Contemporary Business and Online Commerce Law - Chapter 4

Intentional torts against persons

1. assault -- threat of immediate harm or offensive contact, or any action that arouses reasonable apprehension of imminent harm
2. battery -- unauthorized and harmful or offensive physical contact with another person
   • transferred intent doctrine -- if a person intends to injure one person that actually harms another person, the law transfers the perpetrators and 10 from the target to the actual victim
3. false imprisonment -- intentional confinement or restraint of another person without authority or justification and without that person's consent
   • merchant protection statutes -- the statutes permit businesses to stop, detained, and investigate suspected shoplifters. (And not be held liable for false imprisonment) if the following requirements are met:
     • there are reasonable grounds for the suspicion
     • suspects are detained for a reasonable time
     • investigations are conducted in a reasonable manner
4. defamation of character -- the defendant makes and untrue statement of fact about the plaintiff that is published in the third party. Truth is in absolute defense.
   • types of defamation:
     • slander -- oral defamation
     • libel -- written defamation
   • public figure plaintiffs -- these plaintiffs must prove the additional element of malice
5. misappropriation of the right to publicity -- this refers to appropriating another person's name or identity for commercial purposes without that person's consent. Also called the tort of appropriation.
6. invasion of privacy -- invasion of privacy is the onboard kid and undesired publicity of a private fact about a person. The fact is not have to be untrue. Truth is not a defense.
7. intentional infliction of emotional distress -- this tort involves extreme and outrageous conduct intentionally or recklessly done that causes severe emotional distress. Some states require that the mental distress be manifested by physical injury. Also known as the tort of outrage.
8. malicious prosecution -- a successful defendant in a prior lawsuit can sue the plaintiff if the first lawsuit was frivolous.

Intentional torts against property

1. trespasses to land -- trespass to land involves interference with a land owner's right to exclusive possession of his or her land
2. trespass to personal property -- trespass to personal property are cursed when a person endures another person's personal property or interferes with that person's enjoyment of his or her property
3. conversion of personal property -- this port invokes taking over another person's personal property in depriving him or her of the use and enjoyment of the property

unintentional torts (negligence)

elements of negligence

to establish negligence, the plaintiff must prove:

1. the defendant owed a duty of care to the plaintiff
2. the defendant breached its duty
3. the plaintiff suffered injury
4. the defendants negligent act caused the plaintiff's injury.

two types of causation must be shown:

1. causation in fact (or actual cause). The defendants negligent act was the actual cause of the plaintiff's injury
2. proximate cause (or legal cause). The defendant is liable only for the foreseeable consequences of his or her negligent act

Professional Malpractice

doctors, lawyers, architects, accountants, and other professionals only duty of ordinary care in providing their services. They are judged by a reasonable professional standard. Professionals who've reached this duty are liable to clients, and some third parties for professional malpractice.

Special Negligence Doctrines

1. negligent infliction of emotional distress -- a person who would is a close relatives injury or death may sue the negligent party, who caused the accident to recover damages for any emotional distress suffered by the bystander. to recover for negligent infliction of emotional distress, the plaintiff must prove:
   1. a relative was killed or injured by the defendant
   2. the plaintiff suffered severe emotional distress
   3. the plaintiffs mental distress resulted from a sensory and contemporaneous observance of the accident -- some states require that the mental distress be manifested by physical injury
2. negligence per se -- a statute or an ordinance establishes the duty of care. A violation of the statute or ordinance constitutes a breach of this duty of care
3. res ipsa loquitur -- a presumption of negligence is established if the defendant had exclusive control of the instrumentality or situation that caused the plaintiff's injury and the injury would not have or nearly occurred but for someone's negligence. The defendant may rebut this presumption.
4. good Samaritan laws -- these laws relieve doctors and other medical professionals from liability for ordinary negligence. When rendering medical aid in emergency situations.
5. dram shop acts -- the state statutes make taverns and bartenders liable for injuries caused to or by patrons, who are served too much alcohol and cause injury to themselves or others.
6. guest statute's -- the statutes provide that a driver of a vehicle is not liable for ordinary negligence to passengers, he or she graciously transports. The driver is liable for gross negligence.
7. fireman's rule -- firefighters, police officers, and other government employees who are injured in the performance of their duties cannot sue the person who negligently caused the danger situation that caused the injury.
8. danger invite rescue doctrine -- a person who is injured while going to someone's rescue may sue the person who caused the danger situation.
9. social host liability -- some state to make social hosts liable for injuries caused by guests who are served alcohol at a social function. In later cause injury, because they are intoxicated.
10. liability of landowners -- landowners (and tenets) of the following duties to persons who come up on their property:
    1. invitees -- duty of ordinary care
    2. licenses -- duty of ordinary care
    3. trespassers -- did he not to willfully and wantonly injure trespassers
11. liability of common carriers and innkeepers -- common carriers in innkeepers give a duty of utmost care, rather than the duty of ordinary care, to protect their passengers and patrons from injury

Defenses against negligence

1. superseding event -- a superseding event is in intervening event caused by another person that caused the plaintiff's injuries that relieves the defendant from liability
2. assumption of the rest -- a defendant is not liable for the plaintiff's injury. If the plaintiff had knowledge of a specific risk and voluntarily assumed that risk
3. plaintiffs partially at fault -- the states have adopted one of the following two rules that affect a defendant's liability if the plaintiff had been partially at fault for causing his or her own injuries:
   • contributory negligence -- a plaintiff cannot recover anything from the defendant
   • comparative negligence -- damages are apportioned according to the party's fault. Also called comparative fault

Special business torts

1. entering business without a license -- the law requires that persons obtain licenses from the government prior to entering certain businesses or professions
2. palming off -- a company passes off its products or services as those of another company
3. disparagement -- disparagement is an untrue statement about the products, services, property, or reputation of a business. Also called product disparagement, trade libel, or slander of title.
4. false advertising -- section 43(a) of the Lanham Act, a federal law, prohibits false and misleading advertising. State laws also prohibit false and misleading advertising.
5. international misrepresentation -- when this tort occurs, a wrongdoer, the frogs and other person out of money, property, or something else of value. Also known as fraud or deceit. The following elements must be shown:
   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. that it is party justifiably relied on the misrepresentation
   4. the innocent party was injured
6. intentional interference with contractual relations -- with this tort, a third party intentionally interferes with another party's contract and introduces the other party to that contract to breach it, causing the nonbreaching party injury
7. breach of the implied covenant of good faith and fair dealing -- with this tort, a party to a contract does not act in good faith or fails to deal fairly in achieving the object of the contract. This duty is implied in only certain contracts (example: insurance contracts). Also called the tort of bad faith.

Tort damages

1. actual damages -- actual damages include compensation for personal injury, pain and suffering, emotional distress, and other injuries caused by the defendants tortious conduct
2. punitive damages -- punitive damages are recoverable against a defendant for intentional or egregious conduct. They are a worded to punish the defendant, to deter the defendant from similar conduct in the future, and to set an example for others. The plaintiff may keep these damages.

Strict liability

with strict liability, liability is assessed on defendants without regard to full. This tort applies to abnormally dangerous activities and certain products.