https://vimeo.com/3261363 Regulation and the Greater GoodAfter viewing The Crisis of Credit Visualized (Links to an external site.)Links to an external site. video, respond to each of the following:
Intentional Torts 7 Tort law is grounded in the principle that individuals have the right to be left alone\ —to live free of unreasonable interference from others. Torts, from the Latin torquere (to twist) and tortus (twisted), make up the branch of law that governs civil wrongs (other than breach of contract) for which a court will provide a remedy. The purpose of tort law is to provide just compensation to injured par - ties for civil injuries inflicted by others.
At first glance, it is easy to confuse tort law with criminal law insofa\ r as both attempt to exact a penalty for wrongful conduct. Such confusion is exacerbated by the fact that many crim\ es are also torts. What distinguishes a crime from a tort, however, is the nature of the offense. As discussed in Chapter 6, criminal law concerns itself with wrongs against society as a whole and is punitive in nature, whereas tort law concerns itself with wrongs against individuals and is primarily compen - satory in nature. To put it another way, crimes are wrongs against society, whereas torts are offenses against individuals. With that said, many torts and crimes, such as assault and battery , look exactly the same. Often the distinction comes down to who is bringing the action. For example, in an assault and battery incident, the person injured could sue the defendant for money damages for the tort of assault and battery. He or she could also ask the district attorney to bring criminal charges for assault. The civil proceeding would take place at one time in a civil court, and if the plaintiff “won,” it would result in a money judgment for the plaintiff. The criminal pro - ceeding, on the other hand, could result in a conviction and a possible jail sentence if the defendant were found guilty. Each is a separate proceeding in a different type of court before a different judge; in the civil case, the plaintiff is represented by an attorney; in the criminal case, the state represents the interests of the “people” in seeking justice. Thus, the very same incid\ ent can result in both a civil and a criminal trial.
Although not every action that an individual may consider objectionable \ may rise to the level of an actionable tort (a recognized civil wrong other than breach of contract for which a court may grant civil relief), tort law as it has developed from early common law through today recognizes a large number of specific torts that persons can inflict on one another.
7.1 Elements of Intentional Torts A ll intentional torts have at least three elements. Thus, for the plaintiff to prevail in a civil lawsuit against the defendant for an intentional tort, the plaintiff must convince the jury by a preponderance of the evidence that each of the following occurred: 1. An act (by the defendant) of conscious volition . That is, the defendant was awake (not, e.g., sleepwalking or having an epileptic seizure) when the tort occurred. 2. Intent . That is, the defendant understood the consequences of his or her act. (\ Note that “intent” here does not mean that the defendant meant to commit the tort.) sea80373_07_c07_105-120.indd 1 10/4/12 3:22 PM 106 Section 7.1 Elements of Intentional Torts CHAPTER 7 3. Damages . The plaintiff suffered some sort of physical or bodily injuries. Bodily injuries may include both physical and mental harm in some instances. Some torts also require a fourth element— actual damages , meaning that the plaintiffs must produce a receipt showing their damages. This is true, for example, in the tort of intentional infliction of emotional distress.
To illustrate how intentional torts are actually applied to a business in a civil lawsuit, please read the following hypothetical situation. Then consider each of the torts discussed afterward and decide whether or not it applies to this hypothetical situation. Andrea Quigley owns a large hardware store located in Ames, Iowa. On the day in question, Kent Kesey entered the store with the stated purpose of pur - chasing door hinges, a hammer, and nails for a home improvement project.
Kent testified that he spent about 30 minutes looking for the wares he was interested in purchasing. He further testified that he tried to find a shopping cart or a basket in which to place the items but that the store was so crowded and busy that he could not locate either. As a result, he put the hinges in his pants pocket and the hammer in his back pocket and continued shopping.
One of the employees in the store immediately noticed that Kesey had a ham - mer sticking out of the back of his pants and that he looked suspicious.\ The employee approached Kesey and watched him from further down the aisle.
As he watched, he noticed that Kesey was trying to juggle a large amount of merchandise in his arms and, while so doing, placed a bag of nails in his front left pants pocket. At that point, the employee approached Kesey and asked him what he was doing. Kesey replied, “What are you talking about?” The employee said, “I saw you shoplifting,” to which Kesey replied, “I was not.” At that point, the employee reached out and grabbed Kesey by the arm and said, “Come with me to the back office.” Kesey resisted and the employee pulled him harder. “Leave me alone!” Kesey yelled, “You’re hurting me!” The employee dragged Kesey to the back of the store and yelled back, “If you hadn’t been shoplifting, this wouldn’t be happening!” The employee then emptied Kesey’s pockets of any items and escorted him to a chair in the manager ’s office, where he left him and locked the door. The store was quite busy that day, so the employee forgot about Kesey. A few hours later, Andrea Quigley approached the employee and asked him who the stranger was in her office. “Oops,” the employee said, “I forgot to tell you about him.” After questioning Kesey, Andrea released him. Six months later, Andrea received a summons and complaint naming her business as the defen - dant in a tort lawsuit for $1 million in damages. sea80373_07_c07_105-120.indd 2 10/4/12 3:22 PM 107 Section 7.2 Intentional Torts Against Persons CHAPTER 7 7.2 Intentional Torts Against Persons T he first type of tort that will be explored is intentional torts against persons. While reading about the most common torts of this type, keep in mind that the f\ ollowing torts come into existence only if a duty owed by the tortfeasor (the person who perpetrates a tort) to the victim is breached. When intentional torts against persons are involved, the duty typically breached is the duty to refrain from undue interference with the right of others to be left alone.
