Business Torts and Ethics Paper

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Learning Objectives

In this chapter you will learn:

10-1. To compare how tort law is related to property.

10-2. To differentiate the three divisions of torts and to generate a theory

of why torts are so divided.

10-3. To explain the elements of negligence and to relate these elements

to the development of negligence law.

10-4. To analyze why tort litigation is so controversial in society today.

Torts Affecting

Business 10

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Just as contract law is the way owners

exchange what they own in a propertybased

legal system, so also tort law is an

important part of the same system. The property

fence protects our use of things. It is part of

what we own. But our protected use is not infinite.

It may be absolute but because we live with

other people and what is proper to them, we

may not use things just anyway we please. We

do not have a protected use of a thing if our use

harms what others own, including their persons.

Tort law helps define where the property fence is

when it comes to our use of things. It makes our

use legally wrongful and helps anyone injured

by our wrongful use to get compensation, called

damages.

T he word tort means wrong. Legally, a tort

is a civil wrong other than a breach of contract.

Tort law sets limits on how people can act and

use their resources so they do not violate the right

290 PART 3 Legal Foundations for Business

others have to their resources. If you think of property as a type of legal fence

surrounding resources, then tort law defines when someone has crossed that

fence wrongfully so that compensation is due to the owner.

Legal wrongs inflicted on the resources of others may be crimes as well as

torts (see Chapter 12), but the law of tort itself is civil rather than criminal.

The usual remedy for a tort is dollar damages. Behavior that constitutes a tort

is called tortious behavior. One who commits a tort is a tortfeasor.

This chapter divides torts into three main categories: intentional torts,

negligence torts, and strict liability torts. Intentional torts involve deliberate

actions that cause injury. Negligence torts involve injury following a failure to

use reasonable care. Strict liability torts impose legal responsibility for injury

even though a liable party neither intentionally nor negligently causes the

injury.

Important to torts are the concepts of duty and causation. One is not liable

for anothers injury unless he or she has a duty toward the person injured.

And, of course, there is usually no liability for injury unless one has caused the

injury. We explain these concepts under the discussion of negligence, where

they are most relevant.

This chapter also covers the topic of damages. The topic concerns the

business community because huge damage awards, frequently against businesses,

have become common in recent years.

>> Intentional Torts

An important element in the following torts is intent, as we are dealing with

intentional torts. Intent is usually defined as the desire to bring about certain

results. But in some circumstances the meaning is even broader, including not

only desired results but also results that are substantially likely to result

from an action. Recently, employers who knowingly exposed employees to

toxic substances without warning them of the dangers have been sued for

committing the intentional tort of battery. The employers did not desire their

employees injuries, but these injuries were substantially likely to result

from the failure to warn.

The following sections explain the basic types of intentional torts. Sidebar

10.1 lists these torts.

LO 10-1

* Torts are divided

into intentional torts,

negligence, and strict

liability.

LO 10-2

Intent is the desire

to bring about certain

results.

Assault and battery

Intentional infliction of mental distress

Invasion of privacy

False imprisonment and malicious prosecution

Trespass

Conversion

Defamation

Fraud

Common law business torts

>> sidebar 10.1

Types of Intentional Torts

CHAPTER 10 Torts Affecting Business 291

1. ASSAULT AND BATTERY

An assault is the placing of another in immediate apprehension for his or

her physical safety. Apprehension has a broader meaning than fear. It

includes the expectation that one is about to be physically injured. The person

who intentionally creates such apprehension in another is guilty of the tort of

assault. Many times a battery follows an assault. A battery is an illegal touching

of another. As used here, illegal means that the touching is done without

justification and without the consent of the person touched.

Hitting someone with a wrench causes physical injury, but as the following

case illustrates, the touching that constitutes part of a battery need not

cause physical injury.

case 10.1 >>

HARPER v. WINSTON COUNTY

892 So.2d 346 (Ala. Sup. Ct. 2004)

Sandra Wright, the revenue commissioner of Winston

County, Alabama, fired her employee, Sherry Harper.

Harper sued, claiming among other things that Wright

had committed an assault and battery in grabbing her

and jerking her arm in trying to force her to go to Wrights

office. Before trial, the court granted summary judgment

in favor of Wright. The plaintiff, Harper, appealed, and

the case reached the Alabama Supreme Court.

SEE, J: . . . Harper argues that the trial court erred in

entering a summary judgment in favor of Wright, on

Harpers assault and battery claim, because, she claims,

she in support of her

claim. Harper argues that Wright admits that she intentionally

grabbed Harpers arm and, she asserts, Wrights

grabbing of her arm was offensive. Harper states:

[Wright] jerked my arm and tried to pull me back.

She argues that Alabama law does not require that

Wright strike or hit her in order for a battery to occur.

In response, Wright argues that she merely took a

hold of [Harpers] hand. Wright states that she did not

touch Harper in an offensive manner and that she was

only trying to coax Harper into stepping into her office

so that they could continue their conversation away

from the view of the customers and the employees of

the Department. The trial court stated in its summaryjudgment

order that the undisputed evidence from

Sandra Wright clearly points out that the touching was

not in any way harmful or offensive, but was instead

done in an attempt to bring [Harper] under control.

The plaintiff in an action alleging assault and battery

must prove (1) that the defendant touched the

plaintiff; (2) that the defendant intended to touch the

plaintiff; and (3) that the touching was conducted in a

harmful or offensive manner. In Atmore Community

Hospital, the plaintiff presented evidence indicating

that the defendant touched her waist, rubbed against

her when passing her in the hall, poked her in the armpits

near the breast area, and touched her leg. The

plaintiff also presented evidence indicating that each

of these touchings was intentional, was conducted

with sexual overtones, and was unwelcome. We held

that these factual assertions constituted substantial

evidence that the defendant had committed a battery.

In Surrency, we stated that an actual injury to the

body is not a necessary element for an assault-and-battery

claim. We also stated that when the evidence as to

whether a battery in fact occurred is conflicting, the

question whether a battery did occur is for the jury.

Quoting Singer Sewing Machine Co., this Court stated:

To what acts will constitute a battery in a case like

this, the rule is well stated by Mr. Cooley in his work

on Torts. He says: A successful assault becomes a

battery. A battery consists in an injury actually done

to the person of another in an angry or revengeful or

rude or insolent manner, as by spitting in the face, or

in any way touching him in anger, or violently jostling

him out of the way, or in doing any intentional

violence to the person of another. The wrong here

consists, not in the touching, so much as in the manner

or spirit in which it is done, and the question of

bodily pain is important only as affecting damages.

Thus, to lay hands on another in a hostile manner is

a battery, although no damage follows; but to touch

another, merely to attract his attention, is no battery

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A store manager who threatens an unpleasant customer with a wrench,

for example, is guilty of assault. Actually hitting the customer with the wrench

would constitute battery.

2. INTENTIONAL INFLICTION OF MENTAL DISTRESS

Intentional infliction of mental distress is a battery to the emotions. It arises

from outrageous, intentional conduct that carries a strong probability of

causing mental distress to the person at whom it is directed. Usually, one who

sues on the basis of an intentional infliction of mental distress must prove

that the defendants outrageous behavior caused not only mental distress but

also physical symptoms, such as headaches or sleeplessness.

The most common cases of intentional infliction of mental distress (also