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Learning Resources
This page contains the Learning Resources for this week.
Media about Tort Law
Readings
Course Text: Currier, K.A., Eimermann, T.E. (2016). The study
of law: A critical thinking approach (4th ed.). New York:
Wolters Kluwer.
Chapter 7, "Torts"
WAL_PSPA3010_02_
A_EN-CC.mp4
The Study of Law
Currier, K.A., Eimermann, T.E. (2016). The study of law: A
critical thinking approach (4th ed. .

New York: Wolters Kluwer
-
Aspen College Series
The Study of L
A Critical Thinking Approa
Fourth Edition
Katherine A. Currier • Thomas E. Eimermann
®Wolters Kluwer
Torts
The risk reasonably to be perceived defines
the duty to be obeyed.
Justice Benjamin Cardozo
ER OBJECTIVES
:: · g this chapter, you should be able to:
"":" xplain how intentional torts differ from negligence and
strict liability
rtS •
...ist: the elements of the prima facie case and common defenses
for the

- rtS of battery, false imprisonment, and defamation.
_...__ ply the elements of negligence to a fact scenario.
escribe the history and development of product liability law.
~lain the function of compensatory, punitive, and nominal
damages.
UCTION
_ - occur when someone injures you, slanders your reputation,
or dam-
- roperty. A tort is defined as a private wrong (other than a
breach of
_._ __ -_: · which a person or property is harmed because of
another's failure to
-a legal duty. In most instances this legal duty is an obligation
to refrain
207
• 208 Chapter 7: Torts
Restatement of the law
of Torts, Second
An authoritative
secondary source,
written by a group
of legal scholars,
summarizing the
existing common law, as
well as suggesting what
the law should be.

from taking actions that harm others. Occasionally, a duty will
consist of -
affirmative obligation to act in order to protect others.
A tort is considered to be a "private wrong," as opposed to
criminal -
which are seen as "public wrongs." Therefore, while the state
prosecutes c ·
the individual harmed must pursue a tort action. The end results
of a cr·
action and a civil tort suit also differ: A finding of guilt in a
criminal action -
result in a fine paid to the state or imprisonment, while a
finding of liability·-
tort action usually leads to a damage award to the harmed party.
However, as
discussed in Chapter 4 because both criminal acts and torts can
result in ha.n::-:
a person or property, sometimes the same set of facts will give
rise to both a :
action and a criminal action.
Tort actions must also be distinguished from contract actions. In
a :
action the legal duties are established by the courts through the
common law
more recently also by statutory modifications of the common
law. In con
contract actions are based on the legal duties the parties
established in t
contract. A further difference between a contract action and a
tort action li~
the remedy sought. In a contract action the purpose of the
lawsuit is to give
injured party the benefit of the bargain. In a tort action the
purpose is to

pensate the plaintiff for any losses suffered. For example,
assume you pure
an automobile with defective brakes. Because of the defect you
are unab:e ·
stop at a red light and are in a minor accident. The purpose of a
breach of
tract action would be to "get the benefit of your bargain"- that
is, a car
out defective brakes. The purpose of a tort action would be to
fully compe
you for any harm to yourself or the car, including your medical
bills, lost
from work, and pain and suffering. As this example suggests, at
times one
of facts can give rise to both a breach of contract action and a
tort action. c:-
example, if a manufacturer intentionally lies about a product he
is selling and -
buyer relies on that lie to her detriment, the buyer might be able
to sue for
breach of contract (thereby invalidating the sale) and fraud
(thereby recove~
for damages caused by the product).
Tort law has ancient roots, and tort rules have been created by
the co
on a case-by-case basis. Therefore, looking to precedent for
analogous situa ·
plays a large role in any analysis of a tort problem. In addition,
the courts :....
quently look to an authoritative secondary source, the
Restatement of the
of Torts, Second. This Restatement was drafted by a group of
legal scholars
order to summarize the existing common-law rules in a set of
black letter

ciples. At times, instead of simply "restating" the law, the
drafters also incl
their vision of what tort law should become. This is most
notable in the ar
products liability. Although the Restatement is a secondary
source and is th
fore only persuasive authority, you will frequently see courts
citing to it and
formally adopting some of its provisions.
In spite of its ancient common-law roots, tort law has never
been sta
One area of tort law that is undergoing rapid change is that
involving in
ries to participants and bystanders at sporting events. Consider
the fo il
ing and how what started out as an afternoon of fun ended up
being a
of tragedy . .
Dennis Carrai hosted a gathering of family
- friends at his home. Among the guests was
...aria Judge. Several guests, including Maria,
ere seated on the unenclosed rear porch of
-- .. house. At some point, Dennis shouted "who
::: ts to play softball," while handing out gloves,
all, and a metal bat that he had retrieved from
- garage. The area available for the field was
· e small; the "third base line" was approxi-
-=-ely 15 feet from the house, running parallel to
e side of the porch. Maria was sitting in a chair

- the porch, with her back to the game.
Dennis admonished the batters to "bunt" or
swing down on the ball, and not to take full swings,
to reduce the distance a batted ball might travel.
Nonetheless, a batted ball flew in the direction
of the house, landing on the porch roof. One of
the guests laughed, commenting to Dennis that he
hoped his homeowner's insurance policy premium
was paid, because the ball narrowly missed hitting
a skylight on the porch roof. The game continued
and a short time later, one of the players hit a foul
line drive toward the porch, where it struck Maria
on the back of her head, causing her serious injury.
As you read this chapter, think about:
whether Dennis had a duty to stop the game once he should have
real-
ized the danger of balls flying towards the house;
what role Maria played in her own injury; and
the consequences for backyard sports if a court were to find
Dennis lia-
ble for Maria's injury.
While tort law is still predominately court-created law,
legislatures are play-
- increasingly active role. For example, both Congress and state
legislatures
= enacted "tort reform" statutes, with the purpose of modifying
some of the
ed abuses of the tort system. One example is legislation to place
limits on
ount of damages that can be awarded in certain types of tort

cases. Such
-eform measures have even been included in the national
platforms of the
- political parties.
- orts have traditionally been classified into three major
categories: inten-
acts, negligence, and strict liability. See Figure 7-1. In any one
of these
areas, the person who commits the tort is known as the
tortfeasor.
U en people intentionally seek to violate a duty toward others,
their pur-
conduct is classified as an intentional tort. Those who commit
inten-
-orts are subject to punitive in addition to compensatory
damages. If John
onally drives his car into Jill's car, damaging her car and
injuring Jill,
as committed an intentional tort. As we will see later in this
chapter,
: motive (reason) for hitting Jill's car is irrelevant. All that
matters is that
- ded to do so.
n en the harm occurs as a result of a careless act done with no
conscious
HIGH
Intentional acts
MEDIUM
Negligent acts

LOW
Strict liability
NONE
No liability
- :o injure anyone, the act is classified as negligence. Negligent
actors are sub- Figure 7-1 Degrees of
Fau lt - compensatory but not to punitive damages. If the reason
John's car struck
Jill's was not because he had intended to do so but because he
had taken his e~
off the road to adjust his radio, John's behavior may be
classified as negligent.
There are times when for policy reasons the defendant is held
responsi;:;.~
even though the defendant did not act negligently nor
intentionally to ha.'"i;;
the plaintiff. These are classified as strict liability torts. Strict
liability is usua:
limited to situations involving an ultrahazardous activity, such
as dynamiting, --
the manufacture or sale of a potentially dangerous product. For
example, if -
reason John ran into Jill's car was because his brakes failed, the
car manufactur:
may be held strictly liable.
Finally, it is important to realize that the law does not provide
for co:::-

pensation for all injuries. There are true accidents, when either
no one is at fa·· -
or the fault rests solely with the person injured. In those
situations, the injur
party cannot recover damages.
A. INTENTIONAl TORTS
An intentional tort occurs whenever someone intends an action
that results
harm to a person's body, reputation, emotional well-being, or
property. Alm
any harm that you can imagine, if caused intentionally, can be
classified as --
intentional tort. In this section of the chapter we will discuss
just a few of~--
most common intentional torts. First, there are the torts that
cause harm •
a person's body, reputation, or emotional well-being: assault
and battery, fa.S
imprisonment, defamation, invasion of privacy, and intentional
infliction
emotional distress. Second, there are the torts that cause harm
to a persor:
property: trespass, trespass to personal property, and
conversion. Third, we
briefly discuss a variety of other torts, including false arrest,
malicious prostx..:;:-
tion, abuse of process, fraud, and business torts.
In order to prove that an intentional tort occurred, the plaintiff
must pro _
each of that tort's elements. The defendant then has the
opportunity to raise a;:;.
defenses. The primary defenses available in intentional tort
cases are conser;.-

self-defense, defense of third parties, and various types of
privilege.
As we will see, one set of facts can give rise to more than one
type of imer.-
tional tort. In addition, many intentional torts are also crimes.
Consider the fr:-
lowing fact scenario.
One day attorney John Bloom asked his
paralegal Sally Green to sit in on an initial cli-
ent interview. Mr. Bloom introduced Ms. Green
to the client, June Day, and explained to Mrs. Day
that Ms. Green is a paralegal. Mrs. Day told them
the following story.
Mrs. Day has been living with Mr. David Da.
for the past five years. While their marriage has
- er been a happy one, Mrs. Day never thought
= divorce until last night. Mr. Day came home
~ late from an adult co-ed softball game. Mrs.
a. said it was obvious that he had been drinking.
~.,ey soon got into a verbal fight. Among other
-- gs, Mr. Day yelled at Mrs. Day that he had told
- boss she had been skimming money from the
pany's petty cash drawer. Mrs. Day had never
e any such thing. He also told her that he had
=.:eived a call earlier in the day from the local has-
telling him that Mrs. Day's mother had been

- · tted following a massive heart attack. (Later
:s. Day found out that this was not true, but at
- " time she believed Mr. Day and became very
~. ) The fight escalated, and Mr. Day began
:.ring his baseball bat in front of Mrs. Day. Mrs.
a; said that she was not frightened, as Mr. Day
- never hit her, and she did not believe he would
A. Intentional Torts 211 •
do so then. In fact, she turned her back on him and
started to leave the room. He then yelled at her
and, before she could turn around, hit her on the
back of her arm with the bat, breaking her arm.
Mrs. Day then fled to the bathroom, locking the
door behind her. Mrs. Day remained in the bath-
room for over two hours until she felt it was safe to
leave. She found Mr. Day asleep on the living room
couch. She fled to a neighbor's, who drove her to
the hospital. The next morning Mrs. Day returned
home to find Mr. Day as well as her purse gone.
There was a message on the answering machine
from her boss saying that she was fired.
While Mrs. Day is contemplating divorce
proceedings, her more immediate concern is to
learn what actions she can take to compensate
her for her broken arm, emotional distress, miss-
ing purse, and lost job.
arm to a Person's Body, Reputation, or Emotional Well-Being
- : ;allowing torts will be discussed in this section: assault and
battery (harm