Assault The tort of assault consists of placing someone in apprehension of imminent, unwanted touching (battery), to which they did not consent. For the tort to be \ complete, all that is required is that the victim believe that he or she is about to be touched. It \ is not necessary that a battery actually take place or that the defendant intended to touch the victim. The tort seeks to compensate victims for the apprehension they suffer when they reasonably believe they are about to be touched. All that is required is that the apprehension be rea - sonably realistic for the tort to be complete. When the employee grabbed Kesey and escorted him back to the manager ’s office, that action completed the tort of both assault and battery. To prove assault, Kesey would have to show that he was in actual fear or apprehension of a battery. He also would have to convince the jury that his fear was reason - able under the circumstances. Battery Battery is an unpermitted touching that is either harmful or offensive. Any intentional touching that has not been consented to can give rise to the tort, wheth\ er or not serious injury occurs; the extent of the injury is relevant only in determining the monetary dam - ages to which the victim is entitled. For purposes of the tort, an act o\ f touching is deemed offensive if a reasonable person would object to the touching under similar circumstances.
Punching someone on the nose without provocation is clearly a battery. But so is kissing or hugging a stranger without permission, since a reasonable person would likely find such unwanted touching objectionable. Consent can be assumed by the natu\ re of the rela - tionship between the parties; thus, kissing one’s spouse or significa\ nt other or hugging a friend is not generally considered a tort. Nor is it a tort to punch a boxer on the nose dur - ing a boxing match, no matter the damage that such contact may inflict. When the employee grabbed Kesey and escorted him to the office, the actual grabbing is an unpermitted touching for the purposes of a tort. Intentional Infliction of Emotional Distress Intentionally causing someone to suffer extreme emotional distress by engaging in extremely cruel, outrageous conduct constitutes the tort of intentional infliction of emo - tional distress . Like assault, this tort attempts to compensate victims for the apprehension to which they are subjected by the willful acts of others. sea80373_07_c07_105-120.indd 3 10/4/12 3:22 PM 108 Section 7.3 Intentional Torts Against Property CHAPTER 7 In order for this tort to arise, the conduct of the defendant must be outrageous and shockingly cruel. Conduct that is merely unkind or hurtful will not give rise to the tort regardless of the pain that such conduct causes the person at whom it is directed. Telling someone “You’re ugly and stupid,” for example, will not give rise to the tort regardless of the devastation these words may cause for the person hearing them; the statement may be unkind, antisocial, and mean-spirited, but it is not sufficiently shocking to con - stitute intentional infliction of emotional distress. In contrast, calling someone to tell him his mother has died, when in fact she has not, rises to the level of out\ rage that must be met for this tort to be actionable. Recall also that this tort requires the fourth element of actual damages. This may take the form, for example, of a psychiatrist’\ s bill or medication needed as a result of the distress. To prove intentional infliction of emotional distress, Kesey would have to show that the employee’s conduct rose to the level of “extreme and outrageous conduct.” Whether or not behavior is “extreme or outrageous” is a determina - tion the jury would have to make in its deliberations. False Imprisonment Intentionally interfering, without just cause, with a person’s right \ to freely move about constitutes the tort of false imprisonment . The restriction can be physical or psychologi - cal in nature. Tying a person to a chair without justification clearly constitutes the t\ ort, but so does threatening a person with recriminations if she leaves—even if no physical restraint is used.
In business, this tort is of particular interest to retailers who frequently question suspected shoplifters. Holding someone for questioning who is reasonably suspected of shoplifting is permissible, as long as (1) the retailer has probable cause to believe that the person has stolen merchandise and (2) the length of time the person’s movements are restrained is reasonable. A customer who is unreasonably detained or who is questioned for an unrea - sonable length of time can successfully sue for false imprisonment. To prove false imprisonment, Kesey would have to show that he was confined to a bounded area with no reasonable means of escape. Again, this is a jury decision, but the facts that Kesey was left in a locked room with no access to a telephone and that the employee forgot he was being held there are all indicia of false imprisonment. 7.3 Intentional Torts Against Property A nother type of common tort involves interference with or damage to an individu - al’s right to exclusively enjoy his or her personal and real property. Trespass to Land Trespass to land involves an intentional physical act that results in an unjustified intrusion onto another ’s land without the owner ’s consent. This tort can be difficult for students to sea80373_07_c07_105-120.indd 4 10/4/12 3:22 PM 109 Section 7.3 Intentional Torts Against Property CHAPTER 7 As you will see in Unit V, Chapter 19, Real and Personal Property, ownership of land extends to the land itself, any permanent structures on it, and the space above and below the land. For purposes of the tort of trespass to land, any physical intrusion into anoth - er ’s real estate can give rise to the tort; walking on another ’s land, purposely throwing a ball on it, tunneling underneath it, or firing a gun or arrow over it all constitute the tort of trespass.
