Definition of Tort

Tort comes from a French word that means wrong. Thus, conduct that is wrongful falls under the legal classification of torts. Businesses frequently deal with wrongful acts, whether it was their own conduct toward clients, other businesses, or problems with its own products. Business people must be aware of how their own conduct, or the conduct of their employees, can create liability.

However, not all wrongs result in liability. Injuring a client's pride, for example, would not result in tort damages against you (though it could do substantial harm through other means involving negative publicity).

Torts is primarily concerned with economic harm, whether it results from a customer slipping and falling in your store (insuring substantial medical bills), defamation that results in monetary loss, or environmental disasters. You will notice that many torts are also crimes. As mentioned in the criminal law reading assignment, these dual offenses can be prosecuted criminally by the state, but the individual injured can also bring a civil lawsuit relying on tort law for redress. The criminal suit will seek to redress the harms to society while the tort action exists to make the injured party whole. 

There are three different kinds of torts: intentional torts, negligent torts, and strict liability. In this class, we'll focus on the first two. Intentional torts involve wrongful acts that were, well, intentional. Negligence, on the other hand, involves wrongful acts that were careless. With strict liability torts, the defendant may not have been careless or intended to harm, but because harm resulted, society has determined that it is best to require the defendant to make the injured party whole. 

Intentional Torts

Intentional torts closely resemble crimes discussed earlier this week. 

Assault and Battery

Both criminal and tort law attempt to protect society from physical harm. Assault consists of:

1. the threat of immediate harmful or offensive contact, or
2. any act that would arouse reasonable apprehension of imminent harmful or offensive contact.

Thus, if you have finally had enough of the local mall kiosk salesperson hassling you about buying their lotion, you may decide to take a swing at one of them (but you probably should work on your anger management instead). If you take a swing, but don't make contact with the salesperson, you have committed assault. 

Battery is unauthorized and harmful or offensive physical contact with another person (or something closely associated with him or her) that causes some form of injury. Almost any intentional and unwanted contact constitutes battery. Even touching that is physically harmless would be a battery if it is unwanted. Of course, unintentional contact would not be considered battery because battery is an intentional tort, thus requiring that the defendant intended to perform the act that results in the battery. 

Let's go back to our example of attempting to hit a kiosk salesperson. However, in this scenario, you actually hit the person attempting to sell you lotion. Obviously, you have committed both assault and battery. But what if you meant to hit the salesperson, but instead miss and hit another shopper passing by? In that case, you likely committed assault against the salesperson, and assault and battery against the fellow shopper you actually hit. You may claim that you did not intend to hit the other shopper, but under the doctrine of transferred intent, the law transfers your intent to hit one person to the actual victim. 

There are a limited number of defenses to these intentional torts. Consent would be one of them. If you get in a boxing ring, you have consented to getting hit because it's the nature of the sport. Another defense is that of self-defense. You are permitted to respond to the force of another with comparable force to defend yourself. So if someone takes a swing at you, and you push him or her backwards, you are not liable for battery. However, if someone takes a swing at you and you respond by shooting the attacker, you may have difficulty arguing that your response was appropriate to the threat you faced. 

Defamation

Defamation is the intentional publication (communication to a third party) of a false statement that harms the reputation or character of an individual, business, or product. Defamation consists of statements of fact, rather than statements of opinion. For the act to be defamatory, it must be shown that the statement was made so that others could hear or read it. Thus, if a former employer writes a letter that wrongfully accuses you of terrible crimes, it is not defamatory unless it was sent to someone else.

The statement must reference a particular person, though the person need not be named. Saying that the "new accounting professor is a crook," is sufficient to identify that person and therefore constitutes defamation. But saying "all accountants are crooks," is not sufficient to constitute defamation because making such claims against all 1.3 million accountants in the U.S. is not specific enough for any one of them to claim damages.

A common defense to a charge of defamation is that the statement is true. If the statement is true, the statement doesn't injure the person's character; rather, that person has injured his or own character. Also, statements made during court proceedings are privileged and therefore cannot serve as the basis of a defamation claim. 

From the definition above, you may think that you can avoid defamatory statements by crouching all your statements as opinions. This is not always the case. For example, I could say, "Brother Walsh was a crooked accountant when he stole all that money from his clients...but that's just my opinion."  This statement is still damaging, and given my position as a teacher and attorney, the statement carries extra weight, thus likely subjecting me to liability for defamation.

Also note that I do not have to intend to defame someone. I simply must have intended to say the defamatory statement. 

Invasion of Privacy

This relatively new right protects our reasonable expectation of privacy. One of the earliest privacy rights involves the appropriation of name or likeness for commercial gain. Under this law, it is wrongful to use the name or image of another person for advertising purposes or for the purpose of trade (business) unless permission is given. Thus, a mall kiosk sales company cannot use Samuel L. Jackson's picture to sell their bath bombs. However, a newspaper can use Mr. Jackson's image on the cover in order to discuss the latest entertainment news.

Public disclosure of private facts occurs when someone publishes an embarrassing fact about another that a reasonable person would find highly offensive. This is closely related to intrusion on an individual's seclusion, which occurs when someone invades a person's solitude, seclusion, or personal affairs when the person has the right to expect privacy. 

