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LAW 122 (614)
Stan Benda (71)
Chapter 4


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Ryerson University
Law and Business
LAW 122
Stan Benda

LAW 122 - Chapter 4 Intentional torts involve intentional, rather than merely careless, conduct. The courts have adopted that broad definition of “intention” because they want to strongly protect the interests that I have in myself and in my property. From a risk management perspective, they lesson is clear. Before acting in a particular way, you should know much about the consequences of doing so. Assault and Battery • People often use those terms interchangeably; and even lawyers use the world “assault” to describe the crime that occurs when one person physically attacks another. In tort, “assault” and “battery” have very different meanings. An assault occurs when the defendant intentionally causes the plaintiff to reasonably believe that offensive bodily contact is imminent. There are several important points in the definition: •First, the tort is not based on physical contact; it is based on a reasonable belief that such contact will occur. The tort is designed to keep the peace by discouraging people from alarming others. Example: If you punch me from the front it is an assault but if you punch me from the back it’s not because I didn’t see it coming. •Second, it is enough if the plaintiff reasonably believed that bodily contact would occur; you may commit an assault by pointing a gun in my direction, even if the gun is not really loaded. •Third, the plaintiff must have believed that bodily contact was imminent; although that requirement is rather vague, you probably would not commit an assault if you threatened to kick me two weeks from today. •Fourth, an assault can occur even if the plaintiff was not frightened; it is enough that the defendant threatened some form of offensive contact, you therefore may commit an assault by swinging your fist at me even if your too small to harm. • A claim for assault is usually joined with a claim for battery. A battery consists of offensive bodily contact; there are several points to note about this definition: •First, the requirement of “bodily contact” is not strictly applied; it is enough if the defendant causes something, such as a knife or a bullet, to touch the plaintiff. It also is enough if the defendant makes contact with the plaintiff’s clothing or with something that the plaintiff is holding •Second, not every form of contact is offensive; normal social interaction is allowed; you do not commit a battery if you gently brush past me in a crowded elevator or if you tap my shoulder to get my attention. At the same time, contact may be offensive even if it is not harmful. • Bouncers and security personnel often injure patrons whom they eject from taverns, concerts, and sporting events. Given the doctrine of vicarious liability and the need for risk management, such employees should be carefully trained. Invasion of Privacy • There are several reasons why the courts traditionally have been reluctant to recognize a tort of invasion of privacy. They want to support freedom of expression and freedom of information. Privacy is indirectly protected by several torts: •A photographer who sneaks onto someone’s property to obtain candid pictures commits the tort of trespass to land. •Employees who publish embarrassing details about their employer’s private life may be liable for breach of confidence. That action also allowed an English court to award damages against a magazine that published unauthorized photographs taken by a guest at a private wedding between two Hollywood people. •Despite rejecting a tort of invasion of privacy, English courts have recognized a tort of abuse of private information. Supermodel Naomi Campbell was able to sue a newspaper that published a photograph of her coming out of a Anonymous meeting. •A company that makes unauthorized use of a celebrity’s image to sell its own products may commit the tort of misappropriation of personality. •A newspaper that ignores a judge’s instructions and publishes the name of a police officer who had been sexually assaulted during an undercover investigation may commit the tort of negligence. • In addition, several provinces have created statutory causes of action to protect privacy interests. While those statutes vary from jurisdiction to jurisdiction, they generally impose liability if a person “willfully” violates another’s privacy by doing something that they know to be wrong. Privacy is left open to discussion because of the different types of situations. False Imprisonment • False Imprisonment occurs when a person is confined within a fixed area without justification. That would clearly be true if the plaintiff was physically dragged to a prison and thrown into a locked cell. •An actual prison is not necessary; the tort can be committed if a person is trapped in a car, locked in a room, or set adrift in a boat. But in any even, the confinement must be practically complete. The defendant does not commit a false imprisonment by obstructing one path while leaving another reasonable path open. Nor is the tort committed if the plaintiff can easily escape. •Perhaps surprisingly, physical force is not necessary; the detention may be psychological. A tort may be committed, for example, if a shopper accompanies a security guard to a back room in order to avoid public embarrassment. •Because a police officer has a wider power of arrest than a private citizen, a business person may reduce the risk of liability by calling a police officer, instead of directly arresting a suspect. That tactic will not, eliminate the risk. The business may still be held liable if it is directed the officer to make the arrest, rather than merely state the facts and allow the officer to draw a conclusion. •Malicious prosecution occurs when the defendant improperly causes the plaintiff to be prosecuted; the focus is not on detention or imprisonment, but rather on being subject to criminal proceedings. That might be true, for instance, if a business concocted a story about shoplifting and persuaded the government to lay charges against the plaintiff. Malicious prosecution is difficult to prove; the court has to be satisfied that (i) the defendant started that proceedings, (ii) out of malice, or for some improper purpose, and (iii) without honestly believing on reasonable grounds that a crime had been committed, and that (iv) the plaintiff was eventually acquitted of the alleged crime. • Although the tort of false imprisonment is quite wide, the defendant will not be held liable if the plaintiff agreed to be confined. Consent is a complete defense to all intentional torts. • Consequently, bus passengers can’t complain if the driver refuses to make an unscheduled stop. A company that operates a mine is generally entitled to leave a worker underground until the end of a shift. The same rule may apply to a customer in a store, at least if the store gave advance warning. • An imprisonment is false only if it is done without authority; the basic rules are found in the Criminal Code: A police officer may arrest anyone who is reasonably suspected of (i) • being in the act of committing a crime, or (ii) having committed a serious crime in the past. If that test is satisfied, the police officer can’t be held liable; even if the person who was arrested was actually innocent. •The rules are much narrower for private citi
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