12 Unit 1 The Legal Environment
Additional Case: You Be the Judge: Griffith v. Valley of Sun Recovery, Inc.12
Facts: Don Gorney, a repossession man who worked for Valley of Sun Recovery, attempted to repossess
Marsalek’s car. He arrived at 4:00, unscrewed an overhead street lamp, and then unlocked the car, setting
You Be the Judge:
• Did Valley of Sun have a duty to Griffith?
• If so, did the company breach its duty?
• If so, was the breach the factual cause of the injury?
• If so, was this type of injury foreseeable?
Holding: Summary judgment for Valley of Sun reversed and remanded for trial. The court held “if
reasonable minds could differ and there is a debatable question on the foreseeability of harm, then such an
car, with the neighbor pointing the shotgun at Gorney from outside the passenger window, when the
neighbor passed the gun to Williams, the gun discharged, and Griffith was shot. Since Gorney’s (and
Valley of Sun’s) conduct continued up until Griffith was injured there was no superseding cause under
Arizona law.
Question: Does this decision mean that Valley of Sun is liable for Griffith’s injuries?
Question: Why is Valley of Sun even a defendant? It was Gorney who was present.
Answer: You’ve not studied agency law yet so you haven’t learned about respondeat superior. That
Question: How could Valley of Sun possibly have a duty to Griffith? It had never heard of the man,
and was attempting to repossess Marsalek‘s car, not Griffith’s.
Answer: Valley of Sun can be liable for negligence even though it did not foresee precisely what
Question: Why didn’t Griffith sue the neighbor who brought the gun outside, instead?
Question: Gorney made one big mistake, which will probably haunt the company at trial. What was
it?
Answer: When the alarm went off the first time, a policeman came. Gorney should have stepped out
Chapter 6 Intentional Torts and Business Torts 13
Discussion
The case of Griffith v Valley of Sun Recovery often provokes animated discussion and strong reactions.
One effective way to present the case and make a lasting impression about the relationship between duty
of due care and foreseeability is to select one student—preferably one who disagrees vehemently that
Valley of Sun could be liable—and take him or her through the facts step-by-step, asking whether each
step is a reasonably foreseeable result of the previous step. For example: “Was it reasonably foreseeable
Damages
Finally, a plaintiff must prove that he has been injured, or that he has had some kind of measureable
losses.
Additional Case: Ra v. Superior Court 13
Facts: Michelle Ra and her husband Phil were shopping at an Armani Exchange when a large sign fell
and hit Phil Ra causing him serious injury. At the time of the injury, Michelle Ra was standing about 10
to 15 feet away from Phil with her back to him. Although she did not see the sign fall on her husband,
Michelle heard a loud bang, turned, saw her husband bent over in pain and rushed to his side. Ten days
later, Michelle suffered a miscarriage, which she attributed to the accident.
Issue: May a bystander recover for emotional distress cause by an accident they did not see?
Holding: Judgment for Armani affirmed. Michelle testified during a deposition that she was not sure
whether her husband was involved in any kind of accident at the time she heard the loud bang, but she
14 Unit 1 The Legal Environment
viewing or learning about the injurious consequences of his conduct” instead of actually witnessing the
injury-causing event itself.
In this case, Michelle did not actually see the sign fall on her husband. Without a reasonable
certainty her husband was being injured by whatever cause the loud bang at the time she heard it,
Michelle experienced fear that he husband may have been injured. Although that fear may have been real
and substantial, it is not recoverable in a bystander claim.
Question: Why did the judge direct a verdict in favor of Armani?
Question: Michelle Ra heard the loud bang, feared her husband was hurt, turned and saw him in pain
and rushed to his side. As a result, Michelle suffered a miscarriage. Why isn’t that an injury?
Answer: The court does not deny that Michelle Ra suffered real and substantial emotional distress
Question: How does the law determine whether a plaintiff can recover for emotional distress caused
by an accident?
Answer: The California Supreme Court established a three-part test the plaintiff must satisfy in order
Question: Why did the court say that Michelle did not satisfy this test? She was at the store, heard
the loud bang in the area of the store where her husband was shopping, and feared he might be injured
by whatever caused the loud noise.
Answer: The court ruled that Michelle could not prove the second prong of the test: although she
Question: Why should this prevent her from recovering?
Answer: The Supreme Court explained that by limiting bystander recovery to those who actually
Defenses
Contributory and Comparative Negligence
In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury recovers
Assumption of the Risk
Wherever there is an obvious hazard, a special rule applies. Assumption of the risk: a person who
voluntarily enters a situation that has an obvious danger cannot complain if she is injured.
