doing business today involves risks, both legal and financial. a tort is a civil injury designed to...

Doing business today Doing business today involves risks, both legal and involves risks, both legal and financial.financial.

A tort is a civil injury A tort is a civil injury designed to provide a designed to provide a remedy (damages) for injury remedy (damages) for injury to a protected interest. to a protected interest.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

Damages Available in Tort Damages Available in Tort Actions.Actions.Compensatory: reimburse plaintiff for actual losses. Special: quantifiable losses, such as medical expenses, lost wages, and benefits.

General: non-monetary, such as pain and suffering, reputation.


Damages Available in Tort Damages Available in Tort Actions.Actions.Punitive: punish the wrongdoer. Appropriate when defendant’s actions were particularly egregious (actions were intentional or grossly negligent).

Tort Reform.Tort Reform.


Tortfeasor must “Tortfeasor must “intendintend” to ” to commit the act, which commit the act, which means:means:He intended the consequences

of his act; orHe knew with substantial

certainty that certain consequences would result.


Assault and Battery. Assault and Battery. False Imprisonment. False Imprisonment. Infliction of Emotional Infliction of Emotional

Distress. Distress. Defamation. Defamation. Invasion of Privacy. Invasion of Privacy. Business Torts. Business Torts.


ASSAULT is an intentional, ASSAULT is an intentional, unexcused act that:unexcused act that:Creates a reasonable

apprehension or fear of,Immediate harmful or offensive

contact.NO CONTACT NECESSARY.


BATTERY is the completion BATTERY is the completion of the Assault:of the Assault:Intentional or Unexcused.Harmful, Offensive or

Unwelcome, Physical Contact. Plaintiff may be Plaintiff may be

compensated for physical compensated for physical and emotional harm.and emotional harm.


Consent.Consent. Self-Defense (reasonable Self-Defense (reasonable

force).force). Defense of Others Defense of Others

(reasonable force).(reasonable force). Defense of Property.Defense of Property.


False Imprisonment is the False Imprisonment is the intentional:intentional:Confinement or restraint.Of another person’s activities.Without justification.

Merchants may reasonably Merchants may reasonably detain customers if there is detain customers if there is probable cause.probable cause.


An intentional act that is:An intentional act that is:Extreme and outrageous, thatResults in severe emotional

distress in another. Most courts require some Most courts require some

physical symptom or illness.physical symptom or illness.


Wrongfully hurting a person’s Wrongfully hurting a person’s good reputation.good reputation.

Law imposes duty to refrain Law imposes duty to refrain from making false statements from making false statements of fact about others.of fact about others.Orally breaching this duty is

slander; breaching it in print or media (and internet) is libel.


Published statement must be Published statement must be a a factfact. . Opinions are protected speech

under the First Amendment, and not actionable.


Publication Requirement.Publication Requirement.Basis 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:General Rule: Plaintiff must prove

“special damages” (actual economic loss) to prevail for slander.

Exception: Slander Per Se. No proof of damages: loathsome disease, business improprieties, serious crime, or unchaste woman.


Truth is generally an Truth is generally an absolute defense.absolute defense.

Privileged (or Immune) Privileged (or Immune) Speech.Speech.Absolute: judicial & legislative

proceedings.Qualified: Employee Evaluations.


Public Figures:Public Figures:Exercise substantial

governmental power or are otherwise in the public limelight.

To prevail, they must show “actual malice”, i.e., the statement was made with either knowledge of falsity or reckless disregard for the truth.


Every person has a Every person has a fundamental right to freedom fundamental right to freedom from public scrutiny, such as:from public scrutiny, such as:Appropriation of Identity.Intrusion on Individual’s Affairs or

Seclusion.False Light.Public Disclosure of Private Facts.


