Law Class 4: Tortes: May 26

  1. What are tortes?
    When somebody causes injury to another person.  That injury does not have to be physical... it can be mental, economic... etc.  When one party causes harm/ injury to another party.

    The goal of tortes is to find out if one person is responsible for causing harm, and to provide compensation to the victim.

    Tortes are not necessarily just crimes... e.g. OJ simpson...  charged by a crime then later on sued by the family of ronald goldman for loss of having lost a family member. 

    Some crimes are not tortes.  Because they don't have a victim per se... for example speeding. 

    Tortes and crimes are inherently bad actions... regardless if there is a contract or not. 

    Some tortes aren't crimes.... for example Dan doesn't like Marcus' sub and becomes ill... 

    A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor.

    Intentional Torts - Where the intended result of an action or a series of actions, was to cause harm to another party.

    Unintentional Torts - Where there may not have been an intention to do harm, but harm nevertheless occurred.
  2. What are two types of tortes?
    Intentional Tortes - Where the intended result of an action or a series of actions, was to cause harm to another party.  There was an intent.  The party doing the harm intended to do harm.

    Unintentional TortesWhere there may not have been an intention to do harm, but harm nevertheless occurred. The majority of tortes that are committed.  No intention to injure someone.  The key word is negligence.  ¡Unlike intentional torts, negligence is the body of law dealing with inadvertent conduct causing injury or damage to others.
  3. What are the four elements of unintentional tortes (negligence)?

    A duty of care exists - Reasonably foreseeable.. is it reasonably foreseeable that my actions might affect someone? Once you establish duty of care, you check to see if the standard of care has bee met.

    Breach of the standard of care - Standard of care not met

    Causation - Must establish the lose or injury was caused by the bad actions of the other party.  Your bad actions caused my injury.  The test that's usually applied is a but for test.  But for my actions... would you have suffered a loss?  But for I putting the bottles on the floor, would you have suffered a loss?  But for my spilling water, would you have slipped?  Eg. hospital poisoning case.

    Damage - Easy to establish.  In order to bring an action for negligence there must be damages.
  4. Bohpal case
    Company called union carbied... huge multinational chemical company.  Some countries have more relaxed standards... one of the chemicals it created was commercial fertilizer.  It found out it was very expensive to manufacture in the US. 

    Moved to India b/c lower labour regulations and fees.

    They created a new company they owned and controlled... called union carbied india inc.

    At the Bohpal plant they made pesticides. 3 million people live in Bohpal.  In 1984 there was a gas leak from the plant.  This was problematic because there was no transit system people lived near the plant.  

    Exposed hundreds of thousands of people in the area.  500,000 suffered continuing health effects.  Lots of people died.  

    Investigation found bad maintenance schedule; safety standards were not adhered to.  Water was introduced into the chemical tank which created gas.  Union c. said it was sabotage. 

    Massive court actions.  Most by India.  

    The plaintiffs were unsuccessful in getting the larger company to pay (example of how serious people consider legal entities).  The india company ended up settling for 470 million.
  5. Donoghue v Stevenson

    Two women decide to go to the bar and order two drinks.  Donoghue orders a scotmans icecream float .... 

    She finds a snail in her drink.  She is grossed out... by the snail that has been sitting in the bottle.  She becomes ill.  She tries to bring an action against the brewing company D Stevenson.

    Privity of contract generally means that only the parties to a contract can claim breach of that contract.   Stevenson relied on this, saying you cant come after me because we don't have a contract.  There was no contract between donoghue and stevenson... she (or her friend) bought it from the bar.

    She had to then rely on negligence... 

    House of Lords established the concept that a manufacturer owes a duty of care to customers that would reasonably affected by the actions of that manufacturer.  They owe a duty of care, because it is reasonably foreseeable that lack of care could cause harm to their customers.  

