CHAPTER 6
TORT LAW
ANSWER TO CRITICAL THINKING QUESTION
IN THE FEATURE
DIGITAL UPDATE—CRITICAL THINKING
1. What is the standard for the protection of free speech guaranteed by the First
Amendment? The First Amendment states that “Congress shall make no law . . . abridging
the freedom of speech.” The right of free speech is founded on the principle that a democratic
form of government cannot survive unless citizens can freely voice their opinions of government
actions and policies. Traditionally, the courts have protected this right to the fullest extent.
Speech is subject to restrictions that are considered reasonable, however. Thus, limits on
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2. How did the standard apply to the statements posted online by Blake and Birzon? The
standard for the protection of free speech guaranteed by the First Amendment applies to
statements posted online no differently that it applies to statements published in any other
medium. The protection afforded political speech, the restrictions imposed on commercial
speech, and the sanctions levied on unprotected speech apply in every context and
circumstance, including the virtual world of the Internet.
Certain types of speech are not protected by the First Amendment. This includes
defamatory speech (a false statement that harms another’s reputation). There is a general duty
to refrain from making false statements of fact about others. This same duty applies to
3. The First Amendment normally protects statements of opinion, and this can be an
effective defense against a charge of defamation. Does it seem reasonable to disregard
this defense, however, if any assertion of fact within a statement of opinion is false?
Explain. Statements of pure opinion are not subject to restrictions or sanctions under the First
CASE 6.2—CRITICAL THINKING
LEGAL ENVIRONMENT
Financing for the purchase of the property was conditioned on the bank’s review of
Guido’s answers to the environmental questionnaire. How could the court conclude that
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the plaintiffs justifiably relied on misrepresentations made to the bank? Explain. Guido
owned nine houses that lacked a functioning waste disposal system. When sewage was found
on the property, Guido had the system partially replaced. Meanwhile, the Environmental
Protection Agency found diesel fuel in samples of water from four of the houses. Guido listed
the houses for sale. In response to questions from prospective buyer Revell’s bank, Guido
denied any knowledge of environmental problems. Revell bought the houses.
CASE 6.3—CRITICAL THINKING
WHAT IF THE FACTS WERE DIFFERENT?
Would the result in this case have been different if it had been Taylor’s minor son, rather
than Taylor herself, had been struck by the ball? Should courts apply the doctrine of
assumption of risk to children? Discuss. There is no legal bar to applying assumption of risk
to children. Children are expected to use the degree of caution required of a child of like age
and intelligence under similar circumstances. The courts have therefore applied the doctrine of
assumption of the risk in numerous cases, such as when a child was injured while playing on a
trampoline, swinging from a rope swing, or diving into a swimming pool. The key is whether the
child knew of the danger, was able to appreciate the risks associated with it, and voluntarily
chose to run the risk. Normally, it is up to a jury (or a judge in a bench trial) to decide if the facts
indicate that the child voluntarily undertook the risk.
LEGAL ENVIRONMENT
What is the basis underlying the defense of assumption of risk? How does that basis
support the court’s decision in this case? The basis for the defense of assumption of risk is
knowledge and consent—with knowledge of a risk a party voluntarily consents to it. The
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elements of that basis existed in this case, supporting the court’s decision. The plaintiff was
aware of the risk of an errant ball and assumed that risk by choosing to sit where she did.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Defense
The strongest defense will be assumption of the risk, which is common in sports. That defense
is strengthened by the state statute that formalizes the defense.
2A. Statute
Yes, because the statute strengthened the traditional common law rule. The legislature can
change or limit common law rules, such as those for liability. Here the legislature strengthened
the rule of assumption of the risk, which makes it very difficult for a plaintiff to overcome.
3A. Effect of statute
No, because of assumption of the risk. The defense of assumption of the risk would still likely be
a successful defense for the ski resort. That rule generally applies to participants in sporting
events unless the host creates unreasonably dangerous conditions and does not warn clients.
