What is a tort?
Conduct that harms other people or their property is generally called a tort. It is a private wrong against a person for which the person may recover damages. The injured party may sue the wrongdoer to recover damages to compensate him for the harm or loss caused. The conduct that is a tort may also be a crime.
Some torts require intent before there will be liability and some torts require no intent. In other words, in some cases there is liability for a tort even though the person committing the tort did not have any intent to do wrong. For example, a person going on private property without the consent of the landowner is liable for the tort of trespass even though the person may have not known he was on someone else’s property (e.g., he made an honest mistake as to the location of the boundary line).
In other torts, there must be intent. For example, in the case of slander, it is necessary to show that the defendant intended to cause harm, or, at least had the intent to do an act that a reasonable person would know would likely cause harm. As a general rule, motive is irrelevant except as evidence to show the existence of intent.
Difference between a Tort and a Crime
A crime is a wrong arising from a violation of a public duty. A tort is a wrong arising from the violation of a private duty. Again, however, a crime can also constitute a tort. For example, assault is a tort, but it is also a crime. A person who is assaulted may bring criminal charges against the assailant and may also sue the assailant for damages under tort law. An employee’s theft of his employer’s property that was entrusted to the employee constitutes the crime of embezzlement as well as the tort of conversion.
Types of Torts
There are basically three types of torts:
- intentional torts;
- negligence; and
- strict liability.
An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. Striking another person in a fight is an intentional act that would be the tort of battery. Striking a person accidentally would not be an intentional tort since there was not intent to strike the person. This may, however, be a negligent act. Careless conduct that results in damage to another is negligence.
Generally, liability because of a tort only arises where the defendant either intended to cause harm to the plaintiff or in situations where the defendant is negligent. However, in some areas, liability can arise even when there is no intention to cause harm or negligence. For example, in most states, when a contractor uses dynamite which causes debris to be thrown onto the land of another and damages the landowner’s house, the landowner may recover damages from the contractor even if the contractor was not negligent and did not intend to cause any harm. This is called strict liability or absolute liability. Basically, society is saying that the activity is so dangerous to the public that there must be liability. However, society is not going so far as to outlaw the activity.
Acme Construction Company was constructing a highway. It was necessary to blast rock with dynamite. The corporation’s employees did this with the greatest of care. In spite of their precautions, some flying fragments of rock damaged a neighboring house. The owner of the house sued the corporation for the damages. The corporation raised the defense that the owner was suing for tort damages and that such damages could not be imposed because the corporation had been free from fault. Was this defense valid? No. While ordinarily fault is the basis of tort liability, there are cases in which absolute liability is imposed on the actor. This means that when harm is caused, it is no defense that none was intended or that due care had been exercised to prevent the harm.
Other examples of absolute liability situations would be harm caused by storage of flammable gas and explosives, crop dusting when the chemical that is used is dangerous, factories which produce dangerous fumes, smoke or soot in populated areas, and the production of nuclear material.
Intentional Torts
Trespass
A trespass is an unauthorized action with respect to a person or property. A trespass to the person consists of any contact with someone’s person for which consent was not given. This is technically described as a battery. An assault would be a situation where a plaintiff reasonably believed a battery upon his person was about to be committed. An example of an assault would be where one person swings his fist at another person. If the person made contact, this would be an assault and a battery. A defense to assault and battery would be in cases of self defense.
A trespass to land involves going on or above the property of another without permission. A trespass can also involve the unpermitted use of the airspace of another’s property as well as actually going on the actual property. However, this rule has been modified to allow the flight of aircraft above the land as long as it does not interfere with the proper use of the land.
A trespass to personal property is the use of someone’s property without person. A conversion occurs when personal property is taken by a defendant and kept from its true owner without permission of the owner. Conversion is the civil side of the crime of theft.
Defamation
A form of publication which tends to cause one to lose the esteem of the community is defamation. This is injury to reputation. A person is liable for the defamation of another. In order to prove defamation, the plaintiff must prove:
- that a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;
- publication to a third party (i.e., another person hears or reads the statement); and
- the plaintiff suffers damages as a result of the statement.
Slander is a form of defamation that consists of making false oral statements about a person which would damage that person’s reputation. If I spread a rumor that my neighbor has been in jail and this is not true, I could be held liable for slander. Defamation which occurs by written statements is known as libel. Libel may also result from a picture or visual representation. Truth is an absolute defense to slander or libel.