    What could the manufacturer do to prevent this? Don't have an opaque bottle... don't put the bottle in a place snails could get into... etc

    Donoghue v Stevenson'' [1932] UKHL 100 was a foundational decision in Scots delict law and English tort law by the House of Lords. It created the modern concept of negligence, by setting out general principles whereby one person would owe aduty of care to another person.Also known as the "Paisley snail"[5][6] or "snail in the bottle" case, the facts involved Mrs Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers.Prior to Donoghue v Stevenson liability for personal injury in tort usually depending upon showing physical damage inflicted directly (trespass to the person) or indirectly (trespass on the case). Being made ill by consuming a noxious substance did not qualify as either, so the orthodox view was that Mrs Donoghue had no sustainable claim in law. However, the decision fundamentally created a new type of liability in law which did not depend upon any previously recognised category of tortious claims. This was an evolutionary step in the common law for tort and delict, moving from strict liability based upon direct physical contact to a fault based system which only required injury. This evolution was taken further in the later decision of Letang v Cooper [1965] 1 QB 232 when it was held that actions should not be jointly pleadedin trespass and negligence, but in negligence alone.
  6. Let’s presume you DO have to be careful (you owe a duty of care). How careful do you have to be?
    What would a reasonable person have done in the circumstance?

    How careful is reasonably careful?  Eg if you go to a specialist then their standard of care is what a reasonable doctor would have to do. 

    Have to take into account the person and asses if their actions were reasonable based on who they are.

    "The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise.”

    Standard depends further on:ExpertiseAge
  7. Barnett v Chelsea & Kensington Hospital Management Committee
    The cramps/etc were caused by poisoning.  His family sues the hospital because they refused him treatment.  But for the physician staying in his warm bed would this guy have died?  At trial, yes the guy was poisoned... regardless if the doc came in, he would have died anyway.  He was in late stages of poisoning.  In this case there is no causation.

    • Facts
    • Three men attended at the emergency department of the hospital run by the Chelsea & Kensington Hospital Management Committee but the casualty officer, Dr Banerjee, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenic poisoning which was a rare cause of death.

    • Judgment
    • It was held, that on the 'but for' test, even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent, because it was more likely than not that he would have died anyway, the negligence was not the cause of death.
  8. Product liability... the case of the Ford Pinto
    • Abstract
    • The cases involving the explosion of Ford Pinto's due to a defective fuel system design led to the debate of many issues, most centering around the use by Ford of a cost-benefit analysis and the ethics surrounding its decision not to upgrade the fuel system based on this analysis.

    • ISSUE
    • Should a risk/benefit analysis be used in situations where a defect in design or manufacturing could lead to death or seriously bodily harm, such as in the Ford Pinto situation?

    • RULE
    • There are arguments both for and against such an analysis. It is an economically efficient method which has been accepted by courts for numerous years, however, juries may not always agree, so companies should take this into account.

    • Although Ford had access to a new design which would decrease the possibility of the Ford Pinto from exploding, the company chose not to implement the design, which would have cost $11 per car, even though it had done an analysis showing that the new design would result in 180 less deaths.  The company defended itself on the grounds that it used the accepted risk/benefit analysis to determine if the monetary costs of making the change were greater than the societal benefit.  Based on the numbers Ford used, the cost would have been $137 million versus the $49.5 million price tag put on the deaths, injuries, and car damages, and thus Ford felt justified not implementing the design change.  This risk/benefit analysis was created out of the development of product liability, culminating at Judge Learned Hand's BPL formula, where if the expected harm exceeded the cost to take the precaution, then the company must take the precaution, whereas if the cost was liable, then it did not have to.  However, the BPL formula focuses on a specific accident, while the risk/benefit analysis requires an examination of the costs, risks, and benefits through use of the product as a whole.  Based on this analysis, Ford legally chose not to make the design changes which would have made the Pinto safer.  However, just because it was legal doesn't necessarily mean that it was ethical.  It is difficult to understand how a price can be put on saving a human life.There are several reasons why such a strictly economic theory should not be used.  First, it seems unethical to determine that people should be allowed to die or be seriously injured because it would cost too much to prevent it.  Second, the analysis does not take into all the consequences, such as the negative publicity that Ford received and the judgments and settlements resulting from the lawsuits. Also, some things just can't be measured in terms of dollars, and that includes human life.  However, there are arguments in favor of the risk/benefit analysis.  First, it is well developed through existing case law.  Second, it encourages companies to take precautions against creating risks that result in large accident costs. Next, it can be argued that all things must have some common measure.  Finally, it provides a bright line which companies can follow.
  9. Stella Lieebeck
    78 year old woman...1992 spills hot coffee in her car... wins a 3 million dollar judgement.

    • The car was parked.
    • She was in the passengers seat.
    • 3rd degree burns over 1/5th of her entire body
    • Hospitalized for 8 days and had to get skin grafts

    The jury set the award based on the profit level that McDonalds had for profit alone for two days.  The jury thought they needed to award her a significant amount to make mcdonalds take notice. 

