Chapter 6 Intentional Torts BUSINESS LAW: Text & Cases — Legal, Ethical, International, and E-Commerce Environment11 th Ed. BUSINESS LAW: Text & Cases

Chapter 6Chapter 6Intentional TortsIntentional Torts

BUSINESS LAW: Text & Cases — BUSINESS LAW: Text & Cases — Legal, Ethical, International, and Legal, Ethical, International, and E-Commerce EnvironmentE-Commerce Environment 1111thth Ed.Ed.

Copyright © 2009 South-Western Legal Studies in Business,

a part of South-Western Cengage Learning.



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§1: Basis of Tort Law§1: Basis of Tort Law Doing business today involves risks, both legal Doing business today involves risks, both legal

and financial.and financial. A tort is a civil injury designed to provide a A tort is a civil injury designed to provide a

remedy (damages) for injury to a protected remedy (damages) for injury to a protected interest. interest.

Damages. Damages. – Compensatory: reimburse plaintiff for actual losses.Compensatory: reimburse plaintiff for actual losses.– Special: quantifiable losses, such as medical Special: quantifiable losses, such as medical

expenses, lost wages, and benefits. expenses, lost wages, and benefits. – General: non-monetary, such as pain and suffering, General: non-monetary, such as pain and suffering,

reputation.reputation.– Punitive: punish the wrongdoer.Punitive: punish the wrongdoer.



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§2: §2: Intentional Torts Intentional Torts Against PersonsAgainst Persons

The person committing the tort, the The person committing the tort, the Tortfeasor or Defendant, must “Tortfeasor or Defendant, must “intendintend” to ” to commit the act. Intend means:commit the act. Intend means:– Tortfeasor intended the consequences of Tortfeasor intended the consequences of

her act; her act; oror– She knew with substantial certainty that She knew with substantial certainty that

certain consequences would result.certain consequences would result.



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Types of Intentional TortsTypes of Intentional Torts

Assault and Battery.Assault and Battery. False Imprisonment.False Imprisonment. Infliction of Emotional Distress.Infliction of Emotional Distress. Defamation.Defamation. Invasion of Privacy.Invasion of Privacy. Business Torts.Business Torts.



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Assault and BatteryAssault and Battery ASSAULT is an intentional, unexcused act ASSAULT is an intentional, unexcused act

that:that:– Creates a reasonable apprehension or fear of,Creates a reasonable apprehension or fear of,– Immediate harmful or offensive contact.Immediate harmful or offensive contact.– NO CONTACT NECESSARY.NO CONTACT NECESSARY.

BATTERY is the completion of the Assault:BATTERY is the completion of the Assault:– Intentional or Unexcused.Intentional or Unexcused.– Harmful, Offensive or Unwelcome.Harmful, Offensive or Unwelcome.– Physical Contact.Physical Contact.



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Defenses to Assault & Defenses to Assault & BatteryBattery

Consent.Consent. Self-Defense (reasonable force).Self-Defense (reasonable force). Defense of Others (reasonable force).Defense of Others (reasonable force). Defense of Property.Defense of Property.



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False ImprisonmentFalse Imprisonment

False Imprisonment is the intentional:False Imprisonment is the intentional:– Confinement or restraint.Confinement or restraint.– Of another person’s activities.Of another person’s activities.– Without justification. Without justification.

Merchants may reasonably detain Merchants may reasonably detain customers if there is probable cause.customers if there is probable cause.



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Intentional Infliction of Intentional Infliction of Emotional DistressEmotional Distress

An intentional act that is:An intentional act that is:– Extreme and outrageous, thatExtreme and outrageous, that– Results in severe emotional distress in Results in severe emotional distress in

another.another. Most courts require some physical Most courts require some physical

symptom or illness.symptom or illness.



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DefamationDefamation

Right to free speech is constrained by duty Right to free speech is constrained by duty we owe each other to refrain from making we owe each other to refrain from making false statements.false statements.

