Chapter 6: Intentional Torts and Privacy

1. TWELFTH EDITION Chapter 6: Intentional Tortsand Privacy Clarkson Miller  Cross BUSINESS LAW TEXT AND CASES Legal, Ethical, Global, and Corporate Environment

2. §1: Basis of Tort Law • Doing business today involves risks, both legal and financial. • A tort is a civil injury designed to provide a remedy (damages) for injury to a protected interest. 

3. Basis of Tort Law • Damages Available in Tort Actions. • Compensatory: reimburse plaintiff for actual losses. • Special: quantifiable losses, such as medical expenses, lost wages, and benefits. • General: non-monetary, such as pain and suffering, reputation. • Punitive: punish the wrongdoer.

4. §2: Intentional Torts Against Persons • Tortfeasor (person committing the tort) must “intend” to commit the act, which means: • He intended the consequences of his act; or • He knew with substantial certainty that certain consequences would result.

5. Types of Intentional Torts • Assault and Battery.  • False Imprisonment.  • Infliction of Emotional Distress.  • Defamation.  • Invasion of Privacy.  • Business Torts. 

6. Assault and Battery • ASSAULT is an intentional, unexcused act that: • Creates a reasonable apprehension or fear of, • Immediate harmful or offensive contact. • NO CONTACT NECESSARY. 

7. Assault and Battery • BATTERY is the completion of the Assault: • Intentional or Unexcused. • Harmful, Offensive or Unwelcome. • Physical Contact. • Plaintiff may be compensated for physical and emotional harm.

8. Defenses to Assault & Battery • Consent. • Self-Defense (reasonable force). • Defense of Others (reasonable force). • Defense of Property.

9. False Imprisonment • False Imprisonment is the intentional: • Confinement or restraint. • Of another person’s activities. • Without justification. • Merchants may reasonably detain customers if there is probable cause.

10. Intentional Infliction of Emotional Distress • An intentional act that is: • Extreme and outrageous, that • Results in severe emotional distress in another. • Most courts require some physical symptom or illness.

11. Defamation • Defamation involves wrongfully hurting a person’s good reputation. • Law imposes duty to refrain from making false statements of fact about others. • Orally breaching this duty is slander; breaching it in print or media (and internet) is libel.

12. Defamation • Published statement must be a fact. Opinions are protected speech under the First Amendment, and not actionable. • CASE 6.1 Orlando v. Cole (2010). Was the attorney’s statement to the reporter a statement of fact or opinion?

13. Defamation • Publication Requirement: gravamen of defamation is the “publication” of a false statement that holds an individual up to hatred, contempt or ridicule in the community. • Publication requires communication to a 3rd party.

14. Damages for Libel • General Damages are presumed; Plaintiff does not have to show actual injury. • General damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress.

15. Damages for Slander • General Rule: Plaintiff must prove “special damages” (actual economic loss) to prevail for slander. • Exception: Slander Per Se. No proof of damages is necessary when the statement is involves: loathsome disease, business improprieties, serious crime, or that a woman is non-chaste.

16. Defenses to Defamation • Truth is generally an absolute defense. • Privileged (or Immune) Speech. • Absolute: judicial & legislative proceedings. • Qualified: Employee Evaluations.

17. Defamation-Public Figures • Public figures exercise substantial governmental power or are otherwise in the public limelight. • To prevail, they must show “actual malice”: statement was made with either knowledge of falsity or reckless disregard for the truth.

18. Invasion of Privacy • Every person has a fundamental right to solitude freedom from public scrutiny. • Use of Person’s Name or Likeness. • Intrusion on Individual’s Affairs or Seclusion. • Publication of Information that Places a Person in False Light. • Public Disclosure of Private Facts.

19. Appropriation • Use of another’s name, likeness or other identifying characteristic for commercial purposes without the owner’s consent. • Issues: • Degree of Likeness. • Right of Publicity as a Property Right.

20. Fraudulent Misrepresentation • Elements: • Misrepresentation of material fact; • Intent to induce another to rely; • Justifiable reliance by innocent party; • Damages as a result of reliance; • Causal connection. • Fact vs. Opinion (not puffery).

21. Abusive or Frivolous Litigation • Generally, each of us has the right to sue when we have been legally injured. • Torts related to abusive or frivolous litigation include: • Malicious prosecution, and • Abuse of process.

22. §3: Business Torts • Wrongful Interference With a Contractual Relationship occurs when: • Defendant knows about contract between A and B; • Intentionally induces either A or B to breach the contract; and • Defendant benefits from breach.

23. Business Torts • Wrongful Interference With a Business Relationship occurs when: • There is an established business relationship; • The Tortfeasor, using predatory methods, causes relationship to end; and • Plaintiff suffers damages.

24. Business Torts • Defenses to Wrongful Interference include: • Interference with justified or permissible. • Bona fide competitive behavior is a permissible interference even if it results in the breaking of a contract.

25. §4: Intentional Torts Against Property • Trespass to Land occurs when a person, without permission: • Physically enters onto, above or below the surface of another’s land; or • Causes anything to enter onto the land; or • Remains, or permits anything to remain, on the land.

26. Intentional Torts Against Property • Defenses to Trespass to Land: Trespass is necessary, or trespasser is a licensee. • Trespass to Personal Property is the Intentional interference with another’s use or enjoyment of personal property without consent or privilege.

27. Intentional Torts Against Property • Conversion: wrongful possession or use of property without permission. • CASE 6.2 Trustees of University of District of Columbia v. Vossoughi (2009). How is personal property valued? • Disparagement of Property. • Slander of Quality or Title.

28. Intentional Torts Against Property • Disparagement of Property. • Slander of Quality: publication of false information about another’s product (trade libel). • Slander of Title: publication falsely denies or casts doubt on another’s legal ownership of property, resulting in financial loss.

29. § 5: Cyber Torts • Identifying the Author of Online Defamation: usually a threshold barrier to filing suit. • What about the Liability of Internet Service Providers? • CASE 6.3 Fair Housing Council of San Fernando Valley vs. Roommate.com, LLC (2008).

30. Cyber Torts • Statutory Regulation of Spam. • Many states require unsolicited emails to have a phone number or return email address. • Federal CAN-SPAM Act (2004) applies primarily to commercial emails. • U.S. Safe Web Act (2006): gives FTC powers to investigate and prosecute.