---eatened harm to a person's body), false imprisonment (a
wrongful deten-
. defamation (harm to a person's reputation), and invasion of
privacy and
~rentional infliction of emotional distress (harm to a person's
emotional
-neing).
a. Assault and Battery
_-n assault occurs when someone reasonably fears that he or
she is about to
~ a harmful or offensive physical contact. A battery is the
intentional harm-
~ offensive physical contact. While we usually think of assault
and battery
-e tort, in reality they are two torts. They can be present
together, as, for
- .le, when Tom first waves a fist in front of Sam's face and then
proceeds
- .:ach Sam in the nose. However, there can also be an assault
with no bat-
. henever there is the threat of a battery but no ensuing physical
contact.
- - ere can also be a battery with no assault, as, for example,
when the per-
"'mg attacked does not see the threat of physical contact before
it actually
1) The elements of assault and battery
-:-o prove an assault, the plaintiff must show that each of the

following ele-
occurred:
Assault
An intentional act that
creates a reasonable
apprehension of an
immediate harmful
or offensive physical
contact .
Battery
An intentional act
that creates a harmful
or offensive physical
contact.
Transferred intent
A legal fiction that if a
person directs a tortious
action toward A but
instead harms B, the
intent to act against A is
transferred to B.
1. an intentional act
2. that creates a reasonable apprehension of
3. an immediate harmful or offensive physical contact.
Notice the requirement in element 3 that the apprehension be of
an immediate
physical contact. A threat to go and get a gun is not an assault

because there is
no threat of an immediate contact.
To prove a battery, the plaintiff must show that each of the
following ele-
ments occurred:
2. that creates a harmful or offensive physical contact.
Notice that for both assault and battery the contact does not
have to actually
be physically painful. It simply must be harmful or offensive.
An unwanted kiss
from a stranger could qualify as an offensive contact.
Contact also includes contact with anything attached to the
person, such
as clothing. In the classic case of Fisher v. Carrousel Motor
Hotel, Inc., 1 the
court found that a battery had been committed when a hotel
employee grabbe
a plate from a customer. Also, the defendant need not actually
do the touching if
the defendant set the action in motion, such as by throwing a
rock or ordering
a dog to attack.
In discussing battery there are three important concepts to keep
in mind.
First, the intent involved must be the intent to perform the act,
not necessarily to
cause the plaintiff harm. Assume a boy, as a practical joke,
pulls out a chair jus:
as his friend is about to sit on it. The friend falls to the ground,
breaking his arm.

Even though the boy did not mean to hurt his friend, he is liable
for battery. He
intentionally did an act that caused physical injury. This
example also illustrates
the difference between intent, the desire to do an act, and
motive, the reason fo~
the act. The court is concerned with the intent (the boy's desire
to pull out the
chair) and not with his motive (his wish to play a practical
joke).
Second, usually defendants will be liable for any consequences
of theG-
actions, even if the consequences were unforeseeable. Often this
is phrased as
follows: "The defendant must take the plaintiff as the defendant
finds her." Fo:-
example, if the plaintiff has an "eggshell skull" and the
defendant merely taps th~
plaintiff's head lightly, the tap may seriously injure the
plaintiff. The defendant is
liable, ev.en if such a tap would not have harmed most people.
Third, assume John swung his fist, meaning to hit Bill.
However, Bill move-
aside and John hit Sara instead. John is liable to Sara for battery
under th=
theory of transferred intent.
The following case involves a friendly backyard touch football
game th;r
unfortunately ends in injury. While reading the case, decide for
yourself whethe:
you think the plaintiff should have been allowed to succeed on
her claim c:
battery.

1424 S.W.2d 627 (Tex. 1967).
Knight v. jewett
3 Cal. App. 4th 1022, 275 Cal. Rptr. 292 (1990)
ToDD, Acting P.J.
Kendra Knight appeals a summary judg-
ment granted in favor of Michael Jewett in her
wsuit against Jewett for ... assault and battery
stemming from a touch football game in which
she was injured ....
Facts
On January 25, 1987, Knight and several
other individuals, including Jewett, gathered at
:he Vista home of Ed McDaniels to observe the
uper Bowl football game. Knight and Jewett
were among those who decided to play a game of
-..oed touch football during half-time using a "pee-
wee" football often used by children. Apparently,
o explicit rules were written down or discussed
xfore the game, other than the requirement that
:o stop advancement of the player with the ball
~~ was necessary to touch that player above the
';";"aist with two hands. Knight and Jewett were on
different teams.

Previously, Knight had played touch football
and frequently watched football on television.
1-:night voluntarily participated in the Super Bowl
alf-time game. It was her understanding that this
=arne would not involve forceful pushing, hard
'tting or hard shoving during the game. She had
::ever observed anyone being injured in a touch
:ootball game before this incident.
About five to ten minutes after the game
::arted, Jewett ran into Knight during a play and
.2.....!rerward Knight asked Jewett not to play so
:-ough. Otherwise, she told him, she would stop
_laying.
On the next play, Knight suffered her inju-
:es, when she was knocked down by Jewett and
he stepped on the little finger of her right hand.
Kendra had three surgeries on the finger, but they
proved unsuccessful. The finger was amputated
during a fourth surgery.
According to Jewett, he had jumped up to
intercept a pass and as he came down he knocked
Knight over. When he landed, he stepped back
and onto Knight's hand.
According to Knight's version, her team-
mate, Andrea Starr, had caught the ball and was
proceeding up the field. Knight was headed in the
same direction, when Jewett, in pursuit of Starr,
came from behind Knight and knocked her down.

Knight put her arms out to break the fall and
Jewett ran over her, stepping on her hand. Jewett
continued to pursue Starr for another 10 to 15
feet before catching up with her and tagging her.
Starr said the tag was rough enough to cause her
to lose her balance and fall and twist her ankle.
Discussion
Inasmuch as this case reaches us on appeal
from a summary judgment in favor of Jewett, it is
only necessary for us to determine whether there
is any possibility Knight may be able to establish
her case.
A requisite element of assault and battery
is intent. Here, however, there is no evidence that
Jewett intended to injure Knight or commit a bat-
tery on her. Moreover, the record affirmatively
shows Knight does not believe Jewett had the
intent to step on her hand or injure her. 7· Without
the requisite intent, Knight cannot state a cause of
action for assault and battery.
Affirmed.
--:-he deposition of Kendra Knight was taken on October 19,
1988, and offered in support of the motion for summary
judgment. Ms.
·- "ght testified as fo llows
"Q. Do you believe that Mr. Jewett was trying to step on your
hand? Do you have any reason to believe he had any intention
hurt you?"
"A.No."

MooRE, C.J.
CASE DISCUSSION QUESTIONS
1. Did the court think that a battery had occurred? Why?
2. What role do you think Ms. Knight's deposition played in the
court's
reasoning?
3. Do you think the result would have been different if Ms.
Knight had
never watched football or played touch football prior to her
accident?
(2) The defenses to assault and battery
The first step in winning a tort claim is for the plaintiff to prove
each of
the elements of that tort. Then only if the plaintiff is able to do
so, the defendant
raises any defenses. The defenses that can be raised to an
assault or battery claim
are consent, self-defense, defense of others, and sometimes
defense of property.
Consent to a tortious act can sometimes be implied from the
nature of the
plaintiff's conduct. When one goes to a barber or hair stylist,
there is an implied
consent for that person to touch and cut the customer's hair.

Some types of con-
sent are implied by law, such as when a doctor administers
medical treatment
in an emergency. Because the court in Knight v. Jewett did not
think that Ms.
Knight had established a prima facie case for battery, it did not
consider whether
the defendant had any valid defenses. If the court in Knight had
thought Mr.
Jewett intentionally stepped on Ms. Knight, it next would have
discussed the
issue of whether she had consented to the battery. How do you
think the court
would have resolved that issue?
For self-defense and defense of others to be valid, the plaintiff
must rea-
sonably believe that a threat exists and then must use only as
much force as is
necessary to stop the battery. Self-defense, for example, could
be used as a valid
defense against a battery charge if the plaintiff had threatened
the defendant
with a knife and the defendant had defended himself with his
fists. However, if
the plaintiff was unarmed and struck the defendant with his
fists, it might not be
a valid self-defense for the defendant to stab the plaintiff with a
knife.
Perhaps one of the most controversial defenses is that of
defense of prop-
erty. The following case from Iowa illustrates a rejection of its
use.
Katko v. Briney

