BusLawTorts .ppt

Welcome Business Law Lecture Topic: Torts  What is a Tort? Tort law is in most legal systems: English - (Latin: torquere - 'to twi st) French – delict German - unerlaubte handlung Tort law compensates for injuries or loss as a result of the wrongful conduct of others ...

Welcome Business Law Lecture Topic: Torts  What is a Tort? Tort law is in most legal systems: English - (Latin: torquere - 'to twi st) French – delict German - unerlaubte handlung Tort law compensates for injuries or loss as a result of the wrongful conduct of others  Torts Are Not Crimes The elements of many torts are similar to crimes, but the causes of action differ: Plaintiff | penalty | Burden of proof Crime: State | Jail | Beyond reasonable doubt Tort: Person | $ | Preponderance  Perspectives on Rights to Receive Tort Compensation More industrialized and “wealthy” legal systems favor the individual over business and expand tort liability Poorer countries support the development of business and there is a narrower range of tort liability  Jurisprudential Basis for Tort Law Economic: based on fault – Punishment of improper conduct serves as deterrent Utilitarianism: achieve greater good for most amount of people – Loss distribution/adjustment: shifting losses from victims to perpetrators Insurance can spread the harms suffered by one to the many  Torts Covered Intentional Torts Negligence Strict Liability  Common Elements of Intentional Torts Actus reus (Latin “guilty act”) voluntary conduct producing liability – No need to prove intention of harm, only that act was intended Ex: striking another person’s nose in a fast- moving crowd of people at a rock concert; intention? Ex: Throw a rock out the window Causation: act must be linked to harm – Punched in the face, claim harm but pre-existing injury (deviated septum) Element in intentional torts includes provable damage – Examples: Medical bills Lost time off work Repair bills Lost profits  Assault and Battery Assault- intentionally causing reasonable apprehension of immediate harmful or offensive contact – Must be a direct threat: General mere words not actionable Battery - actual contact – Distinguishing element: physical interference with plaintiff’s body Tort essence is protection of plaintiff’s person Sometimes battery is used when adjoining properties emit noxious substances  Defenses to Assault / Battery Consent: Consent must be freely given by plaintiff, who is able to understand nature/consequences of consent – Doctors require patients to sign “Informed Consent” release before treatment Self-defense – Individual defending his life or physical well- being Defense of others – Individual can act in a reasonable manner Lawful justification includes lawful act of law enforcement officers – “Qualified privilege”: in good faith with knowledge  False Imprisonment Confinement of another person against will, without consent, plus absence of a reasonable means of escape – Examples: Detaining customer by business owner for failure to pay a bill – Exceptions from retailer liability with shoplifting – “Shopkeepers Qualified privilege”: in good faith with knowledge Examples: – Hospital refuses to release a patient unless bill is settled – Police arrest wrong suspect, unreasonable detain – Bank robber detains customers – Medicating someone in order to restrain (date rape?) ntentional Infliction of Emotiona Distress Intentional conduct beyond boundary of recognized decency resulting in extreme emotional distress Infliction of emotional distress developed from assault Extending liability to cases with no physical contact Often must be reckless: defendant ignores known danger Commonly must prove actual damage ntentional Infliction of Emotiona Examples: Distress Bill collector wrongfully verbally attacks plaintiff to get bills paid causing extreme distress, physical illness Employer continuously harasses an employee by making derogatory comments about their race, gender, sexual orientation, leading to severe emotional distress A group of individuals publicly humiliates a person with a mental or physical disability, deliberately targeting them because of their vulnerability Actions are so severe they cause individual emotional distress/suffering Revenge Porn: Ex-partner deliberately releases intimate photos or videos of someone without consent, with intent of causing emotional pain/humiliation Victim suffers severe emotional distress, including anxiety, depression, and social isolation First responders take picture of accident victims, share photos (Kobe Bryant’s widow)  Invasion of Privacy Intrusion on right to be left alone, right to be free from publicity – Victim must show they had reasonable expectation of privacy Public disclosure Sometime malice is required: evil intent – Common law tort from end of 19th century