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TORTS: PRIVATE WRONGS
GENERAL COMMENTS
Some conduct may cause injury to another person even though no crime is involved. For example,
negligent (careless) operation of an automobile is often the cause of serious injury. But such negligent
conduct does not threaten society in general, and therefore is not considered criminal in nature.
Nonetheless, the injured person is entitled to seek monetary compensation through legal action. The law
of torts provides monetary damages for victims of wrongful and harmful or offensive conduct, whether
intentional or negligent. It is a basic principle in law that for every wrong there is some remedy, and torts
are private wrongs.
In the popular view, “law” is usually linked with “crime” and the pursuit and punishment of criminals.
Fiction and fact-based books, cartoons, motion pictures, and TV series that feature some aspect of crime
contribute to the incorrect perception that criminals and criminal law dominates life and death in America.
In reality, torts and contracts, with their related legal principles and practices, directly and indirectly affect
many more people — and more often — economically, socially, and emotionally. To dramatize this
reality, we have again drawn comparisons to society at the beginning of the 20th century. We emphasize
the great differences in life and in tort law brought about by the shift from an industrial revolution to
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CHAPTER SUGGESTIONS
1. Encourage students to read newspapers and news magazines in a deliberate search for articles that
2. Have a student research and report on cases in which courts order criminals to make restitution to
the victims of their crimes, and thus, in a sense, acknowledge the private tort aspect of the crime. In
the alternative, invite a local judge or attorney to discuss victims’ rights in criminal cases. Are there
current or recent examples in your state in which sentencing advantages exist for criminal
perpetrators who compensate their victims? An Internet search under “victim’s rights” offers much
material for interested students.
3. Stage a class debate between two or more students on the propriety of punitive damages. Include
the idea that such damages should be routinely awarded when appropriate, but that part of the
award should be paid to the government — a situation that exists in several states. Let the class vote
(2007).The case, involving a $79.5 million punitive-damages award against Philip Morris was
decided while this book was in production. We were able to include a brief reference to the case in
the text but not a full analysis for production reasons. The essence of the case is that the law will
4. Discuss the facts of the 1994 McDonald’s coffee case, Liebeck v. McDonald’s, with your students.
What are their reactions? How did the students hear about the case? See a continuing series of
articles in the Wall Street Journal: (1) Thursday, September 1, 1994, A1 (discussing the $2.9
million verdict); (2) Thursday, September 15, 1994, A4 (judge lowered award to $640,000); (3)
Friday, December 2, 1994, B6 (announcement of out-of-court private settlement of case, in lieu of
appeal of trial court reduction); and last but not least, (4) Thursday, January 19, 1995, A18 (an
article by Judge Alex Kozinski blasting punitive damages as a threat to democracy). Do these
Torts: Private Wrongs 3
5. Fiction writers often complain their task is more difficult than news writer’s, because they need a
plausible plot. The inference is that the truth is often not plausible and quite unbelievable. The topic
of torts provides the teacher the ability to introduce and discuss the strange and bizarre things that
people often do. The toy, Yoda, is one of these. Hooter waitress Jodee Berry sued her employer
6. Sellers of goods and providers of recreational activities all attempt to provide warnings to create
clear assumption of risk and modify any contractual duties. Have the class search for some of the
more interesting and perhaps silly warnings. Here is one example: “Never ever iron clothes while
they are being worn! (This was a label on a Rowenta iron, and was the winner of the “Wacky
Warning Label Contest” sponsored by the Michigan Lawsuit Abuse Watch.)
7. Use photographs to teach some of the concepts in the chapter. I use a photo of a hole in a living
room ceiling to discuss the applicability of res ipsa loquitur during a roof replacement. I have a few
8. An Associated Press story on March 8, 2003 discussed a “short dumpy man” who has been faking
9. The long complex and socially compelling McLibel suits in England is the subject of a
documentary film called “McLibel.” This film can lead to a discussion of fast food and health. The
movie Supersize Me could also be used. The idea of product liaibity lawsuits against fast food
companies will provide a lively discussion as everyone will have an opinion.
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10. I have not used the book “A Civil Action” by Jonathan Harr as a vehicle for a discussion of torts in
class but I know that others have. It is an exceptional book and would be an exciting way to
approach the material blending theory, practical reality, professional ethics and you can show the
Movie at the end of the discussion or any day you or the class need a break.
