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Intentional Torts, Negligence, & Strict Liability

Colonial Stores, Inc. v. Fishel

Mitchel v. Globe International Publishing, Inc.

Fischer v. Pepsi Cola Bottling Co. of Omaha

Estrada v. Aeronaves de Mexico, SA

Knight v. Jewell

Klien v. Pyrodyne

A. Intentional Torts Against Persons

1. Assault

a. Act

b. Intent either to

(1) cause a harmful or offensive contact, or

(2) cause an apprehension of a harmful or

c. Apprehension of an imminent harmful or

d. Causation of the apprehension


2. Battery

a. Act

b. Intent to cause harmful or offensive contact

c. Harmful or offensive contact with the

d. Causation of the harmful or offensive contact


3. False Imprisonment

a. An act that completely confines the plaintiff

b. Intent to confine plaintiff or a third person

c. Causation of the confinement

d. Plaintiff was either:

(1) conscious of the confinement, or

(2) harmed by the confinement


Colonial Stores, Inc. v. Fishel, 288 S.E. 2d 21 (Ga. App.,1981).

FACTS: Fishel was stopped by store guard who suspected him of stealing the bottle of aspirin he had in his shirt pocket. Fishel told the guard and store manager he purchased the aspirins at another store and that the guard could count the aspirins in the bottle or go to the store where the aspirin were purchased and find the box in the trash can there. The guard and manager declined, called the police and began a prosecution of Fishel for shoplifting. The charge was dismissed because the guard failed to appear. Fishel then brought an action against Colonial Stores for False Imprisonment.

ISSUE: Does the Georgia Merchant Protection statute protect Colonial stores from liability?


REASON: The Merchant Protection statute gives merchant a privilege to detain a person reasonable suspected to be shoplifting. In this case, a reasonable merchant could have easily verified Fishel's claims by searching their own store for a discarded aspirin package, going to the store Fishel claimed to have purchased the aspirin and looking in the trash can, or by telephoning someone at the store and asking them to look in the trash can. Because Colonial failed to do this, they exceeded their privilege to detain suspected shoplifters in this case and were liable or false imprisonment.


4. Defamation (two torts)

a. Defamatory statement by the defendant

(1) oral = slander

(2) written = libel

(3) distinction becoming less and less

b. Of and concerning the plaintiff

c. Publication of the statement

d. Damages

(1) slander = must prove special damages if

(2) libel = some states do not require proof

5. Invasion of the Right of Privacy (4 torts)


a. The use of the plaintiff's name, likeness, or

b. For the benefit of the defendant

False Light

a. Publicity

b. Placing the plaintiff in a false light

c. Highly offensive to a reasonable person


Mitchel v. Globe International Publishing, Inc., 978 F.2d 1065 (8th Cir., 1992)

FACTS: The Globe published an article with photo about plaintiff in 1980 which truly reported that she was a 96 year old single mother who raised her family on what she earned delivering newspapers. In 1990, the Globe published a fictional account of a 101 year old Australian women who was forced to quit her job as a newspaper carrier because a millionaire she met on her route got her pregnant. The Globe used plaintiff's picture in this front page fictional story. Plaintiff saw it and suffered severe emotional injury.

ISSUE: Was liable for the tort of False Light?


REASON: Plaintiff proved that the publicity would be highly offensive to a reasonable person and that the Globe acted maliciously because they knew the story was false and used plaintiff's picture because they had it from the previous story and they thought she was dead.



a. An act of intrusion into someone's private

b. Highly offensive to a reasonable person


Public Disclosure of a Private Fact

a. Publicity

b. Concerning the private life of the plaintiff

c. Highly offensive to a reasonable person


6. Intentional Infliction of Emotional Distress

a. An act of extreme or outrageous conduct

b. Intent to cause severe emotional distress

c. Severe emotional distress is suffered

d. Causation of this distress


B. Intentional Torts Against Property

1. Trespass to Land

a. An act

b. Intrusion on land

c. In possession of another

d. Intent to intrude

e. Causation of the intrusion


2. Trespass to Personal Property

a. Personal property (chattel)

b. Plaintiff is in possession of the chattel or is

c. Intent to dispossess or to intermeddle with the

d. Dispossessing or intermeddling

e. Causation of the intrusion

3. Conversion of Personal Property

a. Personal property (chattel)

b. Plaintiff is in possession of the chattel or is

c. Intent to exercise dominion or control over the

d. Serious interference with plaintiff's possession

e. Causation of the serious interference


C. Unintentional Torts (Negligence)

1. Duty

2. Breach of Duty

3. Causation

4. Injury


Fischer v. Pepsi Cola Bottling Company of Omaha, Inc., 972 F.2d 906 (8th Cir., 1992).

