1. © 2004 West Legal Studies in Business A Division of Thomson Learning 1 Chapter 5 Torts and Cyber Torts Chapter 5 Torts and Cyber Torts

2. © 2004 West Legal Studies in Business A Division of Thomson Learning 2 §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. 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.

3. © 2004 West Legal Studies in Business A Division of Thomson Learning 3 §2: Intentional Torts Against Persons and Business Relationships 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. 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.

4. © 2004 West Legal Studies in Business A Division of Thomson Learning 4 Types of Intentional Torts Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts. Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts.

5. © 2004 West Legal Studies in Business A Division of Thomson Learning 5 Assault and Battery ASSAULT is an intentional, unexcused act that:  Creates a reasonable apprehension or fear of,  Immediate harmful or offensive contact.  NO CONTACT NECESSARY. BATTERY is the completion of the Assault:  Intentional or Unexcused.  Harmful, Offensive or Unwelcome.  Physical Contact. ASSAULT is an intentional, unexcused act that:  Creates a reasonable apprehension or fear of,  Immediate harmful or offensive contact.  NO CONTACT NECESSARY. BATTERY is the completion of the Assault:  Intentional or Unexcused.  Harmful, Offensive or Unwelcome.  Physical Contact.

6. © 2004 West Legal Studies in Business A Division of Thomson Learning 6 Defenses to Assault & Battery Consent. Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Property. Consent. Self-Defense (reasonable force). Defense of Others (reasonable force). Defense of Property.

7. © 2004 West Legal Studies in Business A Division of Thomson Learning 7 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. 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.

8. © 2004 West Legal Studies in Business A Division of Thomson Learning 8 Intentional Infliction of Emotional Distress An intentional act that is:  Extreme and outrageous, that  Results in severe emotional distress in another. Most courts require some physical symptom or illness. An intentional act that is:  Extreme and outrageous, that  Results in severe emotional distress in another. Most courts require some physical symptom or illness.

9. © 2004 West Legal Studies in Business A Division of Thomson Learning 9 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. 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.

10. © 2004 West Legal Studies in Business A Division of Thomson Learning 10 Defamation 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 3 rd 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 3 rd party.

11. © 2004 West Legal Studies in Business A Division of Thomson Learning 11 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. 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.

12. © 2004 West Legal Studies in Business A Division of Thomson Learning 12 Damages for Slander Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se. No proof of damages is necessary:  Loathsome disease,  Business improprieties,  Serious crime,  Woman is non-chaste. Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se. No proof of damages is necessary:  Loathsome disease,  Business improprieties,  Serious crime,  Woman is non-chaste.

13. © 2004 West Legal Studies in Business A Division of Thomson Learning 13 Defenses to Defamation Truth is generally an absolute defense. Privileged (or Immune) Speech.  Absolute: judicial & legislative proceedings.  Qualified: Employee Evaluations. Truth is generally an absolute defense. Privileged (or Immune) Speech.  Absolute: judicial & legislative proceedings.  Qualified: Employee Evaluations.

14. © 2004 West Legal Studies in Business A Division of Thomson Learning 14 Defamation-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. 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.

15. © 2004 West Legal Studies in Business A Division of Thomson Learning 15 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. 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.

16. © 2004 West Legal Studies in Business A Division of Thomson Learning 16 Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

17. © 2004 West Legal Studies in Business A Division of Thomson Learning 17 Fraudulent Misrepresentation Fraud 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. Fact vs. Opinion. Fraud 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. Fact vs. Opinion.

18. © 2004 West Legal Studies in Business A Division of Thomson Learning 18 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. Case 5.1: Mathis v. Liu (2002). 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. Case 5.1: Mathis v. Liu (2002).

19. © 2004 West Legal Studies in Business A Division of Thomson Learning 19 Wrongful Interference With a Business Relationship occurs when:  Established business relationship;  Tortfeasor, using predatory methods, causes relationship to end; and  Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort. With a Business Relationship occurs when:  Established business relationship;  Tortfeasor, using predatory methods, causes relationship to end; and  Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort.

20. © 2004 West Legal Studies in Business A Division of Thomson Learning 20 §3: Intentional Torts to 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 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.

21. © 2004 West Legal Studies in Business A Division of Thomson Learning 21 Intentional Torts to Personal Property Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege. Disparagement of Property. Slander of Title or Quality. Trespass to personal property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege. Disparagement of Property. Slander of Title or Quality.

22. © 2004 West Legal Studies in Business A Division of Thomson Learning 22 §4: 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. 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.

23. © 2004 West Legal Studies in Business A Division of Thomson Learning 23 Duty of Care Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. Courts use reasonable person standard (jury) to determine whether duty exists. Duty of Landowners to invitees.  Case 5.2: Martin v. Wal-Mart Stores, Inc. (1999). Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about. Courts use reasonable person standard (jury) to determine whether duty exists. Duty of Landowners to invitees.  Case 5.2: Martin v. Wal-Mart Stores, Inc. (1999).

24. © 2004 West Legal Studies in Business A Division of Thomson Learning 24 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). 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 Care: Foreseeability

25. © 2004 West Legal Studies in Business A Division of Thomson Learning 25 Duty of Care 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. 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.

26. © 2004 West Legal Studies in Business A Division of Thomson Learning 26 Injury 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. 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.

27. © 2004 West Legal Studies in Business A Division of Thomson Learning 27 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 5.3: Palsgraf v. Long Island RR Co. (1928) 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 5.3: Palsgraf v. Long Island RR Co. (1928)

28. © 2004 West Legal Studies in Business A Division of Thomson Learning 28 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. 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.

29. © 2004 West Legal Studies in Business A Division of Thomson Learning 29 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. 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.

30. © 2004 West Legal Studies in Business A Division of Thomson Learning 30 Defenses to Negligence Assumption of Risk. Superceding Intervening Cause. Contributory or Comparative Negligence. Assumption of Risk. Superceding Intervening Cause. Contributory or Comparative Negligence.

31. © 2004 West Legal Studies in Business A Division of Thomson Learning 31 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. Case 5.4: Crews v. Hollenbach (1999). 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. Case 5.4: Crews v. Hollenbach (1999).

32. © 2004 West Legal Studies in Business A Division of Thomson Learning 32 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. 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.

33. © 2004 West Legal Studies in Business A Division of Thomson Learning 33 Contributory Negligence Under common law, 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. The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself. Under common law, 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. The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.

34. © 2004 West Legal Studies in Business A Division of Thomson Learning 34 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. 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.

35. © 2004 West Legal Studies in Business A Division of Thomson Learning 35 Special Negligence Doctrines 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. 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.

36. © 2004 West Legal Studies in Business A Division of Thomson Learning 36 Special Negligence Statutes “Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts. “Danger Invites Rescue” Doctrine. Good Samaritan Statutes. Dram Shop Acts.

37. © 2004 West Legal Studies in Business A Division of Thomson Learning 37 § 5: Cyber Torts Defamation Online.  Liability of ISP’s.  Piercing the Veil of Anonymity. Spam.  Trespass to Personal Property.  Statutory Regulation of Spam. Defamation Online.  Liability of ISP’s.  Piercing the Veil of Anonymity. Spam.  Trespass to Personal Property.  Statutory Regulation of Spam.

38. © 2004 West Legal Studies in Business A Division of Thomson Learning 38 Law on the Web Cases on Torts and Cyber Torts  LawGuru.com LawGuru.com Legal Research Exercises on the Web Cases on Torts and Cyber Torts  LawGuru.com LawGuru.com Legal Research Exercises on the Web