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Chapter 4: Torts and Cyber Torts

I.

Torts: def.: a wrongful act (other than a breach of contract) that results in harm or injury
to another and leads to civil liability
Business torts: wrongful interference with anothers business rights and relationships
o Unfair competition, wrongfully interfering with the business relations of others
Cyber tort: a tort committed in cyberspace

The Basis of Tort Law

Two notions serve as basis: wrongs and compensation


Designed to compensate those who have suffered a loss or injury due to another persons
wrongful act
One person or group brings a personal suit against another person or group to obtain
compensation (monetary damages) or other relief for the harm suffered

A.

To provide remedies for the invasion of various protected interests


Remedies for acts that cause physical injury or interfere with physical freedom and
security
o Protecting real and personal property, destruction or damage of property, personal
privacy, family relations, reputation, dignity

B.

The Purpose of Tort Law

Damages Available in Tort Actions

Compensate injured party for damage suffered


1.

Compensatory Damages

Compensatory damages: a monetary award equivalent to the actual value of injuries or


damage suffered by the aggrieved party
o To make the plaintiffs whole and put them in the same position that they would
have been
Broken down into special damages and general damages.
Special damages compensate the plaintiff for quantifiable monetary losses
o Medical expenses, lost wages
General damages compensate individuals (not companies) for the nonmonetary aspects of
harm suffered
o Pain and suffering, loss of companionship

2.

Punitive damages: monetary damages that may be awarded to a plaintiff to punish the
defendant and deter similar conduct in the future
o Only when the defendants conduct was particularly bad or unacceptable
Damages usually in intentional tort actions and rarely in negligence suits
Can be awarded in gross negligence suits, defined as intentional failure to perform a
manifest duty n reckless disregard for the consequences of such a failure to life and
property of another
Courts exercise great restraint because punitive damages are subject to the imitations of
imposed by due process
o Excessive award furthers nothing legitimate and violates due process
o Appellate court will then reduce the award

C.

II.

Tort Reform

Critics say torts encourages too many trivial and unfounded lawsuits, clogging court
systems
o Awards are excessive and have nothing to do with the lawsuit while imposing
society with tort tax
Whats wrong with it and how to stop, reduce it PG 97

D.

Punitive Damages

Classifications of Torts

Intentional and unintentional torts

Intentional Torts against Persons

Intentional tort: a wrongful act knowingly committed


Tortfeasor: one who commits a tort
An evil or harmful motive is required for a tort
o The person committing the act may even have a beneficial motive for committing
what turns out to be a tortious act
Intent means only that the actor intended the consequences of his or her act or knew with
substantial certainty that certain consequences would result from the act
o Doesnt have to be harm

A.

Assault and Battery

Assault: any word or action intended to make another person fearful of immediate
physical harm a reasonable believable threat
o Committed even if no contact was made towards plaintiff

Battery: unexcused, harmful or offensive, physical contact with another that is


intentionally performed
o Physical injury need not occur
o Can involve any part of the body or anything attached to it
o Also as a force set in motion by the defendant throwing of rock
Whether act is offensive or not is determined by the reasonable standard
Plaintiff can compensate for physical as well as emotional harm
Defenses: a reason offered and alleged by a defendant in an action or lawsuit as to why
the plaintiff should not recover or establish what she or he seeks

B.

False imprisonment is the intentional confinement or restraint of another persons


activities without justification
o Interferes with the freedom to move without restraint
o Accomplished through physical barriers or restraint or threats of force
**Moral pressure or threats of future harm do not constitute false imprisonment
Suspected shoplifter give suits business owner can only use reasonable force
o Reasonable manner in reasonable time

C.

False Imprisonment

Intentional Infliction of Emotional Distress

This can be defined as an extreme and outrageous act, intentionally committed, that
results in severe emotional distress to another
Actionable: capable of serving as the basis of a lawsuit. An actionable claim can be
pursued in a lawsuit or other court action
o Has to be extreme and outrageous
1.

