The Law of Tort:

Intentional Tort
Business Law Lecture 9a
Tort: Introduction
“Negligence is not actionable unless it involves
the invasion of a legally protected interest, the
violation of a right. Proof of negligence in the air,
so to speak, will not do.”
Chief Judge Cardozo
Palsgraf v. Long Island Railroad Co., 248 N.Y. 339,
162 N.E. 99 (1928)
 What is a Tort?
• Tort is the French word for a “wrong.”
• The law provides remedies to persons and businesses that are injured by the tortuous
actions of others.
• 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.
• Most torts are either intentional torts or unintentional torts such as negligence.
• These are based on the concept of fault.
• In many jurisdictions, the law recognizes the doctrine of strict liability.
• Under this doctrine, in certain circumstances, defendants may be held liable without
fault.
 Purpose of Tort
Law
• Generally, the purpose of tort law is to provide
remedies for the invasion of various protected
interests.
• Society recognizes an interest in personal safety, and
tort law provides remedies for acts that cause physical
or emotional injury or interfere with physical or
emotional security and freedom.
• Society also recognizes an interest in protecting
property, and tort law provides remedies for acts that
cause destruction of or damage to property.
• Note that in legal usage, the singular noun damage is
used to refer to harm or injury to persons or property.
• The plural noun damages is used to refer to monetary
compensation for such harm or injury.
Difference between a tort and a crime
 • 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
What are Tort medical expenses, loss of wages, pain and
damages? suffering, mental distress, and other
damages caused by the defendant’s tortious
conduct.
• If the victim of a tort dies, his or her
beneficiaries can bring a wrongful death
action to recover damages from the
defendant.
 Damages
• Damages
• A monetary award sought as a remedy for a breach of
contract or a tortious action.
• Compensatory Damages
• monetary award equivalent to the actual value of injuries
or damage sustained by the aggrieved party.
• Special Damages
• In a tort case, an amount awarded to compensate the
plaintiff for quantifiable monetary losses, such as medical
expenses, property damage, and lost wages and benefits
(now and in the future).
 • In a tort case, an amount awarded to
compensate individuals for the
General nonmonetary aspects of the harm
suffered, such as pain and suffering.
Damages Not available to companies.
• Starks v. Advantage Staffing, LLC,
217 F.Supp.3d 917 (E.D.La. 2016).

Damages

Punitive • Monetary damages that may be

awarded to a plaintiff to punish the
Damages defendant and
 Proof of damage
The law of tort is concerned with providing a remedy for certain forms of wrongful conduct.

In most torts, the claimant must prove that he has suffered some damage,
• e.g. personal injury or damage to his property, to establish liability.

However, the fact that the claimant has suffered damage is not sufficient on its own to establish liability.

The claimant must also prove that the damage was caused by the defendant’s infringement of a right vested in
the claimant which is recognised by the law.
• For example, the construction of an out-of-town shopping centre may result in a loss of trade for town centre shops, but since the law
does not provide a right to protection from competition, affected shopkeepers will not have a remedy, no matter how severe their losses.

The case below is an example of a situation where the claimants’ business was ruined by the actions of others
but no remedy was available.
• Trent Strategic Health Authority v Jain and another (2009)
Trent Strategic Health Authority v Jain and another (2009)
• Facts
• The claimants owned a nursing home which was registered under the requirements of the Registered Homes Act
1984 with the Nottingham Health Authority (subsequently succeeded by the Trent Strategic Health Authority).
• In 1998 the Authority made an ex parte and without notice application to a magistrate to cancel the registration.
• The application was granted by the stipendiary magistrate, with the result that all the residents were removed
from the home.
• The claimants were not given prior notice of the application or the grounds on which it was being sought; they
therefore did not have an opportunity to contest the application. The claimants appealed immediately to the
Registered Homes Tribunal and some four months later they succeeded in overturning the magistrate’s decision.
• However, by this time irrevocable damage had been done to the claimants’ business.
• They brought an action in tort for the economic damage caused to them by the Authority’s unjustified
application. As there was no allegation of bad faith or of misfeasance in public office by officers of the
Authority, the claimants framed their action in negligence.
• Judgement of the Court
• The House of Lords held that the Authority did not owe the claimants a duty of care and therefore no liability in
negligence could arise.
• The events in this case took place before the implementation of the Human Rights Act 1998.
• Lords Scott and Neuberger and Baroness Hale expressed the view that the claimants would have had a claim
under the 1998 Act for a breach of their convention rights.
 Causation
Liability in tort is dependent on making a connection between the defendant’s
wrongful conduct and the damage suffered by the claimant.
• If the damage was caused by some other factor, the defendant will escape
liability.

