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Module 06
Elements of Torts
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Learning Objectives
Upon successful completion, the student will be able to:
Distinguish types of torts;
Explain the role of tort law;
Analyze torts based on negligence;
Explain duty of care and the reasonable person standard;
Describe causation;
Analyze evolving changes in tort law.
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Torts & The Legal System
The word tort derived from Latin tortus or “twisted.” Means “wrong” in Old
French.
A tort is a civil wrong, other than a breach of contract, for which the law
provides a remedy.
Breach of a legal duty owed to another that causes harm
Torts arise from careless errors or intentional actions
The law reflects social values and standards
Lawsuits involving businesses can have large awards. In PennzoilTexaco case jury awarded $10.5 billion.
Has become a major issue for businesses
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Business and Torts
Categories
Negligence
Intentional
Strict Liability
Business becomes involved through
person is harmed by actions of business or its employees
a person is harmed by a product manufactured or distributed by the business
a business is harmed by the wrongful actions of another business or person
Some torts are unique to businesses (Chapter 7)
Torts can be specific to property (Chapter 8)
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The Role of Tort Law
Tort law allows compensation for injuries wrongfully inflicted by a
defendant on a plaintiff
Civil not criminal law
Law is determined in each state – rules vary.
However, the basic principles are similar across states.
Remedies should place an injured party in the position he/she would
have been in absent the tort.
Punitive damages punish malicious or extremely reckless behavior.
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Negligence-Based Torts
Unintentional careless conduct that creates an unreasonable risk of
harm to others. No intent to harm needed.
Elements
Breach of duty of care wrongdoer owed to injured party
Owed to the plaintiff
Breach through an act or omission
Causation (causal connection to the injury)
Injury/Damages
Gross Negligence: Conscious & voluntary disregard for need to use
reasonable care
More likely to lead to punitive damages
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Duty of Care and the Reasonable Person
Standard
The standard is how persons in the community ought to behave.
One must be reasonable at all times, under the circumstances.
Not liable for everything – only for “unreasonable” acts
Standard: “What a reasonable person would do in same or similar
circumstances?”
Applies to professions – CPA, MD, attorney, etc.
What a competent and experienced professional would do
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Squish La Fish v. Thomco Specialty Products
Squish holds patent on “Tuna Squeeze;” ProPack hired to assist
with store displays.
ProPack got Thomco’s advice on adhesive for the displays.
Thomco said the adhesive would wash off; Squish relied on advice,
but adhesive would not wash off.
A Squish distributor was not happy with adhesive; cancelled the
order.

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Squish La Fish v. Thomco Specialty Products
(2)
District Court granted judgment for Thomco; Squish appealed.
Held: Reversed and remanded
Disputed issues to go before the trial court
There may have been reliance by Squish through ProPack on
Thomco’s representations hence a tort of negligence.
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Causation
Causation between a party’s act & another’s injury.
Cause in fact shows the person’s conduct is the actual cause of the
event that created the injury (some courts call this the“but for” test
[sine qua non rule]).
Proximate cause indicates that the liability bears a reasonable
relationship to the negligent conduct.
In some cases, case is so obvious, res ipsa loquitur (“the thing
speaks for itself”) applies.
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Causation (2)
If consequences are too remote – no liability.
If there is an intervening or superseding event/conduct – no liability.
Chain of events created by a party’s actions must be foreseeable.
Some states replace proximate cause with substantial factor test in
bringing about the injury.
Danger-Invites-Rescue Doctrine
Negligent party is responsible for losses suffered by those who attempt
to save people who are in danger as the result of torts of others.
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Palsgrf V. Long Island RR CO.
Palsgraf waited on a platform for a train; another train began to
leave the station; man carrying a package ran to catch it; jumped on
the train; might fall, so guard grabbed to help him.
He dropped package which contains fireworks that exploded.
Shock from the explosion caused scales on platform to fall, injuring
Palsgraf who sued RR for negligence of its employees.
Jury found for Palsgraf; appellate court affirmed; RR appealed.
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Palsgrf V. Long Island RR CO. (2)
Issue: Is it foreseeable that the assistance by the guards would
cause Palsgraf’s injury through the falling scales?
Held: No. Nothing in the situation would suggest such a result.
Strange sequence of events involving no negligence by the railroad
or its employees.
Case reversed and dismissed.