Where the trespass is the result of an emergency situation, such as fleeing a dangerous wild animal or entering land to assist someone in danger, the trespass is deemed excused.
Even in these exceptional cases, trespassers must leave as soon as they learn they are trespassing or as soon as the emergency situation ends; otherwise, they will be subject to criminal and tort liability. People going into a store to buy goods like Kesey are deemed “invitees” and are therefore not liable for trespassing. Trespassing to land does not apply to this situation. grasp because its meaning is “the intent to put your foot down” and not the intent to trespass. Suppose that you are mistakenly on someone else’s property. You could still be liable for this tort because you were walking or meant to put your foot down. This is true even if you were lost in the woods and had no idea you were on someone else’s property. Although no actual damages may have been caused to the land, the court m\ ay award what are called nominal damages (damages in name only, usually $1). Where the nature of the trespass is continuing or where damage is actually done to the land, sub - stantial damage awards are likely. A property owner may also ask for an injunction from the judge—an order prohibiting the trespasser from continuing to trespass in the future.
Injunctive relief is awarded by judges typically when trespass is of a continuing nature. Trespass to land is an important remedy for landowners to protect their rights in their property. Otherwise, anyone could walk, camp, or basically move onto someone els\ e’s land without the landowner ’s permission; stated another way, landowners would have no method of removing people from their land. A Closer Look: Injunctive Relief The principle of injunctive relief is illustrated by recent events in which the City of New York evicted and criminally charged a trespasser who refused to leave a privately owned but publicly accessible park, following an Occupy Wall Street movement sit-in. For information about this event and its legal nuances, go to http://www.nytimes.com/2012/04/09/nyregion/judge-says-brookfield-had-right- to-clear-zuccotti-park.html , and then consider the following questions. Questions to Consider 1. What legal argument would you make on behalf of the trespassers if you represented them in the hearing? 2. What legal argument would you make on behalf of the City of New York?
3. What social policy arguments could the City of New York make? The trespassers? sea80373_07_c07_105-120.indd 5 10/4/12 3:22 PM 110 Section 7.3 Intentional Torts Against Property CHAPTER 7 Trespass to Personal Property Personal property includes items like your cell phone, clothing, car, and any other type of property other than land. If someone damages another ’s personal property, he has com - mitted the intentional tort of trespass to personal property. Although Kesey would not be able to prove trespass to land, he might be able to prove trespass to personal property. If his watch or clothing were damaged in the forcible escort back to the office, that would be trespass to personal property. Conversion If the defendant interferes with someone’s personal property to such a degree that it is ruined or lost, then this is conversion . The tort of conversion consists of permanently depriving the owner of personal property of its use and enjoyment through theft or destruction. If the employee never returned the items from Kesey’s pockets (assuming the items belonged to Kesey, e.g., his money, a wallet), then that would be the tort of conversion. It would be up to the jury to decide how much money the d\ am - ages would be worth. Shopkeepers’ Statutes Many states have what are called Shopkeepers’ statutes , which protect store owners from lawsuits such as these. However, the actions by the store owner have to be reasonable . Leaving someone in a locked room is not reasonable.
Consider the tort case Guijosa v. Wal-Mart Stores . In this lawsuit, the plaintiffs brought claims for malicious prosecution and false imprisonment against Wal-Mart, Inc., for their detention and arrest after they were allegedly seen taking baseball caps from the store.
Wal-Mart sought summary judgment on the ground that it is immune from liability, pur - suant to the Washington statute that allowed a shopkeeper to detain the suspects for a reasonable time when it had probable cause to suspect them of shoplifting. The three men argued that the detention was for an unreasonable amount of time under the statute.
Excerpts from the decision of the court follow: sea80373_07_c07_105-120.indd 6 10/4/12 3:22 PM 111 Section 7.3 Intentional Torts Against Property CHAPTER 7 Cases to Consider: Guijosa v. Wal-Mart Stores Guijosa v. Wal-Mart Stores, 101 Wn. 777 (2000) The claim arises from an alleged shoplifting incident at the Wal-Mart in Shelton, Washington. Trial testi - mony conflicted about whether Delgado and Guijosa were wearing baseball caps when they entered the Wal-Mart. All parties agreed Hernandez wore a baseball cap when he entered the store. While shopping, Delgado and Guijosa tried on hats from a sale bin and decided to purchase two. Rhonda Liburdi, a loss prevention associate, testified she saw Guijosa tear off the price tag and place the hat on his head. She also saw Delgado walk away from the bin wearing a cap. A sales associate testified that when the trio approached the bin, only Hernandez was wearing a cap, but when the three walked away from the bin, they each wore a hat. Delgado and Guijosa paid for some hats at the checkstand. Liburdi asked the cashier if they paid for the hats on their heads; the cashier replied no. Liburdi stopped the trio in the front vesti - bule of Wal-Mart, telling them she was detaining them for taking the hats without paying.
