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Business Torts
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A civil wrong other than a breach in contract.→
Tort Law limits how people Act and Use their resources.
Tort Law limits how people Act and Use their resources.
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Categories of Torts:
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1. Intentional
2. Negligence
3. Strict liability
2. Negligence
3. Strict liability
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Intentional Torts:
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Deliberate action →(cause) Injury
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Deliberate Action
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Either:
A. A Desire to bring about certain results, or...
B. Knowledge that results is substantially likely.
A. A Desire to bring about certain results, or...
B. Knowledge that results is substantially likely.
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Injury
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Identify the injury... damage to body, mind, property, reputation, and well-being.
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Common Intentional Torts:
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• Assault & Battery
• Trespass
• Infliction of Mental Distress
• Conversion
• Defamation- public or private
• Invasion of property
• Trespass
• Infliction of Mental Distress
• Conversion
• Defamation- public or private
• Invasion of property
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Common Law Business Torts:
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1. • Injurious Falsehood
2. • Intentional Interference with Contractual Relation
2. • Intentional Interference with Contractual Relation
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Injurious Falsehood—Trade Disparagement
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o Speaking in a falsely negative manner about another's business.
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Intentional Interference with Contractual Relation
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o Taking intentional actions by one party to undermine the contract between another party. (Stealing out from underneath ya)
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Elements of Intentional Interference with Contract:
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• A valid and enforceable contract between two parties.
• Defendant knew of the existence of the contract and its terms
• Defendant intentionally undertook steps to cause one of the parties to breach the contract
• Plaintiff injured as a result of the breach in contract.
• Defendant knew of the existence of the contract and its terms
• Defendant intentionally undertook steps to cause one of the parties to breach the contract
• Plaintiff injured as a result of the breach in contract.
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Fraud
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• Intentional misrepresentation of a material fact
• Representation is justifiably relied upon by someone to his/her injury
o Intentional misrepresentation is a LIE or
o Reckless disregard for the truth
o Lie must be about material & important fact
o Injury has to be proved—loss of money or another resource someone owns
• Misrepresentation: financial status
• Representation is justifiably relied upon by someone to his/her injury
o Intentional misrepresentation is a LIE or
o Reckless disregard for the truth
o Lie must be about material & important fact
o Injury has to be proved—loss of money or another resource someone owns
• Misrepresentation: financial status
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Assault:
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• Assault: (Threating)
o Placing someone in apprehension for his/her physical safety
o Apprehension: expectation of impending injury
• Battery: (Touching)
o Unwelcomed touching of another
o Touching without consent or justification
o Touching need not cause injury
o Placing someone in apprehension for his/her physical safety
o Apprehension: expectation of impending injury
• Battery: (Touching)
o Unwelcomed touching of another
o Touching without consent or justification
o Touching need not cause injury
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Battery
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• Battery—to the emotions
o Outrageous intentional conduct
o Strong probability of causing mental distress
o Victim is the person to whom the behavior is directed
o Often have to prove physical symptoms that connected to mental distress, such as
• Headaches
• Lack of sleep
• Anxiety
• Stress
• Weight gain/loss
o Outrageous intentional conduct
o Strong probability of causing mental distress
o Victim is the person to whom the behavior is directed
o Often have to prove physical symptoms that connected to mental distress, such as
• Headaches
• Lack of sleep
• Anxiety
• Stress
• Weight gain/loss
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Invasion of Privacy:
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• Misappropriation of a person's likeness
• Intrusion of a person's physical solitude
• The public disclosure of private, highly objectionable information about a person
• Intrusion of a person's physical solitude
• The public disclosure of private, highly objectionable information about a person
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Privacy and Publicity
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• Intrusion (prying into someone's private life) is a tort if a reasonable person would find it offensive.
o Examples: Wiretapping, stalking, peeping
• Disclosure of Embarrassing Private Facts is made public with no need for the public to know.
