CH 05

Chapter 5
Torts and Cyber Torts

2004 West Legal Studies in Business
A Division of Thomson Learning
1: Basis of Tort Law

Doing business today involves risks, both legal
and financial.
A tort is a civil injury designed to provide
compensation for injury to a legally protected,
tangible or intangible, interest.
There are intentional and unintentional
(negligence) torts.
2: Intentional Torts Against Persons

and Business Relationships
The person committing the tort, the
Tortfeasor or Defendant, must intend to
commit the act. Intend means:
Tortfeasor intended the consequences of her act;
or
She knew with substantial certainty that certain
consequences would result.

Types of Intentional Torts

Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.

Assault and Battery

ASSAULT is an intentional, unexcused act that:
Creates a reasonable apprehension or fear of,
Immediate harmful or offensive contact.
NO CONTACT NECESSARY.
BATTERY is the completion of the Assault:

Intentional or Unexcused.
Harmful, Offensive or Unwelcome.
Physical Contact.
Defenses to
Assault & Battery
Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.

False Imprisonment
False Imprisonment is the intentional:
Confinement or restraint.
Of another persons activities.
Without justification.
Merchants may reasonably detain customers if

there is probable cause.

Intentional Infliction of
Emotional Distress
An intentional act that is:
Extreme and outrageous, that
Results in severe emotional distress in another.
Most courts require some physical symptom or

illness.

Defamation
Right to free speech is constrained by duty we
owe each other to refrain from making false

statements.
Orally breaching this duty is slander; breaching
it in print or media is libel.

Defamation
Gravamen of defamation is the publication of
a false statement that holds an individual up to
hatred, contempt or ridicule in the community.
Publication requires communication to a 3 rd
party.

10
Damages for Libel

General Damages are presumed; Plaintiff does
not have to show actual injury.
General damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.

11
Damages for Slander

Rule: Plaintiff must prove special damages
(actual economic loss).
Exceptions for Slander Per Se. No proof of
damages is necessary:
Loathsome disease,
Business improprieties,
Serious crime,
Woman is non-chaste.

12
Defenses to Defamation
Truth is generally an absolute defense.
Privileged (or Immune) Speech.
Absolute: judicial & legislative proceedings.
Qualified: Employee Evaluations.

13
Defamation-Public Figures
Public figures exercise substantial governmental
power or are otherwise in the public limelight.
To prevail, they must show actual malice:
statement was made with either knowledge of
falsity or reckless disregard for the truth.

14
Invasion of Privacy
Every person has a fundamental right to solitude
freedom from public scrutiny.
Use of Persons Name or Likeness.

Intrusion on Individuals Affairs or Seclusion.
Publication of Information that Places a Person in
False Light.
Public Disclosure of Private Facts.

15
Appropriation
Use of anothers name, likeness or other
identifying characteristic for commercial
purposes without the owners consent.

16
Fraudulent Misrepresentation
Fraud is intentional deceit. Elements:
Misrepresentation of material fact;

Intent to induce another to rely;
Justifiable reliance by innocent party;
Damages as a result of reliance;
Causal connection.
Fact vs. Opinion.

17
Wrongful Interference
Tort that interferes with a contractual
relationship.
Occurs when:
Defendant knows about contract between A and B;

Intentionally induces either A or B to breach the
contract; and
Defendant benefits from breach.
Case 5.1: Mathis v. Liu (2002).

18
Wrongful Interference
With a Business Relationship occurs when:
Established business relationship;
Tortfeasor, using predatory methods, causes
relationship to end; and
Plaintiff suffers damages.
Bona fide competitive behavior is a defense to

this tort.

19
3: Intentional Torts to Property

Trespass to land occurs when a person,
without permission:
Physically enters onto, above or below the

surface of anothers land; or
Causes anything to enter onto the land; or
Remains, or permits anything to remain, on the
land.

20
Intentional Torts to
Personal Property
Trespass to personal property is the Intentional
interference with anothers use or enjoyment of

personal property without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.

21
4: Negligence
Tortfeasor does not intend the consequences of
the act or believes they will occur.
Actors conduct merely creates a foreseeable risk
of injury. Analysis:
Defendant owed Plaintiff a duty of care;

Defendant breached that duty;
Plaintiff suffered legal injury;
Defendants breach caused the injury.

22
Duty of Care
Defendant owes duty to protect Plaintiff from
foreseeable risks that Defendant knew or should

have known about.
Courts use reasonable person standard (jury) to
determine whether duty exists.
Duty of Landowners to invitees.
Case 5.2: Martin v. Wal-Mart Stores, Inc. (1999).

23
Duty of Care: Foreseeability

The consequences of an act are legally
foreseeable if they are consequences that

typically occur in the course of event.
Whether an act is foreseeable is generally
considered a matter of fact determined by
the reasonable person standard (jury).

