BUSINESS LAW TODAY
Essentials 9th Ed.
Roger LeRoy Miller - Institute for University Studies, Arlington, Texas
Gaylord A. Jentz - University of Texas at Austin, Emeritus
Chapter
4
Torts and Cyber Torts
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Learning Objectives
 What is a tort?
 What is the purpose of tort law? What
are the two basic categories of torts?
 What are the four elements of
negligence?
 What is meant by strict liability? In what
circumstances is strict liability applied?
 What is a cyber tort, and how are tort
theories being applied in cyberspace?
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The Basis of Tort Law
 A tort is a private, civil legal action to
obtain monetary damages from a legal
injury a person or property.
 Damages:
 Compensatory Damages: actual losses. Puts plaintiff in
position he would have been in if the tort had not
occurred. Special Damages: quantifiable such as lost
wages, medical bills. General Damages: nonmonetary
losses such as pain and suffering.
 Punitive Damages: punish wrongdoer, typically only
available in intentional torts.
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The Basis of Tort Law
 Plaintiff (injured party) sues the
Defendant (tortfeasor).
 Classification of Torts:
Intentional.
Unintentional (negligence-no fault).
Strict Liability (absolute liability).
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Intentional Torts: Assault and Battery
 Assault: the reasonable apprehension or
fear of immediate contact.
 Battery: completion (contact) of the
assault.
 No motive is necessary, and plaintiff can
be compensated for emotional harm.
 Defenses:
Consent.
Self-Defense and Others.
Defense of Property.
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Intentional Torts Against Persons
 False Imprisonment.
Confinement or restraint of another person’s
activities without justification.
Merchants can detain a suspected shoplifter as
long as there is probable cause.
 Infliction of Emotional Distress.
Extreme and outrageous conduct.
Some courts require physical symptoms.
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Defamation
 Defamation: Publication of a false
statement (oral or written) that injures a
person’s good reputation.
Fact or Opinion?? Opinions are free
speech and generally not actionable.
Slander is oral, Libel is written. Statements
made on the internet may be libel.
Publication Requirement: third party must
hear or see statement. An individual who
re-publishes the statement may be liable.
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Defamation - Damages
 Libel: damages are presumed as a
matter of law. Plaintiff need not prove
she was actually injured. Reason: libel
is “permanent” and continues to harm
after statement made.
 Slander : plaintiff must prove special
damages (statement actually caused
monetary loss). Reason: slander is
temporary.
Exception: Slander per se 
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Defamation
 Defamation.
Slander per se (no proof of damages is
required):
• Loathsome communicable disease.
• Professional impropriety.
• Imprisonment for a serious crime.
• Unmarried woman is unchaste.
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Defamation
 Defamation Defenses.
Truth is normally an absolute defense.
Statement was Privileged:
• Absolute: judicial and legislative proceedings.
• Qualified: good faith, limited.
Public Figures: plaintiff must show
statement made with “actual malice.”
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Invasion of Privacy
 Invasion of the Right to Privacy.
Person has the right to solitude. Breach of that
duty is a tort.
Appropriation of identity (discussed ).
Intrusion into private affairs or seclusion.
False Light.
Public disclosure of private facts.
What about the rights of internet users?
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Appropriation
 Use of another person’s name, likeness
or other identifying characteristic,
without permission, with benefit to user.
 Degree of Likeness is distinguished by
different courts.
 Right of Publicity as a property right:
focuses on commercial exploitation of
likeness
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Fraudulent Misrepresentation
 Fraudulent (Intentional)
Misrepresentation.
Intentional deception of another that causes
belief in a condition that is different from the
condition that already exists.
•
•
•
•
Knowing misrepresentation of fact.
Intent to induce innocent party to rely.
Justifiable reliance by innocent party.
Causation and Damages.
Contrast: “puffery” or statements of opinion.
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Negligent Misrepresentation
 Key difference between intentional and negligent