Courts war of emotional distress suits


o Only due it in true outrageous cases
Repeated annoyances, like stalking, coupled with threats are sufficient
Acts that cause indignity or annoyance alone do not work
2.

Outrageous Conduct

Limited by the First Amendment

When outrageous conduct consists of speech about a public figure, freedom of speech
limits emotional distress

D.

Defamation

Courts must balance free speech against other strong social interests, like preventing
attacks on reputation
Defamation: anything published or publicly spoken that causes injury to anothers good
name, reputation, or character
Duty to refrain from making false, defamatory statements of fact about others
Breaching this duty in writing is libel
Libel: defamation in writing or another form having the quality of permanence (such as
digital recording)
Slander: defamation in oral form
Also about false statement of fact about a persons product, business
1.

Issue whether statement was of fact or opinion


If of opinion normally are not actionable because protected by first amendment
2.

Damages for Libel

Once defendants liability for libel is established general damages are presumed as a
matter of law
o Compensate for nonspecific harm
o Plaintiff does not need to prove harm
4.

The Publication Requirement

Basis of tort of defamation is the publication of a statement or statements that hold an


individual up to contempt, ridicule or hatred
Publication means that the statements are communicated to persons other than the
defamed party
o Dictated letter to secretary but not if privileged
o If a third party hears something by chance it counts
o Also statements made via the internet
3.

Statement of Fact Requirement

Damages for Slander

The plaintiff must prove special damages to establish the defendants liability
o It actually caused economic or monetary loss
If cannot be proved the lawsuit cant continue
Slander per se dont need proof
o Person has loathsome disease
o Committed improprieties during business, profession or trade
o Committed or imprisoned for serious crime
o Is unchaste or engaged in serious sexual misconduct

5.

Defenses against Defamation

Truth is an absolute defense


o No tort has been committed if statement is true can be proven true
If the statement is privileged or concerns a public figure

a)

Privilege: a special right, advantage, or immunity granted to a person or a class of


persons, such as a judges absolute privilege to avoid liability for defamation over
statements made in the courtroom during a trial
o Absolute privilege judicial proceedings and certain government ones
o Qualified or conditional privilege statements made in good faith and publication
is limited
b)

Invasion to the Right to Privacy and Appropriation

Tort law safeguards privacy rights through torts of invasion of privacy and appropriation
1.

Invasion of Privacy
a)

False Light

Publication of information that places a person in a false light


c)

Intrusion into an Individuals Affairs or Seclusion

Invading someones home or illegally searching through their things is an invasion


o Window peeping wiretap
b)

Public Figures

They are considered fair game


False and defamatory statements made in press dont constitute as defamation as long as
there is no actual malice
Actual malice: the deliberate intent to cause harm that exists when a person makes a
statement with either knowledge of its falsity or reckless disregard of the truth.

E.

Privileged Communications

Public Disclosures of Private Facts

Person publicly discloses private facts about an individual that an ordinary person would
find objectionable or embarrassing

d)

Using a persons name, picture, or other likeness for commercial purposes without
permission

2.

Fraudulent Misrepresentation

Misrepresentation leads another to believe in a condition that is different from the one
that exists
o Accomplished through a false or incorrect statement
o Some people do this unaware
Fraudulent Misrepresentation: any Misrepresentation, either by misstatement or by
omission of a material fact, knowingly made with the intention of deceiving another and
on which a reasonable person would and does rely to his or her detriment
Intentional when:
o Misrepresentation of fact is said with knowledge of falseness or disregard for
truth
o Intent to induce another to rely on Misrepresentation
o Justifiable reliance by deceived party
o Damage suffered as result of reliance
o Casual connection between Misrepresentation and injury suffered
Fraud to occur it has to be more than puffery
Puffery: a salespersons often exaggerated claims concerning the quality of property
offered for sale. Such claims involve opinions rather than facts and are not legally
binding promises or warranties
Fraud the person needs to represent as a fact something they know is not true
1.

