Chapter 5

Torts and Strict Liability

Part I
Intentional Torts
(Against Persons and Property)
Introduction to Torts
Tort is the French word for a “wrong”. Tort law protects a variety of
injuries and provides remedies for them. Under tort law, an injured
party can bring a civil lawsuit to seek compensation for a wrong done
to the party or to the party’s property. Many torts have their origin in
common law. The courts and legislatures have extended tort law to
reflect changes in modern society.
Tort damages are monetary damages that are sought from the
offending party. They are intended to compensate the injured party for
the injury suffered. Such injury may consist of past and future medical
expenses, loss of wages, pain and suffering, mental distress, and other
damages caused by the defendant’s tortious conduct. If the victim of the
tort dies, his or her beneficiaries can bring a wrongful death action to
recover damages from the defendant. Punitive damages, which are
awarded to punish the defendant, may be recovered in intentional tort
and strict liability cases. Other remedies, such as injunctions may be
available, too.
Intentional Torts Against Persons

The law protects a person from unauthorized touching, restraint, or

other contact. In addition, the law protects a person’s reputation and
privacy. Violation of these rights are actionable as torts. Intentional
torts against persons are discussed in what follows.
Assault
Assault is (1) the threat of immediate harm or offensive contact or (2)
any action that arouses reasonable apprehension of imminent harm.
Actual physical contact is unnecessary. Threats if future harm are not
actionable.
Battery
Battery is unauthorized and harmful or offensive physical contact with
another person. Basically, the interest protected is each person’s
reasonable sense of dignity and safety.
Intentional Torts Against Persons

Transferred Intent Doctrine

Sometimes a person acts with the intent to injure one person but
actually injures another. The transferred intent doctrine applies to such
situations. Under this doctrine, the law transfers the perpetrator’s intent
from the target to the actual victim of the act.

False Imprisonment
The intentional confinement or restraint of another person without
authority or justification and without that person’s consent constitutes
false imprisonment. The victim may be restrained or confined by
physical force, barriers, threats of physical harm, or the perpetrator’s
false assertion of legal authority (i.e. false arrests). A threat of future
harm or moral pressure is not considered false imprisonment.
(See p 114 of the book for “Merchant Protection Statutes”)
Intentional Torts Against Persons

Misappropriation of the Right to Publicity

Each person has the exclusive legal right to control and profit from the
commercial use of his or her name and personality during his or her
lifetime. This is a valuable right, particularly to well-known persons
such as sports figures and movie stars. Any attempt by another person
to appropriate a living person’s name or identity for commercial
purposes is actionable. The wrongdoer is liable for the tort of
misappropriation of the right to publicity (also called the tort of
appropriation). In such cases, the plaintiff can (1) recover the
unauthorized profits made by the offending party and (2) obtain an
injunction against further unauthorized use of his or her name or
identity. Many states provide that the right to publicity survives a
person’s death and may be enforced by the deceased heirs.
Intentional Torts Against Persons
Invasion of the Right to Privacy
The law recognizes each person’s right to live his or her life without being
subjected to unwarranted and undesired publicity. A violation of this right
constitutes the tort of invasion of the right to privacy. If a fact is public
information, there is no claim to privacy. However, a fact that was once
public (e.g. commission of a crime) may become private after passage of a
time.
Defamation of Character
A person’s reputation is a valuable asset. Therefore, every person is
protected from false statements made by others during his or her lifetime.
The protection ends upon a person’s death. The tort of defamation of
character requires a plaintiff to prove that:
1. The defendant made an untrue statement of fact about the plaintiff and
2. The statement was intentionally or accidentally published to a third party.
Intentional Torts Against Persons