183 N.W.2d 657 (Iowa 1971)
The primary issue presented here is whether
an owner may protect personal property in an
unoccupied boarded-up farm house against tres-
passers and thieves by a spring gun capable of
inflicting death or serious injury.
family. Defendants' home was several miles from
the scene of the incident to which we refer infra.
Plaintiff's action is for damages result-
ing from serious injury caused by a shot from a
20-gauge spring shotgun set by defendants in a
bedroom of an old farm house which had been
uninhabited for several years. Plaintiff and his
companion, Marvin McDonough, had broken
We are not here concerned with a man's
right to protect his home and members of his
and entered the house to find and steal old bot-
tles and dated fruit jars which they considered
antiques.
At defendants' request plaintiff's action
was tried to a jury consisting of residents of the
community where defendants' property was
"ocated. The jury returned a verdict for plaintiff
and against defendants for $20,000 actual and
10,000 punitive damages.
After careful consideration of defendants'

motions for judgment notwithstanding the verdict
and for new trial, the experienced and capable
:rial judge overruled them and entered judg-
ment on the verdict. Thus we have this appeal by
efendants.
II
Most of the facts are not disputed. In 1957
::efendant Bertha L. Briney inherited her parents'
:arm land in Mahaska and Monroe Counties.
eluded was an 80-acre tract in southwest
_.lahaska County where her grandparents and
~ents had lived. No one occupied the house
-· ereafter . ...
For about 10 years, 1957 to 1967, there
- urred a series of trespassing and housebreak-
g events with loss of some household items,
- e breaking of windows and "messing up of the
:--operty in general." The latest occurred June 8,
_967, prior to the event on July 16, 1967 herein
.::·wived.
Defendants through the years boarded up
- e windows and doors in an attempt to stop
--e intrusions. They had posted "no trespass"
gns on the land several years before 1967. The
- earest one was 35 feet from the house. On June
1967 defendants set "a shotgun trap" in the
- n h bedroom. After Mr. Briney cleaned and

ed his 20-gauge shotgun, the power of which
-= was well aware, defendants took it to the
house where they secured it to an iron bed
:h the barrel pointed at the bedroom door.
as rigged with wire from the doorknob to
--e gun's trigger so it would fire when the door
was opened. Briney first pointed the gun so an
intruder would be hit in the stomach but at Mrs.
Briney's suggestion it was lowered to hit the legs.
He admitted he did so "because I was mad and
tired of being tormented" but "he did not intend
to injure anyone." He gave no explanation of
why he used a loaded shell and set it to hit a
person already in the house. Tin was nailed over
the bedroom wjndow. The spring gun could not
be seen from the outside. No warning of its pres-
ence was posted.
Plaintiff lived with his wife and worked regu-
larly as a gasoline station attendant in Eddyville,
seven miles from the old house. He had observed
it for several years while hunting in the area and
considered it as being abandoned. He knew it had
long been uninhabited. In 1967 the area around the
house was covered with high weeds. Prior to July
16, 1967 plaintiff and McDonough had been to
the premises and found several old bottles and fruit
jars which they took and added to their collection
of antiques. On the latter date about 9:30 P.M. they
made a second trip to the Briney property. They

entered the old house by removing a board from
a porch window which was without glass. While
McDonough was looking around the kitchen area
plaintiff went to another part of the house. As he
started to open the north bedroom door the shot-
gun went off striking him in the right leg above
the ankle bone. Much of his leg, including part of
the tibia, was blown away. Only by McDonough's
assistance was plaintiff able to get out of the house
and after crawling some distance was put in his
vehicle and rushed to a doctor and then to a hospi-
tal. He remained in the hospital40 days.
ill
Plaintiff testified he knew he had no right
to break and enter the house with intent to steal
bottles and fruit jars therefrom. He further testi-
fied he had entered a plea of guilty to larceny in
the nighttime of property of less than $20 value
from a private building.
Prosser on Torts, Third Edition, pages 116-
118, states:
if he were present in person would be free to inflict
injury of the same kind."
" ... the law has always placed a higher value upon
human safety than upon mere rights in property, it
is the accepted rule that there is no privilege to use
any force calculated to cause death or serious bodily

injury to repel the threat to land or chattels, unless
there is also such a threat to the defendant's personal
safety as to justify self-defense ... spring guns and
other man-killing devices are not justifiable against a
mere trespasser, or even a petty thief. They are privi-
leged only against those upon whom the landowner,
Restatement of Torts, section 85, page 180,
states: A possessor of land cannot do indirectly and
by a mechanical device that which, were he pres-
ent, he could not do immediately and in person.
Study and careful consideration of defendants'
contentions on appeal reveal no reversible error.
Affirmed.
False imprisonment
Occurs whenever one
person, through force
or the threat of force,
unlawfully detains
another person against
his or her will.
1. Why did the court uphold the jury's verdict in favor of the
plaintiff
trespasser?
2. The dissent stated: "When such a windfall comes to a
criminal as a result
of his indulgence in serious criminal conduct, the result is
intolerable and indeed
shocks the conscience. If we find the law upholds such a result,

the criminal
would be permitted by operation of law to profit from his own
crime." What do
you think?
3. Because the defendants did not raise the issue, this court did
not deal
directly with whether punitive damages were appropriate. What
facts would
support such a finding; what facts would argue against such a
finding? Do you
think punitive damages were appropriate in this case? Why?
4. Should a landowner who sets a trap such as in this case also
be found
criminally liable if an intruder is seriously injured? Why?
5. Do you think the result in this case would have been different
if the
house had been occupied? Why?
6. At trial Mr. Briney testified that "[p] rior to this time ... he
had locke<!
the doors, posted seven no trespassing signs on the premises,
and complained to
the sheriffs of two counties on numerous occasions .... [A]ll
these efforts were
futile and the vandalism continued." What else could the
defendants have done
to protect their property?
b. False Imprisonment
False imprisonment occurs whenever one person, through force
or the
threat of force, unlawfully detains another person against his or

her will. Issues
of false imprisonment most frequently arise in situations in
which store employ-
ees seek to detain suspected shoplifters or employers wish to
detain and inter-
view employees they suspect of unlawful activities.
(1) The elements of false imprisonment
In order to prove false imprisonment, the plaintiff must show
the followin
2. that caused confinement or restraint
3. through force or the threat of force.
- e plaintiff must actually be confined with no means of escape.
For exam-
:; e leaving someone alone in an unlocked office does not
constitute false
-prisonment.
(2) Defenses to false imprisonment
The most common defense to false imprisonment is that the
defen~ant was
mfied in restraining the plaintiff. For example, many states have
enacted stat-
to protect merchants who want to question a suspected
shoplifter. Usually,
-- e statutes provide that a shopkeeper may detain a suspected

shoplifter only
_ - e shopkeeper can show probable cause to justify the delay
and that even
- "'D the shopkeeper may detain the suspected shoplifter only
for a reasonable
~e and in a reasonable manner. As you can imagine, because of
the way these
-ee statutory requirements are worded, each has given rise to a
great deal of
SCUSSION QUESTION
1. Many argue that shoplifting is a major cause of increased
costs. Do
u think shopkeepers should be given more or less leeway in
deciding when to
-,...ain suspected shoplifters?
c. Defamation
Whereas the torts of assault and battery involve physical
contact, the tort
= defamation involves harm to a person's reputation caused by
either oral or
_·rten remarks. Oral defamation is known as slander (remember
"s" for spo-
' and written defamation is known as libel (remember "l" for
literary). To be
idered defamatory, the material must tend to injure a person's
reputation,
old a person up to ridicule, or to excite adverse, derogatory, or
unpleasant
=..ings or opinions about that person. Furthermore, the

statement must present
"' defamatory information as being factual rather than merely
the opinion of
-"'speaker. For example, a movie review or editorial is generally
viewed as a
--ement of opinion rather than fact.
(1) The elements of defamation
Whether it is oral or written, defamation consists of the
following elements:
1. publication
2. of false statements
3. that cause harm to reputation.
The first element, publication, means that someone other than
the plaintiff
..: the defendant must read or hear the defamatory comments.
The offending
Defamation
The publication of false
statements that harm a
person's reputation.
Slander
Spoken defamation.
libel
Written defamation.

Defamation per se
Remarks considered
to be so harmful that
they are automatically
viewed as defamatory.
material cannot harm someone's reputation if it is never seen or
heard by a
third party.
Second, and perhaps most important, the defamatory material
must be
false. No matter how damaging the information, a tort of
defamation has nor
been committed if the statement was true. Note, however, that
the plaintiff may
still be able to recover damages by suing under the theory of
invasion of privacy
or intentional infliction of emotional distress.
As to the third element, the plaintiff must show that the
publication of this
false information damaged his or her reputation. This is usually
established by
showing that the plaintiff lost a job, a contract, or something
else of value as a
result of people having read or heard the defamatory material.
However, his-
torically some remarks are considered to be so bad that they are
automaticall.
viewed as damaging and thus constitute defamation per se.
Examples of such
remarks include the following:
1. that someone has a loathsome communicable disease;

2. that someone committed business improprieties;
3. that someone has been imprisoned for a serious crime; and
4. that an unmarried woman is unchaste.
When dealing with comments that are defamatory per se, the
plaintiff does n
need to prove the statements caused him or her harm, as it is
presumed they did so
(2) Constitutional issues in defamation: The special case of
public
officials and public figures
As a result of the First Amendment's protection of freedom of
speech an.::
freedom of the press, the right to sue for defamation requires a
balancing of the
right to preserve one's reputation with the public's interest in
maintaining a"&.--
marketplace" of ideas.
In 1964, the U.S. Supreme Court addressed this dilemma in New
Yor
Times Co. v. Sullivan.2 An Alabama court had awarded libel
damages to a loca
law enforcement official who had been criticized in an
advertisement in the Ne1..
York Times. The Court stated: "The constitutional guarantees
require, we th in}
a federal rule that prohibits a public official from recovering
damages for -
defamatory falsehood relating to his official conduct unless he
proves that w..~
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."3 In 1974, LL.-
Court extended this protection to criticism of "public figures" as
well as gove~-
ment officials.4
What this means in practical terms is that when the plaintiff is a
pubt.::
official or public figure, the plaintiff must prove a fourth
element, actual mali""'
in addition to the three elements that everyone else has to also
prove-that
(1) publication (2) of false statements (3) that cause harm to
reputation. Wh:..,_
2376 u.s. 254 (1964).
3ld. at 279-280.
4Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974 ).
A. Intentional Torts
lear that this fourth requirement comes into play only if the
plaintiff is a
_.._ ·c official or a public figure, it is less clear whether the
defendant must also
_ .:r member of the media.
First, to qualify as a public figure, a person must either have
achieved wide-
=ad fame or notoriety or be someone who became well known
through involve-
. in a public controversy. Second, as noted above, to prove
actual malice, the Malice
219 •

riff must show that the defendant either knew the material was
false but went Making a defamatory
and published it anyway or acted with a "reckless disregard" for
whether remark either knowing
it was true. This can involve an examination of the editors as to
what they the material was false or
and when they knew it in reaching their decision to publish the
material. acting with a "reckless
--~ -ourts take into consideration such factors as the nature of
the new~ being disregard" for whether
_ rted, the historical trustworthiness of the source of the
information, and the or not it was true.
: constraints publishers are under to meet a deadline.
A prominent California case involving television personality
Carol Burnett
;:rates how these principles have been applied. In Burnett v.
National
_ irer, Inc., 5 Burnett sued the National Enquirer for publishing
a four-sen-
-~ item that read:
- a Washington restaurant, a boisterous Carol Burnett had a loud
argument with
-mher diner, Henry Kissinger. Then she traipsed around the
place offering everyone a
of her dessert. But Carol really raised eyebrows when she
accidentally knocked a
:- = s of wine over one diner and started giggling instead of
apologizing. The guy wasn't
-used and "accidentally" spilled a glass of water over Carol's
dress.6

