With the elements of Torts as described above, present in a particular situation, a situation would exist wherein someone had a legal right, someone violated that right (committed a tort), and a legal remedy existed to redress that violation. Violations of rights against which tort law provides protection are:
1. Bodily injury
2. Loss of personal freedom
3. Loss of property
4. Undue interference with an economic right or advantage
5. Damage to public esteem
6. Interference with family relationships
7. Undue psychological trauma
F The law provides two major remedies for the rights of an individual: (1) direct action on the part of the victim and (2) judicial remedy.
The action of the victim must be weighed against the reasonableness of the harm suffered. As an example, a person has the right to defend himself against physical attack in a reasonable way. A victim must use an amount of force considered reasonable in view of the amount of force of the attack
CONSUMER APPLICATION
Application One:
Barbara got into an argument with her friend Agnes over a statement that Barbara’s boyfriend had made. Agnes became very upset and slapped Barbara. She immediately apologized, and then as the argument continued, she drew back her hand to strike Barbara again. Barbara pulled a handgun from her purse and shot Agnes. This would be excess force and is not reasonable.
Application Two:
The Brown Shoe Store has problems with employees of other stores in the area using their customer parking lot. The owner posted signs warning of towing. He contracted with a towing service to tow cars away that do not belong in this lot. This is permissible and not excessive.
Application Three:
Sally is a track star at her college. While shopping in the mall one day, a man grabbed her purse and ran away. Sally ran after him, overtook him, tackled him and retrieved her purse. The thief suffered a broken elbow when Sally tackled him. Sally has the right to pursue the thief and recover her property. (Continued)
Particularly applicable in Application Three, is the point that Direct action must be reasonably prompt. If Sally had not pursued the thief immediately, her inaction would compromise that right, and she could not see him later in the day and tackle him to get her property. She would have to seek a judicial remedy.
The judicial remedy that one would pursue is available because the law provides legal remedies as an essential element in the definition of tort. If direct action did not or will not result in a remedy, judicial action is required. Three legal remedies exist. The court can:
1. award monetary damages.
2. grant an injunction.
3. require restitution.
Damages are discussed in detail in the section on DAMAGES later in this text. Briefly, in the discussion of Judicial Remedies, one should understand that money damages are normally compensatory, in other words, reasonably related to the extent of the injury involved. Damages can also be symbolic or nominal in amount, legally indicating the existence of the tort. Nominal damages could be awarded in situations such as simple trespass where no damage to the land was involved. Damages can be punitive or far in excess of the actual monetary harm involved when the court views tortious behavior as being particularly repugnant. Usually, punitive damages are awarded in addition to compensatory damages and are labeled as such.
An injunction isa court order (writ) which prohibits a person from continuing a particular action, or to stop a present activity. There are several forms of injunction, but basically it is used when monetary damages are not adequate to redress the wrong. An injunction might be issued to stop someone from trespassing, or it can be used as to prohibit future trespass or it can be used as a temporary relief until an issue is resolved by the court.
Usually, before an injunction can be ordered, the burden of proof falls on the victim who must prove that money damages would be an inadequate remedy.
Some of the types of injunctions are:
A final injunction is granted when the rights of the parties involved have been adjudicated or otherwise determined.
An injunction granted prior to a final hearing and determination of the matter in issue, and which is to continue until answer, or until the final hearing, or until further order of the court.
An injunction which commands the defendant to do some particular thing or take particular action, and which prohibits him from refusing to do or permit some act to which the plaintiff has a legal right, or restrains the defendant from permitting his previous wrongful act to continue operative, thus virtually compelling him to undo it, as by removing obstructions or erections, and restoring the plaintiff or the place or the subject-matter to the former condition.
An injunction intended to remain in force until the final termination of the particular suit.
An injunction which finally disposes of the suit and is indefinite in point of time.
An injunction granted at the inception of a suit which restrains the defendant from doing or continuing some act, the right to which is in dispute and which may either be discharged or made perpetual, according to the result of the controversy, as soon as the rights of the parties are determined. The object is to preserve the status quo until the merits can be heard.
An injunction, which prohibits one from performing certain act and commands him not to do it.
This is another name for the preliminary or temporary injunction.
An injunction by which parties are restrained from committing waste, damage, or injury to property.
A preliminary or provisional injunction, as opposed to a final or perpetual injunction.