In this context, publication simply means that a third person heard or

saw the untrue statement. It does not just mean appearance in
newspapers, magazines, or books.
The name for an oral defamatory statement is slander. A false
statement that appears in a letter, newspaper, magazine, book, movie,
video, and the like is called libel. Most courts hold that defamatory
statements in radio and television broadcasts are considered libel
because of the permanency of the media.
The publication of an untrue statement of fact is not the same
as the publication of an opinion. The publication of opinions is usually
not actionable. Because defamation is defined as an untrue statement of
fact, truth is an absolute defense to a charge of defamation.
Intentional Torts Against Persons

Public Figures as Plaintiffs

In New York Times Co v. Sullivan, the U.S. Supreme Court held that
public officials cannot recover for defamation unless they can prove
that the defendant acted with “actual malice”. Actual malice means that
the defendant made the false statement knowingly or with reckless
disregard of its falsity. This requirement has since been extended to
public figure plaintiffs such as movie stars, sports personalities, and
other celebrities.
New York Times Co v. Sullivan (1964)
New York Times Co. v. Sullivan
The Case that Changed First Amendment History by Ronald K.L. Collins

One cannot talk about the First Amendment without talking about
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In that landmark opinion, the
principle of freedom of the press bolstered the principle of equality. The case also
marked a turning point in the history of the First Amendment, one that promised a new
day for freedom of expression in America.
……………
What made the case a “landmark” opinion was the fact that this was the first time that
the Court invoked the First Amendment to check libel actions. Such actions, wrote
Brennan, could no longer claim “talismanic immunity from constitutional limitations.”
The Court also questioned the legitimacy of seditious libel, of liability based on
criticism of public officials. The “attack upon its validity,” Brennan noted, “has carried
the day in the court of history.”

In a turn of phrase destined to become the most celebrated line in First Amendment
history, Justice Brennan boldly declared: “[W]e consider this case against the
background of a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and
New York Times Co v. Sullivan (1964)
public officials” (emphasis added). With those 44 words Brennan captured the essence
of freedom of expression, a principle born out of centuries of struggle.
Against that backdrop, Justice Brennan stressed that though some of the
statements in the Times advertisement were false, that could not be the end of the
matter, if only because “erroneous statement is inevitable in free debate.” He then drew
on James Madison, the mind behind the First Amendment: “‘Some degree of abuse is
inseparable from the proper use of every thing; and in no instance is this more true than
in that of the press.’” Given that, even certain false statements “must be protected if the
freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to
survive.’”
Brennan then articulated a rule best suited, he thought, to safeguarding
freedom of speech and press without granting unbridled reign to intentional falsehoods:
a public official cannot recover “damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with ‘actual malice’ –
that is, with knowledge that it was false or with reckless disregard of whether it was
false or not.”
Justice Black, the godfather of First Amendment absolutism, had some bold
words of his own about freedom of the press: “The half-million-dollar verdict does
give dramatic proof . . . that state libel laws threaten the very existence of an American
press virile enough to publish unpopular views on public affairs and bold enough to
New York Times Co v. Sullivan (1964)

criticize the conduct of public officials. The factual background of this case emphasizes
the imminence and enormity of that threat.” Such threats contravened the very
principle of a free press in a free society.
Stepping back, the Alabama-born justice then took a long look: “To punish
the exercise of this right to discuss public affairs or to penalize it through libel
judgments is to abridge or shut off discussion of the very kind most needed. This
Nation, I suspect, can live in peace without libel suits based on public discussions of
public affairs and public officials. But I doubt that a country can live in freedom where
its people can be made to suffer physically or financially for criticizing their
government, its actions, or its officials.”
The law of land had been revolutionized – the people and the press were now
free to speak up and out about racial injustice and other public wrongs without fear of
oppressive damage awards being awarded by Alabama-like juries. Now, their “rising
voices” could indeed be “heeded.”
It was a great day for the First Amendment. In the words of the famous free-
speech scholar, Alexander Meiklejohn, New York Times Co. v. Sullivan was “an
occasion for dancing in the streets.”
Intentional Torts Against Persons