Some statements, while libelous or slanderous, are absolutely privileged in the sense that the statements can be made without fear of a lawsuit for slander. The best example is a statement made in a court of law. An untrue statement made by a witness about a person in court which damages that person’s reputation will generally not cause liability to the witness as far as slander is concerned. However, if the statement is untrue, and the person knows the statement is untrue, the crime of perjury may have been committed.
If a communication is made in good faith on a subject that the communicating party has a legitimate right or interest in making the communication, such a communication could be exempt from slander liability due to a qualified privileged.
Smith, a district manager of Acme Recording Company, was investigating complaints of mismanagement of the a city office of the company. As part of his investigation he called at the home of Ann, the secretary of that office. She expressed the opinion that part of the trouble was caused by stealing of parts and equipment by Jones, another employee. Jones was later discharged and sued Ann for slander. Was she liable? No. The circumstances of the investigation, the relevance of the matter to the employer’s business, and the fact that the statement was privately told to a superior, led to the conclusion that Ann did not make the statement with malice. Because the statement was not made maliciously and was made to a representative of the employer regarding a matter within the range of corporate business, Ann was protected by a qualified privilege from liability for slander.
The media also enjoys a qualified privilege for stories that turn out to be false as long as the information was released without malice (i.e., without intent to harm) and a retraction or correction is made when the matter is brought to the attention of the publishing party.
Intentional infliction of emotional distress
At one time, a person could not recover mental distress unless there was a tort associated with the mental distress. However, there is now a separate tort for intentionally causing mental distress. This tort arises when a defendant purposely subjects a plaintiff to unnecessary emotional distress. Outrageous conduct must generally be present. For example, if a person bawls someone out in public with the intent to humiliate the person, this could possibly be the tort of intentional infliction of mental distress. Damages must be proven, however. A collection agency that uses harassing techniques to collect a debt could possibly be held liable for committing this tort.
Invasion of Privacy
Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. Celebrities are not protected in many situations, since they have voluntarily placed themselves already within the public eye, and their activities are considered newsworthy. However, an otherwise non-public individual has a right to privacy from:
- intrusion on one’s solitude or into one’s private affairs;
- public disclosure of embarrassing private information;
- publicity which puts him/her in a false light to the public; and
- appropriation of one’s name or picture for personal or commercial advantage. Celebrities generally can recovery for this type of breach of privacy
A defense to a charge of invasion of privacy is that the person making the disclosure had a legitimate reason for doing so. For example, investigation of a person’s credit when the person has applied for a loan is a legitimate reason. Investigations of insurance claims are privileged.
Negligence
Negligence is the failure to follow the degree of care that would be followed by a reasonably prudent person in order to avoid foreseeable harm. A person can be negligent if he or she acts with less care than a reasonable person would use under similar circumstances.
Bob drove a car on a country road at 35 miles an hour. The maximum speed limit was 45 miles an hour. He struck and killed a cow that was crossing the road. The owner of the cow sued Bill for the value of the cow. Bill raised the defense that since he was not driving above the speed limit, there could be no liability for negligence. Was this defense valid? No. A person must at all times act in the manner in which a reasonable person would act under the circumstances. The fact that Bill was driving within the speed limit was only one of the circumstances to consider. The weather or the condition of the road may have made it unreasonable to drive at 35 miles an hour. Driving slower than the speed limit does not in and of itself prove that the driver was acting reasonably.
The reasonable person standard varies in accordance with the situation. The degree of care required of a person is that which an ordinarily prudent person would exercise under similar circumstances. This does not necessarily mean a degree of care that would have prevented the harm from occurring. This degree of care varies. For example, if one is engaged in a service involving skill (such as a medical doctor) the care exercised by the doctor must be measured in light of what king of care an ordinarily prudent skilled person (i.e., a doctor) would exercise. The question the jury seeks to determine is what care and skill would reasonably be expected under the circumstances involved in the case.
The elements required to establish negligence are:
- the presence of duty;
- a voluntary act or failure to act that breaches the duty;
- proximate causation of harm; and
- damages (i.e., the breach of duty causes harm to the plaintiff).