4A. Proportioned damages
Comparative negligence allows the jury to compute the contributions of both parties to the
situation. This results in the reduction or elimination of the plaintiff’s recovery, depending on the
state rule and the percent of negligence contributed.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
Each time a state legislature enacts a law that applies the assumption of risk
doctrine to a particular sport, participants in that sport suffer. The argument is that the less
liability imposed on a sports-activity operator, the less that operator will take care to maintain the
sports terrain and equipment. In other words, using the example of a ski area, a law that
exempts the ski area from liability for skiing accidents will result in the ski area owner investing
less in maintaining the trail system as well in the signage indicating hidden
hazards. Additionally, ski area owner will pay for fewer ski patrollers who force fast skiers to
slow down in congested areas or areas reserved for beginners.
In contrast, there may be an upside to applying the assumption of risk doctrine to sports
that are obviously not always safe. The benefit to all of those who participate is that tickets for
such sports as Alpine skiing will be cheaper. There is competition among ski
resorts. Therefore, if the ski resort owner pays less in liability insurance because of the state
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law under study in this debate topic, at least part of the savings will be passed on to ticket
buyers. Also, when participants know that they can’t sue for accidents, some may ski less
recklessly.
ANSWERS TO ISSUE SPOTTERS
AT THE END OF THE CHAPTER
1A. Jana leaves her truck’s motor running while she enters a Kwik-Pik Store. The
truck’s transmission engages and the vehicle crashes into a gas pump, starting a fire
that spreads to a warehouse on the next block. The warehouse collapses, causing its
billboard to fall and injure Lou, a bystander. Can Lou recover from Jana? Why or why
not? Probably. To recover on the basis of negligence, the injured party as a plaintiff must show
that the truck’s owner owed the plaintiff a duty of care, that the owner breached that duty, that
the plaintiff was injured, and that the breach caused the injury. In this problem, the owner’s
actions breached the duty of reasonable care. The billboard falling on the plaintiff was the direct
cause of the injury, not the plaintiff’s own negligence. Thus, liability turns on whether the plaintiff
can connect the breach of duty to the injury. This involves the test of proximate cause—the
question of foreseeability. The consequences to the injured party must have been a foreseeable
result of the owner’s carelessness.
2A. A water pipe bursts, flooding a Metal Fabrication Company utility room and
tripping the circuit breakers on a panel in the room. Metal Fabrication contacts Nouri, a
licensed electrician with five years experience, to check the damage and turn the
breakers back on. Without testing for short circuits, which Nouri knows that he should
do, he tries to switch on a breaker. He is electrocuted and his wife sues Metal Fabrication
6-1A. Defamation
The legal issue is whether Dun has libeled Richard’s character. For Richard to recover in a
legal action, he must prove the following elements: (a) that the defendant’s writing contained a
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false statement, not privileged, presented as fact (called a false statement of fact), or a
statement of opinion that was overpublicized, or even a true statement of fact that was
6–2A. Liability to business invitees
Yes. An occupier of the premises has a duty to use ordinary care to keep its premises in a
reasonably safe condition and to warn customers of any foreseeable hazards. What constitutes
6–3A. SPOTLIGHT ON INTENTIONAL TORTS—Defamation
6–4A. Intentional infliction of emotional distress
The court found that the facts alleged in the complaint, if true, were sufficient to establish
Kiwanuka’s claim of intentional infliction of emotional distress. There was evidence that
Bakilana, on a daily basis, used her position of power and control over Kiwanuka to engage in
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6-5A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWER—Negligence
Negligence requires proof that (1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, (3) the defendant's breach caused the plaintiff’s injury, and (4)
the plaintiff suffered a legally recognizable injury. With respect to the duty of care, a business
owner has a duty to use reasonable care to protect business invitees. This duty includes an
obligation to discover and correct or warn of unreasonably dangerous conditions that the owner
of the premises should reasonably foresee might endanger an invitee. Some risks are so
obvious that an owner need not warn of them. But even if a risk is obvious, a business owner
may not be excused from the duty to protect its customers from foreseeable harm.
Because Lucario was the Weatherford’s business invitee, the hotel owed her a duty of
reasonable care to make its premises safe for her use. The balcony ran nearly the entire width
of the window in Lucario’s room. She could have reasonably believed that the window was a
means of access to the balcony. The window/ balcony configuration was dangerous, however,
because the window opened wide enough for an adult to climb out, but the twelve-inch gap
between one side of the window and the balcony was unprotected. This unprotected gap
opened to a drop of more than three stories to a concrete surface below.