The factual cause of the damage is established by applying the ‘but for’ test,
• i.e. would the damage have occurred ‘but for’ the defendant’s tortious conduct?

An example of the application of this test in the context of a claim in negligence is

given in
• Barnett v Chelsea & Kensington Hospital Management Committee (1968).
Barnett v Chelsea & Kensington Hospital
Management Committee (1968)
Facts
• Mr. Barnett, a nightwatchman, attended the defendant’s hospital in the early hours of
the morning complaining of vomiting.
• The casualty doctor failed to examine him but instead sent a message that Mr. Barnett
should see his own GP in the morning if he was still unwell.
• Mr. Barnett died five hours later from arsenic poisoning.

Court’s Judgement
• The court held that, although the hospital doctor was negligent in failing to examine
Mr. Barnett, the failure to take reasonable care was not the cause of his death.
• The evidence was that, even if Mr. Barnett had been examined correctly diagnosed and
treated, he would have died anyway.
 Test for Remoteness in Tort
• Even if a claimant can establish a causal connection between the
defendant’s tortious conduct and the damage, he has suffered
using the ‘but for’ test, he cannot necessarily recover his loss.
• The damage may be too remote a consequence of the
defendant’s actions and, therefore, not the cause in law.
• The test for remoteness in tort derives from the decision of the
Privy Council in a case known as the Wagon Mound (No 1)
(1961).
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd,
The Wagon Mound (1961)
Facts

• The defendants where the charterers of a ship called the Wagon Mound.
• As a result of the carelessness of the defendant’s servants, a quantity of furnace oil was spilled in Sydney
harbour.
• The oil was carried towards the claimant’s wharf where welding operations were being carried out. After
receiving expert advice that the oil would not ignite on water, welding continued.
• However, a few days later the oil ignited when hot metal fell on a piece of cotton waste floating in the oil.
• The resulting fire caused extensive damage to the claimant’s wharf.

Court’s Judgement

• The Judicial Committee of the Privy Council held that reasonable foreseeability was the proper test of
remoteness of damage in tort.
• The court would have awarded damages for oil damage to slipways had this been claimed since such
damage was a reasonably foreseeable consequence of the defendant’s negligence.
• However, it was not reasonably foreseeable that the oil would ignite in the circumstances which occurred
and, therefore, damage caused by the fire was not recoverable.
Test for Remoteness in Tort
• Damage may be too remote if the chain of causation is broken by a
new unforeseen act of a third person.
• Such an event is referred to as a novus actus interveniens – a new act intervening
– and its effect is to relieve the defendant of the liability for the claimant’s loss.
• Cobb v Great Western Railway (1894)
• Facts
• The defendant railway had allowed a railway carriage to become
overcrowded. The claimant was jostled and robbed of £89.
• The claimant sued the defendant to recover his loss.
• Judgement of the Court
• The court held that the loss was too remote as the actions of the thief were a
novus actus interveniens, which broke the chain of causation
What is a Tort

A tort is a wrong.

There are three categories of torts:

• (1) intentional torts,

• (2) unintentional torts (negligence),
• (3) strict liability.
Tortious liability
• Interference with a person’s ownership or possession of land
or personal property, e.g., the torts of trespass to land and
trespass to goods;
• injury to business or personal reputations, e.g., tort of defamation;
• interference with a person’s use and enjoyment of land, e.g., tort of
nuisance;
• damage to land, e.g., tort of negligence, the rule in Rylands v Fletcher;
• personal injury and death, e.g., torts of negligence and trespass to the
person;
• damage to commercial interests, e.g., torts of deceit, passing-off,
inducement of breach of contract, conspiracy.
 Torts of strict liability

• These are torts where the claimant can recover

compensation for loss or damage without having to
prove fault or intention on the part of the defendant.
• Part I of the UK Consumer Protection Act 1987,
• for example, provides that a manufacturer is
strictly liable for injuries caused by his defective
products.
• The rule in Rylands v Fletcher, breach of statutory
duty and conversion are further examples of torts
imposing strict liability.
Vicarious liability
In certain situations, one person may be held liable for the
torts of another.

This type of liability is known as vicarious liability.

