Torts and Cyber Torts

Chapter 4

Torts: An Introduction

• What is a Tort?– A civil wrong, not arising from a breach of

contract or other agreement.– A breach of a legal duty that proximately causes

harm or injury to another.

Torts: An Introduction

• Civil vs. Criminal Wrong– A tort is a “civil” wrong punishable by paying

damages to the injured party.– A tort is not a “criminal” wrong resulting in

paying a fine to the government and/or being imprisoned.

Torts: An Introduction

• Civil vs. Criminal Wrong– Some torts may also serve as the basis for

separate criminal prosecution by the state.– Burden of Proof is different:

• “beyond a reasonable doubt” for crimes• “preponderance of evidence” for torts

Torts: An Introduction

• Tort vs. Contract– The duty that is violated by the tortfeasor must

exist as a matter of law, not as a consequence of any agreement between the tortfeasor and the injured party.

Torts: An Introduction

• Elements of a Tort– Wrongful Act – Proximate Cause– Damages

Torts: An Introduction

• Proximate Cause– cause and effect relationship– a foreseeable and probable consequence of the

act or omission.

Intentional Torts:

• A tort intentionally or knowingly committed. It can be to a person or to property.

Intentional Torts: Assault

– An intentional act that creates a reasonable apprehension of immediate harmful contact.

– For example, pointing a gun at someone.

Intentional Torts: Battery

– An intentional harmful or offensive contact.– For example, getting hit by the bullet.

Intentional Torts: False Imprisonment

– The intentional confinement or restraint of another person’s activities without justification.

– Restraint may occur through the use of physical barriers, physical restraint, or threats of physical force.

Intentional Torts: Infliction of Emotional Distress

– An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

– Parodies of public figures protected

Intentional Torts: Defamation• Defamation is anything published or

publicly spoken that injures another’s character, reputation, or good name.

• Libel is defamation that is written.• Slander is defamation in oral form. • Truth is normally an absolute defense

against any claim of defamation.• Public figure has to prove actual malice.

Intentional Torts: Privacy

• Invasion of Privacy– Four acts generally qualify as improperly

infringing on another’s privacy:

Intentional Torts: Privacy• Appropriation: use of a person’s name or likeness

without permission.• Intrusion in an individual’s affairs where the

person has a reasonable expectation of privacy. • Public disclosure of private facts that an ordinary

person would find objectionable.• Publication of information that places a person in

a false light.

Intentional Torts: Fraud• Actionable fraud consists of the following

elements:– A misstatement of a material fact– Made knowingly or with reckless disregard for

the truth– With intention to deceive another – With justifiably reliance by a reasonable person

Intentional Torts: Fraud

Mere puffery, or “sales talk,” is not fraud because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person.

Intentional Torts: Tortious Interference

Intentional interference with a contractual relationship–Must be a contract between two parties–Third party must know the contract exists–Third party must intentionally cause a breach of that contract

Intentional Torts: Tortious Interference

Intentional Interference with a business relationship

- Must be some sort of predatory behavior

Bona Fide competitive behavior is a defense to tortious interference

Intentional Torts: TrespassEntry onto another person’s land without permission. It may be:

• On land• Above land• Below surface

It also may involve personal property,

such as a website

Intentional Torts: Conversion

• Wrongfully taking or retaining another’s property and placing it in service of another.

Negligence: Basic Principles• Elements of Negligence:

– Duty of care to act as a reasonable person under similar circumstances

– Breach of Duty– Proximate Cause– Of Damages to the Plaintiff.

Duty

• No duty to stop and render aid• Duty to aid if you were involved in accident• In your actions, act as a reasonable person

would act

Duty of Landowners

• Trespassers –Duty not to intentionally or recklessly

cause them harm.

Duty of Landowners

• Licensees - social guests and other persons not on the premises for any business purpose–Duty to warn of any known dangers

Duty of Landowners

• Invitees - persons who come onto premises for business purposes, including retail and other establishments–Duty to warn of known dangers and those

dangers owner should know about

Defenses to Negligence

• Assumption of Risk• Superseding Cause

Negligence: Damages• Tort law recognizes two categories of

damages: – Compensatory damages - Designed to

reimburse actual value of the plaintiff’s injury or loss

– Punitive damages - Designed to punish the tortfeasor and to deter similar conduct in the future.

Contributory and Comparative Negligence

• Contributory Negligence– Any negligence on the part of the plaintiff that

contributed to the injury is an absolute bar to the recovery of damages.

– It does not matter how insignificant the plaintiff’s own negligence is compared to that of the defendant.

Contributory and Comparative Negligence

• Comparative Negligence– Once it is established that negligence of both

parties caused the damages, the court must apportion negligence among the parties on a percentage basis.

– Adopted by statute in some form in all states– Over 50% “no recovery” rule in Texas and

other states

Strict Liability• Liability regardless of fault.• Imposed on defendants whose activities are

abnormally dangerous and/or involve dangerous animals.

• Imposed also on manufacturers, distributors, and sellers of any products which are “defective”

Torts and Cyber Torts

Chapter 4