Appropriation

Appropriation: in tort law, the use by one person of another persons name, likeness, or
other identifying characteristic without permission and for the benefit of the user
o Some courts say an animated character in a video or video game are not enough
similarities

F.

Appropriation of Identity

Statements of fact versus Opinion

Tort of Misrepresentation or fraud occurs only when there is reliance on a statement of


fact
Sometimes on statements of opinion if the individual giving the statement has superior
knowledge of subject matter

2.

Tort can arise from Misrepresentations that are made negligently rather than intentionally
Difference is knowledge of falsity
Negligent Misrepresentation requires only that the person have a reasonable basis for
believing its truthfulness
o Liability for this happens only when there was a duty to the plaintiff to produce
correct information
- Attorneys and accountants

G.

Abusive or Frivolous Litigation

People have a right not to be sued without legally just and proper reason therefore it
protects individuals from the misuse of litigation
Abusive litigation =
o If person begins a lawsuit out of malice and without probable cause, and end up
losing the suit he or she can be sued for malicious prosecution
- Then the new plaintiff now has to prove injury beyond the cost of
litigation such as lost profits
o Abuse of process can apply to any person using a legal process against another in
an improper manner or to accomplish a purpose for which it was not designed
Key difference between these two torts is level of proof required to
succeed

H.

Wrongful Interference

Wrongful Interference with a contractual relationship and Wrongful Interference with a


business relationship
1.

Wrongful Interference with a Contractual Relationship

1) a valid, enforceable contract must exist between two parties


2) a third party must know that this contract exists
3) third party must intentionally induce a party to breach contract
o Competitor draws away key employee
- Recover damages has to prove competitor knew of contract and induced
breach
2.

Negligent Misrepresentation

Wrongful Interference with a Business Relationship

Businesspersons are prohibited from unreasonably interfering with anothers business in


their attempts to gain a share of the market (customers)
o Difference in Competitive methods and predatory behavior actions undertaken
with the intention of unlawfully driving competitors completely out of market

Attempting to attract customers in general is a legitimate business practice whereas


specifically targeting the customers of a competitor is more likely to be predatory
3.

III.

A person can avoid liability for the tort of Wrongful Interference with a contractual or
business relationship by showing that the interference was justified or permissible
Courts usually allow the driving away of customers as spirit of competition

Intentional Torts against Property


Wrongful actions that interfere with individuals legally recognized rights with regard to
their personal property and land
Real property is land and things permanently attached
Personal property is movable things

A.

Trespass to Land

Trespass to land: entry onto, or below the surface of land owned by another without the
owners permission or legal authorization
Actual harm to the land is not essential
Walking or driving in someone elses land, shooting a gun over the land, throwing rocks
at the buildings on the land,
1.

Trespass Criteria, Rights, and Duties

Real property owner has to establish that the person is a trespasser


o Posted trespass signs establishes as a trespasser a person who ignores these signs
o Any person that enters your property to commit an illegal act
o A guest in your home that you have asked to leave
Common law trespasser liable to damage to the property and owner is not liable if
trespasser is hurt
Reasonable duty of care rule notice that there is a dog on premises
Attractive nuisance doctrine children do not know risk if there is something that attracts
them on the property like a swimming pool
Trespassers removed from premises with reasonable force
2.

Defenses to Wrongful Interference

Defenses against Trespass to Land

To show that the trespass was warranted to assist someone in danger


A licensee is one who is invited or allowed into the property of another for the licensee
benefit read an electric meter

o The licenses are revocable by property of owner

B.

Trespass to personal property: wrongfully taking or harming he personal property of


another or otherwise interfering with the lawful owners possession of personal property
o Harm means destruction as well as anything that diminishes value condition or
quality
o Intentional meddling with a possessory interest including barring an owners
access to personal property
Defense is to show trespass was warranted

C.