• An employer, for example, is vicariously liable for the torts of his
employees committed during the course of their employment.

Vicarious liability may also arise between partners and

between a principal and agent.
 Justifications for the principles of Vicarious
Liability
• There are various justifications for the principles of vicarious
liability:
• liability is incurred by the person best able financially to meet any
award of damages (usually because the risk is covered by insurance);
• the claimant is given an additional defendant to sue, who is more
likely to be able to satisfy any judgment;
• harm may be prevented by imposing liability on the person in control
of the activity;
• the claimant is provided with a defendant in cases where it is
impossible to establish precisely who was responsible within
 • The law protects a person from
unauthorized touching, restraint, or
other contact.
• In addition, the law protects a person’s
reputation and privacy.
Tort: • Violations of these rights are actionable
Introduction as torts.
An Intentional tort
A category of torts that requires that the
defendant possessed the intent to do the
act that caused the plaintiff’s injuries.
 Assault
Assault is
• the threat of immediate harm or offensive contact
• any action that arouses reasonable apprehension of imminent harm. Actual
physical contact is unnecessary. Threats of future harm are not actionable.

Examples

Suppose a 6-foot-5-inch, 250-pound person makes a fist and threatens to

punch a 5-foot, 100-pound person.

If the threatened person is afraid that he or she will be physically harmed, that
person can sue the threatening person to recover damages for the assault.
 • Battery is
• unauthorized and harmful or offensive physical
contact with another person that causes injury.
• Basically, the interest protected here is each
person’s reasonable sense of dignity and safety.
• Direct physical contact, such as intentionally
hitting someone with a fist, is battery.
• Indirect physical contact between the victim and
Battery the perpetrator is also battery, as long as injury
results.
• Examples
• Throwing a rock, shooting an arrow or a bullet,
knocking off a hat, pulling a chair out from under
someone, and poisoning a drink are all instances
of actionable battery.
• The victim need not be aware of the harmful or
offensive contact (e.g., it may take place while
the victim is asleep).
 Transferred Intent Doctrine

Transferred Sometimes a person acts with the intent to injure one

person but actually injures another.

Intent
Doctrine 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.

The victim can then sue the defendant.

 False Imprisonment
• False Imprisonment is 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 arrest).
• A threat of future harm or moral pressure is not considered false imprisonment.
• The false imprisonment must be complete.
• Examples
• A person who locks the doors in a house or automobile and does not let another person
leave is liable for false imprisonment.
• Merely locking one door to a building when other exits are not locked is not false
imprisonment.
• However, a person is not obliged to risk danger or an affront to his or her dignity by
attempting to escape.
 Shoplifting causes substantial losses to retail
and other merchants each year.

Shoplifting Oftentimes, suspected shoplifters are

and stopped by the store employees, and their
suspected shoplifting is investigated.
Merchant
Protection These stops sometimes lead to the merchant
being sued for false imprisonment because
Statutes the merchant detained the suspect.

Almost all states have enacted merchant

protection statutes, also known as the
shopkeeper’s privilege.
 These statutes allow merchants to stop, detain, and investigate suspected shoplifters without being
held liable for false imprisonment if:

• There are reasonable grounds for the suspicion.

Shoplifting • Suspects are detained for only a reasonable time.
• Investigations are conducted in a reasonable manner.
and Merchant
Protection Proving these elements is sometimes difficult. The following case applies the merchant’s protection

Statutes statute:

