MGMT 311 Chapter 6

chapter 6 terms and definitions

Torts

civil wrongs other than breach of contract

Damages Available in Tort Actions

compensatory damages in monetary value

Classifications of Torts

1. Intentional

2. Negligence

3. Strict Liability

Intentional Torts

wrongful civil acts done on purpose (only need to intend the act that results in harm, do not have to intend the harm itself)

Negligence Torts

reckless and careless behavior

Strict Liability

imposing liability on a defendant even if the defendant is under no fault

Defenses

reasons why the plaintiff should not obtain damages

Tortfeasor

Person committing the tort

Assault

an intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive contact (you don’t have to actually contact the person for it to be assault)

Battery

an unexcused and harmful or offensive physical contact intentionally performed (can include unwelcomed affection, and they just have to touch something that can be considered an extension of you)

Consent (defense to assault and battery)

“inviting” someone to hurt or make you feel scared

False Imprisonment

intentional confinement or restraint of another person without justification

Intentional Infliction of Emotional Distress

extreme and outrageous conduct causing severe emotional distress in another (ex. false death report)

Hustler v. Jerry Falwell

Hustler magazine once printed a false advertisement that showed a picture of the late Reverend Jerry Falwell and described him as having lost his virginity to his mother in an outhouse while he was drunk. Falwell sued the magazine for intentional infliction of emotional distress and won, but the United States Supreme Court overturned the decision. The Court held that parodies of public figures are protected under the First Amendment from intentional infliction of emotional distress claims.

Defamation

wrongfully harming a person’s good reputation (has to be a lie)

Libel

written defamation

Slander

oral defamation

Actual Malice

making a statement knowing it’s false or with reckless disregard for the truth

Damages for Libel

proof of the libel; general damages are presumed; proof of special damages are not necessary

Damages for Slander

Plaintiff must prove that he suffered “special damages” before defendant is liable

Slander Per Se

false statement is actionable without proof of “special damages”

Four types of false statements in Per Se

1. Statement that person has loathsome, communicable disease

2. Statement that person has committed improprieties in their profession or trade

3. Statement that person has committed or been imprisoned for a serious crime

4. Statement that unmarried woman is unchaste

Truth

an ABSOLUTE defense; if a defendant can prove the defamation is a true statement, no tort has been committed

Privileged Speech

a person will not be liable for defamatory statements because she or he enjoys a privilege, or immunity

Absolute Privilege

statements made in judicial and legislative proceedings

Qualified (Conditional) Privilege

made in good faith, made to those with legitimate interest in the communication

Public figures

regarded as “fair game”, higher burden in proving defamation, must prove that the statement was made with actual malice

Invasion of Privacy

right to solitude and freedom from prying public eyes

Four acts of Invasion of Privacy

1. intrusion

2. false light

3. public disclosure of private facts

4. appropriation of identity

Intrusion

on seclusion, “peeping toms”, or wiretapping

False Light

publishing info that places a person in a false light, or cause others to cast doubt on their beliefs

Appropriation of Identity

use of a person’s name, picture, likeness, or other identifiable characteristic for commercial purposes without permission

Appropriation Statutes

States differ as to the degree of likeness that is required to impose liability for appropriation

Fraudulent Misrepresentation

involves intentional deceit for personal gain; A misrepresentation leads another to believe in a condition that is different from the condition that actually exists

Elements of Fraudulent Misrepresentation

1. A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth.

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

3. A justifiable reliance on the misrepresentation by the deceived party.

4. Damages suffered as a result of that reliance.

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

Puffery

“Seller’s talk”, more must be involved for fraud to occur, fraud exists only when a person represents as a fact something he or she knows is untrue

Statement of Fact vs Opinion

reliance on a statement of opinion may be fraud if the person making the statement has a superior knowledge of the subject matter

Negligent Misrepresentation

requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness

Abusive or Frivolous Misrepresentation

filing a lawsuit without a legitimate basis for a cause of action, often used as a counterclaim by defendant

Malicious Prosecution

If a party initiates a lawsuit out of malice and without a legitimate legal reason, and ends up losing the suit, that party can be sued for malicious prosecution