Orally breaching this duty is Orally breaching this duty is slanderslander; ; breaching it in print or media (and internet) breaching it in print or media (and internet) is is libellibel. .



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DefamationDefamation

Publication RequirementPublication Requirement: gravamen of : gravamen of defamation is the “publication” of a false defamation is the “publication” of a false statement that holds an individual up to statement that holds an individual up to hatred, contempt or ridicule in the hatred, contempt or ridicule in the community. community.

Publication requires communication to a Publication requires communication to a 33rdrd party. party.



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Damages for LibelDamages for Libel

General Damages are General Damages are presumedpresumed; Plaintiff ; Plaintiff does does notnot have to show actual injury. have to show actual injury.

General damages include compensation General damages include compensation for disgrace, dishonor, humiliation, injury for disgrace, dishonor, humiliation, injury to reputation and emotional distress.to reputation and emotional distress.



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Damages for SlanderDamages for Slander General RuleGeneral Rule: Plaintiff must prove : Plaintiff must prove

“special damages” (actual economic “special damages” (actual economic loss).loss).– Exception:Exception: Slander Slander Per Se. Per Se. No proof of No proof of

damages is necessary when the damages is necessary when the statement is involves:statement is involves:• Loathsome disease, Loathsome disease, • Business improprieties, Business improprieties, • Serious crime, Serious crime, • Woman is non-chaste. Woman is non-chaste.



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Defenses to DefamationDefenses to Defamation

Truth is generally an absolute defense.Truth is generally an absolute defense. Privileged (or Immune) Speech.Privileged (or Immune) Speech.

– AbsoluteAbsolute: judicial & legislative proceedings.: judicial & legislative proceedings.– QualifiedQualified: Employee Evaluations.: Employee Evaluations.



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Defamation-Public FiguresDefamation-Public Figures

Public figures exercise substantial Public figures exercise substantial governmental power or are otherwise in governmental power or are otherwise in the public limelight.the public limelight.

To prevail, they must show “actual malice”: To prevail, they must show “actual malice”: statement was made with either statement was made with either knowledge of falsity or reckless disregard knowledge of falsity or reckless disregard for the truth.for the truth.



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Invasion of PrivacyInvasion of Privacy Every person has a fundamental right to Every person has a fundamental right to

solitude freedom from public scrutiny.solitude freedom from public scrutiny.– Use of Person’s Name or Likeness.Use of Person’s Name or Likeness.– Intrusion on Individual’s Affairs or Seclusion.Intrusion on Individual’s Affairs or Seclusion.– Publication of Information that Places a Publication of Information that Places a

Person in False Light.Person in False Light.– Public Disclosure of Private Facts.Public Disclosure of Private Facts.

CASE 6.1 CASE 6.1 Anderson v. MichiganAnderson v. Michigan (2007). (2007).



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AppropriationAppropriation

Use of another’s name, likeness or other Use of another’s name, likeness or other identifying characteristic for commercial identifying characteristic for commercial purposes without the owner’s consent.purposes without the owner’s consent.– Issues:Issues:

• Degree of Likeness.Degree of Likeness.• Right of Publicity as a Property Right.Right of Publicity as a Property Right.



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Fraudulent Fraudulent MisrepresentationMisrepresentation

Fraud is intentional deceit. Elements:Fraud is intentional deceit. Elements:– Misrepresentation of material fact;Misrepresentation of material fact;– Intent to induce another to rely;Intent to induce another to rely;– Justifiable reliance by innocent party;Justifiable reliance by innocent party;– Damages as a result of reliance;Damages as a result of reliance;– Causal connection.Causal connection.

Fact vs. Opinion (not puffery).Fact vs. Opinion (not puffery).



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Frivolous LitigationFrivolous Litigation

Generally, each of us has the right to sue Generally, each of us has the right to sue when we have been legally injured.when we have been legally injured.

