Torts and Cyber Torts
Chapter 4
Torts: An Introduction
• What is a Tort?
– A civil wrong, not arising from a breach of
contract or other agreement.
– A breach of a legal duty that proximately
causes harm or injury to another.
Torts: An Introduction
• Civil vs. Criminal Wrong
– A tort is a “civil” wrong punishable by paying
damages to the injured party.
– A tort is not a “criminal” wrong resulting in
paying a fine to the government and/or being
imprisoned.
Torts: An Introduction
• Civil vs. Criminal Wrong
– Some torts may also serve as the basis for
separate criminal prosecution by the state.
– Burden of Proof is different:
• “beyond a reasonable doubt” for crimes
• “preponderance of evidence” for torts
Torts: An Introduction
• Tort vs. Contract
– The duty that is violated by the tortfeasor must
exist as a matter of law, not as a consequence of
any agreement between the tortfeasor and the
injured party.
Torts: An Introduction
• Elements of a Tort
– Wrongful Act
– Proximate Cause
– Damages
Torts: An Introduction
• Proximate Cause
– cause and effect relationship
– a foreseeable and probable consequence of the
act or omission.
Intentional Torts:
• A tort intentionally or knowingly
committed. It can be to a person or to
property.
Intentional Torts: Assault
– An intentional act that creates a reasonable
apprehension of immediate harmful contact.
– For example, pointing a gun at someone.
Intentional Torts: Battery
– An intentional harmful or offensive contact.
– For example, getting hit by the bullet.
Intentional Torts: False
Imprisonment
– The intentional confinement or restraint of
another person’s activities without justification.
– Restraint may occur through the use of physical
barriers, physical restraint, or threats of
physical force.
Intentional Torts: Infliction of
Emotional Distress
– An intentional act that amounts to extreme and
outrageous conduct resulting in severe
emotional distress to another.
– Parodies of public figures protected
Intentional Torts: Defamation
• Defamation is anything published or
publicly spoken that injures another’s
character, reputation, or good name.
• Libel is defamation that is written.
• Slander is defamation in oral form.
• Truth is normally an absolute defense
against any claim of defamation.
• Public figure has to prove actual malice.
Intentional Torts: Privacy
• Invasion of Privacy
– Four acts generally qualify as improperly
infringing on another’s privacy:
Intentional Torts: Privacy
• Appropriation: use of a person’s name or likeness
without permission.
• Intrusion in an individual’s affairs where the
person has a reasonable expectation of privacy.
• Public disclosure of private facts that an ordinary
person would find objectionable.
• Publication of information that places a person in
a false light.
Intentional Torts: Fraud
• Actionable fraud consists of the following
elements:
– A misstatement of a material fact
– Made knowingly or with reckless disregard for
the truth
– With intention to deceive another
– With justifiably reliance by a reasonable person
Intentional Torts: Fraud
Mere puffery, or “sales talk,” is not fraud
because such claims involve opinions, not
facts, and therefore cannot be justifiably
relied upon by a reasonable person.
Intentional Torts:
Tortious Interference
Intentional interference with a contractual
relationship
–Must be a contract between two parties
–Third party must know the contract exists
–Third party must intentionally cause a
breach of that contract
Intentional Torts:
Tortious Interference
Intentional Interference with a business
relationship
- Must be some sort of predatory
behavior
Bona Fide competitive behavior is a defense
to tortious interference
Intentional Torts: Trespass
Entry onto another person’s land without
permission. It may be:
• On land
• Above land
• Below surface
It also may involve personal property,
such as a website
Intentional Torts: Conversion
• Wrongfully taking or retaining another’s
property and placing it in service of another.
Negligence: Basic Principles
• Elements of Negligence:
– Duty of care to act as a reasonable person under
similar circumstances
– Breach of Duty
– Proximate Cause
– Of Damages to the Plaintiff.
Duty
• No duty to stop and render aid
• Duty to aid if you were involved in accident
• In your actions, act as a reasonable person
would act
Duty of Landowners
• Trespassers
– Duty not to intentionally or recklessly
cause them harm.
Duty of Landowners
• Licensees - social guests and other persons
not on the premises for any business
purpose
– Duty to warn of any known dangers
Duty of Landowners
• Invitees - persons who come onto premises
for business purposes, including retail and
other establishments
– Duty to warn of known dangers and those
dangers owner should know about
Defenses to Negligence
• Assumption of Risk
• Superseding Cause
Negligence: Damages
• Tort law recognizes two categories of
damages:
– Compensatory damages - Designed to
reimburse actual value of the plaintiff’s injury
or loss
– Punitive damages - Designed to punish the
tortfeasor and to deter similar conduct in the
future.
Contributory and Comparative
Negligence
• Contributory Negligence
– Any negligence on the part of the plaintiff that
contributed to the injury is an absolute bar to
the recovery of damages.
– It does not matter how insignificant the
plaintiff’s own negligence is compared to that
of the defendant.
Contributory and Comparative
Negligence
• Comparative Negligence
– Once it is established that negligence of both
parties caused the damages, the court must
apportion negligence among the parties on a
percentage basis.
– Adopted by statute in some form in all states
– Over 50% “no recovery” rule in Texas and
other states
Strict Liability
• Liability regardless of fault.
• Imposed on defendants whose activities are
abnormally dangerous and/or involve
dangerous animals.
• Imposed also on manufacturers,
distributors, and sellers of any products
which are “defective”
Torts and Cyber Torts
Chapter 4