It makes no difference whether a good man has defrauded a bad man or a badman defrauded a good man, or whether a good or bad man has committed adul-tery: the law can look only to the amount of damage done.

Aristotle

If America is—as some say—“a most litigious society,” it is because Americansso often seek remedies in court instead of seeking mediation or yielding to soci-etal pressures to compromise, as happens in so many traditional cultures. Chap-ter 12 considers our obligation to “do no harm” to others and discusses the con-sequences of breaching that legal obligation. Civil wrongs—known as “torts” inthe law—result from intentional acts, unintentional accidents, and from failureto act when one is legally obligated to do something. The chapter compares the“no harm–no foul” rule of tort law to the stricter standards of criminal law.

The student who has carefully read this chapter should be prepared to an-swer these questions:

■ What is a tort, and are torts crimes?

■ What is negligence?

■ What is strict liability?

■ What are the most common intentional torts?

■ What is the difference between actual and constructive fraud?

■ Can one sue for intentional infliction of emotional distress?

■ What is a nuisance?

■ Can one sue for the invasion of privacy?

■ What is malicious prosecution?

■ How are new “causes of action” discovered by the courts?

■ Does a cause of action survive the death of either the tortfeasor or thevictim?

■ Can one sue the government?

C H A P T E R 1212C H A P T E R

1

The Law of Torts

2 CHAPTER 12

SCENARIO

The city hall chambers were crowded with a standing-room-only audience. Some ofthe spectators were holding placards bearing slogans such as “Save Our Neighbor-hood,” “No More Development!!” and “STOP Corporate Greed.” The seven councilmembers were listening with varying expressions of boredom or annoyance as anelderly woman spoke into the microphone. “We know that several of you have ac-cepted large campaign contributions from this development company, and we willhold you accountable if you let that money sway your vote against the people,” sheconcluded. She returned to her seat amid thunderous applause.

The next speaker was to be Jonathan Merrill. Until six weeks ago, Jonathanhad never been politically active and usually tried to avoid controversy. Butwhen he learned that the city council was expected to approve development ofa new shopping mall adjacent to his old, middle-class neighborhood, he becameincensed. The proposed mall was to be located on a large parcel of landpresently zoned for public parks. The proposed development had already re-ceived the city planning commission’s recommendation for a zoning change,and the city council was deliberating approval of that change as well as final ap-proval of the environmental impact reports.

Jonathan began circulating a neighborhood petition opposing the shoppingmall development. Neighborhood meetings were held in his living room until thecrowd became too large. The meetings were then moved to the multipurposeroom in the local elementary school. Jonathan found himself to be a somewhatreluctant, de facto leader and chief spokesperson for the loosely organized Citi-zens for Preserving North Park.

As he approached the microphone, Jonathan fingered a few cards on whichhe had scrawled talking points for his statement to the city council. “The Mid-land Mall Corporation has deceived this council,” he began. “Their figures for ve-hicular traffic and air pollution are grossly understated, and they know it. Be-yond that, they outright lied to us when our citizens’ group met with their topmanagement and architects to ask them to scale back this proposal.” Someonein the crowd called out, “You tell ’em, Johnnie!” Jonathan was discovering a la-tent talent for making a stem-winder speech, and the cheering crowd was on itsfeet when he concluded with these words: “There is no place for a Midland Mallin our neighborhood, and if you approve this proposal, we will recall every sin-gle council member who votes for it!”

Ten days later, Jonathan was approached by a stranger as he walked towardhis car in his employer’s parking lot. The stranger asked, “Are you Jonathan Mer-rill?” When Jonathan nodded, the stranger handed him a thick document. Un-folding the official-looking document, Jonathan saw that it was entitled “COM-PLAINT FOR LIBEL, SLANDER, AND INTERFERENCE WITH PROSPECTIVEECONOMIC ADVANTAGE.” The plaintiff was “MIDLAND MALL CORPORATION, aDelaware Corporation.” Named as defendants were “CITIZENS FOR PRESERVINGNORTH PARK, an unincorporated association, JONATHAN MERRILL, an individ-ual, and DOES 1 through 100.” Folded inside the complaint was a summons giv-ing Jonathan 30 days within which to respond to the lawsuit. ■

Jonathan is being sued. He and his wife have few assets, other than theirhome, and little in savings. The Citizens for Preserving North Park has less than$1,000 in its bank account. It is unlikely that Midland Mall Corporation has anyinterest in the negligible assets of these defendants. In reality, Midland Malldoesn’t want their money—it simply wants their silence.

Midland Mall’s lawsuit against Jonathan and the neighborhood citizensgroup is known as a SLAPP suit. SLAPP is an acronym for “strategic litigation

A SLAPP suit is a lawsuit filedwith the intent of silencingcitizen complaints before agovernment agency. SLAPPstands for “strategic litigationagainst public participation.”

The Law of Torts 3

TORTS: WRONGFUL ACTSAND OMISSIONS

against public participation.” Corporations sometimes file SLAPP suits againstindividuals who appear before government agencies to challenge their businessactivities. In the opening scenario, the developer has filed a SLAPP suit againstcitizens who have appeared before a city council to oppose a proposed devel-opment. The hapless defendants will find themselves besieged with legal ma-neuvers forcing them to pay substantial attorneys’ fees and go through consid-erable emotional stress. Of course, Midland Mall will gladly drop the lawsuit ifJonathan and the citizens’ group will sign an out-of-court settlement in whichthey promise to cease all opposition to the proposed development.

The Midland Mall Corporation’s complaint alleges the tort of “interferencewith prospective economic advantage,” a typical allegation in SLAPP lawsuits.Yet, on the rare occasions when they actually go to trial, SLAPP suits are seldomwon by the corporate plaintiffs because the citizen defendants are usually pro-tected by their First Amendment rights of petition and free speech. In fact, someSLAPP defendants have won substantial money damages in “anti-SLAPP”counter-suits for malicious prosecution. But the expense, stress, and inconven-ience of litigation often forces SLAPP defendants to withdraw their objections tothe proposed business activity in order to get the troublesome lawsuit dropped.

A tort is a civil wrong—awrongful act or omission thatharms another person.

A tortfeasor is a person whocommits a tort.

A tort is a civil wrong—some act or omission that violates our duty to avoidharming others. It might be a public duty, such as our duty to drive safely andobey traffic laws. Or, it might be a private duty under the law, such as the dutyof a trustee to a beneficiary. A tort is termed a “civil” wrong because it can oc-cur without a corresponding criminal act. Although, as will be seen, some actsare both crimes and torts, a criminal act is not an essential element for mosttorts. But there must always be an injury to have a tort. The expression “noharm–no foul” applies to the law of torts. The person who commits a tort iscalled a tortfeasor.

Wrongful acts or omissions that harm another person account for thegreatest number of lawsuits, by far, and personal injury cases account forthe great bulk of these lawsuits. A typical personal injury case involves anautomobile accident, and negligence is the most common allegation by theplaintiff. But personal injury cases come in a variety of other forms as well:slip-and-fall, medical malpractice, dog bite, injury caused by a defectiveproduct, and assault and battery. On-the-job injuries are in a special cate-gory handled under worker’s compensation law, and employees generallycannot bring a tort action against their employer for job-related injuries orillness.

Under the law, a personal injury can be defined much more broadly thanjust physical trauma. Libel and slander, malicious prosecution, false arrest, in-vasion of privacy, sexual harassment, and age discrimination are examples ofpersonal injuries that might leave no physical marks (although physical ail-ments do often follow). A personal injury violates the person’s right to be left inpeace.

Although personal injury—especially physical injury—predominates in law-suits alleging wrongful acts by others, a small number of tort cases do not in-volve personal injury. These less frequent lawsuits might concern such things asfraud, embezzlement, vandalism, theft of trade secrets, or unfair businesspractices.

A personal injury is damage toone’s person. In a narrow sense,it is physical or emotionaltrauma, but in a broader sense itcan be any invasion of one’spersonal right to be left inpeace.

4 CHAPTER 12

INTENTIONAL AND ACCIDENTALTORTS

An intentional tort is a civilwrong intended by thetortfeasor to harm anotherperson. The intent relates to theresulting harm, not to the actthat causes the harm.

An assault is an unlawfulattempt or credible threat tophysically injure anotherperson.

A tort can be either intentional or accidental. Assault, fraud, and arson are ex-amples of intentional torts; the perpetrator of these tortious acts intends toharm his victim. In the law of torts, intent refers to the injury, not to the conductcausing the injury. Therefore, the intentional tort of arson is distinguished fromthe negligent tort of reckless driving—even though either tort can result insomeone’s death from burns. The negligent driver might have intended to drivecarelessly, but unlike the arsonist, did not intend to cause property damage orpersonal injury. Intentional and negligent torts are discussed in more detail laterin this chapter.

TORTS AND CRIMESIt is possible for the same act to be both a tort and a crime—as are the four ex-amples mentioned in the preceding paragraph: assault, fraud, arson, and recklessdriving. But most tortious acts and omissions do not violate criminal laws. Slan-der and medical malpractice are examples of noncriminal acts that are actionableas torts. But statutes make some acts of negligence—such as the failure to main-tain a hotel sprinkler system in good operating condition—criminal offenses, aswell. Note that the violation of law (having defective sprinklers) might be a crimeeven if no injury results, but a tort does not occur until someone has beenharmed. It also is a criminal offense to operate automobiles with serious me-chanical deficiencies—inoperative headlights or a suspension system with illegalmodifications, for example—but again, no tort exists until someone is harmed.

The law regarding assault provides an interesting illustration of several legalprinciples under the law of torts and also criminal law. By definition, assault isan unlawful attempt—or a credible threat—to physically injure another person.To constitute a tort, the aggressor must harm the victim either physically oremotionally. Physical harm can be either a physical trauma—something a doc-tor could diagnose as such—or simply offensive physical contact. The unwantedphysical contact is known as a battery—whether physical injury results or not.Because battery cannot be accidental, one cannot commit battery without alsocommitting assault.

To harm the victim emotionally, but without physical contact, the aggressormust appear to have the ability to injure her victim and must display sufficientforce (or threatening behavior) to provoke fear or apprehension in the victim.Thus, the tort of assault requires either physical contact or the victim’s fear andapprehension. In many jurisdictions, however, the crime of assault does not re-quire that the victim actually be in fear or apprehension, so long as the behaviorof the assailant is threatening and she intends to harm the victim. Thus, an aver-age person—without special skills in physical combat—who unwittingly takes aswing at the world’s heavyweight boxing champion, but misses, nonethelesscommits a crime but probably not a tort—unless the champ is easily frightened.

The reason for this difference in criminal and tort law is found in the differ-ent objectives underlying the law of torts and the law of crimes. The law of tortsis designed to compensate people for their actual injuries (including apprehen-sion or fright) caused by the wrongful acts or omissions of others. If the victimof an assault is neither struck nor even frightened, there might be no civil injuryrequiring compensation. In criminal law, however, deterrence is the primary ob-jective. For reasons of peace and public order, society has a strong interest indiscouraging even the unsuccessful assaults that fail to injure or frighten the in-

Battery is unlawful andintentional physical contact thatproduces trauma or offensivetouching of another person.

The Law of Torts 5

BREACH OF CONTRACT ANDTHE LAW OF TORTS

THE LAW OF NEGLIGENT TORTS

tended victims. The incompetence of the assailant and the fearlessness of the in-tended victim are not relevant to the deterrent purpose of criminal law. Thesame principle of deterrence underlies criminal penalties for violations of trafficlaws and building codes, even in the absence of actual injury to others.

The law regarding assault illustrates yet another principle of tort law: theright to live in peace. Although the assailant might swing and miss, a frightenedvictim has been deprived of her right to peace and security. Tort law recognizesthis right to be left alone, and it is an area of law that is developing rapidly. Wenow see courts awarding damages and issuing injunctions against obsessivepersons who “stalk” and harass others who do not want their attentions. Somejurisdictions now recognize the “intentional infliction of emotional distress” asa separate cause of action in tort.