FOR CRITICAL ANALYSIS
Randi W. v. Muroc Unified School District
1. Students may attempt to distinguish between the dangers posed by persons guilty of sexual offenses
and those guilty of other acts, such as assault and battery, and thus require employers to reveal the
2. Courts can compel former employers to tell what they know, if they tell anything at all, or not. As a
practical matter, we understand that many employers simply decline to reveal much more than the
3. Is a prospective employer liable for failing to ask for references from every candidate’s former
employer, if they would have learned information such as existed in the Randi W. case? Why not?
If so, then who is going to hire anybody in Gadams’ position? By excluding undesirable people
from occupations, is society forcing them into a life of crime, or perhaps general assistance?
Are potential employers the only people interested in learning about employment records? All
victims, whether neighbors or co-employees, want to be safe. Thus, should a database be
maintained on the Internet with information about everyone who has been convicted, or arrested, or
merely accused? Should the right to privacy forever be forfeited by one wrongful act? All of these
1. The tort theory was negligence. The plaintiff established the duty (standard of care owed) by the
doctrine of negligence per se using a Louisiana statute that defined the duty owed by a baseball
park to the public.
Torts: Private Wrongs 5
2. Assumption of the risk-The university argues they met the requirements of the state statute and that
the plaintiff as an experienced baseball player was aware of the risk of foul balls at a ball park. The
plaintiff countered by arguing she was yet to enter the ball field, had not bought a ticket and was
injured in an area in which she could not see the field of play. She essentially argued it was
premature for her to expect the risk of injury she suffered. The court agreed with the plaintiff and the
university was unsuccessful in convincing either the jury or the appellate court in the merit of this
defense.
3 The court provides a breakdown of the damages awarded by the jury in this case. Classify each
damage award as either general or special damages. Explain how you made your characterizations.
Past and present pain,
suffering, physical and mental
$75,000 General damages Testimony of plaintiff & expert witnesses
ANSWERS TO QUESTIONS AND PROBLEMS
1. Yes. When injury results from use of explosives in populated areas, the actor (tortfeasor) liability is
strict, or sometimes called absolute.
2. a. Society generally imposes no moral fault for negligence that causes automobile accidents,
unless alcohol or drugs are a factor. A person who is exhausted from lack of sleep can be just as
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lethal on the highway as a person legally under the influence of alcohol, yet society views the
drivers differently.
b. The purpose of this question is to cause the student to begin to understand the role of liability
insurance. Society does impose moral fault upon uninsured motorists, even though their
economic plight is the primary reason why the situation exists. The fault appears to be with
being uninsured and still driving. This question could be used as a lead in to a discussion of no-
fault insurance where a driver’s injuries are paid by the drivers insurance rather than the
wrongdoers. Does the change the answer to the question of morality?
3. Walton v. Dekker for conversion of the hat. The fact that the hat was taken by mistake is irrelevant.
Dekker v. Walton for defamation arising from yelling “stop thief.” Dekker was not a thief
because the hat was taken by mistake and without criminal intent. However, if nobody heard the
exclamation, the cause of action would fail for lack of publication.
Black Oak v. Walton for conversion arising from leaving the premises without paying for his
meal, a fact that may be inferred from the problem. Many communities have special criminal
ordinances protecting innkeepers, and restaurants as well for customers who neglect to pay for their
meals.
Torts: Private Wrongs 7
Sinzant v. Hightower for negligence in ramming Sinzant’s car, causing property damage.
Contributory or comparative negligence may be significant in both actions involving Hightower,
depending upon the state involved.
The value of this problem is in the discussion, not in an absolute correct answer.
4. Homeowner’s liability policies typically exclude intentional torts. Harry’s firing into the sky was
.
5. The name of the tort committed by Vera is intentional infliction of mental distress. The tort
describes extreme and outrageous intentional behavior that results in severe emotional distress to
another. Vera’s phone call was not funny and was not suitable as a joke. As a result of Vera’s
conduct, Michelle no doubt suffered intense mental pain and anxiety. Vera’s behavior was extreme
6. No. Harriet was not in the business of selling cookies, and thus strict liability does not attach for her
donation of the brownies. Strict liability theory holds manufactures, wholesalers and retailers liable
for defective products including food not private charitable donors. If Harriet was negligent in
making the brownies, however, she could be held liable on that basis.
