bus law chapter 4 torts and cyber torts

7/26/2019 BUS LAW Chapter 4 Torts and Cyber Torts

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Chapter 4: Torts and Cyber Torts

Torts: def.: a wrongful act (other than a breach of contract) that results in harm or injuryto another and leads to civil liability

Business torts: wrongful interference with another s business rights and relationshipso !nfair competition" wrongfully interfering with the business relations of others

Cyber tort: a tort committed in cyberspace

I. The Basis of Tort Law

Two notions serve as basis: wrongs and compensation#esigned to compensate those who have suffered a loss or injury due to another person swrongful act$ne person or group brings a personal suit against another person or group to obtaincompensation (monetary damages) or other relief for the harm suffered

A. The Purpose of Tort Law

To provide remedies for the invasion of various protected interests%emedies for acts that cause physical injury or interfere with physical freedom andsecurity

o &rotecting real and personal property" destruction or damage of property" personal privacy" family relations" reputation" dignity

B. Damages Available in Tort Actions

Compensate injured party for damage suffered

1. Compensatory Damages

Compensatory damages: a monetary award e'uivalent to the actual value of injuries ordamage suffered by the aggrieved party

o To ma e the plaintiffs whole and put them in the same position that they wouldhave been

Bro en down into special damages and general damages .pecial damages compensate the plaintiff for 'uantifiable monetary losses

o *edical e+penses" lost wages,eneral damages compensate individuals (not companies) for the nonmonetary aspects of harm suffered

o &ain and suffering" loss of companionship


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. Punitive Damages

&unitive damages: monetary damages that may be awarded to a plaintiff to punish thedefendant and deter similar conduct in the future

o $nly when the defendant s conduct was particularly bad or unacceptable

#amages usually in intentional tort actions and rarely in negligence suitsCan be awarded in gross negligence suits " defined as intentional failure to perform amanifest duty n rec less disregard for the conse'uences of such a failure to life and

property of anotherCourts e+ercise great restraint because punitive damages are subject to the imitations ofimposed by due process

o -+cessive award furthers nothing legitimate and violates due processo ppellate court will then reduce the award

C. Tort !eform

Critics say torts encourages too many trivial and unfounded lawsuits" clogging courtsystems

o wards are e+cessive and have nothing to do with the lawsuit while imposingsociety with tort ta+

/hat s wrong with it and how to stop" reduce it &, 01

D. Classi"cations of Torts

2ntentional and unintentional torts

II. Intentional Torts against Persons

2ntentional tort: a wrongful act nowingly committedTortfeasor: one who commits a tort

n evil or harmful motive is re'uired for a torto The person committing the act may even have a beneficial motive for committing

what turns out to be a tortious act2ntent means only that the actor intended the conse'uences of his or her act or new withsubstantial certainty that certain conse'uences would result from the act

o #oesn t have to be harm

A. Assault an# Battery

ssault: any word or action intended to ma e another person fearful of immediate physical harm 3 a reasonable believable threat

o Committed even if no contact was made towards plaintiff


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Battery: une+cused" harmful or offensive" physical contact with another that isintentionally performed

o &hysical injury need not occuro Can involve any part of the body or anything attached to ito lso as a force set in motion by the defendant 3 throwing of roc

/hether act is offensive or not is determined by the reasonable standard&laintiff can compensate for physical as well as emotional harm#efenses: a reason offered and alleged by a defendant in an action or lawsuit as to whythe plaintiff should not recover or establish what she or he see s

B. $alse Imprisonment

False imprisonment is the intentional confinement or restraint of another person sactivities without justification

o 2nterferes with the freedom to move without restrainto

ccomplished through physical barriers or restraint or threats of force*oral pressure or threats of future harm do not constitute false imprisonmentuspected shoplifter give suits 3 business owner can only use reasonable force

o %easonable manner in reasonable time

C. Intentional In%iction of &motional Distress

This can be defined as an e+treme and outrageous act" intentionally committed" thatresults in severe emotional distress to another

ctionable: capable of serving as the basis of a lawsuit. n actionable claim can be pursued in a lawsuit or other court action

o 5as to be e+treme and outrageous

1. 'utrageous Con#uct

Courts war of emotional distress suitso $nly due it in true outrageous cases

%epeated annoyances" li e stal ing" coupled with threats are sufficientcts that cause indignity or annoyance alone do not wor

. Limite# by the $irst Amen#ment

/hen outrageous conduct consists of speech about a public figure" freedom of speechlimits emotional distress