Liburdi requested they proceed to a security office at the back of the store. She asked a coworker, David Opfer, to assist her. Guijosa was the only one of the three who spoke English. He told Liburdi the hats belonged to them. Delgado and Guijosa both testified that Delgado’s cap had been pur - chased two weeks before, and Guijosa’s cap the previous day. Guijosa told Delgado and Hernandez to refuse to answer Liburdi’s questions. Guijosa also told Liburdi that the three would make a statement to the police. Liburdi called the Shelton police, who arrived approximately 20–30 minutes later. The police filed charges against Delgado and Guijosa based on Liburdi’s statements. *** . . . The trial court gave an instruction based on the defense found in the shopkeeper’s privilege stat - ute, RCW 4.24.220 . The jury found that Wal-Mart proved by a preponderance of the evidence that they detained the plaintiffs for a reasonable time on reasonable grounds, and thus it was allowed the defense to any civil claim found in the shopkeeper’s privilege statute. Therefore, the jury found for Wal-Mart on the false imprisonment and battery claims. The jury also found for Wal-Mart on the malicious prosecution claim. *** [6] RCW 4.24.220 (“shopkeeper’s privilege statute”) creates a “reasonable grounds” defense for retailers in an action for unlawful detention, arising from a shoplifting investigation for shoplifting taking place at their retail establishment. See e.g. State v. Johnston, 85 Wn. App. 549 , 933 P.2d 448 (1997). The statute provides the defense:
In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or question - ing as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investiga - tion or questioning by a peace officer or by the owner of the mercantile establishment, his autho - rized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, “reasonable grounds” shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a “reasonable time” shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the owner - ship of the merchandise. (continued) sea80373_07_c07_105-120.indd 7 10/4/12 3:22 PM 112 Section 7.3 Intentional Torts Against Property CHAPTER 7 Cases to Consider: Guijosa v. Wal-Mart Stores (continued) *** In any criminal action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or question - ing as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investi - gation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to com - mit theft or shoplifting on such premises of such merchandise. As used in this section, “reasonable grounds” shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a “reasonable time” shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.
. . . Under the wording of RCW 9A.16.080 , the time for detention is “time to permit such investigation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent.” Therefore, the crucial inquiry under RCW 9A.16.080 is whether store security possessed reasonable grounds for arrest, because “the authority to make the arrest . . . must necessarily carry with it the privilege of using all reasonable force to effect it.” (citation omitted).
RCW 9A.16.080 clearly provides that a storeowner may detain a suspected shoplifter and wait for the police to arrive, without facing criminal liability. We construe related statutes as a whole, trying to give effect to all the language and to harmonize all provisions (citation omitted). It does not make sense that our Legislature intended to provide a defense from criminal liability, if, once detained, store security chooses to wait for the police, but to not provide this same defense from civil liability in the same circumstances. Therefore, the statute allows detention for a reasonable time after the “apprehension” for the investigative process, including waiting for the arrival of the police. And, Liburdi possessed the right to make this warrantless arrest of plaintiffs, even absent a breach of the peace, so long as “reasonable grounds” existed.
The existence of “reasonable grounds” within the meaning of RCW 4.24.220 to detain a person for shoplifting can be analogized to whether probable cause existed for arrest. (citation omitted) There - fore, whether “reasonable grounds” existed for detention in the shoplifting context is a question of fact. Moore, (citations omitted). A trial court should only grant a motion for a directed verdict if, as a matter of law, no evidence or reasonable inferences exist to sustain a verdict for the nonmoving party. (citation omitted) Therefore, the trial court properly denied the motion for a directed verdict, because there was a question of fact for determination by the jury—whether there existed “reason - able grounds” for detention of the three plaintiffs. We hold that the trial court correctly submitted the shopkeeper’s privilege instruction to the jury.
