{"id":70,"date":"2014-09-17T00:42:06","date_gmt":"2014-09-17T00:42:06","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=70"},"modified":"2015-04-20T22:13:57","modified_gmt":"2015-04-20T22:13:57","slug":"7-2-intentional-torts","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/7-2-intentional-torts\/","title":{"raw":"Intentional Torts","rendered":"Intentional Torts"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n\t<li>Distinguish intentional torts from other kinds of torts.<\/li>\r\n\t<li>Give three examples of an intentional tort\u2014one that causes injury to a person, one that causes injury to property, and one that causes injury to a reputation.<\/li>\r\n<\/ul>\r\n<\/div>\r\nThe analysis of most intentional torts is straightforward and parallels the substantive crimes already discussed in Chapter 6 \"Criminal Law\". When physical injury or damage to property is caused, there is rarely debate over liability if the plaintiff deliberately undertook to produce the harm. Certain other intentional torts are worth noting for their relevance to business.\r\n<div id=\"mayer_1.0-ch07_s02_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Assault and Battery<\/h2>\r\nOne of the most obvious intentional torts is assault and battery. Both criminal law and tort law serve to restrain individuals from using physical force on others. Assault is (1) the threat of immediate harm or offense of contact or (2) any act that would arouse reasonable apprehension of imminent harm. Battery is unauthorized and harmful or offensive physical contact with another person that causes injury.\r\n\r\nOften an assault results in battery, but not always. In <em class=\"im_emphasis\">Western Union Telegraph Co. v. Hill<\/em>, for example, the defendant did not touch the plaintiff\u2019s wife, but the case presented an issue of possible assault even without an actual battery; the defendant employee attempted to kiss a customer across the countertop, couldn't quite reach her, but nonetheless created actionable fear (or, as the court put it, \u201capprehension\u201d) on the part of the plaintiff's wife. It is also possible to have a battery without an assault. For example, if someone hits you on the back of the head with an iron skillet and you didn\u2019t see it coming, there is a battery but no assault. Likewise, if Andrea passes out from drinking too much at the fraternity party and a stranger (Andre) kisses her on the lips while she is passed out, she would not be aware of any threat of offensive contact and would have no apprehension of any harm. Thus there has been no tort of assault, but she could allege the tort of battery. (The question of what damages, if any, would be an interesting argument.)\r\n\r\nUnder the doctrine of transferred intent, if Draco aims his wand at Harry but Harry ducks just in time and the impact is felt by Hermione instead, English law (and American law) would transfer Draco\u2019s intent from the target to the actual victim of the act. Thus Hermione could sue Draco for battery for any damages she had suffered.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">False Imprisonment<\/h2>\r\nThe tort of false imprisonment originally implied a locking up, as in a prison, but today it can occur if a person is restrained in a room or a car or even if his or her movements are restricted while walking down the street. People have a right to be free to go as they please, and anyone who without cause deprives another of personal freedom has committed a tort. Damages are allowed for time lost, discomfort and resulting ill health, mental suffering, humiliation, loss of reputation or business, and expenses such as attorneys\u2019 fees incurred as a result of the restraint (such as a false arrest). But as the case of <em class=\"im_emphasis\">Lester v. Albers Super Markets, Inc<\/em>. (Section 7.5 \"Cases\") shows, the defendant must be shown to have restrained the plaintiff in order for damages to be allowed.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Intentional Infliction of Emotional Distress<\/h2>\r\nUntil recently, the common-law rule was that there could be no recovery for acts, even though intentionally undertaken, that caused purely mental or emotional distress. For a case to go to the jury, the courts required that the mental distress result from some physical injury. In recent years, many courts have overthrown the older rule and now recognize the so-called new tort. In an employment context, however, it is rare to find a case where a plaintiff is able to recover. The most difficult hurdle is proving that the conduct was \u201cextreme\u201d or \u201coutrageous.\u201d\r\n\r\nIn an early California case, bill collectors came to the debtor\u2019s home repeatedly and threatened the debtor\u2019s pregnant wife. Among other things, they claimed that the wife would have to deliver her child in prison. The wife miscarried and had emotional and physical complications. The court found that the behavior of the collection company\u2019s two agents was sufficiently outrageous to prove the tort of intentional infliction of emotional distress. In <em class=\"im_emphasis\">Roche v. Stern<\/em> (New York), the famous cable television talk show host Howard Stern had tastelessly discussed the remains of Deborah Roche, a topless dancer and cable access television host.<span id=\"mayer_1.0-fn07_001\" class=\"im_footnote\"><em class=\"im_emphasis\">Roche v. Stern<\/em>, 675 N.Y.S.2d 133 (1998).<\/span> The remains had been brought to Stern\u2019s show by a close friend of Roche, Chaunce Hayden, and a number of crude comments by Stern and Hayden about the remains were videotaped and broadcast on a national cable television station. Roche\u2019s sister and brother sued Howard Stern and Infinity broadcasting and were able to get past the defendant\u2019s motion to dismiss to have a jury consider their claim.\r\n\r\nA plaintiff\u2019s burden in these cases is to show that the mental distress is severe. Many states require that this distress must result in physical symptoms such as nausea, headaches, ulcers, or, as in the case of the pregnant wife, a miscarriage. Other states have not required physical symptoms, finding that shame, embarrassment, fear, and anger constitute severe mental distress.