• Commercial Exploitation is when a person image or voice is used for commercial purposes without that person's permission.
o Examples: Wiretapping, stalking, peeping
• Disclosure of Embarrassing Private Facts is made public with no need for the public to know.
• Commercial Exploitation is when a person image or voice is used for commercial purposes without that person's permission.
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False Imprisonment:
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• Intentional, unjustified confinement of a non-consenting person
• Most commonly found in shoplifting situations
• Unreasonable:
o Unnecessary use of force
o Unreasonable length of confinement
o Lack of reasonable suspicion
• Most commonly found in shoplifting situations
• Unreasonable:
o Unnecessary use of force
o Unreasonable length of confinement
o Lack of reasonable suspicion
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Defamation**-- (Big Tort):
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• Defamation—publication of untrue statements that cause ridicule or contempt to a person's character or reputation
o Publication: made know to a third party
• Slander:
o Oral Defamation
• Libel:
o Defamation—written or published over television, radio, internet
• Presumed false unless proved by a ∧ to be true.
o Publication: made know to a third party
• Slander:
o Oral Defamation
• Libel:
o Defamation—written or published over television, radio, internet
• Presumed false unless proved by a ∧ to be true.
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Defenses to Defamation:
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1. • Truth
2.• Privileged communications:
3.• Public Figure exception
2.• Privileged communications:
3.• Public Figure exception
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Truth
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an absolute defense
o Must prove that statement us the truth
o Must prove that statement us the truth
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Privileged communications:
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o Statement arose from privileged communication
o Statements of judges, legislators, attorneys within a formal context
o Statements of judges, legislators, attorneys within a formal context
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Defamation and the media:
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• 1st Amendment protections extend to media for public officials and figures
• Public figures consciously bring themselves to the public's attention
• No liability for un-truths unless:
o Un-truth were published with actual malice
• Deliberate intent to injure
o Un-truths were published with "reckless disregard for the truth"
• Public figures consciously bring themselves to the public's attention
• No liability for un-truths unless:
o Un-truth were published with actual malice
• Deliberate intent to injure
o Un-truths were published with "reckless disregard for the truth"
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Strict Liability
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• Definition: The legal responsibility for injury-causing behavior that is neither intentional nor negligent.
o Product Defects
o Ultra Hazardous Activities
o Serving Alcohol
o Common Carriers transporting goods
o Product Defects
o Ultra Hazardous Activities
o Serving Alcohol
o Common Carriers transporting goods
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Product Defects:
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• Defective products- may incur strict product liability
• Strict liability may be imposed if:
o The defective condition is unreasonably dangerous to the user
o Seller is business to sell this product: a commercial seller
• Retailer, wholesaler, manufacturer, assembler
o The product has to reach you the user without substantial change
o Strict Liability may be imposed EVEN if:
• The seller exercised all the reasonable care.
• There is no contractual relationship
• Strict liability may be imposed if:
o The defective condition is unreasonably dangerous to the user
o Seller is business to sell this product: a commercial seller
• Retailer, wholesaler, manufacturer, assembler
o The product has to reach you the user without substantial change
o Strict Liability may be imposed EVEN if:
• The seller exercised all the reasonable care.
