Chp 4: Torts And Cyber Courts

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Tort

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A wrongful act(other than a breach of contract) that results in harm or injury to another and leads to civil liability.

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Business Tort

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Wrongful interference with another's business rights and relationships.

Include vague concepts such as unfair competition and wrongfully interfering with the business relations of another.

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Cyber Tort

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A tort committed in cyberspace

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The Basis of Tort Law

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Two notions serve as the basis of all torts: wrongs and compensation

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Damages

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A monetary award sought as a remedy for a breach of contract or tortious action.

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The Purpose of Tort Law

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To provide remedies for the invasion of various protected interests, such as personal physical safety, real and personal property, and intangible interests(personal privacy, family relations, reputation, and dignity).

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Compensatory Damages

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A monetary award equivalent to the actual value of injuries or damages sustained by the aggrieved party; intended to compensate plaintiffs for actual losses and make them whole and put them back in a pre-tort condition.

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Special Damages

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Compensate plaintiff for the quantifiable monetary losses, such as the cost of repairing or replacing damaged property and other expenses and items.

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General Damages

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Compensate individuals(not companies) for the nonmonetary aspects of the harm suffered, such as pain and suffering.

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Punitive Damages

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Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

Only appropriate when the defendant's conduct was particularly egregious, available mainly in intentional tort suits, and courts exercise restraint in granting it because excessive punitive damage awards could violate the due process clause.

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Tort Reform

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Critics view current tort law as a system that disproportionately rewards a few plaintiffs while imposing a "tort tax" on businesses and society as a whole.

Measures to reduce number of tort cases:

1. limiting the amount of both punitive and general damages that can be awarded

2. Capping attorney contingency fees

3. Requiring losing party to pay both the plaintiff's and defendants expenses.

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Classifications of Torts

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1. Intentional torts

2. Unintentional torts

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Intentional Tort

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A wrongful act knowingly committed even if there was no evil or harmful motive.

In tort law, intent means only that the actor intended the consequences of his or her act or knew with substantial certainty that certain consequences would result from the act.

tort law, generally assumes that individuals intend the normal consequences of their actions.

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Tortfeasor

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One who commits a tort.

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Assault

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Any word or action intended to make another person fearful of immediate physical harm- a reasonably believable threat; no actual contact is required

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Battery

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Unexcused, harmful, or offensive, physical contact with another that is intentionally performed; if the act that created the apprehension is completed and results in harm to the plaintiff.

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Defense

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A reason offered and alleged by a defendant in an action or lawsuit as to why the plaintiff should not recover or establish what he or she seeks.

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False Imprisonment

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Is the intentional confinement of another person's activities without justification.

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Actionable

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Capable of serving as the basis of a lawsuit. An actionable claim can be pursued in a lawsuit or other court action; conduct must be so extreme and outrageous that it exceeds the bounds of decency accepted by society.

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Intentional Infliction of Emotional Distress

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Extreme or outrageous act intentionally committed, that results in severe emotional distress to another.

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Outrageous Conduct

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Confined to truly outrageous behavior, such as repeated annoyances coupled with threats(stalking) are sufficient to support a claim.

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Limited By the First Amendment

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Guarantee of free speech limits emotional distress claims when outrageous conduct consists of speech about a public figure.

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Defamation

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Anything published or publicly spoken that causes injury to another's good name, reputation, or character.

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Slander

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Defamation in oral form

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Libel

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Defamation in writing or another form having the quality of permanence(such as a digital recording).

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Statement of Fact Requirement

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Statements of opinion, such as making a negative statement about another person is not defamation unless the statement is false and represents something as a fact rather than a personal opinion.

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The Publication Requirement

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Defamatory statements are communicated to persons other than the defamed party, which could include a letter to a secretary(privileged communication), if a third party overhears the defamation, and statements made on the internet

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Damages for Libel

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Plaintiff need not prove that he was actually harmed in any specific way as a result of the libelous statement because nonspecific harms are generally difficult to measure.

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Damages for Slander

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Because slanderous statements have a temporary quality, plaintiff must prove special damages instead of general damages, which means the plaintiff must show that the slanderous statements caused him to suffer an economic or monetary loss(unless it's slander per se)

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Slander per se

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1. A statement that an author has a loathsome disease

2. A statement that an author has committed improprieties while engaging in a business, profession, or trade.

3. A statement that another has committed or has been imprisoned for a serious crime

4. A statement that a person is unchaste.

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Defenses Against Defamation

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Truth showing that no tort of defamation has been committed and if a statement is privileged or involves a public figure.

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Privilege

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A special right or advantage, or immunity granted to a person or a class of persons, such as a judge's absolute privilege to avoid liability for defamation over statements made in the courtroom during a trial.

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Absolute Privilege

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Statements made in a courtroom by attorneys and judges during a trial and statements by government officials during legislative debates receive this privilege.

