BUSINESSthLAW TODAY
Essentials 8 Ed.
Roger LeRoy Miller - Institute for University Studies, Arlington, Texas
Gaylord A. Jentz - University of Texas at Austin, Emeritus
Chapter
4
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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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Basics of Tort Law
 A tort is a civil, legal injury to a
person or property caused by a
breach of a legal duty.
 Plaintiff (the injured party) sues the
Defendant (the Tortfeasor) for
damages:
Compensatory damages.
Punitive Damages.
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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.
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.
• Publication: third party must hear or see statement
• Statements made on the internet may be
actionable.
• An individual who re-publishes the statement will
be liable.
Statement must hold someone up to
contempt, ridicule or hatred in the community.
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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
 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
 Person has the right to solitude. Breach
of that duty is a tort.
 Tort of Appropriation.
 Tort of False Light.
 Public Disclosure of Private Facts.
 Rights of Internet users?
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Fraudulent Misrepresentation
 Fraudulent Misrepresentation.
Intentionally deceive another to believe 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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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.
Mathis v. Liu (2002).
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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.
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Intentional Torts Against Property
 Trespass to Land.
 Trespass to Personal Property.
 Conversion.
 Disparagement of Property.
Slander of Quality.
Slander of Title.
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Negligence
 Negligence is an unintentional tort.
 Occurs when someone suffers injury
because of the defendant’s failure to
comply with a legal duty.
 Defendant (tortfeasor) creates
foreseeable risk of injury.
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Negligence--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
 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.
• CASE 4.1 Izquierdo v. Gyroscope,
Inc. (2007).
Duty of Professionals to clients (attorneys,
CPA’s, doctors).
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Negligence: Injury Requirement
 Injury Requirement and Damages
Plaintiff must suffer a legally recognizable
injury.
Not all injuries can be compensated.
 Causation
Causation in Fact (“but for” test).
Proximate Cause (foreseeably strong
connection).
Palsgraf v. Long Island Railroad (1928).
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Defenses to Negligence
 Assumption of the Risk.
CASE 4.2 Sutton v. Eastern New York
Soccer Association, Inc. (2004).
 Superceding Intervening Cause.
Event must be unforeseeable.
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Defenses to Negligence
 Contributory Negligence (few
jurisdictions).
Plaintiff recovers nothing if he is at fault.
 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; and
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
 Defamation Online.
Can a person be liable for a defamation tort
committed in cyberspace?
CASE 4.3 Carafano v.
Metrosplash.com, Inc. (2003).
Should an Internet Service Provider (ISP) be
liable for the actions of its subscriber?
 Who should be liable for “spam” and
computer viruses that cause injury?
Federal CAN-SPAM Act 2003.
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