FIN/370

Business Torts and Ethics Paper

Due May 02, 11:59 PM

Not Submitted

POINTS 10

 Paper

no new messages

Objectives:

Instructions

Assignment Files

Grading

You own University Heights Pizza, a pizza company that provides mostly home delivery. One of your drivers, Donald, routinely drives in excess of speed limits when delivering Pizza, and you are aware of these problems. One night while delivering pizzas, Donald decides to visit a girlfriend. You are aware that he sometimes does this, and you have not objected as long as the Pizza gets delivered on time. On the way to his girlfriend's house, but on the way to deliver a customer's pizza, Donald runs a red light at high speeds and seriously injures Alice, a driver in another car who had the right of way. Alice sues University Heights Pizza and Donald. You assert that University Heights is not liable for Donald's fast driving.

Write a paper of 750- to 1,050-words answering the following questions posed by this scenario:

What is University Height's best argument that it is not liable to Alice? Would you agree with this argument? Explain.

What is Alice's best argument that Donald is liable to Alice? Explain.

What should University Heights do to prevent risks like Donald?

Cite to at least three scholarly references.

Format your paper consistent with APA guidelines.

Click the Assignment Files tab to submit your assignment

Here is the reading information :

Learning Objectives

In this chapter you will learn:

10-1. To compare how tort law is related to property.

10-2. To differentiate the three divisions of torts and to generate a theory

of why torts are so divided.

10-3. To explain the elements of negligence and to relate these elements

to the development of negligence law.

10-4. To analyze why tort litigation is so controversial in society today.

Torts Affecting

Business 10

289

Just as contract law is the way owners

exchange what they own in a propertybased

legal system, so also tort law is an

important part of the same system. The property

fence protects our use of things. It is part of

what we own. But our protected use is not infinite.

It may be absolute but because we live with

other people and what is proper to them, we

may not use things just anyway we please. We

do not have a protected use of a thing if our use

harms what others own, including their persons.

Tort law helps define where the property fence is

when it comes to our use of things. It makes our

use legally wrongful and helps anyone injured

by our wrongful use to get compensation, called

“damages.”

T he word tort means “wrong.” Legally, a tort

is a civil wrong other than a breach of contract.

Tort law sets limits on how people can act and

use their resources so they do not violate the right

290 PART 3 Legal Foundations for Business

others have to their resources. If you think of property as a type of legal fence

surrounding resources, then tort law defines when someone has crossed that

fence wrongfully so that compensation is due to the owner.

Legal wrongs inflicted on the resources of others may be crimes as well as

torts (see Chapter 12), but the law of tort itself is civil rather than criminal.

The usual remedy for a tort is dollar damages. Behavior that constitutes a tort

is called tortious behavior. One who commits a tort is a tortfeasor.

This chapter divides torts into three main categories: intentional torts,

negligence torts, and strict liability torts. Intentional torts involve deliberate

actions that cause injury. Negligence torts involve injury following a failure to

use reasonable care. Strict liability torts impose legal responsibility for injury

even though a liable party neither intentionally nor negligently causes the

injury.

Important to torts are the concepts of duty and causation. One is not liable

for another’s injury unless he or she has a duty toward the person injured.

And, of course, there is usually no liability for injury unless one has caused the

injury. We explain these concepts under the discussion of negligence, where

they are most relevant.

This chapter also covers the topic of damages. The topic concerns the

business community because huge damage awards, frequently against businesses,

have become common in recent years.

>> Intentional Torts

An important element in the following torts is intent, as we are dealing with

intentional torts. Intent is usually defined as the desire to bring about certain

results. But in some circumstances the meaning is even broader, including not

only desired results but also results that are “substantially likely” to result

from an action. Recently, employers who knowingly exposed employees to

toxic substances without warning them of the dangers have been sued for

committing the intentional tort of battery. The employers did not desire their

employees’ injuries, but these injuries were “substantially likely” to result

from the failure to warn.

The following sections explain the basic types of intentional torts. Sidebar

10.1 lists these torts.

LO 10-1

* Torts are divided

into intentional torts,

negligence, and strict

liability.

LO 10-2

Intent is the desire

to bring about certain

results.