Gaining more attention, recognition Examples: – Intrusion of a person’s solitude or seclusion – Harassment by creditors – Persistent (or obscene) unwanted telephone calls – Workplace monitoring – Data collection  Defamation Publication of a false statement that harms reputation of an individual or business – Publication means a communication to a 3rd party Two forms: – Slander (speech) – Libel (writing but also a picture, sign, TV broadcast, email)  Defamation Damages Multiple publications (Ex: copies of a defamatory newspaper article) are separate publication multiplying damages Damages often include apology/retraction (newspaper ads?) in addition to money – Many jurisdictions require no damage for per se statements Damages to character are “presumed” – Examples: » Attacks on a person's professional character or standing » Allegations that a person is infected with a sexually transmitted disease » Allegations that person has committed a crime of moral turpitude  Criminal Defamation Action where state is plaintiff Shifting burden of proof: Often Plaintiff only has burden of proving that publisher made statement, statement was defamatory – Defendant then has burden to prove a defense (privilege) or missing element (truth of defamatory communication) Criminal punishments can include jail  Defenses to Defamation Truth is always a defense!!!!! Privileged communication:  Absolute Privilege: excused conduct  Evidence given in court  Statements made in a session of legislature  Conditional Privilege: Must be done without malice (evil intent)  Comments made in course of an employee evaluation  Published book or film review that constitute fair criticism  False Light Information is published that is false or places person in false light – Offensive to reasonable person Often require published with knowledge or disregard of whether information was false (malice) – Similar to defamation False light includes: – Embellishment: false material in a story which places someone in a false light – Distortion: arrangement of materials or photographs to give a false impression – Fictionalization: references to real people in fictitious articles Real people included in works of fiction as disguised characters  False Light: Examples Selective Quoting in an Interview: journalist conducts interview, selectively quotes interviewee distorting their statements – Creates a false impression of their views or opinions Misleading Video Editing: YouTube video is edited to make it appear a person was saying something offensive/controversial – Words were taken out of context Manipulated Audio Recording: audio recording is manipulated to make it seem as though a public figure made offensive or inflammatory statements they did not actually say Impersonation: Someone creates a fake social media profile or email account using another person's name, posts offensive/false statements, making it appear as though statements are coming from impersonated individual Manipulated Social Media Content: Someone takes another person's social media posts out of context, edits them to distort original message, creating a false impression of their views, intentions  Product Disparagement A/K/A – Trade libel – Slander of title False statements about business product or about its service in terms of honesty, reputation, ability, or integrity – Made for purpose of discouraging people from dealing with individual Statement causes another person or persons to actually refrain from dealing with plaintiff – Actual damages need often be proven  Misappropriation of Right to Publicity Appropriate living person’s name or identity for commercial purposes without consent – Law protects individual from being exploited by others Right to publicity: can require fame or at least a persona with commercial value Can be alienated (assigned to someone else) – Can exist after death Consider “The King” Elvis Tort of Appropriation: no fame or commercial value required – Personal dignitary tort Will these 2 torts be “merged”?  Trespass to Land On enters the land of another without lawful excuse – Violation of an inherent right of ownership Trespass to land is often actionable per se – Party whose land is entered may sue if no actual harm is done/lacking intention Injury = a breach of right, not necessarily actual damage Injunction is common remedy License: permission to use land of another, negates trespass  Nuisance Persons in possession of real property (either land owners or tenants) are entitled to the “quiet enjoyment” of their land – Another interferes with that by creating smells, sounds, pollution or any other hazard the affect use Injunction is common remedy in addition to damages  Trespass to Chattels Intentionally interfering with another person's possession of chattel (personal property) – Interference can