Transcript BLT Essentials 7th Ed. 2005

Food 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
© 2005 West Legal Studies in Business
A Division of Thomson Learning
1
Welcome to
Introduction to Business BUS 002
Agenda
TOPIC: 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
© 2005 West Legal Studies in Business
A Division of Thomson Learning
2
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?
• What is a cyber tort, and how are tort theories being
applied in cyberspace?
© 2005 West Legal Studies in Business
A Division of Thomson Learning
3
Vocabulary/Terms/Phrases
• Tort = Wrong actions
© 2005 West Legal Studies in Business
A Division of Thomson Learning
4
Basis 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).
© 2005 West Legal Studies in Business
A Division of Thomson Learning
5
Intentional Torts Against Persons
Physical
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
6
Intentional Torts Against Persons
Physical Defenses
• Defenses:
• Consent.
• Self-Defense and Assistance Others.
• Defense of Property.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
7
Intentional Torts Against Persons
Defamation
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
8
Intentional Torts Against Persons
Defamation 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
9
Intentional Torts Against Persons
Defamation – “Slander Per Se”
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
10
Intentional Torts Against Persons
Invasion of Privacy
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
11
Intentional Torts Against Persons
Misrepresentation
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
12
Intentional Torts Against Persons
Wrongful Interference
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
13
Intentional Torts Against Persons
Wrongful Interference Defenses
• Defenses
– Interference was justified
– Interference was permissible.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
14
Intentional Torts Against Property
Trespassing
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
15
What do you think?
View the Video “Jaws” - Torts
In 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?
© 2005 West Legal Studies in Business
A Division of Thomson Learning
16
Unintentional Tort
Negligence
• 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
Did the
Did the
Did the
injury?
Defendant owe the Plaintiff a legal duty of care?
Defendant breach that duty?
Plaintiff suffer a legal injury?
Defendant’s breach of duty cause the Plaintiff’s
© 2005 West Legal Studies in Business
A Division of Thomson Learning
17
Unintentional Tort
Negligence
• 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).
© 2005 West Legal Studies in Business
A Division of Thomson Learning
18
Unintentional Tort
Negligence
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
19
Unintentional Tort
Negligence
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
20
Unintentional Tort
Negligence
• 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
21
Strict 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
22
Cyber 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 NonSolicited 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.
© 2005 West Legal Studies in Business
A Division of Thomson Learning
23
What do you think?
View the Video “Torts” Grocery Store
In 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?
© 2005 West Legal Studies in Business
A Division of Thomson Learning
24
Reflection
• 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
25