• Assault and battery

• Intentional infliction of mental distress

• Invasion of privacy

• False imprisonment and malicious prosecution

• Trespass

• Conversion

• Defamation

• Fraud

• Common law business torts

>> sidebar 10.1

Types of Intentional Torts

CHAPTER 10 Torts Affecting Business 291

1. ASSAULT AND BATTERY

An assault is the placing of another in immediate apprehension for his or

her physical safety. “Apprehension” has a broader meaning than “fear.” It

includes the expectation that one is about to be physically injured. The person

who intentionally creates such apprehension in another is guilty of the tort of

assault. Many times a battery follows an assault. A battery is an illegal touching

of another. As used here, “illegal” means that the touching is done without

justification and without the consent of the person touched.

Hitting someone with a wrench causes physical injury, but as the following

case illustrates, the “touching” that constitutes part of a battery need not

cause physical injury.

case 10.1 >>

HARPER v. WINSTON COUNTY

892 So.2d 346 (Ala. Sup. Ct. 2004)

Sandra Wright, the revenue commissioner of Winston

County, Alabama, fired her employee, Sherry Harper.

Harper sued, claiming among other things that Wright

had committed an assault and battery in grabbing her

and jerking her arm in trying to force her to go to Wright’s

office. Before trial, the court granted summary judgment

in favor of Wright. The plaintiff, Harper, appealed, and

the case reached the Alabama Supreme Court.

SEE, J: . . . Harper argues that the trial court erred in

entering a summary judgment in favor of Wright, on

Harper’s assault and battery claim, because, she claims,

she presented substantial evidence in support of her

claim. Harper argues that Wright admits that she intentionally

grabbed Harper’s arm and, she asserts, Wright’s

grabbing of her arm was offensive. Harper states:

“[Wright] jerked my arm and tried to pull me back.”

She argues that Alabama law does not require that

Wright strike or hit her in order for a battery to occur.

In response, Wright argues that she merely “took a

hold of [Harper’s] hand.” Wright states that she did not

touch Harper in an offensive manner and that she was

only trying to coax Harper into stepping into her office

so that they could continue their conversation away

from the view of the customers and the employees of

the Department. The trial court stated in its summaryjudgment

order that “the undisputed evidence from

Sandra Wright clearly points out that the touching was

not in any way harmful or offensive, but was instead

done in an attempt to bring [Harper] under control.”

The plaintiff in an action alleging assault and battery

must prove “(1) that the defendant touched the

plaintiff; (2) that the defendant intended to touch the

plaintiff; and (3) that the touching was conducted in a

harmful or offensive manner.” In Atmore Community

Hospital, the plaintiff presented evidence indicating

that the defendant “touched her waist, rubbed against

her when passing her in the hall, poked her in the armpits

near the breast area, and touched her leg.” The

plaintiff also presented evidence indicating that “each

of these touchings was intentional, was conducted

with sexual overtones, and was unwelcome.” We held

that these factual assertions constituted substantial

evidence that the defendant had committed a battery.

In Surrency, we stated that an actual injury to the

body is not a necessary element for an assault-and-battery

claim. We also stated that when the evidence as to

whether a battery in fact occurred is conflicting, the

question whether a battery did occur is for the jury.

Quoting Singer Sewing Machine Co., this Court stated:

“To what acts will constitute a battery in a case like

this, the rule is well stated by Mr. Cooley in his work

on Torts. He says: ‘A successful assault becomes a

battery. A battery consists in an injury actually done

to the person of another in an angry or revengeful or

rude or insolent manner, as by spitting in the face, or

in any way touching him in anger, or violently jostling

him out of the way, or in doing any intentional

violence to the person of another.’ The wrong here

consists, not in the touching, so much as in the manner

or spirit in which it is done, and the question of

bodily pain is important only as affecting damages.

Thus, to lay hands on another in a hostile manner is

a battery, although no damage follows; but to touch

another, merely to attract his attention, is no battery

292

A store manager who threatens an unpleasant customer with a wrench,

for example, is guilty of assault. Actually hitting the customer with the wrench

would constitute battery.

2. INTENTIONAL INFLICTION OF MENTAL DISTRESS

Intentional infliction of mental distress is a battery to the emotions. It arises

from outrageous, intentional conduct that carries a strong probability of

causing mental distress to the person at whom it is directed. Usually, one who

sues on the basis of an intentional infliction of mental distress must prove

that the defendant’s outrageous behavior caused not only mental distress but

also physical symptoms, such as headaches or sleeplessness.