A breach of contract is not, by itself, a tort—although in some circumstancesboth a tort and a breach might result from the same act or omission. For exam-ple, a shopkeeper who is in a dispute with his landlord could commit a tort, acrime, and a breach of contract in one fell stroke by setting fire to the building.The difference between a breach of contract and a tort is the source of the duty thatis violated. Torts result from violating the duties that are imposed by law uponus all. A breach of contract results from violating duties created by a particularcontract. Whereas tort law imposes duties upon everyone, a contract imposesduties only upon those persons who become willing parties to that contract.

Because contracts can be made so casually, without even a spoken or writ-ten word, someone might innocently and in good faith deny that he has made acontract at all. Does a “good faith” denial demonstrate that a mutual intent toform a contract—that is, a “meeting of the minds”—never existed? If so, there isno contract; and, if there is no contract, there can be no breach. However, a badfaith denial that a contract exists is both a breach of the contract and a tort.

Bad faith is the conscious intentto evade one’s legal or ethicalresponsibilities.

A negligent tort is theunintentional and avoidableharming of another person whena duty exists to avoid or preventsuch harm.

Negligence is the failure to usereasonable care to avoid injuryto others.

The vehicle owner who allows her car’s brake pads to wear down to nothing hascommitted a negligent tort if the faulty brakes cause an accident, even if some-one else was driving the vehicle at the time. Although the vehicle owner mighthave made a conscious decision to postpone repairing the brakes, she probablydid not actually intend that the vehicle be driven unsafely. She certainly did notintend that an accident result. This is an example of a tort of negligence. If thevehicle owner postponed the brake repairs with actual knowledge that the ve-hicle would be unsafe, she has committed gross negligence. In all negligence, thetort lies in the failure to use the necessary care in doing what is otherwise permissible—owning and operating a car, for example. Most traffic accidents in-volve negligent torts.

The example of the postponed brake repairs illustrates a potential tort ofomission—that is, the failure to do what the owner had a duty to do. The earlierexample of a hotel sprinkler system not being properly maintained is a similartort of omission. Recall, however, that injury must result for either omission toconstitute a tort. Otherwise, these examples are simply violations of the motorvehicle and building codes, respectively.

Gross negligence is more thancarelessness; it is the intentionaland callous disregard for theinjury that the tortfeasor’s act oromission is likely to cause toother persons.

6 CHAPTER 12

THE DUTY OF CARENegligence law is based upon the idea that every person owes a duty of care toothers who might be affected by his conduct. In some situations, the duty of carerequires us to refrain from doing something: firing a pistol into the sky to cele-brate July 4th, for example. In other circumstances, the duty requires us to takepositive action: reporting our pet animal to public authorities or a licensed vet-erinarian if it displays obvious symptoms of rabies. As explained in Chapter 3, aduty requiring us to take positive action at our own initiative is known as an af-firmative duty.

Our general duty of care is found mostly in the common law, but some specificduties are imposed by statute. For example, most states have a statute that re-quires that swimming pools be fenced so that children will not fall in. Some juris-dictions have statutes that impose a duty to keep firearms and ammunition in sep-arate locations in a home. A statutory duty is not necessarily greater than acommon law duty, but it might be easier to establish that the statutory duty exists.

ESTABLISHING A BREACH OF THE DUTY OF CARENegligence is the violation of our duty of care. To be a tort, that violation must bethe cause of someone’s injury or loss. The tort of negligence has four elements:

■ a duty of care

■ a violation of that duty

■ a cause-and-effect relationship between the violation of that duty andsome injury to another person or to the property of another

■ actual damage that can be compensated

The greatest difficulty in negligence litigation is often defining the duty owedby the defendant to the plaintiff and showing an actual violation of that duty. Aduty to the general public does not depend upon any particular relationship: Ifwe accidentally run down a pedestrian in a crosswalk, it makes no difference un-der the law whether he is our employee or a stranger. Our relationship to thatvictim would be significant only if it presented a motive for intentional injury.

There are many duties that do arise from particular relationships. Teachershave duties to their students that they do not have toward strangers: an obliga-tion to report evidence of possible child abuse, for example. Bus drivers andship captains, medical doctors and accountants, employers and partners, bar-tenders and butchers, all have special duties that derive from their relationshipswith particular persons: passengers, clients, employees, partners, and cus-tomers. Some of these relationships are unique in that the duty of care is ele-vated to that of a fiduciary. Bartenders and butchers, however, owe particularduties to their patrons even though they are not in a fiduciary relationship.

The bartender offers an example of a special duty to the general public thatarises from one’s occupation or business: The bartender might be liable tostrangers if she continues to serve an intoxicated patron who later causes a traf-fic accident. Some states have particular statutes imposing that liability (“dramshop acts”), but the courts of other jurisdictions have found that liability to al-ready exist under common law. The same principle can apply to other profes-sions: A garage mechanic might be liable under common law for injuries tostrangers that result from defective repairs to an automobile brake system.

In the latter examples, the duty to the general public—as opposed to a dutystrictly to the patron—is associated with a particular occupation or business.The duty might be heightened by the professional experience and expertise ofthe bartender and the garage mechanic. But what about the duty of a social host

The duty of care is theaffirmative obligation to avoidnegligent conduct that mightresult in harm to others.

The Law of Torts 7

Due care is the degree ofprudence a reasonable person isexpected to exercise so as toavoid harm to others. It is thestandard for measuring one’sduty of care under any givencircumstances.

Negligence per se is dangerousconduct that is prohibited bystatute. In establishingnegligence, statutoryprohibitions make itunnecessary to show that areasonable person would notengage in the same conductunder the circumstances.

serving drinks to his cocktail party guests or an amateur mechanic who fixes theneighbor’s car’s brakes for free?

Depending upon state law, the social host might have a liability similar tothat of the bartender—lessened perhaps by his less extensive experience in rec-ognizing the signs of intoxication. The amateur mechanic might be in a more dif-ficult situation because he has assumed a task—fixing braking systems—that isinherently technical and, in every instance, requires expertise. The social hostdoes not need to be concerned that each drink he serves might cause an acci-dent, but the amateur mechanic must realize that every brake job offers the op-portunity for disaster.

The general rule is that a person owes a duty of care to every person whoforeseeably could be injured by his negligence. Determining which injuries areforeseeable, and which are not, can be a daunting task, but it is a question of factfor the jury to decide. The rule followed in a minority of the states is that a per-son owes the duty of care to everyone who is actually injured by his negligence.That rule makes the duty of care universal to all humankind because it is im-possible to foresee every injury that could result from our negligence.

The Standard of “Due Care”

Everyone has a duty to act as a reasonably prudent person would act under thesame or similar circumstances. That standard of care is known as due care. It isa question of fact for the jury or judge to determine whether someone’s conductin particular circumstances was reasonably prudent. Conduct that violates astatute (e.g., reckless driving) creates a presumption of negligence. The latterconduct is known as negligence per se (or “automatic negligence”).

Because circumstances influence the degree of care owed, it can range fromminimal to extraordinary. If the situation is fraught with risk to others—a bungeecord jumping business or sky diving school, for example—a greater degree ofcare is owed. Disregarding for a moment the understandable view, held by some,that almost any adult on a skateboard is acting with gross negligence—at leastto his own physical jeopardy—he is not required to exercise the same degree ofcare toward pedestrians that he would be required to use if he were driving a car.This is because the potential for death and injury to pedestrians is much less incollisions with skateboarders.

Any special training and expertise that one has can increase the degree ofcare owed. Someone who claims to be an expert or professional will be held tothe higher standard of skill and expertise usually possessed by such persons,even though the tortfeasor is not, in fact, a person with such skill or expertise.He cannot use his dishonesty and actual lack of expertise to escape the greaterliability because those injured by his conduct might have relied upon his falseclaims of expertise and were harmed by his deception.

A trained beach lifeguard might be held liable for extraordinary injuries in-curred by a victim during a rescue—for example, a skull fracture resulting froma collision with rocks. An untrained bystander, however, would not have been li-able for those same injuries had he attempted the rescue. One reason for this dif-ference is that the untrained bystander—even an expert swimmer—might be un-aware of the additional danger occasioned by ocean currents or waves along hischosen rescue route. The trained lifeguard should be aware of the special risksposed by surf and rocks and should be better able to avoid or mitigate thosedangers. Under the common law, the Good Samaritan doctrine shields the in-tervening bystander from liability unless he acts with reckless disregard for thevictim and actually increases the danger to that victim. Most states have en-acted statutes incorporating this doctrine.

The Good Samaritan doctrineshields from liability a bystanderwho voluntarily comes to the aidof a person in danger of life orlimb unless that volunteersubstantially worsens thevictim’s situation by somereckless action.

8 CHAPTER 12

The proximate cause, or legalcause, of an injury is the eventthat produces an injury that,absent that event, would nothave occurred. To be theproximate cause, the effect ofthat event must not have beenunforeseeably altered by someother intervening force or event.

Medical personnel are in a similar position, in that they are expected underthe law to use the skill of a person with their level of training and expertise. Be-cause licensed medical doctors are more highly trained than are registerednurses, the doctor is held to a higher standard of care than is the nurse. Somestates have enacted special “Medical Good Samaritan” statutes to limit the lia-bility of qualified medical personnel who come forward as volunteers to assistin emergency situations that arise outside of the scope of their employment(e.g., automobile accidents or in-flight emergencies).

NEGLIGENCE AS THE CAUSE OF AN INJURYThe third required element of negligence is causation. Once the legal duty owedto the plaintiff has been established and the court has determined that the de-fendant violated that duty by some act or omission, the court must next decidewhether that negligence was the proximate cause of the plaintiff’s injury. It isentirely possible for a person to be negligent, yet not be the cause of a partic-ular injury. Under the law of negligence, there can be no recovery unless the de-fendant’s negligence is shown to be the cause of the plaintiff’s injury.

A proximate cause is the legal cause of the injury, as opposed to some otherintervening event. (In some jurisdictions, the term “proximate cause” is losingfavor, and “legal cause,” is used instead.) An intervening force is an independ-ent cause that interrupts the natural cause-and-effect chain of events that fol-lowed from the defendant’s wrongful act. Proximate cause can be one of themost difficult concepts in tort law, but two illustrative examples should conveythe basic idea of this principle.

At an amateur baseball game, dozens of spectators crowd along the base-lines. Ignoring this dangerous situation, the pitcher delivers his fastball andthe batter’s line drive hits a spectator in the head. The pitcher might laterargue that the batter’s action was the only proximate cause of the injury—ifthe batter had not swung, no one would have been injured. But the batter’sdecision to swing was provoked or induced by the pitcher’s fastball—bothplayers were playing a game of baseball. In fact, under the rules of baseball,the pitcher’s fastball was tantamount to a challenge for the batter to hit theball. The batter’s swing is not an intervening force in the legal sense becauseit was clearly foreseeable to the pitcher. In this situation, the pitcher and bat-ter are acting in concert to create the proximate cause of the bystander’s in-jury. Under the facts of this situation, the actions of both players (i.e., thepitch and the swing) were indispensable elements to create the injury.

Although the batter’s swing was an intervening force under the laws ofphysics, it was not an intervening force under the law of torts. The batter’s ac-tion and the potential injury were both clearly foreseeable to the pitcher, and thebatter did not interrupt the natural cause-and-effect chain of events. Both thepitcher and the batter (and perhaps the volunteer umpire, if any) might be liablefor negligently proceeding with the game under those dangerous conditions.

