1. © 2005 West Legal Studies in Business A Division of Thomson Learning CHAPTER 4 Torts and Cyber Torts

2. © 2005 West Legal Studies in Business A Division of Thomson Learning 2 What is a tort?What is a tort? What is the purpose of tort law? What are the two basic categories of torts?What is the purpose of tort law? What are the two basic categories of torts? What are the four elements of negligence?What are the four elements of negligence? What is meant by strict liability?What is meant by strict liability? What is a cyber tort, and how are tort theories being applied in cyberspace?What is a cyber tort, and how are tort theories being applied in cyberspace? Learning Objectives

3. © 2005 West Legal Studies in Business A Division of Thomson Learning 3 Basis of Tort Law A tort is a civil, legal injury to a person or property caused by a breach of a legal duty.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.Plaintiff (the injured party) sues the Defendant (the Tortfeasor) for damages. Three Torts:Three Torts: –Intentional. –Unintentional (negligence-no fault). –Strict Liability (absolute liability).

4. © 2005 West Legal Studies in Business A Division of Thomson Learning 4 Assault and Battery.Assault and Battery. –Assault: the reasonable apprehension or fear of immediate contact. –Battery: completion (contact) of the assault. –Defenses: Consent.Consent. Self-Defense and Others.Self-Defense and Others. Defense of Property.Defense of Property. Intentional Torts Against Persons

5. © 2005 West Legal Studies in Business A Division of Thomson Learning 5 False Imprisonment.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.Infliction of Emotional Distress. –Extreme and outrageous conduct. –Some courts require physical symptoms. Intentional Torts Against Persons

6. © 2005 West Legal Studies in Business A Division of Thomson Learning 6 Defamation.Defamation. –Publication of a false statement (oral or written) that injures a person’s good reputation. Publication: third party must hear or see statementPublication: third party must hear or see statement Statements made on the internet may be actionable.Statements made on the internet may be actionable. An individual who re-publishes the statement will be liable.An individual who re-publishes the statement will be liable. –Statement must hold someone up to contempt, ridicule or hatred in the community. Intentional Torts Against Persons

7. © 2005 West Legal Studies in Business A Division of Thomson Learning 7 Defamation (cont’d).Defamation (cont’d). –Slander per se (no proof of damages is required): Loathsome communicable disease.Loathsome communicable disease. Professional impropriety.Professional impropriety. Imprisonment for a serious crime.Imprisonment for a serious crime. Unmarried woman is unchaste.Unmarried woman is unchaste. Intentional Torts Against Persons

8. © 2005 West Legal Studies in Business A Division of Thomson Learning 8 Defamation (cont’d).Defamation (cont’d). –Defenses: Truth is normally an absolute defense.Truth is normally an absolute defense. Statement was Privileged:Statement was Privileged: –Absolute: judicial and legislative proceedings. –Qualified: good faith, limited. Public Figures: plaintiff must show statement made with “actual malice.”Public Figures: plaintiff must show statement made with “actual malice.” Intentional Torts Against Persons

9. © 2005 West Legal Studies in Business A Division of Thomson Learning 9 Invasion of the Right to Privacy.Invasion of the Right to Privacy. –Person has the right to solitude. Breach of that duty is a tort. –Appropriation. –False Light. –Public Disclosure of Private Facts. –Rights of Internet users? Intentional Torts Against Persons

10. © 2005 West Legal Studies in Business A Division of Thomson Learning 10 Misrepresentation (Fraud).Misrepresentation (Fraud). –Intentionally deceive another to believe in a condition that is different from the condition that already exists. Knowing misrepresentation of fact.Knowing misrepresentation of fact. Intent to induce innocent party to rely.Intent to induce innocent party to rely. Justifiable reliance by innocent party.Justifiable reliance by innocent party. Causation and Damages.Causation and Damages. –Contrast: “puffery” or statements of opinion. Intentional Torts Against Persons

