Management chapter 6: torts

Torts

civil wrongs other than breach of contract

Damages Available in Tort Cases

1. Compensatory

2. Nominal

3. Punitive

Classification of Torts

Intentional torts

negligent torts

strict liability torts

Defenses of torts

If the plaintiff can prove the tort they allege, they might not win so long as the defendant can excuse their actions legally with a defense.

intentional tort

Intent is required of the act, but you don't need to intend to do any harm that may result from the act.

Tortfeasor

one who commits a tort

Assault

An intentional, unexcused act that creates in another person a reasonable apprehension of fear or immediate harmful or offensive contact. (A feeling)

Battery

an unexcused and harmful or offensive physical contact intentionally performed (A action)

Defenses to Assault and Battery

1. Consent: inviting it

2. Self-defense or Defense of Others: Reasonable defense in both or real apparent danger, and force muse be used reasonably (gender, size, and weight can all matter)

False Imprisonment

the intentional confinement or restraint of another person's activities without justification. (Restraints can be physical or oral, the person being restrained must not agree to it, and in some states, businesses are allowed to detain shoplifters for a reasonable time and in a reasonable manner if they have probable cause.)

Intentional infliction of emotional distress

extreme and outrageous conduct that causes serious emotional harm (Difficult to prove, might need physical symptoms or emotional ones documented medically, and media uses the 1st amendment freedom of speech when "outrageous speech" is used against a public figure.)

Defamation

Act of harming or ruining another's reputation

Libel- Written words

Slander- Oral words

Elements of prima facie case of defamation (What Plaintiff must prove)

-defendant made a false statement of fact

-the statement was understood as being about the plaintiff and intended to harm the plaintiff's reputation

-published to a third party

- someone other than the plaintiff

-If plaintiff is a public figure he must also prove "actual malice" to win

***actual malice- making a statement knowing it was false or without reckless regard for the truth

Damages for Defamation

Damages for libel: Proof of libel, general damages, and proof of special damages aren't needed.

Damages for Slander: The Plaintiff must prove that he suffered "special damages" before the defendant is liable

Exceptions to damages for defamation

Exception: "Slander per se" or false statement is actionable without proof of "special damages"

1. A person has a communicable unseen disease like aids

2. A person has committed improprieties in their profession

3. Statement that person has committed or been imprisoned for a serious crime (Rape, murder, child molestation)

4. Statement that a unmarried woman is unchaste or being a hoe

Defenses to Defamation

1. Truth

2. Privileged speech Absolute: Judicial or legislative proceedings Qualified: made in good faith, or to those with legitimate interests in the communication.

Defenses for public figures in defamation

Have higher burden as must prove "actual malice" which means statement was made with the intent of being wrong and harmful

Invasion of the right to privacy

right to solitude and freedom from prying public eyes

Acts that qualify as invasion of privacy

1. intrusion: invading our private spaces with wiretapping or cameras typically

2. false light: Public info that places someone in a false light, usually true but twisted to make it worse

3. public disclosure of private facts: Private info that shouldn't be public like revenge sex

4. appropriation of identity: Using famous people without asking, individual rights include the right to the exclusive use of his or her identity.

fraudulent misrepresentation

ELEMENTS

1. Misrepresentation of material facts without knowledge they are false

2. Intent to induce another to rely on the misrepresentation

3. Justifiable reliance by the innocent party

4. Damages as a result of reliance

5. Causal connection between the misrepresentation and the injury

fraudulent misrepresentation

1. More than sellers talk only involves subjective terms

2. Reliance on a statement of opinion may be a fraud if the person making the statement has a superior knowledge of the subject

3. Negligent misrepresentation

Abusive or Frivolous Litigation

The filing of a lawsuit without legitimate grounds and with malice.