The concept of proximate or legal cause, then, does not always require thatthere be a sole cause for the injury. The most common example of multiplecauses is an automobile accident in which the negligent conduct of several driv-ers contributes to the accident and the resulting injuries (for example, two driv-ers colliding when they simultaneously attempt unsafe lane changes). If the neg-ligence of a particular driver does not contribute directly to the accident, is thatdriver’s negligence nonetheless a legal cause? Consider the following case.

Two intoxicated friends leave a bar at midnight, both in the same car. Al-though drunk, the driver is able to maintain his lane and remains below thespeed limit. In fact, other than driving while in his state of intoxication, he doesnot violate any traffic law. As his car is proceeding with the green light through

An intervening force is anunforeseen event that alters theeffect of the defendant’s action,thereby resulting in theplaintiff’s injury.

The Law of Torts 9

Ethics WatchThe legal relationship between employer and employee is very similar to that betweenprincipal and agent. When the legal assistant is performing his usual duties and re-sponsibilities on behalf of the supervising attorney, that attorney can be liable for anytortious conduct by the legal assistant. Potentially, a client could be liable also if thetortious conduct is directly related to the attorney’s representation of that client—forexample, making a libelous statement about an opposing party in correspondencewritten by the legal assistant to a third party.

RESPONSIBILITY FOR THE ACTSOF AGENTS AND EMPLOYEES

STRICT LIABILITY IN TORT LAW

a blind intersection, a truck runs the red light and broadsides the car, injuringthe intoxicated driver and his passenger. Although he was illegally driving underthe influence, the first driver’s wrongful act was not the proximate cause of hispassenger’s injuries. There was an unforeseen independent, intervening cause:the wrongful act of the truck driver who ran the red light.

In analyzing such cases, courts often use the “but for” test: Would the acci-dent not have happened “but for” the first driver’s decision to drive while intox-icated? Clearly, our case fails the “but for” test: The first driver’s intoxication didnot cause the accident. It would have occurred even if he had been sober buthad driven the same route at the same time and at the same lawful speed. Thetruck driver’s negligent and illegal act was not a foreseeable and natural eventarising from the first driver’s decision to drive while intoxicated. Of course, theintoxicated driver is subject to criminal penalties even in the absence of any tortliability. Unfortunately, questions of proximate or legal cause are not often sodistinct as they are in the preceding examples.

The doctrine of respondeat superior sometimes makes employers andprincipals responsible—and legally liable—for the wrongful actions and omis-sions of their employees and agents, respectively. That is because employersand principals have a duty to control the actions of employees and agents sothat others will not be injured. Because employers often have insurance andmuch greater assets than does an employee, the doctrine of respondeat superiorhas encouraged the filing of lawsuits that otherwise might not be pursuedagainst the employee alone.

However, the doctrine of respondeat superior is limited to events that occurin the course of the tortfeasor’s employment or agency. This limitation has ledto numerous lawsuits in which the critical issue has been whether an employee’stemporary detour for personal business, while driving from point A to point Bon his employer’s business, took him far enough and long enough from theshorter, straight-line route so that he was no longer “acting in the course of hisemployment” when he negligently caused an auto accident during the detour.

The doctrine of respondeatsuperior holds one responsiblefor the tortious actions of hisagents or employees who areacting on his behalf.

A principal is one whoauthorizes another to act on hisbehalf (i.e., to serve as hisagent).

An agent is one who isauthorized to act on behalf ofanother (the principal).

Most torts are either intentional or the result of negligence. However, there isone class of torts that does not require either intent or negligence. These arethe torts of strict liability. Strict liability is a doctrine that imposes liability for

Agency is the legal relationshipbetween a principal and heragent. It is also the scope ofauthority granted to the agentby the principal.

The doctrine of strict liabilityholds one liable for certaintypes of unintentional injurieseven if no negligence is shown.

10 CHAPTER 12

Under the doctrine of strictproducts liability,manufacturers are liable for anyinjuries caused by defectiveproducts, without therequirement to show negligencein the design or manufacturingprocesses. The liability extendsto bystanders as well as tosubsequent purchasers of usedproducts.

personal injury or property damage even though the defendant was not negli-gent and did not intend to harm anyone. It is termed “strict” because the de-fendant cannot escape liability by showing that he used reasonable care andprudence in his conduct. Because this doctrine is so severe, its application islimited to particular types of activity.

Traditionally, strict liability was limited to inherently dangerous activities:using dynamite, keeping wild animals or vicious domesticated animals, usingpoisonous gases, and so forth. In recent times, however, strict liability has beenimposed by statute on toxic waste contamination (e.g., leakage from under-ground gasoline storage tanks) and under common law to the manufacturingand sale of all consumer products. The latter is known as strict products liability.In recent decades, strict products liability has become an important area of liti-gation law. Manufacturers and retailers have faced enormous numbers of law-suits that claim a defective product caused personal injury.

The unique feature of strict products liability is that the plaintiff need notprove that the manufacturer or seller is at fault (by reason of negligence or breachof warranty, for example), but only that:

■ the product is defective

■ the defect caused the plaintiff’s injury

The legal theory is that strict liability compensates the injured person, encour-ages product safety, and spreads the financial burdens of product improvementand compensation for the victim across the marketplace through higher pricesfor that product. Strict liability also recognizes the great difficulty and expensein proving negligence of the manufacturer in the design or manufacture of aproduct. The imposition of strict liability has also caused the insurance indus-try to encourage “defensive engineering” by manufacturers, so that injuries—and therefore liability exposure—will be reduced.

STRICT LIABILITY AND THE IMPLIED WARRANTY OF FITNESSPrior to strict products liability, injured consumers brought actions against amanufacturer for negligence or for breach of implied warranty of “fitness for aparticular purpose.” Under the doctrine of implied warranty, every product ispresumed to be fit for the uses for which consumers are known to purchase it.If the product is not fit for those uses, the manufacturer or seller has breachedthat implied warranty. The warranty is not limited to the purposes for which theproduct is marketed. If the manufacturer or seller is aware that the product iscommonly purchased for other purposes, it must be fit for those purposes aswell. Thus, a bicycle marketed for riding on paved streets must be fit also for mo-tocross competition if the manufacturer or seller knows that it commonly is pur-chased for that use as well.

Unfortunately, the implied warranty is found in the contract among the man-ufacturer, the retailer, and the consumer. It generally protects only the purchaser—not bystanders nor any nonpurchasers who might use that product.The manufacturer and seller also owe a duty under implied warranty only to theoriginal purchaser of a new product, not subsequent purchasers who buy it as aused product.

In contrast, the doctrine of strict liability makes the manufacturer and sellerliable for injury even to bystanders and subsequent purchasers. The duty oweddoes not arise from a particular contract with a particular customer, but fromthe decision to place that product in the marketplace where, eventually, it mightendanger nonpurchasers as well as purchasers. Thus, passengers in automo-

In the commercial sale of goods,there is an implied warrantythat the goods are fit for thepurposes for which they arecommonly purchased. Thewarranty (i.e., the seller’sguarantee) is implied byoperation of law, even if it is not expressed in the words of the contract.

The Law of Torts 11

ASSUMPTION OF RISK

biles and neighbors who borrow lawn mowers have standing to sue a manufac-turer or seller under strict products liability if they are injured as a result of a de-fect in that product. By contrast, under the doctrine of implied warranty, the pas-sengers and neighbors would have no standing to sue.

A major issue in products liability litigation is the duty of the manufacturer andseller to warn the consumer and other users of the product about the risks as-sociated with that product. This issue arose in part because defendant manu-facturers and retailers claimed that the user or purchaser had “assumed therisk” by knowingly using a potentially dangerous product (e.g., an electric hedgetrimmer). Assumption of risk is an affirmative defense against liability basedupon the principle that the person who agrees to risk a known injury should notbe able to recover damages when that foreseeable injury does, in fact, occur. Theassumption of risk defense is ineffective, however, if the manufacturer has in-tentionally or negligently introduced risks that a reasonable person cannot foresee.

Plaintiffs have countered the assumption of risk defense by arguing that therisk is not fully known to the ordinary user if the better informed seller or man-ufacturer has not adequately disclosed it. Other defenses to strict liability in-clude misuse of the product (e.g., using a hedge trimmer to shorten a picketfence) and an unauthorized modification to the product that increases the riskof injury (e.g., removing a safety guard).

Until recently, tobacco manufacturers defeated every lawsuit based in strictliability doctrine, often by successfully raising the defense of an assumption ofrisk by the smoker. Ironically, that defense has been strengthened by the Sur-geon General’s warning that federal law requires on each cigarette package andin all tobacco advertising—the very federal law that the tobacco industry itselffought furiously to defeat in Congress. Recent evidence suggests, however, thatthe tobacco industry concealed from consumers and from Congress the indus-try’s own research results that demonstrated that nicotine is addictive—a char-acteristic that the tobacco industry had long denied. (See the Case in Point, “TheTobacco Papers,” in Chapter 3.) If that allegation proves to be true, the assump-tion of risk defense might be overcome by the industry’s failure to discloseknown addictive properties of tobacco.

One unintended result of strict products liability has been the near extinc-tion of light aircraft production in the United States. Piper and Cessna, for ex-ample, both suspended production of small aircraft for the American generalaviation market due to the enormous costs of insurance and litigation defense.It is ironic that both manufacturers had a large backlog of unfilled orders whenthey stopped production. Critics of strict products liability argue that countlessother, less obvious economic harms have resulted from the burdens imposed onbusiness by that doctrine. Defenders of the doctrine argue that countless con-sumer products have been made far safer by the economic incentive to avoidlawsuits for strict liability—thereby preventing countless injuries and deaths.

SCENARIO

Louis Fridel is a paralegal specializing in aviation accident litigation. His Atlantalaw firm represents the manufacturers of the aircraft or aircraft parts that are al-leged to be the cause of personal injuries or deaths. In most such lawsuits, the

The decision by a person toengage in clearly dangerousactivities creates an assumptionof risk by that participant. Hecannot recover from others forthe foreseeable injuries thatresult from his participation. Byvoluntarily participating, heaccepts (“assumes”) the usualrisks of injury inherent in thatactivity.

12 CHAPTER 12

COMMON INTENTIONAL TORTS

plaintiff alleges that the aircraft or part in question was defective and that thedefect resulted in the plaintiff’s injuries. The defect can be in the design of theproduct or it can be a result of defective manufacture or assembly.

Louis began his litigation practice in a personal injury firm where he workedon a number of automobile accident cases, including some involving tread sep-aration of Firestone tires mounted on Ford Explorer SUVs. “We represented theinjured consumers, or their surviving family members,” Louis explains. “I spenta lot of time in the late 1990s trying to track down other cases in which tread sep-aration led to rollovers of the SUV. We began to develop data that suggested theoriginal equipment tires might be an improper match for the SUVs on which theywere mounted. That’s when I developed a real interest in product liability law.”

Louis joined his present firm when he moved to Georgia. “I had assumed thatI would join another plaintiff’s PI firm here, but my current employer offered a bet-ter salary and benefits package. Actually, I haven’t found it that difficult to transi-tion from working for plaintiffs to working for the defendant manufacturer. I’veseen the same kind of litigation from both sides of the fence, now. It’s interesting—I used to think that manufacturers were rather callous and irresponsible. Now I seethat some consumers are unreasonable as well. Perhaps it is the natural result ofour adversarial litigation process. It causes both plaintiff and defendant to raiseallegations and defenses that are, at times, far-fetched.” ■

Defamation of character occurswhen one makes falsestatements that damage thereputation of another person.

Libel is the publication ofdefamatory statements in someenduring form (e.g., print, film,recording, drawing, etc.).

Intentional and negligent torts are distinguished from each other by the tortfea-sor’s state of mind. In a negligent tort, it does not matter what the offender in-tended to do—the result of his negligent conduct is what counts. An intentionaltort, on the other hand, requires that the tortfeasor actually intended to harmthe plaintiff or his property.