The most common cases of intentional infliction of mental distress (also

called emotional distress ) have concerned employees who have been discriminated

against or fired. Many such cases, however, do not involve the type of

outrageous conduct necessary for the mental distress tort.

This tort usually

requires the plaintiff to

prove not only mental

distress but also

physical symptoms.

and not unlawful. And to push gently against one, in

the endeavor to make way through a crowd, is no

battery; but to do so rudely and insolently is and may

justify damages proportioned to the rudeness. . . .”

Alabama courts have recognized that privilege can

be a defense to a plaintiff’s claim that the defendant

battered her. This Court has held that when a merchant

suspects a customer of shoplifting, it is reasonable for

the merchant’s employee to use reasonable force to

ensure that the suspected shoplifter is detained.

In this case, there is no question that Wright intended

to touch Harper’s arm; it is the “manner or spirit”

in which Wright touched Harper’s arm that is in dispute.

Harper testified at the June 13, 2000, hearing

that Wright forcefully grabbed her arm. Wright testified

that she reached for Harper’s arm in an attempt to lead

her into her office so they could continue their discussion

away from the public area. In Surrency, we noted

that “to touch another, merely to attract his attention,

is no battery and not unlawful. While it is certainly

>> CASE QUESTIONS

1. The defendant in this case did not hurt the plaintiff, Harper. Explain why the

defendant might still be liable for the tort of battery.

2. Do all touchings constitute a battery? Discuss and give examples to support your

conclusion.

3. In litigation what is the difference between a question of law and a question of

fact? What does the Alabama Supreme Court decide in this case about whether this

alleged battery is a question of law or a question of fact? Discuss.

[continued]

conceivable that this type of touching is all that occurred

in this case, Harper presents substantial evidence to the

contrary. Harper testified at her hearing that Wright

“jerked” her arm. In her response to Wright’s motion

for a summary judgment, Harper states that Wright’s

touch greatly offended her and that this fact is evidenced

by the fact that she filed her complaint with the

Winston County Commission on May 9, 2000. In her

complaint, Harper states that “[Wright] grabbed my

arm and tried to force me to go with her.” Reviewing

the facts in the light most favorable to Harper, as this

Court is required to do on an appeal from a summary

judgment, we conclude that the question whether a battery

occurred in this case—specifically, whether Wright

touched Harper in a harmful or offensive manner—is a

question of fact for the jury to decide.

We reverse the summary judgment in favor of

Wright on Harper’s assault-and-battery claim; and we

remand this case to the trial court for proceedings consistent

with this opinion.

CHAPTER 10 Torts Affecting Business 293

In the business world, other examples of infliction of mental distress come

about from the efforts of creditors to extract payment from their debtors. Frequent,

abusive, threatening phone calls by creditors might provide the basis

for a claim of intentional infliction of mental distress. As torts go, this one is

of fairly recent origin. It is a judge-made tort, which furnishes a good example

of how the courts are becoming increasingly sensitive to the range of injuries

for which compensation is appropriate. In some states, courts have gone so far

as to establish liability for carelessly inflicted mental distress, such as the distress

of a mother who sees her child negligently run down by a delivery truck.

3. INVASION OF PRIVACY

The tort of invasion of privacy is one that is still in the early stages of legal

development. As the statutes and court cases recognize it, the tort at present

comprises three principal invasions of personal interest. An invasion of any

one of these areas of interest is sufficient to trigger liability.

Most commonly, liability will be imposed on a defendant who appropriates

the plaintiff’s name or likeness for his or her own use. Many advertisers

and marketers have been required to pay damages to individuals when pictures

of them have been used without authorization to promote products, or when

their names and identities have been used without permission for promotional

purposes. Before using anyone’s picture or name, an advertiser must obtain a

proper release from that person to avoid possible liability. See Sidebar 10.2 .

That you can

recover damages for

misappropriation of

likeness illustrates that

you own your name

and likeness in certain

respects.