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s04\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Trespass and Nuisance<\/h2>\r\nTrespass is intentionally going on land that belongs to someone else or putting something on someone else\u2019s property and refusing to remove it. This part of tort law shows how strongly the law values the rights of property owners. The right to enjoy your property without interference from others is also found in common law of nuisance. There are limits to property owners\u2019 rights, however. In <em class=\"im_emphasis\">Katko v. Briney<\/em>, for example, the plaintiff was injured by a spring gun while trespassing on the defendant\u2019s property.<span id=\"mayer_1.0-fn07_002\" class=\"im_footnote\"><em class=\"im_emphasis\">Katko v. Briney<\/em>, 183 N.W.2d 657 (Iowa 1971).<\/span> The defendant had set up No Trespassing signs after ten years of trespassing and housebreaking events, with the loss of some household items. Windows had been broken, and there was \u201cmessing up of the property in general.\u201d The defendants had boarded up the windows and doors in order to stop the intrusions and finally had set up a shotgun trap in the north bedroom of the house. One defendant had cleaned and oiled his 20-gauge shotgun and taken it to the old house where it was secured to an iron bed with the barrel pointed at the bedroom door. \u201cIt was rigged with wire from the doorknob to the gun\u2019s trigger so would fire when the door was opened.\u201d The angle of the shotgun was adjusted to hit an intruder in the legs. The spring could not be seen from the outside, and no warning of its presence was posted.\r\n\r\nThe plaintiff, Katko, had been hunting in the area for several years and considered the property abandoned. He knew it had long been uninhabited. He and a friend had been to the house and found several old bottles and fruit jars that they took and added to their collection of antiques. When they made a second trip to the property, they entered by removing a board from a porch window. When the plaintiff opened the north bedroom door, the shotgun went off and struck him in the right leg above the ankle bone. Much of his leg was blown away. While Katko knew he had no right to break and enter the house with intent to steal bottles and fruit jars, the court held that a property owner could not protect an unoccupied boarded-up farmhouse by using a spring gun capable of inflicting death or serious injury.\r\n\r\nIn <em class=\"im_emphasis\">Katko<\/em>, there is an intentional tort. But what if someone trespassing is injured by the negligence of the landowner? States have differing rules about trespass and negligence. In some states, a trespasser is only protected against the gross negligence of the landowner. In other states, trespassers may be owed the duty of due care on the part of the landowner. The burglar who falls into a drained swimming pool, for example, may have a case against the homeowner unless the courts or legislature of that state have made it clear that trespassers are owed the limited duty to avoid gross negligence. Or a very small child may wander off his own property and fall into a gravel pit on a nearby property and suffer death or serious injury; if the pit should (in the exercise of due care) have been filled in or some barrier erected around it, then there was negligence. But if the state law holds that the duty to trespassers is only to avoid gross negligence, the child\u2019s family would lose, unless the state law makes an exception for very young trespassers. In general, guests, licensees, and invitees are owed a duty of due care; a trespasser may not be owed such a duty, but states have different rules on this.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s05\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Intentional Interference with Contractual Relations<\/h2>\r\nTortious interference with a contract can be established by proving four elements:\r\n<ol id=\"mayer_1.0-ch07_s02_s05_l01\" class=\"im_orderedlist im_editable im_block\">\r\n\t<li>There was a contract between the plaintiff and a third party.<\/li>\r\n\t<li>The defendant knew of the contract.<\/li>\r\n\t<li>The defendant improperly induced the third party to breach the contract or made performance of the contract impossible.<\/li>\r\n\t<li>There was injury to the plaintiff.<\/li>\r\n<\/ol>\r\nIn a famous case of contract interference, Texaco was sued by Pennzoil for interfering with an agreement that Pennzoil had with Getty Oil. After complicated negotiations between Pennzoil and Getty, a takeover share price was struck, a memorandum of understanding was signed, and a press release announced the agreement in principle between Pennzoil and Getty. Texaco\u2019s lawyers, however, believed that Getty oil was \u201cstill in play,\u201d and before the lawyers for Pennzoil and Getty could complete the paperwork for their agreement, Texaco announced it was offering Getty shareholders an additional $12.50 per share over what Pennzoil had offered.\r\n\r\nTexaco later increased its offer to $228 per share, and the Getty board of directors soon began dealing with Texaco instead of Pennzoil. Pennzoil decided to sue in Texas state court for tortious interference with a contract. After a long trial, the jury returned an enormous verdict against Texaco: $7.53 billion in actual damages and $3 billion in punitive damages. The verdict was so large that it would have bankrupted Texaco. Appeals from the verdict centered on an obscure rule of the Securities and Exchange Commission (SEC), Rule 10(b)-13, and Texaco\u2019s argument was based on that rule and the fact that the contract had not been completed. If there was no contract, Texaco could not have legally interfered with one. After the SEC filed a brief that supported Texaco\u2019s interpretation of the law, Texaco agreed to pay $3 billion to Pennzoil to dismiss its claim of tortious interference with a contract.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s06\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Malicious Prosecution<\/h2>\r\nMalicious prosecution is the tort of causing someone to be prosecuted for a criminal act, knowing that there was no probable cause to believe that the plaintiff committed the crime. The plaintiff must show that the defendant acted with malice or with some purpose other than bringing the guilty to justice. A mere complaint to the authorities is insufficient to establish the tort, but any official proceeding will support the claim\u2014for example, a warrant for the plaintiff\u2019s arrest. The criminal proceeding must terminate in the plaintiff\u2019s favor in order for his suit to be sustained.