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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
Chapter 5

Torts and Cyber Torts

1 basis of tort law
§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.
2 intentional torts against persons and business relationships
§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.
types of intentional torts
Types of Intentional Torts
  • Assault and Battery.
  • False Imprisonment.
  • Infliction of Emotional Distress.
  • Defamation.
  • Invasion of Privacy.
  • Business Torts.
assault and battery
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.
defenses to assault battery
Defenses to Assault & Battery
  • Consent.
  • Self-Defense (reasonable force).
  • Defense of Others (reasonable force).
  • Defense of Property.
false imprisonment
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.
intentional infliction of emotional distress
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
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.
defamation10
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.
damages for libel
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
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.
defenses to defamation
Defenses to Defamation
  • Truth is generally an absolute defense.
  • Privileged (or Immune) Speech.
    • Absolute: judicial & legislative proceedings.
    • Qualified: Employee Evaluations.
defamation public figures
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
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
Appropriation

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

fraudulent misrepresentation
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.
wrongful interference
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).
wrongful interference19
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.
3 intentional torts to property
§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.
intentional torts to personal property
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.
4 negligence
§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.
duty of care
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
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 care25
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.
injury and damages
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
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)
causation in fact
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
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
Defenses to Negligence
  • Assumption of Risk.
  • Superceding Intervening Cause.
  • Contributory or Comparative Negligence.
assumption of risk
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
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.
contributory negligence
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.
comparative negligence
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
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.
special negligence statutes
Special Negligence Statutes
  • “Danger Invites Rescue” Doctrine.
  • Good Samaritan Statutes.
  • Dram Shop Acts.
5 cyber torts
§ 5: Cyber Torts
  • Defamation Online.
    • Liability of ISP’s.
    • Piercing the Veil of Anonymity.
  • Spam.
    • Trespass to Personal Property.
    • Statutory Regulation of Spam.
law on the web
Law on the Web
  • Cases on Torts and Cyber Torts
    • LawGuru.com
  • Legal Research Exercises on the Web
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