Chapter 6 Intentional Torts and Business Torts 15
Case: Truong v. Nguyen14
Facts: Anthony Nguyen and Rachel Truong went for a ride on Anthony’s Polaris jet ski. Cu Van
Nguyen and Choung Nguyen (no relation to Anthony) were both riding a Yamaha Waverunner. Both jet
skis permitted a driver and passenger, each seated. The two jet skis collided near the middle of Coyote
Issue: Does assumption of the risk apply to jet skiing?
Holding: Yes, judgment affirmed. According to the court, in sports, assumption of the risk prohibits
liability because the plaintiff assumed risks inherent in that sport by consenting to participate. Even when
Rachel’s parents argued that Rachel was merely a passenger and was not actively engaged in the
sport. The court, however, concluded that even a passenger participates in the sport because they are
required to use skill and such participation involves a challenge with a risk of injury. The thrill of jet
skiing is shared by the driver and the passenger alike.
Question: What is assumption of the risk?
Answer: Assumption of the risk is a defense to a negligence claim, whereby a person who
Question: Is the court saying that death is an obvious danger when jet skiing?
Answer: Not necessarily. What the court is saying is that Rachel voluntarily participated in a sport
Question: But Rachel was a passenger on a jet ski out for fun on a warm afternoon, how is that
engaging in a sport?
Answer: The court made it clear that jet skiing is a sport, regardless of whether it is competitive or
Strict Liability
A defendant is strictly liable for harm caused by an ultrahazardous activity or a defective product.
Ultrahazardous activities include using harmful chemicals, blasting, and keeping wild animals. Strict
liability means that if the defendant’s conduct led to the harm, the defendant is liable, even if she
exercises extraordinary care.
16 Unit 1 The Legal Environment
poses.
Additional Case: NJ Dept. of Environmental Protection v. Alden Leeds, Inc.15
Facts: The Alden Leeds company packages, stores, and ships swimming pool chemicals. The firm does
most of its work at its facility in Kearns, New Jersey. The day before Easter, a fire of unknown origin
broke out in “Building One” of the company’s site, releasing chlorine gas and other potentially dangerous
by-products into the air. There were no guards or other personnel on duty. The fire caused $9 million in
Issue: Did the company cause the harm?
Holding: The court affirmed that the APCA is a strict liability statute and that there must be a causal
nexus between the defendant and the harm. It reversed the appellate court’s holding that the storing of
hazardous chemicals by Alden Leeds does not satisfy that nexus. The DEP does not have to prove that
the chemical operator started the fire. In 1962, this Court adopted the proposition that “an ultrahazardous
activity which introduces an unusual danger into the community should pay its own way in the event it
Question: Who won?
Question: Did Alden Leeds start the fire that led to the release of toxic fumes?
Question: Why?
Question: They why is Alden Leeds liable?
Answer: This is an example of strict liability. Strict liability is liability without fault; it arises when
a defendant engages in some activity for which a law imposes strict liability.
Question: What did Alden Leeds do that subjected it to strict liability?
Answer: It stored various hazardous chemicals on its property. The court stated “the law imposes a
Question: Alden Leeds is in the business of selling chemicals and it stored them lawfully! Does this
mean it is liable for any harm those chemicals cause while they are on its property?
Question: How is that fair?
15 153 N.J. 272; 708 A.2d 1161; 1998 N.J. LEXIS 212; 46 ERC(BNA) 1447 (Supreme Court of New Jersey 1998)
Chapter 6 Intentional Torts and Business Torts 17
Answer: The law only applies strict liability to certain ultrahazardous activities. Those who engage
Question: How does a person who engages in such activities protect itself from liability?
Answer: First, it goes without saying that it must follow all laws regulating such activities. Second,
Question: Wouldn’t such insurance be expensive?
Question: Is that fair?
Answer: Consider the alternative. If the company does not obtain insurance and cannot compensate
Question: How far should strict liability go? Suppose a tornado struck Alden Leeds, released
poisonous gas into the atmosphere, and killed twenty people. Should the company be liable?
Answer: It appears that the majority here would answer “yes.” In their view, it is the storage that
Multiple Choice Questions
1. Jane writes an article for a newspaper reporting that Ann was arrested for stealing a car. The story is
entirely false. Ann is not a public figure. Which of the following torts has Jane committed?
