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C H A P T E R 9
TORTS AND PRIVACY PROTECTION
INTRODUCTION
A tort is a civil wrong resulting in injury to a person or property. This chapter first discusses
intentional torts, then addresses torts of negligence (including an accountant’s liability to third
parties), strict and vicarious liability and apportioned responsibility. The chapter also examines
the evolving law on toxic torts.
I. ELEMENTS OF AN INTENTIONAL TORT AND DEFENSES.
A. In order for a party to prevail in a tort action, the plaintiff must prove four
B. Intent. The torfeasor’s intent can be actual or implied.
1. Actual intent can be shown by evidence that the defendant intended a
specific consequence.
C. Defenses. Most frequently used defense is consent.
II. INTENTIONAL TORTS TO PROTECT PERSONS
A. Battery is a an intentional, non-consensual, harmful, or offensive contact with the
plaintiff’s body or with something in contact with it, even if there is no injury.
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D. Intentional Infliction of Emotional Distress. A plaintiff must show an intentional
E. Defamation is the communication (publication) to a third party of an untrue
statement of fact that injures the plaintiff’s reputation by exposing him or her to
“hatred, ridicule or contempt.” Libel is written defamation, and slander is spoken
defamation.
1. Slander Damages. Plaintiff must prove actual harm, such as the loss of
credit, a job, or customers, unless the statement is slander per se.
2. Libel Damages are presumed. No actual harm need be shown unless the
statement on its face is not damaging.
F. Invasion of Privacy covers violations of one’s right to keep personal matters
private. The tort can be intrusive, appropriation of a name, or a public disclosure
of private facts. Also, appropriation of a person’s name or likeness may be
actionable as an invasion of privacy.
CASE 9.1 Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn.
2003). Defendant (LME) wrongly sent a fax with names and
Social Security numbers of its employees to 16 trucking terminals
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The Court concluded that the faxes were not issued to the public
and dismissed the complaint.
III. INTENTIONAL TORTS THAT PROTECT PROPERTY.
A. Trespass to Land is an entry on real property without consent of the owner.
B. Nuisance is a non-trespassory interference with the use and enjoyment of property
by, e.g., odor or noise.
1. Public Nuisance. Guns and greenhouse gases. In 2005 Congress passed
CASE 9.2 Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009). Furrow
shot and killed people using a Glock handgun. Plaintiffs
2. Private Nuisance.
C. Conversion is the exercise of dominion and control over personal property of
another.
IV. INTENTIONAL TORTS THAT PROTECT CERTAIN ECONOMIC INTERESTS AND
BUSINESS RELATIONSHIPS.
A. Fraudulent Misrepresentation.
BAGLEY, MANAGERS AND THE LEGAL ENVIRONMENT 7TH ED—INSTRUCTOR’S MANUAL
Defendants have defenses of privilege and honesty.
D. Malicious Prosecution and Defense. Generally disfavored under the law, unless
there is perjury or false evidence.
V. NEGLIGENCE.
A. Duty. A person has a legal duty, to act reasonably to avoid harming another.
1. Duty to Rescue. Some relationships create a legal duty to rescue:
2. Duty of Landlord or Tenant to Third Parties.
• An owner of land (or possessor, e.g., tenant) has a legal duty to keep
3. Traditional Approach to Premises Liability. (Has fallen into disfavor.)
Premises depends on the status of the injured party: trespasser, licensee,
or invitee.
• Duty to Trespassers. Generally, a landowner owes no duty to an
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CASE 9.3 Labaj v. VanHouten, 322 S.W.3d 416 (Tex.Ct.App.
2010). Plaintiff VanHouton was attacked by business
owner’s guard dog while an invitee at the business. The
4. Reasonable Care Approach to Liability to Third Parties for Injuries on
B. Breach of Duty.
1. Generally, the court judges whether the defendant met a standard of
2. Negligence per se. Injury to particular class of persons due to violation of
statute or regulation gives rise to negligence per se.
C. Causal Connection.
1. Actual Cause. This is the “but for” test.
2. Proximate Cause. Once actual cause is proved, plaintiff must prove that
D. Injury. Plaintiff must prove legal injury.
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E. Defenses to Negligence. In some jurisdictions, defendant may be absolved of part
or all of the liability by proving that the plaintiff was also negligent.