.-s a preliminary matter the court determined that the National
Enquirer
:...id be viewed as a magazine rather than a newspaper. In
defamation cases,
_-:s show more leniency toward newspapers because their short
deadlines
_ ent them from having enough time to fully investigate their
stories. The
:uirer's normal lead time, however, was one to three weeks,
during which
= staff could verify the accuracy of its stories.
ext the court determined that the story was patently false and
that the
-uirer knew that to be so: "There was no 'row' with Mr.
Kissinger, nor any
=:::ment between the two, and what conversation they had was
not loud or
-erous." Respondent never "traipsed around the place offering
everyone a
= of her dessert, nor was she otherwise boisterous, nor did she
spill wine on
one." 7 Further, the court held that the statement was libelous
on its face, "a
- ge which reasonably carried the implication respondent's
actions were the
r of some objectionable state of inebriation." 8
The jury awarded Ms. Burnett $300,000 in compensatory
damages and
- million in punitive damages. The trial court reduced this to
$50,000
~pensatory damages and $750,000 punitive damages. On appeal
the court

· ed the compensatory award but remanded the case for a retrial
on the
~ of punitive damages, stating that the amount of the punitive
damages was
- Cal. App. 3d 991 (1983) .
...:997.
::.:999.
-- 1013.
disproportionate when compared to the compensatory award.
The dissent dis-
agreed, stating:
The fact is that this is a publication read nationally by 16
million people. The potential
for harm through a repetition of a libel by such an institution is
tremendous. There are
others to be protected from the harm. If the risk to an
intentional wrongdoer that he
will be adequately punished is slight, the defendant may well
chance it again. It can in
effect "write it off" as an expense or cost of doing business.
Thus punitive damages need
to be more than "an expense" item or "cost of doing business"
which the defendant can
calculate and absorb .... 9
(3) Defenses to defamation
Because one of the elements of defamation is that the statement

is false,
truth is an absolute defense. There are also some circumstances
when even the
publication of a false statement can be privileged. For example,
judges, attor-
neys, jurors, and other court personnel are protected against
being held liable
for comments that are made as part of their official duties, even
if the statements
turn out to be false. In 1979, in Hutchinson v. Proxmire, 10 the
U.S. Supreme
Court held that Wisconsin's Senator William Proxmire could not
be sued for
derogatory comments he made on the Senate floor when giving
out one of his
"Golden Fleece Awards." However, he could be sued for making
those same
remarks at a press conference and in a press release.
Note that in the cases discussed above, typically the lawsuit was
filed
against the newspaper, magazine, or television station/network
that either
published or broadcast the defamatory statements. But what
about a situa-
tion where the defamatory information is posted on Facebook or
as part of
somebody's tweet? The party claiming to have been defamed
can file a tort suir
against the individual who posted or tweeted the allegedly
defamatory state-
ments. However, in most cases the person claiming defamation
cannot get a.
judgment against the owner of the Web site on which it was
posted. This is du
to Section 230 of the Communications Decency Act of 1996 that

protects we
site publishers from defamation claims for comments made by
others on their
sites.U
9ld. at 1020 dissenting opinion).
10443 u.s. 111 (1979).
11 47 U.S.C. § 230 (2012) provides:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be
treated as the publisher or speaker
of any information provided by another information content
provider.
(2) Civil liability
No provider or user of an interactive computer service shall be
held liable on account of-
(A) any action voluntarily taken in good faith to restrict access
to or availability of material that
the provider or user considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is
constitutionally protected; or (B) any
action taken to enable or make available to information content
providers or others the technical
means to restrict access to material described in paragraph (1).
SSION QUESTIONS
_ In the case against the National Enquirer, Carol Burnett
testified that the
ents were particularly offensive to her because of her nationally

known
against alcoholism.
a. Do you think that should affect the amount of the damage
award?
b. During the trial Johnny Carson on his program The Tonight
Show
denounced the National Enquirer. How do you think the trial
judge
should have handled that situation?
c. Do you agree with the dissent that a large punitive award was
justified
in this case? Why?
When using social media sites, many people are quite casual
about what
say, often posting material that could be viewed as unpleasant,
offensive,
·cal of others. Under what circumstances do you think someone
could be
-.:. for defamation based on comments made on Twitter or
Facebook? For
- le, consider the case of a Massachusetts woman who sued her
friend for
~g a message on Twitter stating that she was "crazy," or the
health club
"'""who sued posters who gave his club a one (out of a possible
five) star
. Should such postings be actionable as defamation?
d. Invasion of Privacy

The tort of invasion of privacy covers a variety of different
situations. They Invasion of privacy
e An intentional tort
1. disclosure,
intrusion,
3. appropriation, and
~. false light.
Disclosure and intrusion best fit our common conception of
what would
invasion of privacy. Disclosure is the publicizing of
embarrassing private
, and intrusion is the unjustified intrusion in another's private
activities.
ples of intrusion include a neighbor eavesdropping and a
photographer
.:::1ding a movie star by following that person everywhere he or
she goes.
opriation is defined as the unauthorized exploitive use of one's
personality,
-e or picture for the defendant's benefit. For example, Johnny
Carson sued
_ 'chigan corporation for renting and selling "Here's Johnny"
portable toi-
The corporation acknowledged that "Here's Johnny" was the
introductory
g.an for The Tonight Show and in fact coupled the phrase with a
second one,
- -e World's Foremost Commodian." The court determined that
the defendant

- =airly appropriated Carson's identity and used it for the sale of
its products. 12
Finally, false light involves the use of a picture or some other
means to
~ a connection between the person and an idea or a statement
for which the
- idual is not responsible.
-xm v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th
Cir. 1983).
that covers a variety
of situations, including
disclosure, intrusion,
appropriation, and false
light.
Disclosure
The intentional
publication of
embarrassing private
affairs .
Intrusion
The intentional
unjustified
encroachment into
another person's private
activities.

In cases involving invasion of privacy, truth is not considered
to be a valic
defense. For example, it is not considered acceptable to
publicize that someone
is having an affair with his or her neighbor, even if it is true.
However, "news-
worthiness" is a valid defense. If the material is of legitimate
public interest- fo:-
example, the mayor having an affair with a member of city
council-then its
publication is considered to be privileged unless it was done
with malice. That i-
why it is so difficult for movie stars to prove this tort against
tabloids and gossi_
columnists. Finally, as with other intentional torts, consent is a
defense.
Interesting issues regarding an employee's right to privacy in
persona;.
e-mails arise when those e-mails are created on an employer's
computer system.
Consider the case of Gina Tiberino. Ms. Tiberino was a
secretary in the Prosecutin
Attorney's Office, and the county fired her for poor work
performance related to
her using e-mail for personal matters. As most courts have
done, the Washingto~
Court of Appeals held that employers have the right to monitor
such e-mails an
could fire her for her misuse of the employer's computer system.
However, the
court stated that the county could not release the content of
those e-mails to the
media as "it is the amount of time spent on personal matters, not
the content a.-
personal e-mails ... that is of public interest.13

e. Intentional Infliction of Emotional Distress
Traditionally, plaintiffs could recover for their emotional
distress that w-
caused by another tort, such as battery or false imprisonment.
More recently tt=
courts have created a new tort that allows plaintiffs to recover
for emotio--
distress even absent another type of injury. This tort of
intentional infliction - -
emotional distress is sometimes referred to as the tort of
outrage. In order -
ensure that such claims are valid, most courts have placed
severe restrictio-
on what the plaintiff must prove, such as requiring that the
intentional act thz:
causes the emotional distress be extreme and outrageous and the
emotional rl~"-
tress suffered be severe.
Therefore, to prove the intentional infliction of emotional
distress, a phri::.-
tiff must show
2. that is extreme and outrageous
3. and causes
4. severe emotional distress.
As to the fourth requirement, some courts add that the
emotional distress m
be so severe that it results in physical injury. In the following
case, see if . ~ _
agree that the supervisor's actions were sufficiently extreme and
outrageous --

support a claim of intentional infliction of emotional distress.
13Tiberino v. Spokane Cnty., 13 P.3d 1104, 1110 (Wash. App.
2000).
BACKGROUND
From 1984 to 2004, Cabaness was a line
::ring foreman at Bountiful Power under the
-ediate supervision of Brent Thomas, the super-
dent of operations. The director of Bountiful
er and Thomas's direct supervisor was Clifford
- elis. While Michaelis had authority to hire
- :iire employees, Thomas did not.
Numerous employees at Bountiful Power
· - ed that Thomas frequently used gross pro-
- . and consistently verbally harassed, intimi-
-00, and ridiculed the employees he supervised.
his subordinates, Thomas was known as
- le Hitler" or "Dr. Jekyl and Mr. Hyde,"
- the walkway to his office was known as the
~een mile," a name from a movie depicting the
- way to the electric chair in a prison.
Thomas frequently made the work of his
rdinates harder without providing any jus-
cation for doing so other than to assert his

ority over them. . . . When Cabaness . . .
:::estioned why, Thomas responded that he was
e boss, and if they did not do what he said, he
uld write them up for insubordination, and
--=: might be fired ....
Thomas's conduct also evinced a disregard
~ safety procedures in an occupation that relies
- such procedures to protect its employees.
.- -ound 1983 or 1984, Thomas refused to let
....2baness put a ground on a pole with a primary
e of 7200 volts before working on it in order to
-=,e time. On another occasion, Thomas ignored
- :-several months Cabaness's concerns regarding
own fuses on a power line near an elementary
- ool that Cabaness felt were potentially haz-
--dous for children.
Throughout Cabaness's career with Bountiful
ower, Thomas would insult and demean him
. , among other things, calling him "dumbass,"
"jackass," and "asshole," and using cutting sar-
casm. Thomas would occasionally tell Cabaness
that he had a "piss poor attitude." On one occa-
sion, Thomas told Cabaness, "You know what
your problem is? It's your wife. You need to get rid
of your wife." Thomas pursued this subject until