Many lawsuits over intentional torts involve an assault. Other intentionaltorts that frequently find their way into a courtroom include libel, slander, fraud,and infliction of emotional distress. Actions for intentional breach of contractare also common, but a breach alone is not a tort because the duty violated iscreated by the contract and not by common law or statute.

DEFAMATION OF CHARACTER“Defamation” was not even mentioned in the preceding paragraph, but the twogeneral forms of defamation were mentioned: libel and slander. The essence ofdefamation of character is an intentional false statement that tends to injure aperson’s reputation. Libel is defamation by recorded sound or picture, painting,printed word, drawing, sculpture, or effigy. Slander is oral defamation. The keydifference is that slander is an instantaneous occurrence, gone in the momentafter it has been uttered, while libelous publications can remain for future gen-erations to read, view, or hear.

The elements of defamation are:

■ the defendant made a false statement about the plaintiff

■ the statement was “published”—communicated to others

■ the plaintiff’s identity was recognizable from the statement

■ the statement, if believed, would damage the plaintiff’s reputation

It is not necessary to show that anyone actually believed the defamatorystatement because that would require the plaintiff to suffer a second humiliation

Slander is the oral publicationof defamatory statementswithout putting them into someenduring form.

The Law of Torts 13

when those who believed the false statement were called to testify. Additionally,belief is not required because it would be unjust to permit disgraceful lies to becirculated about a good person on the basis that—because of the plaintiff’s goodcharacter—no one would believe such lies. The result would protect fromdefamation only those persons of questionable character about whom falsestatements are readily believed. Finally, witnesses who actually believed thefalse statements might be reluctant to acknowledge their gullibility. The jury (orthe judge, in a trial by court) may evaluate the damaging impact that the state-ment would have if believed. If a statement has alternative interpretations, it isonly necessary that one reasonable interpretation of that statement would de-fame the plaintiff.

Defenses to Defamation

Truth is an absolute defense against a suit for defamation. It is not necessarythat a statement be true in every detail, so long as the statement is both gener-ally true and is true in its assertions about all material facts. Thus, the followingstatement probably would not be defamatory if the italicized portions were true:

“The alleged child molester had been a resident of the North Park area and ascout leader for some years. He was previously convicted of child molestation be-fore coming to this city.”

However, it could be argued that a false statement that the accused had been ascout leader, when made in connection with a true report about the currentcharge against him, implies a breach of that special trust placed in adult leadersof young people, thereby unjustly exacerbating the damage to his reputation re-sulting from the criminal charges against him.

Although truth would be an absolute defense for the accused defamer, thedefamer’s own good faith belief that the statement is true might not be a suffi-cient defense if the statement is actually false. The reason is that the person de-famed has been harmed (or at least exposed to potential harm) in spite of thedefamer’s good intentions. Thus, defamation can be a negligent tort in some cir-cumstances. The innocence of the defamer’s intention might become an issue indetermining the appropriate damages to be awarded to the plaintiff.

Defamation and the News Media

The news media face special problems with regard to defamation. The media’s ac-knowledged responsibility is to inform the public of matters of general interest.However, the news media can be liable if their false reports defame an individual,even when the media are quoting or paraphrasing the statements of others. In thelatter situation, the media have a duty to avoid spreading libelous statements. Inthe days of weekly newspapers and no electronic media, life was much slowerand editors had ample time to check their facts before publishing. Today, the me-dia are under enormous pressure to beat the competition. In the age of CableNews Network and satellite transmissions, the electronic media have a new“deadline” every 10 minutes. One protection against liability is the common prac-tice of reporting about the “reputed Mafia chief” and the “alleged bank robber.”

A landmark Supreme Court case, New York Times v. Sullivan, 376 U.S. 254(1964), concerned false statements made in a full-page newspaper advertise-ment. It was in Sullivan that the Supreme Court first applied the First Amend-ment to the law of libel. The most obvious problems arise in the arena of politi-cal debate and in what the U.S. Supreme Court has termed subjects of “generalpublic interest.” The potential “chilling effect” on the news media and politicalpartisans, if held strictly liable for false statements, could be very damaging to

14 CHAPTER 12

Practice TipThe trial court in Gertz entereda judgment NOV in thedefendant publisher’s favor.This is remarkable in thissituation because the jury hadfollowed the court’s instruc-tions on the law and awardeddamages based upon thecourt’s earlier finding that thedefendant had committed libelper se under Illinois law. Thenthe court changed its mind,deciding that the defendantenjoyed the “publisher’simmunity” established in NewYork Times Co. v. Sullivan,supra. In effect, the U.S.District Court belatedly decidedthat the case should neverhave gone to the jury, and thedefendant’s pretrial motion forsummary judgment shouldhave been granted.

In defamation law, actual maliceexists when the defendantpublishes the defamatorystatement with knowledge that itis false or in reckless disregardof its possible falsity.

a democratic society. Because a free-ranging debate about political, philosophi-cal, and artistic matters is so important to the public interest—and so closely re-lated to the very purpose of the First Amendment—the Sullivan Court held thatpublic officials cannot recover damages for libel unless they can prove that theirdefamers acted with actual malice. In this context, actual malice means that thedefendant either knew that the statement was false, or that he made the state-ment in “reckless disregard” for the truth. The latter standard creates whatcould be called a tort of “reckless defamation,” which combines intent to make adamaging statement with negligence (i.e., the failure to check the facts beforemaking that false statement).

The law of defamation is state law, but it inevitably creates a conflict with therights of free speech and press under the First Amendment, a matter of federallaw. Because of the constitutional implications, a number of defamation lawsuitshave reached the U.S. Supreme Court in recent decades, and the Court has laiddown a variety of limitations on the ability of plaintiffs to pursue defamationsuits. Public officials and other “public figures” are now deemed to have as-sumed the risk of harsh criticism by virtue of having voluntarily entered into po-litical careers, movie stardom, professional sports, or other venues of public no-toriety. The Supreme Court has said that public figures cannot claim the right toenjoy the benefits of their chosen pursuits without also accepting the hardshipsof that choice. In effect, the Supreme Court has adopted President Harry Tru-man’s famous adage: “If you can’t take the heat, get out of the kitchen.”

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court refusedto apply the Sullivan standard of actual malice to cases in which private citizensare defamed. The Gertz case is an interesting one in several respects. The earlierSullivan decision had created, in effect, a limited “publisher’s immunity” from li-ability for libel so long as the defendant was publishing material about a publicofficial and the false statements were not published in “actual malice.” In latercases, that limited immunity was extended to publications about “public fig-ures” who do not hold public office. The Gertz Court reviewed these principlesand made clear that they are a compromise between the rights of persons in-jured by defamatory statements, on the one hand, and the First Amendmentrights of publishers, on the other. The Court stated that our protection againstdefamation must yield somewhat, so that the communication media will not en-gage in excessive self-censorship out of their reluctance to risk liability fordefamation. The Court explicitly acknowledged in Gertz that this compromisewill leave some wrongfully defamed persons with no available remedy at law.

In Gertz, the Supreme Court resolved the issue by refusing to apply the “ac-tual malice” standard of Sullivan to defamation of private individuals. But then,in dicta, the Court went beyond that central issue to state its views about ap-propriate damages in defamation cases. The Court stated that damage awardsmust be limited to actual damages and may not include punitive damagesagainst the defaming tortfeasor. Apparently, any damages in excess of these lim-itations would be an unconstitutional infringement upon First Amendmentrights. As dicta, these statements have no value as precedent and are not bind-ing upon the lower courts. They might, however, signal how the Supreme Courtwould rule if those questions are presented in a later case.

The Gertz case was decided by a 5–4 vote, with several dissenting opinionsfrom both conservative and liberal justices. In the Court’s opinion (excerpt fol-lows), it refers to its prior decision in New York Times Co. v. Sullivan, supra, as“New York Times,” rather than as “Sullivan.” Perhaps this reflects the Court’sself-proclaimed, overriding concern for the First Amendment rights of thenewspaper.

Libel per se is a false statementso egregious that it isdefamatory on its face, givingrise to a legal presumption thatthe plaintiff has been injured bythat statement and, therefore,actionable without proof ofactual injury.

The Law of Torts 15

A CASE IN POINT

Gertz v. Robert Welch, Inc.

418 U.S. 323 (1974)

Mr. Justice POWELL delivered the opinion of the Court.This Court has struggled for nearly a decade to define the proper accom-

modation between the law of defamation and the freedoms of speech and pressprotected by the First Amendment. With this decision we return to that effort.We granted certiorari to reconsider the extent of a publisher’s constitutionalprivilege against liability for defamation of a private citizen. [Citation omitted.]

I

In 1968 a Chicago policeman named Nuccio shot and killed a youth namedNelson. The state authorities prosecuted Nuccio for the homicide and ultimatelyobtained a conviction for murder in the second degree. The Nelson family re-tained petitioner Elmer Gertz, a reputable attorney, to represent them in civil lit-igation against Nuccio.

Respondent publishes American Opinion, a monthly outlet for the views ofthe John Birch Society. Early in the 1960’s the magazine began to warn of a na-tionwide conspiracy to discredit local law enforcement agencies and create intheir stead a national police force capable of supporting a Communist dictator-ship. As part of the continuing effort to alert the public to this assumed danger,the managing editor of American Opinion commissioned an article on the mur-der trial of Officer Nuccio. For this purpose he engaged a regular contributor tothe magazine. In March 1969 respondent published the resulting article under thetitle ‘FRAME-UP: Richard Nuccio And The War On Police.’ The article purports todemonstrate that the testimony against Nuccio at his criminal trial was false andthat his prosecution was part of the Communist campaign against the police.

In his capacity as counsel for the Nelson family in the civil litigation, peti-tioner attended the coroner’s inquest into the boy’s death and initiated actionsfor damages, but he neither discussed Officer Nuccio with the press nor playedany part in the criminal proceeding. Notwithstanding petitioner’s remote con-nection with the prosecution of Nuccio, respondent’s magazine portrayed him asan architect of the ‘frame-up.’ According to the article, the police file on petitionertook ‘a big, Irish cop to lift.’ The article stated that petitioner had been an officialof the ‘Marxist League for Industrial Democracy, originally known as the Inter-collegiate Socialist Society, which has advocated the violent seizure of our gov-ernment.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated thatGertz had been an officer of the National Lawyers Guild, described as a Commu-nist organization that ‘probably did more than any other outfit to plan the Com-munist attack on the Chicago police during the 1968 Democratic Convention.’

These statements contained serious inaccuracies. The implication that peti-tioner had a criminal record was false. Petitioner had been a member and officerof the National Lawyers Guild some 15 years earlier, but there was no evidencethat he or that organization had taken any part in planning the 1968 demonstra-tions in Chicago. There was also no basis for the charge that petitioner was a‘Leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marx-ist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’

The managing editor of American Opinion made no effort to verify or sub-stantiate the charges against petitioner. Instead, he appended an editorial intro-duction stating that the author had ‘conducted extensive research into the

16 CHAPTER 12

Richard Nuccio Case.’ And he included in the article a photograph of petitionerand wrote the caption that appeared under it: ‘Elmer Gertz of Red Guild harassesNuccio.’ Respondent placed the issue of American Opinion containing the arti-cle on sale at newsstands throughout the country and distributed reprints of thearticle on the streets of Chicago.

Petitioner filed a diversity action for libel in the United States District Courtfor the Northern District of Illinois. He claimed that the falsehoods published byrespondent injured his reputation as a lawyer and a citizen. . . .

After answering the complaint, respondent filed a pretrial motion for sum-mary judgment, claiming a constitutional privilege against liability for defama-tion. [Footnote omitted.] It asserted that petitioner was a public official or a pub-lic figure and that the article concerned an issue of public interest and concern.For these reasons, respondent argued, it was entitled to invoke the privilegeenunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, ll L.Ed.2d686 (1964). Under this rule respondent would escape liability unless petitionercould prove publication of defamatory falsehood ‘with actual malice’—that is,with knowledge that it was false or with reckless disregard of whether it wasfalse or not.’ [Citation omitted.] . . .

