Chapter Four—Torts and Cyber Torts
“Tort more or less means ‘wrong’”
Learning Objectives
1. State the purpose of tort law
2. Identify some intentional torts against persons and property
3. Name the four elements of negligence
4. Define strict liability, and list some circumstances in which it will be applied
5. Summarize the laws protecting trademarks, patents, and copyrights
6. Have a clear understanding of cyber torts, and how tort theories are being applied in cyberspace
Through tort law, society compensates those who have suffered injuries as a result of the wrongful conduct of others. Society recognizes an interest in personal physical safety, an interest in protecting real and personal property, and an interest in protecting certain intangible interests, such as personal privacy, family relations, reputation, and dignity. Tort law provides remedies for invasion of these protected interests. Also wrongful interference with others’ business rights is a business tort including the right to protect trademarks, patents, copyrights, and other property resulting from intellectual processes.
A tort is defined as a civil wrong not arising from a breach of contract; a breach of legal duty that proximately causes harm or injury to another. A major resource in deciding tort cases is the Restatement of the Law of Torts. Tort law recognizes that some acts are wrong because they cause injuries to others. A tort action is a civil action in which one person brings a personal suit against another to obtain compensation or other relief for the harm suffered known as (damages). Business Tort is the wrongful interference with another’s business rights. Cyber Tort is a tort committed in cyberspace.
Intentional Torts
An intentional tort requires intent on the part of the tortfeasor (the one committing the tort). Several types of intentional torts are:
Assault and Battery—assault is any word or action intended to make another person fearful of immediate physical harm--a reasonably believed threat. Battery is the unprivileged, intentional touching of another (the completion of the act if it results in harm). If the plaintiff shows that there was contact, and the jury agrees that the contact was offensive, the plaintiff has a right to compensation (damages). There is no need to show that the defendant acted out of malice; the person could have just been joking or playing around. The motive does not matter, only the intent to bring about the harmful or offensive contact to the plaintiff.
Defenses to Assault and Battery include:
(1) Consent—when a person consents to the act that damages him or her, there is generally no liability for the damage done.
(2) Self-defense—an individual who is defending his or her life or physical well-being can claim self-defense. In situations of both real and apparent danger, a person may use whatever force is reasonably necessary to prevent harmful contact.
(3) Defense of others—an individual can act in a reasonable manner to protect others who are in real or apparent danger.
(4) Defense of property—reasonable force may be used in attempting to remove intruders from one’s home, although force that is likely to cause death or great bodily injury can never be used just to protect property.
False Imprisonment—us defined as the intentional confinement or restraint of another person’s activities without justification. This confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force. It is essential that the person being restrained not comply with the restraint willingly.
Inflictions of emotional distress—can be defined as an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. The behavior is deemed to be extreme and outrageous conduct that exceeds the bounds of decency accepted by society and is therefore actionable or capable of serving as the ground for a lawsuit. A difficulty for the courts is in proving the existence of emotional suffering, therefore some courts require that emotional disturbance be evidenced by some physical symptom or illness or some emotional disturbance that can be documented by a psychiatric consultant or other medical professional.
Defamation—of character involves wrongfully hurting a person’s good reputation. This imposes a duty on all persons to refrain from making false, defamatory statements about others. Breaching this duty orally involves the tort of slander; breaching this duty in writing involves the tort of libel. The common law defines four types of false utterances that are considered slander per se meaning that no proof of injury or harm is required to be actionable:
(1) a statement that another has a loathsome communicable disease
(2) a statement that another has committed improprieties while engaging in a profession or trade,
(3) a statement that another has committed or has been imprisoned for a serious crime,
(4) a statement that an unmarried woman is unchaste.
A defense against defamation—truth is normally an absolute defense against a defamation charge. If the defendant can prove that his or her allegedly defamatory statements were true, the defendant will not be liable. Another defense is that the statements were privileged communications. Privileged communications are of two types: absolute such as a statement made in a courtroom by attorneys and judges during a trial or statements made by legislators during congressional floor debates; qualified statements about public officials that are made without actual malice (with either knowledge of falsity or a reckless disregard of the truth).
Invasion of the Right to Privacy—a person has a right to solitude and freedom form prying public eyes. Four acts qualify as an invasion of that privacy: (1) the use of a person’s name, picture, or other likeness for commercial purposes without permission; (2) intrusion in an individual’s affairs or seclusion; (3) publication of information that places a person in a false light; (4) public disclosure of private facts about an individual that an ordinary person would find objectionable.
