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04.14.2008 LPP 255 Class # 18

04.14.2008 LPP 255 Class # 18 - Tort Law Doing business...

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Unformatted text preview: Tort Law Doing business today involves risks, both legal and financial. A tort is a civil injury designed to provide compensation for injury to a legally protected, tangible or intangible, interest. There are intentional and unintentional (negligence) torts. Intentional Torts Against Intentional Torts Against Persons and Business Relationships The person committing the tort, the Tortfeasor or Defendant, must “intend” to commit the act. Intend means: – Tortfeasor intended the consequences of her act; or – She knew with substantial certainty that certain consequences would result. Types of Intentional Torts Types of Intentional Torts Assault and Battery. False Imprisonment. Infliction of Emotional Distress. Defamation. Invasion of Privacy. Business Torts. Assault and Battery Assault and Battery ASSAULT is an intentional, unexcused act that: – – – Creates a reasonable apprehension of fear, or Immediate harmful or offensive contact. NO CONTACT NECESSARY. – – – Intentional or Unexcused. Harmful, Offensive or Unwelcome. Physical Contact. BATTERY is the completion of the Assault: Defenses to Defenses to Assault & Battery Consent. Self­Defense (reasonable force). Defense of Others (reasonable force). Defense of Property. False Imprisonment False Imprisonment False Imprisonment is the intentional: – Confinement or restraint. – Of another person’s activities. – Without justification. Merchants may reasonably detain customers if there is probable cause. Intentional Infliction of Intentional Infliction of Emotional Distress An intentional act that is: – Extreme and outrageous, that – Results in severe emotional distress in another. Most courts require some physical symptom or illness. Howard Stern case Defamation Defamation Right to free speech is constrained by duty we owe each other to refrain from making false statements. Orally breaching this duty is slander; breaching it in print or media is libel. Defamation Defamation 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 Rule: Plaintiff must prove “special damages” (actual economic loss). Exceptions for Slander Per Se. No proof of damages is necessary if slander concerns: – – – – Loathsome disease, Business improprieties, Serious crime, Woman is non­chaste. Defenses to Defamation Defenses to Defamation Truth is generally an absolute defense. Privileged (or Immune) Speech. – Absolute: judicial & legislative proceedings. – Qualified: Employee Evaluations. Public Figures Public Figures Public figures exercise substantial governmental power or are otherwise in the public limelight. To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth. Invasion of Privacy Invasion of Privacy Every person has a fundamental right to solitude freedom from public scrutiny. – Use of Person’s Name or Likeness. – Intrusion on Individual’s Affairs or Seclusion. – Publication of Information that Places a Person in False Light. – Public Disclosure of Private Facts. Appropriation Appropriation Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent. Fraudulent Fraudulent Misrepresentation Fraud is intentional deceit. 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. Wrongful Interference Wrongful Interference Tort that interferes with a contractual relationship. Occurs when: – Defendant knows about contract between A and B; – Intentionally induces either A or B to breach the contract; and – Defendant benefits from breach. Case 12.1: Mathis v. Liu (2002). Wrongful Interference Wrongful Interference With a Business Relationship occurs when: – Established business relationship; – Tortfeasor, using predatory methods, causes relationship to end; and – Plaintiff suffers damages. Bona fide competitive behavior is a defense to this tort. Duty of Landowners Duty of Landowners Landowners have a duty to exercise reasonable care to business invitees. – In some jurisdictions the duty extends to trespassers as well. – Landowners should guard against foreseeable risks (owner knew or should have known). – New York standard Case 12.3: Martin v. Wal­Mart Stores, Inc. (1999). Causation Causation Even though a Tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff’s injuries. – Causation in Fact/Factual Cause, and – Proximate Cause. Case 12.4: Palsgraf v. Long Island RR Co. (1928). Defenses to Negligence Defenses to Negligence Assumption of Risk. Superceding Intervening Cause – If it is foreseeable or careless, then you are responsible. Contributory or Comparative Negligence Negligence Negligence Tortfeasor does not intend the consequences of the act or believes they will occur. Actor’s conduct merely creates a foreseeable risk of injury. Four elements – Duty Special Negligence Special Negligence Concepts Res Ipsa Loquitur – The thing speaks for itself. Negligence Per Se (3 components) Danger Invites Rescue Good Samaritan Statutes – Put a responsibility on the public to come to the aid of someone else Dram Shop – If you serve someone alcohol or is visibly intoxicated and they physically hurt someone, you can be held liable. (UNDER 21) Cyber Torts Cyber Torts Defamation Online. – Liability of ISP’s Liability no – Piercing the Veil of Anonymity. Spam. – Trespass to Personal Property. – Statutory Regulation of Spam ...
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