Should the hotel have anticipated the potential harm to a guest opening the window in
6–6A. Negligence
Yes, Rawls could obtain benefits from Progressive Northern Insurance Co. under an
underinsured motorist clause, on the ground that Bailey had been negligent. To succeed in a
negligence action, the plaintiff must prove that (1) the defendant owed a duty of care to the
injured party (plaintiff), (2) the defendant breached that duty, (3) the breach was the cause of
harm to the plaintiff, and (4) the harm to the plaintiff was a legally recognizable injury. The duty
must be such that a reasonable person engaging in the same activity would anticipate a risk of
the negative consequences and guard against it.
In this problem, Zabian Bailey rear-ended Rawls at a stoplight. According to the facts, the
evidence showed it was more likely than not that Bailey failed to apply his brakes in time to
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6–7A. Negligence
Yes, West Star was negligent in failing to provide a reasonably safe place to work. Central to the
tort of negligence is the concept of duty of care. Tort law measures duty by the reasonable
person standard—how a reasonable person would have acted in the same circumstances. But
the degree of care to be exercised varies, depending on the person’s profession, his or her
relationship with the injured party, and other factors—in other words, it is what a reasonable
person in the position of the defendant in a negligence case would have done in the particular
6–8A. Negligence
Yes, North Kitsap is liable to Gould in the circumstances of this problem for negligence. To
succeed in an action for negligence, a plaintiff must prove that the defendant owed a duty of
care to the plaintiff, the defendant breached the duty, the breach caused an injury to the plaintiff,
and the plaintiff thereby suffered a legally recognizable injury.
In this problem, Frontier Bank sent one of its employees, Suzette Gould, to North Kitsap
Business Park in Seattle, Washington, to “spread Christmas cheer” to a couple of the bank’s
customers, Paul and Suzanne Marshall, as an expression of appreciation for their business. The
Marshalls owned DSC Industrial Supply and Road Rider Supply, which were located in North
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6-9A. A QUESTION OF ETHICS—Wrongful interference
(a) The New York Court of Appeals recognized that “[a]t bottom, as a matter of policy,
courts are called upon to strike a balance between two valued interests: protection of
enforceable contracts, which lends stability and predictability to parties' dealings, and promotion
of free and robust competition in the marketplace.” The court acknowledged that actions might
be based on both prospective and existing contracts, but “greater protection is accorded an
interest in an existing contract (as to which respect for individual contract rights outweighs the
public benefit to be derived from unfettered competition) than to the less substantive, more
speculative interest in a prospective relationship (as to which liability will be imposed only on
proof of more culpable conduct on the part of the interferer).”
The court pointed out that “[a] defendant who is simply plaintiff's competitor and
knowingly solicits its contract customers is not economically justified in procuring the breach of
contract.” In other words, “[w]hen the defendant is simply a competitor of the plaintiff seeking
prospective customers and plaintiff has a customer under contract for a definite period,
defendant's interest is not equal to that of plaintiff and would not justify defendant's inducing the
customer to breach the existing contract.”
(b) The New York Court of Appeals’ answer to the question was no, absent a prior
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6–10A. Negligence
(a) If there were a statute in South Carolina that could be applied to this set of facts,
as there are in some states, it would present a nearly unassailable argument in favor of
imposing liability.
In the absence of such a specific law, an alcoholic beverage control statute might provide
a basis for imposing liability, under limited circumstances, on commercial hosts (the owners of
bars, for example). For policy reasons, those circumstances might be limited to the service of
alcoholic beverages to an intoxicated adult to whom recovery might be denied. Commercial
entities might also be statutorily liable for knowingly selling alcoholic beverages to minors, who
may be allowed to recover. It could be argued that liability might extend, under at least the latter
statutes, to social hosts. But these statutes would likely not support imposing a common-law
negligence duty on a social host with recovery by an underage individual who consumed the
alcoholic beverages. Why? Because this would impose a higher standard on the social host
than that to which the commercial provider was subject.
Or public policy might warrant treating underage individuals as lacking full adult capacity