The District Court denied respondent’s motion for summary judgment in amemorandum opinion of September 16, 1970. . . . After all the evidence hadbeen presented but before submission of the case to the jury, the court ruledin effect that petitioner was neither a public official nor a public figure. It addedthat, if he were, the resulting application of the New York Times standardwould require a directed verdict for respondent. Because some statements inthe article constituted libel per se under Illinois law, the court submitted thecase to the jury under instructions that withdrew from its consideration all is-sues save the measure of damages. The jury awarded $50,000 to petitioner.

Following the jury verdict and on further reflection, the District Court con-cluded that the New York Times standard should govern this case even thoughpetitioner was not a public official or public figure. It accepted respondent’s con-tention that that privilege protected discussion of any public issue with regardto the status of a person defamed therein. Accordingly, the court entered judg-ment for respondent notwithstanding the jury’s verdict. [Footnote omitted.] . . .

Petitioner appealed to contest the applicability of the New York Times stan-dard to this case. . . . [Footnotes omitted.] . . . After reviewing the record, theCourt of Appeals endorsed the District Court’s conclusion that petitioner hadfailed to show by clear and convincing evidence that respondent had acted with‘actual malice’ as defined by New York Times. . . . The Court of Appeals thereforeaffirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse.

II

The principal issue in this case is whether a newspaper or broadcaster thatpublishes defamatory falsehoods about an individual who is neither a public of-ficial nor a public figure may claim a constitutional privilege against liability forthe injury inflicted by those statements. . . .

* * * *III

. . . Under the First Amendment there is no such thing as a false idea. How-ever pernicious an opinion may seem, we depend for its correction not on theconscience of judges and juries but on the competition of other ideas. [Footnoteomitted.] But there is no constitutional value in false statements of fact. Neitherthe intentional lie nor the careless error materially advances society’s interestin ‘uninhibited, robust, and wide-open’ debate on public issues. New York TimesCo. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721. . . .

The Law of Torts 17

Although the erroneous statement of fact is not worthy of constitutional pro-tection, it is nevertheless inevitable in free debate. As James Madison pointedout in the Report on the Virginia Resolutions of 1798: ‘Some degree of abuse isinseparable from the proper use of every thing; and in no instance is this moretrue than in that of the press.’ [Citation omitted.] And punishment of error runsthe risk of inducing a cautious and restrictive exercise of the constitutionallyguaranteed freedoms of speech and press. . . . Allowing the media to avoid lia-bility only by proving the truth of all injurious statements does not accord ade-quate protection to First Amendment liberties. . . .

. . . Yet absolute protection for the communications media requires a totalsacrifice of the competing value served by the law of defamation.

The legitimate state interest underlying the law of libel is the compensationof individuals for the harm inflicted upon them by defamatory falsehood. Wewould not lightly require the State to abandon this purpose. . . .

Some tension necessarily exists between the need for a vigorous and unin-hibited press and the legitimate interest in redressing wrongful injury. . . . In ourcontinuing effort to define the proper accommodation between these competingconcerns, we have been especially anxious to assure to the freedoms of speechand press that ‘breathing space’ essential to their fruitful exercise. [Citationomitted.] To that end this Court has extended a measure of strategic protectionto defamatory falsehood.

The New York Times standard defines the level of constitutional protec-tion appropriate to the context of defamation of a public person. Those who,by reason of the notoriety of their achievements or the vigor and success withwhich they seek the public’s attention, are properly classed as public figuresand those who hold government office may recover for injury to reputationonly on clear and convincing proof that the defamatory falsehood was madewith knowledge of its falsity or with reckless disregard for the truth. This stan-dard administers an extremely powerful antidote to the inducement to mediaself-censorship. . . . And it exacts a correspondingly high price from the vic-tims of defamatory falsehood. Plainly many deserving plaintiffs, includingsome intentionally subjected to injury, will be unable to surmount the barrierof the New York Times test. . . . For the reasons stated below, we conclude thatthe state interest in compensating injury to the reputation of private individu-als requires that a different rule should obtain with respect to them.

* * * *

. . . The first remedy of any victim of defamation is self-help—using available op-portunities to contradict the lie or correct the error and thereby to minimize its ad-verse impact on reputation. Public officials and public figures usually enjoy signifi-cantly greater access to the channels of effective communication and hence have amore realistic opportunity to counteract false statements than private individualsnormally enjoy. [Footnote omitted.] Private individuals are therefore more vulnera-ble to injury, and the state interest in protecting them is correspondingly greater.

. . . An individual who decides to seek governmental office must accept cer-tain necessary consequences of that involvement in public affairs. He runs therisk of closer public scrutiny than might otherwise be the case. And society’s in-terest in the officers of government is not strictly limited to the formal dischargeof official duties. . . .

Those classed as public figures stand in a similar position. . . . For the mostpart those who attain this status have assumed roles of especial prominence inthe affairs of society. . . .

Even if the foregoing generalities do not obtain in every instance, the com-munications media are entitled to act on the assumption that public officials andpublic figures have voluntarily exposed themselves to increased risk of injury

18 CHAPTER 12

from defamatory falsehood concerning them. No such assumption is justifiedwith respect to a private individual. . . . He has relinquished no part of his inter-est in the protection of his own good name, and consequently he has a morecompelling call on the courts for redress of injury inflicted by defamatory false-hood. Thus, private individuals are not only more vulnerable to injury than pub-lic officials and public figures; they are also more deserving of recovery.

For these reasons we conclude that the States should retain substantial lat-itude in their efforts to enforce a legal remedy for defamatory falsehood injuri-ous to the reputation of a private individual. . . .

We hold that, so long as they do not impose liability without fault, the Statesmay define for themselves the appropriate standard of liability for a publisheror broadcaster of defamatory falsehood injurious to a private individual. [Foot-note omitted.] . . .

IV

. . . For the reasons stated below, we hold that the States may not permit re-covery of presumed or punitive damages, at least when liability is not based ona showing of the falsity or reckless disregard for the truth.

The common law of defamation is an oddity of tort law, for it allows re-covery of purportedly compensatory damages without evidence of actualloss. Under the traditional rules pertaining to actions for libel, the existenceof the injury is presumed from the fact of publication. Juries may award sub-stantial sums as compensation for supposed damage to reputation withoutany proof that such harm actually occurred. . . . Additionally, the doctrine ofpresumed damages invites juries to punish unpopular opinion rather than tocompensate individuals for injury sustained by publication of a false fact. . . .

. . . It is therefore appropriate to require that state remedies for defamatoryfalsehood reach no farther than is necessary to protect the legitimate interestinvolved. . . . We need not define ‘actual injury,’ as trial courts have wide experi-ence in framing appropriate jury instructions in tort actions. Suffice it to say thatactual injury is not limited to out-of-pocket loss. Indeed, the more customarytypes of actual harm inflicted by defamatory falsehood include impairment ofreputation and standing in the community, personal humiliation, and mental an-guish and suffering. . . .

We also find no justification for allowing awards of punitive damagesagainst publishers and broadcasters held liable under state-defined standardsof liability for defamation. In most jurisdictions jury discretion over theamounts awarded is limited only by the general rule that they not be excessive.Consequently, juries assess punitive damages in wholly unpredictableamounts bearing no necessary relation to the actual harm caused. And they re-main free to use their discretion selectively to punish expressions of unpopu-lar views. . . . In short, the private defamation plaintiff who establishes liabilityunder a less demanding standard than that stated by New York Times may re-cover only such damages as are sufficient to compensate him for actual injury.

V

* * * *

We therefore conclude that the New York Times standard is inapplicable tothis case and that the trial court erred in entering judgment for respondent. Be-cause the jury was allowed to impose liability without fault and was permittedto presume damages without proof of injury, a new trial is necessary. We reverseand remand for further proceedings in accord with this opinion.

It is ordered.Reversed and remanded.

The Law of Torts 19

Ethics WatchAlthough an attorney, party, or witness is absolutely immune for defamatory state-ments made in court, or in documents submitted to a court, that immunity does notapply to statements made outside of the court proceedings. Consequently, a parale-gal could be liable for repeating outside the law firm information that has been shownto be false and defamatory. Although a paralegal—as a private citizen—is free to re-port what has already been stated in court, discretion should be the rule.

As mentioned in Gertz, the Supreme Court has determined that state-ments of pure opinion cannot be defamatory because they express no state-ment of fact—other than about what the accused defamer thinks about theplaintiff. Under this rule, literary critics and political columnists should haveless worry about defamation suits. The potential problem, of course, is thatstatements of purported fact and statements of opinion are sometimes diffi-cult to distinguish.

Balancing Defamation Against Free Expression

As in many areas of the law, defamation is a problem that requires a balancing ofcompeting interests, such as:

■ the individual’s right to privacy

■ the individual’s right to be free of defamation

■ the public’s right to information about matters of public interest

■ the individual’s right to free expression

■ the media’s right to freedom of the press

And all of these rights relate to the doctrine of public policy, which does not al-low one right to totally extinguish another and favors free and open discourse ina democratic society.

For constitutional and public policy reasons, individuals generally may notbe sued for defamatory statements they make in official government proceed-ings. The U.S. Constitution, Article I, Section 6, states: “[F]or any Speech or Debatein either House, [Senators and Representatives] shall not be questioned in anyother Place.” Most state constitutions grant similar immunity to members of thestate legislature (and sometimes to other public officials) for statements madein their official capacities. Statutory or common law also exempts judges, attor-neys, and witnesses from defamation suits for statements made in court pro-ceedings or before legislative bodies, although they are still subject to criminalpenalties for perjury if a false statement is knowingly made under oath. This im-munity also does not shield attorneys, parties, and witnesses from contempt ofcourt for statements made in court proceedings. The news media and the pub-lic are also immune from liability when reporting accurately what has beenstated by participants in official government proceedings.

FRAUDULENT MISREPRESENTATIONFraud is the intentional use of deceit to induce someone to give some benefit tothe tortfeasor. In less precise terms, fraud is cheating. In litigation, fraud usuallyarises in the context of inducing someone to enter into a contract—inducing a per-son to buy a used car by turning the odometer back, for example, or furnishingfalse information to a bank in order to obtain a loan. However, fraud sometimesoccurs in the context of ongoing business relationships—when a partner main-tains two sets of books, for example, and keeps an unfair portion of the partner-ship’s profits for himself.

Fraud is the intentional use ofdeceit to induce someone togive some benefit to thetortfeasor.

20 CHAPTER 12

Ethics WatchA legal assistant commits fraud if he “pads” his time sheet or expense account, re-gardless of whether the client or the employing attorney is the one being cheated. Alegal assistant could be an accessory to fraud if he knowingly facilitates fraud by hisemployer against the interest of a client or any other person.

Fraud is also committed when:

■ a debtor transfers his assets to friends, relatives, or entities controlledby the debtor (e.g., trusts or corporations) in order to conceal thoseassets from his creditors (fraudulent transfers or “conveyances”)

■ a taxpayer conceals income from the Internal Revenue Service (taxfraud)

■ a trustee uses property of the trust estate for her own benefit ortransfers title to that property into her own name as an individual(conversion)

■ an investment manager uses the funds contributed by subsequentinvestors to pay a promised return to earlier investors in the same enter-prise (Ponzi scheme)

■ a litigating party knowingly presents fabricated evidence to the court(fraud on court)

■ election officials permit living persons to cast votes under the names ofdeceased persons (election fraud)

Of course, the preceding is only a partial list among many forms of fraud.

A fraudulent transfer is theconveyance of title in someproperty to another person sothat a creditor is cheated ordelayed in her efforts to gainpossession of, or title to, thatproperty.

