Negligence Analysis

The Study of Law

Currier, K.A., Eimermann, T.E. (2016). The study of law: A critical thinking approach (4th ed. .

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New York: Wolters Kluwer

– Aspen College Series

The Study of L A Critical Thinking Approa

Fourth Edition

Katherine A. Currier • Thomas E. Eimermann

®Wolters Kluwer

Torts

The risk reasonably to be perceived defines the duty to be obeyed.

Justice Benjamin Cardozo

ER OBJECTIVES

:: · g this chapter, you should be able to:

“”:” xplain how intentional torts differ from negligence and strict liability rtS •

…ist: the elements of the prima facie case and common defenses for the – rtS of battery, false imprisonment, and defamation. _…__ ply the elements of negligence to a fact scenario.

escribe the history and development of product liability law. ~lain the function of compensatory, punitive, and nominal damages.

UCTION

_ – occur when someone injures you, slanders your reputation, or dam- – roperty. A tort is defined as a private wrong (other than a breach of

_._ __ -_: · which a person or property is harmed because of another’s failure to -a legal duty. In most instances this legal duty is an obligation to refrain

207

• 208 Chapter 7: Torts

Restatement of the law of Torts, Second An authoritative secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be.

from taking actions that harm others. Occasionally, a duty will consist of – affirmative obligation to act in order to protect others.

A tort is considered to be a “private wrong,” as opposed to criminal – which are seen as “public wrongs.” Therefore, while the state prosecutes c · the individual harmed must pursue a tort action. The end results of a cr· action and a civil tort suit also differ: A finding of guilt in a criminal action – result in a fine paid to the state or imprisonment, while a finding of liability·- tort action usually leads to a damage award to the harmed party. However, as discussed in Chapter 4 because both criminal acts and torts can result in ha.n::-: a person or property, sometimes the same set of facts will give rise to both a : action and a criminal action.

Tort actions must also be distinguished from contract actions. In a : action the legal duties are established by the courts through the common law more recently also by statutory modifications of the common law. In con contract actions are based on the legal duties the parties established in t contract. A further difference between a contract action and a tort action li~ the remedy sought. In a contract action the purpose of the lawsuit is to give injured party the benefit of the bargain. In a tort action the purpose is to pensate the plaintiff for any losses suffered. For example, assume you pure an automobile with defective brakes. Because of the defect you are unab:e · stop at a red light and are in a minor accident. The purpose of a breach of tract action would be to “get the benefit of your bargain”- that is, a car out defective brakes. The purpose of a tort action would be to fully compe you for any harm to yourself or the car, including your medical bills, lost from work, and pain and suffering. As this example suggests, at times one of facts can give rise to both a breach of contract action and a tort action. c:- example, if a manufacturer intentionally lies about a product he is selling and – buyer relies on that lie to her detriment, the buyer might be able to sue for breach of contract (thereby invalidating the sale) and fraud (thereby recove~ for damages caused by the product).

Tort law has ancient roots, and tort rules have been created by the co on a case-by-case basis. Therefore, looking to precedent for analogous situa · plays a large role in any analysis of a tort problem. In addition, the courts :…. quently look to an authoritative secondary source, the Restatement of the of Torts, Second. This Restatement was drafted by a group of legal scholars order to summarize the existing common-law rules in a set of black letter ciples. At times, instead of simply “restating” the law, the drafters also incl their vision of what tort law should become. This is most notable in the ar products liability. Although the Restatement is a secondary source and is th fore only persuasive authority, you will frequently see courts citing to it and formally adopting some of its provisions.

In spite of its ancient common-law roots, tort law has never been sta One area of tort law that is undergoing rapid change is that involving in ries to participants and bystanders at sporting events. Consider the fo il ing and how what started out as an afternoon of fun ended up being a of tragedy . .

Dennis Carrai hosted a gathering of family – friends at his home. Among the guests was …aria Judge. Several guests, including Maria, ere seated on the unenclosed rear porch of

— .. house. At some point, Dennis shouted “who ::: ts to play softball,” while handing out gloves, all, and a metal bat that he had retrieved from

– garage. The area available for the field was · e small; the “third base line” was approxi-

-=-ely 15 feet from the house, running parallel to e side of the porch. Maria was sitting in a chair

– the porch, with her back to the game.