be physical contact: destroying it, barring owner's access, vandalizing, using another person's property Consent and privilege are common defenses Asserted in past years against Internet advertisers and email spammers  Fraud 1. False statement (material) 2. with an intent to deceive (knowledge of deception) 3. reliance on the lie 4. the reliance is reasonable 5. Damages Difficult to prove but allows for a remedy of both damages ($) and rescission (contract is rendered invalid)  Fraud Examples Fraud of Financial Health to Investors: Company knowingly inflates its financial statements to attract investors, falsely claiming high profits and low debts – Investors rely on these statements, purchase stock Truth is revealed, stock value plummets, causing financial losses to investors Real Estate fraud: real estate agent falsely represents that a property is zoned for commercial use, knowing it is not, to close a sale – Buyer relies on this information, after purchase, buyer learns they cannot use property as planned, leading to financial losses False Promises in Supply Contract: Supplier enters into a long-term contract with a retailer, falsely promising that it can meet retailer's large volume needs, knowing it lacks the capacity to fulfill the order – Retailer, relying on these assurances, signs contract, begins marketing products Supplier fails to deliver, retailer faces lost sales, damaged reputation  Misrepresentation Negligent misrepresentation – Defendant knew, or should have know that a material representation was false – Contracting party has duty of reasonable care regarding accuracy of representations leading another to enter into a contract Especially true of “professionals” or someone of special knowledge or experience Innocent Misrepresentation: false statement made without intention to deceive – Person believes it to be true, but inaccurate due to honest mistake, lack of knowledge, or misunderstanding Sell a used computer not knowing its broken Plaintiff must show reasonable reliance which is linked to a loss  Puffing Puff is “sales talk” Issue of reliance If no reasonable person hearing this statement would take it seriously, it is a puff, and no action is available if statement proves to be wrong  Damages Fraud- Rescission and actual damages, lost profits are often recoverable – Often expectation interest Mispresentation – Transaction is voidable (plaintiff can choose to affirm the contract or have it rescinded) Damages to restore parties to their original positions Innocent misrepresentation - Transaction is voidable (rescission) – Damages to restore parties to their original positions – Damages reflect plaintiff’s reliance interest not expectation interest (breach of contract damages)  Negligence Disregard for safety of others/property Elements: Duty of care Failure to follow the standard of care Cause in Fact Proximate or legal cause Damages  Duty of Care What is the standard of care? – Assessed “objectively”: a reasonable or prudent person “What a hypothetical “reasonable person” of ordinary care and skill, engaged in type of activity defendant was engaged in, would be expected to adhere to Not any real person - or even average person – “Imaginary” person taking precautions necessary to avoid harming another person or property Question of fact for court applying legal standard  Duty of Care “Reasonable person” determination can include: – How likely certain harm is to occur – How serious harm would be if it did occur – Burden involved in avoiding harm Laws can establish conduct – “Negligence per se” Professional standards can establish conduct – Professional Malpractice  Due Care Examples What due care should these people follow? – A lifeguard at a swimming pool – An owner of an aggressive dog – A sales person of artificial finger nails – A beautician dying a customer’s hair – A student leaving RSU campus by car, at 6pm, on a rainy day  Cause in Fact Factual link establishes liability “The cause without which an event could not have occurred” “But for” test: If defendant had not acted negligently (by breaching standard of care), plaintiff would not have been injured Intervening causes sometimes must be considered  Cause in Fact Medical Malpractice: surgeon leaves surgical instrument inside patient during a procedure, causing complications – Surgeon's negligence in leaving instrument is the factual cause of the patient's injuries Slip and Fall: store owner neglects to clean up spill on floor, customer slips, injuring themselves – Store owner's failure to clean up spill is factual cause of the customer's injury Premises Liability: business owner neglects to repair broken staircase railing collapses leads to a customer falling, sustaining injuries – Proprietor's failure to repair railing is the factual cause of patron's injuries Dog