A second invasion of privacy is the defendant’s intrusion upon the plaintiff’s

physical solitude. Illegal searches or invasions of home or possessions,

illegal wiretapping, and persistent and unwanted telephoning can provide the

basis for this invasion-of-privacy tort. In one case, a woman even recovered

Michael Jordan’s name is one of the most recognizable

in all of sports. Jordan has filed several lawsuits

against advertisers who have used his name without

permission in connection with the promotion of their

products. For instance, he sued Avon for $100 million

in connection with a Father’s Day promotion that

used his identity. Avon and Jordan settled that case.

More recently, Jordan sued two Chicago-area grocery

stores for using his name in order to attract customers

to their stores. Sports and entertainment stars

especially often sue businesses that use their identities

without permission.

In general, the law considers a right to privacy

as “a right to be left alone.” But notice how similar a

right to privacy is to the property right. Privacy, like

property, is a right to exclude others from interfering

with something that is privately proper to someone.

Would it have been simpler if the law had developed

by saying that people have property in their identities?

Why do you think the law didn’t develop this way?

Privacy concerns arose as new technologies like

cameras and recorders made it easy to peer into the

lives of others. The same concerns continue today

with the Internet and computers. Legislatures have

passed a variety of laws concerning privacy. As with

the common law causes of action mentioned in this

section of the text, some of the new privacy acts

and statutes don’t even mention the word “privacy.”

Chapter 18 on consumer protection covers some

of the new privacy laws. In general, concern about

various privacy issues illustrate how law develops to

meet changing needs in society.

>> sidebar 10.2

Privacy, Michael Jordan, and Society

294 PART 3 Legal Foundations for Business

damages against a photographer who entered her sickroom and snapped a

picture of her. Employers who enter their employees’ homes without permission

have also been sued successfully for invasions of privacy. If the invasion

of privacy continues, it may be enjoined by the court. Jacqueline Kennedy

Onassis sought and obtained an injunction that forbade a certain photographer

from getting too close to her and her children. Under this tort, the invasion

of physical solitude must be highly objectionable to a reasonable person.

The third invasion of personal interest that gives rise to the invasionof-

privacy tort is the defendant’s public disclosure of highly objectionable,

private information about the plaintiff. A showing of such facts can be the

basis for a cause of action, even if the information is true. Thus, publishing in

a newspaper that the plaintiff does not pay his or her debts has been ruled Business Torts and Ethics Paper

Due May 02, 11:59 PM

Not Submitted

POINTS 10

 Paper

no new messages

Objectives:

Instructions

Assignment Files

Grading

You own University Heights Pizza, a pizza company that provides mostly home delivery. One of your drivers, Donald, routinely drives in excess of speed limits when delivering Pizza, and you are aware of these problems. One night while delivering pizzas, Donald decides to visit a girlfriend. You are aware that he sometimes does this, and you have not objected as long as the Pizza gets delivered on time. On the way to his girlfriend's house, but on the way to deliver a customer's pizza, Donald runs a red light at high speeds and seriously injures Alice, a driver in another car who had the right of way. Alice sues University Heights Pizza and Donald. You assert that University Heights is not liable for Donald's fast driving.

Write a paper of 750- to 1,050-words answering the following questions posed by this scenario:

What is University Height's best argument that it is not liable to Alice? Would you agree with this argument? Explain.

What is Alice's best argument that Donald is liable to Alice? Explain.

What should University Heights do to prevent risks like Donald?

Cite to at least three scholarly references.

Format your paper consistent with APA guidelines.

Click the Assignment Files tab to submit your assignment

Here is the reading information :

Learning Objectives

In this chapter you will learn:

10-1. To compare how tort law is related to property.

10-2. To differentiate the three divisions of torts and to generate a theory

of why torts are so divided.

10-3. To explain the elements of negligence and to relate these elements

to the development of negligence law.

10-4. To analyze why tort litigation is so controversial in society today.

Torts Affecting

Business 10

289

Just as contract law is the way owners

exchange what they own in a propertybased

legal system, so also tort law is an

important part of the same system. The property

fence protects our use of things. It is part of

what we own. But our protected use is not infinite.

It may be absolute but because we live with

other people and what is proper to them, we

may not use things just anyway we please. We

do not have a protected use of a thing if our use

harms what others own, including their persons.

Tort law helps define where the property fence is

when it comes to our use of things. It makes our

use legally wrongful and helps anyone injured

by our wrongful use to get compensation, called

“damages.”