Cabaness finally responded "my wife is none of
your business and my relationship with my wife
is none of your business, so drop it." On another
occasion, Cabaness witnessed Thomas knee an
employee in the groin with enough force to cause
the employee to fall to the floor in pain, after which
Thomas stated, "I guess I showed you who is boss."
... Cabaness was off work from July 23 to
September 8, 2003, due to medically-diagnosed
depression attributable in significant part to "a
hostile work environment and an abusive boss."
[W]hen Cabaness returned to work, Thomas sin-
gled him out in an employee meeting, threatened
to fire him, and criticized him about personal
issues in front of other employees.
Based on the above facts, Cabaness brought
intentional infliction of emotional distress claims
against Thomas ....
The district court entered summary judg-
ment in favor of .. . Thomas, holding that as a
matter of law Cabaness failed to demonstrate
that Thomas's conduct was extreme, intolerable,
and outrageous and therefore Cabaness could not
prove intentional infliction of emotional distress.
Cabaness appealed the district court's grant
of Defendant's motion for summary judgment.
ANALYSIS
A claim of intentional infliction of emotional
distress usually accrues when a plaintiff suffers
extreme emotional distress. However, there are occa-

sions when "emotional distress does not so much
occur as unfold- for example, where a defendant
subjects a plaintiff, not to a single outrageous act,
but to a pattern or practice of acts tolerable by them-
selves though clearly intolerable in the aggregate."
[R]easonable minds could differ regard-
ing whether Thomas's conduct was outrageous
and intolerable, and therefore the district court
erred by failing to allow Cabaness's claim against
Thomas to proceed to a jury.
To succeed on a claim of intentional inflic-
tion of emotional distress, a plaintiff must dem-
onstrate that the defendant
intentionally engaged in some conduct toward the
plaintiff, (a) with the purpose of inflicting emotional
distress, or, (b) where any reasonable person would
have known that such would result; and his actions
are of such a nature as to be considered outrageous
and intolerable in that they offend against the gen-
erally accepted standards of decency and morality.
Further, "[i]t is for the court to determine, in the
first instance, whether the defendant's conduct may
reasonably be regarded as so extreme and outra-
geous as to permit recovery." However, "[w]here
reasonable men may differ, it is for the jury, subject
to the control of the court, to determine whether, in
the particular case, the conduct has been sufficiently

extreme and outrageous to result in liability."
"To be considered outrageous, the con-
duct must evoke outrage or revulsion; it must
be more than unreasonable, unkind, or unfair."
Additionally, we have stated that "liability [for
intentional infliction of emotional distress] clearly
does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other
trivialities." However, we recognized that while a
single insult, indignity, or threat may not give rise
to liability for intentional infliction of emotional
distress, a continuous and ongoing pattern of the
same may constitute extreme, intolerable, and
outrageous conduct and thus result in liability.
Here, Cabaness has alleged an ongoing and
continuous pattern of abusive, intimidating, and
harassing behavior from his supervisor, Thomas.
Throughout Cabaness's career, Thomas insulted
and demeaned him .... Indeed, many employees
testified that Thomas frequently used gross profan-
ity and consistently verbally harassed the employ-
ees, including Cabaness. . . . Various employees
testified that Cabaness was often the focus o ·
Thomas' abusive behavior, especially towards the
end of his employment with Bountiful Power ... .
Cabaness also provided evidence dem-
onstrating that Thomas intentionally made
Cabaness's job more difficult and stressful. ...
In an occupation that relies on safety proce-
dures to secure the safety of its employees, Cabanes
offered evidence demonstrating Thomas's disre-

gard for the safety of Cabaness .... Cabaness tes-
tified that Thomas frequently required him, anc
other employees, to perform electrical work in the
rain even though the work could have been post-
poned and completed more safely.
In late 2003, Michaelis finally formed a
committee to investigate the complaints regard-
ing Thomas's harassment and intimidation. Aftt!:'
interviewing fifteen employees, Michaelis sent a
letter to Thomas warning him that his "intimi-
dation needs to stop." When the situation failec
to improve, Cabaness resigned in January 20().:
Significantly, between summer 2003 and sprin.=
2004, all but two of the Bountiful Power emplo; -
ees assigned to Thomas's crew quit primarily d"""
to his harassing, abusive, and intimidating condu
While any of these alleged insults or indigru-
ties on their own may not rise to the level of ou:-
rageous and intolerable conduct, taken togeth
and viewed in a light most favorable to Cabanes5
we conclude that reasonable minds could diffr-
regarding whether Thomas's conduct was m:::.-
rageous and intolerable. Accordingly, we haL:.
that the district court erred when it found as .::.
matter of law that Thomas's conduct was n~ -
outrageous, intolerable and offensive to gem·--
ally accepted standards of decency and morali.
Rather, because the facts, as alleged, raise gen··=-
and material issues regarding the level of ou
geous and intolerable conduct, summary ju .... =
ment was inappropriate.

ISCUSSION QUESTIONS
_ What must a plaintiff prove in order to win a case of
intentional infliction
·onal distress?
_ Do you think that the sort of "bad behavior" described in this
case is
'---~--~·~,g that can be cured by the legal system or is this the
type of situation
=an employee should simply either tolerate the behavior or
quit?
Procedurally, what had to happen next in this case for the
plaintiff to
SSION QUESTIONS
- What constitutes "extreme and outrageous" conduct is
obviously a
g issue, as is how debilitating the emotional distress must be to
be seen as
=-~."' Consider the facts of Harris v.]ones, 380 A.2d 611 (1977)
. The plaintiff
- - · employer (General Motors) and one of his supervisors, H .
Robert Jones.
hllew that the plaintiff suffered from a speech impediment that
caused
- stutter. Jones also knew that the plaintiff was very sensitive
about his
....=ry. "Jones approached Harris over 30 times at work and
verbally and

- y mimicked his stuttering disability .... As a result of Jones's
conduct
- was 'shaken up' and felt 'like going into a hole and hide.' "
However,
_ un concluded that Harris's humiliation was not so intense as to
meet the
:-ement of being severe. Do you agree?
- The March 1984 issue of Hustler magazine ran a parody of an
· ement for Cam pari Liqueur that featured various celebrities
describing the
e they tasted Campari. Hustler's version presented a supposed
interview
- e Reverend Jerry Falwell, a nationally prominent Protestant
minister,
="'-ative political figure, and head of the now defunct "Moral
Majority."
-advertisement" claimed that Falwell's first experience with
Campari was
; an incestuous sexual encounter with his mother in an outhouse.
Shortly
- e issue hit the newsstands, Falwell sued the magazine for
libel, invasion
acy, and intentional infliction of emotional distress. If you were
the judge,
ould you rule on each of these issues?
Deborah Roach was a frequent guest on the Howard Stern radio
show.
she died, her sister gave a portion of her cremated remains to a
friend,
turn brought them to a taping of Stern's show, because of her
belief that

::..y happiness Roach had was when she was on his show.
During the show,
and others handled various bone fragments while making vulgar
remarks.
- -::;. · o show was videotaped and later broadcast on a national
cable television
::. Roach's sister sued for intentional infliction of emotional
distress. The
- :ound a basis for the lawsuit. Do you agree?
arm to a Person's Property
__ . can be classified as either real property (land and anything
permanently
--ed to land) or personal property. The tort of trespass is when
someone
your rights to real property. An invasion of your rights to
personal prop-
-- be classified as either trespass to personal property or
conversion.
225 •
a. Trespass to Land
A trespass occurs whenever
1. someone enters or causes something to enter or remain

2. on the land of another
3. without permission.
Examples of trespass include entering land that is posted with
"No Trespassffi~
signs, standing alongside someone else's property and throwing
rocks onto
property, and tying your boat to someone else's dock during a
storm. The
situation raises the most common defense to trespass-that is,
that the tres--
was warranted to save the defendant's property or life.
b. Trespass to Personal Property and Conversion
Trespass to personal property occurs when someone harms or
interfe::
with the owner's exclusive possession of the property but has no
intentio
keeping the property. For example, if your neighbor
intentionally lets your ~-~=
loose, hoping it will never return, your neighbor has committed
the tort of tr
pass to personal property. Conversion is considered the "big
brother" of tres
in that it involves the more serious taking of someone else's
property with
intent of permanently depriving the owner. It is the civil side of
theft.
c. Defenses to Torts against Property
As mentioned above, private necessity, such as the need to tie
up a boa:
someone else's dock during a storm, may serve as a defense to
trespass. Also, _.

erally there is the right to invade another's land as a public
necessity (such -- -
put out a fire or to catch a fleeing felon). Another defense to
trespass topers~
property and conversion is rightfully retaining someone's
property. For exan:;
a car mechanic may rightfully retain an auto on which he has
worked until lie
paid for his labor. This is known as an artisan's lien.
3. Other Intentional Torts
False arrest, malicious prosecution, and abuse of process are all
intentional-
that are designed to provide some protection against misuse of
the legal sy ~-
False arrest occurs when a person is arrested (by either a law
officer or a cir:::-
without probable cause and when not covered by special
privilege. Mali
prosecution and abuse of process both involve malicious and
improper us=
the courts or other forms of legal proceedings. Note that the
plaintiff must r·
that the behavior was malicious (that is, that the person
proceeded even th
the charges were known to be invalid) and not just a mistake.
Finally, there are intentional torts related to business dealings.
Frau
intentional misrepresentation, involves (1) the intent to induce
reliance o- -
misrepresentation, (2) knowledge that the misrepresentation is
false or a r
disregard for the truth, (3) justifiable reliance, and (4) harm.
Fraud can forr:::

B. Negligence
-either a tort or a contract claim. We will discuss it more fully
in the next
n contracts.
-e tort of interference with a contractual relationship prohibits
one from
-E a party to breach a contract or interfering with the
performance of a
- Intentionally interfering with a contractual relationship can
prove to
e..xpensive, as is illustrated by the case of Pennzoil v. Texaco.
Pennzoil had
~with the Getty Oil Company to purchase Getty Oil at $122.05
per
-~"ore they could do so, however, Texaco offered Getty a higher
price per
'ch Getty accepted. Pennzoil took Texaco to court and won a
$10.53
dgment on its claim of tortious interference. Although that
amount was
-="" ed to a $3 billion settlement, the case still stands as a
powerful warn-
=:::.:lSt intentionally derailing contractual arrangements.H
: 5 e 7-2 summarizes the elements and defenses of the most
common
al torts.
GLIGENCE

common tort actions involve negligence. Negligence is a failure
to act
~- -onably prudent and careful person is expected to act in
similar circum-
------ It is a careless inflicting of an injury as opposed to an
intentional one .
.: ce actions can arise from such diverse circumstances as a slip
on a wet
- a supermarket floor to alleged medical malpractice. The four
basic ele-
a negligence case are duty, breach of duty, causation, and harm.
Elements of Negligence
-er 1 you learned that not every problem is a problem for which
the
.ill supply a remedy. For example, to be found negligent, a
person must
--ed unreasonably under the circumstances. More specifically,
the courts
- the following four elements to establish negligence:
The defendant must owe a duty to the plaintiff to act
reasonably, and
~ the defendant must have breached that duty
~ thereby causing
- the plaintiff harm.
- the following case, the plaintiffs learned that a feeling of
outrage is not
_- to support a cause of action.

