Chapter 5
Torts and Cyber Torts
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§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.
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§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.
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Types of Intentional Torts
Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.
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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.
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Defenses to
Assault & Battery
Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.
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False Imprisonment
False Imprisonment is the intentional:
 Confinement or restraint.
 Of another person’s activities.
 Without justification.
Merchants may reasonably detain customers if
there is probable cause.
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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.
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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.
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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 3rd
party.
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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.
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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.
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Defenses to Defamation
Truth is generally an absolute defense.
Privileged (or Immune) Speech.
 Absolute: judicial & legislative proceedings.
 Qualified: Employee Evaluations.
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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.
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Invasion of Privacy
Every person has a fundamental right to solitude
freedom from public scrutiny.
 Use of Person’s Name or Likeness.
 Intrusion on Individual’s Affairs or Seclusion.
 Publication of Information that Places a Person in
False Light.
 Public Disclosure of Private Facts.
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Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.
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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.
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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).
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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.
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§3: Intentional Torts to Property
Trespass to land occurs when a person,
without permission:
 Physically enters onto, above or below the
surface of another’s land; or
 Causes anything to enter onto the land; or
 Remains, or permits anything to remain, on the
land.
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Intentional Torts to
Personal Property
Trespass to personal property is the Intentional
interference with another’s use or enjoyment of
personal property without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.
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§4: Negligence
Tortfeasor does not intend the consequences of
the act or believes they will occur.
Actor’s conduct merely creates a foreseeable risk
of injury. Analysis:




Defendant owed Plaintiff a duty of care;
Defendant breached that duty;
Plaintiff suffered legal injury;
Defendant’s breach caused the injury.
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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).
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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).
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Duty of Care
Duty of care varies, based on the Defendant’s
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.
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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.
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Causation
 Even though a Tortfeasor owes a duty of care
and breaches the duty of care, the act must have
caused the Plaintiff’s injuries.
 Causation in Fact, and
 Proximate Cause.
Case 5.3: Palsgraf v. Long Island RR Co. (1928)
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Causation in Fact
Did the injury occur because of the Defendant’s
act, or would the injury have occurred anyway?
Usually determined by the “but for” test, i.e., but
for the Defendant’s act the injury would not have
occurred.
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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.
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Defenses to Negligence
Assumption of Risk.
Superceding Intervening Cause.
Contributory or Comparative Negligence.
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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).
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Superceding Cause
A unforeseeable, intervening act that occurs
after Defendant’s act that breaks the causal
relationship between Defendant’s act and
Plaintiff’s injury relieving Defendant of
liability.
If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.
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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.
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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.
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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 Plaintiff’s injury.
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Special Negligence Statutes
 “Danger Invites Rescue” Doctrine.
 Good Samaritan Statutes.
 Dram Shop Acts.
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§ 5: Cyber Torts
Defamation Online.
 Liability of ISP’s.
 Piercing the Veil of Anonymity.
Spam.
 Trespass to Personal Property.
 Statutory Regulation of Spam.
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Law on the Web
Cases on Torts and Cyber Torts
 LawGuru.com
Legal Research Exercises on the Web
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