Intentional torts are considered as civil wrongs which when deliberately committed consequently results in an injury or harm which is recognized as a legal basis for a complaint in court (Cornell University Law School Legal Information Institute web site, n. d. ). It may also be defined as “private wrong (civil as opposed to criminal) resulting from a breach of a legal duty derived from society’s expectations regarding proper and improper interpersonal conduct” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
The main objective of tort law is to indemnify the injured party for the harm he sustained and to prevent others from committing the same acts or wrongful conduct (Cornell University Law School Legal Information Institute web site, n. d. ). Thus, the relief that may be sought by an injured party may be an action for injunction or for an action seeking monetary and punitive damages for the injury and losses suffered (Cornell University Law School Legal Information Institute web site, n. d.).
An act or conduct may be a tort and a crime at the same time. The burden of proof in criminal cases is heavier than that in a tort case. Criminal cases require proof beyond reasonable doubt to be able to convict while in a tort action, preponderance of evidence is only required. Criminal action seeks to punish the offender while in a tort case; it seeks to compensate the injured party of the losses he may have suffered (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Tort law is both a common law or those created by judges through their judicial pronouncements and a statutory law as enacted by the legislature. In the United States, the U. S. Code specifically Section 28, Chapter 171 otherwise known as the Federal Torts Claim Act for the violation of civil rights under the federal and state law (Cornell University Law School Legal Information Institute web site, n. d. ).
The Case of the Company and the Call Center There are two causes of action for intentional tort that the company can bring against the call center, i.e. its refusal to return the laser copy machine the company lent to it and its conduct of telling untruthful statements to its customers that the company has been cheating its own customers and breaking contracts. One type of intentional tort against property is conversion. It is defined as “an intentional exercise of dominion or control over a chattel that so seriously interferes with the rights of the true owner that the one interfering is liable for its full value” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Conversion occurs in the following instances: a)” wrongful taking of another’s property for an indefinite period, as by stealing; b) destroying the property of another or substantially altering it so as to render it unusable; c) improperly selling or transferring possession of one person’s property to another person, such as delivering goods to the wrong person; and, d) legally acquiring possession of someone’s property and later refusing to return the property when rightfully requested to do so” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
The instant case falls under the last instance mentioned. The call center legally acquired possession of the laser copy machine as it was lent by the company to it. However, it unjustly and unlawfully refused to return it upon demand. One of the old common law types of action to recover chattel/personal property is through an action of detinue (West’s Encyclopedia of American Law). The central point in this action is the ‘wrongful detainer’ and not the taking as the chattel may have come into possession by the defendant by lawful means.
The “demand is not requisite, except for the purpose of entitling the plaintiff to damages for the detention between the time of the demand and that of the commencement of the action” (Lectric Law Library web site, n. d. ). In the case of Gore v. Alabama Department of Public Safety et al. , the Court ruled that the return of the cellular telephone and personal documents of Gore because the Department did not have the authority to retain it (SC of Alabama, CV-02-274). Another case would be Kowal v.
Ellis (1977), where the Court ruled “in favor of the plaintiff in detinue, requiring the defendant to deliver up the pump to the plaintiff” (76 D. L. R. (3d) 546). Another cause of action for tort is that of defamation or disparagement of business reputation or property (Gleim Publications: Gleim Business Law Outlines web site, 2000). “It is a false statement about a person to their discredit, or one which exposes them to hatred, ridicule or contempt, or causes them to be shunned or avoided.
It is not limited to remarks about character, but extends to reputations” (Pearson Education web site, n. d. ). In the case filed against Ed Magedson, a self styled consumer advocate, he defamed and maligned several companies in the process. This made him liable by the Texas District Court for defamation among others (GW Equity LLC v. Xcentric Ventures LLC et al, Case No. 3:2007cv00976). In addition to the tort action and by applying common law tort theory to businesses, the company can be entitled to monetary damages for the injury it has sustained by reason of the acts of the call center.
The court may also issue an injunction as equity may require under the circumstances to restrain and enjoin the doing of acts to prevent further injury (Gleim Publications: Gleim Business Law Outlines web site, 2000). Intentional Torts Against Persons Intentional tort against a person is a category of tort that requires intent on the part of the defendant to harm the person of the plaintiff. The “law protects a person from unauthorized touching, restraint, or other contact. ” It also recognizes and protects the privacy and reputation of the person (Cheeseman, 2004).
A violation of these rights is an actionable tort. The following are intentional torts against persons: Assault is “an act by the defendant that causes a reasonable apprehension in the plaintiff of immediate harmful or offensive touching” (Gleim Publications: Gleim Business Law Outlines web site, 2000). It is necessary to prove that defendant has the ability to carry out his/her conduct and that any reasonable person would fear for his/her own safety because of the threats made by the defendant (Gleim Publications: Gleim Business Law Outlines web site, 2000).
“Battery is the intentional unprivileged and unwanted touching of another person” (Gleim Publications: Gleim Business Law Outlines web site, 2000). The act of touching must be without consent or not within a privilege. The act may not always cause serious injury but the degree will always be a factor in the determination of the amount of damages sought (Gleim Publications: Gleim Business Law Outlines web site, 2000).