Conversion is the unauthorizedpossession and use of someoneelse’s property so that the trueowner is effectively deprived of his ownership rightspermanently (or for an indefiniteperiod).

A Ponzi scheme is a fraudulent“investment” scam in which asmall portion of the fundsprovided by subsequentinvestors is used to payostensible “profits” to the earlierinvestors in the scheme, whilethe tortfeasor actually divertsthe great bulk of all investedfunds to his own use.

In most jurisdictions, allcontracts include an impliedcovenant of good faith and fairdealing—that is, an impliedpromise by all parties that eachwill implement the contractfairly and in good faith. Thepurpose of the covenant is toensure that each party receivesthe benefit of the bargain hemade.

Fraud can also constitute a breach of contract—either because it breachesthe implied covenant of good faith and fair dealing, or because it is fraudulentconduct that violates explicit terms of the contract. In either case, the injuredparty would have two causes of action in a lawsuit: fraud and breach of contract.But a breach of contract is never fraud unless it is done deceitfully.

Actual Fraud

The required elements in a cause of action for actual fraud (also known as “in-tentional misrepresentation”) are:

■ a false representation by the defendant

■ knowledge by the defendant that the representation is false

■ intent to deceive the plaintiff

■ reliance by the plaintiff upon the misrepresentation

■ justifiable reliance by the plaintiff

■ damages to the plaintiff resulting from that reliance

The false representation must be of a past or present fact because no onecan know the future. It must also be a misrepresentation of a material fact—onethat would influence the decision of the person being deceived. The false repre-sentation might be an affirmative one—i.e., a false statement—or it might be anintentional concealment of a material fact. If a seller places furniture over dam-aged areas in a hardwood floor so that the prospective buyer would not see thatdamage, that would be an example of intentional concealment. Turning a car’sodometer back would be a false statement if the buyer’s attention is drawn tothe auto’s “low mileage.”

Actual fraud is the intentionaldeception of another person sothat, induced by that deception,the victim will rely upon themisrepresentation and providesome benefit to the tortfeasor.

The Law of Torts 21

Scienter is the tortfeasor’sconscious knowledge that hehas fraudulently misrepresentedor concealed material facts.

Generally, silence is not considered to be misrepresentation unless one per-son has a duty to disclose material facts to another person. For example, somestates have statutes that require homeowners to disclose all known defects ina house prior to selling that property. A duty to disclose sometimes exists un-der common law. For example, a fiduciary may not remain silent when he isaware of any fact that would be material to the decision of his client or benefi-ciary. A seller of commercially zoned property has an affirmative duty to dis-close that zoning if she learns that the buyer plans to use the property for res-idential purposes.

Scienter in Actual Fraud

Knowledge that the representation is false—called scienter—is a required ele-ment of actual fraud. Under the law, however, scienter exists if the defendant hasmade a false statement without any reasonable basis for that statement. A realestate agent who claims that a piece of land is ideal for growing rice—a fact thatturns out to be untrue—has made a misrepresentation if he lacks actual infor-mation that reasonably supports that statement.

The misrepresentation must be made with intent to deceive—with an inten-tion that the other person will rely upon that false representation. If a defendantcan show that he honestly believed that the false representation was actuallytrue, there is no intent. However, a jury may infer deceptive intent from the evi-dence before it—for example, if the jury does not believe the defendant’s protes-tations of good faith.

Because all torts require that actual damage be caused by the wrongful con-duct of the defendant, a cause of action for fraud requires that the plaintiff actu-ally rely upon the defendant’s misrepresentation and be harmed by that reliance.If the buyer of a house employs a qualified building contractor to inspect thathouse before the buyer commits to completing the purchase, the jury may con-clude that she did not actually rely upon the seller’s misrepresentations, but in-stead relied upon the contractor’s inspection.

Reliance upon a misrepresentation must be justifiable—that is, it must bereasonable. To be justifiable, the plaintiff’s reliance must be foreseeable (i.e., rea-sonably predictable to the defendant). Although representations that are obvi-ously false cannot be relied upon, the plaintiff is under no duty to conduct herown investigation to discover whether representations are true or false becausethat would relieve the defendant from any responsibility for his intended deceit.In the situation described in the preceding paragraph, the buyer had no duty tohire a contractor to inspect the house.

An allegation of justifiable reliance might be supported by the defendant’ssuperior knowledge. For example, a certified expert in precious gems might beliable if he falsely tells his customer that a diamond would appraise for twice thepurchase price. On the other hand, if the jeweler says “this is the investment ofa lifetime,” he will not be liable. The latter statement is considered to be“puffery”—the type of vague, inflated sales pitch that no customer has a rightto rely upon.

A real estate agent who claims that property values in a certain area are“sure to double in value within the next 5 years” has expressed no more than anopinion. Because future property values cannot be known, they are never “facts”and no one has a right to rely upon such statements. This situation differs fromthe diamond sale just described because the jeweler was representing the cur-rent value of the diamond, not future trends in diamond values.

Statements of future intentions are misrepresentations if the speaker actuallydoes not intend to act accordingly. In other words, the speaker’s state of mind(at the moment the statement is made) governs. If the speaker sincerely states

Puffery is a seller’s vaguecharacterization of a product’svalue or quality without thestatement of a specific fact uponwhich a prospective buyer canreasonably rely.

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Constructive fraud is anegligent misrepresentation of amaterial fact made to a personto whom the tortfeasor owes apreexisting duty.

a future intention, it does not become a misrepresentation if he later changes hismind. Of course, if the statement of future intent was actually a promise, and acontract was formed, the speaker might be innocent of fraud but liable for breachof contract.

Finally, the plaintiff must demonstrate that he was actually damaged by themisrepresentation. If the plaintiff has alleged that he was fraudulently inducedto enter into a contract—in other words, he would never had made the contractif he had known the truth—he nonetheless has no cause of action for fraud if heended up getting the benefit of his bargain and was not otherwise harmed by themisrepresentation. Thus, if a seller misrepresents the value of land, the buyermight have no cause of action if the land actually appreciates substantiallyabove that value within a reasonable time and before the misrepresentation isdiscovered.

Constructive Fraud

Whereas actual fraud requires an intent to deceive, constructive fraud (alsoknown as “negligent misrepresentation”) does not require deceptive intent. In-stead, in constructive fraud the representation relied upon by the plaintiff hasbeen negligently made by the defendant. Actual fraud also requires scienter—knowledge that the representation is false; constructive fraud does not requirethat knowledge. Unlike actual fraud, constructive fraud requires that the personat fault has breached a preexisting duty to the injured party. The duty breachedmight be a statutory duty or one under contract or common law.

Constructive fraud most often occurs when the defendant owes a profes-sional or fiduciary duty to the plaintiff or when the negligent misrepresentationoccurs in the conduct of a business. An insurance agent who carelessly states toa prospective client that a particular policy meets his need might be liable forconstructive fraud if the client relies upon that advice and purchases the policyeven though it effectively excludes him from coverage due to a preexisting med-ical condition.

Although a representation made without any reasonable basis legally con-stitutes knowledge of its falsity under actual fraud, the defendant in construc-tive fraud normally has a reasonable basis for making the representation butwould have learned of its falsity had he investigated thoroughly. The negligenceusually stems from the defendant’s inadequate investigation to confirm his be-lief in the representation made.

In actual fraud, a defendant is liable to all victims who foreseeably could learnof the false representation. In constructive fraud, however, the defendant gen-erally is liable only to those he intends to receive his representation: his cus-tomers, clients, and so forth. Figure 12.1 summarizes the distinctions betweenactual and constructive fraud.

THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSThe traditional rule was that causing emotional distress was not a tort in its ownright, but only one measure of damages arising from the commission of a recog-nized intentional tort, such as assault or false imprisonment. One reason for thisrule was the reluctance of courts to award damages for an “injury” so easilyfeigned. In recent years, however, the courts of most states have acceptedintentional infliction of emotional distress as a distinct tort. The result is thata plaintiff need not prove that the defendant’s conduct was otherwise tortious.If evidence shows that the plaintiff’s conduct was intended to inflict severe emo-tional distress, and that it succeeded in doing so, a cause of action might exist.

The intentional infliction ofemotional distress is extremeand outrageous conduct by thetortfeasor that exceeds allbounds of decency and causesthe victim to experience severeemotional distress.

The Law of Torts 23

ACTUAL CONSTRUCTIVEFalse representation ✓ ✓Knowledge by defendant that ✓

representation is falseIntent to deceive ✓Reliance on representation ✓ ✓Justifiable reliance ✓ ✓Damages resulting from reliance ✓ ✓Negligent representation ✓Breach of preexisting duty to the ✓

damaged personLiability to all who foreseeably ✓

could learn of representationLiability only to person to whom ✓

representation was directed

FIGURE 12.1 Actual and Constructive Fraud

Nonetheless, the courts’ earlier reluctance in recognizing this tort is reflected inthe elements required to state a cause of action. The elements of the intentionalinfliction of emotional distress are:

■ extreme and outrageous conduct by the defendant

■ intent to inflict emotional distress

■ severe emotional distress resulting from the defendant’s conduct

To qualify as extreme and outrageous, the conduct must go well beyond the kindof rude, insulting, profane, and offensive conduct one occasionally encounters.The conduct must be so outrageous that it transcends all concepts of decency.

In evaluating conduct, the courts will consider the context in which it occursand the parties involved. Conduct sufficiently extreme and outrageous in a so-cial gathering might not be tortious if it were to occur among the participants ina professional football game. Conduct directed by an adult toward a young childwould cross the threshold more easily than the same conduct directed at an-other adult.

Examples of extreme and outrageous conduct cited by the Restatement (Sec-ond) of Torts1 include:

■ as a practical joke, telling someone that her spouse has been seriouslyinjured and is confined to a hospital, causing emotional distress to thewoman

■ giving a guest a bathing suit that the giver knows will dissolve in water,leaving the guest naked in front of men and women she has just met,causing extreme embarrassment, shame, and humiliation

■ telling a farmer known to believe in witchcraft that a “hex” has been puton the farm, causing the farmer to believe that it will not grow crops sothat he will sell the farm to the defendant, thereby causing severeemotional distress and illness

In most torts, the defendant “takes his plaintiff as he finds him”—meaningthat the defendant is responsible for injuries that result from both the plaintiff’swrongful conduct and any special vulnerability of the particular victim, provid-ing that some injury from that conduct is foreseeable. Thus, a driver might be li-able for the unusually severe injuries suffered by an elderly person whose bones

24 CHAPTER 12

A nuisance is any use of one’sproperty that unreasonablyinterferes with a neighbor’ssubstantial use and enjoymentof her property or thatdiminishes the value of theneighbor’s property.

Trespass is the unauthorizedintrusion onto the land ownedby another person. At commonlaw, trespass included anyunlawful interference withanother’s property rights.

A public nuisance is one thatinterferes with the lawful rightsof the public at large.

are brittle, so long as a typical pedestrian would have been injured—althoughless seriously—by the same impact.

However, the infliction of emotional distress is strictly limited to those dam-ages that are foreseeable. Damages cannot arise from the unknown sensitivity ofa particular individual. However, if the defendant is aware of that peculiar sen-sitivity and nonetheless acts recklessly without regard to the likelihood of emo-tional harm, he might be held liable. That rule is implicit in the requirement thatthe actor intends to cause severe emotional distress or mental anguish. In the sit-uation of a victim known by the defendant to be hypersensitive, that intent to in-flict the distress can be inferred by the jury from conduct that is extreme andoutrageous and was committed with the knowledge that emotional distress isvirtually inevitable.

