Chapter 5 Torts and Cyber Torts 2004 West

§ 1: Basis of Tort Law üDoing business today involves risks, both legal and financial. üA tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. üThere are intentional and unintentional (negligence) torts. © 2004 West Legal Studies in Business A Division of Thomson Learning 2

§ 2: Intentional Torts Against Persons and Business Relationships üThe person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: § Tortfeasor intended the consequences of her act; or § She knew with substantial certainty that certain consequences would result. © 2004 West Legal Studies in Business A Division of Thomson Learning 3

Types of Intentional Torts üAssault and Battery. üFalse Imprisonment. üInfliction of Emotional Distress. üDefamation. üInvasion of Privacy. üBusiness Torts. © 2004 West Legal Studies in Business A Division of Thomson Learning 4

Assault and Battery üASSAULT is an intentional, unexcused act that: § Creates a reasonable apprehension or fear of, § Immediate harmful or offensive contact. § NO CONTACT NECESSARY. üBATTERY is the completion of the Assault: § Intentional or Unexcused. § Harmful, Offensive or Unwelcome. § Physical Contact. © 2004 West Legal Studies in Business A Division of Thomson Learning 5

Defenses to Assault & Battery üConsent. üSelf-Defense (reasonable force). üDefense of Others (reasonable force). üDefense of Property. © 2004 West Legal Studies in Business A Division of Thomson Learning 6

False Imprisonment üFalse Imprisonment is the intentional: § Confinement or restraint. § Of another person’s activities. § Without justification. üMerchants may reasonably detain customers if there is probable cause. © 2004 West Legal Studies in Business A Division of Thomson Learning 7

Intentional Infliction of Emotional Distress üAn intentional act that is: § Extreme and outrageous, that § Results in severe emotional distress in another. üMost courts require some physical symptom or illness. © 2004 West Legal Studies in Business A Division of Thomson Learning 8

Defamation üRight to free speech is constrained by duty we owe each other to refrain from making false statements. üOrally breaching this duty is slander; breaching it in print or media is libel. © 2004 West Legal Studies in Business A Division of Thomson Learning 9

Defamation ü Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. üPublication requires communication to a 3 rd party. © 2004 West Legal Studies in Business A Division of Thomson Learning 10

Damages for Libel üGeneral Damages are presumed; Plaintiff does not have to show actual injury. üGeneral damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress. © 2004 West Legal Studies in Business A Division of Thomson Learning 11

Damages for Slander üRule: Plaintiff must prove “special damages” (actual economic loss). üExceptions for Slander Per Se. No proof of damages is necessary: § § Loathsome disease, Business improprieties, Serious crime, Woman is non-chaste. © 2004 West Legal Studies in Business A Division of Thomson Learning 12

Defenses to Defamation üTruth is generally an absolute defense. üPrivileged (or Immune) Speech. § Absolute: judicial & legislative proceedings. § Qualified: Employee Evaluations. © 2004 West Legal Studies in Business A Division of Thomson Learning 13

Defamation-Public Figures üPublic figures exercise substantial governmental power or are otherwise in the public limelight. üTo prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth. © 2004 West Legal Studies in Business A Division of Thomson Learning 14

Invasion of Privacy üEvery person has a fundamental right to solitude freedom from public scrutiny. § Use of Person’s Name or Likeness. § Intrusion on Individual’s Affairs or Seclusion. § Publication of Information that Places a Person in False Light. § Public Disclosure of Private Facts. © 2004 West Legal Studies in Business A Division of Thomson Learning 15

Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent. © 2004 West Legal Studies in Business A Division of Thomson Learning 16

Fraudulent Misrepresentation üFraud is intentional deceit. Elements: § § § Misrepresentation of material fact; Intent to induce another to rely; Justifiable reliance by innocent party; Damages as a result of reliance; Causal connection. üFact vs. Opinion. © 2004 West Legal Studies in Business A Division of Thomson Learning 17

Wrongful Interference üTort that interferes with a contractual relationship. üOccurs when: § Defendant knows about contract between A and B; § Intentionally induces either A or B to breach the contract; and § Defendant benefits from breach. üCase 5. 1: Mathis v. Liu (2002). © 2004 West Legal Studies in Business A Division of Thomson Learning 18

Wrongful Interference üWith a Business Relationship occurs when: § Established business relationship; § Tortfeasor, using predatory methods, causes relationship to end; and § Plaintiff suffers damages. üBona fide competitive behavior is a defense to this tort. © 2004 West Legal Studies in Business A Division of Thomson Learning 19