\r\n\r\nA majority of US courts, though by no means all, permit a suit for wrongful civil proceedings. Civil litigation is usually costly and burdensome, and one who forces another to defend himself against baseless accusations should not be permitted to saddle the one he sues with the costs of defense. However, because, as a matter of public policy, litigation is favored as the means by which legal rights can be vindicated\u2014indeed, the Supreme Court has even ruled that individuals have a constitutional right to litigate\u2014the plaintiff must meet a heavy burden in proving his case. The mere dismissal of the original lawsuit against the plaintiff is not sufficient proof that the suit was unwarranted. The plaintiff in a suit for wrongful civil proceedings must show that the defendant (who was the plaintiff in the original suit) filed the action for an improper purpose and had no reasonable belief that his cause was legally or factually well grounded.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s07\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Defamation<\/h2>\r\nDefamation is injury to a person\u2019s good name or reputation. In general, if the harm is done through the spoken word\u2014one person to another, by telephone, by radio, or on television\u2014it is called slander. If the defamatory statement is published in written form, it is called libel.\r\n\r\nThe Restatement (Second) of Torts defines a defamatory communication as one that \u201cso tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.\u201d<span id=\"mayer_1.0-fn07_003\" class=\"im_footnote\">Restatement (Second) of Torts, Section 559 (1965).<\/span>\r\n\r\nA statement is not defamatory unless it is false. Truth is an absolute defense to a charge of libel or slander. Moreover, the statement must be \u201cpublished\u201d\u2014that is, communicated to a third person. You cannot be libeled by one who sends you a letter full of false accusations and scurrilous statements about you unless a third person opens it first (your roommate, perhaps). Any living person is capable of being defamed, but the dead are not. Corporations, partnerships, and other forms of associations can also be defamed, if the statements tend to injure their ability to do business or to garner contributions.\r\n\r\nThe statement must have reference to a particular person, but he or she need not be identified by name. A statement that \u201cthe company president is a crook\u201d is defamatory, as is a statement that \u201cthe major network weathermen are imposters.\u201d The company president and the network weathermen could show that the words were aimed at them. But statements about large groups will not support an action for defamation (e.g., \u201call doctors are butchers\u201d is not defamatory of any particular doctor).\r\n\r\nThe law of defamation is largely built on strict liability. That a person did not intend to defame is ordinarily no excuse; a typographical error that converts a true statement into a false one in a newspaper, magazine, or corporate brochure can be sufficient to make out a case of libel. Even the exercise of due care is usually no excuse if the statement is in fact communicated. Repeating a libel is itself a libel; a libel cannot be justified by showing that you were quoting someone else. Though a plaintiff may be able to prove that a statement was defamatory, he is not necessarily entitled to an award of damages. That is because the law contains a number of privileges that excuse the defamation.\r\n\r\nPublishing false information about another business\u2019s product constitutes the tort of slander of quality, or trade libel. In some states, this is known as the tort of product disparagement. It may be difficult to establish damages, however. A plaintiff must prove that actual damages proximately resulted from the slander of quality and must show the extent of the economic harm as well.\r\n<div id=\"mayer_1.0-ch07_s02_s07_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Absolute Privilege<\/h2>\r\nStatements made during the course of judicial proceedings are absolutely privileged, meaning that they cannot serve as the basis for a defamation suit. Accurate accounts of judicial or other proceedings are absolutely privileged; a newspaper, for example, may pass on the slanderous comments of a judge in court. \u201cJudicial\u201d is broadly construed to include most proceedings of administrative bodies of the government. The Constitution exempts members of Congress from suits for libel or slander for any statements made in connection with legislative business. The courts have constructed a similar privilege for many executive branch officials.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s07_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Qualified Privilege<\/h2>\r\nAbsolute privileges pertain to those in the public sector. A narrower privilege exists for private citizens. In general, a statement that would otherwise be actionable is held to be justified if made in a reasonable manner and for a reasonable purpose. Thus you may warn a friend to beware of dealing with a third person, and if you had reason to believe that what you said was true, you are privileged to issue the warning, even though false. Likewise, an employee may warn an employer about the conduct or character of a fellow or prospective employee, and a parent may complain to a school board about the competence or conduct of a child\u2019s teacher. There is a line to be drawn, however, and a defendant with nothing but an idle interest in the matter (an \u201cofficious intermeddler\u201d) must take the risk that his information is wrong.\r\n\r\nIn 1964, the Supreme Court handed down its historic decision in <em class=\"im_emphasis\">New York Times v. Sullivan<\/em>, holding that under the First Amendment a libel judgment brought by a public official against a newspaper cannot stand unless the plaintiff has shown \u201cactual malice,\u201d which in turn was defined as \u201cknowledge that [the statement] was false or with a reckless disregard of whether it was false or not.