D. Defamation


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Courts must balance free speech against other strong social interests" li e preventingattac s on reputation #efamation: anything published or publicly spo en that causes injury to another s goodname" reputation" or character#uty to refrain from ma ing false, defamatory statements of fact about others

Breaching this duty in writing is libel6ibel: defamation in writing or another form having the 'uality of permanence (such asdigital recording)

lander: defamation in oral formlso about false statement of fact about a person s product" business

1. (tatement of $act !e)uirement

2ssue whether statement was of fact or opinion2f of opinion normally are not actionable because protected by first amendment

. The Publication !e)uirement

Basis of tort of defamation is the publication of a statement or statements that hold anindividual up to contempt" ridicule or hatred&ublication means that the statements are communicated to persons other than thedefamed party

o #ictated letter to secretary but not if privilegedo 2f a third party hears something by chance it countso lso statements made via the internet

*. Damages for Libel

$nce defendants liability for libel is established general damages are presumed as amatter of law

o Compensate for nonspecific harmo &laintiff does not need to prove harm

+. Damages for (lan#er

The plaintiff must prove special damages to establish the defendants liabilityo

2t actually caused economic or monetary loss2f cannot be proved the lawsuit can t continuelander per se don t need proof

o &erson has loathsome diseaseo Committed improprieties during business" profession or tradeo Committed or imprisoned for serious crimeo 2s unchaste or engaged in serious se+ual misconduct


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,. Defenses against Defamation

Truth is an absolute defenseo 7o tort has been committed if statement is true 3 can be proven true

2f the statement is privileged or concerns a public figure

a- Privilege# Communications

&rivilege: a special right" advantage" or immunity granted to a person or a class of persons" such as a judge s absolute privilege to avoid liability for defamation overstatements made in the courtroom during a trial

o bsolute privilege 3 judicial proceedings and certain government oneso 8ualified or conditional privilege 3 statements made in good faith and publication

is limited

b- Public $igures

They are considered fair game9alse and defamatory statements made in press don t constitute as defamation as long asthere is no actual malice

ctual malice: the deliberate intent to cause harm that e+ists when a person ma es astatement with either nowledge of its falsity or rec less disregard of the truth.

&. Invasion to the !ight to Privacy an# Appropriation

Tort law safeguards privacy rights through torts of invasion of privacy and appropriation

1. Invasion of Privacy

a- Intrusion into an In#ivi#uals A airs or (eclusion

2nvading someones home or illegally searching through their things is an invasiono /indow peeping wiretap

b- $alse Light

&ublication of information that places a person in a false light

c- Public Disclosures of Private $acts

&erson publicly discloses private facts about an individual that an ordinary person wouldfind objectionable or embarrassing


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#- Appropriation of I#entity

!sing a person s name" picture" or other li eness for commercial purposes without permission

. Appropriation

ppropriation: in tort law" the use by one person of another person s name" li eness" orother identifying characteristic without permission and for the benefit of the user

o ome courts say an animated character in a video or video game are not enoughsimilarities

$. $rau#ulent /isrepresentation

*isrepresentation leads another to believe in a condition that is different from the onethat e+ists

o ccomplished through a false or incorrect statemento ome people do this unaware

9raudulent *isrepresentation: any *isrepresentation" either by misstatement or byomission of a material fact" nowingly made with the intention of deceiving another andon which a reasonable person would and does rely to his or her detriment2ntentional when:

o *isrepresentation of fact is said with nowledge of falseness or disregard fortruth

o

2ntent to induce another to rely on *isrepresentationo ustifiable reliance by deceived partyo #amage suffered as result of relianceo Casual connection between *isrepresentation and injury suffered

9raud to occur it has to be more than puffery&uffery: a salesperson s often e+aggerated claims concerning the 'uality of propertyoffered for sale. uch claims involve opinions rather than facts and are not legally

binding promises or warranties9raud 3 the person needs to represent as a fact something they now is not true

1. (tatements of fact versus 'pinion

Tort of *isrepresentation or fraud occurs only when there is reliance on a statement offact

ometimes on statements of opinion if the individual giving the statement has superiornowledge of subject matter


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. 0egligent /isrepresentation

Tort can arise from *isrepresentations that are made negligently rather than intentionally#ifference is nowledge of falsity

7egligent *isrepresentation re'uires only that the person have a reasonable basis for

believing its truthfulnesso 6iability for this happens only when there was a duty to the plaintiff to produce

correct information; ttorneys and accountants

. Abusive or $rivolous Litigation

&eople have a right not to be sued without legally just and proper reason therefore it protects individuals from the misuse of litigation

busive litigation

bus law chapter 4 torts and cyber torts

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