misrepresentation is whether person making the
false statement actually knew it was false.
Typically occurs when person owes a duty to
another to give correct information.
CASE 4.1 McClain v. Octagon Plaza, LLC
(2008). Defendants negligently represented size of
leased property and plaintiff justifiably relied,
resulting in $90,000 in damages.
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Abusive or Frivolous Litigation
 Plaintiff files suit based on malice or
without a legitimate legal reason and
loses the suit, he can be sued for
malicious prosecution, recover costs of
suit and, in some states, lost profits.
 Abuse of process: does not require proof
of malice or prior litigation.
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Wrongful Interference
 Wrongful Interference with
Contracts.
Valid, enforceable contract exists between
two parties.
Third party knows about contract.
Third party intentionally causes either
party to breach the original contract.
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Wrongful Interference
 Wrongful Interference with Business
Relationship.
Distinguish competition vs. predatory behavior.
Predatory behavior is unlawfully driving
competitors out of market.
To prevail, Plaintiff must show Defendant
targeted only Plaintiff’s customers and product.
 Defenses to Wrongful Interference:
Interference was justified or permissible
(bona fide competitive behavior).
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Intentional Torts Against Property
 Trespass to Land.
Occurs when a person, without permission,
enters onto (above or below) some one else’s
land; or remains on the land or permits anything
to remain on the land.
Actual damages or harm to the property is not
required to prove trespass.
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Intentional Torts Against Property
 Trespass to Personal Property.
Wrongfully taking or harm or interference with
exclusive right of use of personal property
(chattel) of another.
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Conversion
 Wrongfully taking or retaining possession of
chattel and placing in service of another.
 Good intentions are not a defense.
 Usually occurs with trespass to personal

property.
CASE 4.2 Trustees of University of District of
Columbia v. Vossoughi (2009). Replacement
cost is appropriate measure of damages for
conversion of personal property. FMV may be
inadequate in some cases.
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Disparagement of Property
 Occurs when economically injurious


falsehoods are made about another’s
property or product.
Slander of Quality (Trade Libel): false
statement about another’s product that
caused a third party to refrain from dealing
with plaintiff, causing financial loss.
Slander of Title: false statement about legal
ownership of another’s product resulting in
financial loss.
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Unintentional Torts (Negligence)
 Occurs when plaintiff is legally injured
due to defendant’s failure to live up to a
required duty of care causing
foreseeable risk of injury.
 Analysis:
Did the Defendant owe the Plaintiff a legal duty
of care?
Did the Defendant breach that duty?
Did the Plaintiff suffer a legal injury?
Did the Defendant’s breach of duty cause the
Plaintiff’s injury?
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Negligence: Duty of Care and Breach
 Duty is based on reasonable person
standard.
How would a reasonable person have acted
under the circumstances?
Duty to Warn Business Invitees of risks, and
keep common areas safe. Exception: Obvious
risks.
Duty of Professionals to clients (attorneys,
CPA’s, doctors).
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Negligence: Injury Requirement
and Damages
 Plaintiff must suffer a legally
recognizable injury.
Plaintiff must show she suffered loss or harm
to legally protected interest.
Not all injuries can be compensated.
Compensatory damages are norm. Punitive
damages are generally awarded only in
intentional torts.
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Negligence: Causation
 To hold defendant liable, plaintiff must
the tortious act was both the actual and
proximate cause of the injury.
Causation in Fact: “but for” defendant’s act,
injury would not have occurred.
Proximate Cause: defendant’s act created a
foreseeable risk of injury to plaintiff (sufficient
strong connection).
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Defenses to Negligence
 Assumption of the Risk.
Not applied in emergency situations.
 Superseding Cause.
Event must be unforeseeable.
 Contributory Negligence (few
jurisdictions).
 Comparative Negligence (more
common).
As long as Plaintiff is less than 50% at fault he
can recover a pro-rata share of the verdict.
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Special Negligence Doctrines
 Res Ipsa Loquitur.
 Negligence Per Se. Violation of law is
legal breach of duty. Plaintiff must show:
Defendant broke a law/statute.
Plaintiff is in special class to be protected;
Statute designed to prevent injury to Plaintiff.
 “Danger Invites Rescue” doctrine.
 Dram Shop Acts.
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Strict Liability
 Does not require fault, intent or breach of
duty.
 Usually involves ‘abnormally dangerous’
activities and risk cannot be prevented.
 Dangerous Animals.
 Product Liability—manufacturers and
sellers of harmful or defective products.
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Cyber Torts – Online Defamation
 Identifying the Author of Online Defamation.
 Threshold barrier to suing an internet service provide
(ISP). Suits are now brought by “John Does” until
discovery is completed.
 Liability of ISPs.
 Communications Decency Act provides broad protection
for ISPs, but there are limits to immunity:
 CASE 4.3
Fair Housing Council of San
Fernando Valley v. Roommate.com, LLC (2008).
CDA does not provide immunity under FHA for
questions that could be used to discriminate
against housing residents.
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