IV.

Conversion

Conversion: wrongfully taking or retaining possession of an individuals personal


property and placing it in the service of another
o Depriving owner of their property without notice or just cause
When conversion occurs so does usually trespass to personal property because taking the
item was the trespass and the keeping it was conversion
Civil side to theft
Mistakenly thinking the item was yours may still be conversion someone who buys
stolen goods even if they didnt know may still be liable
Good defense is that the purported owner does not actually own the item

D.

Trespass to Personal Property

Disparagement of Property

Disparagement of Property: an economically injurious falsehood about anothers product


or property
Slander of quality: (trade libel) the publication of false information about anothers
product alleging that it is not what its seller claims
o Plaintiff must prove that publication caused a third party to not deal with the
plaintiff and due to this sustained economic damages (lost profit)
o Can also be defamation
slander of title: the publication of a statement that denies or casts doubt on anothers
legal ownership of any property causing financial loss to that propertys owner
o Knowingly publishes an untrue statement about property to get a third party to
refrain from dealing with that propertys owner

Unintentional Torts (Negligence)


Negligence: the failure to exercise the standard of care that a reasonable person would
exercise in similar circumstances
o Failure to live up to duty of care
o Tortfeasor neither wishes nor believes the consequences will occur

o Merely creates a risk


o Risk must be foreseeable
Intentional torts constitute negligence if intent is missing
Plaintiff must prove:
o Duty, breach, causation, and damages

A.

The duty of care and its breach

Duty of care: the duty of all persons, as established by tort law, to exercise a reasonable
amount of care in their dealings with others. Failure to exercise due care, which is
normally determined by the reasonable person standard, constitutes tort of negligence
o May be an act (careless or carefully performed) or an omission
Courts consider nature of the act, the manner performed, and nature of injury
1.
The Reasonable person standard
Reasonable person standard: the standard of behavior expected of a hypothetical
reasonable person. It is the standard against which negligence is measured and that must
be observed to avoid liability of negligence
If duty of care breached courts ask how reasonable person would have behaved
o This is objective
o Societys judgement of how people should act
- Careful conscientious even tempered and honest
Degree of care varies depending on persons profession or relationship with plaintiff
2.

The Duty of landowners

Landowners have to exercise reasonable care to protect people from harm when coming
onto their property
a)

Business invitee: a person such as a customer or a client who is invited onto business
premises by the owner of those premises for business purposes
Duty to discover and remove any hidden dangers that might injure a customer or other
invitee
b)

Duty to warn business invitees of risks

Obvious risks are an exception

Too obvious and the owner doesnt have to warn


o Doesnt excuse an owner from protecting invitees
3.

Duty of professionals

Professionals are required to have certain knowledge so a higher standard is given to


them in regards to care
Law takes their training and expertise into account
o Accountant judged by reasonable accountant standard
Malpractice: professional misconduct or lack of the requisite degree of skill as a
professional. Negligence the failure to exercise due care on the part of a professional
such as a physician is commonly referred to as malpractice

B.

Causation

Person fails in a duty of care and someone suffers an injury, the wrongful act must have
caused the harm for the act to be considered a tort
1.

Courts ask two questions

1. Is there causation in fact? Causation in fact: an act or omission without which an event
would not have occurred
a. But for test
2. Was the act the proximate cause of the injury? Proximate cause: legal cause. It exists
when the connection between an act and an injury is strong enough to justify imposing
liability
a. Courts use it to limit the scope of the defendants liability to a subset of the total
number of potential plaintiffs that might have been harmed by the defendant
actions
Both have to affirmative cant be one and not another
2.

Questions of proximate cause are linked to concept of foreseeability because it would be


unfair to impose liability on a defendant unless defendants actions created a foreseeable
injury

C.

The injury requirement and damages

For a tort to be committed the plaintiff must have suffered a legally recognizable injury
Recover damages plaintiff must have suffered loss harm wrong or invasion
No harm means nothing to compensate which means no tort
Compensatory damages are the norm in negligence cases

D.

