LAW, BUSINESS, &

SOCIETY
11th
Edition

McGraw-Hill

2015 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not
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Learning Objectives

Compare and contrast the three

fundamental kinds of torts: intentional,
negligent, and strict liability
Describe selected intentional torts
against persons including battery,
assault, fraud, invasion of privacy,
intentional infliction of emotional
distress, and defamation

7-2

Learning Objectives

Describe selected intentional torts

against property such as trespass and
nuisance
Identify selected intentional tort
defences
Discuss the impact of product liability
on business practice
Identify the requirements of a
successful negligence claim
7-3

Learning Objectives

Differentiate between types of

negligence claims emerging from
defective products
Analyze whether negligence defenses
may be successfully asserted in a
negligence claim
Compare and contrast claims based on
express warranties and implied
warranties
7-4

Learning Objectives

Identify the elements of the strict

liability cause of action
Identify the defenses available in strict
liability cases
Evaluate arguments for and against
tort reform

7-5

Torts

Civil wrongs not arising from contracts

Involve breaches of duty to particular
persons causing loss or injury
Injured party in a tort litigation seek
compensatory damages

7-6

Tort Categories
Intentional torts
Involve voluntary acts that harm a protected
interest
Negligence
Involves situations in which harm is caused
accidentally
Strict liability
No-fault concept where an individual or organization
is responsible for harm without proof of
carelessness
7-7

Intentional Torts against

Persons

Battery
Intentionally touching another in a

offensive way without legal justification or

consent of that person

Assault
Intentionally causing another to believe

that he/she is about to be the victim of a

battery

7-8

Intentional Torts against

Persons

False imprisonment
Occurs when someone is intentionally

confined against his or her will

Fraud
Intentional misrepresentations of facts
Formally identified as deceit

7-9

Defamation

Uttering an untruth about another

Types
Slander - Spoken form
Libel - Print or other tangible form

Test for establishing defamation

False statement
Harm to the victims reputation
Publication of the statement
7-10

Intentional Torts against

Persons

Invasion of privacy - Unconscionable

exposure of private lives
Misappropriation of a persons name or

likeness
Intrusion
Public disclosure of private facts
False light

Intentional infliction of emotional

distress
7-11

Intentional Torts against

Property

Trespass to real property

Intentional entry on to the land of another

without consent

Trespass to personal property

Intentional interference with a persons

right to enjoy his or her personal property

Conversion - Serious and extensive
interference with personal property

7-12

Intentional Torts against

Property

Injurious falsehood
Defamation directed against the property

of a person
Referred as trade libel

Nuisance
Situation in which enjoyment of ones land

is impaired due to tortious interference

7-13

Case: Intentional Torts

Against Property

Case
Michela Gallagher v. H.V. Pierhomes, LLC et

al.
957 A.2d 628 (Md. Ct. of Spec. App., 2008)
Circuit court

Issue
Gallagher sued the defendants for damage

caused to her home by conducting pile

driving operations on the former Key
Highway Shipyard
7-14

Intentional Tort Defenses

Consent
Mistake
Necessity
Self-defense

7-15

Case: Self-Defense

Case
Katko v. Briney
183 N.W.2d 657 (Ia. S.Ct. 1971)
Trial court

Issue
Could the owner of an unoccupied,

boarded-up farmhouse protect personal

property against trespassers by a spring
gun capable of inflicting death or serious
injury?
7-16

Product Liability

Lawsuits deal with cases where buyers,

users, and bystanders are injured or
killed by defective products
Causes
Negligence
Breach of warranty
Strict liability

7-17

Negligence

Breach of the duty of due care

Negligent act
Failure to do what a reasonable person

would do or doing what a reasonable

person would not do

7-18

Negligence Test

Requirements to establish a successful

negligence claim
Duty
Establish that the defendant owed a duty of
due care to the plaintiff
Breach of duty
Demonstrate that the defendant breached
the duty of due care

7-19

Negligence Test
Causation
Actual cause - But for test is applied to
determine cause in fact
Proximate cause - Establish that defendants
actions were the proximate cause of the
injury
Injury
Plaintiff must have sustained injury

7-20

Case: Negligence

Case
Hoyt v. Gutterz Bowl & Lounge
829 N.W.2d 772 (Ia. S.Ct. 2013)
District court

Issue
Plaintiff was assaulted outside a tavern

owned by the defendant

Appellant alleged that defendant and the
person who attacked were liable for the
injuries sustained by him
7-21

Classes of Negligence Claims

Manufacturing defects
Improper manufacturing of products

frequently generates negligence claims

Doctrine of res ipsa loquitur
Permits the court to infer the defendants
negligence though that cannot be proved