Dennis admonished the batters to “bunt” or swing down on the ball, and not to take full swings, to reduce the distance a batted ball might travel. Nonetheless, a batted ball flew in the direction of the house, landing on the porch roof. One of the guests laughed, commenting to Dennis that he hoped his homeowner’s insurance policy premium was paid, because the ball narrowly missed hitting a skylight on the porch roof. The game continued and a short time later, one of the players hit a foul line drive toward the porch, where it struck Maria on the back of her head, causing her serious injury.

As you read this chapter, think about:

whether Dennis had a duty to stop the game once he should have real- ized the danger of balls flying towards the house; what role Maria played in her own injury; and the consequences for backyard sports if a court were to find Dennis lia- ble for Maria’s injury.

While tort law is still predominately court-created law, legislatures are play- – increasingly active role. For example, both Congress and state legislatures

= enacted “tort reform” statutes, with the purpose of modifying some of the ed abuses of the tort system. One example is legislation to place limits on ount of damages that can be awarded in certain types of tort cases. Such

-eform measures have even been included in the national platforms of the – political parties. – orts have traditionally been classified into three major categories: inten-

acts, negligence, and strict liability. See Figure 7-1. In any one of these areas, the person who commits the tort is known as the tortfeasor. U en people intentionally seek to violate a duty toward others, their pur-

conduct is classified as an intentional tort. Those who commit inten- -orts are subject to punitive in addition to compensatory damages. If John onally drives his car into Jill’s car, damaging her car and injuring Jill, as committed an intentional tort. As we will see later in this chapter,

: motive (reason) for hitting Jill’s car is irrelevant. All that matters is that – ded to do so. n en the harm occurs as a result of a careless act done with no conscious

HIGH Intentional acts

MEDIUM Negligent acts

LOW Strict liability

NONE No liability

– 😮 injure anyone, the act is classified as negligence. Negligent actors are sub- Figure 7-1 Degrees of Fau lt – compensatory but not to punitive damages. If the reason John’s car struck

• 210 Chapter 7: Torts

Jill’s was not because he had intended to do so but because he had taken his e~ off the road to adjust his radio, John’s behavior may be classified as negligent.

There are times when for policy reasons the defendant is held responsi;:;.~ even though the defendant did not act negligently nor intentionally to ha.'”i;; the plaintiff. These are classified as strict liability torts. Strict liability is usua: limited to situations involving an ultrahazardous activity, such as dynamiting, — the manufacture or sale of a potentially dangerous product. For example, if – reason John ran into Jill’s car was because his brakes failed, the car manufactur: may be held strictly liable.

Finally, it is important to realize that the law does not provide for co:::- pensation for all injuries. There are true accidents, when either no one is at fa·· – or the fault rests solely with the person injured. In those situations, the injur party cannot recover damages.

A. INTENTIONAl TORTS

An intentional tort occurs whenever someone intends an action that results harm to a person’s body, reputation, emotional well-being, or property. Alm any harm that you can imagine, if caused intentionally, can be classified as — intentional tort. In this section of the chapter we will discuss just a few of~-­ most common intentional torts. First, there are the torts that cause harm • a person’s body, reputation, or emotional well-being: assault and battery, fa.S imprisonment, defamation, invasion of privacy, and intentional infliction emotional distress. Second, there are the torts that cause harm to a persor: property: trespass, trespass to personal property, and conversion. Third, we briefly discuss a variety of other torts, including false arrest, malicious prostx..:;:- tion, abuse of process, fraud, and business torts.

In order to prove that an intentional tort occurred, the plaintiff must pro _ each of that tort’s elements. The defendant then has the opportunity to raise a;:;. defenses. The primary defenses available in intentional tort cases are conser;.- self-defense, defense of third parties, and various types of privilege.

As we will see, one set of facts can give rise to more than one type of imer.- tional tort. In addition, many intentional torts are also crimes. Consider the fr:- lowing fact scenario.

One day attorney John Bloom asked his paralegal Sally Green to sit in on an initial cli- ent interview. Mr. Bloom introduced Ms. Green to the client, June Day, and explained to Mrs. Day

that Ms. Green is a paralegal. Mrs. Day told them the following story.

