Intentional Torts What Is a Tort? A tort is a civil wrong that is not a breach of contract. There are four types of (civil) wrongfulness. Intent the desire to cause certain consequences or acting with substantial certainty that those consequences will occur. Recklessness conscious indifference to a known high risk of harm. Negligence conduct falling below the level necessary to protect others from unreasonable risk of harm. Strict liability liability without fault or liability irrespective of fault. Tort Recovery The winner of a tort suit usually recovers actual (compensatory) damages. Punitive damages are available if defendant s behavior is particularly egregious. Punitive damages not awarded in order to compensate the plaintiff; but rather, to reform, punish, or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. 1
Intentional Torts Intentional torts fall into three categories. Those involving interference with personal rights. Those involving interference with property rights. Business or competitive torts. Interference with Personal Rights Battery Assault Infliction of Emotional Distress False Imprisonment Defamation Invasion of Privacy Misuse of Legal Proceedings Deceit (Fraud) Battery The intentional, harmful or offensive touching of another without his consent. 2
Assault An intentional attempt or offer to cause a harmful or offensive contact with another that puts him into apprehension of imminent battery. Infliction of Emotional Distress Defendant s outrageous conduct intentionally or recklessly causes plaintiff s severe emotional distress. CA: Exposing another to HIV, carcinogen, toxic substance False Imprisonment The intentional confinement of another person for an appreciable period of time without his consent. Merchants have a conditional privilege to stop suspected shoplifters. Privilege requires probable cause. Merchants must act with reasonable (or probable) cause, in a reasonable manner, for a reasonable time CPC 490.5 (f) (7) In any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances. 3
Defamation The unprivileged publication of false and defamatory statements concerning another Includes libel and slander The Libel-Slander Distinction Libel written or printed defamation or defamation that has a more or less permanent physical form. Now includes TV, film, radio, Internet Slander all other defamatory statements, mainly oral defamation. Generally requires proof of Special Damages Exception: Slander per se Allegations of: Crime involving moral turpitude; loathsome disease; professional incompetence or misconduct; serious sexual misconduct. The Libel-Slander Distinction Yes Defamation in Some Permanent Physical Form (or in a radio or TV broadcast)? No Libel Slander Normally, no need to prove special damages. Plaintiff must prove special damages unless slander per se. 4
False and Defamatory Statement A defamatory statement harms the reputation of another. "Of and Concerning" the Plaintiff Allegedly fictional accounts that resemble real people are defamatory only if a reasonable person would ID the subject as the plaintiff. Statements of personal opinion are usually not statements of fact concerning plaintiff. An individual member of a group cannot recover for defamatory statements about that group. e.g., The Sopranos case Publication Communication of the defamatory statement to one person other than the plaintiff ordinarily suffices. One who repeats or republishes a defamatory statement may also liable for defamation. e.g., Internet message board Webmasters? 5
Defenses and Privileges Truth is an absolute defense to liability. Not a defense in some other torts, e.g., Public Disclosure of Private Facts; Trade Secret law Absolute privilege shields the author from liability regardless of knowledge, motive, or intent. e.g., Participants in trial, legislators Conditional (or qualified) privilege shields the defendant from liability unless the privilege is abused. A conditional privilege of sorts has emerged as a compromise between defamation law and the First Amendment. Defamation and the Constitution The amount of protection the Constitution gives to defamatory statements depends on: Whether plaintiff is a public figure/official or a private person. Whether the matter is one of public concern or private concern. Other conditional privileges: Protection of publisher s interests; Protection of interests of another; Intracorporate communications; fair comment In order to recover for defamation, public officials and public figures must prove actual malice on the part of a media defendant. Actual malice: Knowledge of falsity or reckless disregard for the truth Reckless disregard" is a subjective standard which requires that plaintiff show, by clear and convincing evidence, that "the defendant in fact entertained serious doubts as to the truth of his publication." Invasion of Privacy Invasion of privacy refers to four distinct torts. Intrusion on Personal Solitude or Seclusion Public Disclosure of Private Facts about a Person False Light Appropriation of Name or Likeness 6
