Torts and Cyber Torts

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.

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.

Types of Intentional Torts

ü   Assault and Battery

ü   False Imprisonment.

ü   Infliction of Emotional Distress.

ü   Defamation.

ü   Invasion of Privacy.

ü   Business Torts.

ü   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:

Ø  Intentional or Unexcused.

Ø  Harmful, Offensive or Unwelcome.

Ø  Physical Contact.

Defenses to Assault & Battery

ü   Consent.

ü   Self-Defense (reasonable force).

ü   Defense of Others (reasonable force).

ü   Defense of Property.

ü   False Imprisonment

False Imprisonment is the intentional:

Ø  Confinement or restraint.

Ø  Of another person’s activities.

Ø  Without justification.

Merchants may reasonably detain customers if there is probable cause.

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.

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. 

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.

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.

Damages for Slander

Rule: Plaintiff must prove “special damages” (actual economic loss).

Exceptions for Slander Per Se. No proof of damages is necessary:

Ø  Loathsome disease,

Ø  Business improprieties,

Ø  Serious crime,

Ø  Woman is non-chaste.

Defenses to Defamation

Truth is generally an absolute defense.

Privileged (or Immune) Speech.

Absolute: judicial & legislative proceedings.

Qualified: Employee Evaluations.

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.

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.

Appropriation

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

Fraudulent Misrepresentation

Fraud is intentional deceit.  Elements:

Ø  Misrepresentation of material fact;

Ø  Intent to induce another to rely;

Ø  Justifiable reliance by innocent party;

Ø  Damages as a result of reliance;

Ø  Causal connection.

Fact vs. Opinion.

Wrongful Interference

Tort that interferes with a contractualrelationship.

Occurs when:

Ø  Defendant knows about contract between A and B;

Ø  Intentionally induces either A or B to breach the contract; and

Ø  Defendant benefits from breach.

Case 5.1: Mathis v. Liu (2002).

Wrongful Interference

With a BusinessRelationship 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.

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.

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.

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:

Ø   Defendant owed Plaintiff a duty of care;

Ø   Defendant breached that duty;

Ø   Plaintiff suffered legal injury;

Ø   Defendant’s breach caused the injury.

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).

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).

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.

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.

Causation

Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have causedthe Plaintiff’s injuries.

Ø  Causation in Fact, and

Ø  Proximate Cause.

Case 5.3: Palsgraf v. Long Island RR Co. (1928)

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.  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.

Defenses to Negligence

Assumption of Risk.

Superceding Intervening Cause.

Contributory or Comparative Negligence.

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).

Superceding Cause

An 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.

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.

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.

Special Negligence Doctrines

Res Ipsa Loquiter.

Negligence Per Se occurs when Defendant violates statute that causes injury to Plaintiff:

Ø  Statute sets out standard of care.

Ø  Plaintiff is member of class intended to be protected by statute.

Ø  Statute designed to prevent Plaintiff’s injury.

Special Negligence Statutes

“Danger Invites Rescue” Doctrine.

Good Samaritan Statutes.

Dram Shop Acts.

Cyber Torts

Defamation Online.

Ø  Liability of ISP’s.

Ø  Piercing the Veil of Anonymity.

Spam.

Ø  Trespass to Personal Property.

Ø  Statutory Regulation of Spam.