Mrs. Day has been living with Mr. David Da. for the past five years. While their marriage has

– er been a happy one, Mrs. Day never thought = divorce until last night. Mr. Day came home ~ late from an adult co-ed softball game. Mrs. a. said it was obvious that he had been drinking.

~.,ey soon got into a verbal fight. Among other — gs, Mr. Day yelled at Mrs. Day that he had told

– boss she had been skimming money from the pany’s petty cash drawer. Mrs. Day had never e any such thing. He also told her that he had

=.:eived a call earlier in the day from the local has- telling him that Mrs. Day’s mother had been

– · tted following a massive heart attack. (Later :s. Day found out that this was not true, but at

– ” time she believed Mr. Day and became very ~. ) The fight escalated, and Mr. Day began :.ring his baseball bat in front of Mrs. Day. Mrs. a; said that she was not frightened, as Mr. Day – never hit her, and she did not believe he would

A. Intentional Torts 211 •

do so then. In fact, she turned her back on him and started to leave the room. He then yelled at her and, before she could turn around, hit her on the back of her arm with the bat, breaking her arm. Mrs. Day then fled to the bathroom, locking the door behind her. Mrs. Day remained in the bath- room for over two hours until she felt it was safe to leave. She found Mr. Day asleep on the living room couch. She fled to a neighbor’s, who drove her to the hospital. The next morning Mrs. Day returned home to find Mr. Day as well as her purse gone. There was a message on the answering machine from her boss saying that she was fired.

While Mrs. Day is contemplating divorce proceedings, her more immediate concern is to learn what actions she can take to compensate her for her broken arm, emotional distress, miss- ing purse, and lost job.

arm to a Person’s Body, Reputation, or Emotional Well-Being

– : ;allowing torts will be discussed in this section: assault and battery (harm —eatened harm to a person’s body), false imprisonment (a wrongful deten-

. defamation (harm to a person’s reputation), and invasion of privacy and ~rentional infliction of emotional distress (harm to a person’s emotional -neing).

a. Assault and Battery

_-\n assault occurs when someone reasonably fears that he or she is about to ~ a harmful or offensive physical contact. A battery is the intentional harm- ~ offensive physical contact. While we usually think of assault and battery -e tort, in reality they are two torts. They can be present together, as, for

– .le, when Tom first waves a fist in front of Sam’s face and then proceeds – .:ach Sam in the nose. However, there can also be an assault with no bat-

. henever there is the threat of a battery but no ensuing physical contact. – – ere can also be a battery with no assault, as, for example, when the per-

“‘mg attacked does not see the threat of physical contact before it actually

1) The elements of assault and battery

-:-o prove an assault, the plaintiff must show that each of the following ele- occurred:

Assault An intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact .

Battery An intentional act that creates a harmful or offensive physical contact.

• 212 Chapter 7: Torts

Transferred intent A legal fiction that if a person directs a tortious action toward A but instead harms B, the intent to act against A is transferred to B.

1. an intentional act 2. that creates a reasonable apprehension of 3. an immediate harmful or offensive physical contact.

Notice the requirement in element 3 that the apprehension be of an immediate physical contact. A threat to go and get a gun is not an assault because there is no threat of an immediate contact.

To prove a battery, the plaintiff must show that each of the following ele- ments occurred:

1. an intentional act 2. that creates a harmful or offensive physical contact.

Notice that for both assault and battery the contact does not have to actually be physically painful. It simply must be harmful or offensive. An unwanted kiss from a stranger could qualify as an offensive contact.

Contact also includes contact with anything attached to the person, such as clothing. In the classic case of Fisher v. Carrousel Motor Hotel, Inc., 1 the court found that a battery had been committed when a hotel employee grabbe a plate from a customer. Also, the defendant need not actually do the touching if the defendant set the action in motion, such as by throwing a rock or ordering a dog to attack.

In discussing battery there are three important concepts to keep in mind. First, the intent involved must be the intent to perform the act, not necessarily to cause the plaintiff harm. Assume a boy, as a practical joke, pulls out a chair jus: as his friend is about to sit on it. The friend falls to the ground, breaking his arm. Even though the boy did not mean to hurt his friend, he is liable for battery. He intentionally did an act that caused physical injury. This example also illustrates the difference between intent, the desire to do an act, and motive, the reason fo~ the act. The court is concerned with the intent (the boy’s desire to pull out the chair) and not with his motive (his wish to play a practical joke).