Case 5.1 State Court Case False Imprisonment

Wal-Mart Stores, Inc. v. Cockrell

61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992

Court of Appeals of Texas

 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 identity
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 preventing 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’s heirs.
• Example
• Didier Drogba is a famous star.
• If an advertising agency places Didier Drogba’s likeness (e.g., photo) on a billboard advertising a product without
Didier Drogba’s permission, it has engaged in the tort of misappropriation of the right to publicity.
• Didier Drogba could sue and recover the profits made by the offending party as well as obtain an injunction to
prevent unauthorized use of her likeness by the offending party.
 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 the passage of time.
Examples
• Secretly taking photos of another person with a cell phone camera in a men’s or women’s toilet or locker room
would constitute invasion of the right to privacy.
• Reading someone else’s mail, wiretapping someone’s telephone, and reading someone else’s e-mail without
authorization to do so are also examples of invasion of the right to privacy.
• Placing someone in a “false light” constitutes an invasion of privacy.
Example
• Sending an objectionable telegram to a third party and signing another’s name would place the purported
sender in a false light in the eyes of the receiver.
 Defamation of Character
• A person’s reputation is an asset. Therefore, every person is protected from false statements
made by others during his or her lifetime. This 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.
2. The statement was intentionally or accidentally published to a third party. In this context,
publication simply means that a third person heard or saw the untrue statement. It does
not require appearance in newspapers, magazines, or books.
• A false statement that appears in writing or other fixed medium is libel.
• An oral defamatory statement is slander.
Examples
• False statements that appear in a letter, newspaper, magazine, book, photograph, movie,
video, and the like would be libel.
• Most courts hold that defamatory statements in radio and television broadcasts are
considered libel because of the permanency of the media.
Defamation of Character
• 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.
Examples
• The statement “My lawyer is lousy” is an opinion and is not
defamation.
• The statement “My lawyer has been disbarred from the practice of
law,” when she has not been disbarred, is an untrue statement of fact
and is actionable as defamation.
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.
 Disparagement
• 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, which is 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).
Example
• If a competitor of John Deere tractors told a prospective customer that “John Deere tractors often break
down,” when in fact they rarely do, that would be product disparagement.
 Intentional Misrepresentation (Fraud)
One of the most pervasive 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.

A person who has been injured by intentional misrepresentation can recover damages from the
wrongdoer.

Four elements are required to find fraud:

1.The wrongdoer made a false representation of a 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.
 Scienter: refers to Intentional Conduct
It also 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.

Example
• Matt, a person claiming to be a minerals expert, convinces 100 people to invest $10,000 each with him so that he can purchase, on
their behalf, a gold mine he claims is in the state of North Dakota.
• Matt shows the prospective investors photographs of a gold mine to substantiate his story. The investors give Matt their money.
• There is no gold mine. Instead, Matt runs off with the investors’ money. Matt intended to steal the money from the investors.
This is an example of fraud:
• Matt made a false representation of fact (there was no gold mine, and he did not intend to invest their money to purchase the gold
mine);
• Matt knew that his statements were false and intended to steal the investors money;
• the investors relied on Matt’s statements;
• the investors were injured by losing their money.
 Intentional Infliction of Emotional Distress
• In some situations, a victim may suffer mental or emotional distress without first being physically harmed.
• The Restatement (Second) of Torts provides that a person whose extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is liable for that emotional distress.
• This is called the tort of intentional infliction of emotional distress, or the tort of outrage.
• 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.”
• The tort does not require any publication to a third party or physical contact between the plaintiff and defendant.
• An indignity, an annoyance, rough language, or an occasional inconsiderate or unkind act does not constitute outrageous
behavior. However, repeated annoyances or harassment coupled with threats are considered outrageous.
• The mental distress suffered by the plaintiff must be severe.
• Many states require that this mental distress be manifested by some form of physical injury, discomfort, or illness, such as
nausea, ulcers, headaches, or miscarriage.
• This requirement is intended to prevent false claims. Some states have abandoned this requirement.
Examples
• Shame, humiliation, embarrassment, anger, fear, and worry constitute severe mental distress.
Malicious Prosecution
Businesses and individuals often believe they have a reason to sue someone to
recover damages or other remedies.

If the plaintiff has a legitimate reason to bring the lawsuit and does so, but the plaintiff does not win the
lawsuit, he or she does not have to worry about being sued by the person whom he or she sued.

But a losing plaintiff does have to worry about being sued by the defendant in a second lawsuit for
malicious prosecution if certain elements are met.

In a lawsuit for malicious prosecution, the original defendant sues the original plaintiff.

In this second lawsuit, which is a civil action for damages, the original defendant is the plaintiff and the
original plaintiff is the defendant.
 Malicious Prosecution: Proof
To succeed in a malicious prosecution lawsuit, the courts require the plaintiff to prove all 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 (i.e., it was a frivolous lawsuit).
3. The plaintiff in the original action brought it with malice. (Caution: This is a very difficult element to prove.)
4. The original lawsuit was terminated in favor of the original defendant (now the plaintiff).
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.
Example
• One student actor wins a part in a play over another student actor.
• To get back at the winning student, the rejected student files a lawsuit against the winning student alleging
intentional infliction of emotional distress, defamation, and negligence.
• The lawsuit is unfounded, but the winning student must defend the lawsuit. The jury returns a verdict
exonerating the defendant.
• The defendant now can sue the plaintiff for malicious prosecution and has a very good chance of winning the
lawsuit.