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Evolving Law of Negligence
Thompson v. Kaczinski (Iowa Supreme Court)
Adopted some portions of new Restatement (Third) of Torts
Need not focus on ordinary duty of reasonable care – this duty is presumed
where there is risk of physical harm.
Instead, court should “proceed directly to the elements of liability.”
Less reliance on proximate case – “has been a source of significant uncertainty
and confusion.”
Move also away from “substantial factor.”
Instead, Restatement Third refers to the “scope of liability” related to risks
Changes are subtle; could take many years—state by state—to become
apparent in the working of tort law in the U.S.
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Defenses To A Negligence Action
Assumption of Risk
The injured party knew or should
have known of the risk and
voluntarily assumed it.
Complete bar to the plaintiff’s
case
May be based on liability waiver or
exculpatory clause in a contract
Comparative Negligence
Damages are reduced by the % of
injuries caused by the plaintiff’s
own negligence
Replaced old rule old rule of
contributory negligence
Term contributory negligence still
used, but for damages, the rule of
comparative negligence is used.
Pure Comparative Negligence vs.
50% Rule
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Geczi v. Lifetime Fitness
Jodi Geczi was member of Lifetime Fitness in Columbus, Ohio.
Was using a treadmill that began to jerk violently
She tried to steady herself, fell, suffered an injury
Lifetime employees told her they knew the machine was broken, but
no sign had been placed on it.
Geczi sued Lifetime for negligence and gross negligence.
Claimed she suffered lost income, pain, and medical expenses
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Geczi v. Lifetime Fitness (2)
Lifetime defended that as part of the membership agreement, Geczi
agreed to an exculpatory clause
This would bar he claim
She admitted she knew of the clause of no negligence for Lifetime
from using equipment. Clear in contract she signed.
Claimed that Lifetime was liable for willful and wanton behavior for
failure to warn of danger posed by the malfunctioning machine.
Jury held for lifetime. She appealed.
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Geczi v. Lifetime Fitness (3)
Issue: Whether reasonable minds can only conclude that documents
Geczi signed constituted valid release of claims against Lifetime.
Previously courts recognize that law does not favor release from liability
for future tortious conduct. Releases are narrowly construed.
HOWEVER, clear & unambiguous contract clauses relieving a party
from liability for negligence are generally upheld in Ohio.
Provision in member Policy:
“I accept full responsibility for my use, as well as the use by any other
person under my membership, of any and all equipment . . . . I agree
that I will hold the Club . . . harmless from any and all loss, claim, injury,
damage, or liability incurred by me. . . . I fully understand all of the
Club’s policies and agree to abide by them.”
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Geczi v. Lifetime Fitness (4)
Release did not distinguish types of negligence. Any injury could be
relevant.
Broad language in document extends to negligence in –
Maintaining equipment, leaving defective equipment available to users,
and negligence in failing to warn of defects.
Jury looked at question if Lifetime’s failure to act or warn was “willful
or wanton conduct” – found Lifetime was not.
HELD: Judgment Affirmed.
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Intentional Torts Against Persons
Establishing Intent
Person knew what he/she was doing
Intent to do the act which reasonably would result in harm to the plaintiff
Knew /should have known the possible consequences of an action
Willful misconduct
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Intentional Torts Against Persons (2)
Assault
Battery
False Imprisonment or False Arrest
Infliction of Emotional or Mental Distress
Invasion of Privacy
Defamation: Libel and Slander
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Assault
Placing plaintiff in fear of immediate bodily injury
Intent to act to cause a harmful or offensive contact
Plaintiff has imminent apprehension or fear
Fear: if a reasonable person under the same or similar circumstances
would have apprehension of bodily harm or offensive contact
Examples:
Pointing a gun? Yes
Point a gun while other person sleeps? No assault
Letter threats? Usually, no assault (“immediate” standard usually not met)
Phone threats? Maybe. How close is the caller? On a cell phone outside the
window or in another town?
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Unlawful “touching”
Intentional physical contact without consent
Even if no actual physical harm, offense to a “reasonable person’s
sense of dignity” may constitute a battery.
Use of fist, hand, or kicking
Use of weapons, i.e. guns or stick
Unwanted kiss? Has been held to constitute battery
Assault and Battery often linked together
Battery
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Battery (2)
Defenses
Consent
Privilege
Self defense
Defense of others/Defense of property
Most states have “stand your ground” doctrines
No requirement to retreat
Allow force for force & deadly force for deadly force
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Fuerschbach v. Southwest Airlines
Fuerschbach worked as customer service representative for
Southwest at Albuquerque airport.