• There is no contractual relationship
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Strict Liability- Product Defects
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• Production defects
o Products are not manufactured to a manufacture's own standards
• Design defects
o Product is manufactured to a manufacturer's own standards, but
o Product injures a user due to its unsafe design
• Defenses
o Assumption of Risk- ex: tobacco litigation
o Products are not manufactured to a manufacture's own standards
• Design defects
o Product is manufactured to a manufacturer's own standards, but
o Product injures a user due to its unsafe design
• Defenses
o Assumption of Risk- ex: tobacco litigation
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Strict Liability- Ultra Hazardous Activates
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• Ultra-hazardous activities—defendants are virtually always held liable for harm
o Ultra-hazardous includes
• Using or storing hazardous chemicals
• Using explosives
• Keeping wild animals
• Artificial storage of large quantities of liquids
o Plaintiff does no have to prove breach of duty or foreseeable harm
o Comparative negligence does not apply—defendant engaging in ultra-hazardous activity is wholly liable
o Ultra-hazardous includes
• Using or storing hazardous chemicals
• Using explosives
• Keeping wild animals
• Artificial storage of large quantities of liquids
o Plaintiff does no have to prove breach of duty or foreseeable harm
o Comparative negligence does not apply—defendant engaging in ultra-hazardous activity is wholly liable
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Strictly Liable- Serving of Alcohol- "Dram shop Acts"
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• Strict liability imposed an licensed establishment & social hosts for injuries to 3rd parties caused by the owner's intoxicated patrons
• Dram Shop liability must meet the "obvious intoxication" test:
o The employee/retailer knew, or should have known, that the customer was intoxicated, and therefore a danger to him/herself and others.
• Dram Shop liability must meet the "obvious intoxication" test:
o The employee/retailer knew, or should have known, that the customer was intoxicated, and therefore a danger to him/herself and others.
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Negligence
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Tort (Unintentional Tort) Accidental-most common tort
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Negligence (ordinary)
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failure to exercise reasonable care to protect another person or property, causing reasonable risk of harm to others.
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Have to prove 5 things to prove a negligence case
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1. Duty of due care—there must be duty owed to the plaintiff.
2. Breach—duty must be breached.
3. Actual Cause—the injury must have been caused by the defendant's actions.
4. Foreseeable harm (proximate cause)—it must have been foreseeable for the action that would cause the harm.
5. Injury—the plaintiff must have been hurt
A: A duty of care + B: Breach of Duty
C: Causation + D: Damages
2. Breach—duty must be breached.
3. Actual Cause—the injury must have been caused by the defendant's actions.
4. Foreseeable harm (proximate cause)—it must have been foreseeable for the action that would cause the harm.
5. Injury—the plaintiff must have been hurt
A: A duty of care + B: Breach of Duty
C: Causation + D: Damages
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Duty of Care
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• Duty of care arises out of control or activity
• It is a duty to be reasonable when doing something around others
• When a person has a special relationship to another, the definition of "reasonable" may change (Doctor-patient, therapist, professionals with licensed skill)
• Special relationships also includes a duty of care based on non-conduct
• It is a duty to be reasonable when doing something around others
• When a person has a special relationship to another, the definition of "reasonable" may change (Doctor-patient, therapist, professionals with licensed skill)
• Special relationships also includes a duty of care based on non-conduct
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Breach of Duty
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1.• Unreasonable Behavior
2.• Companies and Employees:
3.• Negligence per se:
2.• Companies and Employees:
3.• Negligence per se:
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1.• Unreasonable Behavior
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A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances.
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2.• Companies and Employees:
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Courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers.
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3.• Negligence per se:
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o An act is considered negligent because it violates a statute.
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Negligence per se: Continued
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• In order to prove negligence per se, the plaintiff must show that
o The defendant violated the statute
o The statute is a safety statute,
o The act caused the kind of harm the statute was designed to prevent,
o The plaintiff was within the zone of risk
• Ex: A contractor violated a building code when contrasting a house.
• House then collapses and somebody is injured.
• The violation of the building code establishes negligence per se and the contractor will be found for negligence, so long as the contractor's breach of the code was the cause of the injury.
o The defendant violated the statute
o The statute is a safety statute,
o The act caused the kind of harm the statute was designed to prevent,
o The plaintiff was within the zone of risk
• Ex: A contractor violated a building code when contrasting a house.
• House then collapses and somebody is injured.
• The violation of the building code establishes negligence per se and the contractor will be found for negligence, so long as the contractor's breach of the code was the cause of the injury.