\u201d<span id=\"mayer_1.0-fn07_004\" class=\"im_footnote\"><em class=\"im_emphasis\">Times v. Sullivan<\/em>, 376 US 254 (1964).<\/span> In subsequent cases, the court extended the constitutional doctrine further, applying it not merely to government officials but to <span class=\"im_margin_term\"><span class=\"im_glossterm\">public figures<\/span><\/span>, people who voluntarily place themselves in the public eye or who involuntarily find themselves the objects of public scrutiny. Whether a private person is or is not a public figure is a difficult question that has so far eluded rigorous definition and has been answered only from case to case. A CEO of a private corporation ordinarily will be considered a private figure unless he puts himself in the public eye\u2014for example, by starring in the company\u2019s television commercials.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s08\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Invasion of Privacy<\/h2>\r\nThe right of privacy\u2014the right \u201cto be let alone\u201d\u2014did not receive judicial recognition until the twentieth century, and its legal formulation is still evolving. In fact there is no single right of privacy. Courts and commentators have discerned at least four different types of interests: (1) the right to control the appropriation of your name and picture for commercial purposes, (2) the right to be free of intrusion on your \u201cpersonal space\u201d or seclusion, (3) freedom from public disclosure of embarrassing and intimate facts of your personal life, and (4) the right not to be presented in a \u201cfalse light.\u201d\r\n<div id=\"mayer_1.0-ch07_s02_s08_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Appropriation of Name or Likeness<\/h2>\r\nThe earliest privacy interest recognized by the courts was appropriation of name or likeness: someone else placing your photograph on a billboard or cereal box as a model or using your name as endorsing a product or in the product name. A New York statute makes it a misdemeanor to use the name, portrait, or picture of any person for advertising purposes or for the purposes of trade (business) without first obtaining written consent. The law also permits the aggrieved person to sue and to recover damages for unauthorized profits and also to have the court enjoin (judicially block) any further unauthorized use of the plaintiff\u2019s name, likeness, or image. This is particularly useful to celebrities.\r\n\r\nBecause the publishing and advertising industries are concentrated heavily in New York, the statute plays an important part in advertising decisions made throughout the country. Deciding what \u201ccommercial\u201d or \u201ctrade\u201d purposes are is not always easy. Thus a newsmagazine may use a baseball player\u2019s picture on its cover without first obtaining written permission, but a chocolate manufacturer could not put the player\u2019s picture on a candy wrapper without consent.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s08_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Personal Space<\/h2>\r\nOne form of intrusion upon a person\u2019s solitude\u2014trespass\u2014has long been actionable under common law. Physical invasion of home or other property is not a new tort. But in recent years, the notion of intrusion has been broadened considerably. Now, taking photos of someone else with your cell phone in a locker room could constitute invasion of the right to privacy. Reading someone else\u2019s mail or e-mail could also constitute an invasion of the right to privacy. Photographing someone on a city street is not tortious, but subsequent use of the photograph could be. Whether the invasion is in a public or private space, the amount of damages will depend on how the image or information is disclosed to others.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s08_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Public Disclosure of Embarassing Facts<\/h2>\r\nCirculation of false statements that do injury to a person are actionable under the laws of defamation. What about true statements that might be every bit as damaging\u2014for example, disclosure of someone\u2019s income tax return, revealing how much he earned? The general rule is that if the facts are truly private and of no \u201clegitimate\u201d concern to the public, then their disclosure is a violation of the right to privacy. But a person who is in the public eye cannot claim the same protection.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch07_s02_s08_s04\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">False Light<\/h2>\r\nA final type of privacy invasion is that which paints a false picture in a publication. Though false, it might not be libelous, since the publication need contain nothing injurious to reputation. Indeed, the publication might even glorify the plaintiff, making him seem more heroic than he actually is. Subject to the First Amendment requirement that the plaintiff must show intent or extreme recklessness, statements that put a person in a false light, like a fictionalized biography, are actionable.\r\n<div id=\"mayer_1.0-ch07_s02_s08_s04_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nThere are many kinds of intentional torts. Some of them involve harm to the physical person or to his or her property, reputation or feelings, or economic interests. In each case of intentional tort, the plaintiff must show that the defendant intended harm, but the intent to harm does not need to be directed at a particular person and need not be malicious, as long as the resulting harm is a direct consequence of the defendant\u2019s actions.\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n\t<li>Name two kinds of intentional torts that could result in damage to a business firm\u2019s bottom line.<\/li>\r\n\t<li>Name two kinds of intentional torts that are based on protection of a person\u2019s property.<\/li>\r\n\t<li>Why are intentional torts more likely to result in a verdict not only for compensatory damages but also for punitive damages?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Distinguish intentional torts from other kinds of torts.<\/li>\n<li>Give three examples of an intentional tort\u2014one that causes injury to a person, one that causes injury to property, and one that causes injury to a reputation.