Abuse of Process

can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed

Elements of Wrongful Interference with a Contractual Relationships

1. valid, enforceable contract between two parties

2. third party knew of the contract

3. third party intentionally caused either of the two parties to the contract to break the contract

Predatory Behavior

soliciting only those customers who have already shown an interest in the similar product or service of a specific customer (not easy to prove)

Three Elements of Wrongful Interference

1. established business relationship

2. tortfeasor used “predatory” behavior

3. tortfeasor intentionally caused the business relationship to end

Defenses to Wrongful Interference

1. Bona fide (made/done in good faith) competitive behavior

2. Aggressive marketing and advertising strategies

Real Property

land and things permanently attached to the land

Personal property

all other items (cars, boats, cash and securities)

Trespass to Land

a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave

How to Establish a Trespasser

1. tell a guest to leave and they don’t

2. post “no trespassing signs”

Liability for damages (Trespassing)

Trespassers are liable for any damages caused to the property and cannot hold the owner liable for injuries they sustain themselves

Reasonable Duty

owner has a duty to warn in certain circumstances (ex. beware of dog sign)

Attractive Nuisance

young children do not assume risk if they are attracted to the premises by some object

Defenses to Trespassing

1. trespasser enters to assist someone in danger even if that person is a trespasser

2. they enter to protect the property

Trespass to Personal Property

wrongfully harming or interfering with the personal property owner’s right to the exclusive possession and enjoyment of their property

Conversion

any act that deprives the owner of personal property without the owner’s permission and without just cause that places the property in the service of the trespasser or other person

Non-defenses to Conversion

1. good intentions

2. the good you purchased was stolen

Disparagement of Property

occurs when economically injurious falsehoods are made about another’s product or property rather than about another’s reputation

Slander of Quality (Trade Libel)

Publication of false information about another’s product, alleging it is not what it’s seller claims

Slander of Title

publication denies or casts doubt on another’s legal ownership of property

Negligence

occurs when someone suffers injury because of another’s failure to live up to a required duty of care

Elements of Negligence

1. Duty

2. Breach

3. Causation

4. Damages

Duty

Actor (def) must owe a duty of care to the injured party

Breach

Defendant must breach that duty

Causation

Defendant’s breach must cause plaintiff’s injury

Damages

Plaintiff must suffer a legally recognizable injury

Reasonable Person Standard

objective of measurable standards; behave like a reasonable person would

Duty of Landowners

landowners must exercise reasonable care to protect business invitees from harm, including:

1. foreseeable risks that the owner knew about

2. risks the owner should have known about

Duty of Professionals

required to have a standard minimum level of special knowledge and ability; violation of duty leads to malpractice

Two Questions of Causation

1. Is there cause in fact? (“But for” test, if not for the defendant’s actions, would the plaintiff be injured)

2. Is there proximate cause? (is the causal connection between an act and an injury strong enough to justify imposing legal liability? Foreseeability is the test for proximate cause)

Injury Requirement and Damages

Must have legally recognizable injury; no injury, no recovery

Dram Shop Act

if bar owner or bartender serves drinks to an intoxicated person, he may be liable to persons who are injured by the intoxicated person (also applies to social hosts but not in TX)

Good Samaritan Statute

persons who are aided voluntarily by others cannot sue the person who aided them for negligence

Defenses to Negligence

1. Assumption of risk

2. Superseding Intervening Force

3. Contributory Negligence

4. Comparative Negligence

Assumption of risk

1. knowledge of risk

2. voluntary assumption of risk

if voluntarily enter into a risky situation knowing the risk involved, you are not allowed to recover damages you may incur

Superseding Intervening Force

plaintiff says they are not responsible for all the damages because there was an outside force causing injuries

Contributory Negligence

if plaintiff is also negligent, then plaintiff has breached a duty and does not recover anything (only a minority of states use this defense)

Comparative Negligence

both the plaintiff’s and the defendant’s negligence are computed, and the liability for damages is distributed accordingly

Pure form

plaintiff recovers damages based on defendant’s negligence percentage

50% rule

plaintiff still recovers damages based on “pure form” analysis, but if plaintiff is more than 50% at fault, the plaintiff recovers nothing