Second, usually defendants will be liable for any consequences of theG- actions, even if the consequences were unforeseeable. Often this is phrased as follows: “The defendant must take the plaintiff as the defendant finds her.” Fo:- example, if the plaintiff has an “eggshell skull” and the defendant merely taps th~ plaintiff’s head lightly, the tap may seriously injure the plaintiff. The defendant is liable, ev.en if such a tap would not have harmed most people.

Third, assume John swung his fist, meaning to hit Bill. However, Bill move- aside and John hit Sara instead. John is liable to Sara for battery under th= theory of transferred intent.

The following case involves a friendly backyard touch football game th;r unfortunately ends in injury. While reading the case, decide for yourself whethe: you think the plaintiff should have been allowed to succeed on her claim c: battery.

1424 S.W.2d 627 (Tex. 1967).

A. Intentional Torts 213 •

Knight v. jewett 3 Cal. App. 4th 1022, 275 Cal. Rptr. 292 (1990)

ToDD, Acting P.J. Kendra Knight appeals a summary judg-

ment granted in favor of Michael Jewett in her wsuit against Jewett for … assault and battery

stemming from a touch football game in which she was injured ….

Facts On January 25, 1987, Knight and several

other individuals, including Jewett, gathered at :he Vista home of Ed McDaniels to observe the

uper Bowl football game. Knight and Jewett were among those who decided to play a game of -..oed touch football during half-time using a “pee- wee” football often used by children. Apparently,

o explicit rules were written down or discussed xfore the game, other than the requirement that 😮 stop advancement of the player with the ball ~~ was necessary to touch that player above the ‘;”;”aist with two hands. Knight and Jewett were on different teams.

Previously, Knight had played touch football and frequently watched football on television. 1-:night voluntarily participated in the Super Bowl

alf-time game. It was her understanding that this =arne would not involve forceful pushing, hard

‘tting or hard shoving during the game. She had ::ever observed anyone being injured in a touch :ootball game before this incident.

About five to ten minutes after the game ::arted, Jewett ran into Knight during a play and .2…..!rerward Knight asked Jewett not to play so :-ough. Otherwise, she told him, she would stop _laying.

On the next play, Knight suffered her inju- :es, when she was knocked down by Jewett and

he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight’s hand.

According to Knight’s version, her team- mate, Andrea Starr, had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett, in pursuit of Starr, came from behind Knight and knocked her down. Knight put her arms out to break the fall and Jewett ran over her, stepping on her hand. Jewett continued to pursue Starr for another 10 to 15 feet before catching up with her and tagging her. Starr said the tag was rough enough to cause her to lose her balance and fall and twist her ankle.

Discussion Inasmuch as this case reaches us on appeal

from a summary judgment in favor of Jewett, it is only necessary for us to determine whether there is any possibility Knight may be able to establish her case.

A requisite element of assault and battery is intent. Here, however, there is no evidence that Jewett intended to injure Knight or commit a bat- tery on her. Moreover, the record affirmatively shows Knight does not believe Jewett had the intent to step on her hand or injure her. 7· Without the requisite intent, Knight cannot state a cause of action for assault and battery.

Affirmed.

–:-he deposition of Kendra Knight was taken on October 19, 1988, and offered in support of the motion for summary judgment. Ms. ·- “ght testified as fo llows

“Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any reason to believe he had any intention hurt you?”

“A.No.”

• 214 Chapter 7: Torts

MooRE, C.J.

CASE DISCUSSION QUESTIONS

1. Did the court think that a battery had occurred? Why? 2. What role do you think Ms. Knight’s deposition played in the court’s

reasoning? 3. Do you think the result would have been different if Ms. Knight had

never watched football or played touch football prior to her accident?

(2) The defenses to assault and battery

The first step in winning a tort claim is for the plaintiff to prove each of the elements of that tort. Then only if the plaintiff is able to do so, the defendant raises any defenses. The defenses that can be raised to an assault or battery claim are consent, self-defense, defense of others, and sometimes defense of property.