Misrepresentation (Fraud)—leads another to believe in a condition that is different from the condition that actually exists. Misrepresentations may be innocently made by someone who is unaware of the existing facts. The tort of fraudulent misrepresentation involves intentional deceit for personal gain. The tort includes several elements: (1) misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth; (2) intent to induce another to rely on the misrepresentation; (3) justifiable reliance by the deceived party; (4) damages suffered as a result of the reliance; (5) causal connection between the misrepresentation and the injury suffered. Puffery is salesperson’s exaggerated claims concerning the quality of a product and is not considered fraud, but simply bragging. Normally the tort of fraud occurs only when there is reliance on a statement of fact or in the case of a professional the reliance on a statement of opinion if that professional has superior knowledge of the subject matter.
Intentional Torts against Property
Trespass to land occurs whenever a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; remains on the land; or permits anything to remain on the land. Actual harm to the land is not an essential element. Before a person can be a trespasser, the owner of the real property must establish that person as a trespasser by posting the land or in some way warning persons not to trespass. A guest in your home is not a trespasser unless he or she has been asked to leave but refuses.
Defenses against Trespass to Land—involves wrongful interference with another person’s real property rights. If it can be shown that the trespass was warranted, a defense exists (entering to help someone in danger). Another defense is if the trespasser can show that he or she had a license to come onto the land (entering another’s property to read an electric meter).
Trespass to personal property—also called trespass to personalty occurs whenever any individual unlawfully harms the personal property of another or otherwise interferes with the personal property owner’s right to exclusive possession and enjoyment of that property.
Defenses—if it can be shown that trespass to personal property was warranted, then a complete defense exists.
Conversion—exists whenever personal property is wrongfully taken from its rightful owner or possessor and placed in the service of another. This deprives the owner of the personal property without the owner’s permission and without just cause. Conversion is the civil side of crimes related to theft. Defenses—include the proof that the purported owner does not in fact own the property or does not have a right to possess it above the right of the holder. Necessity is another possible defense. (Taking a pet that has rabies to protect the public)
Unintentional Torts (Negligence)
Negligence is the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
If someone suffers injury because of another’s failure to live up to a required duty of care, then the tort involves negligence. In this case the tortfeasor neither wishes to or means to bring about the consequences of the act, nor believes they will occur. In examining a question of negligence, one should ask four questions: (1) Did the defendant owe a duty of care to the plaintiff? (2) Did the defendant breach that duty? (3) Did the plaintiff suffer a legally recognizable injury as a result of the defendant’s breach of the duty of care? (4) Did the defendant’s breach cause the plaintiff’s injury?
The concept of duty of care arises from the notion that if we are to live in society with other people, some actions can be tolerated and some cannot; some actions are right and some are wrong; and some actions are reasonable and some are not. People are free to act as they please so long as their actions do not infringe on the interests of others.
The reasonable person standard is the measurement of duty of care in tort law. The courts will ask how a reasonable person would have acted in the same circumstances to determine if a duty of care has been breached. It is not necessarily how a particular person would act, but in society’s judgment, how people should act. What constitutes reasonable care varies, of course, with the circumstances.
The Duty of Landowners—landowners are expected to exercise reasonable care to protect from harm persons coming onto their property. Landowners are held to owe a duty to protect even trespassers against certain risks in some jurisdictions. Landowners who rent or lease properties are expected to exercise a reasonable care to ensure that the tenants and their guests are not harmed in common areas. Retailers and other firms that invite the public onto their property are charged with a duty to exercise reasonable care to protect those persons (business invitees) from harm. Some risks are so obvious that the owner need not warn of them, other risks even though they may seem obvious to a business owner, may not be so in the eyes of another, such as a child. Duty of Professionals—if a person has knowledge, skill, or intelligence superior to that of an ordinary person, the individual’s conduct must be consistent with that status. These professionals are required to have a standard minimum level of special knowledge and ability. What constitutes reasonable care in the case of professionals will consider their training and expertise. If a professional violates his or her duty of care toward a client, the professional may be sued for malpractice. You can locate the professional standards for various organizations at www.lib.uwaterloo.ca/society/standards.html
The Injury Requirement and Damages
For a tort to be committed, the plaintiff must have suffered a legally recognizable injury. To recover damages (compensation), the plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. If no harm or injury results from a given negligent action, there is nothing to compensate—and no tort exists.
