Torts and Cyber Torts

Torts and Cyber Torts Chapter 4

Torts: An Introduction • What is a Tort? • A civil wrong, not arising from a breach of contract or other agreement. • A breach of a legal duty that proximately causes harm or injury to another.

Torts: An Introduction • Civil vs. Criminal Wrong • A tort is a “civil” wrong punishable by paying damages to the injured party. • A tort is not a “criminal” wrong resulting in paying a fine to the government and/or being imprisoned.

Torts: An Introduction • Civil vs. Criminal Wrong • Some torts may also serve as the basis for separate criminal prosecution by the state. • Burden of Proof is different: • “beyond a reasonable doubt” for crimes • “preponderance of evidence” for torts

Torts: An Introduction • Tort vs. Contract • The duty that is violated by the tortfeasor must exist as a matter of law, not as a consequence of any agreement between the tortfeasor and the injured party.

Torts: An Introduction • Elements of a Tort • Wrongful Act • Proximate Cause • Damages

Torts: An Introduction • Proximate Cause • cause and effect relationship • a foreseeable and probable consequence of the act or omission.

Intentional Torts: • A tort intentionally or knowingly committed. It can be to a person or to property.

Intentional Torts: Assault • An intentional act that creates a reasonable apprehension of immediate harmful contact. • For example, pointing a gun at someone.

Intentional Torts: Battery • An intentional harmful or offensive contact. • For example, getting hit by the bullet.

Intentional Torts: False Imprisonment • The intentional confinement or restraint of another person’s activities without justification. • Restraint may occur through the use of physical barriers, physical restraint, or threats of physical force.

Intentional Torts: Infliction of Emotional Distress • An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. • Parodies of public figures protected

Intentional Torts: Defamation • Defamation is anything published or publicly spoken that injures another’s character, reputation, or good name. • Libel is defamation that is written. • Slander is defamation in oral form. • Truth is normally an absolute defense against any claim of defamation. • Public figure has to prove actual malice.

Intentional Torts: Privacy • Invasion of Privacy • Four acts generally qualify as improperly infringing on another’s privacy:

Intentional Torts: Privacy • Appropriation: use of a person’s name or likeness without permission. • Intrusion in an individual’s affairs where the person has a reasonable expectation of privacy. • Publicdisclosure of private facts that an ordinary person would find objectionable. • Publication of information that places a person in a false light.

Intentional Torts: Fraud • Actionable fraud consists of the following elements: • A misstatement of a material fact • Made knowingly or with reckless disregard for the truth • With intention to deceive another • With justifiably reliance by a reasonable person

Intentional Torts: Fraud Mere puffery, or “sales talk,” is not fraud because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person.

Intentional Torts: Tortious Interference Intentional interference with a contractual relationship • Must be a contract between two parties • Third party must know the contract exists • Third party must intentionally cause a breach of that contract

Intentional Torts: Tortious Interference Intentional Interference with a business relationship - Must be some sort of predatory behavior Bona Fide competitive behavior is a defense to tortious interference

Intentional Torts: Trespass Entry onto another person’s land without permission. It may be: • On land • Above land • Below surface It also may involve personal property, such as a website

Intentional Torts: Conversion • Wrongfully taking or retaining another’s property and placing it in service of another.

Negligence: Basic Principles • Elements of Negligence: • Duty of care to act as a reasonable person under similar circumstances • Breach of Duty • Proximate Cause • Of Damages to the Plaintiff.

Duty • No duty to stop and render aid • Duty to aid if you were involved in accident • In your actions, act as a reasonable person would act

Duty of Landowners • Trespassers • Duty not to intentionally or recklessly cause them harm.

Duty of Landowners • Licensees - social guests and other persons not on the premises for any business purpose • Duty to warn of any known dangers

Duty of Landowners • Invitees - persons who come onto premises for business purposes, including retail and other establishments • Duty to warn of known dangers and those dangers owner should know about

Defenses to Negligence • Assumption of Risk • Superseding Cause

Negligence: Damages • Tort law recognizes two categories of damages: • Compensatory damages - Designed to reimburse actual value of the plaintiff’s injury or loss • Punitive damages - Designed to punish the tortfeasor and to deter similar conduct in the future.

Contributory and Comparative Negligence • Contributory Negligence • Any negligence on the part of the plaintiff that contributed to the injury is an absolute bar to the recovery of damages. • It does not matter how insignificant the plaintiff’s own negligence is compared to that of the defendant.

Contributory and Comparative Negligence • Comparative Negligence • Once it is established that negligence of both parties caused the damages, the court must apportion negligence among the parties on a percentage basis. • Adopted by statute in some form in all states • Over 50% “no recovery” rule in Texas and other states

Strict Liability • Liability regardless of fault. • Imposed on defendants whose activities are abnormally dangerous and/or involve dangerous animals. • Imposed also on manufacturers, distributors, and sellers of any products which are “defective”

Torts and Cyber Torts Chapter 4

Torts and Cyber Torts