<\/li>\n<\/ul>\n<\/div>\n<p>The analysis of most intentional torts is straightforward and parallels the substantive crimes already discussed in Chapter 6 &#8220;Criminal Law&#8221;. When physical injury or damage to property is caused, there is rarely debate over liability if the plaintiff deliberately undertook to produce the harm. Certain other intentional torts are worth noting for their relevance to business.<\/p>\n<div id=\"mayer_1.0-ch07_s02_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Assault and Battery<\/h2>\n<p>One of the most obvious intentional torts is assault and battery. Both criminal law and tort law serve to restrain individuals from using physical force on others. Assault is (1) the threat of immediate harm or offense of contact or (2) any act that would arouse reasonable apprehension of imminent harm. Battery is unauthorized and harmful or offensive physical contact with another person that causes injury.<\/p>\n<p>Often an assault results in battery, but not always. In <em class=\"im_emphasis\">Western Union Telegraph Co. v. Hill<\/em>, for example, the defendant did not touch the plaintiff\u2019s wife, but the case presented an issue of possible assault even without an actual battery; the defendant employee attempted to kiss a customer across the countertop, couldn&#8217;t quite reach her, but nonetheless created actionable fear (or, as the court put it, \u201capprehension\u201d) on the part of the plaintiff&#8217;s wife. It is also possible to have a battery without an assault. For example, if someone hits you on the back of the head with an iron skillet and you didn\u2019t see it coming, there is a battery but no assault. Likewise, if Andrea passes out from drinking too much at the fraternity party and a stranger (Andre) kisses her on the lips while she is passed out, she would not be aware of any threat of offensive contact and would have no apprehension of any harm. Thus there has been no tort of assault, but she could allege the tort of battery. (The question of what damages, if any, would be an interesting argument.)<\/p>\n<p>Under the doctrine of transferred intent, if Draco aims his wand at Harry but Harry ducks just in time and the impact is felt by Hermione instead, English law (and American law) would transfer Draco\u2019s intent from the target to the actual victim of the act. Thus Hermione could sue Draco for battery for any damages she had suffered.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">False Imprisonment<\/h2>\n<p>The tort of false imprisonment originally implied a locking up, as in a prison, but today it can occur if a person is restrained in a room or a car or even if his or her movements are restricted while walking down the street. People have a right to be free to go as they please, and anyone who without cause deprives another of personal freedom has committed a tort. Damages are allowed for time lost, discomfort and resulting ill health, mental suffering, humiliation, loss of reputation or business, and expenses such as attorneys\u2019 fees incurred as a result of the restraint (such as a false arrest). But as the case of <em class=\"im_emphasis\">Lester v. Albers Super Markets, Inc<\/em>. (Section 7.5 &#8220;Cases&#8221;) shows, the defendant must be shown to have restrained the plaintiff in order for damages to be allowed.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Intentional Infliction of Emotional Distress<\/h2>\n<p>Until recently, the common-law rule was that there could be no recovery for acts, even though intentionally undertaken, that caused purely mental or emotional distress. For a case to go to the jury, the courts required that the mental distress result from some physical injury. In recent years, many courts have overthrown the older rule and now recognize the so-called new tort. In an employment context, however, it is rare to find a case where a plaintiff is able to recover. The most difficult hurdle is proving that the conduct was \u201cextreme\u201d or \u201coutrageous.\u201d<\/p>\n<p>In an early California case, bill collectors came to the debtor\u2019s home repeatedly and threatened the debtor\u2019s pregnant wife. Among other things, they claimed that the wife would have to deliver her child in prison. The wife miscarried and had emotional and physical complications. The court found that the behavior of the collection company\u2019s two agents was sufficiently outrageous to prove the tort of intentional infliction of emotional distress. In <em class=\"im_emphasis\">Roche v. Stern<\/em> (New York), the famous cable television talk show host Howard Stern had tastelessly discussed the remains of Deborah Roche, a topless dancer and cable access television host.<span id=\"mayer_1.0-fn07_001\" class=\"im_footnote\"><em class=\"im_emphasis\">Roche v. Stern<\/em>, 675 N.Y.S.2d 133 (1998).<\/span> The remains had been brought to Stern\u2019s show by a close friend of Roche, Chaunce Hayden, and a number of crude comments by Stern and Hayden about the remains were videotaped and broadcast on a national cable television station. Roche\u2019s sister and brother sued Howard Stern and Infinity broadcasting and were able to get past the defendant\u2019s motion to dismiss to have a jury consider their claim.<\/p>\n<p>A plaintiff\u2019s burden in these cases is to show that the mental distress is severe. Many states require that this distress must result in physical symptoms such as nausea, headaches, ulcers, or, as in the case of the pregnant wife, a miscarriage. Other states have not required physical symptoms, finding that shame, embarrassment, fear, and anger constitute severe mental distress.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s04\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Trespass and Nuisance<\/h2>\n<p>Trespass is intentionally going on land that belongs to someone else or putting something on someone else\u2019s property and refusing to remove it. This part of tort law shows how strongly the law values the rights of property owners. The right to enjoy your property without interference from others is also found in common law of nuisance. There are limits to property owners\u2019 rights, however. In <em class=\"im_emphasis\">Katko v. Briney<\/em>, for example, the plaintiff was injured by a spring gun while trespassing on the defendant\u2019s property.<span id=\"mayer_1.0-fn07_002\" class=\"im_footnote\"><em class=\"im_emphasis\">Katko v. Briney<\/em>, 183 N.W.2d 657 (Iowa 1971).