Airline prides itself on being “fun-loving, spirited company.”
At end of probationary period, often a prank to celebrate the event.
Her supervisor thought would be fun to set up a mock arrest.
Two Albuquerque police officers came to the counter, told her of
outstanding warrants against her, handcuffed her and told her she
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Fuerschbach v. Southwest Airlines (2)
She began to cry, so officers took her to the party in the back.
All the employees yelled “Congratulations for being off probation!”
Handcuffs removed; party began. She kept crying and sent home.
Saw a psychologist who said she suffered post-traumatic stress
disorder.
Fuerschbach sued everyone connected with the event on numerous
grounds, including assault and battery.
allow the matter to go to trial.
HELD: Reversed. Summary judgment vacated re: assault and
battery claim. She can go to trial.
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Fuerschbach v. Southwest Airlines (3)
District court said officers “were courteous and professional.”
Issue: Did the actions offend “a reasonable sense of personal
dignity?”
HELD: Jury might be able to conclude that being handcuffed and
leading the person to walk fifteen feet offends a “reasonable sense
of personal dignity.”
Police handcuffed her – could be offensive contact.
The only claim against Southwest Airlines was a Workers’
Compensation claim because there was no intent by anyone to
harm her at work.
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False Imprisonment (False Arrest)
Intentional holding, detaining or confinement
Freedom to come and go is restrained
Restraint or Confinement
May be physical
May be mental (i.e. through verbal threats)
Using position of authority
Lawsuits often arise from detention of suspected shoplifters
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False Imprisonment (False Arrest) (2)
Defense by businesses regarding detention of shoplifters
Restraint was in a reasonable manner
Restraint was in a reasonable time
Basis for the detention was valid
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Harter v. Edwards
Edwards purse stolen; thief tried to use credit cards.
She contacted businesses about matter.
Detective Harder of Fort Lauderdale PD had been working on
fraudulent check ring.
Edwards’ checking account was one thieves used for fraudulent
checks.
Check from Edwards’ account written to T.J. Maxx – store

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Harter v. Edwards (2)
Officers arrested 23 people alleged in involvement in check scam.
Edwards arrested. Family bailed her out; charges dropped.
She sued Detective Harder, Police Department, T.J Maxx & store
employee Carlson who provided information to police about bogus
checks.
Trial Court: Found for Edwards. Defendants appealed.
False imprisonment entails “imprisonment contrary to [the plaintiff’s]
Where criminal activity encountered, “public policy of Florida is to
give wide latitude to an individual reported suspect crime.”
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Harter v. Edwards (3)
This ensures “a free flow in information between the people and the
police.”
Carlson acted reasonable in pursuing his investigation.
Merely provided Detective Harder with fraudulent checks.
Detective Harter exercised his discretion in pursing his investigation.
Evidence here is sufficient to establish probable cause for Edwards’
arrest.

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Infliction of Emotional
Distress/Mental Distress
Intentional conduct: So outrageous, it creates severe mental or
emotional distress
Petty insults, annoying behavior, bad language? Usually not
actionable; we must have “tough skin.”
Bill collectors or landlords who badger, are profane, or threaten lay
the background for a lawsuit.
Ex: Louisiana court gave award to a woman who found her
comatose husband being chewed by rats in a hospital
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Lawler v. Montblanc
Montblanc makes high-end writing implements and other luxury
products.
Sells wholesale and at boutique retail stores.
Cynthia Lawler was retail store manager in California for 8 years.
She was expected to work full time.
In 8th year, Lawler developed medical conditions – doctor said she
could only work 20 hours/week.
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Lawler v. Montblanc (2)
She informed Montblanc.
Was told as a manger she had to work at least 40 hours /week.
President of company visited and was critical of way store was run.
Lawler testified he was “unpleasant.”
Sshe told the company her doctor said she should not work full time.
Company said that was part of her position; offered her severance
pay.
She refused; sued for intentional infliction of emotional distress.
District Court held for Montblanc.
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Lawler v. Montblanc (3)
California’s cause of action for intentional infliction of emotional
distress:
(1) extreme and outrageous conduct by defendant with intention of
causing or probability of causing emotional distress
(2) plaintiff suffered severe or extreme emotional distress
(3) actual and proximate cause of emotional distress was by
defendant’s outrageous conduct
Outrageous: When so extreme it exceeds all bounds usually
tolerated in a civilized community. Does not extend to mere insults,
indignities, threats, annoyances, petty oppressions or other
trivialities
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Lawler v. Montblanc (4)
Schmitz’s “gruff,” “abrupt,” and “intimidating” conduct was not
“exceeding all bounds of that tolerated civilized community.”