Torts involve duties created by law. Just because someone is hurt does not mean that someone else must pay for the harm. There must have been a duty which has been broken. A plaintiff will not be allowed to recover from a defendant if the defendant did not break a duty that was owed to the plaintiff. For example, if a burglar breaks into my house and trips over an item of furniture, I am not liable to the burglar because I had no duty to him. However, if a guest in my house trips over a piece of furniture, I may have a duty to that guest.
The breach of duty must result from a voluntary act or failure to act.
Black was a voluntary psychiatric outpatient treated by Dr. Smith. Dr. Smith became aware that Black was prone to violence. Black told Dr. Smith that he intended to do serious harm to Jones. Shortly thereafter Black killed Jones. The parents of Jones sued Dr. Smith on the theory that he was liable for the death of their son because he failed to give a warning to Jones or notify the police of Black’s threat and violent nature. The court would hold that there was no liability because there was no duty to communicate any warning. The court would reach this result on the ground that psychiatry is not such a precise science that the doctor would know that a real danger existed, and it would tend to undermine the confidentiality of the psychiatrist-patient relationship if the psychiatrist were required to give such warnings.
In order for someone to be legally responsible for damages, it is necessary to show that the wrongful act was the proximate cause of the harm.
The injury must be shown to be the natural and probable result or consequence of the act of negligence alleged to have been committed. The plaintiff must prove that any negligence of which the defendant is accused proximately caused the Plaintiff’s injury. There may be more than one proximate cause of an accident. Multiple acts of negligence by different people may cause the same accident, yet each may be deemed to be a proximate cause of the accident. Sometimes there is an intervening cause which comes after the original negligence of the defendant which may reduce the amount of the defendant’s liability. If this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all.
The final element of negligence is damages. A plaintiff may recover monetary damages to compensate the plaintiff for economic losses such as lost wages and medical expenses. A plaintiff may also recover noneconomic losses such as for pain and suffering. Punitive damages may also be appropriate. Punitive damages are designed to punish the defendant for his wrongdoing and are generally only appropriate if the plaintiff can prove gross negligence or willful misconduct by the defendant.
Defenses to Negligence
If the negligence of the plaintiff is partially responsible for his harm, his recovery from the defendant may be reduced or barred. This is called contributory or comparative negligence. In a small minority of states, the common law contributory negligence rule is followed which states that if the plaintiff contributes to his harm, he cannot recover from the defendant. In most states, this rule has been rejected because it has been regarded as unjust in situations where the plaintiff’s negligence was slight in comparison to the defendant’s negligence.
Comparative negligence provides that there should be a comparing of the negligence of the plaintiff and the defendant. This is the rule followed in most states. The negligence of the plaintiff would not bar recovery in these states, but would only reduce the plaintiff’s recovery to the extent that the harm was caused by his own negligence. For example, if the jury decides that the plaintiff has sustained damages of $100,000.00, but that his own negligence was one-fourth the cause of the damage, the plaintiff would only be allowed to recover $75,000.00. Some states combine the contributory and comparative negligence rules and refuse to allow the plaintiff to recover anything if his negligence is more than 50% of the cause of the harm.
Assumption of risk is a defense which a defendant can raise which basically states that the plaintiff has knowingly assumed the risk of the harm that was caused. A fan hit by a basketball at a basketball game has assumed the risk of getting hit because it is a known danger that basketballs are thrown into the stands by players (when another player fails to make the catch) from time to time. However, the doctrine of assumption of risk has been watered down by the doctrine of comparative negligence. For example, if a plaintiff drives an automobile knowing his brakes are defective and he fails to stop at a railroad crossing and is therefore hit by a train, comparative or contributory negligence would be more appropriate than assumption of risk, although the plaintiff could arguably be deemed to have assumed the risk of an accident by driving with defective brakes that he knew to be defective.
Kendra took part in a friendly game of touch football. She had played before and was familiar with football. Michael was on her team. In the course of play, Michael bumped into Kendra and knocked her to the ground. He stepped on her hand, causing injury to a little finger that later required its amputation. She sued Michael for damages. He defended on the ground that she had assumed the risk. Kendra claimed that assumption of risk could not be raised as a defense because the state legislature had adopted the standard of comparative negligence and she was not negligent in taking part in the game. There was nothing in the fact of participation in the game that would have alerted a reasonable person to the fact that such an injury was foreseeable. However, having taken part in the game, she voluntarily assumed risks of normal harm that could reasonably be associated with the game. Her experience with the game showed that she knew what could be expected, and there was no proof that the defendant acted recklessly or caused harm intentionally. That is, nothing went beyond the reasonable expectations of a reasonable person. Thus, the comparative negligence statute did not apply, and Kendra claim was barred by her assumption of risk.
