Chapter 6-Torts and Crimes-Business Law

The Basis of Tort Law

•A civil wrong not arising from a breach of contract; a breach of a legal duty that proximately causes harm or injury to another.

•Two notions at the basis of all torts:

1.Wrongs

2.Compensation

The Purpose of Tort Law

•Provide remedies for the violation of various protected interests.

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•Plaintiffs seek various remedies, or damages, in tort actions.

•Damages =  A monetary award (contracts or torts)

Punitive damages

•– punish the defendant and deter future similar conduct.

•particularly egregious (outrageous) or reprehensible (shameful) behavior

•Intentional torts mostly; sometimes gross negligence.

•Punitive damages are subject to limitations under the U.S. Constitution’s due process clause

•State laws may limit both punitive and general (i.e. “tort reform”)

General damages

•nonmonetary compensation; e.g. “pain and suffering”

Special damages

•quantifiable expenditures

Compensatory damages

A money award equivalent to the actual value of injuries.

Two broad classifications of torts:

1. Intentional torts

•Fault plus intent.

2.  Unintentional torts

•Negligence = fault without intent.

Defenses

•Legally recognized defenses  = reasons why the plaintiff should not obtain damages.

•The defenses available may vary depending on the specific tort involved.

•If intentional torts, “consent”.

•If negligence, “comparative negligence”.

Transferred intent

–intend to harm one individual, but unintentionally harm a different individual, liable to the second victim for an intentional tort

Intentional tort

• A wrongful act knowingly committed.

Assault

•Intent

•Using any word or action

•To instill fear in other person of

•immediate physical harm; or

•a reasonably believable threat.

No actual contact with the plaintiff needed

Battery

•– The unprivileged, intentional touching of another.

•Physical injury need not occur.

•Basically, Assault Elements + contact

•Harmful or merely offensive

•Any part of the body or anything attached to it.

•Direct contact (punch) or set in motion (something thrown)

•Can be emotional harm or loss of reputation resulting from the battery, as well as for physical harm.

False Imprisonment

•Intentional

•confinement or restraint

•Physical barriers, restraint, threats of force

•of another person or person’s activities

•without justification (or consent).

Limited by the First Amendment

•Public Figure exception

Intentional Infliction of Emotional Distress

•An intentional act

•Extreme and outrageous conduct

Resulting in severe emotional distress to another

Defamation

•Intentional

•Publication of or publicly spoken

•false statement of fact

that causes injury to another’s good name, reputation, or character

Slander

 – Spoken

Libel

• Written

Statement-of-Fact Requirement

•Statement must be a  false fact.

The Publication Requirement

•Communicated to persons other than the defamed party.

Damages for Libel

•General damages are presumed.

Slander Per Se

•Actionable with no proof of special damages required.

•In most states, the following four types of declarations are considered to be slander per se:

1.A statement that another has a “loathsome” disease (such as a sexually transmitted disease)

2.A statement that another has committed improprieties while engaging in a 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 or has engaged in serious sexual misconduct

Damages for Slander

•Plaintiff must show that the slanderous statement caused her or him to suffer actual economic or monetary losses (Special Damages).

Defenses to Defamation

•Truth is an absolute defense.

•Other defenses may exist if

•the speech is privileged; or

•it concerns a public figure.

Privilege

•– The ability to act contrary to another person’s right without that person’s having legal redress for such acts.

•Two types:

1.Absolute

2.Qualified

Actual malice

–knowledge of its falsity or reckless disregard for the truth.

Public figure

•Government officials

•Politicians

•Movie stars

•Well-known businesspersons

•Generally anybody who becomes known to the public because of his or her position or activities

Invasion of Privacy

•The courts have held that certain amendments to the U.S. Constitution imply a right to privacy.

•Some state constitutions explicitly provide for privacy rights, as do a number of federal and state statutes

Invasion of Privacy under the Common Law

•The following four acts qualify as invasions of privacy:

1.  Intrusion into an individual’s affairs or seclusion

2.  False light

3.  Public disclosure of private facts

4.  Appropriation of identity

The elements:

1.Intentional

2.Misrepresentation of material facts or conditions

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

Statement of Fact versus Opinion

Opinion possible, when speaker is an “expert”

Puffery

•– A salesperson’s exaggerated claims concerning the quality of goods offered for sale.

Negligent Misrepresentation

•Whether the person had actual knowledge of its falsity.

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•When D owed a duty of care to the P to supply correct information.

Abusive or Frivolous Litigation

•Tort law protects individuals from the misuse of litigation.

•Malicious prosecution

•Abuse of process

•Abuse of process is not limited to prior litigation and does not require the plaintiff to prove malice.

Wrongful Interference with a Contractual Relationship

•Three elements:

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

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

This third party must intentionally induce a party to the contract to breach the contract

•Business torts generally fall into two categories:

1.Interference with a contractual relationship

2.Interference with a business relationship

Defenses to Wrongful Interference

•Interference was justified or permissible.