Intentional Infliction of Emotional Distress

Intentional infliction of emotion occurs when someone engages in outrageous conduct that is likely to cause extreme distress to another party. The person bringing this claim must show that the distress was severe and resulted in some physical manifestation. Some courts have found that the distress must be so severe that no reasonable man or woman could be expected to endure it. 

Nuisance

Nuisance is an unlawful interference with the enjoyment of life or property. The law gives everyone the right to enjoy his or her land without unreasonable interference from others. Creating a nuisance, therefore, doesn't deprive someone of their property. Rather, they detract from the regular use or enjoyment of it. Thus, if your neighbor's dog barks constantly at your home, you may prevail in a nuisance claim. However, note that the law recognizes that living in cities and towns brings with it the risk that dogs will bark, or kids will scream, or neighbors will have parties. Therefore, the nuisance must be unreasonable. 

Intentional Interference with Contractual Relations

To prevail on this claim, the plaintiff must show that the plaintiff had a contract with a third party, that the defendant knew about the contract, that the defendant improperly encouraged the third party to breach the contract, and that there was an injury to the plaintiff. 

Now, because we live in a capitalistic society, this tort does not bar businesses from offering a better deal to a party already in or looking for alternative business opportunities. However, if a party uses illegal means to cause another party to breach, this action may violate the tort of intentional interference. A common situation involving this claim includes businesses luring away employees from a competitor. Of course, businesses can recruit employees that are already working, but to constitute the tort of intentional interference, the business must take "improper or illegal" methods in the recruitment. This could involve fraud or deceit, unethical conduct, illegal statements, or any actions that fall far outside the typical business competition. 

Fraudulent Misrepresentation

This tort occurs when a party uses intentional deceit  to facilitate personal or business gain. To win, a party must show all of the following:

1. A party knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions.
2. The party intended that the other parties rely on the misrepresentation.
3. The injured party reasonably relied on the misrepresentations.
4. The injured party suffered damages because it relied on the misrepresentations.
5. A direct correlation exists between the injury and the reliance on the misrepresentations.

Negligence

Many harms are not intentionally caused. Therefore, the law recognizes that some should receive recompense for injury resulting from the careless acts of others. This is where the law of negligence will assist injured parties. The tort of negligence has four elements:

1. That the defendant had a duty of care,
2. The defendant breached that duty of care,
3. Connection between the breach of the duty and the injury, and
4. Actual damages or loss.

Duty of Care

We should begin our study of negligence with an understanding of the general duty of care. The plaintiff must first show that the defendant owes a duty to the plaintiff. In some cases, the law makes clear that certain parties have duties to others (i.e., parents have a duty to keep their children safe). But in most cases, the courts will use the reasonable person standard to determine what duty the defendant has toward the plaintiff. The "reasonable person" standard is a legal measurement of the way members of society expect others to act in a given situation. The judge or jury will determine how the defendant should have acted in a specific situation and find the defendant liable if he or she fell below that standard of care. 

Courts generally hold that businesses have a duty of care to warn customers against risks that they may encounter on the business premises. Some risks, however, are obvious, so the business is not required to warn of these risks. For example, a business need not warn customers about the risk of electric shock if they stick a fork in an outlet. However, other risks, like wet floors, are not easily seen. Thus, the business must warn its customers, usually in the form of a yellow "wet floor" sign. Why? Because a reasonable person working in the store would know that it is important to warn customers of these risks.

Professionals have more training than ordinary people. Therefore, when professionals are serving in their professional capacity, courts will hold them to a higher standard than the "reasonable person" standard discussed above. Therefore a doctor cannot defend against medical malpractice by saying that a reasonable ordinary person may have left the sponge in the plaintiff's chest cavity. Rather, we hold that doctor to a higher standard. We hold that doctor to the standard of the average reasonable doctor. Using that higher standard, the doctor would be found liable for negligence for leaving medical instruments in the body of a surgery patient. These are considered malpractice cases, typically involving doctors, attorneys, or accountants.

Breach

Turning our attention to the second element of negligence, we must determine whether or not a breach of the duty has occurred. For example, a driver on the road has a duty to obey traffic signals. If the driver ignores a red light and causes a car crash, the driver has breached the duty of safe driving. 

Causation

Causation is the third element of a negligence claim. It has two elements. It requires both actual cause as well as proximate cause. Actual cause means that the defendant's breach directly resulted in the plaintiff's injury. Ask yourself whether the injury would have occurred without the defendant's actions. If it would have, there is no actual causation. Proximate cause is also required. Proximate cause requires the plaintiff and the plaintiff's damages to have been foreseeable at the time of the accident or breach. Thus, if the defendant could not reasonably foresee the damages that the plaintiff suffered as a result of the breach, the plaintiff will not win the negligence lawsuit. 

Damages

Damages are the final requirement. The plaintiff must have been injured as a result of the defendant's actions. Remember that the purpose of tort law is to compensate plaintiffs that were injured. If the driver in the example above runs the red light, but no one is injured or even driving through the intersection, there are no tort damages because no one was injured (though that person could still receive a traffic ticket for breaking the law).