Chapter 12 Torts and Cyber Torts

1. Chapter 12Torts and Cyber Torts

2. Introduction • An injury can involve both civil (tort) and criminal liability. • In a civil action, the plaintiff hires her own lawyer. • In a criminal action, the state prosecutes the injury to the community.

3. §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.

4. §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.

5. Types of Intentional Torts • Assault and Battery. • False Imprisonment. • Infliction of Emotional Distress. • Defamation. • Invasion of Privacy. • Business Torts.

6. Assault and Battery • ASSAULT is an intentional, unexcused act that: • Creates a reasonable apprehension of fear, or • Immediate harmful or offensive contact. • NO CONTACT NECESSARY. • BATTERY is the completion of the Assault: • Intentional or Unexcused. • Harmful, Offensive or Unwelcome. • Physical Contact.

7. Defenses to Assault & Battery • Consent. • Self-Defense (reasonable force). • Defense of Others (reasonable force). • Defense of Property.

8. 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.

9. 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.

10. 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.

11. 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 3rd party.

12. 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.

13. 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.

14. Defenses to Defamation • Truth is generally an absolute defense. • Privileged (or Immune) Speech. • Absolute: judicial & legislative proceedings. • Qualified: Employee Evaluations.

15. 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.

16. 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.

17. Appropriation • Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent.

18. 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.

19. 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 12.1:Mathis v. Liu (2002).

20. 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.

21. §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.

22. 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. • Conversion: civil side of criminal theft. • Disparagement of Property. • Slander of Quality (trade libel). • Slander of Title (ownership).

23. §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.

24. Duty of Care and Its Breach • 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.

25. Duty of Care: Foreseeability • 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).

26. Duty of Landowners • Landowners have a duty to exercise reasonable care to business invitees. • In some jurisdictions the duty extends to trespassers as well. • Guard against foreseeable risks (owner knew or should have known). • Case 12.2:Martin v. Wal-Mart Stores, Inc. (1999).

27. Duty of Professionals • 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.

28. Injury Requirement 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.

29. 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 12.3:Palsgraf v. Long Island RR Co. (1928).

30. 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.

31. 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.

32. Defenses to Negligence • Assumption of Risk. • Superceding Intervening Cause. • Contributory or Comparative Negligence.

33. 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 12.4:Crews v. Hollenbach (1999).

34. 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.

35. Contributory Negligence • Under common law, if Plaintiff if 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.

36. 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.

37. 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.

38. Special Negligence Statutes • “Danger Invites Rescue” Doctrine. • Good Samaritan Statutes. • Dram Shop Acts.

39. § 5: Cyber Torts • Defamation Online. • Liability of ISP’s. • Piercing the Veil of Anonymity. • Spam. • Trespass to Personal Property. • Statutory Regulation of Spam.

40. Law on the Web • LawGuru.com Cases on Torts and Cyber Torts. • Legal Research Exercises on the Web.