On the other hand, plaintiffs’ argument can be characterized not as an objection to an assertion of the privilege (i.e., whether reasonable grounds exist), but a challenge to the scope of the privilege (i.e., whether the detention went beyond a reasonable time). Plaintiffs touch upon this argument when stating that it was improper for the court to assume that “reasonable time” was a question of fact to be decided “case by case,” along with a determination of “reasonable grounds.” Plaintiffs correctly state that statutes enacted in derogation of the common law are to be strictly (continued) sea80373_07_c07_105-120.indd 8 10/4/12 3:22 PM 113 Section 7.3 Intentional Torts Against Property CHAPTER 7 Cases to Consider: Guijosa v. Wal-Mart Stores (continued) construed absent legislative intent to the contrary. (citation omitted) Therefore, plaintiffs argue that because the statute clearly defines “reasonable time,” it is not an issue for the trier of fact to deter - mine under the specific circumstances of the case. But, in order to read RCW 4.24.220 in harmony with RCW 9A.16.080 , plaintiffs’ interpretation cannot be correct. Where legislative intent is to the contrary, we do not strictly construe the statute. (citation omitted) Also, although Moore, 20 Wn. App. at 489 , held that the whether “reasonable grounds” for the detention exists is a question of fact for the jury, no Washington cases have specifically held that whether the detention was for a “rea - sonable time” is also a question of fact. Generally, however, the reasonableness of a shopkeeper’s detention as a whole depends upon the facts and circumstances of the case. (citation omitted) Other jurisdictions examining the time-specific issue under a shopkeeper’s privilege statute have looked to all the circumstances of the detention to determine whether the time was “reasonable.” See e.g.
Adams v. Zayre Corp., 499 N.E.2d 678 (111. App. 1986) (holding detention of customer not reason - able where shopper detained for 15 minutes after it was determined there were no grounds for holding shopper). Additionally, the Washington shopkeeper’s statute defines “reasonable time” as not only time enough to attempt to obtain a statement, but also as “the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchan - dise.” RCW 4.24.220 . This necessarily requires an examination of the entire circumstances of the detention. As a matter of law, we would not hold that the approximately 20–30 minutes in this case that plaintiffs waited for the police to arrive was an unreasonable amount of time for Liburdi to attempt to get their statements, and investigate ownership of the merchandise. Furthermore, it is persuasive that plaintiffs did not produce the receipts during this time, and also told Liburdi that they would voluntarily make a statement to police, which they later made.
Therefore, the question of whether a shopkeeper detained a shoplifter for a “reasonable time” may be dependent upon the circumstances of the specific case. Reading RCW 4.24.220 in harmony with RCW 9A.16.080 , we hold that RCW 4.24.220 does not allow a detention of suspected shoplifters only for the amount time required for them to refuse to make a statement to store security. As a matter of public policy, storeowners should be able to hold suspected shoplifters for a reasonable amount of time to await the police’s arrival and seek the police’s determination of whether probable cause exists for an arrest.
[25] In this case, there was substantial evidence that Wal-Mart had reasonable grounds to detain the plaintiffs, and was therefore entitled to an instruction on the shopkeeper’s privilege. Both Liburdi and the sales associate testified they saw Guijosa and Delgado approach the bin without hats, and leave with hats. Then, Liburdi observed them exit the store without paying. The police found there was probable cause to charge based on this same information.
Read the full text of the case here: http://caselaw.findlaw.com/wa-supreme-court/1404966.html . Questions to Consider 1. Who won the case?
2. What did the plaintiff sue for? What defenses were raised?
3. What are the most important factors that a court will consider when deciding whether or not a store acted reasonably when suspecting a person of shoplifting? 4. How would you, as a manager, instruct your employees to act when they suspect someone of shoplifting? 5. How would you, as a manager, write a company policy regarding shoplifting in your business? sea80373_07_c07_105-120.indd 9 10/4/12 3:22 PM 114 Section 7.4 Other Types of Intentional Torts CHAPTER 7 7.4 Other Types of Intentional Torts U nlike the sample case, Jones v. Target Corp., which litigated wrongful imprisonment for alleged shoplifting, intentional torts against persons or property rarely go to trial. Thus, you are unlikely to personally experience these torts in either your business or personal life. Other types of intentional torts, however, have important rami - fications for business, so you should familiarize yourself with them.
Appropriation of a Person’s Name or Likeness for Commercial Use The law recognizes the right of individuals to profit from the use of their name or likeness, as well as to prevent others from using their name or likeness for commercial purposes without consent. Thus, the tort of appropriation consists of using a person’s name or like - ness for commercial purposes without his or her permission. For example, suppose that a\ photographer takes a picture of a very photogenic five-year-old girl in the park and then sells that photograph to a company that then uses it to advertise childr\ en’s toys. Even though the photograph was taken in a public place, before one is allowed to use another ’s image or likeness for monetary gain, permission must be obtained. In a d\ ifferent spin on the same situation, a newspaper, magazine, or television newscast can use the same pic - ture without the child’s (guardian’s) consent for a newsworthy purpose: Such use does not constitute a commercial purpose under the law.
Intrusion Into Seclusion This tort deals with willfully observing the private conduct of others u\ nder circumstances where an expectation of privacy exists. Before the intrusion into seclusion tort arises, three conditions must be met: 1. The conduct observed must be private, not public; 2. The intrusion must be willful; and 3. The nature of the intrusion must be such that it is objectionable to a reasonable person. There can be no reasonable expectation of privacy for persons who carry out their private\ business in plain view. Thus, a passerby who glances into an open ground-level window from the street is not guilty of invasion of privacy regardless of the private nature of the acts observed inside. This was the case in Boring v. Google, Inc . (No. 09-2350, 2010 U.S. App. LEXIS 1891 [3rd Cir. 2010]), in which the Borings claimed that Google intruded on their seclusion when its Street View car drove down their private road to take pictures of their house, which were then displayed on Google’s Street View feature. The court held that, while this was physical trespass on their land, the picture displayed was legal in that it did not actually display the Borings’ image.