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Willful & Wanton Negligence
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• Extreme lack of due care
• Aggravated negligence
• Injured plaintiff can recover punitive damages as well as actual damages
• Exxon Valdez- Exxon found to be willful and wanton for letting a known alcoholic captain of the ship
o Leads to punitive damages
• Aggravated negligence
• Injured plaintiff can recover punitive damages as well as actual damages
• Exxon Valdez- Exxon found to be willful and wanton for letting a known alcoholic captain of the ship
o Leads to punitive damages
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Factual Cause
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if the defendant's breach logically and ultimately led to the injury, he is liable.
o Cause in fact—the defendant actually caused the injury.
o Does not have to be the immediate cause of injury, but the first act in the direct line to the injury.
• A substantial material factor in bringing about an injury
o Cause in fact—the defendant actually caused the injury.
o Does not have to be the immediate cause of injury, but the first act in the direct line to the injury.
• A substantial material factor in bringing about an injury
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Foreseeable Injury
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• Also known as Proximate Cause
• To be liable, the harm or risk must have been foreseeable
o Plaintiff must be one whom the defendant could reasonably expect to be injured by the negligence act.
• To be liable, the harm or risk must have been foreseeable
o Plaintiff must be one whom the defendant could reasonably expect to be injured by the negligence act.
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Res Ipsa Loquitur- "The Thing Speaks For Itself"
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• The event was a kind that ordinarily does not occur in the absences of negligence.
• Other responsible causes, including the conduct of third parties and the plaintiff have been sufficiently eliminated; and
• The indicated negligence is within the scope of the defendant's duty to the plaintiff.
• Other responsible causes, including the conduct of third parties and the plaintiff have been sufficiently eliminated; and
• The indicated negligence is within the scope of the defendant's duty to the plaintiff.
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• Injury
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o plaintiff must show genuine injury, such as
o Past and future medical expenses
o Past and future economic loss
o Past and future pain and suffering
o Future injury may be compensated, but must be determined at the time of the trial.
o Loss of a partner
o Past and future medical expenses
o Past and future economic loss
o Past and future pain and suffering
o Future injury may be compensated, but must be determined at the time of the trial.
o Loss of a partner
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• Damages
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stem from the injury
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Defense against Negligence
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1. • Contributory Negligence
2.• Comparative Negligence
3.• Assumption of the Risk
2.• Comparative Negligence
3.• Assumption of the Risk
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1. • Contributory Negligence
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o In a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant.
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2.• Comparative Negligence
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o In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and plaintiff
o In Maine, a plaintiff found 50+% negligent cannot recover at all.
o In Maine, a plaintiff found 50+% negligent cannot recover at all.
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3.• Assumption of the Risk
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o A person who voluntarily enters a situation that has an obvious danger cannot complain is s/he is injured
• This rule applies to a situation where the danger is well known and the participant chooses to be present. Action must be voluntary.
• This rule applies to a situation where the danger is well known and the participant chooses to be present. Action must be voluntary.
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Compensatory Damages
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• A jury may award compensational damages—payment for injury
• The Single Recovery Principle mandates that the court bust decided all the damages at once.
• Damages may include money for three purposes:
• to restore any loss caused by the illegal action
• to restore lost wages
• to restore the loss of...
• The Single Recovery Principle mandates that the court bust decided all the damages at once.
• Damages may include money for three purposes:
• to restore any loss caused by the illegal action
• to restore lost wages
• to restore the loss of...
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Punitive Damages
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• Only in gross/ willful & wanton or aggravated
• Designed "to make an example" out of the defendant
• To stop the action from being repeated again
Come punitive damages awards are Huge.
• Designed "to make an example" out of the defendant
• To stop the action from being repeated again
Come punitive damages awards are Huge.
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If a person attends a baseball game, and gets struck with a foul ball. Is the owner of the stadium liable to any compensation.
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No, they are not the person attending the game, had an assumed risk when visiting.
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If a fan attends a football game at LWC, and they fall because the school failed to install the proper safety measures, are they entitled to any compensation.
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Yes, they are because there is clear negligence from the school
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