Consent to a tortious act can sometimes be implied from the nature of the plaintiff’s conduct. When one goes to a barber or hair stylist, there is an implied consent for that person to touch and cut the customer’s hair. Some types of con- sent are implied by law, such as when a doctor administers medical treatment in an emergency. Because the court in Knight v. Jewett did not think that Ms. Knight had established a prima facie case for battery, it did not consider whether the defendant had any valid defenses. If the court in Knight had thought Mr. Jewett intentionally stepped on Ms. Knight, it next would have discussed the issue of whether she had consented to the battery. How do you think the court would have resolved that issue?

For self-defense and defense of others to be valid, the plaintiff must rea- sonably believe that a threat exists and then must use only as much force as is necessary to stop the battery. Self-defense, for example, could be used as a valid defense against a battery charge if the plaintiff had threatened the defendant with a knife and the defendant had defended himself with his fists. However, if the plaintiff was unarmed and struck the defendant with his fists, it might not be a valid self-defense for the defendant to stab the plaintiff with a knife.

Perhaps one of the most controversial defenses is that of defense of prop- erty. The following case from Iowa illustrates a rejection of its use.

Katko v. Briney 183 N.W.2d 657 (Iowa 1971)

The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against tres- passers and thieves by a spring gun capable of inflicting death or serious injury.

family. Defendants’ home was several miles from the scene of the incident to which we refer infra.

Plaintiff’s action is for damages result- ing from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken

We are not here concerned with a man’s right to protect his home and members of his

and entered the house to find and steal old bot- tles and dated fruit jars which they considered antiques.

At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community where defendants’ property was “ocated. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and

10,000 punitive damages. After careful consideration of defendants’

motions for judgment notwithstanding the verdict and for new trial, the experienced and capable :rial judge overruled them and entered judg- ment on the verdict. Thus we have this appeal by

efendants.

II Most of the facts are not disputed. In 1957

::efendant Bertha L. Briney inherited her parents’ :arm land in Mahaska and Monroe Counties.

eluded was an 80-acre tract in southwest _.lahaska County where her grandparents and ~ents had lived. No one occupied the house -· ereafter . …

For about 10 years, 1957 to 1967, there – urred a series of trespassing and housebreak- g events with loss of some household items,

– e breaking of windows and “messing up of the :–operty in general.” The latest occurred June 8, _967, prior to the event on July 16, 1967 herein .::·wived.

Defendants through the years boarded up – e windows and doors in an attempt to stop –e intrusions. They had posted “no trespass”

gns on the land several years before 1967. The – earest one was 35 feet from the house. On June

1967 defendants set “a shotgun trap” in the – n h bedroom. After Mr. Briney cleaned and

ed his 20-gauge shotgun, the power of which -= was well aware, defendants took it to the

house where they secured it to an iron bed :h the barrel pointed at the bedroom door.

as rigged with wire from the doorknob to –e gun’s trigger so it would fire when the door

A. Intentional Torts 215 •

was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs. Briney’s suggestion it was lowered to hit the legs. He admitted he did so “because I was mad and tired of being tormented” but “he did not intend to injure anyone.” He gave no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom wjndow. The spring gun could not be seen from the outside. No warning of its pres- ence was posted.

Plaintiff lived with his wife and worked regu- larly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 P.M. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shot- gun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough’s assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospi- tal. He remained in the hospital40 days.

ill Plaintiff testified he knew he had no right

to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testi- fied he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building.

• 216 Chapter 7: Torts

Prosser on Torts, Third Edition, pages 116- 118, states:

if he were present in person would be free to inflict injury of the same kind.”

” … the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify self-defense … spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privi- leged only against those upon whom the landowner,

Restatement of Torts, section 85, page 180, states: A possessor of land cannot do indirectly and by a mechanical device that which, were he pres- ent, he could not do immediately and in person.

Study and careful consideration of defendants’ contentions on appeal reveal no reversible error.

Affirmed.

False imprisonment Occurs whenever one person, through force or the threat of force, unlawfully detains another person against his or her will.

CASE DISCUSSION QUESTIONS

1. Why did the court uphold the jury’s verdict in favor of the plaintiff trespasser?

2. The dissent stated: “When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime.” What do you think?

3. Because the defendants did not raise the issue, this court did not deal directly with whether punitive damages were appropriate. What facts would support such a finding; what facts would argue against such a finding? Do you think punitive damages were appropriate in this case? Why?