CONSUMER APPLICATION
Roland and Barry are neighbors with a large old oak tree on the boundary line of the property, which shades a terrace that Roland had built in his back yard. Neither of them have had a survey as they inherited the properties and felt no such survey was needed. Barry decided to put a swimming pool in his back yard and does not want oak leaves to foul up his pool pump, so he contracted to have the tree removed. Roland obtained an injunction before the tree could be removed.
In this boundary dispute illustration, money damages, if the boundary dispute were ultimately adjudicated in favor of the victim, would not be an adequate remedy for the loss of the shade of the old oak tree wrongfully cut. A preventative injunction would be used before the trees are cut.
CONSUMER APPLICATION
Bill’s Hardware was having vandalism problems. Bill erected an 8-foot chain-link fence around his property, but by doing so he shut off access to the back entrance to a mobile home park. To compensate, he put a gate to provide the rear exit from the park, but at night, he would chain and lock the gate. The tenants of the park complained that they had to drive quite some distance at night to use the front entrance. The mobile home part owners had obtained easement rights for the rear entrance when they established the park.
The attorney for the park asked for and was granted a Mandatory Injunction, which instructed the owner of the store not to impede or in any way hinder, the usual flow of traffic to and from the mobile home park by the rear entrance. Further, he was required to remove the fence and gate that would impede the traffic.
Restitutionis the act of restoring, restoration of anything to its rightful owner, or the act o making good or giving equivalent for any loss, damage or injury, and indemnification. Although this term has the general meaning of compensating for a wrong, in tort laws it means precise return of property, and not in monetary or some other basis.
CONSUMER APPLICATION
Mary was to inherit a necklace from her grandmother. It had been given by Queen Victoria to her court favorite, the Queen’s cousin Mary. The necklace had been passed down to the child who has been named Mary for every generation since. It is made of soft white gold with diamonds and rubies and was handmade by a silversmith and regardless of the appraisal of $100,000, it was considered priceless by Mary for sentimental reasons. Mary’s mother had kept the necklace until Mary reached age 21 but her mother died when Mary was 20. Mary’s older sister, Billie, was executor of the estate but when Mary turned 21, she refused to give it to Mary, instead keeping it to give to her daughter (who was not named Mary).
In this situation, restitution is the only compensation that would be acceptable as the article cannot be replaced and to the rightful owner, it is priceless.
One can be harmed by many methods, and tort law protects against an individual’s invasion of rights, which include battery, assault, false imprisonment, and loss of property.
Although used interchangeably, and in some jurisdictions by criminal law definition, they are the same. In Tort law, Battery is an intentional touching of another person without that person's permission or the taking of some other privilege in a manner offensive to the person touched. Assault means the threat of battery; that is, putting someone in fear that he or she will be physically harmed. Assault is the threat; battery is actual physical contact.
False imprisonment isthe restraint of a man’s personal liberty and/or coercion exercised upon a person to prevent the free exercise of his powers of locomotion. A person does not have to be jailed to have suffered false imprisonment.
Both battery and false imprisonment are tortious only when the act occurs without the victim's consent. Also, the rights of a person to freedom from bodily injury and to freedom of movement carries with them the right to use reasonable force in self‑defense.
CONSUMER APPLICATION
Simon went to the store on a cold day, wearing a heavy coat, scarf and gloves. Once in the store, he removed his gloves and placed them in his coat pocket. Unfortunately, he was standing in front of the glove counter where he had purchased gloves only 2 days earlier. A store security guard saw him put the gloves into his pocket and asked Simon to accompany him to the store manager’s office, which Simon did. In the office he told the guard that he had purchased his gloves 2 days earlier and offered to get the receipt and return to the store. The guard refused to let him go, even after Simon explained that he had to leave in a few minutes to pick his son up at school.
This is an example of false imprisonment. While Simon agreed to go to the office, he did not agree to stay there.
Obviously, everyone is entitled to the quiet enjoyment and exclusive use of their property. This includes both peaceful possessions of that property and rights to any profits arising from its use. Real property is subject to the torts of trespass and nuisance.
(See section on Negligence later in this text) Trespassisdefined as unlawful, intentional entry onto land by a person (walking on the land) or by an object (dumping trash on someone's property). A private nuisance is something, which unreasonably interferes with one's use of his or her real estate. It is an intangible interference such as loud noises, smoke, dust, or fumes.
Personal property is subject to the torts of conversion and trespass to chattels (personal property). Direct Conversion isthe act of actually appropriating the property of another to his own beneficial use and enjoyment or to that of a third person, or destroying it or altering its nature.
