limit damages to compensatory damages; punitive damages
are virtually unheard of in European countries. Even when plaintiffs do win compensatory damages, they generally
receive much less than would be awarded in a similar case brought in the United States. In part, this is because citizens
of European countries usually receive government-provided health care and relatively generous social security
benefits. Another reason, though is that European courts tend to view the duty of care and the concept of risk
differently than U.S. courts do. In the United States, if a swimmer falls off a high diving board and is injured, a court
may decide that the pool owner should be held liable, given that such a fall is a foreseeable risk. If punitive damages
are awarded, they could total millions of dollars. In a similar situation in Europe, a court might hold that the plaintiff,
not the pool owner, was responsible for the injury..
FOR CRITICAL ANALYSIS
What impact might the typically greater damages awards in the United States have on a
businessperson’s decision about whether to keep the firm’s operations in the United States or move them to
another country? Does the potential cost of paying damages encourage large corporations to outsource jobs
to other nations? Why or why not?
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II. Intentional Torts against Persons
A. ASSAULT AND BATTERY
1. Assault
An intentional, unexcused act that creates in another person a reasonable apprehension or fear of
2. Battery
A battery is an unexcused, harmful, or offensive physical contact intentionally performed. The contact can
3. Defenses to Assault and Battery
Defenses include self-defense and defense of others.
B. FALSE IMPRISONMENT
False imprisonment is the intentional confinement or restraint of another person without justification. The
interest protected is the freedom to move without restraint. Confinement can be by physical barriers, physical
restraint, or threats of physical force. Moral pressure or threats of future consequences are not sufficient. Most
states allow a merchant’s security personnel to detain a suspected shoplifter if there is reasonable cause for
suspicion and the confinement is reasonable.
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Infliction of emotional distress is an intentional act that amounts to extreme and outrageous conduct resulting in
severe emotional distress to another. The focus in an emotional distress suit is usually on the nature of the act—a
ADDITIONAL BACKGROUND—
Infliction of Emotional Distress
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Imagine that Dave invites Beth to a swimming party. At the party, Dave gives Beth a suit that Dave
knows will dissolve in water. When Beth goes swimming, the suit dissolves, leaving Beth naked in the
presence of the other guests. Beth suffers extreme embarrassment, shame, and humiliation. Is Dave liable
for intentional infliction of emotional distress? Under the circumstances, Dave is liable for Beth’s emotional distress.
Liability can be found where the conduct has been so outrageous in character, and so extreme in degree, as to go
beyond what has been described as “all possible bounds of decency, and to be regarded as atrocious, and utterly intol-
erable in a civilized community.”
Suppose that while arguing over the telephone with Michelle, an airline reservations operator, about a full
refund for a cancellation, Phil calls her a liar and says that he would punch her in the mouth if he were there.
Michelle suffers emotional distress over Phil’s statements, cannot sleep, and becomes ill. Is Phil liable for
intentional infliction of emotional distress? Phil’s statements may be insulting, but they are not so outrageous or ex–
treme as to result in liability. The Restatement (Second) of Torts, Section 46, Comment d, states, “[L]iability clearly
does not extend to mere insults, indignities, . . . or other trivialities. . . . [People] must necessarily be expected and
cated near the scene of the accident; (2) whether the shock resulted from a direct emotional impact upon the plaintiff
D. DEFAMATION
Defamation is wrongfully hurting another’s reputation by making a false statement of fact (not voicing an
opinion). Oral defamation is slander. Defamation in writing or in a form of communication that has the poten–
tially harmful qualities characteristic of writing (pictures, signs, statues, and films) is libel.
CASE SYNOPSIS—
Case 6.1: Orlando v. Cole
Attorney Joseph Orlando represented a high-school student who claimed that Thomas Atwater, her basketball
coach, sexually assaulted her. Without legal counsel, Atwater signed an affidavit admitting the assault. Orlando gave
copies of the affidavit to newspaper reporters. Meanwhile, Atwater retained attorney Garrick Cole, who told the
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reporters that Orlando’s actions were “deceitful” and “fraudulent” and the affidavit was “inaccurate.” Orlando filed a
suit in a Massachusetts state court against Cole, alleging slander. On Cole’s motion, the court dismissed the suit.
