Chapter 06 - Intentional Torts

CHAPTER 6 INTENTIONAL TORTS

LEARNING HINTS

1. Most defamation cases today arise in an employment context. Give some examples of an employment situation that might lead to an action for defamation.

2. There has been an explosion of invasion of privacy cases as a result of the internet. Courts are continuing to struggle to balance individual rights of privacy with freedom of speech over the internet. For example, some recent laws and cases address such issues as prohibiting obscenity on the internet and requiring mandatory filters to prevent children from accessing certain sites.

3. In addressing defamation actions, courts draw a distinction between public officials and public figures, and private figure plaintiffs who claim they were defamed. Why do courts draw that distinction? What is required to prove “actual malice,” in order for a public official or public figure to recover on a defamation action?

4. Although federal environmental laws like the Clean Air Act and Superfund provide penalties for polluting the environment, individuals still rely on the common law theories of trespass and nuisance to recover damages for personal injury and property damage in such cases.

5. A tort is a civil wrong that is not a breach of contract. Distinguish tort law from criminal law. What is the standard of proof in tort cases compared to the standard of proof in criminal cases?

6. The four types of “wrongfulness” or “fault” to establish tort liability are intentional tort, recklessness, negligence and strict liability. Describe and contrast each.

7. A successful plaintiff in a tort case usually recovers compensatory damages and could also recover punitive damages. In what circumstances are punitive damages awarded? What are the primary goals of punitive damages? How might punitive damages be calculated?

8. Describe the elements required to prove battery and assault in a tort context.

9. Describe the elements of intentional infliction of emotional distress. Why for years did courts refuse to allow recovery for purely emotional injuries? What has changed to allow courts now to recognize the tort?

CHAPTER OUTLINE AND KEY CONCEPTS

Learning Objectives

II. Introduction

A.Definition of tort

B.Four types of tort wrongfulness:

Intentional tort
Recklessness
Negligence
Strict Liability

C. Victims of torts can recover compensatory damages and, sometimes, punitive damages

2003)

III. Interference with Personal Rights

A. Battery

1. How does the law define battery?

2. What is the intent requirement to prove a battery?

3. What is transferred intent?

3. Example: Howard v. Wilson, 2011 Miss. LEXIS 269 (Miss. Sup. Ct. 2011)

B. Assault

1. How does the law define assault?

2. What is the intent requirement to prove an assault?

3. Apprehension is a key element.

C. Intentional Infliction of Emotional Distress

1. What requirements does the Restatement of Torts suggest a plaintiff must prove to establishIntentional Infliction of Emotional Distress? What is the Restatement of Torts, and is it binding on courts?

2. Example: Durham v. McDonald’s Restaurants of Oklahoma, Inc., 2011 Okla. LEXIS 47 (Okla. Sup. Ct. 2011)

3. Can outrageous speech create emotional distress? Or does the First Amendment inhibit or prohibit recovery for the claimed emotional distress?

D. False Imprisonment

1. How does the law define false imprisonment?

2. Example: Pope v. Rostraver Shop and Save, 2008 U.S. Dist. LEXIS 31690 (W.D. Pa. 2008)

E. Defamation- The tort of defamation protects the individual’s interest in his reputation.

1. How does the law define defamation? Example: Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005)

2. The Libel-Slander Distinction

a.Why does this distinction matter?

b.Distinguish special damages from presumed damages and describe when each is required to be proven by the plaintiff.

c.Define slander per se.

3. False and Defamatory Statement

4. "Of and Concerning" the Plaintiff

5. Publication

6. Defenses and Privileges

a.Absolute privilege

b.Conditional (or qualified) privileges: Example: Calor v. Ashland Hospital Corp., 2010 Ky. LEXIS 220 (Kentucky Sup. Ct. 2010)

7. Defamation and the Constitution

a.Public official plaintiff cases

1. Actual malice requirement

b.Public figure plaintiff cases

1. Actual malice also required

c.Example: Kipper v. NYP Holdings Co., 912 N.E.2d 26 (N.Y. App. 2009)

d.Private figure plaintiff cases

e.The Media-Nonmedia Issue (or Nonissue?)

F. Invasion of Privacy – There are four distinct torts (What must the plaintiff prove in each tort case?):

1. Intrusion on solitude or seclusion

a. Example: Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Sup. Ct. Cal. 2009) (Ethics in Action)

2. Public disclosure of private facts

3. False light publicity

4. Commercial appropriation of name or likeness

a.Example: C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P. 505 F.3d 818 (8th Cir. 2007)

b. Example: Love v. Associated Newspapers, Ltd., 611 F.3d 601 (9th Cir. 2010) (The Global Business Environment)

G. Misuse of Legal Proceedings (What elements of each must a plaintiff prove to recover damages?)

1.Malicious prosecution

2.Wrongful use of civil proceedings

3.Abuse of process

H. Deceit (Fraud)

1.Tort claim available to victims of knowing misrepresentations.

2.What must the plaintiff prove to recover?

IV. Interference with Property Rights

A. Trespass to land

B. Private nuisance

1.Example: Stephens v. Pillen, 681 N.W. 2d 59 (Neb. App. 2004)

C. Conversion

1. Distinguish the tort of trespass to personal property

2. Example: Intel Corp. v. Hamidi, 71 P.3d 296 (Sup. Ct. Cal. 2003) (Cyberlaw in Action)

V. Other Examples of Tort Liability

Injurious falsehood (business defamation)
Intentional interference with contractual relations
Interference with prospective advantage

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