CONSUMER APPLICATION
Ralph has used a store on Main Street for 20 years to sell clothing and such articles. The building actually belongs to his cousin Peter, but as far as anyone knows, it is Ralph’s store and has never paid rent. Peter passes away and his widow never says anything to Ralph about the store building. Later, when Ralph decides to retire, he arranges to sell his business to Henry, and included the store in the transaction.
This is an example of conversion as the property never belonged to Ralph and he is attempting to transfer it to another person.
Trespass to chattelisan intentional act that interferes with the owners' right to have physical control over an object. While conversion involves interference with an owner's legal claim to the property, trespass involves interference with an owner's right to control the property.
` A person is protected by Tort law to enjoy honest economic activity. Not only is the personal enjoyment of property protected, the efforts to acquire property is also protected. Deceit, inducing breach of contract, and disparagement are examples of undue interference with an economic right.
CONSUMER APPLICATION
Melissa is an aspiring actress who was offered a part in a movie. She hired an Agent, Sid, to represent her and the contract was entered into. Before the movie was completed, she was offered a part in a daytime soap opera with tremendous potential, but she had to start immediately. Melissa asked Sid what she should do and to see if she could get out of her movie contract. Sid instructed her to go the daytime program filming, and to ignore the movie contract as her part had already been completed. Unfortunately, the movie Production Company decided to rewrite the script, which would call for Melissa to play a more prominent role in the movie.
Sid has committed a tort by inducing, or attempting to induce Melissa to breach her contract.
Disparagement isdefined as any unprivileged communication to the public that
1. is known by the maker to be false,
2. is derogatory to the victim's title to its property, the quality of its goods or services or to its business activities generally,
3. is intended to discourage the public from dealing with the victim, and
4. causes direct economic harm to the victim.
CONSUMER APPLICATION
Jim started a clothing store two doors away from Ralph’s clothing store. Jim’s men’s clothing was a more expensive line than that carried by Ralph. Every time a potential customer of Jim’s inquired about the difference in cost between Jim’s suits and Ralph’s suits, Jim would state that Ralph’s clothes were an inferior brand or poor workmanship and anyone who purchased any of his clothing could expect it to wear out quickly and seams to split.
Jim is guilty of Disparagement.
Direct economic loss is not the only damage that can be given to an individual, in many cases one’s reputation is of inestimable and intrinsic value, even though it may not result in direct economic loss. The two rights established under tort law must be protected: (1) the right to be protected from the spread of falsehoods which would be injurious, and (2) the right to be protected from the spread of confidential information which, even though accurate, would subject the entity to derision.
CONSUMER APPLICATION
Ralph, the owner of Ralph’s Men Clothing, felt that glasses would make it easier for him in his everyday activities. Neil Wilson, of Wilson’s Optometrists, tested his eyesight and discovered that Ralph was quite colorblind. Ralph had been aware of this, of course, but no one other than his wife who worked in the store also, knew of his colorblindness.
At his weekly poker party, Neil jokingly told his friends, “Isn’t it hilarious that Ralph owns a clothing store and he can’t tell the difference between a blue suit and a brown suit.”
This caused Ralph great distress and damage to his esteem. Even though he may not be able to prove that his customers are going elsewhere and he may not lose money on other’s knowing that he is colorblind, Neil is still guilty of committing a tort.
Defamationis the taking of one’s reputation or injuring one’s character, fame or reputation by false and malicious and slander. The distinction between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment, and does not follow a man into his private life, or pry into his domestic concerns, and it never attacks the individual, but only his work
Invasion of privacy isa tort that involves a person's right to be let alone. Invasion of privacy occurs if any of the following four specific rights are violated:
1. to be let alone
2. to prohibit one's name or identity from being used to promote products or causes without permission
3. to prohibit private information about oneself from being publicized
4. to prohibit public information about oneself from being publicized in a misleading manner
A family has a right, protected by tort law, to the enjoyment of the family's service, affection, and companionship. Spouses have the right of sexual relations (consortium). Any person that disrupts these marital or family relationships can be the basis of tort action.
The old common law treated a wife’s identity as secondary to that of the husband and her identity was absorbed into the husband’s identity, and they became as one person under the law. Therefore, the husband, as breadwinner upon whom all members of his family existed, enjoyed a greater measure of protection than did his wife. As an example, a husband possessed the rights to his wife's consortium or the right to her sex, service and society. However, the reverse was not so. In case the wife was injured, both she and the husband had claims against the negligent party, but if the husband was injured, the wife could not claim to right to consortium of the husband. Laws in recent years have reduced this inequity substantially.