Intrusion on Personal Solitude or Seclusion A highly offensive intentional intrusion on the solitude or seclusion of another. Requires a reasonable expectation of privacy. e.g., The wife of a heart attack victim had valid claims for trespass and intrusion against a television news crew that entered her home without her consent to videotape unsuccessful attempts by paramedics to save her husbands life. Public Disclosure of Private Facts about a Person Publication of facts highly offensive to a reasonable person about a person s private life. facts may be photographs But still requires expectation of privacy A domestic violence victim who was filmed in her home by a television news crew could sue for disclosure of private facts because the facts broadcast as a result of the news crews presence went beyond the information available in a police report. Compare: Actor photographed dancing in a public gay bar involves no EoP, so no claim False Light Publicity that places a person in a false light that would be highly offensive to a reasonable person. That is, it is a form of invasion of privacy in which a person is presented in way that leaves a negative and inaccurate impression about that person. False light and defamation are similar but not the same. Compare: Defamation is false and defamatory. The report need not be defamatory to be actionable as false light. This type of invasion of privacy tends to occur when a writer condenses or fictionalizes a story, or uses stock footage to illustrate a news story. False light may include any of the following: Embellishment (false material added to a story, which places someone in a false light) Distortion (the arrangement of materials or photographs to give a false impression) Fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles). Some courts may consider works of fiction to be constitutionally protected expressions even if they contain characters who resemble, or clearly were based on, identifiable individuals known by the author or creator. Example: But: A photograph of an actress and a producer leaving a restaurant together, accompanied by an article stating that they were dating - when, in fact, the producers wife was present at the time the photograph was taken - might constitute false light invasion of privacy. Fellows v. National Enquirer The juxtaposition of a picture of attendees of an "Exotic Erotic Ball" with pictures of performers at the ball did not amount to false light because the photos truthfully depicted both the revelry and performances that occurred at the ball. Martin v. Penthouse 7
Appropriation of Name or Likeness Defendant uses plaintiff s name or likeness without his consent. e.g., A computer-altered photograph of Dustin Hoffman, dressed in drag as he was in the movie "Tootsie," made him appear to be wearing certain designer clothes and was published as part of a spring fashion section of a magazine. Hoffman v. Capital Cities/ABC, Inc. But: The public s interest in a documentary about surfing precluded a depicted surfer s misappropriation claim. Dora v. Frontline Video Inc. And A magazine was entitled to use a celebrity s picture and refer to her in a truthful manner as part of an advertisement soliciting subscriptions, as long as the photo indicated the content of the publication -- regardless of whether the celebrity actually had endorsed the publication. Cher v. Forum California Celebrity Rights Act protects the rights of a deceased person's name, voice, signature, photograph or likeness (50 years after death). Statute specifically exempts protection for movies, books, and television programs, except when the usage is an advertisement or commercial announcement for another product, i.e., it is proper to use a picture of a person on the cover of a book about him and to use the picture or the cover in television advertisements for the book; it would be improper to use the same picture in a video advertisement for dog food. Robyn Astaire v. Best Film & Video Corp., (9th Circuit, -Decided- June 20, 1997) At least a dozen other states have passed similar right of publicity statutes Misuse of Legal Proceedings Some intentional torts protect people against harm from wrongfully instituted legal proceedings. Malicious Prosecution Wrongly causing criminal action to be filed against plaintiff Abuse of Process - Wrongful use of legal procedure (e.g., to gain advantage in another matter), even if meritorious. Wrongful Use of Civil Proceedings wrongful filing of civil suit (without merit, for other purposes than winning) CA SLAPP statute - Strategic Lawsuits Against Public Participation. California Code of Civil Procedure Sec. 425.16. Claim Arising from Person's Exercise of Constitutional Right of Petition or Free Speech -- Special Motion to Strike. Deceit (Fraud) A false statement of fact. Knowingly or recklessly made by the defendant. With the intent to induce plaintiff s actual and justifiable reliance. Resulting in harm to the plaintiff. California Civil Code 1710 Definitions of Fraud and Deceit A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. May give rise to punitive damage award. 8
Interference with Property Rights Trespass to Land Private Nuisance Conversion Trespass to Land Any unauthorized or unprivileged intentional intrusion upon the real property of another. e.g., Slant drilling for oil under another's land Private Nuisance A substantial and unreasonable interference with plaintiff s use and enjoyment of her land intentionally caused by defendant. Compare: Trespass to land 9
Conversion Defendant s intentional exercise of dominion or control over the plaintiff s personal property without plaintiff s consent. Important: Serious Interference with plaintiff s property rights. Otherwise, Trespass to Property/Chattel. Traditionally the tort of conversion exclusively protected rights in tangible property. California courts, however, have long extended the tort to certain forms of intangible properties such as: stock, bonds, notes, recorded performance and warehouse receipts. The intangible property must be merged with or be reflected in a document or some tangible form Other Examples of Intentional Tort Liability Covered in other chapters: Injurious falsehood Intentional interference with contractual relations Interference with prospective advantage Wrongful discharge Bad faith breach of contract Intentional Torts END 10