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Chapter 5 Torts and Cyber Torts . §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.

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Chapter 5

Torts and Cyber Torts

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§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.

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§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.

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Types of Intentional Torts

  • Assault and Battery.

  • False Imprisonment.

  • Infliction of Emotional Distress.

  • Defamation.

  • Invasion of Privacy.

  • Business Torts.

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Assault and Battery

  • ASSAULT is an intentional, unexcused act that:

    • Creates a reasonable apprehension or fear of,

    • Immediate harmful or offensive contact.


  • BATTERY is the completion of the Assault:

    • Intentional or Unexcused.

    • Harmful, Offensive or Unwelcome.

    • Physical Contact.

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Defenses to Assault & Battery

  • Consent.

  • Self-Defense (reasonable force).

  • Defense of Others (reasonable force).

  • Defense of Property.

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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.

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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.

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  • 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.

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  • 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.

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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.

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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.

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Defenses to Defamation

  • Truth is generally an absolute defense.

  • Privileged (or Immune) Speech.

    • Absolute: judicial & legislative proceedings.

    • Qualified: Employee Evaluations.

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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.

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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.

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

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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.

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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).

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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.

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§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.

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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.

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§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.

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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).

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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).

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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.

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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.

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  • 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)

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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.

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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.

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Defenses to Negligence

  • Assumption of Risk.

  • Superceding Intervening Cause.

  • Contributory or Comparative Negligence.

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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).

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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.

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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.

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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.

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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.

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Special Negligence Statutes

  • “Danger Invites Rescue” Doctrine.

  • Good Samaritan Statutes.

  • Dram Shop Acts.

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§ 5: Cyber Torts

  • Defamation Online.

    • Liability of ISP’s.

    • Piercing the Veil of Anonymity.

  • Spam.

    • Trespass to Personal Property.

    • Statutory Regulation of Spam.

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Law on the Web

  • Cases on Torts and Cyber Torts


  • Legal Research Exercises on the Web