Criticism he made related to store’s operations & Lawler’s
performance.
He was inconsiderate and insensitive in communicating
dissatisfaction.
However, the alleged emotional distress is not “severe.”
muscle twitches – do not rise to “severe” level.
Affirmed District Court’s summary judgment for defendants.
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Invasion Of Privacy
Infringement of a person’s right of solitude and freedom from
unwarranted public exposure
Use of a person’s name or picture without permission
Intrusion on solitude (i.e. wiretap; hacking into a computer)
Placing a person in false light (publishing a false story)
Public exposure of private facts (debts, drug use)
Defenses
Information about an individual taken from public files or records
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Seki v. Groupon
Groupon did business with Sportations, a GA business.
Sportations provided Groupon customers hot air balloon rides for
$139.00 per person
Groupon sold 25 vouchers.
Ended it’s relationship with Sportations with 18 vouchers unused.
Seki’s business goes by name of Magical Adventures Balloon
Rides.
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Seki v. Groupon (2)
However, he agreed to give 18 rides to Sportations’ customers and
Groupon would pay him for rides.
That was extent of relationship between Magical and Groupon.
Seki learned Groupon featured Magical on its website and was
selling vouchers for rides.
Seki demanded Groupon stop
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Seki v. Groupon (3)
Seki claimed to lose $140,000 in revenues when Groupon used his
company name.
Sued for invasion of privacy.
Trial Court held for Groupon; Seki appealed.
GA law: “the appropriation of another’s name and likeness …
without consent and for … financial gain … is a tort.”
It is invasion of privacy.
Reversed: Seki is not precluded from pursing a claim for invasion of
privacy through misappropriation.
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Defamation
Definition: An intentional false communication that injures a
person’s or company’s reputation or good name
Elements of the Tort:
False or defamatory statement
Published or communicated to a third person
Causing harm or injury to the plaintiff
If person who has false statement said directly to them, then tells a 3rd
party it is “self publication” and no tort.
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Defamation (2)
Defamation per se: Presumption of harm
No proof of harm/injury is necessary.
Examples: person has committed a crime; has a sexually communicable
disease; or carries out illegal business activities.
Workplace Defamation: Damaging information given about job
performance or negative information spread about an employee
unnecessarily even within a business.
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Defenses to Defamation
Truth is a complete defense in some states.
Absolute privilege is an immunity
Legislators in committee sessions
Participants in judicial proceedings
Conditional privilege eliminates liability if the false statement was
published in good faith.
If there is no malice
Constitutional privilege
Members of the press may publish “opinion” about public officials,
figures, or those of public interest if there is no actual malice.
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Chambers v. Travelers
Chambers worked for Travelers from 1987-2008.
Supervised employees (underwriters) who began to file complaints
about her.
Human Resources Manager, Cady, investigated complaints as did
Chambers’ superior, Werner.
Results were not good.
Chambers was warned about her behavior.
She was not in agreement.
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Chambers v. Travelers (2)
2 months later, her superior asked her if it was true she took her
daughter with her on a business trip. Said yes but did not admit took
grandson too.
When facts came to light, she was fired.
Chambers sued for defamation.
District Court held for Travelers. She appealed..
Defamation under Minnesota laws requires defamatory statement
(2) false
(3) tended to harm plaintiff’s reputation in the estimation of the
community
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Chambers v. Travelers (3)
Defendant may be entitled to “qualified privilege” that defeats the
claim
If statement was “made upon proper occasion, for proper motive and
based upon reasonable or probable cause”
Complaints to Cady gave Travelers reasonable grounds to
investigate
Cady surveyed staff; reported concerns expressed about Chambers’
performance to supervisor Werner
Werner then summarized negative comments to Chambers–sought her
response
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Chambers v. Travelers (4)
Communications in a company during investigation or punishing
employee misconduct are made upon a proper occasion and for
proper purpose
Employer has an interest in protecting itself and public against
dishonest or harmful employees
Qualified privilege is not abused if no malice; here, no actual malice
Affirmed: Travelers was entitled to the qualified privilege as a matter
of law.
Statements made by Travelers agents were entitled to a “qualified
privilege.”
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THE END
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