<\/span> The defendant had set up No Trespassing signs after ten years of trespassing and housebreaking events, with the loss of some household items. Windows had been broken, and there was \u201cmessing up of the property in general.\u201d The defendants had boarded up the windows and doors in order to stop the intrusions and finally had set up a shotgun trap in the north bedroom of the house. One defendant had cleaned and oiled his 20-gauge shotgun and taken it to the old house where it was secured to an iron bed with the barrel pointed at the bedroom door. \u201cIt was rigged with wire from the doorknob to the gun\u2019s trigger so would fire when the door was opened.\u201d The angle of the shotgun was adjusted to hit an intruder in the legs. The spring could not be seen from the outside, and no warning of its presence was posted.<\/p>\n<p>The plaintiff, Katko, had been hunting in the area for several years and considered the property abandoned. He knew it had long been uninhabited. He and a friend had been to the house and found several old bottles and fruit jars that they took and added to their collection of antiques. When they made a second trip to the property, they entered by removing a board from a porch window. When the plaintiff opened the north bedroom door, the shotgun went off and struck him in the right leg above the ankle bone. Much of his leg was blown away. While Katko knew he had no right to break and enter the house with intent to steal bottles and fruit jars, the court held that a property owner could not protect an unoccupied boarded-up farmhouse by using a spring gun capable of inflicting death or serious injury.<\/p>\n<p>In <em class=\"im_emphasis\">Katko<\/em>, there is an intentional tort. But what if someone trespassing is injured by the negligence of the landowner? States have differing rules about trespass and negligence. In some states, a trespasser is only protected against the gross negligence of the landowner. In other states, trespassers may be owed the duty of due care on the part of the landowner. The burglar who falls into a drained swimming pool, for example, may have a case against the homeowner unless the courts or legislature of that state have made it clear that trespassers are owed the limited duty to avoid gross negligence. Or a very small child may wander off his own property and fall into a gravel pit on a nearby property and suffer death or serious injury; if the pit should (in the exercise of due care) have been filled in or some barrier erected around it, then there was negligence. But if the state law holds that the duty to trespassers is only to avoid gross negligence, the child\u2019s family would lose, unless the state law makes an exception for very young trespassers. In general, guests, licensees, and invitees are owed a duty of due care; a trespasser may not be owed such a duty, but states have different rules on this.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s05\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Intentional Interference with Contractual Relations<\/h2>\n<p>Tortious interference with a contract can be established by proving four elements:<\/p>\n<ol id=\"mayer_1.0-ch07_s02_s05_l01\" class=\"im_orderedlist im_editable im_block\">\n<li>There was a contract between the plaintiff and a third party.<\/li>\n<li>The defendant knew of the contract.<\/li>\n<li>The defendant improperly induced the third party to breach the contract or made performance of the contract impossible.<\/li>\n<li>There was injury to the plaintiff.<\/li>\n<\/ol>\n<p>In a famous case of contract interference, Texaco was sued by Pennzoil for interfering with an agreement that Pennzoil had with Getty Oil. After complicated negotiations between Pennzoil and Getty, a takeover share price was struck, a memorandum of understanding was signed, and a press release announced the agreement in principle between Pennzoil and Getty. Texaco\u2019s lawyers, however, believed that Getty oil was \u201cstill in play,\u201d and before the lawyers for Pennzoil and Getty could complete the paperwork for their agreement, Texaco announced it was offering Getty shareholders an additional $12.50 per share over what Pennzoil had offered.<\/p>\n<p>Texaco later increased its offer to $228 per share, and the Getty board of directors soon began dealing with Texaco instead of Pennzoil. Pennzoil decided to sue in Texas state court for tortious interference with a contract. After a long trial, the jury returned an enormous verdict against Texaco: $7.53 billion in actual damages and $3 billion in punitive damages. The verdict was so large that it would have bankrupted Texaco. Appeals from the verdict centered on an obscure rule of the Securities and Exchange Commission (SEC), Rule 10(b)-13, and Texaco\u2019s argument was based on that rule and the fact that the contract had not been completed. If there was no contract, Texaco could not have legally interfered with one. After the SEC filed a brief that supported Texaco\u2019s interpretation of the law, Texaco agreed to pay $3 billion to Pennzoil to dismiss its claim of tortious interference with a contract.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s06\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Malicious Prosecution<\/h2>\n<p>Malicious prosecution is the tort of causing someone to be prosecuted for a criminal act, knowing that there was no probable cause to believe that the plaintiff committed the crime. The plaintiff must show that the defendant acted with malice or with some purpose other than bringing the guilty to justice. A mere complaint to the authorities is insufficient to establish the tort, but any official proceeding will support the claim\u2014for example, a warrant for the plaintiff\u2019s arrest. The criminal proceeding must terminate in the plaintiff\u2019s favor in order for his suit to be sustained.