Immunity from Negligence
Certain persons and entities are not subject to tort liability. This is called immunity from liability. Governments are generally immune from tort liability. Both states and the federal government have abolished governmental immunity by statute in some situations. For example, under the Federal Tort Claims Act, damages may be recovered from the United States for the negligence of any employee of the United States under circumstances that the United States, if a private person, would have been liable. Very young children are immune from tort liability.
Res Ipsa Loquitur
The plaintiff ordinarily has the burden of proving that the defendant did not exercise reasonable care and was therefore negligent. The doctrine of res ipsa loquitur (the occurrence or thing speaks for itself) permits an inference of negligence when:
- the event is of a kind which ordinarily does not occur in the absence of someone’s negligence;
- it is caused by something within the exclusive control of the defendant;
- it is not due to any voluntary action or contribution on the part of the plaintiff; and
- the defendant has superior knowledge as to the cause of the event.
Examples of this doctrine would be its application in the case of objects such as bricks or window panes falling from the defendant’s premises, falling elevators, the collapse of structures, and the escape of gas or water from the gas or water main.
Collette worked in a building owned by Acme Company. As part of her job, she was going from one floor to another when the elevator stopped moving. She was alone in the elevator for about an hour before she was rescued. The emergency phone in the elevator was dead. She sued the Acme Company for the mental distress to which she was subjected. Acme Company claimed that it was not liable because there was no proof that it had been negligent. Collette claimed Acme had the burden of proving that it was not negligent. Was she correct? Yes. The concept of res ipsa loquitur justified the conclusion that Acme was negligent, and Acme had the burden of disproving that inference. Res ipsa loquitur has frequently been applied in elevator cases because it applies when (a) the occurrence resulting in injury is such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved are under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence.
Negligence Per Se
Negligence per se is negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. For example, driving laws may specify that exceeding a certain rate of speed is legally negligent. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behavior standards that it is negligent on its face. . For instance, when a doctor leaves a sponge inside a patient, his actions are inherently negligent.
Division of Liability
In situations where two or more defendants have caused harm to the plaintiff as a result of the defendants’ negligence, they may be held jointly and severally (i.e., collectively and individually) liable. Except in partnership situations joint and several liability generally only arises when it is not possible to determine how much harm was caused by each person involved.
Fraud
Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also by made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.
To constitute fraud, a misrepresentation or omission must also relate to an existing fact’, not a promise to do something in the future, unless the person who made the promise did so without any present intent to perform it or with a positive intent not to perform it. Promises to do something in the future or a mere expression of opinion cannot be the basis of a claim of fraud unless the person stating the opinion has exclusive or superior knowledge of existing facts which are inconsistent with such opinion. The false statement or omission must be material, meaning that it was significant to the decision to be made. Sometimes, it must be shown that the plaintiff’s reliance was justifiable, and that upon reasonable inquiry would not have discovered the truth of the matter. For injury or damage to be the result of fraud, it must be shown that, except for the fraud, the injury or damage would not have occurred.
To constitute fraud the misrepresentation or omission must be made knowingly and intentionally, not as a result of mistake or accident, or in negligent disregard of its truth or falsity. Also, the plaintiff must prove that the defendant intended for the plaintiff to rely upon the misrepresentation and/or omission; that the plaintiff did in fact rely upon the misrepresentation and/or omission] and that the plaintiff suffered injury or damage as a result of the fraud. Damages may include punitive damages as a punishment or public example due to the malicious nature of the fraud.
There are many state and federal laws to regulate fraud in numerous areas. Some of the areas most heavily litigated include consumer fraud, corporate fraud, and insurance fraud.
Liability of Parents
A parent is not ordinarily liable for a tort committed by a child. However, there are exceptions. If the parent knows that the child has a dangerous tendency, such as the tendency to set things on fire, the parent could be liable if the parent did not take reasonable steps to prevent such an occurrence. Such steps could be getting psychological counseling for the child or watching the child very thoroughly.