T he word tort means “wrong.” Legally, a tort

is a civil wrong other than a breach of contract.

Tort law sets limits on how people can act and

use their resources so they do not violate the right

290 PART 3 Legal Foundations for Business

others have to their resources. If you think of property as a type of legal fence

surrounding resources, then tort law defines when someone has crossed that

fence wrongfully so that compensation is due to the owner.

Legal wrongs inflicted on the resources of others may be crimes as well as

torts (see Chapter 12), but the law of tort itself is civil rather than criminal.

The usual remedy for a tort is dollar damages. Behavior that constitutes a tort

is called tortious behavior. One who commits a tort is a tortfeasor.

This chapter divides torts into three main categories: intentional torts,

negligence torts, and strict liability torts. Intentional torts involve deliberate

actions that cause injury. Negligence torts involve injury following a failure to

use reasonable care. Strict liability torts impose legal responsibility for injury

even though a liable party neither intentionally nor negligently causes the

injury.

Important to torts are the concepts of duty and causation. One is not liable

for another’s injury unless he or she has a duty toward the person injured.

And, of course, there is usually no liability for injury unless one has caused the

injury. We explain these concepts under the discussion of negligence, where

they are most relevant.

This chapter also covers the topic of damages. The topic concerns the

business community because huge damage awards, frequently against businesses,

have become common in recent years.

>> Intentional Torts

An important element in the following torts is intent, as we are dealing with

intentional torts. Intent is usually defined as the desire to bring about certain

results. But in some circumstances the meaning is even broader, including not

only desired results but also results that are “substantially likely” to result

from an action. Recently, employers who knowingly exposed employees to

toxic substances without warning them of the dangers have been sued for

committing the intentional tort of battery. The employers did not desire their

employees’ injuries, but these injuries were “substantially likely” to result

from the failure to warn.

The following sections explain the basic types of intentional torts. Sidebar

10.1 lists these torts.

LO 10-1

* Torts are divided

into intentional torts,

negligence, and strict

liability.

LO 10-2

Intent is the desire

to bring about certain

results.

• Assault and battery

• Intentional infliction of mental distress

• Invasion of privacy

• False imprisonment and malicious prosecution

• Trespass

• Conversion

• Defamation

• Fraud

• Common law business torts

>> sidebar 10.1

Types of Intentional Torts

CHAPTER 10 Torts Affecting Business 291

1. ASSAULT AND BATTERY

An assault is the placing of another in immediate apprehension for his or

her physical safety. “Apprehension” has a broader meaning than “fear.” It

includes the expectation that one is about to be physically injured. The person

who intentionally creates such apprehension in another is guilty of the tort of

assault. Many times a battery follows an assault. A battery is an illegal touching

of another. As used here, “illegal” means that the touching is done without

justification and without the consent of the person touched.

Hitting someone with a wrench causes physical injury, but as the following

case illustrates, the “touching” that constitutes part of a battery need not

cause physical injury.

case 10.1 >>

HARPER v. WINSTON COUNTY

892 So.2d 346 (Ala. Sup. Ct. 2004)

Sandra Wright, the revenue commissioner of Winston

County, Alabama, fired her employee, Sherry Harper.

Harper sued, claiming among other things that Wright

had committed an assault and battery in grabbing her

and jerking her arm in trying to force her to go to Wright’s

office. Before trial, the court granted summary judgment

in favor of Wright. The plaintiff, Harper, appealed, and

the case reached the Alabama Supreme Court.

SEE, J: . . . Harper argues that the trial court erred in

entering a summary judgment in favor of Wright, on

Harper’s assault and battery claim, because, she claims,

she presented substantial evidence in support of her

claim. Harper argues that Wright admits that she intentionally

grabbed Harper’s arm and, she asserts, Wright’s

grabbing of her arm was offensive. Harper states:

“[Wright] jerked my arm and tried to pull me back.”

She argues that Alabama law does not require that

Wright strike or hit her in order for a battery to occur.

In response, Wright argues that she merely “took a

hold of [Harper’s] hand.” Wright states that she did not

touch Harper in an offensive manner and that she was

only trying to coax Harper into stepping into her office

so that they could continue their conversation away

from the view of the customers and the employees of

the Department. The trial court stated in its summaryjudgment

order that “the undisputed evidence from

Sandra Wright clearly points out that the touching was

not in any way harmful or offensive, but was instead

done in an attempt to bring [Harper] under control.”