(a) Ordinary slander
(b) Slander per se
(c) Libel
(d) None of the above
2. Refer back to question 1. If Ann decides to sue, she ________________ have to show evidence that
she suffered an injury. If she ultimately wins her case. a jury ________________ have the option to
award punitive damages.
(a) will; will
(b) will; will not
(c) will not; will
(d) will not; will not
3. Sam sneaks up on Tom, hits him with a baseball bat, and knocks him unconscious. Tom never saw
Sam coming. He wakes up with a horrible headache. Which of the following torts has Sam
committed?
(a) Assault
(b) Battery
18 Unit 1 The Legal Environment
(c) Both A and B
(d) None of the above
4. Al runs a red light and hits Carol’s car. She later sues, and claims the following losses:
$10,000 — car repairs
$10,000 — medical expenses
$10,000 — lost wages (she could not work for two months after the accident)
$10,000 — pain and suffering
If the jury believes all of Carol’s evidence and she wins her case, how much will she receive in
compensatory damages?
(a) $40,000
(b) $30,000
(c) $20,000
(d) $10,000
(e) $0
5. Zack lives in a state that prohibits factory laborers from working more than 12 hours in any 24 hour
period. The state legislature passed the law to cut down on accidents caused by fatigued workers.
Ignoring the law, Zack makes his factory employees put in 14 hour days. Eventually, a worker at the
end of a long shift makes a mistake and severely injures a coworker. The injured worker sues Zack.
Which of the following terms will be most relevant to the case?
(a) Res ipsa loquitur
(b) Assumption of the risk
(c) Negligence per se
(d) Strict liability
Essay Questions
1. Caldwell was shopping in a K-Mart store, carrying a large purse. A security guard observed her look at
various small items such as stain, hinges, and antenna wire. On occasion she bent down out of sight of
the guard. The guard thought he saw Caldwell put something in her purse. Caldwell removed her
glasses from her purse and returned them a few times. After she left, the guard approached her in the
parking lot and said that he believed she had store merchandise in her pocketbook but was unable to
say what he thought was put there. Caldwell opened the purse, and the guard testified he saw no K-
Mart merchandise in it. The guard then told Caldwell to return to the store with him. They walked
around the store for approximately 15 minutes, while the guard said six or seven times that he saw her
put something in her purse. Caldwell left the store after another store employee indicated she could
go. Caldwell sued. What kind of suit did she file, and what should the outcome be?
Chapter 6 Intentional Torts and Business Torts 19
Answer: Caldwell sued for false imprisonment. The jury found in her favor, and the Court of
2. Tata Consultancy of Bombay, India, is an international computer consulting firm. It spends
considerable time and effort recruiting the best personnel from India’s leading technical schools. Tata
employees sign an initial three-year employment commitment, often work overseas, and agree to
work for a specified additional time when they return to India. Desai worked for Tata, but then quit
and formed a competing company, which he called Syntel. His new company contacted Tata
employees by phone, offering more money to come work for Syntel, bonuses, and assistance in
obtaining permanent resident visas in the United States. At least 16 former Tata employees left their
work without completing their contractual obligations and went to work for Syntel. Tata sued. What
did it claim, and what should be the result?
Answer: Tata sued for interference with contractual rights. The United States District Court granted
3. You Be the Judge: WRITING PROBLEM Johnny Carson was for many years the star of a
well-known television show, The Tonight Show. For about 20 years, he was introduced nightly on the
show with the phrase, “Here’s Johnny!” A large segment of the television watching public associated
the phrase with Carson. A Michigan corporation was in the business of renting and selling portable
toilets. The company chose the name “Here’s Johnny Portable Toilets,” and coupled the company
name with the marketing phrase, “The World’s Foremost Commodian.” Carson sued, claiming that
the company’s name and slogan violated his right to commercial exploitation.
Argument for Carson: The toilet company is deliberately taking advantage of Johnny Carson’s good
name. He worked hard for decades to build a brilliant career and earn a reputation as a creative,
funny, likable performer. No company has the right to use his name, his picture, or anything else
closely identified with him, such as the phrase “Here’s Johnny.” The pun is personally offensive and
commercially unfair.
Argument for Here’s Johnny Portable Toilets: Johnny Carson doesn’t own his first name. It is
available for anyone to use for any purpose. Further, the popular term “john,” meaning toilet, has
been around much longer than Carson or even television. We are entitled to make any use of it we
want. Our corporate name is amusing to customers who have never heard of Carson, and we are
entitled to profit from our brand recognition.
