 Doing business today involves risks, both legal and financial.  A tort is a civil injury designed to provide a remedy (damages) for injury to a protected interest.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

 Damages Available in Tort Actions.  Compensatory: reimburse plaintiff for actual losses.  Special: quantifiable losses, such as medical expenses, lost wages, and benefits.  General: non-monetary, such as pain and suffering, reputation. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

 Damages Available in Tort Actions.  Punitive: punish the wrongdoer.  Appropriate when defendant’s actions were particularly egregious (actions were intentional or grossly negligent).  Tort Reform. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

 Tortfeasor must “intend” to commit the act, which means:  He intended the consequences of his act; or  He knew with substantial certainty that certain consequences would result. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

 Assault and Battery.   False Imprisonment.   Infliction of Emotional Distress.   Defamation.   Invasion of Privacy.   Business Torts.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

 ASSAULT is an intentional, unexcused act that:  Creates a reasonable apprehension or fear of,  Immediate harmful or offensive contact.  NO CONTACT NECESSARY.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

 BATTERY is the completion of the Assault:  Intentional or Unexcused.  Harmful, Offensive or Unwelcome, Physical Contact.  Plaintiff may be compensated for physical and emotional harm. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

 Consent.  Self-Defense (reasonable force).  Defense of Others (reasonable force).  Defense of Property. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

 An intentional act that is:  Extreme and outrageous, that  Results in severe emotional distress in another.  Most courts require some physical symptom or illness. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

 Wrongfully hurting a person’s good reputation.  Law imposes duty to refrain from making false statements of fact about others.  Orally breaching this duty is slander; breaching it in print or media (and internet) is libel. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

 Published statement must be a fact.  Opinions are protected speech under the First Amendment, and not actionable. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

 Publication Requirement.  Basis 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 3 rd party. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

 Damages for Slander:  General Rule: Plaintiff must prove “special damages” (actual economic loss) to prevail for slander.  Exception: Slander Per Se. No proof of damages: loathsome disease, business improprieties, serious crime, or unchaste woman. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

 Truth is generally an absolute defense.  Privileged (or Immune) Speech.  Absolute: judicial & legislative proceedings.  Qualified: Employee Evaluations. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

 Public Figures:  Exercise substantial governmental power or are otherwise in the public limelight.  To prevail, they must show “actual malice”, i.e., the statement was made with either knowledge of falsity or reckless disregard for the truth. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

 Every person has a fundamental right to freedom from public scrutiny, such as:  Appropriation of Identity.  Intrusion on Individual’s Affairs or Seclusion.  False Light.  Public Disclosure of Private Facts. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

 Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent. Issues:  Degree of Likeness.  Right of Publicity as a Property Right. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

 Elements:  Misrepresentation of material fact;  Intent to induce another to rely;  Justifiable reliance by innocent party;  Damages as a result of reliance;  Causal connection.  Fact vs. Opinion (not puffery). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

 Generally, each of us has the right to sue when we have been legally injured.  Torts related to abusive or frivolous litigation include:  Malicious prosecution, and  Abuse of process. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

 Wrongful Interference 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

 Wrongful Interference With a Business Relationship occurs when:  There is an established business relationship;  The Tortfeasor, using predatory methods, causes relationship to end; and  Plaintiff suffers damages. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

 Defenses to Wrongful Interference include:  Interference with justified or permissible.  Bona fide competitive behavior is a permissible interference even if it results in the breaking of a contract. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

 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. Defenses  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

 Defenses to Trespass to Land: Trespass is necessary, or trespasser is a licensee.  Trespass to Personal Property : intentional interference with another’s use or enjoyment of personal property without consent or privilege. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

 Conversion: wrongful possession or use of property without permission.  CASE 12.1 Trustees of University of District of Columbia v. Vossoughi (2009). How should personal property be valued? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

 Disparagement of Property.  Slander of Quality: publication of false information about another’s product (trade libel).  Slander of Title: publication falsely denies or casts doubt on another’s legal ownership of property, resulting in financial loss. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

 Tortfeasor does not intend the consequences of the act or believes they will occur.  Actor’s conduct merely creates a foreseeable risk of injury.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

 Four-Step Analysis:  Duty: Defendant owed Plaintiff a duty of care;  Breach: Defendant breached that duty;  Causation: Defendant’s breach caused the injury;  Damages: Plaintiff suffered legal injury. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

 Defendant owes duty to protect Plaintiff from foreseeable risks that he knew or should have known about.  A foreseeable risk is one in which the reasonable person would anticipate and guard against. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

 Duty of Landowners.  Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known).  Duty to discover and remove hidden dangers that might injure invitees.  EXCEPTION: Obvious Risks. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

 Duty of Professionals.  Professionals may owe higher duty of care based on special education, skill or intelligence.  Breach of duty is called professional malpractice. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

 No Duty to Rescue.  Law requires individuals to act reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust.  However, if rescue is attempted, the law requires due care and follow through. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

 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 is both:  Causation in Fact, and  Proximate Cause. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

 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.  Were the injuries foreseeable?  Judges use proximate cause to limit liability of defendants.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

 Proximate cause is limited by foreseeability in the interests of justice and fairness.  CASE 12.2 Palsgraf v. Long Island Railroad Co. (1928). Were the plaintiff’s injuries foreseeable? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39

 To recover, Plaintiff must show legally recognizable injury.  Compensatory Damages are designed to reimburse Plaintiff for actual losses.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40

 Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41

 Assumption of Risk.   Superseding Intervening Cause .  Contributory or Comparative Negligence.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42

 Plaintiff has knowledge of the risk, and voluntarily engages in the act anyway.  Defense can be used by participants, as well as spectators and bystanders.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

 Assumption of the risk can be express or implied.  CASE 12.3 Pfenning v. Lineman (2010). Is the driver of a beverage cart a “participant” at a golfing event?  Generally, courts do not apply assumption of the risk in emergency situations. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

 A unforeseeable, intervening act that breaks the causal link between defendant’s act and plaintiff’s injury, relieving defendant of liability. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45

 Under the common law doctrine of contributory negligence, if Plaintiff in any way caused his injury, he was barred from recovery.  Most states have replaced contributory negligence with the doctrine of comparative negligence.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 46

 Comparative negligence computes liability of Plaintiff and Defendant and apportions damages.  Pure Comparative Negligence States (California and New York): allow plaintiff to recover even if his liability is greater than that of defendant.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 47

 Modified Comparative Negligence States: percent of damages plaintiff causes herself are subtracted from the total award.  50 Percent Rule: Plaintiff recovers only if liability is less than 50%.  51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50%. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48

 Res Ipsa Loquitur.  Facts and circumstances create presumption of negligence by Defendant.  Burden of proof shifts to Defendant to show he was not negligent. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 49

 Negligence Per Se occurs when Defendant violates a statute designed to protect 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 50

 “Danger Invites Rescue.”  Special Negligence Statutes:  Good Samaritan Statutes: physicians and medical personnel cannot be sued by victim.  Dram Shop Acts. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 51

 Identifying the Author of Online Defamation: usually a threshold barrier to filing suit.  What about the Liability of Internet Service Providers? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 52

 Spread of Spam.  State regulation of spam.  Federal CAN-SPAM Act (2004) applies primarily to commercial s.  U.S. Safe Web Act (2006): gives FTC powers to investigate and prosecute. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 53