<\/p>\n<p>A majority of US courts, though by no means all, permit a suit for wrongful civil proceedings. Civil litigation is usually costly and burdensome, and one who forces another to defend himself against baseless accusations should not be permitted to saddle the one he sues with the costs of defense. However, because, as a matter of public policy, litigation is favored as the means by which legal rights can be vindicated\u2014indeed, the Supreme Court has even ruled that individuals have a constitutional right to litigate\u2014the plaintiff must meet a heavy burden in proving his case. The mere dismissal of the original lawsuit against the plaintiff is not sufficient proof that the suit was unwarranted. The plaintiff in a suit for wrongful civil proceedings must show that the defendant (who was the plaintiff in the original suit) filed the action for an improper purpose and had no reasonable belief that his cause was legally or factually well grounded.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s07\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Defamation<\/h2>\n<p>Defamation is injury to a person\u2019s good name or reputation. In general, if the harm is done through the spoken word\u2014one person to another, by telephone, by radio, or on television\u2014it is called slander. If the defamatory statement is published in written form, it is called libel.<\/p>\n<p>The Restatement (Second) of Torts defines a defamatory communication as one that \u201cso tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.\u201d<span id=\"mayer_1.0-fn07_003\" class=\"im_footnote\">Restatement (Second) of Torts, Section 559 (1965).<\/span><\/p>\n<p>A statement is not defamatory unless it is false. Truth is an absolute defense to a charge of libel or slander. Moreover, the statement must be \u201cpublished\u201d\u2014that is, communicated to a third person. You cannot be libeled by one who sends you a letter full of false accusations and scurrilous statements about you unless a third person opens it first (your roommate, perhaps). Any living person is capable of being defamed, but the dead are not. Corporations, partnerships, and other forms of associations can also be defamed, if the statements tend to injure their ability to do business or to garner contributions.<\/p>\n<p>The statement must have reference to a particular person, but he or she need not be identified by name. A statement that \u201cthe company president is a crook\u201d is defamatory, as is a statement that \u201cthe major network weathermen are imposters.\u201d The company president and the network weathermen could show that the words were aimed at them. But statements about large groups will not support an action for defamation (e.g., \u201call doctors are butchers\u201d is not defamatory of any particular doctor).<\/p>\n<p>The law of defamation is largely built on strict liability. That a person did not intend to defame is ordinarily no excuse; a typographical error that converts a true statement into a false one in a newspaper, magazine, or corporate brochure can be sufficient to make out a case of libel. Even the exercise of due care is usually no excuse if the statement is in fact communicated. Repeating a libel is itself a libel; a libel cannot be justified by showing that you were quoting someone else. Though a plaintiff may be able to prove that a statement was defamatory, he is not necessarily entitled to an award of damages. That is because the law contains a number of privileges that excuse the defamation.<\/p>\n<p>Publishing false information about another business\u2019s product constitutes the tort of slander of quality, or trade libel. In some states, this is known as the tort of product disparagement. It may be difficult to establish damages, however. A plaintiff must prove that actual damages proximately resulted from the slander of quality and must show the extent of the economic harm as well.<\/p>\n<div id=\"mayer_1.0-ch07_s02_s07_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Absolute Privilege<\/h2>\n<p>Statements made during the course of judicial proceedings are absolutely privileged, meaning that they cannot serve as the basis for a defamation suit. Accurate accounts of judicial or other proceedings are absolutely privileged; a newspaper, for example, may pass on the slanderous comments of a judge in court. \u201cJudicial\u201d is broadly construed to include most proceedings of administrative bodies of the government. The Constitution exempts members of Congress from suits for libel or slander for any statements made in connection with legislative business. The courts have constructed a similar privilege for many executive branch officials.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s07_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Qualified Privilege<\/h2>\n<p>Absolute privileges pertain to those in the public sector. A narrower privilege exists for private citizens. In general, a statement that would otherwise be actionable is held to be justified if made in a reasonable manner and for a reasonable purpose. Thus you may warn a friend to beware of dealing with a third person, and if you had reason to believe that what you said was true, you are privileged to issue the warning, even though false. Likewise, an employee may warn an employer about the conduct or character of a fellow or prospective employee, and a parent may complain to a school board about the competence or conduct of a child\u2019s teacher. There is a line to be drawn, however, and a defendant with nothing but an idle interest in the matter (an \u201cofficious intermeddler\u201d) must take the risk that his information is wrong.<\/p>\n<p>In 1964, the Supreme Court handed down its historic decision in <em class=\"im_emphasis\">New York Times v. Sullivan<\/em>, holding that under the First Amendment a libel judgment brought by a public official against a newspaper cannot stand unless the plaintiff has shown \u201cactual malice,\u201d which in turn was defined as \u201cknowledge that [the statement] was false or with a reckless disregard of whether it was false or not.\u201d<span id=\"mayer_1.0-fn07_004\" class=\"im_footnote\"><em class=\"im_emphasis\">Times v. Sullivan<\/em>, 376 US 254 (1964).<\/span> In subsequent cases, the court extended the constitutional doctrine further, applying it not merely to government officials but to <span class=\"im_margin_term\"><span class=\"im_glossterm\">public figures<\/span><\/span>, people who voluntarily place themselves in the public eye or who involuntarily find themselves the objects of public scrutiny. Whether a private person is or is not a public figure is a difficult question that has so far eluded rigorous definition and has been answered only from case to case. A CEO of a private corporation ordinarily will be considered a private figure unless he puts himself in the public eye\u2014for example, by starring in the company\u2019s television commercials.