Foreseeability

Defenses to negligence

By asserting the plaintiffs failed to prove the existence of one or more of the required
elements of negligence

Three basic affirmative defenses:


1.

Assumption of risk: a defense to negligence. A plaintiff may not recover for injuries or
damage suffered from risks he or she knows of and voluntarily assumed
o Plaintiff voluntarily entered the situation knowing the risks
Risk assumed by express agreement or knowledge of the risk and subsequent conduct
2.

All individuals are expected to exercise a reasonable degree of care in looking out for
themselves
Contributory negligence: a rule in tort law, used in only a few states, that completely bars
the plaintiff from recovering any damages if the damage suffered is partly the plaintiffs
own fault
o No matter how insignificant plaintiffs negligence they didnt get any damages
Comparative negligence: a rule in tort law, used in the majority of states, that reduces the
plaintiffs recovery in proportion to the plaintiffs degree of fault, rather than barring
recovery completely
o Most have 50 % rule more than that of plaintiff they get nothing

Special negligence doctrines and statutes


1.

Res Ipsa Loquitur

In lawsuits the plaintiff has the burden of proof to prove the defendant was negligent
Res ipsa loquitur: a doctrine under which negligence may be inferred simply because an
event occurred, if it is the type of event that would not occur in the absence of
negligence. Literally, the term means the facts speak for themselves
o The burden of proof here lies on the defendant to prove they were not negligent
Doctrine used if injury is usually seen with negligence
2.

Superseding cause

Unforeseeable intervening event may break the connection between a wrongful act and
an injury to another
Event acts as a superseding cause it relieves a defendant from liability for injuries
caused by an intervening event
3.
Contributory and Comparative negligence

E.

Assumption of Risk

Negligence per se

Negligence per se: an action or failure to act in violation of a statutory requirement


o Causes injury the statute was intended to prevent

Statute must set out what conduct is expected, when and where it is expected, and of
whom.
o Standard of conduct described is what the defendant owes to the plaintiff and a
violation of statute is breach of that duty
Operation of motor vehicle inattentive driving
3.

A person who is trying to avoid harm by an individual ends up causing harm to another
individual
The original wrongdoer is liable to anyone who is injured, all the parties
Extends the same protection to a person who is trying to rescue another from harm the
original wrongdoer is liable as well for this person
o Whether rescuers injure themselves, the person rescued, or even a stranger, the
original wrongdoer is still liable
4.

V.

Good Samaritan statutes

Good Samaritan statutes: a state statute stipulating that persons who provide emergency
services to, o rescue, someone in peril cannot be sued for negligence unless they act
recklessly, thereby causing further harm
5.

Danger invites rescue Doctrine

Dram Shop Acts:

Dram shop acts: a state statute that imposes liability on the owners of bars and taverns, as
well as those who serve alcoholic drinks to the public, for injuries resulting from
accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks
contributed to the intoxication.

Strict Liability

Strict liability: liability regardless of fault, which is imposed on those engaged in


abnormally dangerous activities, on persons who keep dangerous animals, and on
manufacturers or sellers that introduce into commerce defective and unreasonably
dangerous goods.

A.

Abnormally Dangerous Activities

Strict liability for damages proximately caused by an abnormally dangerous or


exceptionable activity
The person who is engaged in activity and benefits from it is responsible for paying for
injuries

o No fault but there is still responsibility

B.

Other applications of strict liability

People who keep wild animals


Also domesticated animals if owner knew they were dangerous
Product liability liabilities of manufacturers and sellers for harmful or defective
products

VI. Cyber Torts

One of the most common is online defamation

A.

Identifying the author of online defamation

Online forums means the people who post can remain anonymous
An internet service provider (ISP) can disclose personal info about a customer only when
ordered to by a court

The rest is in the book!!! PG 119-122