LEGAL ISSUES

Tort Claims Business Owners Should Watch Out For

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Intentional Torts

Unlike negligence, intentional torts require a defendant to have intended his harmful act. Depending on the tort, intent may have to be specific (i.e., the defendant intended to bring about a particular consequence) or general (i.e., defendant knew or should have known that the particular consequence would result).

Intentional Torts to Persons

The business environment offers several situations in which a company may be held responsible for physical or mental harm to an individual.

Assault and Battery

Assault and battery are commonly perceived as criminal acts. However, these two torts have civil equivalents which allow an assault or battery victim to recover monetary damages for such harm. While the phrase assault and battery may suggest serious bodily injury, this is in fact misleading because the threshold for such claims is rather low.

An assault requires that a defendant's act instill in the plaintiff a reasonable apprehension of imminent harmful or offensive contact. No actual contact is needed. A battery requires harmful or offensive contact.

A plaintiff may pursue an assault and battery claim if she is a victim of unwanted touching or other forms of sexual harassment in the workplace.

False Imprisonment

A false imprisonment claim arises when a defendant, through acts or omissions, confines or restrains a plaintiff to a bounded area. The confinement or restraint may be a result of physical barriers, threats of force, physical force, a failure to release, or an invalid claim of legal authority.

Like assault and battery, false imprisonment is a claim that may be raised in a sexual harassment suit, especially if the defendant's advances included the use of force or threat of force to restrain the plaintiff, no matter how short the period of confinement was.

However, the more common scenario for a false imprisonment claim involves the detention of suspected shoplifters. If a store employee improperly detains a customer, whether by restraining the customer or his property, a false imprisonment claim may result. But, most states exempt businesses from such claims if the business acted in good faith based on reasonable cause and held the person for a reasonable time.

Example - Oklahoma Uniform Jury Instructions (Civil)
Instruction No. 16.4
Any merchant, its agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner for a reasonable length of time for all or any of the following purposes:

a. Conducting an investigation, including reasonable interrogation of the detained person, as to whether there has been a wrongful taking of such merchandise or money;

b. Informing the police or other law enforcement officials of the facts relevant to such detention;

c. Performing a reasonable search of the detained person and his belongings when it appears that the merchandise or money may otherwise be lost; and

d. Recovering the merchandise or money believed to have been taken wrongfully.

Any such reasonable detention shall not constitute an unlawful arrest or detention, nor shall it render the merchant, its agent or employee, criminally or civilly liable to the person so detained.

Intentional Infliction of Emotional Distress

For an intentional infliction of emotional distress (IIED) claim, a plaintiff must establish the following:

  • the defendant acted extremely and outrageously,
  • the defendant intended or acted recklessly to cause severe emotional distress, and
  • the defendant's conduct caused severe emotional distress.

To prevail, the extreme and outrageous conduct must go beyond all possible bounds of decency and be considered atrocious and utterly intolerable in a civilized society. Thus the conduct must exceed mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.

In the business context, an IIED claim may arise in a harassment case, where the harassment was either extreme and outrageous by nature, or became so because of its continued duration.

Defamation

Defamation occurs when a defendant communicates to a third person a statement of fact about the plaintiff which damages the plaintiff's reputation. As a defense, a defendant can establish that the defamatory statement was true. Libel refers to written or printed defamation while slander is spoken defamation.

To limit liability, a business should exercise some caution when offering work references, especially poor references, for former employees. While truth is a defense to a defamation claim, a defendant will still have to allocate valuable time and money defending such a claim. Indeed, many companies now shy away from giving good or bad references, and limit their comments to a former employee's dates of employment, job title, and salary.

The marketing or sales department may present another source of defamation liability. This could occur if an aggressive sales staff makes damaging statements about a competitor's products, services, finances, or management. Again, a dose of caution is warranted here.

Appropriation of Name or Likeness

The unauthorized appropriation of a person's name or likeness for a commercial advantage is an invasion of privacy. An incidental use of a name, picture or identity is not an appropriation. Instead, use constitutes an appropriation when the defendant does so for the purpose of exploiting or taking advantage of the plaintiff's reputation, prestige, social or commercial standing, or any public interest or other value attached to plaintiff's name, likeness or identity. This tort is often associated with advertising.

Copyright 1999 FindLaw Inc.

Last updated: Nov 1, 1999




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