Answer: The Court of Appeals ruled for Carson. Carson v. Here’s Johnny Portable Toilets, Inc., 698
4. At approximately 7:50 p.m. bells at the train station rang and red lights flashed, signaling an express
train’s approach. David Harris walked onto the tracks, ignoring a yellow line painted on the platform
20 Unit 1 The Legal Environment
instructing people to stand back. Two men shouted to Harris, warning him to get off the tracks. The
train’s engineer saw him too late to stop the train, which was traveling at approximately 99 mph. The
train struck and killed Harris as it passed through the station. Harris’s widow sued the railroad,
arguing that the railroad’s negligence caused her husband’s death. Evaluate her argument.
Answer: Harris was a trespasser and as a result the railroad had no duty of due care to him. The
5. A new truck, manufactured by General Motors Corp., stalled in rush hour traffic on a busy interstate
highway because of a defective alternator, which caused a complete failure of the truck’s electrical
system. The driver stood nearby and waved traffic around his stalled truck. A panel truck approached
the GMC truck, and immediately behind the panel truck, Davis was driving a Volkswagen Fastback.
Because of the panel truck, Davis was unable to see the stalled GMC truck. The panel truck swerved
out of the way of the GMC truck, and Davis drove straight into it. The accident killed him. Davis’
widow sued GMC. GMC moved for summary judgment, alleging (1) no duty to Davis, (2) no factual
causation, and (3) no foreseeable harm. Comment.
Answer: Summary judgment for GMC denied. General Motors Corp. v. Davis, 141 Ga. App. 495,
Discussion Questions
1. You have most likely heard of the Liebeck v. McDonalds case. Liebeck spilled hot McDonald’s
coffee in her lap, and suffered third degree burns. At trial, evidence showed that her cup of coffee
was brewed at 180 degrees, and that, more typically, a restaurant’s “hot coffee” is in the range of 140–
160 degrees.
A jury awarded Liebeck $160,000 in compensatory damages and $2.7 million in punitive damages.
The judge reduced the punitive award to $480,000, or three times the compensatory award.
Comment on the case, and whether the result was reasonable.
2. Celebrities often have problems with tabloids and the paparazzi. It is difficult for public figures to win
libel lawsuits, because they must show actual malice. Intrusion lawsuits are also tricky, and flocks of
photographers often stalk celebrities at all hours.
Is this right? Should the law change to offer more privacy to famous people? Or is a loss of privacy
just the price of success?
3. Many retailers have policies that instruct employees not to attempt to stop shoplifters. Some store
owners fear false imprisonment lawsuits and possible injuries to workers more than losses related to
stolen merchandise.
Chapter 6 Intentional Torts and Business Torts 21
Are these “don’t be a hero” policies reasonable? Would you put one in place if you owned a retail
store?
4. Imagine an undefeated high school football team on which the average lineman weighs 300 pounds.
Also, imagine a 0-10 team on which the average lineman weighs 170 pounds. The undefeated team
sets out to hit as hard as they can on every play, and to run up the score as much as possible. Before
the game is over, 11 players from the lesser team have been carried off the field with significant
injuries. All injuries were the result of “clean hits” – none of the plays resulted in a penalty. Even
late in the game, when the score is 70-0, the undefeated team continues to deliver devastating hits that
are far beyond what would be required to tackle and block. The assumption of the risk doctrine
exempts the undefeated team from liability. Is this reasonable?
5. People who serve alcohol to others take a risk. In some circumstances, they can be held legally
responsible for the actions of the people they serve. Is this fair? Should an intoxicated person be the
only one liable if harm results? If not, in what specific circumstances is it fair to stretch liablility to
other people?
Bonus Exam Strategy:
Question: According to a complaint filed against supermodel Naomi Campbell by her maid Ms.
Gibson, Campbell accused Ms. Gibson of stealing a pair of jeans. When Ms. Gibson bent down to
Strategy: This question asks about torts—several torts. Let’s take them in order: Ms. Gibson
alleges that Ms. Campbell hit her. We know battery is an offensive or unwanted touching. Next,
Ms. Gibson alleges that Ms. Campbell’s agents prevented Ms. Gibson from leaving by threatening
Result: Ms. Gibson can sue for battery based on Ms. Campbell allegedly hitting her on the back of
the neck; false imprisonment for Ms. Campbell and her agents using force and intimidation to