7. The purpose of this question is to focus attention upon the concept of fault without monetary
compensation. If there was no monetary liability for negligence, would more people be negligent?
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driver’s insurance. Without the costs of litigation and excessive jury awards, insurance premiums
would be less.
Cons:
All costs of the injury fall on the victim, who is usually blameless, or at least less blameworthy than
the perpetrator. Not every victim is covered by, nor can readily afford, adequate insurance against
such eventualities (nor can all defendants provide insurance coverage). Even when mandated by
law, many persons fail to purchase policies. The proposed rule violates the maxim of equity:
“There shall be no wrong without a remedy,” (assuming that negligence is a wrong even though it
is a manifestation of human nature). Lack of legal responsibility may lead to erosion or some would
argue further erosion of personal responsibility for ones own personal behavior.
8. Yes, to both. The appellate court upheld the trial court’s finding that the defendant acted reasonably
and with probable cause. The court first addressed the issue of probable cause. Under a Wisconsin
statute, it is the merchant’s privilege to detain a shopper who stole the merchant’s goods. The court
held as a matter of law that the merchant, through its security guard, had probable cause to believe
9. Under the common law, if an automobile is loaned to someone who misuses it, such as running it
into a tree, a civil conversion (equivalent to theft) of the car has occurred. But when a car is loaned,
there is an implied promise that it will be returned. Can it also be said that sperm is “loaned” during
sexual intercourse? Even if that legal hurdle is overcome, what would be the monetary value of the
“misused” sperm? Perhaps the best theory of Mr. Wallis is fraud, i.e., misrepresentation of a
material fact that is relied upon and damages the victim. But what would be the damages? Would
the legal obligation to pay future child support be more than offset by the value of love and
affection of one’s child? A demurrer was sustained to the lawsuit and the dismissal upheld on
10. Yes, the Carter’s can recover without specific proof they were observed. Because the scratched
mirror and the hole in the wall of Room 221 gave Room 221 secret viewing access from the
adjoining room, a jury could find a wrongful intrusion into the Carters’ right to privacy, and a jury
Torts: Private Wrongs 9
11. Summary judgment was granted to Wal-Mart for all issues save false imprisonment. “[W]e believe
the different versions of the events as claimed by Birdsong and Wal-Mart lead to the obvious
conclusion that there are genuine issues of material fact to be determined by a jury.” Birdsong
claims she was detained by store employees for approximately 45 minutes and that she was
12. The torts that correspond to the following crimes are as follows:
CRIME TORT
Date rape Battery (usually preceded by an assault)
Robbery Assault, Conversion, Battery if accomplished
13. The doctor who placed the drain in Mrs. Miller during the original surgery did not remove the
drain, instead it was removed by his weekend replacement. The court held the facts in this case
support the res ipsa loquitur instruction as to the doctor who attempted to remove the drain. “For
res ipsa loquitur to apply, the following three criteria must be met: (1) [T]he occurrence
producing the injury must be of a kind which ordinarily does not occur in the absence of
negligence; (2) the injury is caused by an agency or instrumentality within the exclusive control
of the defendant; and (3) the injury-causing occurrence must not be due to any contribution on the
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part of the plaintiff.” “[I]nadvertently leaving a foreign object in a patient’s body is negligent as a
matter of law.
14. This is good question to use to discuss the nature of both compensatory damages and punitive
damages and how they affect both the plaintiff and defendant and their families. The questions
specifically posed were addressed in the case of Crabtree v Estate of Crabtree, 837 N.E.2d 135
(Indiana 2005). The Supreme Court of Indiana held that punitive damage claim could not be
brought against the estate. There is a split of authority as to whether punitive damages are
recoverable from a deceased tortfeasor’s estate. The majority view denies punitive damages and
so did the Indiana court.
The author of this chapter would join the dissent. My view is a not a sin’s of the father view but
any incentive or benefit to one not honoring an obligation of this nature should not be
countenanced by the court.
What if the lawsuit was completed but uncollected and the tortfeasor dies? At that point the