Orlando appealed.
A state intermediate appellate court reversed and remanded. “The comments at issue are susceptible of a
defamatory connotation because each of the terms used . . . imply misconduct.” Of course, to constitute defamation,
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Notes and Questions
Why, in legal terms, is there “no such thing as a false idea”? There is “no such thing as a false idea,” because,
1. The Publication Requirement
Defamation requires that the publication of the statement (that is, that it be communicated to someone
other than the defamed party).
2. Damages for Libel
ANSWERS TO QUESTIONS AT THE END OF CASE 6.1
1. Orlando sued Cole for slander. Why didn’t he sue for libel, given that the comments were reported in
various news publications? When the tort of defamation is committed orally, it is called slander; when the tort of
2. What did the court mean when it stated that “under the First Amendment there is no such thing as a false
idea”? The First Amendment guarantees, among other things, the freedom of speech. The free flow of ideas is
3. Damages for Slander
Because slanderous statements have a temporary quality, special damages must be proved. Proof of
4. Defenses to Defamation
These include the truth. Other defenses are—
ENHANCING YOUR LECTURE—
IS ONLINE DEFAMATION SLANDER OR LIBEL?
The distinction between slander and libel is important because, as noted elsewhere, a plaintiff must prove “special
122 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
damages” to establish the defendant’s liability for slander. How does this letter of tort law apply to online defamatory
statements? This novel question came before a California appellate court in 2003. At stake was an award of $775,000
in damages, which a trial jury had awarded to Varian Medical Systems, Inc., the plaintiff in the case. The jury awarded
the damages after deciding that the false and derogatory statements about the company made by two former
they had defamed Varian, their statements constituted was slander, not libel. Thus, Varian could not be awarded
damages because it had not proved “special damages”—a requirement in a case alleging slander.
THE BOTTOM LINE
One of the defendants’ arguments in this case was that statements posted on Internet bulletin boards are
“typically freewheeling and irreverent” and that no reasonable person would regard such statements as true. The
appellate court made it clear, however, that defamatory statements, even if made online, are not exempt from
“established legal and social norms” or “the civilizing influence of the law.”
a. Varian Medical Systems, Inc. v. Delfino, 113 Cal.App.4th 273, 6 Cal.Rptr.3d 325 (6th Dist. 2003).
ADDITIONAL BACKGROUND—
Thoughtless Comments and Slander
McClune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990), provides an example of how thoughtless comments
can become slander.
Robert McCune was a single, 27-year-old man, who grew up in Springfield, Nebraska (population: 800). He worked
in neighboring Gretna with his brother, selling lawn sprinkler systems and managing the installation crews. McCune’s
mother, Betty Holz, was a home health aide. One of Holz’s coworkers was Patricia Dieleman. Lois Keyes was one of
Dieleman’s patients. On July 8, Keyes’ daughter told Keyes and Rose Neitzel that a friend of McCune’s was dying of
AIDS. That evening, as Dieleman was tending to Keyes, Keyes told Dieleman that she did not want Holz to care for her.
When Dieleman asked why, Neitzel responded, “Didn’t you know her son, Bobbie, has AIDS?” McCune did not have
due to the rumors and that he had to resign or be fired. McCune resigned and left the Springfield area. He suffered
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a. Privileged Communications
A privilege (for example, statements made by judges during a trial), which may be qualified, or
conditional.
E. INVASION OF PRIVACY
To successfully sue for an invasion of privacy, a person must have a reasonable expectation of privacy, and the
invasion must be highly offensive. Acts that qualify as invasions of privacy are—
• Appropriating a person’s name or picture or other likeness for commercial purposes without permission.
• Intruding into an individual’s affairs or seclusion (invading someone’s home, illegally searching someone’s
belongings, eavesdropping by wiretap, unauthorized scanning of a bank account, compulsory blood testing,
window peeping).