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Qualified or conditional privilege

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Generally, if statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication of the statements, such as an employer's evaluation of an employee.

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Actual Malice

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The deliberate intent to cause harm when a person makes a statement with either knowledge of its falsity or reckless disregard of truth. Is required to establish defamation against public figures.

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4 acts qualify as an invasion of privacy

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1. Intrusion into an individuals affairs or seclusion, such as invading someone's home illegally

2. False light, such as publishing information that places someone in a false light

3. Public Disclosure of private facts, such as embarrassing facts

4. Appropriate of identity, such as using a person's name, picture, or other likeness

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Appropriation

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In tort law, the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user.

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Fraudulent Misrepresentation

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Any misrepresentation, either by misstatement or by omission of material fact, knowingly made with the intent of deceiving another and on which a reasonable person would and does rely to his or her own detriment.

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Elements of Fraudulent Misrepresentation

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1. Misrepresentation of facts with knowledge that they're false or reckless disregard for the truth.

2. An intent to induce another to rely on the misrepresentation.

3. Justifiable reliance by the deceived party

4. Damage suffered as a result of the reliance

5. A causal connection between the misrepresentation and the injury suffered.

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Puffery

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A salesperson's often exaggerated claims concerning the quality of property offered for sale. Such claims involve opinions rather than facts and are not legally binding promises or warranties.

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Statement of Fact Vs Opinion

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If the individual making a statement of opinion, such as an attorney, has superior knowledge tort of misrepresentation could occur.

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Negligent Misrepresentation

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Requires only that the person making the statement or omission not to have a reasonable basis for believing its truthfulness.

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Abusive Frivolous litigation

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Includes malicious prosecution and abusive legislation; businesses do not have the right to file meritless lawsuits and use the legal system to simply harass others.

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Malicious Prosecution

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When a person initiates a lawsuit out of malice and without probable cause and ends up getting sued after losing the lawsuit. Plaintiff in new suit must prove injury beyond normal cost of litigation.

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Abusive Legislation

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Can apply to any person using a legal process against another person in an improper manner, but does not require plaintiff to prove malice or that the defendant lost in a prior legal proceeding.

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Wrongful interference with a Contractual Relationship

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Three elements are necessary:

1. A valid, enforceable contract must exist between two parties.

2. A third party must know that this contract exists.

3. A third party must intentionally induce a party to breach the contract.

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Wrongful interference with a Business Relationship

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Exhibiting predatory behavior, which are actions undertaken with the intention of unlawfully driving competitors completely out of the market is prohibited.

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Defenses to Wrongful Interference

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Interference is justifiable or permissible, such as in bona fide competitive behavior that results in the breaking of a contract.

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Intentional Torts Against Property

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Include trespass to land, trespass to personal property, conversion, and disparagement of property.

Law distinguishes between real and personal property.

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Real Property

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is land and things permanently attached to the land.

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Personal Property

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Consists of all other items, which are basically movable.

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A Trespass to Land

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Entry onto, above, or below, the surface of the land owned by another without the owner's permission or legal authorization.

1. common law: a trespasser is liable for any damage caused to the property and generally cannot hold the owner liable for any injuries sustained on the premises; being abandoned in many jurisdictions for reasonable duty of care

2. reasonable duty of care: varies depending on the status of the parties, such that the owner may have to post a notice that guard dogs patrol the property.

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Trespass Criteria, Rights, and Duties

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Trespassers must be established as such by owner and owners must exercise reasonable duty of care.

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Defenses Against Trespass of Land

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Trespasser entered property to help someone in danger and a licensee may enter the property of another for the licensee's benefit such as electric meter reader.

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Trespass to Personal Property

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Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner's possession of personal property.

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Conversion

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Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another, such as if someone borrows another's personal property and doesn't return it.

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Disparagement of Property

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An economically injurious falsehood about another's product.

General for torts: slander of quality and slander of title

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Slander of Quality(Trade Libel)

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The publication of false information about another's product, alleging that it's not what the seller claims.

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Slander of Title

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The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner, such as publishing a statement stating that a used card salesman is selling stolen cars.

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Negligence

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The failure to exercise the standard of care a reasonable person would exercise in similar circumstances.

The tortfeasor in torts involving negligence neither wishes to bring about the consequences of the act nor believes they will occur, but the actor's conduct creates a risk of such consequences.

If no risk is created, and it must be foreseeable, then there is no negligence.

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To succeed in a negligence action

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Plaintiff must prove the following:

1. Duty; Defendant owed a duty of care to the plaintiff

2. Breach; Defendant breached the duty

3. Causation; defendant's breach caused the plaintiff's injury

4. Damages; Plaintiff suffered a legally recognizable injury.

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Duty of Care

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The duty of all persons, to exercise reasonable care in their dealings with others. Failure to do so, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

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Reasonable Person Standard

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The standard of behavior expected of a hypothetical "reasonable person." It is the standard against which negligence is measured and that must be observed to avoid liability for negligence.

