© 2005 west legal studies in business a division of thomson learning 1 food for thought of the day...

1© 2005 West Legal Studies in

BusinessA Division of Thomson Learning

Food for Thought of the DayFood for Thought of the Day

“Peace. It does not mean to be in a place

where there is no noise, trouble, or hard work. It means to be in the midst of those

things and still be calm in your heart.” -Unknown author



Welcome to Welcome to Introduction to Business BUS 002Introduction to Business BUS 002

AgendaTOPIC: Torts and Cyber Torts

• Check-Ins: Questions, Comments, Reflections, AhHa Moments

• Article FYI – “Retailers Concerned Over New Trucking Rules”

• Torts and Cyber Torts– Intentional– Unintentional– Strict Liability– Cyber Torts

• Emancipate



• 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?

• What is a cyber tort, and how are tort theories being applied in cyberspace?

Learning ObjectivesLearning Objectives



• Tort = Wrong actions

Vocabulary/Terms/PhrasesVocabulary/Terms/Phrases



Basis of Tort LawBasis of Tort Law

• A tort is a civil, legal injury (wrong) to a person or property punishable by compensating, or paying damages to, the injured party – Plaintiff (the injured party) sues the– Defendant (the Tortfeasor) for damages.

• Three Torts:– Intentional.– Unintentional. (negligence-no fault).– Strict Liability (absolute liability).



• Assault and Battery.– Assault: the reasonable apprehension or fear of

immediate contact.– Battery: completion (contact) of the assault.

• 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.

Intentional Torts Against PersonsIntentional Torts Against PersonsPhysicalPhysical



• Defenses:

• Consent.

• Self-Defense and Assistance Others.

• Defense of Property.

Intentional Torts Against PersonsIntentional Torts Against PersonsPhysical Defenses Physical Defenses



• Defamation.– Anything published (written is Libel) or publicly

spoken (oral is Slander) that injures another’s character, reputation, or good name.• 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.

Intentional Torts Against PersonsIntentional Torts Against PersonsDefamationDefamation



Intentional Torts Against PersonsIntentional Torts Against PersonsDefamation DefensesDefamation Defenses

• Truth: Statement is the truth!

• Privilege: Statement is privileged

• Absolute privileged: judicial and legislative proceedings (attorneys, legislators).

• Qualified Privilege: made in good faith and, in the case of statements made only to those who have a legitimate interest in the statement, are privileged.

• Absence of Malice:.• Public Figures: plaintiff must show statement made

with “actual malice.”• that is, with either knowledge of falsity or reckless

disregard of the truth or falsity.



• Slander per se (no proof of damages is required):• If a person states that another person has:

• Communicable disease.• Professional impropriety (improper).• Committed and been imprisoned for a

serious crime.• Unmarried woman is unchaste or engaged in

serious sexual misconduct.

Intentional Torts Against PersonsIntentional Torts Against PersonsDefamation – “Slander Per Se”Defamation – “Slander Per Se”



• Invasion of Privacy: Common law recognizes four acts that qualify as improperly infringing on another’s privacy:– Appropriation - Appropriating a person’s name,

picture, or other likeness for commercial purposes without their permission

– Invasion of Privacy - intruding into an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy (e.g. restroom)

– False Light - publishing information that places a person in false light

– Public Disclosure of private facts.

Intentional Torts Against PersonsIntentional Torts Against PersonsInvasion of PrivacyInvasion of Privacy



• Misrepresentation (Fraud) = Intentional deceit.– knowingly made with reckless disregard for the truth– with the intention of deceiving another by influencing

them to rely on the misrepresentation– an innocent person, justifiably, relies on the

misrepresentation– Causing injury to the plaintiff and Damages.– Not Fraud if

• puffery, or “seller’s talk,” involve opinions, not facts

• however, opinion statements may give rise to a claim of fraud if the party expressing the opinion has a superior knowledge of the subject matter.

Intentional Torts Against PersonsIntentional Torts Against PersonsMisrepresentationMisrepresentation



• Wrongful Interference with Contracts. Must show proof:– Valid, enforceable contract exists between two parties (X

and Y).– Third party (Z) knows about contract.– Third party (Z) intentionally causes either party (X or Y)

to breach the original contract.• 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.

Intentional Torts Against PersonsIntentional Torts Against PersonsWrongful InterferenceWrongful Interference



• Defenses

– Interference was justified

– Interference was permissible.

Intentional Torts Against PersonsIntentional Torts Against PersonsWrongful Interference DefensesWrongful Interference Defenses



• Trespass to Land = Entry onto, above, or below the surface of land without the owner’s permission or legal authorization.– Trespass to Land.