Use of another’s name, Use of another’s name, likeness or other identifying likeness or other identifying characteristic for commercial characteristic for commercial purposes without the purposes without the owner’s consent. Issues:owner’s consent. Issues:Degree of Likeness.Right of Publicity as a Property

Right.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

Elements: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 (not puffery).Fact vs. Opinion (not puffery).© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

Generally, each of us has Generally, each of us has the right to sue when we the right to sue when we have been legally injured.have been legally injured.

Torts related to abusive or Torts related to abusive or frivolous litigation include:frivolous litigation include:Malicious prosecution, andAbuse of process.


Wrongful Interference With a Wrongful Interference With a ContractualContractual Relationship Relationship occurs when:occurs when:Defendant knows about contract

between A and B; Intentionally induces either A or

B to breach the contract; andDefendant benefits from breach.


Wrongful Interference With a Wrongful Interference With a BusinessBusiness Relationship occurs Relationship occurs when:when:There is an established business

relationship;The Tortfeasor, using predatory

methods, causes relationship to end; and

Plaintiff suffers damages.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

Defenses to Wrongful Defenses to Wrongful Interference include:Interference include:Interference with justified or

permissible.Bona fide competitive behavior

is a permissible interference even if it results in the breaking of a contract.


Trespass to LandTrespass to Land occurs when a occurs when a person, without permission: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. Defenses


Defenses to Trespass to Land: Trespass is necessary, or trespasser is a licensee.

Trespass to Personal PropertyTrespass to Personal Property : : intentional interference with intentional interference with another’s use or enjoyment of another’s use or enjoyment of personal property without personal property without consent or privilege.consent or privilege.


ConversionConversion: wrongful : wrongful possession or use of property possession or use of property without permission.without permission.CASE 12.1 Trustees of University of District of Columbia v. Vossoughi (2009). How should personal property be valued?


DisparagementDisparagement of Property. of Property.Slander of Quality: publication of

false information about another’s product (trade libel).

Slander of Title: publication falsely denies or casts doubt on another’s legal ownership of property, resulting in financial loss.


Tortfeasor does not Tortfeasor does not intend intend the consequences of the act the consequences of the act or believes they will occur.or believes they will occur.Actor’s conduct merely creates a

foreseeable risk of injury.


Four-Step Analysis:Four-Step Analysis:Duty: Defendant owed Plaintiff a duty of care;

Breach: Defendant breached that duty;

Causation: Defendant’s breach caused the injury;

Damages: Plaintiff suffered legal injury.


Defendant owes duty to Defendant owes duty to protect Plaintiff from protect Plaintiff from foreseeableforeseeable risks that he risks that he knew or knew or should have known should have known about.about.A foreseeable risk is one in which the reasonable person would anticipate and guard against .


Duty of Landowners.Duty of Landowners.Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known).

Duty to discover and remove hidden dangers that might injure invitees.

EXCEPTION: Obvious Risks.


Duty of Professionals. Duty of Professionals. Professionals may owe higher

duty of care based on special education, skill or intelligence.

Breach of duty is called professional malpractice.


No Duty to Rescue.No Duty to Rescue.Law requires individuals to act

reasonably, but there is no duty to rescue (or warn, or come to the aid of another), unless there is a special relationship of trust.

However, if rescue is attempted, the law requires due care and follow through.


Even though a Tortfeasor Even though a Tortfeasor owes a duty of care and owes a duty of care and breaches the duty of care, breaches the duty of care, the act must have the act must have causedcaused the Plaintiff’s injuries. the Plaintiff’s injuries. Causation is both:Causation is both:Causation in Fact, andProximate Cause.


Did the injury occur because Did the injury occur because of the Defendant’s act, or of the Defendant’s act, or would the injury have would the injury have occurred anyway? occurred anyway?

Usually determined by the Usually determined by the “but for” test, “but for” test, i.e.,i.e., but for the but for the Defendant’s act the injury Defendant’s act the injury would not have occurred. would not have occurred.