PUBLIC AND PRIVATE NUISANCESThere is a legal presumption that one is entitled to the reasonable use and en-joyment of one’s property. Otherwise, the primary purposes of property owner-ship would be defeated. A nuisance arises when another person’s conduct un-reasonably interferes with that use or enjoyment, or substantially diminishesthe value of that property. In a residential neighborhood, launching rockets intothe sky from one’s backyard might cause unreasonable noise and also the ap-prehension of possible injury among the neighbors. The same activity in a re-mote desert location might bother no one. One of the purposes of zoning ordi-nances is to harmonize the activities of adjacent landowners and their tenants(e.g., farming, commerce, or residential use), thus minimizing nuisance com-plaints. The covenants, conditions, and restrictions (CC&Rs) established byhomeowners’ associations have a similar purpose, but provide for more intru-sive restrictions (and greater protections) than provided by nuisance law.

The concept of nuisance is closely related to that of trespass upon one’sproperty. In the usual concept of trespass, someone damages another’s propertyright by an unauthorized physical invasion. The invasion can be an entry (e.g.,by a hunter or by trash dumped across the property line). It might also be theconstruction of a building that overhangs the property of a neighbor. One of themore common forms of trespass is the construction of a boundary fence that ac-tually lies within the neighbor’s property, depriving her of the use of severalinches (feet or yards) of her property. A continuing controversy is the intrusionof aircraft overhead and the obstruction of horizontal views by buildings ortrees. Because there is no physical invasion, the latter example actually ap-proaches the concept of “nuisance.”

A nuisance can be either a public nuisance, affecting the community atlarge, or a private nuisance, affecting one or a few neighbors. A public nuisanceinterferes with rights common to all, whereas a private nuisance interferes withthe rights of only those persons immediately affected. In some jurisdictions, cer-tain types of public nuisances can carry criminal penalties as well as civil liabil-ity; however, private nuisances are matters of civil liability, only. Public nui-sances might include such activities as:

■ habitually selling illegal drugs from a residence

■ continually discharging pollutants from a manufacturing site

■ operating a night club that draws throngs of party-goers who regularlycarouse and vandalize in nearby residential neighborhoods

■ keeping dangerous animals on the premises

Of course, there are often specific statutory prohibitions for these kinds ofconduct (e.g., discharging pollutants), but in their absence an action may be

A private nuisance is one thatinterferes with the lawful rightsof one or a few neighbors.

The Law of Torts 25

The right of privacy is the rightto be left in peace, withoutunwarranted disclosure byothers of our private matters.

brought under the theory of nuisance. In most jurisdictions, only the govern-ment has standing to sue for a public nuisance. However, an individual mighthave standing under the same facts to sue for a private nuisance if the defen-dant’s conduct also causes injuries peculiar to that individual plaintiff (i.e., dif-ferent from those injuries to the public at large). In actions for private nuisance,the plaintiff must either be in possession of the property interest that is harmedor have the right of immediate possession.

Conduct that harms the property interests of only one or a few personswould not be a public nuisance, but is actionable as a private nuisance. This dis-tinction often hangs upon the specific circumstances in which the offendingconduct occurs. Keeping dangerous animals on property adjacent to an ele-mentary school is quite different from keeping them on an isolated farm. In thelatter circumstance, the conduct might not constitute a nuisance at all, unlessthere is a neighbor who lives in fear of attack. Due to the isolated location, apublic nuisance would be unlikely, but a neighbor could bring an action for pri-vate nuisance.

Conduct is not actionable as a nuisance unless the harm to the property in-terests of others is both substantial and unreasonable. The reasonableness ofthe conduct is determined in light of all relevant factors, such as the customaryand usual practices of other landowners in the same circumstances. Any bene-fit to third parties that derives from the challenged conduct (e.g., night club cus-tomers who do not vandalize the neighborhood) will be considered, as will bethe cost to the defendant of eliminating the alleged nuisance. In a few states,however, intentional conduct is sufficient to establish a nuisance, even if thatconduct is reasonable. Thus, a farmer might be enjoined from spreading noxiousfertilizers on his land adjacent to a neighbor’s home, even though the use ofsuch fertilizers is the customary practice of farmers.

The remedies available for nuisance vary depending upon the nature of thenuisance. If the offensive conduct has ceased, monetary damages are available.If a nuisance is continuing in nature, the plaintiff might have to choose betweensuing for the diminishment in value of his own land or suing periodically forpast damages. If the nuisance is continuing but can be discontinued, the plain-tiff may seek an injunction against the offending conduct. In the latter situation,monetary damages may be awarded for the past injuries to the plaintiff’s prop-erty interests.

INVASION OF PRIVACYThere is a presumption in law that each individual has a right to be left “inpeace.” One who violates that right in a substantial way can incur civil liabilityfor that invasion. Thus, one who is unsuccessful in battery might still be liablefor assault. Nonphysical “assaults” are recognized also in the law of defamation.A somewhat recent extension of such principles has given rise to a more generalright of privacy.

The right of privacy protects us from certain intrusions by government (e.g.,as in protecting women’s access to abortion) and from unwarranted private in-trusions into personal matters (e.g., secretly recording private conversations).This discussion will focus upon the latter type of intrusions by private individu-als and organizations known as wrongful invasions of privacy.

It is important to understand that the common law protects only those as-pects of our life for which we have a reasonable expectation of privacy. Individu-als surrender some expectations of privacy when they become rock stars or can-didates for public office. In addition, public policy favors open disclosure of sometypes of “private” information when a person involuntarily becomes a “public figure”—persons accused of crimes, for example. Finally, individuals and the

An invasion of privacy is anyconduct that violates the right of privacy, including theunauthorized use of one’s nameor photograph for commercialpurposes or the unauthorizeddisclosure of private mattersthat exposes the victim toshame or embarrassment.

26 CHAPTER 12

news media enjoy First Amendment freedoms of speech and press, and our indi-vidual right to privacy must be balanced with these constitutional rights of others.

Unauthorized Intrusion into One’s Private Life

This area of privacy law rests upon the essence of the right of privacy: to be leftalone and to go unnoticed by others. The clearest examples of the breach of thisright are such things as:

■ secret recording of private conversations

■ covert photography with hidden cameras

■ stalking behavior

Unauthorized intrusion can also occur when a visitor examines a hospital pa-tient’s chart or an investigator persuades a bank employee to reveal a cus-tomer’s bank account information. Oddly enough, Hollywood has often por-trayed telescopic eavesdropping through the windows of one’s neighbors as abenign pastime that leads to solving crimes, most notably in the films Rear Win-dow (with James Stewart and Grace Kelly) and Body Double (with Craig Wassonand Melanie Griffith).

To be actionable as an invasion of privacy, the intrusion must be highly of-fensive under prevailing community standards. However, there is no require-ment that the information obtained be made public—it is enough that the plain-tiff’s reasonable expectation of privacy has been egregiously breached. Themeasure of damages will be the emotional distress experienced by the plaintiffupon discovery of the intrusion. Although publication is not a required elementof the tort, most often it is through some form of publication that the plaintifffirst learns of the invasion. Publication can occur by word of mouth, on the In-ternet, in print, or by other means.

Publication of Private Information

This area of privacy law is less clearly defined than most others. The informationprotected against unauthorized publication is essentially similar to those aspectsof one’s personal life that are protected against unauthorized eavesdropping orcovert inquiry. When it is impossible to demonstrate that the information was ob-tained by egregious intrusion, a cause of action might lie for unauthorized publi-cation. To be actionable, the publication must be highly offensive to a reasonableperson. The offensive quality of the publication is based largely upon the privatenature of its content, although the manner of publication can be a factor as well.

Because the content of the publication is so central to this cause of action,it is defined in part by content that is not considered to be highly offensive. Thus,the following types of content do not meet the highly offensive standard:

■ information in court records, records of births and death, etc.

■ reports or images of conduct that occurs in public places

■ reports or images of private conduct that do not expose the plaintiff toembarrassment or ridicule

Public figures receive less protection under the law than does the generalpublic. In addition, the news media enjoy a privilege to publish information thatis newsworthy and of public interest. This very broad exception makes it ex-ceedingly difficult for public figures to prevail in a cause of action for unautho-rized disclosure of private facts. The exception also extends to nonpublic figureswhose profession creates a public interest in how they perform their profes-

The Law of Torts 27

sional duties: medical doctors, school teachers, attorneys, and so forth. Forthese professionals, an unauthorized disclosure of private conduct would beprotected if that conduct had some reasonable relevance to their performanceof professional duties.

Unlike defamation, truth alone is no defense to an action for unauthorizeddisclosure. In fact, the truth of the disclosure is irrelevant to unauthorized dis-closure. True or not, the disclosure has intruded upon the plaintiff’s right of pri-vacy. Consent, however, is an absolute defense to this cause of action. In Virgilv. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976), theCourt of Appeals held that a magazine could not rely upon a subject’s prior con-sent if that subject later withdrew his consent to the magazine to print embar-rassing private facts.

Unauthorized Use of a Person’s Name or Image for Commercial Purposes

Two interests are at stake here: the right of privacy and the right to profit fromthe commercial value of one’s name or image. Both interests can be simultane-ously infringed by a single, unauthorized commercial use. While nonpublic fig-ures tend to have less commercial value at stake, public figures tend to have alesser expectation of privacy. Consequently, the privacy interest is usually para-mount for nonpublic figures and the commercial interest is usually paramountfor famous personalities.

MALICIOUS PROSECUTIONAfter observing the expense and emotional stress endured by many law firmclients, some litigation paralegals resolve never to be either a plaintiff or de-fendant in a lawsuit. Even when fighting the good and just cause, litigation canbe a draining experience. Even more devastating is to be the innocent defendantin a serious civil or criminal matter. For the less scrupulous plaintiff, bringingan adversary to answer before a court of law can be a tempting device even ifthere is no reasonable basis for the prosecution. This can be particularly tempt-ing for large corporations and very wealthy individuals who have resources thatcan overwhelm those of most individual defendants.

The common law tort of malicious prosecution developed as a remedy for de-fendants who were maliciously prosecuted in unwarranted criminal actions. In thegreat majority of states, it has been expanded to provide a remedy for unwar-ranted civil actions brought by the plaintiff out of malice toward the defendant. Insome jurisdictions, the latter tort is called “malicious use of process” or “wrong-ful use of civil proceedings” to distinguish it from malicious criminal prosecution.The more common term, which shall be used here, is malicious prosecution.

In an action for malicious prosecution arising from either a criminal or civilproceeding, the plaintiff in that prior action must have brought that action out ofmalice and without probable cause under the law. That prior action must havebeen terminated by a determination on its merits and in favor of the defendant.If any of these elements is missing, a subsequent action by that defendant formalicious prosecution will not lie.

Of course, whether the underlying malicious prosecution was in a civil or crim-inal proceeding, the subsequent suit in tort for malicious prosecution is a civil mat-ter and is a separate proceeding from that underlying case. In some jurisdictions,malicious criminal prosecution is itself a criminal offense if knowingly and corruptlyundertaken by the defendant. Depending upon the facts, it also could constitute a

Malicious prosecution is thebad faith institution of legalproceedings (civil or criminal)against a defendant as a meansof harassment or punishmentand without probable causeunder the law.

28 CHAPTER 12

criminal offense under federal law (42 U.S.C. § 1983) for depriving a person of herconstitutional rights. State and federal prosecutors, however, enjoy an absolutecommon law immunity from civil suit for malicious conduct of their prosecutorialduties. It is ordinary citizens or other officials—other than the prosecutor—who canbe liable for inducing the criminal prosecution without probable cause.

The tort of malicious prosecution is often termed a “disfavored” cause of ac-tion because the courts fear that it could deter “the ordinary citizen’s willing-ness to report criminal conduct or to bring a civil dispute to the court. . . .” Shel-don Appel Company v. Albert & Oliker, 47 Cal.3d 863, 872 (1989). Consequently,some states require that the plaintiff who is pleading malicious prosecution alsoshow some “special injury” beyond the ordinary emotional distress and expenseof defending a meritless lawsuit.