La baton, Texaco Reported to Reach Accord on Pennzoil Suit,
N.Y. Times, Dec. 19, 1987.
227 •
Prima Facie Case
Assault
2. that creates a reasonable apprehension
of
3. an immediate harmful or
offensive physical contact
Battery
2. that creates a harmfu I or offensive
physica l contact
False imprisonment
2. that caused confinement or restraint
3. through force or the threat of force
Defamation
1. publication
2. of fa lse statements
3. that cause harm to reputation

Invasion of privacy covers a variety of
different situations, including
1. disclosure
2. intrusion
3. appropriation
4. fa lse light
Intentional infliction of emotional distress
2. that is extreme and outrageous
3. and causes
4. severe emotional distress
Trespass to land
1. someone enters or causes someth ing
to enter or remain
2. on the land of another
3. without permission
Trespass to personal property
1. interference with the owner's
exclusive possession
2. of persona l property
Conversion
1. taking
2. personal property
3. of another
4. with the intent of permanently depriving
the owner
Figure 7-2 Summary of Intentional Torts

Defenses
1. consent
2. self-defense
3. defense of others
4. sometimes defense of property
1. consent
2. justification (e.g., shopkeeper's
statute)
1. truth
2. privilege
1. consent
2. newsworthiness
1. consent
1. consent
2. private necessity
3. publi c necessity
1. rightful retention (e.g., under a
mechanic's lien)
2. necessity
Yvonne Ewans, Camille Lewis, Lewis's
or daughter, Saravanan Rathinasabapathy,
=...,d Nithya Saravanan sued Wells Fargo Bank

~ state court under Texas tort law. Wells Fargo
:cmoved to the Northern District of Texas and
on summary judgment on all claims. The plain-
..ifs appealed .... After reviewing the parties'
~ missions and the summary judgment record,
e cannot but agree that the district court came
- the right conclusion.
Cindy Pirrello worked as a teller at a Wells
~-~o branch in Frisco, Texas, and at 1:30 in the
_.:....ernoon ... she had a half-hour left before clos-
::! rime. That is when she watched two men walk
- whom she had never seen before. As they sat
- wn together at loan officer Matt Palmer's desk,
:rello for a second noticed what looked like a
_ ::::1 handle on one man's right hip, but-before
-e could get a better look-he had pulled his
- rt down over his waistband.
Pirrello told her shift supervisor, Sonia
- nzo, that one of the men might have a gun.
- onzo told Pirrello not to be crazy and went back
er work. Pirrello could not brush it off so eas-
remembering that bank employees had been
- -ed to keep an eye out for suspicious activity;
- tmknown assailant recently had gotten away
-:zr robbing a nearby Wells Fargo. Plus, a techni-
- named John Rooney was performing main-
- ce on the vault, leaving the bank's security

- romised.
Pirrello relayed her concern to another
- er, Chris Maiwald, whose desk sat adjacent
_ almer's. Maiwald verified the holster on the
-·s hip, but-because of the pulled-down
-:- could not tell if it housed a gun. Maiwald
noticed the men acting strangely, particu-
- rhe man with the bulge under his shirt. He
: _ getting up, talking on his cell phone, pac-
~ ::: ound, and looking out the windows. Then
aid saw an SUV parked out front. It had
B. Negligence 229 •
tinted windows and the ignition running. One
door was wide open. Maiwald walked back into
the vault to ask Rooney, the technician, if he
owned the SUV; he did not.
Maiwald, a former sheriff's deputy in
Randall County, Texas, agreed they had to piay
it safe, that they should call for backup to inves-
tigate. After making a group decision, ... Pirrello
tripped the silent alarm. Wells Fargo's private
security center called the branch to see what was
going on-to make sure it was not a false alarm.
Pirrello answered and explained right off the bat
"we're not robbed." She went on to say there
were "two males sitting at one of our personal
desks" and "we have a possibility that he has a
gun on his hip, and his car is parked right outside

the door and they've been on the phone since they
got here." Pirrello added "our vault [is] wide open
because we had a problem last night."
The private security operator told Pirrello
to call 911. ... Maiwald then took over the call:
Mr. Maiwald: If we could, could we have a
police officer, not in uniform preferably?
911 Operator: They're coming now on a
robbery.
Mr. Maiwald: Anyways. (Laughter) You
might want to-you might want to stop that. It's
not a robbery in progress.
911 Operator: Okay, sir. We have one offi-
cer that's there right now. What is actually going
on there, then?
Mr. Maiwald: Nothing .... Very suspicious.
So-you know, and I apologize for this, but that
said, probably what we need is maybe just the
officer to either, you know, walk in and say hi to
everybody or just stay in his car out front. I don't
know what your procedure is on that.
The police did not just send one officer to
investigate. They sent in no fewer than ten offi-
cers. They set up a perimeter, and the SUV -the

getaway car-started to drive off. The police
stopped it and ordered the driver to call the man
inside the bank, the one with the bulge. Once the
police had the man on the phone, they ordered
him out of the bank-had him crawl out the
front door on his hands and knees. After subdu-
ing him, the police stormed the bank and cap-
tured the other man.
Nobody had a gun. Neither man had any
nefarious intentions. To the contrary, both are
hard-working and law-abiding. The man with the
hip holster was Ewans, and the holster was for his
phone. He had just sold his car to the other man,
Saravanan. Ewans's girlfriend, Lewis, had given
them a ride to Wells Fargo to secure a car loan.
Lewis, who drove the tinted SUV, had her young
daughter in the car-which is why she left it run-
ning and kept a door open while waiting in front
of the bank.
Ewans's negligence claims must fail under
an objective standard. Nobody can argue that the
plaintiffs-and particularly Ewans-suffered
great embarrassment. But just because somebody
has been hurt does not mean that the law will
find fault. Indeed, harm is but a fraction of the
test; For the plaintiffs to recover, they must show
that Wells Fargo (1) owed them a duty of care, (2)
which it breached, (3) which in turn caused their
damages. The focus here is on prong two, whether
Wells Fargo lived up to its duty of care-whether
its employees acted like the reasonable person
would.
After Wells Fargo moved for summary judg-

ment, the plaintiffs failed to point to evidence
establishing a genuine issue of material fact that
the bank employees acted unreasonably under
the circumstances ....
Pirrello, Maiwald, and Zlotnik kne
that a different Wells Fargo had recently beer:
robbed. Their vault was exposed. Two men, no::
regular customers of the bank, walked in near
closing time and would not sit still. They kep:
talking on their phones, pacing, looking aroun
the bank, and searching out the windows. One
employee saw what might have been a gun, anc
the other employees acknowledged a bulge o:
some kind hidden under one man's shirt. Worse.
an unknown SUV was parked-running, with c.
door open-immediately in front of the bank.
The employees did not know if the men were cas-
ing the joint. They did not know if the car was
a getaway car. Under these circumstances, it was
reasonable to want to call for an investigatorr
backup. When they did, the employees told the
911 operator that there was no robbery and spe-
cifically asked for just one police officer either
stay outside in his car or to do a walk-through.
Everybody involved likely wishes [none o;
this ever] happened, or, at least, that it had no:
happened as it did. In a perfect world, Saravana:::.
gets his loan and Ewans sells his car; Pirre
routinely closes the bank and the police patr~.
without incident; everyone goes home to enjo
a North Texas Saturday night. But tort law d~
not require the optimal outcome, just reasonab:e
behavior-and will not here compensate Ewam
even though he innocently suffered. Doing s

would punish ordinarily prudent bankers, bank-
ers who might then be deterred from soundin:=
the alarm in dangerous situations. When it com
to security, the law requires us to accept reaso:..-
able false positives in order to avoid the mo:-e
catastrophic false negatives.
AFFIRMED.
1. Which element of negligence were the plaintiffs unable to
prove?
2 . Do you agree with the court's last statement that in the case
of secu:--
it is better to have false positives than to risk false negatives?
B. Negligence
- rhe following sections, we will discuss in more detail the four
elements
ence: duty, breach, cause, and harm.
Duty
:"' e law imposes a duty to act with "due care." This due care
standard is
----"~in terms of how a "reasonably prudent person" would act
in the same
n. If the person has some specialized type of training, such as a
medical
= rhen that individual is expected to act not just as a reasonable

person
- act but also as a reasonable person" with medical training
would act.
~rmore, the greater the inherent danger is in a particular
situation, the
.:autious the individual is expected to be. The duty is owed by
all persons
- - ~e society to a degree that is consistent with their ages and
physical and
onditions. Jurisdictions differ, however, as to whom it is owed.
Most
~e the position that this duty to act with due care is owed to
anyone
- ers injuries as a proximate or direct result of the person's
actions. Other
say the duty applies only to those persons for whom there was a
foresee-
-k.
"That legal duty you owe to others also varies depending on
your relation-
- mat other person. The closer and more direct the relationship,
the greater
·elihood that a court will find a duty. For example, a doctor
clearly has a
: ::> use due care in treating her patients. However, does the
doctor also owe
ro the patient's family? For instance, if the doctor failed to
diagnose a
--_·ous disease and the patient transmitted that disease to his
wife, should
=e be able to sue the doctor?

