1. Slides developed by Les Wiletzky Wiletzky and Associates Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany CONTEMPORARY BUSINESS AND ONLINE COMMERCE LAW 5 th Edition by Henry R. Cheeseman Chapter 4 Torts and Privacy

2. 4 - 2Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Introduction Tort Tort is the French word for a “wrong” civil lawsuit Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the party’s property Tort damages Tort damages are monetary damages that are sought from the offending party

3. 4 - 3Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

4. 4 - 4Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (1 of 6) The law protects a person from unauthorized touching, restraint, or other contact The law also protects a person’s reputation and privacy Violations of these rights are actionable as torts

5. 4 - 5Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (2 of 6) Assault The threat of immediate harm or offensive contact; or Any action that arouses reasonable apprehension of imminent harm Actual physical contact is unnecessaryAssault The threat of immediate harm or offensive contact; or Any action that arouses reasonable apprehension of imminent harm Actual physical contact is unnecessaryBattery Unauthorized and harmful or offensive physical contact with another person Actual physical contact is unnecessaryBattery Unauthorized and harmful or offensive physical contact with another person Actual physical contact is unnecessary

6. 4 - 6Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (3 of 6) False Imprisonment The intentional confinement or restraint of another person without authority or justification and without that person’s consent Merchant Protection Statutes False Imprisonment The intentional confinement or restraint of another person without authority or justification and without that person’s consent Merchant Protection Statutes Misappropriation of the Right to Publicity An attempt by another person to appropriate a living person’s name or identity for commercial purposes tort of appropriation Also known as the tort of appropriation Misappropriation of the Right to Publicity An attempt by another person to appropriate a living person’s name or identity for commercial purposes tort of appropriation Also known as the tort of appropriation

7. 4 - 7Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (4 of 6) Invasion of the Right to Privacy A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity Invasion of the Right to Privacy A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity Intentional Infliction of Emotional Distress A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress Intentional Infliction of Emotional Distress A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress

8. 4 - 8Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (5 of 6) Defamation of Character False statement(s) made by one person about another. The plaintiff must prove that: The defendant made an an untrue statement of fact about the plaintiff; and The statement was intentionally or accidentally published to a third party Defamation of Character False statement(s) made by one person about another. The plaintiff must prove that: The defendant made an an untrue statement of fact about the plaintiff; and The statement was intentionally or accidentally published to a third party Defamation of Character Defamation of Character (continued) Slander – Slander – oral defamation of character Libel – Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc. Defamation of Character Defamation of Character (continued) Slander – Slander – oral defamation of character Libel – Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc.

9. 4 - 9Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Persons (6 of 6) Malicious Prosecution A successful defendant in a prior lawsuit can sue the plaintiff if the first lawsuit was frivolous Certain elements must be proven to win a lawsuit for malicious prosecution The courts do not look favorably on malicious prosecution lawsuits Malicious Prosecution A successful defendant in a prior lawsuit can sue the plaintiff if the first lawsuit was frivolous Certain elements must be proven to win a lawsuit for malicious prosecution The courts do not look favorably on malicious prosecution lawsuits

10. 4 - 10Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Property (1 of 3) There are two general categories of property: Real Property Real Property – consists of land and anything permanently attached to that land Personal Property Personal Property – consist of things that are movable Automobiles Books Clothes Pets

11. 4 - 11Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Property (2 of 3) Trespass to Land A tort that interferes with an owner’s right to exclusive possession of land Trespass to Land A tort that interferes with an owner’s right to exclusive possession of land Trespass to Personal Property A tort that occurs whenever one person injures another person’s personal property; or Interferes with that person’s enjoyment of his or her personal property Trespass to Personal Property A tort that occurs whenever one person injures another person’s personal property; or Interferes with that person’s enjoyment of his or her personal property

12. 4 - 12Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Intentional Torts Against Property (3 of 3) Conversion of Personal Property A tort that deprives a true owner of the use and enjoyment of his or her personal property by: Taking over such property; and Exercising ownership rights over it

13. 4 - 13Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (1 of 7) Unintentional Tort Unintentional Tort A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions Negligence Negligence The omission to do something which a reasonable person would do; or Doing something which a prudent and reasonable man would not do

