Transcript CHAPTER 4 Torts and Cyber Torts Learning Objectives • What is a tort? • What is the purpose of tort law? What are the.

CHAPTER 4
Torts and Cyber Torts
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?
Basis 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.
Intentional Torts
-- Intentional Torts against Persons
•
•
•
•
•
•
•
Assault
False Imprisonment
Infliction of Emotional Distress
Defamation
Invasion of Privacy
Fraud
Tortious Interference – Contracts or business relations
– Intentional Torts against Property
•
•
•
•
Trespass to Land
Trespass to Personal Property
Conversion
Disparagement of Property
Unintentional Torts – Less culpable state
than intentional required:
• Negligence
– Normal Negligence
– Gross Negligence
– Res Ipsa Loquitur
– Negligence per se
– Statutory Doctrines
• Strict Liability
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 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.
Intentional Torts Against Persons
• 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.
Intentional Torts Against Persons
• Defamation (cont’d).
– Slander per se (no proof of damages is
required):
• Loathsome communicable disease.
• Professional impropriety.
• Imprisonment for a serious crime.
• Unmarried woman is unchaste.
Intentional Torts Against Persons
• Defamation (cont’d).
– 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.”
Intentional Torts Against Persons
• Invasion of the Right to Privacy.
– Person has the right to solitude. Breach of
that duty is a tort.
– Appropriation.
– False Light.
– Public Disclosure of Private Facts.
– Rights of Internet users?
Intentional Torts Against Persons
• Misrepresentation (Fraud).
– 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.
Intentional Torts Against Persons
• 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.
Intentional Torts Against Persons
• 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
• Trespass to Land.
• Trespass to Personal Property.
– Register.com v. Verio, Inc. (2004).
• Conversion.
• Disparagement of Property.
– Slander of Quality.
– Slander of Title.
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--Elements
• Duty of Care owed by the Defendant to the
Plaintiff
• Defendant breached that duty
• Plaintiff suffered a legal injury
• Defendant’s breach of duty was
proximate cause of Plaintiff’s injury
(cause in fact and foreseeable)
Negligence
• 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 business invitees and
tenants to keep common areas safe.
• Martin v. Wal-Mart Stores, Inc. (1999).
– Duty of Professionals to clients (attorneys,
CPA’s, doctors).
Negligence
• Injury Requirement and Damages
– Plaintiff must suffer a legally recognizable
injury.
– Not all injuries can be compensated.
• Proximate Cause
– Causation in Fact (“but for” test).
– Foreseeable Result
– Palsgraf (1928).
Negligence
• Defenses:
– Assumption of the 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.
Negligence
• 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
• 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.
MGMT 3312
BUSINESS LAW
Torts Review Questions
Diane, a clerk at an Entertainment Unlimited
store, takes a DVD player from the store
without permission. Diane is liable for
•
•
•
•
a. appropriation.
b. conversion.
c. disparagement of property.
d. wrongful interference with a business
relationship.
At Sea Food Cafe, Tom believes that he
was overcharged and shoves Wally, a
waiter. Wally sues Tom, alleging that the
shove was a assault and battery. Tom is
liable if
•
•
•
•
a. Sea Food did not overcharge Tom.
b. the shove was offensive.
c. Tom acted out of malice.
d. Wally did not wait on Tom.
Bob, a driver for City Delivery Company, carelessly leaves
the truck's motor running while he makes a delivery. The
transmission engages and the truck crashes into a nearby
gas station pump, igniting a fire that spreads quickly to a
construction site a block away. A burned wall collapses
onto a crane, which falls on, and injures, a bystander,
Carol. What must Carol show to recover damages from
Bob?
•
•
•
•
a. that the wall was improperly built
b. that Bob’s carelessness was the cause in fact of her
injury
c. that Bob’s carelessness was the proximate cause of
her injury
d. both b. and c.
In the situation described in the preceding
question, what would Carol’s biggest
challenge be in showing that Bob’s actions
were the proximate cause of her injuries?
• a. that it was foreseeable that Bob’s actions with
his car could lead to the crane falling on Carol
• b. that Bob had a duty to Carol to turn off his
motor
• c. that Bob was negligent in not maintaining his
truck
• d. that it was foreseeable that Carol was
standing beneath the crane
Alpha Engineering Corporation has a contract with Beta
Mart Stores to provide customized software for Beta's
inventory control system. Discount Outlets, Inc, Beta's
competitor, induces Tom, an Alpha subcontractor who is
writing code for the Beta software, to delay delivery of the
code for one week. As a result, Alpha's delivery of the
software is delayed, and Beta sustains $500,000 in lost
profits. Which of the following is true?