--~other example of how the relationship between the parties
can deter-
- - e degree of duty owed is seen in the varying levels of duty a
landowner
-o different types of people on his or her land. Many states,
using a stan-
- ased solely on the status of the person injured, hold that a
higher duty
ed to someone lawfully invited and present than to a trespasser.
Further,
::JaY view the duty owed to an adult trespasser as less than that
owed to a
- -..espasser. Other states simply say that landowners owe a
duty of care to
ne on their land. However, the level of duty varies with the
circumstances,
-~--~·~g whether the person harmed was a trespasser. While the
result may be
- e, the approaches are fundamentally different. A court in the
latter type
-~diction would not base its analysis solely on the status of the
person
-_ but would take into account everything that contributed to
the injury.
One of the circumstances that might influence a finding of
negligence is
-er the defendant was acting under an emergency situation. For
example,
ery colorful opinion, Cordas v. Peerless Transportation Co., 15
New York's

·- court was faced with the following situation: A thief was
running down
attan street being chased by his victim and a group of concerned
citizens.
-- ·et, armed with a pistol, jumped into a parked taxicab and
ordered the
=:: o drive. The driver proceeded about 15 feet and then:
Misfeasance
Acting in an improper
or a wrongful way.
Nonfeasance
Failing to act.
quickly threw his car out of first speed in which he was
proceeding, pulled on the
emergency, jammed on his brakes, and, although he [thought]
the motor was still run-
ning, swung open the door to his left and jumped out of his car.
He confesses that the
only act that smacked of intelligence was that by which he
jammed the brakes in order
to throw off balance the hold-up man who was half-standing and
half-sitting with his
pistol menacingly poised.16
Mrs. Cordas and her two children were standing on an adjacent
sidew
and were injured by the driverless taxi. They sued the taxicab

company, clairr:-
ing that the driver acted negligently in jumping to safety and
leaving the moving
vehicle uncontrolled.
The court stated that "the test of actionable negligence is what
reasonab
prudent men would have done under the same circumstances."
17 The court th
held that when faced with an emergency a person is not required
to exercise
same mature judgment that is expected under circumstances
where there is --
opportunity for deliberation. In this case the driver" -the
ordinary man in
case-acted in a split second in a most harrowing experience ....
The court
loathe to see the plaintiffs go without recovery even though
their damages wer.""
slight, but cannot hold the defendant liable upon the facts
adduced at the trial.'"
Therefore, plaintiffs were not entitled to recover from the cab
driverY
Finally, the courts sometimes couch their discussion of duty in
terms -·
misfeasance versus nonfeasance. Generally, you only owe a
duty to refrain fro-
harming someone. If you do actually harm someone, that is
misfeasance. Furth
there is no duty to prevent harm to those with whom you have
no direct contac:
Therefore, generally nonfeasance, the absence of action, cannot
lead to liabili.
However, in order to find liability, a court might label an
activity as misfeasan-

even though on the surface it appeared as though the defendant
had not direc:
caused the injury. This was the case in Weirum v. RKO General
Inc. 20 In order:
increase its listening audience, a rock station held a contest
wherein a traveli::_
disk jockey gave out clues to his location. The first to arrive on
the scene wo~-
receive a prize. Two teenagers, in an attempt to beat each other
to the pri.z.e
drove in excess of 80 miles an hour and forced the plaintiff's car
off the roa-
The court stated:
The primary question for our determination is whether
defendant owed a duty to dece-
dent arising out of its broadcast of the giveaway contest. The
determination of du .
is primarily a question of law. It is the court's "expression of
the sum total of those
considerations of policy which lead the law to say that the
particular plaintiff is entitle<!
to protection" (Prosser, Law of Torts (4th ed. 1971) pp. 325-
326). Any number of con-
siderations may justify the imposition of duty in particular
circumstances, includin
the guidance of history, our continually refined concepts of
morals and justice, th
convenience of the rule, and social judgment as to where the
loss should fall. While the
question whether one owes a duty to another must be decided on
a case-by-case basi
16Id. at 199-200.
17 Id. at 200.
18Id. at 202.

t9Id.
20539 P.2d 36 (Cal. 1975).
B. Negligence
- is governed by the rule of general application that all persons
are required
-dinary care to prevent others from being injured as the result of
their conduct.
~foreseeability of the risk is a primary consideration in
establishing the element
- found that the risk to the plaintiff was foreseeable. While
acknowledg-
- ormally, absent a special relationship, no one owes a duty to
control
- ct of third parties, the court stated that the rule does not apply
in a
- as this one where the radio station's conduct is what created
the undue
nee exists when the defendant is responsible for making the
plaintiff's posi-
orse, i.e., defendant has created a risk. Conversely, nonfeasance
is found when
- - ndant has failed to aid plaintiff through beneficial
intervention. As section 315
- Restatement of the Law of Torts, Second] illustrates, liability
for nonfeasance is
limited to those circumstances in which some special
relationship can be estab-

.:.. If, on the other hand, the act complained of is one of
misfeasance, the question
_ is governed by the standards of ordinary care discussed above.
Here, there can
e doubt that we review an act of misfeasance to which section
315 is inapplicable.
city is not predicated upon defendant's failure to intervene for
the benefit of dece-
ut rather upon its creation of an unreasonable risk of harm to
him.22
SSION QUESTION
- In the Weirum case the defendants argued that finding them
liable
- lead to situations in which "entrepreneurs will henceforth be
burdened
an avalanche of obligations: an athletic department will owe a
duty to an
-sports fan injured while hastening to purchase one of a limited
number
- ·ets; a department store will be liable for injuries incurred in
response to a
"-they-last' sale."23 How do you think the court responded?
_._s the Weirum court noted, issues of duty usually revolve
around whether
: aintiff was someone whom the defendant could foresee would
be harmed
actions. Courts frequently say that duty is a question of law to
be deter-
=d by the judge, while foreseeability is a question of fact to be

determined
- e Jury.
It is always to the defendant's benefit to end a lawsuit as early
as possible
•ve litigation expenses and to put the matter to rest. On the
other hand, it is
~ to the benefit of the plaintiff to go to trial, especially when
the facts may
.:se the jury's sympathy. Therefore, in a negligence action the
defendant will
:o argue whenever possible that the defendant owed no duty to
the plaintiff.
-'uty is a question of law, the judge can resolve the matter on a
motion to
· ss. If the judge determines that there was no duty, then the
plaintiff loses
:. the case is dismissed. However, the plaintiff will try to
characterize the issue
_ question of foreseeability, thereby necessitating a trial. Then
the jury, after
233 •
hearing all of the evidence and seeing the extent of the
plaintiff's injuries, caz
resolve the issue of foreseeability as a question of fact.
At times, even though the person injured was a "foreseeable
plaintiff," fo:

policy reasons the courts will state that no duty is owed to the
plaintiff. Fo~
example, in New York, until the courts were confronted with the
foiiowing case.
an infant harmed while a fetus had no right to sue for his or her
negligen .
caused injuries. While reading the case, pay particular attention
to the reasoru
the court gives for its decision to expand the range of those to
whom a duty :_
owed to include a viable fetus.
DESMOND,}.
The complaint served on behalf of this
infant plaintiff alleges that, while the infant was
in his mother's womb during the ninth month of
her pregnancy, he sustained, through the negli-
gence of defendant, such serious injuries that he
came into this world permanently maimed and
disabled. Defendant moved to dismiss the com-
plaint as not stating a cause of action, thus tak-
ing the position that its allegations, though true,
gave the infant no right to recover damages in the
courts of New York. The Special Term granted
the motion and dismissed the suit, citing Drobner
v. Peters (232 N.Y. 220). In the Appellate Division
one Justice voted for reversal with an opinion in
which he described the obvious injustice of the
rule, noted a decisional trend (in other States and
Canada) toward giving relief in such cases, and
suggested that since Drobner v. Peters (supra) was
decided thirty years ago by a divided vote, our
court might well re-examine it.
The four Appellate Division Justices who

voted to affirm the dismissal below, wrote no
opinion except that one of them stated that, were
the question an open one and were he not bound
by Drobner v. Peters (supra), he would hold that
"when a pregnant woman is injured through
negligence and the child subsequently born suf-
fers deformity or other injury as a result, recovery
therefore may be allowed to the child, provided
the causal relation between the negligence and
the damage to the child be established by com-
petent medical evidence." (278 App. Div. 913.) It
will hardly be disputed that justice (not emotion-
alism or sentimentality) dictates the enforcement
of such a cause of action. The trend in decisions o
other courts, and the writings of learned commen-
tators, in the period since Drobner v. Peters was
handed down in 1921, is strongly toward making
such a recovery possible. The precise question for
us on this appeal is: shall we foiiow Drobner t.
Peters, or shall we bring the common law of this
State, on this question, into accord with justice?
think, as New York State's court of last resort, we
should make the law conform to right.
Drobner v. Peters (supra), like the presen-
case, dealt with the sufficiency of a complain:
aiieging prenatal injuries, tortiously inflicted on a
nine-month foetus, viable at the time and actuall.
born later. There is, therefore, no material distinc-
tion between that case and the one we are pasc-
ing on now. However, Drobner v. Peters must
examined against a background of history and o:
the legal thought of its time and of the thirty years
that have passed since it was handed down .. .
The movement toward a more just treatment o:

such claims seems to have commenced with the
able dissent in the Allaire case, which urged that
_ -; d viable but in utero, if injured by tort, should,
en born, be allowed to sue ....
In Drobner v. Peters (supra), this court, find-
- no precedent for maintaining the suit, adopted
__ , general theory of Dietrich v. Northampton
ra) , taking into account, besides the lack of
- ority to support the suit, the practical diffi-
~es of proof in such cases, and the theoretical
- -_, of separate human existence of an infant in
-~~o. It is not unfair to say that the basic reason
~ Drobner v. Peters was absence of precedent.
- wever, since 1921, numerous and impressive
- ative precedents have been developed ....
: law review articles on the precise question
-~e is an ample supply. They justify the state-
-- t in Prosser on Torts, at page 190, that: "All
:ers who have discussed the problem have
-"'ed in condemning the existing rule, in main-
. g that the unborn child in the path of an
-omobile is as much a person in the street as
-" mother, and urging that recovery should be
wed upon proper proof."
What, then, stands in the way of a rever-

here? Surely, as an original proposition, we
uld, today, be hard put to it to find a sound
~-on for the old rule. Following Drobner v.
;ers (supra) would call for an affirmance but
; ~hie£ basis for that holding (lack of precedent)
.anger exists. And it is not a very strong rea-
anyhow, in a case like this. Of course, rules
..aw on which men rely in their business deal-
- should not be changed in the middle of the
e, but what has that to do with bringing
tice a tortfeasor who surely has no moral
her right to rely on a decision of the New
-- Court of Appeals? Negligence law is com-
law, and the common law has been molded
- changed and brought up-to-date in many
:her case. Our court said, long ago, that it had
only the right, but the duty to re-examine a
·on where justice demands it. That opinion
-e:s that Chancellor Kent, more than a century
= . had stated that upwards of a thousand cases
d then be pointed out in the English and
- erican reports "which had been overruled,
_ ~ed or limited in their application," and
that the great Chancellor had declared that deci-
sions which seem contrary to reason "ought to be