Bite: og owner fails to properly secure aggressive dog, which attacks/injures passerby – Dog owner's failure to restrain the dog is factual cause of victim's injuries  Cause in Fact: Intervening Cause Negligent Maintenance and Subsequent Negligence: property owner fails to maintain staircase which collapses when someone steps on it – Injured party acted negligently by being intoxicated, not using handrail Person's negligence thru intoxication may be an intervening cause Negligent Medical Treatment: Person is injured in traffic accident – Injured person receives negligent medical care after an accident leading to further complications Medical negligence could be primary cause of the additional harm, the original tortfeasor may not be held liable Failure to Follow Traffic Signals: A driver negligently runs a red light, causing a collision with another vehicle – Other driver was simultaneously texting, not paying attention, could have easily avoided accident Distracted driver's actions may be seen as an intervening cause relieving the first driver of liability Proximate or Legal Cause “A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor” Also known as legal cause Element to limit factual cause – Matter of public policy Proximate or Legal Cause 2 common standards: – Duty - does the defendant owe a duty to the plaintiff Public policy determination – Foreseeability - At time of the occurrence could defendant have foreseen the harm? If they could predict it they could have prevented it  Negligence Defenses Assumption of Risk - defendant avoids liability by showing plaintiff voluntary consented to a known danger Contributory negligence – If plaintiff’s own negligence was a contributing cause of the injury it bars recovery Comparative Negligence - Plaintiff's damages are reduced by whatever percentage their own fault contributed to the injury – Court determines the percentage of fault  Common Tort Damages Special damages - losses can be quantified in money – Direct loss – value of loss of bodily functions (loss of a leg) – Economic loss – out-of-pocket costs resulting from injury (medical bills, lost wages, reduced earnings capacity, property damage) General damages - losses not quantified in monetarily (pain and suffering) expected future losses – Ex: continuing pain and suffering, value of the mental anguish plaintiff has suffered and will continue to suffer Punitive damages – An award intended to deter intentional, usually malicious, wrongdoing – Not commonly available  Gross Negligence / Recklessness Gross Negligence: Conduct undertaken with actual appreciation of risks involved, serious regard or indifference to obvious risk – Often results in more severe harm from greater level of misconduct Recklessness: conscious disregard for a known high degree of probable harm to another Often difference is one of degree and not kind Usually determined by comparing cases Civil context distinction often arises from a contract – Examples: Party will not benefit from an exclusion clause Party not indemnified for his conduct Insurance will not cover claim  Strict Liability Defendant’s liability for strict liability is without regard to: Intention / Fault / Foreseeability / Standard of Care Liability is based on creation of extraordinary risk –Traditional liability -> Inherently dangerous situations Activity involves serious potential harm Activity involves high degree of risk that cannot be made safe Activity is not commonly performed in community or area Example: possessors of dynamite, fireworks, dangerous chemicals, nuclear waste  Strict Liability: Product Liability Defendant’s liability for strict liability is without regard to: Intention / Fault / Foreseeability / Standard of Care Manufacturer must exercise “due care” in: –Designing products –Manufacturing/assembling products –Inspecting/testing products –Failure to warn Placing adequate warning labels or instructions Products liability can be created in tort law, consumer law or as an implied promise in sale of a product  Strict Liability: Product Liability Poorly designed or manufactured items causing injury Examples: – Cars, trucks, motorcycles, recreational vehicles – Unsafe power tools/appliances/lawnmowers/heavy equipment – Hazardous children’s toys, clothing, accessories, car seats, cribs – Pharmaceuticals/health care products that cause dangerous side effects or death  Strict Liability: Product Liability – Discourages loss by forcing potential defendants to take every possible precaution Consumers must be protected from unsafe products – Manufacturers should be liable to any user of the product Often liability attaches to nayone injured once product enters “stream of commerce” – Plaintiff needs only to prove that injury occurred/factual link to defendant’s conduct THANK YOU FOR YOUR ATTENTION