24
Duty of Care
Duty of care varies, based on the Defendants
occupation, relationship to Plaintiff.

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

25
Injury and Damages

To recover, Plaintiff must show legally
recognizable injury.
Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
Punitive Damages are designed to punish the
tortfeasor and deter others from wrongdoing.

26
Causation
Even though a Tortfeasor owes a duty of care
and breaches the duty of care, the act must have
caused the Plaintiffs injuries.
Causation in Fact, and
Proximate Cause.
Case 5.3: Palsgraf v. Long Island RR Co. (1928)

27
Causation in Fact
Did the injury occur because of the Defendants
act, or would the injury have occurred anyway?
Usually determined by the but for test, i.e., but
for the Defendants act the injury would not have
occurred.

28
Proximate Causation
An act is the proximate (or legal) cause of
the injury when the causal connection

between the act and injury is strong enough
to impose liability.
Foreseeability of injury is an important
factor.
Think of proximate cause as an unbroken
chain of events.

29
Defenses to Negligence
Assumption of Risk.
Superceding Intervening Cause.
Contributory or Comparative Negligence.

30
Assumption of Risk
Plaintiff has adequate notice and
understanding of the risks associated with an

activity.
He knowingly and willingly engages in the
act anyway.
Plaintiff, in the eyes of the law, assumes the
risk of injuries that fall within the scope of
the risk understood.
Case 5.4: Crews v. Hollenbach (1999).
31
Superceding Cause
A unforeseeable, intervening act that occurs
after Defendants act that breaks the causal
relationship between Defendants act and
Plaintiffs injury relieving Defendant of
liability.
If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiffs injuries.
32
Contributory Negligence
Under common law, if Plaintiff in any way
caused his injury, he was barred from recovery.
Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
The operative concept in comparative negligence
is that one cannot recover from another for any
injuries one has caused to oneself.
33
Comparative Negligence
In determining liability, the amount of damages a
Plaintiff causes to herself are subtracted from the
amount of damages suffered by the Plaintiff, and
only the remainder is recoverable from the
Defendant.
However, if Plaintiff is more than 50% liable,
she recovers nothing.

34
Special Negligence Doctrines

Res Ipsa Loquiter.
Negligence Per Se occurs when Defendant
violates statute that causes injury to Plaintiff:
Statute sets out standard of care.
Plaintiff is member of class intended to be protected
by statute.
Statute designed to prevent Plaintiffs injury.

35
Special Negligence Statutes

Danger Invites Rescue Doctrine.
Good Samaritan Statutes.
Dram Shop Acts.

36
5: Cyber Torts
Defamation Online.
Liability of ISPs.
Piercing the Veil of Anonymity.
Spam.
Trespass to Personal Property.
Statutory Regulation of Spam.

37
Law on the Web

Cases on Torts and Cyber Torts
LawGuru.com
Legal Research Exercises on the Web

38

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Chapter 5

Torts and Cyber Torts

1: Basis of Tort Law

2: Intentional Torts Against Persons

2004 West Legal Studies in Business

Types of Intentional Torts

2004 West Legal Studies in Business

Assault and Battery

BATTERY is the completion of the Assault:

2004 West Legal Studies in Business

Merchants may reasonably detain customers if

2004 West Legal Studies in Business

Most courts require some physical symptom or

2004 West Legal Studies in Business

owe each other to refrain from making false

2004 West Legal Studies in Business

2004 West Legal Studies in Business

Damages for Libel

2004 West Legal Studies in Business

Damages for Slander

2004 West Legal Studies in Business

2004 West Legal Studies in Business

2004 West Legal Studies in Business

Use of Persons Name or Likeness.

2004 West Legal Studies in Business

2004 West Legal Studies in Business

Misrepresentation of material fact;

Fact vs. Opinion.

Defendant knows about contract between A and B;

Case 5.1: Mathis v. Liu (2002).

2004 West Legal Studies in Business

Bona fide competitive behavior is a defense to

2004 West Legal Studies in Business

3: Intentional Torts to Property

Physically enters onto, above or below the

2004 West Legal Studies in Business

interference with anothers use or enjoyment of

2004 West Legal Studies in Business

Defendant owed Plaintiff a duty of care;

2004 West Legal Studies in Business

foreseeable risks that Defendant knew or should

2004 West Legal Studies in Business

Duty of Care: Foreseeability

foreseeable if they are consequences that

2004 West Legal Studies in Business

occupation, relationship to Plaintiff.

2004 West Legal Studies in Business

Injury and Damages

2004 West Legal Studies in Business

Case 5.3: Palsgraf v. Long Island RR Co. (1928)

2004 West Legal Studies in Business

2004 West Legal Studies in Business

the injury when the causal connection

2004 West Legal Studies in Business

2004 West Legal Studies in Business

understanding of the risks associated with an

2004 West Legal Studies in Business

Special Negligence Doctrines

2004 West Legal Studies in Business

Special Negligence Statutes

2004 West Legal Studies in Business

2004 West Legal Studies in Business

Law on the Web