examined without fear, and revised without reluc-
tance, rather than to have the character of our
law impaired, and the beauty and harmony of the
system destroyed by the perpetuity of error." And
Justice Sutherland, writing for the Supreme Court
in Funk v. United States (290 U.S. 371, 382), said
that while legislative bodies have the power to
change old rules of law, nevertheless, when they
fail to act, it is the duty of the court to bring the
law into accordance with present day standards
of wisdom and justice rather than "with some
outworn and antiquated rule of the past." No
reason appears why there should not be the same
approach when traditional common-law rules of
negligence result in injustice.
The sum of the argument against plaintiff
here is that there is no New York decision in
which such a claim has been enforced. Winfield's
answer to that (see U. of Toronto L.J. article,
supra, p. 29) will serve: "if that were a valid
objection, the common law would now be what it
was in the Plantagenet period." And we can bor-
row from our British friends another mot: "When
these ghosts of the past stand in the path of justice
clanking their mediaeval chains the proper course
for the judge is to pass through them undeterred"
(Lord Atkin in United Australia, Ltd., v. Barclay's
Bank, Ltd., [1941] A. C. 1, 29). We act in the finest
common-law tradition when we adapt and alter
decisional law to produce common-sense justice.
The same answer goes to the argument that
the change we here propose should come from
the Legislature, not the courts. Legislative action
there could, of course, be, but we abdicate our

own function, in a field peculiarly nonstatutory,
when we refuse to reconsider an old and unsatis-
factory court-made rule . . ..
Two other reasons for dismissal (besides
lack of precedent) are given in Drobner v. Peters
(supra). The first of those, discussed in many of
the other writings on the subject herein cited,
has to do with the supposed difficulty of prov-
ing or disproving that certain injuries befell the
unborn child, or that they produced the defects
discovered at birth, or later. Such difficulties there
are, of course, and, indeed, it seems to be com-
monly accepted that only a blow of tremendous
force will ordinarily injure a foetus, so carefully
does nature insulate it. But such difficulty of proof
or finding is not special to this particular kind
of lawsuit (and it is beside the point, anyhow,
in determining sufficiency of a pleading). Every
day in all our trial courts (and before adminis-
trative tribunals, particularly the Workmen's
Compensation Board), such issues are disposed
of, and it is an inadmissible concept that uncer-
tainty of proof can ever destroy a legal right. The
questions of causation, reasonable certainty, etc.,
which will arise in these cases are no different, in
kind, from the ones which have arisen in thou-
sands of other negligence cases decided in this
State, in the past.
The other objection to recovery here is the

purely theoretical one that a foetus in utero has
no existence of its own separate from that of its
mother, that is, that it is not "a being in esse."
We need not deal here with so large a subject.
It is to be remembered that we are passing on
the sufficiency of a complaint which alleges that
this injury occurred during the ninth month of
the mother's pregnancy, in other words, to a via-
ble foetus, later born. Therefore, we confine our
holding in this case to prepartum injuries to such
viable children. Of course such a child, still in the
womb is, in one sense, a part of its mother, but no
one seems to claim that the mother, in her own
name and for herself, could get damages for the
injuries to her infant. To hold, as matter of law,
that no viable foetus has any separate existence
which the law will recognize is for the law to
deny a simple and easily demonstrable fact. This
child, when injured, was in fact, alive and capable
of being delivered and of remaining alive, sepa-
rate from its mother. We agree with the dissenting
Justice below that "To deny the infant relief in
this case is not only a harsh result, but its effect is
to do reverence to an outmoded, timeworn fiction
not founded on fact and within common knowl-
edge untrue and unjustified."
The judgments should be reversed, and the
motion denied, with costs in all courts.
LEWIS, J. (dissenting). I agree with the view
of a majority of the court that prenatal injury to
a child should not go unrequited by the one at
fault.

If, however, an unborn child is to be
endowed with the right to enforce such requital
by an action at law, I think that right should not
be created by a judicial decision on the facts in a
single case. Better, I believe, that the right should
be the product of legislative action taken after
hearings at which the Legislature can be advised,
by the aid of medical science and research, nor
only as to the stage of gestation at which a foetus
is considered viable, but also as to appropriate
means-by time limitation for suit and other-
wise-for avoiding abuses which might result
from the difficulty of tracing causation from pre-
natal injury to post-natal deformity . . . .
Accordingly, I dissent and vote for affirmance.
1. Reading this case we learned almost nothing about the facts
that ga . _
rise to this lawsuit. What procedural reason explains why we do
not know ve~
many of the facts?
2 . Why did the court decide to overrule Drobner v. Peters?
3. What limitations did the court put on its holding? What
difficulties cz:.
you foresee this creating for future litigants?
4. Do you agree with the court that this issue was a matter for
judicial --
opposed to legislative change? Why?

B. Negligence
- The Massachusetts Supreme Judicial Court was faced with the
following
5o.:enario. A daughter wished to sue her mother for negligence
that stemmed
a car accident while the child was a fetus. The mother allegedly
drove
.:ar through an intersection, causing a collision with another
vehicle. The
_ -.:er was born prematurely four days later. Her premature
birth caused
- a umber of respiratory problems that plagued her with severe
breathing
0
es. Assuming the court were to follow the reasoning of the
Woods v.
- decision, how do you think the Massachusetts court decided?
Why?
. Breach
order to determine if someone has breached the duty of due
care, the
onsiders all the circumstances. In evaluating those
circumstances, the
::s of the defendant are measured by an objective standard. That
is, the jury
.-ed to consider what a reasonable person would have done.
order to prove how a reasonable professional would have acted,

the
- · · will be required to call an expert witness to testify as to the
profes-
:: standard of care and how in the expert's opinion the defendant
breached
-~dard. For example, in a case involving alleged medical
malpractice by a
=we oncologist, the plaintiff would call as an expert witness a
doctor spe-
g in that field.
-ometimes the defendant's actions violate a statute. If that
statute's purpose
• rotect the public, the plaintiff belongs to the group of persons
the statute
~eant to protect, and violation of the statute was a direct cause
of the plain-
: mjury, then some states will hold that violation of the statute
is negligence
-"'. In other states violation of such a statute is only evidence of
negligence
- .:an be rebutted. For example, assume there is a state statute
prohibiting the
f firearms to minors. A store owner sells a gun to a minor, and
the minor,
,. playing a game of "chicken," discharges the gun, injuring
another minor.
"' inj ured minor sued the store owner, he would argue that the
purpose of
rute was public protection, that he belonged to that group the
statute was

~ed to protect, and finally that the seller's violation of the
statute directly
his injury. In those states that hold that violation of such a
statute is neg-
- per se, the store owner would be found liable based on his
violation of
:arute. In those states where the presumption of negligence can
be rebutted,
_ore owner would try to introduce evidence showing that his act
of selling
=:m and its accidental discharge were too removed from each
other to make
- o hold him responsible.
USSION QUESTIONS
0 Most states have statutes prohibiting the sale of alcohol to a
minor.
_ :-ore sold alcohol to a minor and the minor while intoxicated
drove an
~obile that collided with and killed a cyclist, would the liquor
store owner
d liable as to the deceased cyclist?
On an icy, snow-covered road the plaintiff lost control of her
car, skidded
- the center line, and collided with a road grader, driven by the
defendant.
237 •

The defendant did not have the statutorily required class B
driver's license. Th
plaintiff, who was severely injured in the accident, sued the
defendant under th=-
theory of negligence per se. How do you think the court ruled
and why?
Res ipsa loquitur
"The thing speaks for
itself"; the doctrine that
suggests negligence can
be presumed if an event
happens that would not
ordinarily happen unless
someone was negligent.
Another concept that can sometimes be used by the plaintiff to
show neg-
ligence is the doctrine of res ipsa loquitur-the thing speaks for
itself. Res ip--
loquitur applies in those situations where the event ordinarily
would not ha':"'E
happened unless someone was negligent, the cause of the injury
was under the
defendant's exclusive control, and the injury was not due to the
plaintiff's actions
For example, elevators usually do not drop, panes of glass
usually do not fall ou
of windows, and planes do not crash absent someone's
negligence. In those types
of situations the court will assume that the defendant was
negligent without rh=-
plaintiff having to prove the precise nature of that negligence.

Because in each case involving breach the court must evaluate
the behavio-
given all the circumstances, the specific facts become very
important. In reacl.in.:=
the following case pay attention to the particular facts that you
think influencec
the court's determination that there was no breach of duty. Even
though
plaintiff in this case was 13, notice how the court uses the
archaic term "infan-
when referring to him.
BERGAN,}.
The infant plaintiff, a camper at defendant's
Summer camp, was injured while playing a game
supervised by defendant's personnel. The infant
was 13 years old and the game was a "water
fight" between groups of campers of similar age,
played on a grass-covered area in which oppos-
ing groups of boys doused each other with water
from cups or water pistols.
In running away from an opponent, the
infant plaintiff slipped on the grass and struck his
head on a concrete walk at the side of the grass
area. After a trial before the court without a jury,
an award of $15,000 has been made to infant
plaintiff and nominal damages to his father.
In our view of the record, this result is not
warranted. The defendant, as the operator of a
camp for boys, could not reasonably be made
responsible in damages for the consequences
of every possible hazard of play activity. It was

required, rather, to guard against dangers which
ought to have been foreseen in the exercise of rea-
sonable care.
It has not been demonstrated that the water
fight game was more hazardous than any ordinary
camp activity involving running. It was inevitable
in the game that the grass would become wet:
and, indeed, in any such game among 13-year-
old boys, that there would be tumbles and falls
whether it was wet or dry.
To impose liability in this situation is to
interdict the game itself, which in turn would so
sterilize camping activity for boys as to render it
sedentary. It would take a keen sense of the pre-
scient to envisage that in running in the game the
infant plaintiff would slip at the very point in the
area where there was a concrete walk. Nor is it,
indeed, clearly demonstrated that, in view of the
infant's plaintiff's bare feet, the wetness of the
grass played any effective part in his falling.
The Trial Judge felt that the game itself"[had]
ery aspect of innocent play"; that the supervi-
was adequate and there was no "defect in
-- e grounds on which the contest took place." (33
· . 2d 785, 786.) He felt, however, that the game
uld have been played on sand and not on grass.

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