In a 1995 class action lawsuit ( Dwyer v. American Express , 652 N.E.2d 1351 [Ill. App. 1995]), consumers alleged that American Express had intruded on their seclusion by gathering information about their use of their American Express credit cards and then selling that information to third parties. The court held that the plaintiffs failed to satisfy the first ele - ment of the claim (i.e., unauthorized intrusion). sea80373_07_c07_105-120.indd 10 10/4/12 3:22 PM 115 Section 7.4 Other Types of Intentional Torts CHAPTER 7 Likewise, selling magazine subscription lists without the subscribers’\ consent was also found not to be an invasion of privacy ( Shibley v. Time, Inc ., 341 N.E. 2d 337 [Ohio 1975]). False Light The false light tort consists of placing a person or persons in a false light by publish\ ing true facts about them in such a way that unpopular views or actions are attributed to them. In order for the tort to arise, the views or actions that are attributed to the victim through portraying them in a false light must be objectionable to a reasonable person. The following example will illustrate. Jane Doe, a prominent conservative politician, stops to give assistance to the victims of an automobile accident. She helps to extricate five people fr\ om their car and leaves after an ambulance arrives. She later learns that the fiv\ e individu - als (whom she had not previously met) happen to be members of an organization that is known to sponsor terrorism abroad. She reads the following headline in the next morning’s paper: “Senator Doe Seen Driving Away from Accident Scene After a Meeting with Five Terrorists.” If Jane Doe sues the newspaper, what is the likely result? She would win on the facts, since the headline clearly places her in a false light—making it appe\ ar she has unlawfully left the scene of an accident (a criminal act) and further that she ha\ d an official meeting with known terrorists (a hypocritical and objectionable course of action for someone i\ n her position).
Public Disclosure of Private Facts Publication of private facts that a reasonable person would find objectionable can also result in a valid invasion of privacy tort. This tort derives from a common law breach of confidence tort. For it to arise, the facts disclosed must be private in\ nature, and disclo - sure must be objectionable to a reasonable person. The disclosure also needs to have been made under circumstances in which the plaintiff had a reasonable expectation that the defendant would keep the matter confidential (e.g., a confidential relationship, such as attorney–client privilege or priest–penitent, has to have existed \ between the parties). Note that truth is not a defense to this tort as long as the truth disclosed is not generally known and a reasonable person would object to its disclosure.
Defamation The tort of defamation consists of publishing false statements about a person that dam - age his or her reputation. Defamation takes two forms: libel , if the false statements are written or in a tangible form (e.g., electronic data on the Internet), and slander , if the false statements are spoken.
In order to successfully sue for defamation, the following three requirements must be established: sea80373_07_c07_105-120.indd 11 10/4/12 3:22 PM 116 Section 7.4 Other Types of Intentional Torts CHAPTER 7 1. The statement must be false; 2. The statement must have a negative effect on the person’s reputation; and 3. The statement must be published (communicated to one or more third parties). If the person or company suing for defamation is a private party, once defamation is proven, the only question that remains is how to compensate the person monetarily. How - ever, if the person who is suing is a public figure (e.g., a celebrity), the defamatory state - ment must also be shown to be malicious . For purpose of this tort, malice is defined as making a false statement either with the actual knowledge that it is fal\ se or with reckless disregard for its truth or falsity. One type of defamation lawsuit becoming more prevalent is called false accusation in the workplace . This lawsuit occurs when the employer makes a statement about an employee, such as accusing him or her of stealing f\ rom the business.
Because such a statement must be false and published to be actionable, e\ mployers should hold conferences with employees only in private offices with no one else present. In that way, there is no “publication”; only when a third party hears the statement does publica - tion occur.
Since the advent of the Internet and social media such as Facebook and Twitter, it has become much easier to meet the publication requirement for the tort of defamation. As a result, business managers need to be cautious about defamation, as it can\ apply to the 21st-century workplace.
For their part, employees should be aware that posting defamatory statements on sites like Facebook could result in a lawsuit by an employer, or more commonly, in the loss of one’s job. According to newspaper articles, for example, Virgin Atlantic fired 13 crew members who had posted comments on Facebook about faulty engines on the planes, \ cockroaches in the cabin, and rude passengers ( http://www.guardian.co.uk/business/2008/nov/01/ virgin-atlantic-facebook ). To avoid such situations, employers should write clear guide - lines and post them in public places in the workplace to make sure that company policy about such defamatory conduct is clearly communicated to employees.
