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 Against Persons
• 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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Intentional Torts Against Persons
• 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 republishes the statement may be liable.
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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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.
– Rights of internet users?
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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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.
Defendants negligently represented size of
leased property and plaintiff justifiably
relied, resulting in $90,000 in damages.
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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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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Intentional Torts Against Persons
• 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 Personal Property.
– Wrongfully taking or harm or interference
with exclusive right of use of personal
property (chattel) of another.
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Intentional Torts Against Property
• 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
Replacement cost is appropriate measure of
damages for conversion of personal
property. FMV may be inadequate in some
cases.
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Intentional Torts Against Property
• 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 of Landowners 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
CDA does not provide immunity under FHA
for questions that could be used to
discriminate against housing residents.
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