<\/p>\n<\/div>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s08\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Invasion of Privacy<\/h2>\n<p>The right of privacy\u2014the right \u201cto be let alone\u201d\u2014did not receive judicial recognition until the twentieth century, and its legal formulation is still evolving. In fact there is no single right of privacy. Courts and commentators have discerned at least four different types of interests: (1) the right to control the appropriation of your name and picture for commercial purposes, (2) the right to be free of intrusion on your \u201cpersonal space\u201d or seclusion, (3) freedom from public disclosure of embarrassing and intimate facts of your personal life, and (4) the right not to be presented in a \u201cfalse light.\u201d<\/p>\n<div id=\"mayer_1.0-ch07_s02_s08_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Appropriation of Name or Likeness<\/h2>\n<p>The earliest privacy interest recognized by the courts was appropriation of name or likeness: someone else placing your photograph on a billboard or cereal box as a model or using your name as endorsing a product or in the product name. A New York statute makes it a misdemeanor to use the name, portrait, or picture of any person for advertising purposes or for the purposes of trade (business) without first obtaining written consent. The law also permits the aggrieved person to sue and to recover damages for unauthorized profits and also to have the court enjoin (judicially block) any further unauthorized use of the plaintiff\u2019s name, likeness, or image. This is particularly useful to celebrities.<\/p>\n<p>Because the publishing and advertising industries are concentrated heavily in New York, the statute plays an important part in advertising decisions made throughout the country. Deciding what \u201ccommercial\u201d or \u201ctrade\u201d purposes are is not always easy. Thus a newsmagazine may use a baseball player\u2019s picture on its cover without first obtaining written permission, but a chocolate manufacturer could not put the player\u2019s picture on a candy wrapper without consent.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s08_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Personal Space<\/h2>\n<p>One form of intrusion upon a person\u2019s solitude\u2014trespass\u2014has long been actionable under common law. Physical invasion of home or other property is not a new tort. But in recent years, the notion of intrusion has been broadened considerably. Now, taking photos of someone else with your cell phone in a locker room could constitute invasion of the right to privacy. Reading someone else\u2019s mail or e-mail could also constitute an invasion of the right to privacy. Photographing someone on a city street is not tortious, but subsequent use of the photograph could be. Whether the invasion is in a public or private space, the amount of damages will depend on how the image or information is disclosed to others.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s08_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Public Disclosure of Embarassing Facts<\/h2>\n<p>Circulation of false statements that do injury to a person are actionable under the laws of defamation. What about true statements that might be every bit as damaging\u2014for example, disclosure of someone\u2019s income tax return, revealing how much he earned? The general rule is that if the facts are truly private and of no \u201clegitimate\u201d concern to the public, then their disclosure is a violation of the right to privacy. But a person who is in the public eye cannot claim the same protection.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch07_s02_s08_s04\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">False Light<\/h2>\n<p>A final type of privacy invasion is that which paints a false picture in a publication. Though false, it might not be libelous, since the publication need contain nothing injurious to reputation. Indeed, the publication might even glorify the plaintiff, making him seem more heroic than he actually is. Subject to the First Amendment requirement that the plaintiff must show intent or extreme recklessness, statements that put a person in a false light, like a fictionalized biography, are actionable.<\/p>\n<div id=\"mayer_1.0-ch07_s02_s08_s04_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>There are many kinds of intentional torts. Some of them involve harm to the physical person or to his or her property, reputation or feelings, or economic interests. In each case of intentional tort, the plaintiff must show that the defendant intended harm, but the intent to harm does not need to be directed at a particular person and need not be malicious, as long as the resulting harm is a direct consequence of the defendant\u2019s actions.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>Name two kinds of intentional torts that could result in damage to a business firm\u2019s bottom line.<\/li>\n<li>Name two kinds of intentional torts that are based on protection of a person\u2019s property.<\/li>\n<li>Why are intentional torts more likely to result in a verdict not only for compensatory damages but also for punitive damages?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-70\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5,"menu_order":50,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-70","chapter","type-chapter","status-publish","hentry"],"part":777,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/70","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5"}],"version-history":[{"count":4,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/70\/revisions"}],"predecessor-version":[{"id":1171,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/70\/revisions\/1171"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/777"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/70\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=70"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=70"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=70"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=70"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}