Chapter 5 outline - Chapter 5 Torts and Cyber Torts CHAPTER...

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Unformatted text preview: Chapter 5: Torts and Cyber Torts CHAPTER IOUTLINE II. The Basis of Tort Low Most crimes involve torts. but the commission of a tort is not always a crime. A crime is an act so reprev hensihie that it is considered to be a wrong against society as a we. The state prosecutes criminals. ell-Io may receive iall terms, lines, or both. A tort action is a civil action in which one person brings a suit of a per- sonal nature against another. The state is not a paler. and the judgment may Impose damages but no Isl term. A. THE PURPOSE OF TORT LAW The function of tort IainI is to provide an injured party tirilh a remedy for the invasion of legally recognized and protected interests {personal safety. freedom of movement. property. and some intangibles. 'ncludlng privacy and reputation}. B. DAMAGES AVAILABLE III TORT AGTIONS 1. Compensatory Damages Special damages cover quantifiable losses, such as medical expenses. lost wages and benefits. the loss of Irreplaceable items, and the costs of repairing or replacing damaged property. General damages are for non-monetary hann. such as pain and suffering. less of companionship, less of consonlurn, disfiguement. loss or reputation, and loss or Impainnent or mental or physical capacity. 2. Punitive Damages These purish a wrongdoer and deter others from sirniar wrongdong. and are aivardad only 1nit-en conduct was partictlariy egregious or reprehensible. Punitive damages are subject to the limits of the due process clause of the US. Constitution. 6. CLASSIFICATION or fonts T: text classifies torts as Intentional or unintentional. Tons cenmltted via the Internet are referred to as b er torts. Intentional Torts against Persons An intentional tort requires intent Intent means that the actor intended the consequences of his or her act or knell-r with stiestantial certainty that certain consequences wwld result from the act. The law generallyr as sumes that one intends the normal consequences of his or her actions. Thus a push is an intentional tort be; cause the object ofthe push can ord'liarill_.r be expected to go flying. A. WULT AND BATTERY 1. Assault any intentional, unexcused sot that creates in another person a reasonable apprehension or tear of irnrneciata han'rrful or offensive contact is an assatlt. If the contact is such theta reasonable person would want to avoid it. and if there is a reasonable basis for believ'ng the contact is coming, then the plaintiff suffers apprehension whether or not he or she is afraid. The interest protested is freedom from hav'ng to expect harmful or offensive contact. 2. Battery The completion of the act that caused the assault. if it results In harm to the plaintiff, is a battery. A battery is an met-tweed, harmful. or offensive physical contact intentionally- performed. The interest protected is the right to personal security and safety. The contact can be to any part of the leodjtr or anything attached to it—includi'tg an automobile 'I't Iltlt'tich one is sitting. The contact cart be made B. G. D. by some force that the defendant sets in motion. Damages from a battery can be for emotional han'n or loss of reputation as well as for physical harm. 3. Defenses to Assault and Battery The defenses discussed in the text are Goneent: When a person consents to the act that hanns him or her. there' Is no liability for the damage done. This defense is good only as long as the defendant remains 1Illithin the boundaries of the consent giyen. . Self-defense: An 'ndllridual who is defending his or her life or physical welt-being may use self-defense—that is. 1Illhatlellrerfcrce is reasonably necessary to prevent harmful contact This defense extends to real danger and apparent danger. but force cannot be used once the danger has passed (and revenge is ahyays prohibited]. I Defme of Others: An indiuiclual can act In a reasonable mamer to defend others who are in danger. - Defeme of Property: Individuals may use reasonable force to defend property. but not force that is lilcely to cause death or great ltlodityr injury. FALSE IllPRlE-CIHIEIT False imprisonment is the Intentional oonlinement or restrain of another person without Justification. The Interest protected Is the freedom to move without restraint Confinement can be by physical beniers. pinslcal restraint. or threats of physical force. Moral pressure or threats of future consequences are not sufficient. Elusirlesspersons are often stfoiectto suits for false imprisonment after attempting to ccnfne suspected shoplilters. Most states allow a merchantto detain a suspected shoplifter. if there is reason- able cause for suspicion and the confinement is reasonable. In some states. a merchant Ian use the defense of probable cause. INTENTIOHAL II'IFLICTION OF 3011an DISTRESS Intentional infliction of emotional distress is an act that amounts to extreme and otttrageous conduct resulting in severe emotional distress to another. The tows in an emotional distress suit is usually on the nature of the act—a single indignity or annoyance may not be enough. but repeated annoyances. coupled with threats. may be. In a business context. for example. the repeated use of extreme methods to collect a delinquent account may be actionable. A few states require that distress be evidenced by some physical ilness. DEFmATloll Wrongtirlly hurting another's reputation is defamation. Doing so orally is slander: doing it in writing or in a form of communication that has the potentially harmful qualities characteristic of writing (pictures. sighs. statues. and films} is libel. 