1. Contributory Negligence.
2. Comparative Negligence: Ordinary and Pure.
3. Assumption of Risk requires defendant to show that the plaintiff knew the
risk was present and understood its nature and voluntarily chose to incur
the risk. This defense relieves the defendant of any liability.
4. Economic Loss Rule. Many states bar a plaintiff who is in privity of
contract with a defendant, or who has entered into a commercial
5. Statutory Defenses.
VI. LIABILITY OF ACCOUNTANTS AND OTHER PROFESSIONALS TO THIRD PARTIES.
A. Intentional Misrepresentation (or fraud) by an accountant leaves the accountant
B. Negligent Misrepresentation. Professional negligence is called malpractice. A
professional owes a duty only to her client, not to a third party.
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CASE 9.4 Chem-Age Industries, Inc. v. Glover, 652 N.W.2d 756 (S.D.
2002). Alan Grover represented Byron Dahl. Acting as
Dahl’s agent, Grover negotiated with Pederson and Shepard
to invest in Chem-Age (CAI). After they invested,
Pederson and Shepard noticed that CAI accumulated credit
3. Investment Bankers have a duty of care when authoring fairness opinions
over leveraged buyouts.
VII. NEGLIGENT HIRING AND LIABILITY FOR EMPLOYEE RECOMMENDATIONS.
A. Negligent Hiring. An employer may be liable for negligent or tortious acts of its
employees acting outside the scope of employment if the employer breached its
VIII. STRICT LIABILITY. Liability without fault, that is, without either intent or negligence
that is imposed in two circumstances: (1) in product liability cases and (2) in cases
involving abnormally dangerous (or ultrahazardous) activities.
A. Ultrahazardous Activities. Defendant is strictly liable for injuries resulting from
abnormally dangerous activity.
IX. RESPONDEAT SUPERIOR AND VICARIOUS LIABILITY. It is possible for one person to
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be held vicariously liable for the negligent, or in some cases the intentional, conduct of
another.
A. Respondeat Superior holds an employer vicariously liable for the torts of the
“servant” or employee if the employee was acting within the scope of his or her
employment.
1. Liability for Torts Committed Within the Scope of Employment.
• The employer is directly liable for her own negligence in
supervising or hiring an employee.
CASE 9.5 Burlarley v. Wal-Mart Stores, Inc., 75 A.D.3d 955 (N.Y.
App. Div. 2010). Wal-Mart cashier joked and threw heavy
2. Employer Liability Based on the Aided-in-the-Agency Doctrine Liability.
Courts will look beyond the scope of employment to determine whether
the employee exercised authority conferred by, or used assets provided by,
the employer.
B . Other Types of Vicarious Liability. An employer maybe liable for the acts of
employees within the scope of employment, especially when it took an action (or
failed to take an action) that increased the likelihood that an employee would
commit a tort.
CASE 9.6 Lev. Beverly Enterprises-Massachusetts, Inc., 929 N.E.2d 303
(Mass. 2010). Lev sued Beverly over injuries caused by Beverly’s
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employment does not generally include travel to or from home or
to a place of employment.
X. SUCCESSOR LIABILITY. Individuals or entities that purchase a business may be held
liable for the tortious acts of the previous owner.
XI. DAMAGES. Tort damages may include punitive as well as compensatory damages.
A. Actual Damages also known as compensatory damages, measure the cost to repair
or replace an item, or the decrease in market value caused by the tortious conduct.
XII. EQUITABLE RELIEF. If a monetary award cannot adequately compensate for the
plaintiff’s loss, courts may apply equitable relief such as an injunction.
XIII. LIABILITY OF MULTIPLE DEFENDANTS. The plaintiff may name numerous defendants.
If a court determines what liability exists, it must allocate the damages among multiple
defendants.
A. Joint and Several Liability. If the court determines multiple defendants are at
XIV. PRIVACY PROTECTION. Technological developments, especially the Internet, have
made it possible to amass large amounts of detailed personal information.
A. State legislation.
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D. Medical Information: The HIPAA. Under the Health Insurance Portability and
Accountability Act both health care professionals and insurance providers must
maintain strict privacy of patient information.
RESPONSIBLE MANAGER: TEACHING SUGGESTIONS
1. Why is the tort of intentional infliction of emotional distress difficult to prove?
2. Given the current state of the media, should torts such as defamation and invasion of
privacy be liberalized?