The plaintiff in an action alleging assault and battery

must prove “(1) that the defendant touched the

plaintiff; (2) that the defendant intended to touch the

plaintiff; and (3) that the touching was conducted in a

harmful or offensive manner.” In Atmore Community

Hospital, the plaintiff presented evidence indicating

that the defendant “touched her waist, rubbed against

her when passing her in the hall, poked her in the armpits

near the breast area, and touched her leg.” The

plaintiff also presented evidence indicating that “each

of these touchings was intentional, was conducted

with sexual overtones, and was unwelcome.” We held

that these factual assertions constituted substantial

evidence that the defendant had committed a battery.

In Surrency, we stated that an actual injury to the

body is not a necessary element for an assault-and-battery

claim. We also stated that when the evidence as to

whether a battery in fact occurred is conflicting, the

question whether a battery did occur is for the jury.

Quoting Singer Sewing Machine Co., this Court stated:

“To what acts will constitute a battery in a case like

this, the rule is well stated by Mr. Cooley in his work

on Torts. He says: ‘A successful assault becomes a

battery. A battery consists in an injury actually done

to the person of another in an angry or revengeful or

rude or insolent manner, as by spitting in the face, or

in any way touching him in anger, or violently jostling

him out of the way, or in doing any intentional

violence to the person of another.’ The wrong here

consists, not in the touching, so much as in the manner

or spirit in which it is done, and the question of

bodily pain is important only as affecting damages.

Thus, to lay hands on another in a hostile manner is

a battery, although no damage follows; but to touch

another, merely to attract his attention, is no battery

292

A store manager who threatens an unpleasant customer with a wrench,

for example, is guilty of assault. Actually hitting the customer with the wrench

would constitute battery.

2. INTENTIONAL INFLICTION OF MENTAL DISTRESS

Intentional infliction of mental distress is a battery to the emotions. It arises

from outrageous, intentional conduct that carries a strong probability of

causing mental distress to the person at whom it is directed. Usually, one who

sues on the basis of an intentional infliction of mental distress must prove

that the defendant’s outrageous behavior caused not only mental distress but

also physical symptoms, such as headaches or sleeplessness.

The most common cases of intentional infliction of mental distress (also

called emotional distress ) have concerned employees who have been discriminated

against or fired. Many such cases, however, do not involve the type of

outrageous conduct necessary for the mental distress tort.

This tort usually

requires the plaintiff to

prove not only mental

distress but also

physical symptoms.

and not unlawful. And to push gently against one, in

the endeavor to make way through a crowd, is no

battery; but to do so rudely and insolently is and may

justify damages proportioned to the rudeness. . . .”

Alabama courts have recognized that privilege can

be a defense to a plaintiff’s claim that the defendant

battered her. This Court has held that when a merchant

suspects a customer of shoplifting, it is reasonable for

the merchant’s employee to use reasonable force to

ensure that the suspected shoplifter is detained.

In this case, there is no question that Wright intended

to touch Harper’s arm; it is the “manner or spirit”

in which Wright touched Harper’s arm that is in dispute.

Harper testified at the June 13, 2000, hearing

that Wright forcefully grabbed her arm. Wright testified

that she reached for Harper’s arm in an attempt to lead

her into her office so they could continue their discussion

away from the public area. In Surrency, we noted

that “to touch another, merely to attract his attention,

is no battery and not unlawful. While it is certainly

>> CASE QUESTIONS

1. The defendant in this case did not hurt the plaintiff, Harper. Explain why the

defendant might still be liable for the tort of battery.

2. Do all touchings constitute a battery? Discuss and give examples to support your

conclusion.

3. In litigation what is the difference between a question of law and a question of

fact? What does the Alabama Supreme Court decide in this case about whether this

alleged battery is a question of law or a question of fact? Discuss.

[continued]

conceivable that this type of touching is all that occurred

in this case, Harper presents substantial evidence to the

contrary. Harper testified at her hearing that Wright

“jerked” her arm. In her response to Wright’s motion

for a summary judgment, Harper states that Wright’s

touch greatly offended her and that this fact is evidenced

by the fact that she filed her complaint with the

Winston County Commission on May 9, 2000. In her

complaint, Harper states that “[Wright] grabbed my

arm and tried to force me to go with her.” Reviewing

the facts in the light most favorable to Harper, as this

Court is required to do on an appeal from a summary

judgment, we conclude that the question whether a battery

occurred in this case—specifically, whether Wright

touched Harper in a harmful or offensive manner—is a

question of fact for the jury to decide.