1. The Publication Requirement Defamation requires that the publication of the statement {that is. that it be communicated to someone other than the defamed party). 2. Damageslor libel Because libelous statements are ‘written. can be circulated 1Illidety. and are typically a result of detioeralion. general damages are presumed. Showing an actual injury is not required. it. Damages for Slander Because slanderous statements have a temporary dually. special damages must be plotted. Proof of injury—an actual economic loss—is required. The exceptions are - A statement that another has a loathsome disease {inclusing sexually transmitted diseases and mental ilness}. . A statement that another has committed improprielies 1Ilt'lite engaging in a profession or trade. - A statement that another has committed or has been imprisoned for a serious crime. - A statement that an unnamed woman is unchaste. It. Defenses against Defamation These include the truth. Dther defenses are r A pnwlege {for example. statements made by judges among a trial}. which may be quaified. or conditional. r The lack of actual malice {knowledge of falsity or reckless daregard for the truth}, as to statements made about in the press about public figures. INVASION OF THE RIGHT To PRIVACY Four different acts qualify as tortious Invasions of privacy. These are Using a person's name or picture or other likeness for commercial purposes without permission. - Intruding into an individuan affairs or seclusion {invading someone‘ s home. ilegally searching scmeone’s belongings. eavesd'opping by wiretap. unauthorized scanning of a bank account, compulsory blood nesting, window peeping}. . Publishing Information that places a person in a false tight. - moiety disclosing private facts about an Individual that an ordinary person would find objectionable. APPRCIPRIATlcf-l The use of one person’s name or likeness by another, without permission and for the benefit of the user, is appropriation {known in many states as the right of publicity}. This Is not limited to the appropriation of nerne or Ikeneee. An Intividual's light to privacy includes the right to the sedusiva use of his or her identity and the financial interest in its commercial exploitation. FRAUDULENI’ Hessensssuunou The elements are— *Misrepreaentatiun of facts or conditions with knowledge that they are false or with reckless daregard for the truth. -lntent to induce another to rely on the misrepresentation. -Justifiad:rle reiance by the deceived party. -Damages. - A causal connection between the misrepresentation and the injury suffered. 1. Fact vs. Opinion To constitute fraudulent misrepresentation. a statement of fact must be involved: reliance on an opinion is not justified unless the person melting the statement has superior knowledge of the subject matter, and puffery. or seller’s talk. (‘Thls is the best produott'} is too subjective. 2. Negligent Illsrepresentatlon Unlike ordinary fraud, negligent misrepresentation does not require Imowtedge that a representation is false nor intent to defi'aud, but only the lack of a reasonable basis for believing a statement is true. ABUSNE DR FRIWLOIJS LITIGATION Persons have a right not to be sued in the absence of a legally just and proper reason. Torts related to abusive litigation Include malicious prosecution {suing out of malice without probable cause} and abuse of process [using a legal process In an Improper manner or to accomplish a purpose for which it was not designed}. The latter does not require proof of malice or a loss In a prior legal proceeding. WRONGFUL IN'I'ERFEREHCE Business torts involving wrongful interference are generally divided into two categories: interference with a contractual relationship and interference with a business relationship. 1. WM Interference IltI'lli'l I Contraomal Relationship Any lawful contract can be the basis for this action. The plaintiff must prove that the defendant achIaIIy induced the breach of a contractual relationship, hot-raver, not merely that the defendant reaped the benefits of a broken contract. The elements are r A valid, enforceable contract between two parties. - A mid party’s knowtedge of the contract. - The third party's intentionally causing either of the m parties to break the contract. 