§ 3: Intentional Torts to Property üTrespass to land occurs when a person, without permission: § Physically enters onto, above or below the surface of another’s land; or § Causes anything to enter onto the land; or § Remains, or permits anything to remain, on the land. © 2004 West Legal Studies in Business A Division of Thomson Learning 20

Intentional Torts to Personal Property üTrespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege. üDisparagement of Property. üSlander of Title or Quality. © 2004 West Legal Studies in Business A Division of Thomson Learning 21

§ 4: Negligence üTortfeasor does not intend the consequences of the act or believes they will occur. üActor’s conduct merely creates a foreseeable risk of injury. Analysis: § § Defendant owed Plaintiff a duty of care; Defendant breached that duty; Plaintiff suffered legal injury; Defendant’s breach caused the injury. © 2004 West Legal Studies in Business A Division of Thomson Learning 22

Duty of Care üDefendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. üCourts use reasonable person standard (jury) to determine whether duty exists. üDuty of Landowners to invitees. § Case 5. 2: Martin v. Wal-Mart Stores, Inc. (1999). © 2004 West Legal Studies in Business A Division of Thomson Learning 23

Duty of Care: Foreseeability üThe consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. üWhether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury). © 2004 West Legal Studies in Business A Division of Thomson Learning 24

Duty of Care üDuty of care varies, based on the Defendant’s occupation, relationship to Plaintiff. üProfessionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice. © 2004 West Legal Studies in Business A Division of Thomson Learning 25

Injury and Damages üTo recover, Plaintiff must show legally recognizable injury. üCompensatory Damages are designed to reimburse Plaintiff for actual losses. üPunitive Damages are designed to punish the tortfeasor and deter others from wrongdoing. © 2004 West Legal Studies in Business A Division of Thomson Learning 26

Causation ü Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. § Causation in Fact, and § Proximate Cause. üCase 5. 3: Palsgraf v. Long Island RR Co. (1928) © 2004 West Legal Studies in Business A Division of Thomson Learning 27

Causation in Fact üDid the injury occur because of the Defendant’s act, or would the injury have occurred anyway? üUsually determined by the “but for” test, i. e. , but for the Defendant’s act the injury would not have occurred. © 2004 West Legal Studies in Business A Division of Thomson Learning 28

Proximate Causation üAn act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. üForeseeability of injury is an important factor. üThink of proximate cause as an unbroken chain of events. © 2004 West Legal Studies in Business A Division of Thomson Learning 29

Defenses to Negligence üAssumption of Risk. üSuperceding Intervening Cause. üContributory or Comparative Negligence. ©

Assumption of Risk üPlaintiff has adequate notice and understanding of the risks associated with an activity. üHe knowingly and willingly engages in the act anyway. üPlaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood. üCase 5. 4: Crews v. Hollenbach (1999). © 2004 West Legal Studies in Business A Division of Thomson Learning 31

Superceding Cause üA unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability. üIf the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries. © 2004 West Legal Studies in Business A Division of Thomson Learning 32

Contributory Negligence üUnder common law, if Plaintiff in any way caused his injury, he was barred from recovery. üMost states have replaced contributory negligence with the doctrine of comparative negligence. üThe operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself. © 2004 West Legal Studies in Business A Division of Thomson Learning 33

Comparative Negligence üIn determining liability, the amount of damages a Plaintiff causes to herself are subtracted from the amount of damages suffered by the Plaintiff, and only the remainder is recoverable from the Defendant. üHowever, if Plaintiff is more than 50% liable, she recovers nothing. © 2004 West Legal Studies in Business A Division of Thomson Learning 34

Special Negligence Doctrines üRes Ipsa Loquiter. üNegligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff: § Statute sets out standard of care. § Plaintiff is member of class intended to be protected by statute. § Statute designed to prevent Plaintiff’s injury. © 2004 West Legal Studies in Business A Division of Thomson Learning 35

Special Negligence Statutes ü “Danger Invites Rescue” Doctrine. ü Good Samaritan Statutes. ü Dram

§ 5: Cyber Torts üDefamation Online. § Liability of ISP’s. § Piercing the Veil of Anonymity. üSpam. § Trespass to Personal Property. § Statutory Regulation of Spam. © 2004 West Legal Studies in Business A Division of Thomson Learning 37