business law chapter 5 notes

Introduction to Intentional Torts and NegligenceInjured party brings civil lawsuit to seek compensation for a wrong done to the party Damages availableTort damagesPunitive damagesIf the victim of a tort dies, beneficiaries can bring a wrongful death action against defendantCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-2

Intentional TortsAssaultThreat of immediate harm or offensive contactAny action that arouses reasonable apprehension of imminent harmActual physical contact is unnecessaryCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-3

Intentional TortsBatteryUnauthorized and harmful or offensive physical contact with another personDirect physical contact between victim and perpetrator unnecessaryMay accompany assaultCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-4

Intentional TortsDoctrine of transferred intentParty A intends to harm Party B, but actually injures Party CLaw transfers perpetrators intent from target to actual victimParty C can sue the perpetrator

Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-5

Intentional TortsFalse imprisonmentIntentional confinement or restraint of another person without authority or justification and without that persons consentPhysical forceBarriersThreats of physical violenceFalse arrestCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-6

Intentional TortsShoplifting and merchant protection statutesMerchants may stop, detain, and investigate suspected shoplifters if:There are reasonable grounds for suspicionSuspects are detained for only reasonable timeInvestigations are conducted in reasonable mannerCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-7

Case 5.1: False ImprisonmentCaseWalmart Stores, Inc. v. Cockrell61 S.W.3d 774, Web 2001 Tex. App. Lexis 7992Court of Appeals of TexasIssueDoes the shopkeepers privilege protect Walmart from liability under the circumstances of the case?Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-8

Intentional TortsMisappropriation of the right to publicityAttempt by another person to appropriate a living persons name or identity for commercial purposesTort of appropriationPlaintiffs recourse:Recover the unauthorized profits made by the offenderObtain an injunction preventing further unauthorized use of his or her identityCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-9

Intentional TortsInvasion of the right to privacyViolation of a persons right to live his or her life without being subjected to unwanted and undesired publicityPlacing person in a false lightCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-10

Intentional TortsDefamation of characterTypesSlanderLibelPlaintiff must prove that:Defendant made an untrue statement of fact about plaintiffStatement was intentionally or accidentally published to a third partyCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-11

Intentional TortsDisparagementUntrue statement made about products, services, property, or reputation of a businessIntentional misrepresentation (Fraud)Wrongdoer deceives another person out of money, property, or something of value


Intentional TortsIntentional infliction of emotional distressExtreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another personAlso known as tort of outrageMalicious prosecutionFrivolous lawsuit maliciously broughtPrevailing defendant sues original plaintiff to recover damages for injuries


Unintentional Torts (Negligence)Unintentional Tort: A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actionsNegligence: Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not doCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-14

Unintentional Torts (Negligence)Elements of a Negligence LawsuitThe defendant owed a duty of care to the plaintiffThe defendant breached the duty of careThe plaintiff suffered injuryThe defendants negligent act caused the plaintiffs injuryThe defendants negligent act was the proximate cause of the plaintiffs injuriesCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-15

Unintentional Torts (Negligence)Duty of care: Obligation not to cause any unreasonable harm or risk of harmTests used to determine whether a duty of care was owed:Reasonable person standardReasonable professional standardBreach of duty of care: Failure to exercise care or to act as a reasonable person would actCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-16

Unintentional Torts (Negligence)Injury to plaintiff Personal injury or damage to the plaintiffs propertyDamages cannot be recovered if the plaintiff suffered no injuryDamages recoverable depend on the effect of the injury on the plaintiffs life or professionCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-17

Case 5.2: Damages for NegligenceCaseClancy v. Goad858 N.E.2d 653, Web 2006 Ind. App. Lexis 2576 (2006)Court of Appeals of IndianaIssueWere the damages awarded to Dianna Goad excessive?Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-18

Unintentional Torts (Negligence)CausationCausation in fact (actual cause): A person who commits a negligent act is not liable unless actual cause can be provenProximate cause (legal cause): A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actionsCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-19

Case 5.3: Duty of CareCaseJames v. Meow Media, Inc.300 F.3d 683, Web 2002 U.S. App. Lexis 16185 (2002)United States Court of Appeals for the Sixth CircuitCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-20

Case 5.3: Duty of CareIssueAre the video and movie producers liable to the plaintiffs for selling and licensing violent video games and movies to Carneal, who killed the plaintiffs three children?Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-21

Special Negligence DoctrinesProfessional malpracticeThe liability of a professional who breaches his or her duty of ordinary care Breach of reasonable professional standardNegligent infliction of emotional distressPermits a person to recover for emotional distress caused by the defendants negligent conductCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-22

Special Negligence DoctrinesNegligence per seViolation of a statute that proximately causes an injuryRes ipsa loquiturDefendant had exclusive control of the situation that caused the plaintiffs injuryInjury would not have ordinarily occurred but for someones negligenceCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-23

Special Negligence DoctrinesGood Samaritan lawsProtects medical professionals who stop and render emergency first aidRelieves them from liability for ordinary negligenceNo relief for gross negligence or intentional or reckless conductLaypersons not trained in CPR not coveredCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-24

Defenses Against NegligenceSuperseding or intervening eventAn event for which defendant is not responsibleAssumption of riskPlaintiff knowingly and voluntarily participates in a risky activity that results in injuryCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-25

Case 5.4: Assumption of the RiskCaseLilya v. The Greater Gulf State Fair, Inc.855 So.2d 1049, Web 2003 Ala. Lexis 57Supreme Court of AlabamaIssueWas riding a mechanical bull an open and obvious danger for which Lilya had voluntarily assumed the risk when he rode the mechanical bull?Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-26

Defenses Against NegligenceContributory negligencePlaintiff who is partly at fault for his or her own injuries cannot recover against negligent defendantComparative negligenceDamages apportioned according to faultPure comparative negligencePartial comparative negligence (50% rule)


Strict LiabilityStrict liability is liability without faultA participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligentAbnormally dangerous activitiesCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.5-28


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business law chapter 5 notes

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