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BUS205 Study Guide

Unit 3: Torts

3a. define tort and terms related to torts, generally

  • What is a tort?
  • What is respondeat superior?
  • What are the bases for imposing tort liability?
  • What is the tort doctrine of strict liability?
  • What are the two categories of damages are awarded for tort liability?

A tort is a civil wrong other than a breach of contract. It results when a party's action or inaction causes harm or injury to another. A party who commits a tort is called a tortfeasor. Note that under the doctrine of respondeat superior, an employer is held liable for employee conduct, unless it can demonstrate the employee was on a frolic and detour at the time he or she committed the tort. Courts typically grant monetary damages for tort infractions. Compensatory damages provide for monetary award that reflects the actual value of the loss, harm, or injury suffered. Punitive damages are awarded are those awarded above and beyond compensatory damages. They are intended to punish a party for egregious conduct. Punitive damages seek to deter the party from engaging in egregious conduct in the future.

There are 3 types of torts: intentional tort, negligence, and strict liability. An intentional tort occurs when a tortfeasor acts with intent to cause the damage or harm that results from his or her action. Negligence occurs when a tortfeasor is held liable for an unintentional act because he or she has failed to act in a way a reasonable person would have acted. Negligence per se occurs when a party violates a statute or ordinance and that violation causes injury to another. For example, State A's statute imposes a criminal fine on landlords who fail to maintain safe premises. If a landlord fails to maintain his or her apartment building's roof, and a tenant is injured by falling debris, the landlord has committed negligence per se. Strict liability is imposed under tort law without regard to how careful or careless a tortfeasor may have been. For example, many states have enacted dram shop acts. Dram shop acts impose strict liability on bars and other establishments that serve drinks to obviously intoxicated patrons who later cause injuries to third parties.

To review, watch Business Law and read Torts.

 

3b. Identify and discuss the elements of the tort of negligence

  • What are the elements of the tort of negligence?

Negligence

There are 4 basic elements of negligence:

  1. Duty: A defendant owes the plaintiff a duty of reasonable care.
  2. Breach: A duty is breached when the defendant fails to behave as a reasonable person would have under the same or similar circumstances.
  3. Causation:
    1. Actual causation: "But for" the defendant's act or omission, the plaintiff would not have been injured.
    2. Proximate causation: The plaintiff's injury was a foreseeable consequence of the defendant's act or omission.
  4. Damages: The plaintiff suffered loss, harm, or injury as a result of the defendant's behavior.

To review, read Negligence.

 

3c. identify and discuss the elements of an intentional tort

  • What is an intentional tort?
  • What are some examples of intentional torts?

An intentional tort requires the intent to cause a wrongful act and that the wrongful act causes injury or harm to another party. The tortfeasor must be substantially certain that his or her conduct would lead to the commission of the wrongful act. The tortfeasor's act must be voluntary.

Examples of Intentional Torts

  • An assault is an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact.
  • A battery is a completed assault. It is any unconsented touching, even if physical injuries aren't present.
  • Intentional infliction of emotional distress results when a party engages in an intentional act that amounts to extreme and outrageous conduct and the intentional act causes another party to suffer emotional distress.
  • Invasion of privacy results when a person's name or likeness is used for commercial purposes without their permission. Invasion of privacy also includes the invasion of a person's physical solitude through such acts as spying or eavesdropping.
  • Misappropriation occurs when a person or company uses someone else's name, likeness, or other identifying characteristics without permission.
  • False imprisonment occurs when someone intentionally confines or restrains another person's movement or activities without justification.
  • Trespass to land occurs whenever someone enters onto, above, or below the surface of land owned by someone else without the owner's permission.
  • Trespass to personal property is the unlawful taking or harming of another's personal property without the owner's permission.
  • Defamation is the act of wrongfully hurting a living person's good reputation.
  • Slander is verbal defamation that is communicated to a third party.
  • Libel is written defamation that is published to a third party.
  • Trade disparagement happens when someone publishes false information about another person's product.
  • Misrepresentation occurs when businesses make false claims about their products in marketing their products to the public.
  • Fraud involves the misrepresentation of facts (not opinions) with the knowledge that they are false or with reckless disregard for the truth.
  • Tortious interference prohibits the intentional interference with a valid and enforceable contract.

To review intentional torts, watch Business Law.

 

3d. Identify which torts are considered strict liability torts

  • What is strict liability?
  • What are some examples of strict liability torts?