Disparagement or Trade Libel

Business firms rely on their reputation and the quality of their products
and services to attract and keep customers. That is why state unfair
competition laws protect businesses from disparaging statements made
by competitors or others. A disparaging statement is an untrue statement
made by one person or business about the products, services, property, or
reputation of another business.
To prove disparagement (also called trade libel, product disparagement,
and slander of title), the plaintiff must show that the defendant (1) made
an untrue statement about the plaintiff’s products, services, property, or
business reputation; (2) published that untrue statement to a third party;
(3) knew the statement was not true; and (4) made the statement
maliciously (i.e. with intent to injure the plaintiff).
Intentional Torts Against Persons

Intentional Misrepresentation (Fraud)

One of the most common business torts is intentional misrepresentation.
This tort is also known as fraud or deceit. It occurs when a wrongdoer
deceives another person out of money, property, or something else of
value. The victim of this tort can recover damages from the wrongdoer.
Four elements are required to find fraud:
1. The wrongdoer made a false representation of material fact.
2. The wrongdoer had knowledge that the representation was false and
intended to deceive the innocent party.
3. The innocent party justifiably relied on the misrepresentation.
4. The innocent party was injured.
Item 2, which is called scienter, includes situations in which the
wrongdoer recklessly disregards the truth in making a representation that
is false. Intent or recklessness can be inferred from the circumstances.
Intentional Torts Against Persons

Intentional Infliction of Emotional Distress (Tort of Outrage)

In some situations, a victim may suffer mental or emotional distress
without first being physically harmed. A person whose extreme and
outrageous conduct intentionally or recklessly causes severe emotional
distress to another is liable for that emotional distress. The plaintiff
must prove that the defendant’s conduct was “so outrageous in
character and so extreme in degree as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a
civilized society”. An indignity, an annoyance, rough language, does
not constitute outrageous behavior.
Intentional Torts Against Persons

Malicious Prosecution
A losing plaintiff in a case may have to worry about being sued by the
defendant in a second lawsuit for malicious prosecution, which is a civil
action for damages, if certain elements are met. To succeed in a malicious
prosecution lawsuit, the courts require the plaintiff to prove all of the
following:
1. The plaintiff in the original lawsuit (now the defendant) instituted or
was responsible for instituting the original lawsuit.
2. There was no probable cause for the first lawsuit (that is, it was a
frivolous lawsuit).
3. The plaintiff in the original action brought it with malice.
4. The original lawsuit was terminated in favor of the original defendant.
5. The current plaintiff suffered injury as a result of the original lawsuit.
The courts do not look favorably on malicious prosecution lawsuits because
they feel such lawsuits inhibit the original plaintiff’s incentive to sue.
Intentional Torts Against Property

There are two general categories of property: real property and personal
property. Real property consists of land and anything permanently
attached to that land. Personal property consists of things that are
movable, such as cars, books, clothes, and such. The law recognizes
certain torts against real and personal property.
Trespass to Land
Interference with an owner’s right to exclusive possession of land
constitutes the tort of trespass to land. There does not have to be any
interference with the owner’s use or enjoyment of the land; the
ownership itself is what counts. Thus, unauthorized use of another
person’s land is trespass even if the owner is not using it. Actual harm
to the property is not necessary.
(Entering another person’s land without permission, remaining on the
land after permission to do so has expired, and causing something or
someone to enter another’s land are examples of trespass to land).
Intentional Torts Against Property

Trespass to and Conversion of Personal Property

The tort of trespass to personal property occurs when one person
injures another person’s personal property or interferes with that
person’s enjoyment of his or her personal property. The injured party
can sue for damages. For example, breaking another’s car window is
trespass to personal property.
Depriving a true owner of the use and enjoyment of his or her
personal property and exercising ownership rights over it constitutes
the tort of conversion of personal property. Conversion also occurs
when someone who originally is given possession of personal property
fails to return it. The rightful owner can sue to recover the property. If
the property was lost or destroyed, the owner can sue to recover its
value.