Intentional torts against businesses

1. Wrongful interference with a contractual relationship

2. Wrongful interference with a business relationship

wrongful interference with a contractual relationship

Any lawful contract can be the basis of this action

The plaintiff must prove defendant knew of the contract and induced the breach of it Elements:

1. Valid enforceable contract

2. Third party knew

3. Third party intentionally caused one of the two parties to break the contract

wrongful interference with a business relationship

individuals may not interfere unreasonably with another's business to gain a share of the market

Predatory behavior - Solitary behavior to those customers who have already shown an interest in a similar product or service from a specific competitor Elements:

1. Established business relationship

2. The tortfeasor used predatory behavior

3. They intentionally caused the business relationship to end

Defenses to Wrongful Interference

1. Bona fide (In good faith) competitive behavior

2. Aggressive marketing and advertising strategies

Intentional property torts

• trespass to land

• trespass to personal property

• Conversion

• Disparagement (Defamation) of property (Wrong is committed against an individual who has legally recognized rights to real or personal property)

Real vs. personal property

real property: Land or things permanently attached

Personal property: all property that is not land or permanently attached to the land, like cars, boats, and even bank accounts

Trespass to Land

1. A person without permission or legal authorization enters the land, onto, above, or below or leaves something on the land after being told to take it off and actual harm is not required

2. Must tell trespasser expressly or implicitly

   expressly: Tell to leave or "no trespassing" signs

   implicitly: Anyone on the property to commit an illegal act

People who trespass to land

Trespasser is liable for damages caused and generally cannot hold the owner liable for injuries except for "reasonable duty" which says the owner must warn in some circumstances or "attractive nuisance" which is that young children don't assume the risk if they are attracted to the premises by the object.

The owner can remove trespassers from the premises through REASONABLE force without being liable for battery or assault.

defenses to trespass to land

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

-trespasser enters to protect property

trespass to personal property

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

Defense of Personal Property

If meddling was warranted

Conversion

any act that deprives an owner of personal property or of the use of that property without the owner's permission and puts the property in the service of another person

NON-DEFENSES:

Good intentions

Good you purchased was stolen

Disparagement (defamation) of Property

-Slander of Quality (trade libel): publication of false information about another's product, actual damages must be proved to have resulted from statements

-Slander of Title: publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss.

Negligence (unintentional tort)

failure to take proper care in doing something

Elements of Negligence

1. Duty: Defendant must owe a duty of care to the injured party (Plaintiff)

2. Breach: Defendant breaches it

3. Causation: The breach is the cause of plaintiff's injury

4. Damages: Plaintiff must suffer a legally recognizable injury

Duty of Care and Breach

Reasonable person standard: Objective way of determining how the defendant should have reasonably acted.

Duty of landowners: Must exercise reasonable care to protect business invitees (People there for business) from harm including foreseeable risk or risk the owner knew about, and protect them from foreseeable crimes, and obvious damages.

Obvious damages: No duty to warn except children but might be liable if failure to maintain safe premises Landowners also have duty to warn social guests of known risks and they must not willfully injure a trespasser.

Duty of Professionals

Professionals may owe higher duty of care based on special education, skill or intelligence. Breach of duty is called professional malpractice.

duty to employer

-negligent hiring/ retention

-hirer people that do not create risk

No Duty to Rescue

If a person fails to aid a stranger in peril, that person would not be negligent under tort law, unless you put them in the situation. (What would a reasonable person do)

Causation (two tests)

"But for" or "If not for..." test: If they didn't breach the duty would injury have happened. Proximate cause: is the causal connection between the act and an injury strong enough to impose legal liability, foreseeability is the test that says if the consequences of the harm done to the victim are unforeseeable no proximate cause.

Special Negligence Statutes

Good Samaritan: protect persons (especially medical personnel) who aid others from being sued for negligence.

Dram shop acts: impose liability on tavern owners or bartenders for injuries caused by intoxicated persons who are served by them. A statute may impose liability on social hosts for acts of their guests.

Defenses to Negligence

Assumption of risk

Superseding intervening cause

Contributory negligence

Comparative negligence

Assumption of risk

If the plaintiff enters into a risky situation knowing the risk Requirements: they had knowledge and they voluntarily took on the risk can be both expressed and applied. Only assume normal risk and risks are not deemed assumed in emergencies.

Superseding Intervening Cause

An unforeseeable, intervening act that breaks the causal link between Defendant's act and Plaintiff's injury, relieving the defendant of liability or usually to reduce damages.

Contributory and Comparative Negligence

In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury recovers nothing In a comparative negligence state, the jury may apportion liability between the plaintiff and defendant.

Pure form: Plaintiff recovers damages based on negligence %

50% rule: Same as pure form but if the plaintiff is more than 50% responsible they get nothing

"Texas": Its a 50% rule state