11. © 2005 West Legal Studies in Business A Division of Thomson Learning 11 Wrongful Interference with Contracts.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. Intentional Torts Against Persons

12. © 2005 West Legal Studies in Business A Division of Thomson Learning 12 Wrongful Interference with Business Relationship.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.Defenses to Wrongful Interference: Interference was justified or permissible. Intentional Torts Against Persons

13. © 2005 West Legal Studies in Business A Division of Thomson Learning 13 Trespass to Land.Trespass to Land. Trespass to Personal Property.Trespass to Personal Property. –Register.com v. Verio, Inc. (2004). Conversion.Conversion. Disparagement of Property.Disparagement of Property. –Slander of Quality. –Slander of Title. Intentional Torts Against Property

14. © 2005 West Legal Studies in Business A Division of Thomson Learning 14 Negligence Negligence is an unintentional tort.Negligence is an unintentional tort. Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty.Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty. Defendant (tortfeasor) creates foreseeable risk of injury.Defendant (tortfeasor) creates foreseeable risk of injury.

15. © 2005 West Legal Studies in Business A Division of Thomson Learning 15 Negligence--Analysis Did the Defendant owe the Plaintiff a legal duty of care?Did the Defendant owe the Plaintiff a legal duty of care? Did the Defendant breach that duty?Did the Defendant breach that duty? Did the Plaintiff suffer a legal injury?Did the Plaintiff suffer a legal injury? Did the Defendant’s breach of duty cause the Plaintiff’s injury?Did the Defendant’s breach of duty cause the Plaintiff’s injury?

16. © 2005 West Legal Studies in Business A Division of Thomson Learning 16 Negligence Duty of Care and Breach.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 business invitees and tenants to keep common areas safe. Martin v. Wal-Mart Stores, Inc. (1999).Martin v. Wal-Mart Stores, Inc. (1999). –Duty of Professionals to clients (attorneys, CPA’s, doctors).

17. © 2005 West Legal Studies in Business A Division of Thomson Learning 17 Negligence Injury Requirement and DamagesInjury Requirement and Damages –Plaintiff must suffer a legally recognizable injury. –Not all injuries can be compensated. CausationCausation –Causation in Fact (“but for” test). –Proximate Cause (foreseeably strong connection). –Palsgraf (1928).

18. © 2005 West Legal Studies in Business A Division of Thomson Learning 18 Negligence Defenses:Defenses: –Assumption of the Risk. –Superceding Intervening Cause. Event must be unforeseeable.Event must be unforeseeable. –Contributory Negligence (few jurisdictions). Plaintiff recovers nothing if he is at fault.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.As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.

19. © 2005 West Legal Studies in Business A Division of Thomson Learning 19 Negligence Special Negligence Doctrines.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.Defendant broke a law/statute. Plaintiff is in special class to be protected; andPlaintiff is in special class to be protected; and Statute designed to prevent injury to Plaintiff.Statute designed to prevent injury to Plaintiff. –“Danger Invites Rescue” doctrine. –Dram Shop Acts.

20. © 2005 West Legal Studies in Business A Division of Thomson Learning 20 Strict Liability Does not require fault, intent or breach of duty.Does not require fault, intent or breach of duty. Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented.Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented. Dangerous Animals.Dangerous Animals. Product Liability—manufacturers and sellers of harmful or defective products.Product Liability—manufacturers and sellers of harmful or defective products.

21. © 2005 West Legal Studies in Business A Division of Thomson Learning 21 Cyber Torts Can a person be liable for a tort committed in cyberspace?Can a person be liable for a tort committed in cyberspace? Should an Internet Service Provider (ISP) be liable for the actions of its subscriber?Should an Internet Service Provider (ISP) be liable for the actions of its subscriber? –Barrett v. Rosenthal (2004). Who should be liable for “spam” and computer viruses that cause injury?Who should be liable for “spam” and computer viruses that cause injury? –Federal CAN-SPAM Act 2003.