We reverse the summary judgment in favor of

Wright on Harper’s assault-and-battery claim; and we

remand this case to the trial court for proceedings consistent

with this opinion.

CHAPTER 10 Torts Affecting Business 293

In the business world, other examples of infliction of mental distress come

about from the efforts of creditors to extract payment from their debtors. Frequent,

abusive, threatening phone calls by creditors might provide the basis

for a claim of intentional infliction of mental distress. As torts go, this one is

of fairly recent origin. It is a judge-made tort, which furnishes a good example

of how the courts are becoming increasingly sensitive to the range of injuries

for which compensation is appropriate. In some states, courts have gone so far

as to establish liability for carelessly inflicted mental distress, such as the distress

of a mother who sees her child negligently run down by a delivery truck.

3. INVASION OF PRIVACY

The tort of invasion of privacy is one that is still in the early stages of legal

development. As the statutes and court cases recognize it, the tort at present

comprises three principal invasions of personal interest. An invasion of any

one of these areas of interest is sufficient to trigger liability.

Most commonly, liability will be imposed on a defendant who appropriates

the plaintiff’s name or likeness for his or her own use. Many advertisers

and marketers have been required to pay damages to individuals when pictures

of them have been used without authorization to promote products, or when

their names and identities have been used without permission for promotional

purposes. Before using anyone’s picture or name, an advertiser must obtain a

proper release from that person to avoid possible liability. See Sidebar 10.2 .

That you can

recover damages for

misappropriation of

likeness illustrates that

you own your name

and likeness in certain

respects.

A second invasion of privacy is the defendant’s intrusion upon the plaintiff’s

physical solitude. Illegal searches or invasions of home or possessions,

illegal wiretapping, and persistent and unwanted telephoning can provide the

basis for this invasion-of-privacy tort. In one case, a woman even recovered

Michael Jordan’s name is one of the most recognizable

in all of sports. Jordan has filed several lawsuits

against advertisers who have used his name without

permission in connection with the promotion of their

products. For instance, he sued Avon for $100 million

in connection with a Father’s Day promotion that

used his identity. Avon and Jordan settled that case.

More recently, Jordan sued two Chicago-area grocery

stores for using his name in order to attract customers

to their stores. Sports and entertainment stars

especially often sue businesses that use their identities

without permission.

In general, the law considers a right to privacy

as “a right to be left alone.” But notice how similar a

right to privacy is to the property right. Privacy, like

property, is a right to exclude others from interfering

with something that is privately proper to someone.

Would it have been simpler if the law had developed

by saying that people have property in their identities?

Why do you think the law didn’t develop this way?

Privacy concerns arose as new technologies like

cameras and recorders made it easy to peer into the

lives of others. The same concerns continue today

with the Internet and computers. Legislatures have

passed a variety of laws concerning privacy. As with

the common law causes of action mentioned in this

section of the text, some of the new privacy acts

and statutes don’t even mention the word “privacy.”

Chapter 18 on consumer protection covers some

of the new privacy laws. In general, concern about

various privacy issues illustrate how law develops to

meet changing needs in society.

>> sidebar 10.2

Privacy, Michael Jordan, and Society

294 PART 3 Legal Foundations for Business

damages against a photographer who entered her sickroom and snapped a

picture of her. Employers who enter their employees’ homes without permission

have also been sued successfully for invasions of privacy. If the invasion

of privacy continues, it may be enjoined by the court. Jacqueline Kennedy

Onassis sought and obtained an injunction that forbade a certain photographer

from getting too close to her and her children. Under this tort, the invasion

of physical solitude must be highly objectionable to a reasonable person.

The third invasion of personal interest that gives rise to the invasionof-

privacy tort is the defendant’s public disclosure of highly objectionable,

private information about the plaintiff. A showing of such facts can be the

basis for a cause of action, even if the information is true. Thus, publishing in

a newspaper that the plaintiff does not pay his or her debts has been ruled