2. Wrongful Interference with a Business Relationship Individuals may not interfere unreasonably with another's business to gain a share of the market. The distinction between competition and predatory behavior often depends on whether a business is attempting to attract customers it general or to solicit only those customers who have al'eady shown an i-rterset it the predict or service of a competitor. 3. Defenses to Wronghl Interference There is no liability if the interference was permissible. Elena fide competitive behavior is a privileged interference even it it results in the breaking of a contract. The public policy that favors free competition in advertising outweighs the instabiity that competitive activity might cause in contractual relations. III. Intentional Torts against Properly A wrong against property is a wrong against the individual who has legally recognized rights with regard to the property. The law categorizes property as real property {land and tings permanently attached thereto} and personal property {tires that are movable}. A. G. masnsss To LAND Trespass to land occurs when a person, without pernission, enters soothers land, or causes anylt'ring or anyone to enter the land. or remains on it, or penhils anylhhg to remain on it. 'I. Trespass Criteria, film, and Duties Henri to the land is not required. but it no harm is done, usualy only nominal damages are recov- erable. Elf course. reasonable intrusions are perrritted—aircral‘t can fly over privately owned land. Tiaspaseers include guests who are asked to leave. A trespasser is Iainle for property damage. A trespasser assumes the risks of the premises {unless the owner laid a trap to injure a trespasser or had a mty to warn of dangers on the property]. it trespasser can be removed by reasonable force. 2. Defenses against Trespass to Land A complete defense to a charge of trespass exists if the trespass is warranted, as when one enters to help another it danger. Another defense is that the so-oalled owner (id not have rights to the PmPa't'f- TRESPASS To PERSONAL PROPERTY Iu'lr'hen an individual urilawtuly harms another‘s personal property or otherwise interferes with the owner‘s right to exclusive possession and enjoyment. trespass to personal property omurs. The tort mayr entail acts of damage. disposeesslon. or bothanything that diminishes the condition, quality. or value. A complete defense exists if the trespass was warranted. GDNVERSIDN When a person wrongfully possesses or uses the personal property of another as if the property belonged to them, conversion occurs lEtonlrersion Is a trespass to personal property so serious that a converter can be forced to buy the property. Unlawfully taking property is o'espass', mlswftlly retaining It Is conversion. Believing one is errtilied to the property Is not a defense. Thus, someone who buys stolen goods is guilty of conversion even it he or she did not know the goods were stolen. IWhen property is not destroyed through conversion. the owner can seek its return or ask for damages. One defense is that the puported dimer has no rights in the property. DlSPARAGEIilENT OF PROPERTY Disparagentent of property occurs when economically injtlious falsehoods are made about anoti'rer's product or property. 1. Slanderofcttreity Publication or false Information about another‘s product. alleging it is not what its seller claims. is slander of quality. Actual damages must be proved. Improper publication may be both slander of quality and defamation. 2. Slander of Title When publication denies or casts doubt on another’s legal ownership of property. and when this results in financial loss to the owner. stander of title may exist. Usually, someone Imowingty publishes an untrue statement about property with the intent of discouraging a ttird person from dealing with the person slendered. W. Unintentional Torts {Negligence} Under negligence theory. a tortfeasor neither wishes to bring about the consequences of an act nor believes that they will ocwr. The actor's conduct merely creates a risk of the consequences. tt-I'ithwt the creation of a risk. there can be no negligence. The risk must be foreseeable—that is. it must be such that a reasonable person wotld anticipate it and guard against it. In determining whether the conduct creating the rislc was reasonable. courts consider the nature of the possible harm. it. very slight rislc of a dangerous explosion might be unreasonable; a distinct possibility of burning one‘s fingers on a stove might be reasonable. Negligence Involves four elements— 1. A duty of care. 2. A breach of the dun. 3. A legally recognizable Injury. 4. Causation [the breach must have caused the 'njury]. A. it. THE DUTY 0F CARE AND ITS BREACH Failing to exercise reasonable care is potentially tortuous conduct. The failure may be an act [setting fire to a building] or an emission (neglecting to put out a fire}; it may be intentional or careless; it may be unavoidably dangerous. Whether conduct ls unreasonable depends on a number ot factors: the nature of the act. the manner in which the act is pertmned. the nature of the Injury. whether the activity caus'ng the injury was socially useflll, and hov-r easilyr the 'njury could have been guarded agaiist. 