Chapter 12: Torts and Cyber Torts

Introduction An injury can involve both civil (tort) and criminal liability. In a civil action, the plaintiff hires her own lawyer. In a criminal action, the state prosecutes the injury to the community.

§1: Basis of Tort Law Doing business today involves risks, both legal and financial. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. There are intentional and unintentional (negligence) torts.

§2: Intentional Torts Against Persons The 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.

Types of Intentional Torts Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts.

Assault ASSAULT is an intentional, unexcused act that: Creates a reasonable apprehension of fear, or Immediate harmful or offensive contact. NO CONTACT NECESSARY.

Battery BATTERY is the completion of the Assault: Intentional or Unexcused. Harmful, Offensive or Unwelcome. Physical Contact.

Defenses to Assault & Battery Consent. Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Property.

False Imprisonment False Imprisonment is the intentional: Confinement or restraint. Of another person’s activities. Without justification. Merchants may reasonably detain customers if there is probable cause.

Defamation Right to free speech is constrained by duty we owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel.

Defamation Publication requires communication to a 3rd party. Gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. Publication requires communication to a 3rd party.

Damages for Libel General Damages are presumed; Plaintiff does not have to show actual injury. General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

Defenses to Defamation Truth is generally an absolute defense. Privileged (or Immune) Speech. Absolute: judicial & legislative proceedings. Qualified: Employee Evaluations.

Public Figures Public figures exercise substantial governmental power or are otherwise in the public limelight. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.

Invasion of Privacy Every 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. Case 12.1 Anderson v. Mergenhagen (2007).

Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

Misrepresentation Fraudulent Misrepresentation 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. Is it Fact or Opinion? Negligent Misrepresentation. Case 12.2 McClain v. Octagon Plaza, LLC (2008).

§3: Business Torts Wrongful Interference: Tort that interferes with a contractual relationship. Occurs when: Defendant knows about contract between A and B; Intentionally induces either A or B to breach the contract; and Defendant benefits from breach.

Business Torts Wrongful Interference with a Business Relationship occurs when: Established business relationship; Tortfeasor, using predatory methods, causes relationship to end; and Plaintiff suffers damages. Defenses: action(s) were justified, permissible, or bona fide competitive behavior.

§4: Intentional Torts Against Property Trespass 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.

Trespass to Personal Property Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.

Torts Against Property Conversion: civil side of criminal theft. Disparagement of Property. Slander of Quality (trade libel). Slander of Title (ownership).

§5: Negligence Tortfeasor does not intend the consequences of the act or believes they will occur. Actor’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.

Duty of Care and Its Breach Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. Courts use reasonable person standard (jury or judge) to determine whether duty exists.

Duty of Care: Foreseeability The consequences of an act are legally foreseeable if they are consequences that typically occur in the course of event. Whether an act is foreseeable is generally considered a matter of fact determined by the reasonable person standard (jury).

Duty of Landowners Landowners have a duty to exercise reasonable care to business invitees. In some jurisdictions the duty extends to trespassers as well. Guard against foreseeable risks (owner knew or should have known).

Duty of Professionals Duty of care varies, based on the Defendant’s occupation, relationship to Plaintiff. Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.

Injury Requirement and Damages To recover, Plaintiff must show legally recognizable injury. Compensatory Damages are designed to reimburse Plaintiff for actual losses. Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.

Causation 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. Case 12.3 Palsgraf v. Long Island RR Co. (1928).

Causation in Fact Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway? Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

Proximate Causation An 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. Foreseeability of injury is an important factor. Think of proximate cause as an unbroken chain of events.

Assumption of Risk Plaintiff has adequate notice and understanding of the risks associated with an activity. He knowingly and willingly engages in the act anyway. Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.

Superceding Cause A 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. If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.

Contributory Negligence Under common law, if Plaintiff if any way caused his injury, he was barred from recovery. Most states have replaced contributory negligence with the doctrine of comparative negligence. The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.

Comparative Negligence In 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. However, if Plaintiff is more than 50% liable, she recovers nothing.

§7: Special Negligence Doctrines and Statutes Res Ipsa Loquiter. Negligence 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.

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

§ 8: Cyber Torts Defamation Online. Spam. Liability of ISP’s. Case 12.5 Fair Housing Council of San Fernando Valley v. Roommate.com, LLC (2007). Piercing the Veil of Anonymity. Spam. Trespass to Personal Property. Statutory Regulation of Spam. Effect of the CAN-SPAM Act.