If a child is a reckless driver and the parent knows that the child is a reckless driver, the parent might be liable if the child uses the parent’s car with the parent’s permission and causes an accident. This is called negligent entrustment.
In about half of the states of the U.S., a parent supplying a family car to a family member (child) is liable for any harm negligently caused by the family member (child). This assumption of liability is normally agreed to by the parent when he/she signs the minor child’s driver’s license application.
Business Torts
In general, business torts refers to the intentional and improper interference with the business interests of another.
Unfair competition
Unfair competition is very similar to trademark and service mark infringement. It is unfair competition to imitate signs, store fronts, advertisements, and the packaging of goods of a competitor. The essence of an unfair competition claim is that one business has done something that confuses the public about another business’s product in a way that is so improper that a court needs to stop it or award damages to protect the commercial market.
The actor, director, and writer Woody Allen was involved in an interesting unfair competition case in the U. S. District Court for the Southern District of New York in 1985. Mr. Allen sued a look-alike and others because of an advertisement for video-rental stores using an actor that looked like him who was filmed renting videos from one of the defendants. The court found in favor of Mr. Allen on the theory that the public might well think that the picture was of Woody Allen, or that Woody Allen was in some way endorsing the product.
Product Disparagement
Damages may also result from the tort of disparagement of goods or slander of title. This would occur when a person makes a false statement about one businessman’s title to goods or the quality of goods, and the result of the statement causes another person or persons to refrain from dealing with the plaintiff.
Wrongful Interference with Contracts
Wrongful interference with a person’s contract or with his right to earn a living can be a tort. This tort has been called contract interference or tortuous interference with contracts. The interference must generally be intentional and without legal justification. Of course, the right to make a living or to conduct one’s business is subject to the rights of others, and legitimate competition between businesses in seeking to gain customers would not give rise to this tort. This tort can be difficult to prove because of the right of competition. Generally, it is necessary to prove that the defendant intentionally persuaded another to breach a contract with the plaintiff.
In a 1988 Texas case, a city hired a consulting engineer who recommended that the city terminate the contract of a person because of the person’s defective work. The employee sued the engineer. The consulting engineer was held not liable for intentional interference with the terminated employee’s contract because the consulting engineer was under a duty to keep the city properly informed of the quality of the employee’s work when it was defective. However, if the consulting engineer had advised the city to fire a clerical worker just because the consulting engineer did not like the clerical worker, this could give rise to the tort of intentional interference with the contract of another.
Computer Torts
Damage to the hardware of a computer will impose tort liability under the same principles of law as would apply if it were a typewriter or a car or any other tangible piece of property. Intentionally damaging software can also give rise to civil liability. Theft of computer hardware or software constitutes the tort of conversion.
Negligent use of a computer is a tort. If someone knows that a computer is not operating properly, but continues to use it and causes damages to a third person due to computer errors, the computer user can be liable for negligence. A company may be liable to persons who are harmed because the company’s management:
- Negligently failed to maintain its computers, resulting in computer error; or
- Negligently hiring, or failing to supervise, its computer operators.
The law regarding protection of privacy applies whether a computer is involved or not. However, computers have resulted in a greater awareness of possible invasions of privacy. This is because so much information can be stored in computers very quickly and easily. Therefore, computers can share information about you and can compile a great deal of data about you in one place very quickly. A person who wrongfully discloses personal, computerized, information regarding others can be liable for damages. A company may be liable if it negligently hires, or fails to supervise, an employee who releases private information regarding others. In some States, a firm may be liable if it maintains inadequate computer security, thus enabling an outsider to obtain private information.
A person’s credit standing or reputation can be damaged if a computer contains false information, and this false information is supplied to a third person. In order to avoid liability, the person in control of the data must exercise reasonable care to prevent errors and to correct errors. Liability under this theory would be called defamation by computer.
Employers in a city formed an association to exchange information on job applicants. In a computer, the association stored information received from members about the grounds for discharging employees. Mary had been employed as a bank teller. She was later fired because she was arrested for embezzlement of bank funds. Mary was never able to obtain other work in the community because of the computer printout of the association showing her arrest. She sued the association for defamation. It raised the defense that she had been arrested for embezzlement. She replied that it was publicly known that shortly after she was arrested, she was released because it was established that the embezzlement had been committed by a cashier in the bank and that the cashier was arrested and convicted for the crime. Is the association protected by the fact that the computer was correct in what it stated? No. The association was clearly negligent in failing to update its records. It was obvious that Mary’s arrest would have a significant effect on her reputation. The association was therefore under the duty to take notice of the conviction of the cashier and to clear the record as to Mary. Having failed to do so, the association is not protected from defamation liability.