Parent‑child relations are based on the rights of parents to the services, company, and affection of their children who are still dependent members of the household and not emancipated or reached age of majority.
It is a tort to wrongfully deprive a parent of this service, company, and affection.
When an injury that is not physical is suffered, such as the result of false imprisonment, defamation of character, or where an individual suffers a “nervous breakdown” as a result of defamation, it is considered psychological trauma.
Psychological trauma, which is not associated with another recognized tort, is less widely accepted by courts but does exist. Involved are such torts as assault, infliction of mental distress, malicious prosecution, or wrongful civil proceedings.
STUDY QUESTIONS
1. Don and Sue go to a bar with Bill and Alice. Bill calls Don a nasty name; thereupon Don hits Bill in the nose. Sue threatens to do the same thing with Alice.
A. Don is guilty of Battery; Sue is guilty of Assault.
B. Don is guilty of Assault; Sue is guilty of Battery.
C. Don is guilty of Battery; Sue is not guilty of anything.
D. No one is guilty of anything.
2. Henry sells insurance and discovers that a former co-worker at another agency has been telling Henry’s clients that Henry has lost his license because he has been representing an insurance company that will not pay its claims. This is an example of
A. deceit.
B. disparagement.
C. both deceit and disparagement.
D. honest sales practices.
3. Ralph sued Norm for Loss of Consortium. Which is the most probable situation?
A. Norm stole Ralph’s taxi, leaving him without means to make a living.
B. Norm hit Ralph in the face and Ralph had to have plastic surgery, losing over a month of work.
C. Ralph’s wife moved in with Norm and then divorced Ralph.
D. Norm stole Ralph’s credit cards, which cost Ralph a lot of money.
4. Bruce confided to a co-worker, John, that he was born with three nipples and asked that he not tell anyone. John told everyone in his work unit and Bruce was subject to many lewd and disparaging remarks, making it so uncomfortable that he became agitated that he was no longer able to work. Bruce suffered what type of damage?
A. Disparagement
B. Deceit
C. Defamation
D. Damage to Public Esteem
5. Cindy used to weight 150 pounds more than she does now. She told Marianne about this in casual conversation, and told her that she had lost the weight because of exercise and calorie counting. Marianne sells a weight reduction product, Fatt-Off, and she develops a sales brochure without the knowledge or approval of Cindy, using before-and-after photos of Cindy and attributing her weight loss to Fatt Off. Marianne is guilty of what Tort?
A. Defamation
B. Damage to Public Esteem
C. Invasion of Privacy
D. Disparagement
6. The law provides two major remedies for the rights of an individual, one of which is
A. judicial remedy.
B. incarceration.
C. performing public service.
D. flagellation.
7. Under a Tort action, a person has the right to defend him/herself against physical attack
A. in a reasonable way.
B. using whatever force the victim feels necessary.
C. including the taking of the life of the assailant if the assault was at night.
D. only if they are a police officer.
8. Jean was the victim of a purse-snatcher. Three days later she spotted the man at a grocery store and hit him in the face with a can of mushrooms.
A. This would not be considered as reasonable, as she did not take DIRECT action.
B. Jean operated completely within her rights.
C. If Jean had pulled a gun and shot the purse-snatcher, she would have been within her rights.
D. It would not have made any difference when this happened as Jean couldn’t take any action or any kind against the purse-snatcher as it is only a misdemeanor.
9. An injunction which commands the defendant to do some particular thing or take particular a action, and which prohibits him from refusing to do or permit some act to which the plaintiff has a legal right, or restrains the defendant from permitting his previous wrongful act to continue operative, thus virtually compelling him to undo it, as by removing obstruction or erections, and restoring the plaintiff or the place of the subject matter to the former condition. This is what type of Injunction?
A. Final Injunction
B. Perpetual Injunction.
C. Mandatory Injunction
D. Preventative Injunction
10. Robert wants to build a retaining wall around his swimming pool. Mark, next door, does not want him to build the wall until a survey and study can be completed to make sure that run-off rainwater will not gush into his yard because of the retaining wall. The first action that Mark should take (after Robert told him that it was none of his business) is
A. to build a retaining wall in his own yard to make the water run back to Robert’s yard.
B. to get a Preliminary Injunction.
C. to get a Permanent Injunction.
D. to call the Sheriff.
ANSWERS TO STUDY QUESTIONS
1A 2C 3C 4D 5C 6A 7A 8A 9C 10B