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The Duty of Landowners

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Landowners are expected to exercise reasonable care to protect persons coming onto their property from harm.

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Business Invitee

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A person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes.

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Duty to warn business invitees of risks

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Retailers have a duty to warn business invitees of risks such as a wet floor.

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Obvious risks are exceptions

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Some risks, such as opening a door before walking through it, are so obvious that the owner doesn't need to warn business invitees.

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Malpractice

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Professional misconduct or the lack of requisite degree of skill as a professional. Negligence-failure to exercise due care on the part as a professional

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Causation in Fact

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An act or omission without which an event would not have occurred.

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Proximate Cause

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Legal Cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.

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Foreseeability

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Questions of proximate cause linked to the concept of foreseeability because it would be unfair to impose liability on a defendant unless the defendant's actions created a foreseeable risk of injury.

a foreseeable risk is something that a reasonable person would anticipate and guard against

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The Injury requirement and Damages

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Essentially, the purpose of tort law is to compensate for legally recognized injuries resulting from wrongful acts.

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Defenses to Negligence

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1. Assumption of risk

2. superseding cause

3. contributory and comparative negligence

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Assumption of risk

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A plaintiff may not recover from injuries or damage suffered from risks he or she knows of and has voluntarily assumed.

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Superseding Cause

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An unforeseeable intervening event acts as a superseding cause and may break the connection between a wrongful act and injury to another and may relieve the defendant of injuries caused by the intervening event.

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Contributory Negligence

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A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partially the plaintiff's own fault.

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Comparative Negligence

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A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

Some states use a pure form, while most use a 50% rule.

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Res Ipsa Loquitur

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A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence; "facts speak for themselves."

normally the burden of proof lies on the plaintiff to prove that the defendant was negligent, but in this case, the burden of proof lies on the defendant.

this doctrine is applied only when the event creating the damage or injury is one that ordinarily would occur only as a result of the negligence.

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Negligence per se

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An action or failure to act in violation of a statutory requirement.

may occur if an individual violates a statute or ordinance and thereby causes the kind of harm that the statute was intended to prevent

The statute must clearly set out what standard of conduct is expected, when and where it is expected, and of whom it is expected.

The standard of conduct required by the statute is the duty that the defendant owes to the plaintiff, and a violation of the statue is the breach of the duty

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Danger Invites "Rescue" Doctrine

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Someone trying to avoid harm and ends up causing harm is not liable for any injuries; Someone trying to rescue another from harm is not liable for any injuries suffered by he or the person he saved.

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Good Samaritan Statute

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A state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly, thereby causing further harm.

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Dram Shop Acts

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A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of of alcoholic drinks contributed to the intoxication.

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Strict Liability

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Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods.

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Abnormally Dangerous Activities

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Because activities carry such extreme risk, even if it's done with reasonable care, the person undertaking the activity will still be liable for any injuries caused by the activity.

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Other Applications of Strict Liability

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Persons are strictly liable for harm caused by wild or domestic animals and manufacturers and sellers are strictly liable for harmful or defective products, in which they can they can better bear the cost of injury by increasing the price of the goods and should bear the costs as an operating expense because they're making a profit off the products.

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Identifying Author of Online Defamation

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It's harder to identify authors of online defamation and can only be disclosed by the ISP if they're ordered by a court.

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Liability of ISPS

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Under the Communications Deceny Act(CDA), ISPs are generally immune from liability for defamatory messages posted by their customers, but some courts have started to establish some limits to the immunity granted by the CDA.

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State Regulation of Spam

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Thirty six states have enacted laws that prohibit or regulate the use of spam.

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The Federal Controlling the Assault of Non-Solicited Pornography and Marketing(CAN-SPAM) Act

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The act permits unsolicited commercial email, but prohibits certain spamming activities, such as the use of a false return address, the inclusion of false(also misleading and deceptive) information, sending messages to randomly generated email addresses(dictionary attacks), and the harvesting of email addresses.

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The U.S. Safe Web Act

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The act allows the FTC to cooperate and share information with foreign agencies in investigating and prosecuting those involved in Internet fraud and deception, including spamming and spyware.

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Forum shopping

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looking for a state court known to be sympathetic to their clients' cause and predisposed to aware large damages.

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Intentional tort s against persons

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1. assault and battery
2. false imprisonment

3. infliction of emotional distress

4. defamation

5. invasion of the right to privacy

6. appropriation

7. misrepresentation

8. abusive or frivolous litigation

9. wrongful interference

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Attractive nuisance doctrine

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children do not assume the risks of the premises if they are attracted to the property by some object, such as a swimming pool.