FACTS: Plaintiff, after swimming in an inn's pool, tried to purchase a soda from a vending machine owned and operated by defendant. In doing so, he received an electrical shock. He reported this and it was discovered that the vending machine was resting on exposed wires of its power cord. After the incident, plaintiff became impotent due to the electrical shock.

ISSUE: Is defendant liable for negligence?


REASON: Defendant owned and operated about 10,000 vending machines and received one or two complaints a month about a vending machine causing shocks. Defendant has a duty to inspect their vending machines for the defect. Failing to do so was a breach of their duty. It is not necessary that defendant know the particular machine that is defective. If they know that a machine is defective, they have a duty to inspect them all.

5. Professional Malpractice


6. Negligent Infliction of Emotional Distress


Estrada v. Aeronaves De Mexico, SA, 967 F.2d 1421 (9th Cir., 1992)

FACTS: Plaintiff went to the store, leaving her husband and three child at home. As she returned, she heard and felt an explosion. Within minutes, she made her way through burning homes, cars, and debris to find her home engulfed in flames. Her husband and children died in the fire. While she did not know a large passenger plane had crashed into her home, she did suffer extreme emotional distress. The crash occurred because a private plane intruded into commercial airspace and the air traffic controller failed to detect and warn the airliner of the intrusion. Plaintiff sued for wrongful death. Aeronaves was found not liable, but the government was found 50% liable and the private pilot was found 50% liable.

ISSUE: Is plaintiff entitled to recover damages for negligent infliction of emotional distress?


REASON: Plaintiff met the elements of negligent infliction of emotional distress. She was a close family member. She was present at the scene of the injury-producing event. While she did not see the airplane crash into her home, she was at the scene. And she suffered severe emotional distress.


9. Special Doctrines

a. Negligence per se

(1)statute existed

(2)enacted to prevent the type of injury

(3)plaintiff was within the class of persons

b. Res Ipsa Loquitor

(1)defendant have exclusive control of the

(2)the injury would not have occurred but

c. Dram Shop Acts

d. Social Host Liability

e. Guest Statutes

(1)driver is not liable if they voluntarily and without compensation give a ride in a vehicle to another person.

(2)driver is liable for gross negligence

f. Good Samaritan Laws

medical personnel not liable for ordinary negligence when assisting at accident scenes

g. Fireman's Rule

fireman injured at scene cannot sue person whose negligence caused the fire.

why? People may not call fire dept. fireman, policeman have special training they have special medical and retirement paid by the public

h. "Danger Invites Rescue" Doctrine

person injured attempting to rescue someone in danger can sue the person whose negligence caused the danger

i. Liability of Common Carriers and Innkeepers they owe a higher standard of care for passengers and guest than the ordinary care standard. Called the standard of utmost care.

j. Liability of Landowners

Look at status of person on the land: invitee, licensee or trespasser.

invitee-highest standard of care

licensee-duty of ordinary care

trespasser-duty to warn of known dangers and duty not to intentionally harm.

8. Defenses

a. Assumption of the Risk


Knight v. Jewell, 3 Cal. 4th 296 (1992).

FACTS: Plaintiff and defendant were playing touch football on coed teams during half-time on Super Bowl Sunday. Defendant, a male, ran into plaintiff, a female, on one play and plaintiff told him to be more careful. On a pass throw to plaintiff, defendant tried to intercept it and plaintiff suffered an injury in the collision. Plaintiff sues for damages. Defendant filed a motion for summary judgment based upon the assumption of the risk defense.

ISSUE: Does assumption of the risk bar recovery by plaintiff?


REASON: When a person voluntarily participates in an activity like touch football, the impliedly agree to a reduced standard of care. A person engaged in an active sport breach a duty of care only if they intentionally injury another player or engages in conduct so reckless to be totally outside the rules of the game.

b. Superseding, intervening event

c. Comparative Negligence


D. Strict Liability

1. Liability without fault. Imposed for abnormally

2. Certain activities can put the public at risk even if

reasonable care is taken.

3. The public should have some means compensation

is injury does occur.


Klien v. Pyrodyne, 810 P.2d 917 (WA 1991).

FACTS: Defendant was hired to set off fireworks at a public place. One of the launchers discharged a rocket horizontally and it exploded near some onlookers, injuring plaintiff. Defendant was sued on the basis on strict liability, but defended on the grounds that the accident occurred due to the negligence of the manufacturer.

ISSUE: Does the doctrine of strict liability apply and can liability be avoided due to another person's negligence?


REASON: Running a public display of fireworks is an abnormally dangerous activity. The high degree of risk that a rocket will malfunction and cause personal injury or property damage is the very reason the activity in abnormally dangerous and therefore subject to strict liability. Even if another person's negligence is an intervening or superseding cause, it cannot relieve the defendant from strict liability.