Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics 5 th Edition by Henry R. Cheeseman Slides developed by Les Wiletzky Wiletzky and Associates, Puyallup, WA Chapter 4 Intentional Torts and Negligence Chapter 4 Intentional Torts and Negligence

4 - 2Copyright © 2004 by Prentice-Hall. All rights reserved. Introduction  Tort is the French word for a “wrong.”  Tort law protects a variety of injuries and provides remedies for them.

4 - 3Copyright © 2004 by Prentice-Hall. All rights reserved. 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 - 4Copyright © 2004 by Prentice-Hall. All rights reserved. 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 - 5Copyright © 2004 by Prentice-Hall. All rights reserved. Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

4 - 6Copyright © 2004 by Prentice-Hall. All rights reserved. Categories of Torts Intentional Torts Strict Liability Torts Unintentional Torts (Negligence)

4 - 7Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts  A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries.  There are two categories of intentional torts: Intentional torts against persons Intentional torts against persons Intentional torts against property Intentional torts against property

4 - 8Copyright © 2004 by Prentice-Hall. All rights reserved. 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 - 9Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Assault The threat of immediate harm or offensive contact; or The threat of immediate harm or offensive contact; or Any action that arouses reasonable apprehension of imminent harm. Any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary. Actual physical contact is unnecessary.

4 - 10Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Battery Unauthorized and harmful or offensive physical contact with another person. Unauthorized and harmful or offensive physical contact with another person. Actual physical contact is unnecessary. Actual physical contact is unnecessary.

4 - 11Copyright © 2004 by Prentice-Hall. All rights reserved. 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. The intentional confinement or restraint of another person without authority or justification and without that person’s consent.

4 - 12Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  False Imprisonment (continued) Merchant Protection Statutes – allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if: Merchant Protection Statutes – allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if:  There are reasonable grounds for the suspicion,  Suspects are detained for only a reasonable time, and  Investigations are conducted in a reasonable manner.

4 - 13Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Defamation of Character False statement(s) made by one person about another. The plaintiff must prove that: 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.

4 - 14Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Defamation of Character (continued) Slander – oral defamation of character. Slander – oral defamation of character. Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc. Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc.

4 - 15Copyright © 2004 by Prentice-Hall. All rights reserved. Landmark Law  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.

4 - 16Copyright © 2004 by Prentice-Hall. All rights reserved. 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. An attempt by another person to appropriate a living person’s name or identity for commercial purposes. Also known as the tort of appropriation. Also known as the tort of appropriation.

4 - 17Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Invasion of the Right to Privacy A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity. A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity.

4 - 18Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Persons (continued)  Intentional Infliction of Emotional Distress A 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. A 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. Also known as the tort of outrage.

4 - 19Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Property  There are two general categories of property: Real Property – consists of land and anything permanently attached to that land. Real Property – consists of land and anything permanently attached to that land. Personal Property – consist of things that are movable. Personal Property – consist of things that are movable.  Automobiles  Books  Clothes  Pets

4 - 20Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Property (continued)  Trespass to Land A tort that interferes with an owner’s right to exclusive possession of land. A tort that interferes with an owner’s right to exclusive possession of land.

4 - 21Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Property (continued)  Trespass to Personal Property A tort that occurs whenever one person injures another person’s personal property; or A tort that occurs whenever one person injures another person’s personal property; or Interferes with that person’s enjoyment of his or her personal property. Interferes with that person’s enjoyment of his or her personal property.

4 - 22Copyright © 2004 by Prentice-Hall. All rights reserved. Intentional Torts Against Property (continued)  Conversion of Personal Property A tort that deprives a true owner of the use and enjoyment of his or her personal property by: 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.

4 - 23Copyright © 2004 by Prentice-Hall. All rights reserved. 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. A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

4 - 24Copyright © 2004 by Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (continued)  Negligence The omission to do something which a reasonable person would do; or The omission to do something which a reasonable person would do; or Doing something which a prudent and reasonable man would not do. Doing something which a prudent and reasonable man would not do.

4 - 25Copyright © 2004 by Prentice-Hall. All rights reserved. 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

4 - 26Copyright © 2004 by Prentice-Hall. All rights reserved. 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. The courts apply a reasonable person standard. Defendants with a particular expertise or competence are measured against a reasonable professional standard. Defendants with a particular expertise or competence are measured against a reasonable professional standard.

4 - 27Copyright © 2004 by Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (continued)  Breach of Duty – a failure to exercise care or to act as a reasonable person would act.  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. Effect on the plaintiff’s life or profession. Effect on the plaintiff’s life or profession.

4 - 28Copyright © 2004 by Prentice-Hall. All rights reserved. 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) Causation in Fact (actual cause) Proximate Cause (legal cause) Proximate Cause (legal cause)

4 - 29Copyright © 2004 by Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (continued)  Causation in Fact (actual cause) The actual cause of negligence. The actual cause of negligence. A person who commits a negligent act is not liable unless causation in fact can be proven. A person who commits a negligent act is not liable unless causation in fact can be proven.

4 - 30Copyright © 2004 by Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (continued)  Proximate Cause (legal cause) Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. 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. 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.

4 - 31Copyright © 2004 by Prentice-Hall. All rights reserved. Landmark Law  The doctrine of proximate cause was defined in the Palsgraf v. Long Island Railroad Company case.

4 - 32Copyright © 2004 by Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (continued)  Negligent Infliction of Emotional Distress A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct. A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct.  Professional Malpractice The liability of a professional who breaches his or her duty of ordinary care. The liability of a professional who breaches his or her duty of ordinary care.

4 - 33Copyright © 2004 by Prentice-Hall. All rights reserved. Special Negligence Doctrines  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

4 - 34Copyright © 2004 by Prentice-Hall. All rights reserved. Superseding or Intervening Event Assumption of the Risk Contributory Negligence Comparative Negligence DEFENSES AGAINST NEGLIGENCE

4 - 35Copyright © 2004 by Prentice-Hall. All rights reserved. Business Torts  Entering certain businesses and professions without a license  Unfair competition Predatory practices Predatory practices Palming off Palming off

4 - 36Copyright © 2004 by Prentice-Hall. All rights reserved. Business Torts (continued)  Disparagement Product disparagement Product disparagement Trade libel Trade libel Slander of title Slander of title  False advertising  Intentional misrepresentation (fraud)

4 - 37Copyright © 2004 by Prentice-Hall. All rights reserved. Business Torts (continued) The elements required to find fraud are: 1. The wrongdoer made a false representation of material fact. 2. The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party. 3. The innocent party justifiably relied on the misrepresentation. 4. The innocent party was injured.

4 - 38Copyright © 2004 by Prentice-Hall. All rights reserved. Business Torts (continued)  Intentional interference with contractual relations  Breach of the implied covenant of good faith and fair dealing

4 - 39Copyright © 2004 by Prentice-Hall. All rights reserved. Business Torts (continued)  Punitive damages Are not recoverable for breach of contract Are not recoverable for breach of contract Recoverable for certain tortious conduct Recoverable for certain tortious conduct  Fraud  Intentional conduct  Other egregious conduct

4 - 40Copyright © 2004 by Prentice-Hall. All rights reserved. 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.

4 - 41Copyright © 2004 by Prentice-Hall. All rights reserved. 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.