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BUSINESS LAW TODAY Essentials 8 th Ed. Roger LeRoy Miller - Institute for University Studies, Arlington, Texas Gaylord A. Jentz - University of Texas at Austin, Emeritus. Torts and Cyber Torts. Chapter 4. Learning Objectives. What is a tort?

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BUSINESS LAW TODAYEssentials 8th Ed.Roger LeRoy Miller - Institute for University Studies, Arlington, TexasGaylord A. Jentz - University of Texas at Austin, Emeritus

Torts andCyber Torts

Chapter 4

learning objectives
Learning Objectives
  • What is a tort?
  • What is the purpose of tort law? What are the two basic categories of torts?
  • What are the four elements of negligence?
  • What is meant by strict liability? In what circumstances is strict liability applied?
  • What is a cyber tort, and how are tort theories being applied in cyberspace?
basics of tort law
Basics of Tort Law
  • A tort is a civil, legal injury to a person or property caused by a breach of a legal duty.
  • Plaintiff (the injured party) sues the Defendant (the Tortfeasor) for damages:
    • Compensatory damages.
    • Punitive Damages.
classification of torts
Classification of Torts
  • Intentional.
  • Unintentional (negligence-no fault).
  • Strict Liability (absolute liability).
intentional torts against persons
Intentional Torts Against Persons
  • Assault and Battery.
    • Assault: the reasonable apprehension or fear of immediate contact.
    • Battery: completion (contact) of the assault.
    • Defenses:
      • Consent.
      • Self-Defense and Others.
      • Defense of Property.
intentional torts against persons6
Intentional Torts Against Persons
  • False Imprisonment.
    • Confinement or restraint of another person’s activities without justification.
    • Merchants can detain a suspected shoplifter as long as there is probable cause.
  • Infliction of Emotional Distress.
    • Extreme and outrageous conduct.
    • Some courts require physical symptoms.
defamation
Defamation
  • Defamation.
    • Publication of a false statement (oral or written) that injures a person’s good reputation.
      • Publication: third party must hear or see statement
      • Statements made on the internet may be actionable.
      • An individual who re-publishes the statement will be liable.
    • Statement must hold someone up to contempt, ridicule or hatred in the community.
defamation8
Defamation
  • Slander per se (no proof of damages is required):
    • Loathsome communicable disease.
    • Professional impropriety.
    • Imprisonment for a serious crime.
    • Unmarried woman is unchaste.
defamation9
Defamation
  • Defenses:
    • Truth is normally an absolute defense.
    • Statement was Privileged:
      • Absolute: judicial and legislative proceedings.
      • Qualified: good faith, limited.
    • Public Figures: plaintiff must show statement made with “actual malice.”
invasion of privacy
Invasion of Privacy
  • Person has the right to solitude. Breach of that duty is a tort.
  • Tort of Appropriation.
  • Tort of False Light.
  • Public Disclosure of Private Facts.
  • Rights of Internet users?
fraudulent misrepresentation
Fraudulent Misrepresentation
  • Fraudulent Misrepresentation.
    • Intentionally deceive another to believe in a condition that is different from the condition that already exists.
      • Knowing misrepresentation of fact.
      • Intent to induce innocent party to rely.
      • Justifiable reliance by innocent party.
      • Causation and Damages.
    • Contrast: “puffery” or statements of opinion.
wrongful interference
Wrongful Interference
  • Wrongful Interference with Contracts.
    • Valid, enforceable contract exists between two parties.
    • Third party knows about contract.
    • Third party intentionally causes either party to breach the original contract.
    • Mathis v. Liu (2002).
wrongful interference13
Wrongful Interference
  • Wrongful Interference with Business Relationship.
    • Distinguish competition vs. predatory behavior. Predatory behavior is unlawfully driving competitors out of market.
    • To prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and product.
  • Defenses to Wrongful Interference: Interference was justified or permissible.
intentional torts against property
Intentional Torts Against Property
  • Trespass to Land.
  • Trespass to Personal Property.
  • Conversion.
  • Disparagement of Property.
    • Slander of Quality.
    • Slander of Title.
negligence
Negligence
  • Negligence is an unintentional tort.
  • Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty.
  • Defendant (tortfeasor) creates foreseeable risk of injury.
negligence analysis
Negligence--Analysis
  • Did the Defendant owe the Plaintiff a legal duty of care?
  • Did the Defendant breach that duty?
  • Did the Plaintiff suffer a legal injury?
  • Did the Defendant’s breach of duty cause the Plaintiff’s injury?
negligence duty of care
Negligence: Duty of Care
  • Duty of Care and Breach.
    • Duty is based on reasonable person standard.
    • How would a reasonable person have acted under the circumstances?
    • Duty of Landowners to warn business invitees of risks, and keep common areas safe.
      • Exception: Obvious risks.
      • CASE 4.1Izquierdo v. Gyroscope, Inc. (2007).
    • Duty of Professionals to clients (attorneys, CPA’s, doctors).
negligence injury requirement
Negligence: Injury Requirement
  • Injury Requirement and Damages
    • Plaintiff must suffer a legally recognizable injury.
    • Not all injuries can be compensated.
  • Causation
    • Causation in Fact (“but for” test).
    • Proximate Cause (foreseeably strong connection).
    • Palsgraf v. Long Island Railroad (1928).
defenses to negligence
Defenses to Negligence
  • Assumption of the Risk.
    • CASE 4.2Sutton v. Eastern New York Soccer Association, Inc. (2004).
  • Superceding Intervening Cause.
    • Event must be unforeseeable.
defenses to negligence20
Defenses to Negligence
  • Contributory Negligence (few jurisdictions).
    • Plaintiff recovers nothing if he is at fault.
  • Comparative Negligence (more common).
    • As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.
special negligence doctrines
Special Negligence Doctrines
  • Res Ipsa Loquitur.
  • Negligence Per Se. Violation of law is legal breach of duty. Plaintiff must show:
    • Defendant broke a law/statute.
    • Plaintiff is in special class to be protected; and
    • Statute designed to prevent injury to Plaintiff.
  • “Danger Invites Rescue” doctrine.
  • Dram Shop Acts.
strict liability
Strict Liability
  • Does not require fault, intent or breach of duty.
  • Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented.
  • Dangerous Animals.
  • Product Liability—manufacturers and sellers of harmful or defective products.
cyber torts
Cyber Torts
  • Defamation Online.
    • Can a person be liable for a defamation tort committed in cyberspace?
    • CASE 4.3Carafano v. Metrosplash.com, Inc. (2003).
    • Should an Internet Service Provider (ISP) be liable for the actions of its subscriber?
  • Who should be liable for “spam” and computer viruses that cause injury?
    • Federal CAN-SPAM Act 2003.