    Mcdonalds appealed and dropped to 480,000 and they eventually settled on a lower amount... maybe 200,000.

    The coffee coming out of a M machine was about 50 degrees hotter... and got 700 warnings before this happened.


    Liebeck v. McDonald's Restaurants,[1] also known as the McDonald's coffee caseand the hot coffee lawsuit, was a 1994 product liability lawsuit that became a flashpoint in the debate in the United States over tort reform. A New Mexico civil juryawarded $2.86 million to plaintiff Stella Liebeck, a 79-year-old woman who suffered third-degree burns in her pelvic region when she accidentally spilled hot coffee in her lap after purchasing it from a McDonald's restaurant. Liebeck was hospitalized for eight days while she underwent skin grafting, followed by two years of medical treatment.Liebeck's attorneys argued that at 180–190 °F (82–88 °C) McDonald's coffee was defective, claiming it was too hot and more likely to cause serious injury than coffee served at any other establishment. McDonald's had refused several prior opportunities to settle for less than what the jury ultimately awarded.[2] The jury damages included $160,000[3] to cover medical expenses and compensatory damages and $2.7 million in punitive damages. The trial judge reduced the final verdict to $640,000, and the parties settled for a confidential amount before an appeal was decided.The case was said by some to be an example of frivolous litigation;[4] ABC News called the case "the poster child of excessive lawsuits",[5] while the legal scholar Jonathan Turley argued that the claim was "a meaningful and worthy lawsuit".[6] In June 2011,HBO premiered Hot Coffee, a documentary that discussed in depth how the Liebeck case has centered in debates on tort reform.[7][8]
  10. Intentional Tortes
    They are generally economic in nature.  

    Defamation / Libel / Slander (includes “trade slander” or “product defamation”) - A false statement to a person's detriment.  Twitter.  Facebook. A lot of companies are getting antsy about putting information in reference letters.  If you wrote something in somebodies reference letter and it wasn't glowing, they could object to it

    • Inducing Breach of Contract - As early as the 1300s, the courts realized that interfering with contracts was wrong... 
    • Inducing Breach of Contract Definition: An intentional, economic tort; knowingly and intentionally procuring the breach of a contract, without lawful justification, causing damage to another party to the contract.

    Michael Douglas and Catherine Zeta Jones example... and OK.  Security frisks people and they surrender their cameras.  Hello magazine is upset that OK got the scoop.   Hello hires a freelance photographer and pays them to go into the wedding and take pictures/sneak them out.  He dresses up like a caterer and hides the camera... he signs a confidentiality agreement.  He takes pictures and Hello publishes the pictures.  Ok says What the H... and brings an action against Hello. In offering the photographer money to break the confidentiality agreement, and thus are responsible to pay out Ok.

    • Tortious Interference / Intentional Interference with Economic Interest -  IIEI.... One party acts in a certain fashion to prevent another party from maintaining your business relationship or getting into an agreement.  Garret VS taylor... Taylor runs and throws rocks at people entering garett's quarry and prevents people from going.  Another case.. case of tarrelton vs mcgauly... two competing merchants... each has a ship and each wants to do trade with the ivory coast.  Mcgauly's ship gets their later than tarrelton.    He loads his cannon and proceeds to fire upon the beach.  Tarrelton successfully claims that Mcgauly prevented a business relationship forming because of his actions.

    Intimidation -
  11. What is the test for intimidation?
    One party threatens the other criminally.  The threat intends that you suffer some harm as a result.   Then the torte of intimidation exists. e.g. a shop owner commissions a builder to do work.  The builder says that work will cost 750 pounds.  The work is completed... 500 pounds is owing.  The shop owner knows and offers the builder less money, 300 pounds instead of 500.  then brings an action against the shop owner for the remaining 200.  

    A threatens B (non-criminally)  we are not going to pay you unless you take 300, and you will go bankrupt 

    Intending that B suffer harm lower revenue

    The threat causes B to do something  caused them to take the lower amount

    Which results in harm to B 200 less pounds in their pocket
  12. What three concepts must you be strongly versed on?
    Must be able to identify what is legal and illegal, or actionable practice by either your company, or against your company.

    Must be able to identify what constitutes negligence by either your company, or what constitutes negligent behaviour against your company.

    Remember to consider both intentional / non-intentional torts, breach of contract, and crimes…
Card Set
Law Class 4: Tortes: May 26
Law Class 4: Tortes: May 26