Copyright © 2004 by Prentice-Hall. All rights reserved. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Chapter 5 Torts and Cyber Privacy Chapter 5 Torts and Cyber Privacy

4 - 2 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Introduction Tort is the French word for a “wrong.” Tort law protects a variety of injuries and provides remedies for them.

4 - 3 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Introduction (continued) Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the party’s property.

4 - 4 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Introduction (continued) Tort damages are monetary damages that are sought from the offending party. They are intended to compensate the injured party for the injury suffered.

4 - 5 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

4 - 6 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Categories of Torts Intentional Torts Strict Liability Torts Unintentional Torts (Negligence)

4 - 7 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons The law protects a person from unauthorized touching, restraint, or other contact. The law also protects a person’s reputation and privacy. Violations of these rights are actionable as torts.

4 - 8 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Assault –The threat of immediate harm or offensive contact; or –Any action that arouses reasonable apprehension of imminent harm. –Actual physical contact is unnecessary.

4 - 9 © 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Battery –Unauthorized and harmful or offensive physical contact with another person. –Actual physical contact is unnecessary between victim and perpetrator. –May accompany assault.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Doctrine of Transferred Intent –Party A intends to harm party B, but actually injures Party C. –Law transfers perpetrator’s intent from target to actual victim. –Victim can then sue perpetrator.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) False Imprisonment –The intentional confinement or restraint of another person without authority or justification and without that person’s consent. Physical force Barriers Threats of physical violence False arrest

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) False Imprisonment (continued) –Threat of future harm or moral pressure not enough –Must be complete imprisonment Locking only one of several doors not sufficient

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) False Imprisonment (continued) – Merchant Protection Statutes- merchants may stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment. There are reasonable grounds for the suspicion, Suspects are detained for only a reasonable time, and Investigations are conducted in a reasonable manner.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Misappropriation of the Right to Publicity –An attempt by another person to appropriate a living person’s name or identity for commercial purposes. –Also known as the tort of appropriation.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Invasion of the Right to Privacy –Tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity. –Placing one in a “false light”

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Defamation of Character –False statement(s) made by one person about another. The plaintiff must prove that: The defendant made an an untrue statement of fact about the plaintiff; and The statement was intentionally or accidentally published to a third party.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Defamation of Character (continued) – Slander – oral defamation of character. – Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Defamation of Character (continued) In New York Times v. Sullivan, the U.S. Supreme Court held that public officials cannot recover for defamation unless they can prove that the defendant acted with actual malice.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Disparagement –Untrue statement made about products, services, property, or reputation of a business –Also called product disparagement, trade libel, or slander of title

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Intentional Misrepresentation (Fraud) –Wrongdoer deceives another person out of money, property, or something of value. –Injured party can recover damages.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Intentional Misrepresentation (Fraud) –Elements: Wrongdoer made a false representation Wrongdoer knew representation was false and intended to deceive other party Party must justifiably rely on misrepresentation Must have actual injury

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Intentional Infliction of Emotional Distress –Tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. –Also known as the tort of outrage.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Persons (continued) Malicious Prosecution –Losing plaintiffs that have brought a frivolous lawsuit may be sued by the prevailing defendant –Civil action for damages –Must have suffered injury

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Property There are two general categories of property: – Real Property land and anything permanently attached to that land. – Personal Property things that are movable. –Automobiles –Books –Clothes –Pets

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Property (continued) Trespass to Land –A tort that interferes with an owner’s right to exclusive possession of land. –Unauthorized use of another person’s property

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Property (continued) Trespass to and Conversion of Personal Property –Tort of trespass occurs: Whenever one person injures another person’s personal property When one interferes with a person’s enjoyment of his or her personal property.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Intentional Torts Against Property (continued) Trespass to and Conversion of Personal Property –A tort that deprives a true owner of the use and enjoyment of his or her personal property by: Taking over such property; and Exercising ownership rights over it.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) Unintentional Tort –A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Negligence –Negligence is the omission to do something which a reasonable man would do, or something which a prudent and reasonable man would not do.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) To be successful in a negligence lawsuit, the plaintiff must prove that: 1. The defendant owed a duty of care to the plaintiff 2. The defendant breached the duty of care 3. The plaintiff suffered injury 4. The defendant’s negligent act caused the plaintiff’s injury