4. Should a landowner who sets a trap such as in this case also be found criminally liable if an intruder is seriously injured? Why?

5. Do you think the result in this case would have been different if the house had been occupied? Why?

6. At trial Mr. Briney testified that “[p] rior to this time … he had locke<! the doors, posted seven no trespassing signs on the premises, and complained to the sheriffs of two counties on numerous occasions …. [A]ll these efforts were futile and the vandalism continued.” What else could the defendants have done to protect their property?

b. False Imprisonment

False imprisonment occurs whenever one person, through force or the threat of force, unlawfully detains another person against his or her will. Issues of false imprisonment most frequently arise in situations in which store employ- ees seek to detain suspected shoplifters or employers wish to detain and inter- view employees they suspect of unlawful activities.

(1) The elements of false imprisonment

In order to prove false imprisonment, the plaintiff must show the followin

A. Intentional Torts 217 •

1. an intentional act 2. that caused confinement or restraint 3. through force or the threat of force.

– e plaintiff must actually be confined with no means of escape. For exam- :; e leaving someone alone in an unlocked office does not constitute false -prisonment.

(2) Defenses to false imprisonment

The most common defense to false imprisonment is that the defen~ant was mfied in restraining the plaintiff. For example, many states have enacted stat-

to protect merchants who want to question a suspected shoplifter. Usually, — e statutes provide that a shopkeeper may detain a suspected shoplifter only _ – e shopkeeper can show probable cause to justify the delay and that even – “‘D the shopkeeper may detain the suspected shoplifter only for a reasonable ~e and in a reasonable manner. As you can imagine, because of the way these -ee statutory requirements are worded, each has given rise to a great deal of

SCUSSION QUESTION

1. Many argue that shoplifting is a major cause of increased costs. Do u think shopkeepers should be given more or less leeway in deciding when to

-,…ain suspected shoplifters?

c. Defamation

Whereas the torts of assault and battery involve physical contact, the tort = defamation involves harm to a person’s reputation caused by either oral or _·rten remarks. Oral defamation is known as slander (remember “s” for spo-

‘ and written defamation is known as libel (remember “l” for literary). To be idered defamatory, the material must tend to injure a person’s reputation, old a person up to ridicule, or to excite adverse, derogatory, or unpleasant

=..ings or opinions about that person. Furthermore, the statement must present “‘ defamatory information as being factual rather than merely the opinion of

-“‘speaker. For example, a movie review or editorial is generally viewed as a –ement of opinion rather than fact.

(1) The elements of defamation

Whether it is oral or written, defamation consists of the following elements:

1. publication 2. of false statements 3. that cause harm to reputation.

The first element, publication, means that someone other than the plaintiff ..: the defendant must read or hear the defamatory comments. The offending

Defamation The publication of false statements that harm a person’s reputation.

Slander Spoken defamation.

libel Written defamation.

• 218 Chapter 7: Torts

Defamation per se Remarks considered to be so harmful that they are automatically viewed as defamatory.

material cannot harm someone’s reputation if it is never seen or heard by a third party.

Second, and perhaps most important, the defamatory material must be false. No matter how damaging the information, a tort of defamation has nor been committed if the statement was true. Note, however, that the plaintiff may still be able to recover damages by suing under the theory of invasion of privacy or intentional infliction of emotional distress.

As to the third element, the plaintiff must show that the publication of this false information damaged his or her reputation. This is usually established by showing that the plaintiff lost a job, a contract, or something else of value as a result of people having read or heard the defamatory material. However, his- torically some remarks are considered to be so bad that they are automaticall. viewed as damaging and thus constitute defamation per se. Examples of such remarks include the following:

1. that someone has a loathsome communicable disease; 2. that someone committed business improprieties; 3. that someone has been imprisoned for a serious crime; and 4. that an unmarried woman is unchaste.

When dealing with comments that are defamatory per se, the plaintiff does n need to prove the statements caused him or her harm, as it is presumed they did so

(2) Constitutional issues in defamation: The special case of public officials and public figures

As a result of the First Amendment’s protection of freedom of speech an.:: freedom of the press, the right to sue for defamation requires a balancing of the right to preserve one’s reputation with the public’s interest in maintaining a”&.– marketplace” of ideas.