Bona fide competitive behavior is a permissible interference

Wrongful Interference with a Business Relationship

•Elements:

•Intentional actions taken

•To harm an established business relationship; or

•Gain a prospective economic advantage.

Intentional Torts against Property

•Trespass to land

•Trespass to personal property

•Conversion

•Disparagement of property

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•Real property vs personal property (Know this distinction).

•Real property is land and things permanently attached to the land, such as a house.

•Personal property consists of all other items, including cash and securities.

Establishing Trespass

•Owner must establish that person as a trespasser.

Trespass to Land

•The intentional

•Entry by a person or an object put in motion by the person

•Onto, above, or below the surface of land owned by another

•Without the owner’s permission or legal authorization.

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•Actual harm to the land is not an essential element of this tort.

Defenses against Trespass to Land

•Trespass was warranted.

•License to enter land.

Liability for Harm

•At common law, a trespasser is liable for any damage caused to the property; and

•Generally cannot hold the owner liable for injuries that the trespasser sustains.

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•Attractive Nuisance Doctrine for landowners, possible liability.

Trespass to Personal Property

•The unlawful taking or harming of another’s personal property;

•The interference with another’s right to the exclusive possession of their personal property.

Intention

•Mistake is not a defense

Failure to Return Goods

•When the rightful owner consented to the initial taking of the property

Conversion

The wrongful taking, using, or retaining possession of personal property that belongs to another.

Disparagement of Property

An economically injurious false statement made about another’s product or property; a general term for torts that are more specifically referred to as slander of quality or slander of title.

Slander of Title

•The publication of a statement that falsely denies or casts doubt on another’s legal ownership of property, causing financial loss to that property’s owner.

Slander of Quality

•AKA trade libel – The publication of false information about another’s product, alleging that it is not what its seller claims.

Disparagement of Property

An economically injurious false statement made about another’s product or property; a general term for torts that are more specifically referred to as slander of quality or slander of title.

•5 Elements:

1.The defendant owed a duty of care to the plaintiff.

2.The defendant breached that duty.

3.The defendant’s breach caused the plaintiff’s injury.  TWO PRONGS:

a.Factual causation – “but for”; and

b.Proximate or Legal causation – “foreseeability”

4.The plaintiff suffered a legally recognizable injury.

Duty of care

•– The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others.

•the “reasonable person standard.”

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•To determine a breach, courts consider several factors:

•The nature of the act (whether it is outrageous or commonplace)

•The manner in which the act was performed (cautiously versus heedlessly)

•The nature of the injury (whether it is serious or slight)

The Reasonable Person Standard

•The standard of behavior expected of a hypothetical “reasonable person”;

•Society’s judgment of how an ordinarily prudent person should act.

•The degree of care to be exercised varies, depending on many factors.

Malpractice

 Professional misconduct or the failure to exercise the requisite degree of skill as a professional.

The Duty of Professionals

•The law takes their training and expertise into account.

The Duty of Landowners

•Retailers/other business operators have a duty to warn of foreseeable risks.

•No duty for obvious risks.

6-4c  The Injury Requirement and Damages

•Plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest.

•Purpose: Compensate for legally recognized harms and injuries resulting from wrongful acts.

•Compensatory damages are the norm in negligence cases.

Good Samaritan Statutes

•A state statute that provides that persons who rescue or provide emergency services to others in peril—unless they do so recklessly, thus causing further harm—cannot be sued for negligence.

Dram Shop Acts

•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 alcoholic drinks contributed to the intoxication.

Defenses to Negligence

•Three basic affirmative defenses:

1.  Assumption of risk

2.  Superseding cause

3.  Contributory and comparative negligence

Assumption of Risk

•The plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

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Plaintiff cannot recover, if voluntarily entered risky situation

Superseding Cause

•An intervening force or event that breaks the connection between a wrongful act and an injury to another.

A superseding cause relieves the defendant of liability

Contributory Negligence

•A theory in tort law under which a complaining party’s own negligence contributed to or caused his or her injuries.

•Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.

Comparative Negligence

•In most states, the doctrine of contributory negligence has been replaced by a comparative negligence standard.

•Some states = “pure” comparative negligence that allows the plaintiff to recover, even if > than defendant’s negligence.

•Most states = “50 percent” rule that prevents the plaintiff from recovering any damages if she or he was more than 50 percent at fault.

The liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person’s

proportionate negligence

Negligence Elements

-Duty

-Breach

-Factual/causation “buffer” .

-Legal/proximate causation Foreseeable?

-Injury

Defenses to Negligence

-Assumption of Risk

-Superseding Cause

-Contribute/Comp Negligence

Minority

Contributing Neg.

Majority Comp Neg.

1-50% = 99-50%

51% = O

Minority

Pure Comparative Neg

99%-1% injuries