• a. Discount Outlets has committed fraud with respect to Beta.
• b. Discount Outlets has acted aggressively and perhaps unethically,
but has committed no actionable tort.
• c. Tom is the only responsible party.
• d. Discount Outlets is guilty of tortuous interference with existing
contractual relations of Alpha.
Bob pushes Carol. Carol falls and breaks
her arm. Bob is liable for the injury
• a. if Bob intended to push Carol.
• b. only if Bob did not intend to break Carol's arm.
• c. only if Bob had a bad motive for pushing
Carol.
• d. only if Bob intended to break Carol's arm.
Rod, a van driver for Standard Delivery
Company, causes a multi-vehicle accident
on a city street. Rod and Standard are liable
to
• a. all those who were injured.
• b. only those who were uninsured.
• c. only those whose injuries could have
been reasonably foreseen.
• d. only those whose vehicles were closest
to Rod's van.
Jill accuses of Ken of committing an assault.
A person commits an assault if he or she
creates in another an apprehension or fear
of
•
•
•
•
a. future harm.
b. immediate harm.
c. past harm.
d. past, present, or future harm.
Direct 2U, Inc., floods the e-mail boxes of
the employees of Eagle Corporation with
unsolicited ads to the extent that the
employees cannot e-mail each other. Direct
may have committed
•
•
•
•
a. appropriation.
b. disparagement of property.
c. trespass to personal property.
d. wrongful interference with a business
relationship.
Ron, the manager of Sav-Mart Discount Store,
detains Tina, whom Ron suspects of shoplifting.
Tina sues Ron, alleging that the detention was
false imprisonment. Ron and/or Sav-Mart are liable
if Tina
•
•
•
•
a. did not actually shoplift.
b. had not shoplifted in the past.
c. had probable cause to leave the premises.
d. was detained for an unreasonably long time.
An Iowa state statute requires amusement parks to
maintain equipment in specific condition for the
protection of patrons. Jack's Amusement Park fails
to maintain its equipment as required. Kathy, a
patron, is injured thereby. Jack's has committed
•
•
•
•
a. a dram shop act.
b. a Good Samaritan act.
c. negligence per se.
d. res ipsa loquitur.
Jill invites Ken into her apartment. Ken
commits trespass to land if he
• a. enters the apartment with fraudulent intent.
• b. harms the apartment in any way.
• c. makes disparaging remarks about Jill to
others.
• d. refuses to leave when Jill asks him to go.
Todd files a suit against United Media
Corporation for defamation. Actual malice
must be shown for recovery of damages if
Todd is
•
•
•
•
a. a corporate officer.
b. a non-citizen.
c. a private individual.
d. a public figure.
Beth is injured in a car accident and sues
Curt, alleging negligence. Curt claims that
Beth was driving more carelessly than he
was. Comparative negligence may reduce
Beth's recovery
• a. even if Beth was only slightly at fault.
• b. only if Beth was as equally at fault as
Curt.
• c. only if Beth was less at fault than Curt.
• d. only if Beth was more at fault than Curt.
Betty owns a large ranch in Colorado. Dan
drives his sport utility vehicle off a highway
and onto Betty's land. Dan commits trespass
only if he
• a. does not have Betty's permission to drive on
the property.
• b. drives onto the property for recreational
purposes.
• c. harms the property in a material way.
• d. harms the property in any way.
Leo hears Mona falsely accuse Nick of
stealing from their employer. The statement
is defamatory
• a. because a third party heard it.
• b. only if Nick suffers emotional distress.
• c. only if the statement is also published in the
media.
• d. only if the statement was made in an
annoying manner.
Fred files a suit against Gail for conversion
of property that Fred asserts he owns. Gail
will not be liable if she can show that
• a. Fred does not intend to use the
property.
• b. Fred has no interest in the property.
• c. Gail has no interest in the property.
• d. Gail intended to return the property.
Mary is accused of slander. Slander
includes
•
•
•
•
a. oral defamatory statements only.
b. written defamatory statements only.
c. oral and written defamatory statements.
d. none of the above.
Kelly is an appliance salesperson. Kelly
commits fraud if, to make a sale, she
• a. discloses the truth.
• b. represents as a fact something that she
knows is untrue.
• c. states an opinion concerning something that
she knows nothing about.
• d. uses puffery.