Among the elements of malicious prosecution, the more troublesome arethe requirements that the prior lawsuit was brought out of malice and without“probable cause.” Obviously, it is not unusual for a plaintiff to feel malice towardthe defendant he sues, and it is entirely possible that, absent that malice, manylawsuits might not be pursued at all. So, in that sense, “malicious” prosecutionsare not all that unusual. However, the plaintiff’s malicious motivation alone (inthe prior lawsuit) will not support a cause of action in a subsequent lawsuit. Anysincere plaintiff who is pleading a prior malicious prosecution by the defendantis almost certain to feel malice also toward that defendant—who first sued him.Malice, alone, could lead to an endless chain of lawsuits.

The real threshold issue for malicious prosecution is the prior plaintiff’slack of probable cause for bringing the original lawsuit. In this context, “prob-able cause” is the factual and legal basis for bringing the lawsuit. Probablecause exists if a reasonable attorney would believe that it is possible to prevailunder the facts known to her, and under the law. If the facts are in dispute, ajury may determine those issues. But once the facts are determined—or if theyare undisputed—probable cause becomes a question of law that only the courtmay determine.

If probable cause is missing, malice becomes the critical element for mali-cious prosecution. In this context, malice is more than ill will—or even hatred.Malice exists in the basis for the plaintiff’s decision to file suit. If the plaintiff de-spises the defendant but files suit to obtain a remedy for actual injuries, an ac-tion for malicious prosecution will not lie. After all, that is why the courts exist—to provide remedies for actual wrongs. Malicious prosecution occurs when theplaintiff’s motive is not to seek a remedy, but instead to harass or punish the de-fendant regardless of the merits of the case.

Because malice hangs upon the plaintiff’s state of mind, it is a question offact that a jury can determine. Some jurisdictions permit the jury to infer mal-ice from the plaintiff’s lack of probable cause. Of course, that inference ismore easily made when reaching a verdict against the plaintiff’s attorney, whojurors might think “should know better” than to bring a lawsuit without prob-able cause.

It has become commonplace to plead malicious prosecution not onlyagainst the plaintiff in the underlying case, but also against that plaintiff’s legalcounsel. Thus, the perceived “threat” of malicious prosecution lawsuits hasbeen a growing concern in the legal profession. Of particular concern is the pos-sibility that some professional liability policies (“errors and omissions” policies)might not insure the attorney for a knowingly malicious act. It is not difficult tounderstand why attorneys are so often named in lawsuits for malicious prose-cution. They, better than their clients, can evaluate the question of probablecause and have an ethical duty to inform their clients if they believe that proba-ble cause does not exist. Naming the attorney provides a second “pocket,” if nota “deeper pocket,” for the recovery of any damages.

The Law of Torts 29

DEVELOPING NEW THEORIESOF TORT LIABILITY

SURVIVAL OF CAUSES OF ACTION

Although courts look to precedent to discover our general duties to each other,new grounds for tort liability are occasionally recognized. For example, an in-jured person files a lawsuit proposing a new theory of tort liability. Whether hewins or loses in the trial court, the case might be heard on appeal if it raises animportant question of tort law. If the appellate court agrees with the plaintiff andrecognizes a legal duty that has not been explicitly articulated previously, thatstate’s highest court might also entertain the case and, thus, settle the issue forall courts of that state.

With few exceptions, court-defined torts are intended to state the existinglaw of that jurisdiction—law that was already implicit in statutes and/or ear-lier court decisions. By logical analysis of statutory and common law, thecourts discover legal principles that have been latent but never explicitly ar-ticulated. Conceptually, this is similar to revealing the latent images in pho-tographic film when that film is finally developed—the image was there butnot previously visible. Logically, the process is similar to solving problems ingeometry: deriving solutions from the analysis of legal theorems and theircorollaries—and, perhaps, discovering new legal corollaries. That was theprocess that led courts to recognize intentional infliction of emotional dis-tress and strict products liability as distinct causes of action in tort.

The doctrine of strict products liability defined by the California SupremeCourt in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897 (1963),for example, was incorporated in the Restatement of Torts § 402A two years later,and soon became part of the common law in nearly every jurisdiction in theUnited States. In a similar fashion, the distinct tort of intentional infliction ofemotional distress has been recognized by a growing number of state courts,and now is recognized in the Restatement (Second) of Torts § 46. (The Restate-ment is a persuasive, although nonbinding, summary of American common law.Court decisions often cite the Restatement as authority for their holdings.)

Until recent times, the death of either the tortfeasor or the injured party meantthat a cause of action expired and did not pass to the estate or the decedent’srelations. Most states, however, have enacted statutes that provide for the sur-vivability of some causes of action. These are usually personal injury or wrong-ful death causes. If the cause of action survives by operation of a statute, recov-ery can later be made by or against the estate of the decedent. Most survivalstatutes exclude causes of action for a decedent’s pain and suffering and for re-covery of punitive damages against the estate of a decedent.

Most states have statutes that establish a separate cause of action for thesurviving family members of a decedent. In other words, the family asserts a newcause of action on its own behalf, not as surrogate plaintiffs for the decedent.Generally, the surviving relatives may sue only for their own financial losses un-der this new cause of action (e.g., financial support provided by the decedent orthe monetary value of companionship and personal services). Some jurisdic-tions provide for this new cause of action while also permitting a lawsuit by thedecedent’s estate. Thus, the estate and the surviving relatives may prosecuteseparate, but related, causes of action.

30 CHAPTER 12

GOVERNMENT IMMUNITYFROM TORT LIABILITY

The survivors’ damages would be limited to their pecuniary losses (as men-tioned previously). Actuaries calculate the decedent’s working life expectancyand the wages he would have earned in that time. For nonwage earners, recov-ery is usually permitted for the value of “services” they would have provided tothe survivors. If a surviving spouse has since remarried, that fact is not relevantto the calculation of damages for the lost support and services of the decedent.The latter rule recognizes that “but for” the wrongful death of the spouse, the re-marriage might not have occurred.

Most states do not permit survivors to recover for their own ordinary griefor anguish resulting from a wrongful death. Some states, however, do permit re-covery if the surviving relative actually witnessed a traumatic death scene, onthe theory that it is a separate injury inflicted by the tortfeasor upon a separatevictim.

The traditional doctrine was that “the crown can do no wrong” and, therefore,could not be sued. In modern times, this sovereign immunity has been greatlymodified by state and federal statutes. The Federal Tort Claims Act permits thegovernment to be sued for the negligent acts of federal employees and for mostintentional torts by federal law enforcement officers. However, the FTCA retainsimmunity for most “discretionary” acts performed by federal employees in thenormal course of their duties. In addition, various Supreme Court rulings haveseriously limited the effect of the Federal Tort Claims Act. In any event, all federalcabinet officers, judges, legislators, and prosecutors are almost completely im-mune from civil liability for actions taken within the scope of their duties, evenif committed with malicious intent.

The principle of sovereign immunity is not uniform under state laws. Eachstate has modified that immunity in some fashion, but the variations are so greatthat it is difficult to generalize. Most states have established mechanisms forbringing claims against state and local government. Most of the claims permit-ted by state law may be pursued in court. States generally grant complete im-munity to the governor, state legislators, judges, and prosecutors for acts takenwithin the scope of their duties. In a recent series of 5–4 decisions, the U.S.Supreme Court—deferring to the doctrine of sovereign immunity—has held thatstate governments may not be sued by their citizens or employees for violatingcertain federal laws, such as the Age Discrimination in Employment Act.

A QUESTION OF ETHICS

Marlo Loreto is a brand new legal assistant fresh out of paralegal school and hasbeen hired for an entry-level position in a personal injury firm. Her supervisingattorney has assigned her to handle discovery responses in a number of law-suits arising from automobile accidents. The cases involve claims against the in-surance companies of defendant drivers, with substantial damages for medicaltreatment and pain and suffering. Prior to becoming a legal assistant, Marloworked as a registered nurse in a large hospital.

One morning, while reviewing medical reports from a client’s doctor, Marlocame across an apparent inconsistency between the doctor’s diagnosis and pro-jected treatment plan. She drew her supervising attorney’s attention to this ap-parent anomaly, assuming that it was a careless error on the doctor’s part. The

Sovereign immunity is thedoctrine that precludes suingthe government without itsconsent.

The Law of Torts 31

CHAPTER SUMMARY

attorney appeared angry upon receiving this news and immediately called thedoctor in question: “Look, Arthur, you better damn well get your diagnosis andproposed treatment in sync, or we’re going to lose this case. This is the last timeI’m going to put up with this kind of incompetence.” The attorney then toldMarlo to shred the inaccurate report and wait for the corrected report to arrivethe next day. Marlo was left with the impression that her supervising attorneywas trying to pressure the doctor into giving a more “acceptable” report. Shewas troubled also by the attorney’s instruction to shred the first report. What, ifanything, should Marlo do about her concerns?

■ A tort is any civil wrong other than a breach of contract.

■ Torts can be either intentional or negligent.

■ Some actions are both civil torts and crimes.

■ Negligence is a violation of one’s duty of care toward others.

■ The vast majority of lawsuits allege negligent conduct by the defendant.

■ Strict liability does not require negligence or wrongful intent.

■ Suits for defamation or fraud are common non-negligent actions in tort.

■ In most jurisdictions, by operation of law every contract includes animplied covenant of good faith and fair dealing.

■ Actual fraud requires the intent to gain advantage through the deceptionof another person.

■ Constructive fraud requires a pre-existing legal duty to another person,but does not require actual intent to deceive that person.

■ Intentional infliction of emotional distress is a relatively new cause ofaction in tort.

■ A nuisance exists when one uses her property in an unreasonablemanner that deprives others of the reasonable enjoyment of theirproperty.

■ Invasion of privacy is the unauthorized and unreasonable use of anotherperson’s name or image, or intrusion into that person’s private mattersthat are not a subject of valid public concern.

■ Malicious prosecution occurs when one causes criminal or civil proceed-ings to be brought against another for vindictive purposes without anyvalid basis under the facts and the law.

■ Courts recognize new causes of action in tort by analyzing existing prin-ciples of tort law.

■ In general, a cause of action does not survive the death of either theplaintiff or the defendant.

■ Except as otherwise provided by law, a government entity is immunefrom suit by its citizens.

KEY TERMS

actual fraudactual maliceagency

agentassaultassumption of risk

bad faithbatteryconstructive fraud

32 CHAPTER 12

conversioncovenant of good faith and fair

dealingdefamation of characterdue careduty of carefraudfraudulent transferGood Samaritan doctrinegross negligenceimplied warrantyintentional infliction of

emotional distressintentional tort

public nuisancepufferyrespondeat superiorright of privacyscienterslanderSLAPP suitsovereign immunitystrict liabilitystrict products liabilitytorttortfeasortrespass

ACTIVITIES AND ASSIGNMENTS

1. Read news reports of civil litigation anddistinguish those cases that involve allegations ofintentional torts from those that involve negligenttorts.

2. Read news reports of criminal prosecutions andidentify any causes of action under tort law thatmight arise from the facts of those cases.

3. Review several issues of tabloid newspapers thatare sold at supermarket checkout lines andevaluate their articles for possible defamation.

Identify the affirmative defenses that the tabloidsmight raise.

4. Using Internet sites identified in Chapter 9, searchfor cases that have applied the principle of strictliability in lawsuits against tobacco companies.

5. Using the Internet, search for U.S. Supreme Courtdecisions that have cited sovereign immunity inholding that a state government may not be suedby its citizens or employees.

END NOTES1Restatement (Second) of Torts § 46 (1965)

intervening forceinvasion of privacylibellibel per semalicious prosecutionnegligencenegligence per senegligent tortnuisancepersonal injuryPonzi schemeprincipalprivate nuisanceproximate cause