F. APPROPRIATION
The use of one person’s name or likeness by another, without permission and for the benefit of the user, is
appropriation. This is not limited to the appropriation of name or likeness. An individual’s right to privacy includes
the right to the exclusive use of his or her identity.
1. Degree of Likeness
The use of a person’s name may be enough to impose liability.
2. Right of Publicity as a Property Right
A person’s financial interest in the commercial exploitation of his or her identity is protected.
G. FRAUDULENT MISREPRESENTATION
To constitute fraudulent misrepresentation, a statement of fact must be involved. Reliance on an opinion is not
justified unless the person making the statement has superior knowledge of the subject matter, and puffery, or
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Persons have a right not to be sued in the absence of a legally just and proper reason. Torts related to abusive
litigation include malicious prosecution (suing out of malice without probable cause) and abuse of process (using
a legal process in an improper manner or to accomplish a purpose for which it was no t designed). The latter does
not require proof of malice or a loss in a prior legal proceeding.
III. Business Torts
Business torts involving wrongful interference are generally divided into two categories: wrongful interference with a
contractual relationship and wrongful interference with a business relationship.
A. WRONGFUL INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP
Any lawful contract can be the basis for this action. The plaintiff must prove that the defendant actually induced
the breach of a contractual relationship, however, not merely that the defendant reaped the benefits of a broken
contract. The elements are—
B. WRONGFUL INTERFERENCE WITH A BUSINESS RELATIONSHIP
Individuals may not interfere unreasonably with another’s business to gain a share of the market. The distinction
between competition and predatory behavior often depends on whether a business is attempting to attract
customers in general or to solicit only those customers who have already shown an interest in the product or
service of a competitor.
C. DEFENSES TO WRONGFUL INTERFERENCE
There is no liability if the interference was permissible. Bona fide competitive behavior is a privileged
IV. Intentional Torts against Property
A wrong against property is a wrong against the individual who has legally recognized rights with regard to the
property. The law categorizes property as real property (land and things permanently attached thereto) and personal
property (things that are movable).
A. TRESPASS TO LAND
Trespass to land occurs when a person, without permission, enters onto another’s land, or causes anything or
anyone to enter onto the land, or remains on the land, or permits anything to remain on it. Harm to the land is
not required.
1. Trespass Criteria, Rights, and Duties
Trespassers include guests who are asked to leave. A trespasser is liable for property damage. A trespasser
2. Defenses against Trespass to Land
A complete defense to a charge of trespass exists if the trespass is warranted, as when one enters to help
another in danger. Another defense is that the so-called owner did not have rights to the property.
B. TRESPASS TO PERSONAL PROPERTY
When an individual unlawfully harms another’s personal property or otherwise interferes with the owner’s right
C. CONVERSION
When a person wrongfully possesses or uses the personal property of another as if it were theirs, conversion oc–
curs. Conversion is trespass to personal property more serious in terms of duration and use. Unlawfully taking
property is trespass; unlawfully retaining it is conversion. Believing one is entitled to the property is not a
defense. Thus, someone who buys stolen goods is guilty of conversion even if he or she did not know the goods
were stolen. The owner can seek their return or damages.
CASE SYNOPSIS—
Case 6.2: Trustees of University of District of Columbia v. Vossoughi
Jafar Vossoughi is an expert in applied mechanics and experimental biomechanics. While teaching at the University
of the District of Columbia (UDC), Vossoughi set up a laboratory to conduct research. When his employment contract
expired, he remained on campus and continued his research. Without his knowledge, however, UDC cleaned out the
lab and trashed its contents. Vossoughi filed a suit in a District of Columbia court against UDC, seeking damages for the
loss of his materials, data, instruments, and other items. He personally testified as to the “replacement cost.” A jury
found UDC liable for conversion and awarded Vossoughi $1.65 million. UDC appealed.