“The tort of false imprisonment or false arrest can be defined as intentionally causing the confinement of another without consent or legal justification” (Gleim Publications: Gleim Business Law Outlines web site, 2000). False imprisonment constitutes detention without any means of exit or escape. Intentional infliction of emotional distress is “defined as an act or the use of words by a person with the intent of causing another person to experience ‘shock’” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
The following elements are to be proved in a tort action: a) defendant’s conduct must be an extreme outrage; b) there must be either an intention or negligence in causing the injury or harm; c) cause and effect linkage between the act and the resulting harm; and, d) that the harm suffered by the plaintiff is a consequence of “severe emotional distress” ” (Gleim Publications: Gleim Business Law Outlines web site, 2000). The outrageous conduct may be mere words and need not be an actual physical injury.
For instance, placing a snake on a person’s bed or in cases where the credit collection agent harasses the debtor by calling during wee hours of the morning to collect payment (Gleim Publications: Gleim Business Law Outlines web site, 2000). The tort ‘invasion of privacy’ refers to “appropriation, publicity given to private life, placing a person in a false light, and intrusion (Gleim Publications: Gleim Business Law Outlines web site, 2000).
There is appropriation when one uses the “name or likeness of another for the benefit of the defendant” (Gleim Publications: Gleim Business Law Outlines web site, 2000). Publicity given to private life means that private matters of a private person are made public. Similarly, it is intrusion upon seclusion as when offensive matters about a person are made public” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Putting a person in false light “results in liability if the false light would be highly offensive to a reasonable person and the defendant knew of, or recklessly disregarded, the falsity of the publicized matter and the false light in which the plaintiff would be placed ” (Gleim Publications: Gleim Business Law Outlines web site, 2000). It overlaps defamation if what are made public are derogatory remarks. The tort, ‘improper use of legal procedure’ refers to malicious prosecution.
Malicious prosecution requires proof of the following: a) absence of probable cause; b) the judgment is in favor of the plaintiff in an action for malicious prosecution; and, c) there was malice on the part of the defendant (Gleim Publications: Gleim Business Law Outlines web site, 2000). Another type of improper use of legal procedure is when there is abuse of the when the motive in filing a case is other than for which it was brought. There is abuse of the process notwithstanding the absence of elements (a) and (b) as previously discussed (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Intentional torts against property refer to acts which “cause physical damage to a person’s property or interference with his/her property rights” (Gleim Publications: Gleim Business Law Outlines web site, 2000). The most common are trespass to land, trespass to chattels, nuisance, conversion, interference with business relations, and disparagement of business reputation or property (Gleim Publications: Gleim Business Law Outlines web site, 2000). Trespass to land is “unauthorized entry of a person or thing onto the land of another (Gleim Publications: Gleim Business Law Outlines web site, 2000).
The following elements must be present: a) “actual physical invasion of land without plaintiff’s consent, b) defendant’s intent to bring about such invasion; and, c) causation or it was the defendant’s act that was the cause of the invasion (Gleim Publications: Gleim Business Law Outlines web site, 2000). Trespass to chattels is defined as “is the intentional and harmful interference with possession of personal property without the consent of the person with the right to its present possession” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Chattel or personal property is a movable or tangible property. This involves use or slight destruction of the personal property and the amount of damages that the court would allow is its equivalent for its use and diminution in value. Nuisance refers to the deprivation of the use or enjoyment of property such as odor, noise and the like other than its physical invasion. As private nuisance, it must be proved that there is a substantial curtailment of use and enjoyment of the property by virtue of the act of the defendant.
On the other hand, a public nuisance affects the members of the community in general. The action for abatement of a public nuisance must be brought by the government while the private individuals prejudiced may be entitled to injunctive relief and damages (Gleim Publications: Gleim Business Law Outlines web site, 2000). Conversion refers to unlawful interference with the rights of ownership of the owner of the property such that the person interfering can be held liable for the full value of the property (Gleim Publications: Gleim Business Law Outlines web site, 2000).
The elements of this type of tort are: “a) wrongful taking of another’s property for an indefinite period, as by stealing, b) destroying the property of another or substantially altering it so as to render it unusable, c) improperly selling or transferring possession of one person’s property to another person, such as delivering goods to the wrong person, and d) legally acquiring possession of someone’s property and later refusing to return the property when rightfully requested to do so” (Gleim Publications: Gleim Business Law Outlines web site, 2000).
An action for conversion is only appropriate when the state of the property is so deteriorated that it must be subjected to forced sale. Interference with business relations refers to interference in contractual relations between parties or in employee-employer relations. A person or a firm, acting with malice to influence another from not entering into a contract with the plaintiff is liable for a tort.
There must be an unlawful interference by the defendant with the plaintiff’s proposal with another person; that the interference would result in a great economic loss for the plaintiff; and that the interference must not without justification and without privilege (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Anent interference in an existing contract, the following elements should be present: a) “there is in fact an existing contract; b) defendant knew of it; c) defendant intended to cause a breach of the contract; d) defendant acted to induce a breach of the contract; e) defendant’s action was not legally justifiable; f) defendant’s action resulted in the actual breach of contract; and, g) the breach resulted in damages” privilege (Gleim Publications: Gleim Business Law Outlines web site, 2000).
Disparagement of business reputation or property was discussed in the previous section.
References Cheeseman, H. PowerPoint Slides to Accompany Business Law E-Commerce and Digital Law International Law and Ethics 5th edition 2004 Retrieved on August 1, 2007, from http://www.law.cornell.edu/wex/index.php/Tort