The doctrine of strict liability holds a party liable for damages and/or injuries regardless of the amount of care undertaken by the party to prevent harm. Strict liability is imposed on parties engaged in ultrahazardous activities, such as mine blasting or transporting dangerous chemicals. Owning or possessing dangerous animals that harm or injure others can also be a basis for the imposition of strict liability on a party. Under strict product liability law, manufacturers are strictly liable for defective products that are unreasonably dangerous to consumers. Furthermore, manufacturers are obligated to warn consumers about potential hazards associated with their products. Failure to do so will subject a manufacturer to strict product liability.

To review, read section Strict Liability.

 

3e. Determine tort liability by applying elements of negligence to hypothetical scenarios

  • What are the steps for applying elements of negligence to hypothetical scenarios?
  • What are the defenses to tort liability?

Oliver's Snack Shack

Oliver Brown is the owner of Oliver's Snack Shack located in a large sports stadium. Oliver runs the grill. His 2 employees make drinks and ring up customer orders. Despite his best efforts, Oliver is having trouble getting his employees to take sanitation seriously. He has disciplined his employees and even re-trained them about food safety protocol. At half-time, Oliver is so swamped with hungry fans demanding fries and spicy wings that he cannot closely supervise his employees, so he has placed the following reminder on the ice machine:

STOP!!!

WASH YOUR HANDS BEFORE RETRIEVING ICE FROM MACHINE
USE DESIGNATED "ICE ONLY" SCOOPS—Make sure they are clean!
NEVER USE BARE HANDS TO RETRIEVE ICE FROM MACHINE
NEVER STORE SCOOPS OR OTHER OBJECTS INSIDE MACHINE

To Oliver's dismay, several customers have become ill from the Norovirus that has been linked to the Snack Shack's ice machine. Oliver's employees admitted that they used their bare hands and soft drink cups to scoop ice from the machine. The customers are suing Oliver for emergency room visits, lost wages, and for pain and suffering. Oliver is upset about the lawsuit and thinks it is unfair. He thinks he will win the lawsuit because he did his best to supervise his employees.

QUESTION: Will Oliver win his case?

ANSWER: No, Oliver will not win his case. Oliver failed to supervise the employees to ensure that they complied with food safety rules. It is this negligent supervision and Oliver's own failure to maintain a clean ice machine that led to the ice becoming contaminated. It was the contaminated ice that led to customer food poisoning.

Negligence Analysis:

  1. Duty: Was there a duty? Yes, as a food vendor, Oliver owed a duty to his customers to provide food that is safe for consumption and to maintain sanitary conditions.
  2. Breach: Was there a breach? Yes, Oliver breached the duty by failing to adequately supervise employees and by failing to maintain a clean ice machine.
  3. Causation:
    1. Was there actual causation? Yes, "but for" Oliver's inaction (failure to supervise employees and failure to maintain a clean ice machine), the customers would not have caught the Norovirus.
    2. Was there proximate causation? Yes, it is foreseeable that customers would become ill from contaminated ice.
  4. Damages: Were there damages? Yes, the customers suffered damages in the form of hospital bills, lost wages, and pain and suffering.

To review, read section Negligence.

Defenses to Tort Liability

There are several defenses to tort liability. Assumption of risk is one such defense. If the plaintiff knowingly and voluntarily assumes the risk of participating in a dangerous activity, then the defendant is not liable for injuries incurred. Under contributory negligence, a plaintiff's own negligence, no matter how minor, bars the plaintiff from any recovery. In states that follow pure comparative negligence, a plaintiff's recovery will be reduced in proportion to her or her degree of fault. Even if the plaintiff is found to be at greater fault than the defendant, plaintiff will still be allowed to recover damages. In states that follow modified comparative negligence, a plaintiff will not recover any damages, if the plaintiff is more than 50% at fault.

 

Unit 3 Vocabulary

This vocabulary list includes terms that might help you with the review items above and some terms you should be familiar with to be successful in completing the final exam for the course.

Try to think of the reason why each term is included.

  • tort
  • negligence per se
  • respondeat superior
  • intentional tort
  • negligence
  • negligence per se
  • strict liability
  • dram shop acts
  • duty
  • breach of duty
  • actual causation
  • proximate causation
  • compensatory damages
  • punitive damages
  • assault
  • battery
  • intentional infliction of emotional distress
  • invasion of privacy
  • misappropriation
  • false imprisonment
  • trespass to land
  • trespass to personal property
  • defamation
  • slander
  • libel
  • trade disparagement
  • misrepresentation
  • fraud
  • tortious interference
  • strict liability
  • assumption of risk
  • contributory negligence
  • pure comparative negligence
  • modified comparative negligence