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Notes and Questions
Vossoughi was not a tenured professor, but he used the $100,000 salary of an average tenured professor to value
the time he would have to spend to recreate some of the lost materials. Was this approach acceptable? Yes. UDC
objected. Vossoughi earned much less than $100,000 when he created the materials. UDC argued that “there was no
evidence he could secure a tenured position.” But, said the court, “UDC’s demonstration that Dr. Vossoughi had earned
CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 127
less than a tenured professor did not eliminate the evidentiary basis for an award of damages for the lost * * *
materials; it merely allowed the jury to place a lower value on Dr. Vossoughi’s time and award him less than he
sought.” The court also noted that “there was some evidentiary support for Dr. Vossoughi’s claimed earning capacity:
both Dr. Conway and Dr. Saha lauded his accomplishments as a teacher and researcher, and Dr. Conway testified that
the University of Central Florida had considered hiring Dr. Vossoughi at a salary of $130,000.”
ANSWER TO “THE LEGAL ENVIRONMENT DIMENSION”
QUESTION IN CASE 6.2
Should plaintiffs be required to prove the amount of their damages with certainty and exactitude? Why or
why not? Generally, no. The court in the Trustees case explained that “if plaintiffs were obliged to prove the amount
ANSWER TO “THE ETHICAL DIMENSION” QUESTION IN CASE 6.2
Did Vossoughi have an ethical duty to reduce the amount of his damages by, for example, retrieving from
the trash as much of his property as he could? Discuss. It is unlikely that Vossoughi had any such ethical duty in
D. DISPARAGEMENT OF PROPERTY
Disparagement of property occurs when economically injurious falsehoods are made about another’s product or
property.
1. Slander of Quality
Publication of false information about another’s product, alleging it is not what its seller claims, is slander of
2. Slander of Title
When a publication denies or casts doubt on another’s legal ownership of property and results in financial
loss to the owner, slander of title may exist. This is usually done knowingly.
CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 129
V. Cyber Torts
Cyber torts are torts committed in cyberspace.
A. IDENTIFYING THE AUTHOR OF ONLINE DEFAMATION
Obtaining the identity of a person who posts a defamatory remark can be accomplished through a court order.
CASE SYNOPSIS—
Case 6.3: Fair Housing Council of San Fernando Valley
v. Roommate.com, LLC
Roommate.com, LLC, operates an online roommate matching Web site and e-mail newsletter. Users disclose
information about themselves and their roommate preferences based on age, gender, and other characteristics, and
on whether children will live in the household. The Fair Housing Councils of San Fernando Valley and San Diego,
California, filed a suit in a federal district court against Roommate, claiming that a violation of the Fair Housing Act
(FHA). The court held that the Communications Decency Act (CDA) barred this claim and dismissed it. The Councils
appealed.
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Notes and Questions
Members of Roommate’s service can add “Additional Comments” to their Web-generated profiles through an
open-ended essay prompt. Does the CDA exempt Roommate from liability for publishing the content its
members provide in the “Additional Comments” portion of their profiles? The court concluded that “Roommate’s
ANSWER TO “THE ETHICAL DIMENSION” QUESTION IN CASE 6.3
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Do Internet service providers (ISPs) have an ethical duty to advise their users if of the information that the
users provide for distribution through the ISPs might violate the law? Explain. Yes, because such advice could
ANSWER TO “THE E-COMMERCE DIMENSION” QUESTION IN CASE 6.3
Should the courts continue to regard the CDA’s grant of immunity to ISPs as “quite robust”? Why or why
not? One of Congress’s goals in enacting the CDA was to encourage “the unfettered and unregulated development of
B. LIABILITY OF INTERNET SERVICE PROVIDERS
Under the Communications Decency Act (CDA) of 1996, Internet service providers (ISPs) are not liable for the
defamatory remarks of those who use their services.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases involving limits to immunity under the Communications Decency Act (CDA) include the
following.
• Federal Trade Commission v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009):
Web site operator was
“responsible” for the creation of offensive content, specifically the development and conversion of confidential phone
records into publicly exposed information, as required to classify operator as an “information content provider”
precluded from CDA immunity on a claim under the Federal Trade Commission Act.
by CDA.