1. The Reasonable Person Standard Duty is measured by a standard of reasonableness. The measure is objective—how would a rea- sonable person act in the same circumstances? The answer defines the duty: A reasonable per- son would exercise reasonable care. An individual with knowledge. sttil. or Intelligence superiorto that of an ordinary person has a higher standard of care—his or her duty is that which is reasonable in light of these capabilities. 2. The Duty or Landowners Business firms that invite persons onto the: premises usualy have a duty to exercise reasonable core to protect their business invitees against foreseeable risks that the owner knew or should have known about. THE IuJunv REQUIREMENT AND DAMAGES WIthout an injury (loss. hsirn, wrong. or invasion of e protected Interest}. there is nothing to recover. The purpose of damages is to compensate injured parties To discourage {Teclely reprehensible behavior. however. punitive damages may be awarded. Elms-“ION The breach of the duty of care must have mused the harm for which recovery is sought. There must be {1} causation In fact and {2} the act must he the proximate cause of the iniuy If an injury would not have oowrred without the breach. there is causation In fact. Causation in fact can usualy be determined by the but-for test But for the wrongful act. the injury would not have scoured. Proximete cause is a question not of fact but of law and policy: is the connection between an act and an Injury strong enough to justify imposhg liability? v. Defenses to Negligence A. ASSUMPTIOH OF RISK Assumption of risk requires that the irjured person knew of the rial: and voluntarily assumed it. B. SUPERBEDINB CALBE A. stperseoing intervening force brealts the connection behvsen a wrongful act and an 'njury. C. COHTRIBUTOEY AND COHFMAHVE NEGLIGENCE In a few states. contributory negligence absolves the tortieasor oompletely it the 'njured person failed to exercise reasonable care. In most states. comparative negligenoe reduces the amomt of the tortfeasor's liability if the injured person filed to exercise reasonable care. VI. Special Negllgence Doctrines and Statutes A. RES PEA LOQL'IR'UR Negllgenee may be inferred {and a defendant n'rust prove that he or she was not negllgentj iI' the event causing damage or injury is one that ordinarily does not occur in the absence of negligence—tram derailments. tall'ng elevators. and so on. It must be caused by something within the exclusive control of the defendant. and it must not have been due to any act on the part of the 'njtred party. B. HEELIBENGE PER SE Negligence per as may oowr it an individual violates a statute provld'rrg tor a ltir'l'rr'nal penalty and that violation causes another to be injtred. The injured person must prove (1} that the statute Clea-1y sets out the expected standard of oonduct. when and where it is expected. and of whom it is expected] {2} that he or she is in the class intended to be protected by the statute; and {3] that the statute was designed to prevent the type of injt.lryr suffered. o. “DANGER litrlTEs REec'UE" DOCTRINE It a person oommits an act that endangers another. the person oommitting the act will be liable for any injuries the other party sutlers as well as any injuries suffered by a third person attempting to rescue the endangered party. til. $PE¢IAL HEELIGENizE STATUTES Most states have Good Samaritan statutes. under which persons who are aided voluntarily by others cannot sue them for negligence. Many states have dram shop aots. under whim a tavern owner or bartender may be liable for injuries cattsed by a person wl'io became interdoated while drinking at the bar or who was already intoxicated when served. In some states, statutes irrrpose liability. without proof of negllgence. on soelel hosts {persons hosting parties] for injuries caused by guests urine beams intonceted at the tosls‘ homes. VII. cyber Torts Cyber torts are torts committed in cyberspace. The issues generally are who should be liable and hot-ir to prove. for example. that a defamatory remarlt was "published." A. DEFAHATION QNLINE Under the Communications Decency Act {CI-DA} oi 1996. Internet service providers [ISPsJu are not liable for the defamatory remarks of those who use the: services. B. SEMI Spam is junk e-mail. The First Amendment limits what the got-remnant can do to restrict it. but its send'ng may oonstitute trespass to personal property. The Controlling the Assatlt oi Non-Solicited Pomegraphy and Marketing {CAN—3PM] so: preempts state antispan'r statutes to permit the use of unsolicited commercial e-mail but prohibit certain spamming activities [details are listed in the text}. R.L. Miller. F.B. Cross {200?}. The Legal Environment Today [EIh edition}. Scum-Western Cengage Learning ...
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