• Trespass to Personal Property. Taking or harming another’s personal property, in such a way as to interfere with the other person’s right to exclusive possession of his personal property, without the owner’s permission or legal authorization.– Conversion = Giving someone’s property to another without

permission– Disparagement of Property = The publication, written

(trade libel) or oral (slander of quality, slander of title), of false information about the quality of another’s product or services, proximately causing financial loss to the disparaged party.

• Defense to Trespass: Trespass may be justified or excused if the trespasser can prove

• Necessity: trying to rescue another or save another’s life or property

• License: invited, and entered before the owner revoked the license.

Intentional Torts Against PropertyIntentional Torts Against PropertyTrespassingTrespassing



What do you think?What do you think?

View the Video “Jaws” - TortsIn groups of 3-4, answer the following questions?

• In the video, the mayor (Murray Hamilton) and a few other men try to persuade Chief Brody (Roy Scheider) not to close the town’s beaches. If Brody keeps the beaches open and a swimmer is injured or killed because he failed to warn swimmers about the potential shark danger, has Brody committed a tort? If so, what kind of tort (intentional tort against persons, intentional tort against property, negligence)? Explain your answer.

• Can Chief Brody be held liable for any injuries or deaths to swimmers under the doctrine of strict liability? Why or why not?

• If Chief Brody goes against the mayor’s instructions and warns swimmers to stay off the beach, and the town suffers economic damages as a result, has he committed the tort of disparagement of property? Why or why not?



Unintentional TortUnintentional TortNegligenceNegligence

• Negligence is an unintentional tort.– Occurs when someone suffers injury because of the

defendant’s failure to comply with a legal duty of care (reasonable amount of care when dealing with others).

– Defendant creates a foreseeable risk of injury.

• Test or analysis of Negligence– 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?




• Duty of Care and Breach.– Duty is based on reasonable person standard. – How would a reasonable person have acted

under the circumstances?• attentive, aware of his or her environs, careful, conscientious, even

tempered, and honest.

• Duty of Landowners to business invitees and tenants to keep common areas safe.

• Duty of Professionals to clients (attorneys, CPA’s, doctors).




• Injury Requirement and Damages– Plaintiff must suffer a legally recognizable injury.– Not all injuries can be compensated.– Compensatory damages = reimbursement for injury– Punitive damages = $ to deter defendant from

similar conduct in the future

• Causation– Injury would not have occurred if the defendant had

not been negligent– Proximate Cause (foreseeable strong connection)

between the act and the injury.




• Defenses:

– Assumption of the Risk • Plaintiff entering into a situation knowing there is a

risk.– Superceding Intervening Cause.

• Event must be unforeseeable.– 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.– “Danger Invites Rescue” doctrine

• In cases where an individual takes foreseeable action to avoid harm or to rescue another from harm, any injury her action causes will be attributable to the original wrongdoer whose fault or negligence caused her to take the defensive action.

– Dram Shop Acts• Many jurisdictions hold that a business, and in some

jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.



Strict LiabilityStrict Liability

• Liability regardless of fault. Liability imposed on a manufacturer or seller.

• Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented.

• Dangerous Animals.

• Product Liability—manufacturers and sellers of harmful or defective products.



Cyber TortsCyber Torts• Online Defamation: An online message attacking another person or

entity in harsh, often personal, and possibly defamatory, terms. Online defamation is difficult to combat because:– the Communications Decency Act of 1996 absolves Internet

service providers (“ISPs”) from liability for disseminating defamatory material

– the Internet affords a high degree of anonymity to the person who posted the defamatory message.

• Spam: Bulk, unsolicited e-mail or newsgroup postings – usually an advertisement for the “spammer’s” product or service sent to all users on an e-mailing list or newsgroup.– Some states regulate or prohibit the use of spam, giving recipients of

unwanted spam, and even ISPs, legal bases for blocking spam and for recovering against spammers.

– In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, which prohibits certain types of spamming activities, such as using a false return e-address and transmitting false, misleading, or deceptive information via e-mail.



What do you think?What do you think?

View the Video “Torts” Grocery StoreIn groups of 3-4, answer the following questions?

• What are Kowalski's rights and duties? What are Maria's?

• What are the store's responsibilities? What will Maria have to prove to win her case?

• If Maria comes to you, an attorney, and asks you to plead her case, what might be your best argument?



ReflectionReflection

• How might today’s content impact my practice in business?

• What implications might today’s content have on the local, state, national, and global communities?

• What have I learned about law and business that will influence my practice?

© 2005 west legal studies in business a division of thomson learning 1 food for thought of the day...

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