7-22

Classes of Negligence Claims

Design defects
Risk-utility test
Product is negligently designed if benefits of
design are outweighed by accompanied risks
Consumer expectations test
Duty of a manufacturer to design its
products that are safe for intended and
foreseeable use

7-23

Case: Design Defects

Case
Marilyn Merrill v. Navegar, Inc.
28 P.3d 116 (Cal. S.Ct. 2001)
California Supreme Court

Issue
Ferri killed eight people, wounded six and

killed himself during a shooting rampage

Victims sued defendant Navegar, Inc., which
made two of the three weapons Ferri used
7-24

Classes of Negligence Claims

Warnings
Help protect people from foreseeable

dangers
Product is considered defective when:
Reasonable warnings would have reduced or
avoided the foreseeable risks
Failure to warn resulted in a product that was
not reasonably safe

7-25

Case: Warnings

Case
White v. Victor Automotive Products
2010 Mich. App. LEXIS 914 (unpublished)
Trial court

Issue
Craig White died of asphyxiation from

carbon monoxide while using a muffler

repair kit manufactured by defendants
Plaintiffs complaint alleged two violations of
the duty to warn
7-26

Negligence Defenses

Defendant can prevail by asserting a

good defense
Even if plaintiff has established all

necessary ingredients in a negligence

claim

Comparative negligence
Involves weighing the relative negligence

of parties
Adopted by most states
7-27

Negligence Defenses

Contributory negligence
Any contribution by plaintiff to his or her own

harm constitutes a complete bar to recovery

Assumption of risk
Plaintiff willingly entering a dangerous

situation and injured is barred from recovery

Requirements
Knowledge of risk
Voluntary assumption of risk

7-28

Warranties

Contractually based guarantee

Contract is violated and wronged party
is entitled to recovery if product does
not conform to the standards of the
warranty

7-29

Express Warranties

Exists if a seller of goods states a fact

or makes a promise regarding
character or quality of the goods
Governed by the Uniform Commercial
Code
UCC 2313. Express warranties by

affirmation, promise, description, sample

Puffing - Expression of opinion

Does not create an express warranty
7-30

Implied Warranties

Arise by operation of law when a seller

enters a contract for the sale of goods
Types
UCC 2314. Implied Warranty:

Merchantability; Usage of Trade

UCC 2315. Implied Warranty: Fitness for
particular purpose

7-31

Disclaimers

Express warranties can be disclaimed

or modified with great difficulty
Implied warranties can be excluded or
modified by UCC sections 2316(2) and
(3)(a)

7-32

Magnuson-Moss Warranty Act

Extended and clarified UCC warranty

rules
Applies to consumer products and
written warranties
Full warranty
Requires free repair of any defect

Limited warranty
Limitation must be conspicuously

displayed
7-33

Case: Warranties

Case
Hodges v. Johnson
199 P.3d 1251 (Kansas S.Ct. 2009)
Court of Appeals

Issue
Plaintiffs car purchased from the defendant

developed an air conditioning problem with

an estimated repair cost of $3,474
Appellants filed an action against the
defendant for the damages
7-34

Strict Liability

Everyone in chain of distribution is liable

for damages from a defective product
Section 402A, Restatement (Second) of
Torts
Imposes liability where a product is sold in a

defective condition, dangerous to the user

Does not require proof of negligence on

part of the defendant

7-35

Case: Strict Liability

Case
Calles v. Scripto-Tokai,
832 N.E.2d 409 (Ill. S.Ct. 2007)
Appellate court

Issue
Calles filed suit against manufacturer of

the Aim N Flame, alleging that the product

was unreasonably dangerous as it did not
contain a child-resistant safety device
7-36

Strict Liability: Coverage

Extends to personal injuries and

property damage
Restatement of the Law Third, Torts
Apply strict liability claims to

manufacturing defects
Design and warning defects are excluded

7-37

Strict Liability: Defenses

Assumption of risk
Plaintiffs decision to use the product

despite dangers associated with that use

Product misuse
Ignoring usage directions
Using a product in an unforeseeable way

7-38

Product Liability and Public

Policy

Giant tort awards have bankrupted

businesses
Critics in the business community argue

for tort reform

For tort reform

American businesses struggle with rising

tort costs and innovation is reduced

Considerable tort money goes to lawyers
rather than to injured plaintiffs
7-39

Product Liability and Public

Policy

Against tort reform

Lawsuits constitute a modest part of the

cost of doing business

Product liability claims are a small fraction
of the total legal landscape
Insurance costs do not decline appreciably
when damages are covered

7-40

Too Much Law?

Legal intervention is necessary to

achieve justice
At times, intervention is inefficient and

unproductive

7-41