In 1964, the U.S. Supreme Court addressed this dilemma in New Yor Times Co. v. Sullivan.2 An Alabama court had awarded libel damages to a loca law enforcement official who had been criticized in an advertisement in the Ne1.. York Times. The Court stated: “The constitutional guarantees require, we th in} a federal rule that prohibits a public official from recovering damages for – defamatory falsehood relating to his official conduct unless he proves that w..~ statement was made with ‘actual malice’ -that is, with knowledge that it was false or .with reckless disregard of whether it was false or not.”3 In 1974, LL.- Court extended this protection to criticism of “public figures” as well as gove~­ ment officials.4

What this means in practical terms is that when the plaintiff is a pubt.:: official or public figure, the plaintiff must prove a fourth element, actual mali””‘ in addition to the three elements that everyone else has to also prove-that (1) publication (2) of false statements (3) that cause harm to reputation. Wh:..,_

2376 u.s. 254 (1964). 3ld. at 279-280. 4Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974 ).

A. Intentional Torts

lear that this fourth requirement comes into play only if the plaintiff is a _.._ ·c official or a public figure, it is less clear whether the defendant must also _ .:r member of the media.

First, to qualify as a public figure, a person must either have achieved wide- =ad fame or notoriety or be someone who became well known through involve- . in a public controversy. Second, as noted above, to prove actual malice, the Malice

219 •

riff must show that the defendant either knew the material was false but went Making a defamatory and published it anyway or acted with a “reckless disregard” for whether remark either knowing it was true. This can involve an examination of the editors as to what they the material was false or and when they knew it in reaching their decision to publish the material. acting with a “reckless

–~ -ourts take into consideration such factors as the nature of the new~ being disregard” for whether _ rted, the historical trustworthiness of the source of the information, and the or not it was true. : constraints publishers are under to meet a deadline.

A prominent California case involving television personality Carol Burnett ;:rates how these principles have been applied. In Burnett v. National _ irer, Inc., 5 Burnett sued the National Enquirer for publishing a four-sen- -~ item that read:

– a Washington restaurant, a boisterous Carol Burnett had a loud argument with -mher diner, Henry Kissinger. Then she traipsed around the place offering everyone a

of her dessert. But Carol really raised eyebrows when she accidentally knocked a :- = s of wine over one diner and started giggling instead of apologizing. The guy wasn’t -used and “accidentally” spilled a glass of water over Carol’s dress.6

.-\s a preliminary matter the court determined that the National Enquirer :…id be viewed as a magazine rather than a newspaper. In defamation cases,

_-:s show more leniency toward newspapers because their short deadlines _ ent them from having enough time to fully investigate their stories. The :uirer’s normal lead time, however, was one to three weeks, during which = staff could verify the accuracy of its stories.

ext the court determined that the story was patently false and that the -uirer knew that to be so: “There was no ‘row’ with Mr. Kissinger, nor any

=:::ment between the two, and what conversation they had was not loud or -erous.” Respondent never “traipsed around the place offering everyone a = of her dessert, nor was she otherwise boisterous, nor did she spill wine on one.” 7 Further, the court held that the statement was libelous on its face, “a – ge which reasonably carried the implication respondent’s actions were the r of some objectionable state of inebriation.” 8

The jury awarded Ms. Burnett $300,000 in compensatory damages and – million in punitive damages. The trial court reduced this to $50,000 ~pensatory damages and $750,000 punitive damages. On appeal the court

· ed the compensatory award but remanded the case for a retrial on the ~ of punitive damages, stating that the amount of the punitive damages was

– Cal. App. 3d 991 (1983) . …:997. ::.:999. — 1013.

• 220 Chapter 7: Torts

disproportionate when compared to the compensatory award. The dissent dis- agreed, stating:

The fact is that this is a publication read nationally by 16 million people. The potential for harm through a repetition of a libel by such an institution is tremendous. There are others to be protected from the harm. If the risk to an intentional wrongdoer that he will be adequately punished is slight, the defendant may well chance it again. It can in effect “write it off” as an expense or cost of doing business. Thus punitive damages need to be more than “an expense” item or “cost of doing business” which the defendant can calculate and absorb …. 9

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