14. 4 - 14Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (2 of 7) To be successful in a negligence lawsuit, the plaintiff must prove that: 1.The defendant owed a duty of care to the plaintiff 2.The defendant breached the duty of care 3.The plaintiff suffered injury 4.The defendant’s negligent act caused the plaintiff’s injury

15. 4 - 15Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (3 of 7) Duty of Care Duty of Care – the obligation we all each other not to cause any unreasonable harm or risk of harm reasonable person standard The courts apply a reasonable person standard reasonable professional standard Defendants with a particular expertise or competence are measured against a reasonable professional standard

16. 4 - 16Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (4 of 7) Breach of Duty Breach of Duty – a failure to exercise care or to act as a reasonable person would act Injury to Plaintiff Injury to Plaintiff – the plaintiff must suffer personal injury or damage to his or her property to recover monetary damages for the defendant’s negligence. Effect on the plaintiff’s life or profession

17. 4 - 17Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (5 of 7) Causation Causation – a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff’s injuries Causation in Fact (actual cause) Proximate Cause (legal cause) Causation in Fact Causation in Fact (actual cause) The actual cause of negligence A person who commits a negligent act is not liable unless causation in fact can be proven

18. 4 - 18Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (6 of 7) Proximate Cause Proximate Cause (legal cause) Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions

19. 4 - 19Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Unintentional Torts (Negligence) (7 of 7) proximate cause The doctrine of proximate cause was established in the Palsgraf v. The Long Island Railroad Company case Professional Malpractice The liability of a professional who breaches his or her duty of ordinary care Professional Malpractice The liability of a professional who breaches his or her duty of ordinary care

20. 4 - 20Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Special Negligence Doctrines Negligent Infliction of Emotional Distress Negligence Per Se Res Ipsa Loquitur Good Samaritan Laws Dram Shop Acts Guest Statutes Fireman’s Rule Negligent Infliction of Emotional Distress Negligence Per Se Res Ipsa Loquitur Good Samaritan Laws Dram Shop Acts Guest Statutes Fireman’s Rule “Danger Invites Rescue” Doctrine Social Host Liability Liability of Landowners Liability of Common Carriers and Innkeepers “Danger Invites Rescue” Doctrine Social Host Liability Liability of Landowners Liability of Common Carriers and Innkeepers

21. 4 - 21Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Defenses Against Negligence Superseding or intervening event Assumption of the risk Contributory negligence Comparative negligence

22. 4 - 22Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Special Business Torts (1 of 3) Entering certain businesses and professions without a license Unfair competition Predatory practices Palming off Disparagement False advertising Intentional misrepresentation (fraud)

23. 4 - 23Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Special Business Torts (2 of 3) The elements required to find fraud are: 1.The wrongdoer made a false representation of material fact 2.The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party 3.The innocent party justifiably relied on the misrepresentation 4.The innocent party was injured

24. 4 - 24Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Special Business Torts (3 of 3) Intentional interference with contractual relations Breach of the implied covenant of good faith and fair dealing

25. 4 - 25Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Special Business Torts: Tort Damages Actual Damages tortious Include compensation for personal injury, pain and suffering, emotional distress, and other injuries caused by the defendant’s tortious conduct Actual Damages tortious Include compensation for personal injury, pain and suffering, emotional distress, and other injuries caused by the defendant’s tortious conduct Punitive Damages Are not recoverable for breach of contract tortious Recoverable for certain tortious conduct Fraud Intentional conduct Other egregious conduct Punitive Damages Are not recoverable for breach of contract tortious Recoverable for certain tortious conduct Fraud Intentional conduct Other egregious conduct

26. 4 - 26Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Strict Liability (1 of 2) liability without fault Strict liability is liability without fault A participant in a covered activity will be held liable for any injuries caused by the activity even if he or she was not negligent

27. 4 - 27Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Strict Liability (2 of 2) This doctrine holds that: 1.There are certain activities that can place the public at risk of injury even if reasonable care is taken; and 2.The public should have some means of compensation if such injury occurs