Wrongful Discharge
Under the employment at will doctrine, the employer has historically been allowed to terminate the contract at any time for any reason or for no reason. Some State Courts and some State Legislatures have changed this rule by limiting the power of the employer to discharge the employee without cause. For example, Court decisions have carved out exceptions to this doctrine when the discharge violates an established public policy, such as discharging an employee in retaliation for insisting that the employer comply with the State’s Food and Drug Act. Most states recognize two public policy exceptions to the employee-at-will doctrine:
- One is the whistle-blower defense that protects employees against discharge for reporting illegal conduct or conduct that violates public policy;
- Another protects employees who refuse to participate in illegal conduct.
Courts may sometimes construe an employer’s statements concerning continued employment as a part of the employment contract, and therefore require good cause for the discharge of an at-will employee. Also, written personnel policies used as guidelines for the employer’s supervisors have been interpreted as restricting the employer’s right to discharge at-will employees without just cause. Employee handbooks or personnel manuals have been construed as part of the employee’s contract. This is why all personnel manuals and employee handbooks should contain a disclaimer. A sample disclaimer would be: This employee handbook is not intended to create any contractual rights in favor of you or the company. The company reserves the right to change the terms of this employee handbook at any time.
Pursuant to federal law and some state statutes, employers cannot lawfully discriminate against employees on the basis of age, race, sex, national origin, disability, religion or color. Anti-retaliation statutes protect many employees of state and federal agencies. They generally prohibit the firing, demotion, reprimands, and pay cuts of employees who report the misconduct of their employees.
Conversion
Conversion is a civil claim that can be brought when a party wrongfully takes another’s money or property. Conversion is any act of control wrongfully exerted over another’s personal property. The control exerted must cause an actual interference with one’s ownership or right of possession. Neither legal title nor absolute ownership of the property is necessary. A party need only prove that he was entitled to immediate possession at the time of conversion. The fact that plaintiff regained possession of the converted property does not prevent him from suing for damages for the conversion.
A manual taking of the property is not necessary; it is only necessary to show that someone assumed control or ownership over the property, or that the alleged converter has applied the property to his or her own use. A person who converts another’s property to their own use must pay damages for the value of the past use of the property even if it is returned.
False Imprisonment. False imprisonment involves detaining a person without that person’s consent. It can take the extreme form of kidnapping or the less extreme for of detaining a shopper for suspected shoplifting without reasonable grounds.
A defense to false imprisonment would be consent of the detainee, or if a store owner had reasonable grounds to believe that the detainee was guilty of shoplifting (shopkeeper’s privilege). This privilege allows a store owner (or his employee) to detain a suspected shoplifter based on reasonable suspicion for a reasonable time. This privilege applies even if the store owner was wrong about the customer so long as the owner actions were based on reasonable suspicions and treated the customer in a reasonable manner. This privilege does not protect the owner from damages due to the use of unnecessary force in detaining the customer.
A customer was shopping at the handbag counter of the defendant’s store. She did not make any purchase and left the store. When she was a few feet away from the store, an employee of the store tapped her lightly on the shoulder to attract her attention and asked her if she had made any purchase. When she inquired why, the employee asked, “What about that bag in your hand?” The customer said that it belonged to her and she opened it to show by its contents that it was not a new bag. The employee gave the customer a “real dirty look” and went back into the store without saying a word. The customer then sued the store for false imprisonment. Was the store liable? No. Judgment would be for the store. There was no false imprisonment because there was no actual detaining of the customer. The circumstances did not show the use of force or threat of force that stopped the customer from proceeding on her way. Her action of stopping and showing the contents of her handbag was voluntary.
Malpractice
Malpractice is a failure by a physician or other professional to use the care and skill that other members of their profession would use under similar circumstances. When an accountant, doctor, attorney, or some other professional contracts to perform services, there is a duty to exercise skill and care as is common within the community for persons performing similar services. Failure to fulfill that duty is malpractice.