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Duty of Care –the obligation we all each other not to cause any unreasonable harm or risk of harm. –The courts apply a reasonable person standard. –Defendants with a particular expertise or competence are measured against a reasonable professional standard.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Breach of Duty – a failure to exercise care or to act as a reasonable person would act.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Causation – a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff’s injuries. – Causation in Fact (actual cause) – Proximate Cause (legal cause)

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Injury to Plaintiff –the plaintiff must suffer personal injury or damage to his or her property to recover monetary damages for the defendant’s negligence.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Unintentional Torts (Negligence) (continued) Actual Cause –Defendant’s negligent act must be causation in fact –The actual cause of negligence. –Must have cause-and effect relationship

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Proximate Cause –Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. –The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions. –General test is forseeability

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Professional Malpractice –The liability of a professional who breaches his or her duty of ordinary care. –Reasonable professional standard Medical malpractice Legal malpractice Accounting malpractice

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Negligent Infliction of Emotional Distress –A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct. –Some states require physical manifestation

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Negligence Per Se Res Ipsa Loquitur Good Samaritan Laws Dram Shop Acts Guest Statutes Fireman’s Rule Negligence Per Se Res Ipsa Loquitur Good Samaritan Laws Dram Shop Acts Guest Statutes Fireman’s Rule “Danger Invites Rescue” Doctrine Social Host Liability Liability of Landowners Liability of Common Carriers and Innkeepers “Danger Invites Rescue” Doctrine Social Host Liability Liability of Landowners Liability of Common Carriers and Innkeepers

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Negligence Per Se –Violation of a statute that proximately causes an injury –Plaintiff must be within class intended to be protected –Statute enacted to prevent the type of injury suffered

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Res Ipsa Loquitur –“The thing speaks for itself” –Defendant had exclusive control of situation that caused plaintiff’s injury –Injury would not have ordinarily occurred but for someone’s negligence

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Good Samaritan Laws –Protects medical professionals that stop and render emergency first aid –Relieves them from liability for ordinary negligence –No relief for gross negligence or intentional or reckless conduct –Laypersons not trained in CPR not covered

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Dram Shop Acts –Taverns and bartenders can be held civilly liable for injuries caused to or by patrons who were served too much alcohol.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Guest Statutes –Driver voluntarily gives ride to another –No compensation paid –Driver not held liable for injuries caused by driver’s ordinary negligence –Driver still liable for gross negligence

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Fireman’s Rule –Firefighters cannot sue negligent party for injuries incurred putting out fires –Applies to police and government workers –Specially trained to do their jobs –They have special medical and retirement programs paid for by public

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) “Danger Invites Rescue” Doctrine –Persons who are injured going to the rescue of another can sue the person who caused the dangerous situation

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Social Host Liability –Social host liable for injuries caused by guests who are served alcohol at a social function –injure themselves or another due to intoxication

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Liability of Landowners –Duty of ordinary care owed to invitees and licensees Invitees on premises for mutual benefit of both parties with consent Licensee on premises for own benefit, but with consent –Duty not to willfully or wantonly injure trespassers Person has no invitation or right to be on property

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Special Negligence Doctrines (continued) Liability of Common Carriers and Innkeepers –Duty of utmost care to passengers and guests

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Superseding or Intervening Event Assumption of the Risk Contributory Negligence Comparative Negligence DEFENSES AGAINST NEGLIGENCE

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Strict Liability Strict liability is liability without fault. A participant in a covered activity will be held liable for any injuries caused by the activity even if he or she was not negligent.

© 2006 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Strict Liability (continued) This doctrine holds that: 1. There are certain activities that can place the public at risk of injury even if reasonable care is taken; and 2. The public should have some means of compensation if such injury occurs.