Compensatory Damages result in a money award equivalent to the actual value of injuries or damages sustained by the aggrieved party. Punitive Damages result in money awarded to a plaintiff to punish the defendant and deter future similar conduct.
Causation is another element necessary to a tort. If a person fails in a duty of care and someone suffers injury, the wrongful activity must have caused the harm for a tort to be committed. (1) Is there causation in fact? Did the injury occur because of the defendant’s act, or would it have occurred anyway? The use of the “but for” test can usually determine if the injury occurred because of the defendant’s act. (2) Was the act the proximate cause of the injury? Was the act the legal cause, which exists when the connection between an act and an injury is strong enough to justify imposing liability? (Review cases in your text—Palsgraf vs. Long Island Railroad Co. (1928). Courts have used foreseeability as the test for proximate cause. Proximate cause can be thought of as a question of social policy. Should the defendant be made to bear the loss instead of the plaintiff? It is difficult to predict when a court will say that something is foreseeable and when it will say that something is not and depends upon the courts interpretation of the defendant’s duty of care. An independent intervening force may break the connection between a wrongful act and an injury to another. If so, it acts as a superseding cause or events that set aside or replace the original wrongful act as the cause of the injury. The concept of superseding cause is not a question of physics but is, like proximate cause, a question of responsibility. (See examples in your text)
Defenses to Negligence include (1) assumption of risk, (2) contributory negligence, and (3) comparative negligence. A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover because of assumption of risk. There must be (1) knowledge of the risk and (2) voluntary assumption of the risk. All individuals are expected to exercise a reasonable degree of care in looking out for themselves. If the plaintiff was also negligent, the plaintiff will be precluded from recovering any damages because of contributory negligence. The majority of states now allow recovery based on the doctrine of comparative negligence, which enables both the plaintiff and defendant’s negligence to be computed and the liability for damages distributed accordingly.
Res ipsa loquitur (rihz ihp-suh low-kwuh-duhr) is a doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. “The facts speak for themselves”
Negligence per se is an action or failure to act in violation of a statutory requirement.
Good Samaritan Statues provide that persons who provide emergency services to, or rescue, others in peril—unless they do so recklessly, thus causing further harm—cannot be sued for negligence.
Dram Shop Acts impose liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.
Strict liability or liability without fault involve acts that depart from a reasonable standard of care and cause injuries. Liability for injury is imposed for reasons other than fault. Courts apply the doctrine of strict liability in such cases because of the extreme risk of the activity. (Liability regardless of fault) Strict liability would be imposed on a merchant who introduces into commerce a good that is unreasonably dangerous when in a defective condition. A significant application of strict liability is in the area of product liability This is based on two factors: (1) the manufacturing company can better bear the cost of injury, because it can spread the cost throughout society by increasing prices of goods and services, and (2) the manufacturing company is making a profit form its activities and therefore should bear the cost of injury as an operating expense.
Business Torts and Intellectual Property
Business torts are defined as wrongful interference with another’s business rights. Your text discusses the areas of (1) Wrongful interference with contractual or business relations; (2) appropriation of another’s name without permission; (3) disparagement of business property or reputation; (4) infringement of rights in trademarks, patents, and copyrights (commonly referred to as intellectual property); (5) misappropriation of trade secrets. Your text discusses these in detail and you should review all case examples and information prior to your chapter or midterm exam.
Cyber Torts
One of the major questions relating to cyber torts is who should be held responsible, the party committing the breach or the service provider. Other questions involve issues of proof. How, for example, can it be proved that an online defamatory remark was “published” (which requires a third party see or hear it)? How can the identity of the person who made the remake be discovered? Can an ISP be forced to reveal the source of an anonymous comment? Read the section Cyber Torts in your text and be prepared to discuss this at midterm. Pay close attention to terms such as spam, intellectual property, trademarks, cybermark, cybersquatting. Review the online world on page 135—“Can Spamming Constitute a Tort?” and the Ethical Issue on Page 136, “Who benefits from the CAN-SPAM Act?” Be ready to make your comments about these issues in a written discussion at midterm.
REMEMBER—it is the intent to do an act that is important in tort law, not the motive behind the intent.
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