A problem arises when the tort of defamation is aimed at a group of people. The larger the group, the more difficult it becomes to prove that any individual member is harmed by the statements, regardless of their falsity, maliciousness, or even viciousness. An example is the maligning of entire professions by such statements as “All lawyers are thieves,” “All doctors are quacks,” or “All accountants are cheats.” The sheer size of these groups of professionals makes it impossible to show that any one person has been har\ med by such blanket statements, even though, taken together and repeated often enough, they might indeed tend to damage the reputation of the group. If a group is small enough that its individual members are readily identifiable, however, such general false statements can be the source of libel actions. Thus, publishing the statement “All lawyers are amoral liars, cheats, and scoundrels” is not actionable because no one lawyer can show signifi - cant damage to his or her reputation from a statement aimed at an entire profession. In contrast, the slur “All lawyers in Smalltown are amoral liars, cheats, and scoundrels” could be the basis of a defamation lawsuit by any of only a handful of l\ egal practitioners in Smalltown. sea80373_07_c07_105-120.indd 12 10/4/12 3:22 PM 117 Section 7.4 Other Types of Intentional Torts CHAPTER 7 Disparagement Disparagement (closely related to defamation) is a tort that consists of willfully misrep - resenting the quality of a competitor ’s goods or services. The statements are untrue or misleading and are made to influence the public not to buy or use the product or services.
The food and beverage industry is a business sector especially affected by product dispar - agement. A comment posted on the Internet about food, even if totally false, can a\ dversely impact consumer confidence. Thus, many states have passed legislation that makes such lawsuits by food producers easier to win by lowering the standard of care while allowing for punitive damages and including attorney’s fees in the damage awar\ d.
Fraud One of the most important torts you will encounter in business is the tort of fraud . Con - sider, for example, that the United States spends more than $2 trillion on health care annu - ally. More than 3% of that spending, or $68 billion, is lost to fraud each year, according to the National Health Care Anti-Fraud Association’s 2008 statistics. (See the Coalition Against Insurance Fraud’s data for more details: http://www.insurancefraud.org/health insurance.htm .) Whether on the Internet, in your personal life, or by an act of one of your employees, fraud is one of the fastest-growing legal problems in the United States. Fraud accounts for 19% of the $600 billion to $800 billion in waste in the U.S. health care system annually. Fraud amounts to between $125 billion and $175 billion annually, including everything from bogus Medicare claims to kickbacks for worthless treatments and other services (Thom - son Reuters, 2009).
Fraud occurs whenever one person intentionally misleads another into und\ ertaking an action that causes tangible harm. In order for this tort to arise, the following five elements must be proven by the defrauded party: 1. A misrepresentation by the plaintiff to the defendant was made; 2. The misrepresentation was about a material fact; 3. The misrepresentation was made in order to induce the defendant to take some action; 4. The defendant relied on the misrepresentation; and 5. The plaintiff suffered a loss as a result of reliance on the defendant’s misrepresentation. In the business setting, fraud can run the gamut from employee embezzlement to ven - dor fraud, management fraud, and investment scams. Managers can play a s\ ignificant role in helping to create an environment that discourages fraud by setting an ethical and legally sound example for employees. Clear communication to employees ab\ out accept - able behavior is the first way in which managers can start to create such an environ - ment. An organizational structure in which employees have an opportunity to report any suspicious behavior without fear of repercussions also speaks loudly that fraud will not be tolerated. Managers should also be extremely careful when hiring new employees, performing due diligence and checking backgrounds and references. Furthermore, it is sea80373_07_c07_105-120.indd 13 10/4/12 3:22 PM 118 Section 7.4 Other Types of Intentional Torts CHAPTER 7 important to segregate employee duties and independently check confidential or finan - cial information. The business community has a strong ally in the Association of Certified Fraud Examiners ( www.acfe.com ), which is dedicated to educating businesspeople and the public about fraud and its prevention. This organization offers training and certifi - cates in fraud prevention.
Much has been written about fraud in the workplace and how to decrease its effects. For an excellent article discussing theft and fraud in small businesses, see Employee Theft: Iden - tify and Prevent Fraud, Embezzlement, Pilfering, and Abuse by Patricia Schaefer, located at http://www.businessknowhow.com/manage/employee-theft.htm . For a comprehensive text on fraud in the workplace, see Managing the Business Risk of Fraud: A Practical Guide , located at http://www.acfe.com/uploadedFiles/ACFE_Website/Content/documents/ managing-business-risk.pdf . A Closer Look: Ponzi Schemes Ponzi schemes are one type of fraud seen in the financial service industry. Named for Charles Ponzi, a con artist in 1920s Boston who promised his inves - tors a 50% return in only 45 days, prompting 40,000 people to invest. His scheme lasted less than a year before he was arrested. In a Ponzi scheme, multiple investors are promised a high return on their money if they will make an initial contribution to a retirement, mutual fund, or other investment vehi - cle. The fund managers then take the money to pay other investors as if they really did make a profit on their investment. In this pyramid, the con artists who plan the fraud continue to pay off people who first invested with money collected from those who later invest. Such a fraud requires the increasing membership of more and more investors and is necessarily self-limiting. Amazingly, however, some Ponzi schemes have lasted for decades. In 2009, Bernard Madoff was convicted of criminal fraud aris - ing from one of the largest and longest Ponzi schemes in recent history, racking up billions of dollars in swindled assets. Read more about the Madoff case here: http://www.nytimes.com/2008/12/20/ business/20madoff.html?ref=bernardlmadoff . Then answer the following questions: Questions to Consider 1. What were some of the key elements to Mr. Madoff ’s early successes? 2. What events finally led to the collapse of the Ponzi scheme? Why? 3. Suppose that you were an investor that lost money in this scheme and wished to bring a law - suit under the tort of fraud.