Torts related to abusive or frivolous Torts related to abusive or frivolous litigation include:litigation include:– Malicious prosecution, andMalicious prosecution, and– Abuse of process.Abuse of process.



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§3: Business Torts-§3: Business Torts-Wrongful Interference Wrongful Interference

Tort involving a Tort involving a contractualcontractual relationship. relationship. Occurs when:Occurs when:

– Defendant knows about contract between A Defendant knows about contract between A and B; and B;

– Intentionally induces either A or B to breach Intentionally induces either A or B to breach the contract; andthe contract; and

– Defendant benefits from breach.Defendant benefits from breach.



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Business Torts-Business Torts-Wrongful InterferenceWrongful Interference

In a In a business relationshipbusiness relationship occurs when: occurs when:– There is an established business relationship;There is an established business relationship;– The Tortfeasor, using predatory methods, The Tortfeasor, using predatory methods,

causes relationship to end; andcauses relationship to end; and– Plaintiff suffers damages.Plaintiff suffers damages.

Permissible behavior (Permissible behavior (bona fidebona fide competition) or justified behavior are competition) or justified behavior are defenses to this tort.defenses to this tort.



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§4: Intentional §4: Intentional Torts Torts Against PropertyAgainst Property

Trespass to landTrespass to land occurs when a person, occurs when a person, without permission:without permission:– Physically enters onto, above or below the Physically enters onto, above or below the

surface of another’s land; orsurface of another’s land; or– Causes anything to enter onto the land; orCauses anything to enter onto the land; or– Remains, or permits anything to remain, on Remains, or permits anything to remain, on

the land.the land.– Defenses: trespass is necessary, or Defenses: trespass is necessary, or

trespasser is a licensee.trespasser is a licensee.



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Intentional Intentional Torts Torts Against PropertyAgainst Property

Trespass to personal propertyTrespass to personal property is the is the Intentional interference with another’s use Intentional interference with another’s use or enjoyment of personal property without or enjoyment of personal property without consent or privilege.consent or privilege.– CASE 6.2 CASE 6.2 Register.com, Inc. v. Verio, Inc.Register.com, Inc. v. Verio, Inc.

(2003).(2003).

Conversion.Conversion. Disparagement of Property.Disparagement of Property. Slander of Quality or Title.Slander of Quality or Title.



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§ 5: Cyber Torts§ 5: Cyber Torts

Defamation Online.Defamation Online.– Immunity of Internet Service Providers.Immunity of Internet Service Providers.– Piercing the Veil of Anonymity.Piercing the Veil of Anonymity.

CASE 6.3 CASE 6.3 Fair Housing Council of San Fair Housing Council of San Fernando Valley vs. Roommate.com, Fernando Valley vs. Roommate.com, LLCLLC (2007). (2007).



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Cyber TortsCyber Torts

Spam (unsolicited email).Spam (unsolicited email).– Spam as Trespass to Personal Property.Spam as Trespass to Personal Property.

Statutory Regulation of Spam.Statutory Regulation of Spam.– Minnesota requires unsolicited email to state Minnesota requires unsolicited email to state

“ADV” in the subject line.“ADV” in the subject line.– California has a stringent “opt-in” requirement.California has a stringent “opt-in” requirement.



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Cyber TortsCyber Torts

Federal CAN-SPAM Act (2004) applies Federal CAN-SPAM Act (2004) applies primarily to commercial emails.primarily to commercial emails.

Requirements:Requirements:– Return email address.Return email address.– Clear notice the email is an AD.Clear notice the email is an AD.– Provide “opt out” mechanism (10 days to act).Provide “opt out” mechanism (10 days to act).– Label sexually explicit emails.Label sexually explicit emails.

Does it work--Problems???Does it work--Problems???

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Chapter 6 Intentional Torts BUSINESS LAW: Text & Cases — Legal, Ethical, International, and E-Commerce Environment11 th Ed. BUSINESS LAW: Text & Cases