An act is the proximate (or An act is the proximate (or legal) cause of the injury when legal) cause of the injury when the causal connection between the causal connection between the act and injury is strong the act and injury is strong enough to impose liability. enough to impose liability. Were the injuries foreseeable?Judges use proximate cause to

limit liability of defendants. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

Proximate cause is limited by Proximate cause is limited by foreseeability in the interests foreseeability in the interests of justice and fairness.of justice and fairness.CASE 12.2 Palsgraf v. Long Island Railroad Co. (1928). Were the plaintiff’s injuries foreseeable?


To recover, Plaintiff must To recover, Plaintiff must show legally recognizable show legally recognizable injury.injury.

Compensatory Damages are Compensatory Damages are designed to reimburse designed to reimburse Plaintiff for actual losses. Plaintiff for actual losses.


Punitive Damages are Punitive Damages are designed to punish the designed to punish the tortfeasor and deter others tortfeasor and deter others from wrongdoing.from wrongdoing.


Assumption of Risk. Assumption of Risk. Superseding Intervening Superseding Intervening

CauseCause.. Contributory or Comparative Contributory or Comparative

Negligence.Negligence.


Plaintiff has knowledge of Plaintiff has knowledge of the risk, and voluntarily the risk, and voluntarily engages in the act anyway. engages in the act anyway.

Defense can be used by Defense can be used by participants, as well as participants, as well as spectators and bystanders. spectators and bystanders.


Assumption of the risk can be Assumption of the risk can be express or implied.express or implied.

CASE 12.3 Pfenning v. Lineman (2010). Is the driver of a beverage cart a “participant” at a golfing event?

Generally, courts do not apply Generally, courts do not apply assumption of the risk in assumption of the risk in emergency situations.emergency situations.


A A unforeseeableunforeseeable, intervening , intervening act that breaks the causal act that breaks the causal link between defendant’s act link between defendant’s act and plaintiff’s injury, and plaintiff’s injury, relieving defendant of relieving defendant of liability. liability.


Under the common law Under the common law doctrine of doctrine of contributorycontributory negligence, if Plaintiff in any negligence, if Plaintiff in any way caused his injury, he was way caused his injury, he was barred from recovery.barred from recovery.Most states have replaced

contributory negligence with the doctrine of comparative negligence.


Comparative negligence Comparative negligence computes liability of Plaintiff computes liability of Plaintiff and Defendant and and Defendant and apportions damages.apportions damages.Pure Comparative Negligence

States (California and New York): allow plaintiff to recover even if his liability is greater than that of defendant.


ModifiedModified Comparative Comparative Negligence States: percent of Negligence States: percent of damages plaintiff causes damages plaintiff causes herself are subtracted from the herself are subtracted from the total award.total award. 50 Percent Rule: Plaintiff recovers only if

liability is less than 50%. 51 Percent Rule: Plaintiff recovers nothing

if liability is greater than 50%.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48

Res Ipsa Loquitur.Res Ipsa Loquitur.Facts and circumstances create presumption of negligence by Defendant.

Burden of proof shifts to Defendant to show he was not negligent.


Negligence Negligence Per SePer Se occurs when occurs when Defendant violates a statute Defendant violates a statute designed to protect Plaintiff:designed to protect 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.


““Danger Invites Rescue.”Danger Invites Rescue.” Special Negligence Statutes:Special Negligence Statutes:

Good Samaritan Statutes: physicians and medical personnel cannot be sued by victim.

Dram Shop Acts.


Identifying the Author of Identifying the Author of Online Defamation: usually a Online Defamation: usually a threshold barrier to filing threshold barrier to filing suit.suit.

What about the Liability of What about the Liability of Internet Service Providers?Internet Service Providers?


Spread of Spam.Spread of Spam.State regulation of spam. Federal CAN-SPAM Act (2004)

applies primarily to commercial emails.

U.S. Safe Web Act (2006): gives FTC powers to investigate and prosecute.


doing business today involves risks, both legal and financial. a tort is a civil injury designed to...

Documents

classroom use

passwordprotected website

certain product

cengage learning

certain consequences

tort actions

damages available

egregious actions