a. What elements would you have to prove to win? b. What would be your burden of proof? c. What would be the biggest roadblock to your successful completion of the lawsuit?
Charles Ponzi.
Wikimedia Commons/ Public Domain sea80373_07_c07_105-120.indd 14 10/4/12 3:22 PM 119 actionable tort A recognized civil wrong (other than breach of contract) for which a court may grant civil relief.
actual damages A monetary amount for which the plaintiff must produce a receipt showing specific damages.
appropriation In tort law, using a person’s name or likeness for commercial purposes without his or her permission.
assault Placing someone in apprehension of imminent, unwanted touching (battery), to which the person did not consent.
battery Unpermitted touching that is either harmful or offensive.
conversion Permanently depriving the owner of personal property of its use and enjoyment through theft or destruction.
damages Some sort of physical or bodily injury suffered by the plaintiff. Bodily inju - ries may include both physical and mental harm.
defamation Publishing false statements about a person that damage his or her reputation.
disparagement Closely related to defa - mation, a tort that consists of willful misrepresentations about the quality of a competitor ’s goods or services that are untrue or misleading and that are meant to influence the public not to buy or use the product or services.
false accusation in the workplace A type of defamation lawsuit in which the employer makes a statement about the employee, such as accusing that person of stealing from the business. false imprisonment Intentionally inter - fering, without just cause, with a person’s right to freely move about.
false light Publishing true facts about someone but in such a way that unpopu - lar views or actions are attributed to that person.
fraud A tort that consists of one person intentionally misleading another into undertaking an action that causes tangible harm.
injunction A court order prohibiting a trespasser from continuing to do trespass in the future.
injunctive relief A court order prohibiting a continual trespasser from trespassing on a particular property.
intent The defendant’s understanding of the consequences of his or her act.
intentional infliction of emotional dis - tress Deliberately causing someone to suffer extreme psychological pain by engaging in extremely cruel, outrageous conduct.
intrusion into seclusion Willfully observ - ing the private conduct of others under circumstances where an expectation of privacy exists.
invasion of privacy Publication of private facts that a reasonable person would find objectionable. Appropriation of a person’s name or likeness for commercial use, false light, intrusion into seclusion, and public disclosure all constitute invasion of pri - vacy torts. Key Terms CHAPTER 7 Key Terms sea80373_07_c07_105-120.indd 15 10/4/12 3:22 PM 120 Critical Thinking and Discussion Questions CHAPTER 7 Critical Thinking and Discussion Questions 1. What distinguishes a crime from a tort?
2. What are the three elements of an intentional tort?
3. What are three types of intentional torts against persons? Against property?
4. When does malice need to be proven in a defamation action? How is malice defined? 5. What are the requirements for proving fraud?
6. Some types of behavior can be both a crime and a tort, thus subjecting p\ ersons who engage in such behavior to both criminal and civil penalties. Do you think such double punishment is justifiable or unduly harsh? Why? 7. Bob, a prominent state politician with aspirations to federal office, confides his marital infidelity to his friend Maurice, asking him to keep the matter \ secret, since its disclosure could harm his election chances. Five years later, when Bob is a candidate for national office, Maurice decides that fame and money are preferable to friendship and signs a lucrative deal to write a book about Bob’s \ extramarital affair. Bob, furious at his friend’s infidelity to him, sues Maurice for th\ e tort of libel. What will he need to prove in order to prevail over Maurice? Will he prevail?
What other tort should Bob sue Maurice under? libel A form of defamation in which false statements about a person are written or in a tangible form (e.g., as electronic data on the Internet).
malice Making a false statement either with the actual knowledge that it is false or with reckless disregard for its truth or falsity.
nominal damages Damages in name only, usually $1.
Ponzi scheme An investment fraud in which multiple investors are promised a high rate of return on their money. The fund managers then divert the money to pay early investors as if they really did make a profit on their investment. Shopkeepers’ statutes State laws that protect store owners from lawsuits claim - ing false imprisonment, etc., if the store’s agents exercised reasonable actions and used probable cause in detaining a person on their premises.
slander A form of defamation in which false statements are spoken about a person.
tortfeasor A person who perpetrates a tort.
trespass to land An intentional physical act that results in an unjustified intrusion onto another ’s land without the owner ’s consent. sea80373_07_c07_105-120.indd 16 10/4/12 3:22 PM
