BMGT 380 chapter 6

"Breach of Duty"

"Breach of duty" is committing an act - or failing to commit an act - plus the required "state of mind": Intent ** (Focus of Chapter 6) Recklessness (Focus of Chapter 7) Negligence (Focus of Chapter 7) Strict liability - no required "state of mind" - only the act or omission is a required.

"No Affirmative Defense"

"No affirmative defenses" = no intervening causes - and no other circumstances, such as privileges - so significant that the defendant should be excused from liability and paying damages for the harm caused. For example, the victim contributed to the harm by being negligent or reckless or by assuming the risk of the harm.

"Causation"

A defendant "causes" harm if the defendant's act(s) or omission(s): Contribute in any way to the harm, ("actual cause"), and If it was "reasonably foreseeable" to the defendant that the act or omission would cause this harm (i.e., the defendant should have foreseen the risk of harm.) (i.e, "proximate cause")

Damages

A plaintiff who wins a tort case usually recovers "compensatory damages" or "actual damages", i.e., a monetary payment considered to be equivalent to the harm actually suffered by the plaintiff as a result of defendant's wrongful act or omission. (Defamation can include "presumed damages.") Committing torts can also result in an award of punitive damages.

Four Elements of Torts (and All Claims under Common Law)

All Claims Under Basic Business Law 1. Harm + 2. Breach of Duty + 3. Causation + 4. No Affirmative Defenses = Legal Liability + Payment of Damages (actual and, for torts, possibly punitive)

Trespass to Land

Any unauthorized or unprivileged intentional intrusion upon another's real property, including physically entering plaintiff's land, causing another person or object to do so, remaining on the land after one's right to remain has ceased, and invading airspace above land or subsurface below Intent required for liability is simply the intent to be on the land, so a person may be liable even if the trespass resulted from a mistaken belief that entry was legally justified.

Affirmative Defenses

Certain "affirmative defenses," called "privileges," do exist for false and defamatory statements. Some privileges are unconditional: participants in judicial proceedings, legislators in the course of legislative proceedings, witnesses in the course of legislative proceedings, executive officials in the course of their duties, and one spouse to the other in private. There are privileges to defamation in a business context, but they are conditional. They include: Statements made to further the legitimate interest of another (e.g., employment references) Statements made to further a common interest (e.g., employment reviews) fair and accurate media reports (fair comment) on proceedings of official government action or public meetings. Conditional privileges are not available if they are abused in one of the following manners: The statement is made with knowledge of the falsity or reckless disregard for the truth, When the statement does not advance the purpose of the privilege, or When the statement is unnecessarily made to an inappropriate person.

Intentional Torts: Personal Rights

Certain types of injury to personal rights are protected from intentionally harmful acts and omissions: Battery and Assault (Not Business-Related) Intentional Infliction of Emotional Distress False Imprisonment Misuse of Legal Proceedings Fraud Invasion of Privacy (Discussed at the end.) Defamation (Discussed at the end.)

Intentional Torts: Intangible Property

Certain types of injury to private property rights in intangible property are protected from intentionally harmful acts and omissions: Injurious falsehood (product disparagement); Intentional interference with contractual relations; and Intentional interference with prospective advantage;

Intentional Torts: Tangible Property

Certain types of injury to private property rights in tangible property are protected from intentionally harmful acts and omissions: Trespass to Land Private Nuisance Conversion

Defamation

Defamation (libel or slander) is an Causing harm to a person's reputation** by making or repeating a false and defamatory statement With the required state of mind concerning the truth of the statement In the absence of a privilege or beyond its bounds. ** the harm is presumed to occur in cases of slander per se and in libel cases Libel and Slander Libel = written defamation and Slander = verbal defamation Truth is a complete defense in a defamation case

Conversion

Defendant's intentional exercise of dominion or control over plaintiff's personal property without plaintiff's consent through: Acquisition Removal Transfer to another Withholding possession Destruction or alteration Use

Commercial Appropriation of Name or Likeness.: C.B.C. v MLB

Eighth Circuit Decision: CBC sought declaratory judgment that it could use, without license, names of and information about major league baseball players for its for-profit fantasy baseball products Eighth Circuit found that MLB provided sufficient evidence to establish a cause of action for violation of players' rights of publicity under Missouri law, but held that First Amendment interests in public information about baseball and baseball players outweighed the players' state law right of publicity.

Mathias v. Accor Economy Lodging

Facts & Procedural History: Plaintiffs bitten by bedbugs during hotel stay. Defendant alleged knew of bedbug infestation and disregarded it. Jury awarded plaintiffs compensatory and punitive damages. Issue: Did defendant's conduct rise to the level of recklessness sufficient to impose punitive damages? The court applied the Law to the Facts: Defendant's behavior was reckless. Even though the compensable harm done was slight and difficult to quantify, the award of punitive damages in this case serves the purpose of limiting defendant's ability to profit from its recklessness. Holding: District court's judgment in favor of plaintiffs affirmed.

False Imprisonment

False imprisonment is intentional confinement of person for an appreciable time without his or her consent: confinement must be complete, with no reasonably available, safe means of escape. Statutory, conditional privilege if defendant is a retail store detaining a suspected shoplifter: With reasonable cause, Acting in a reasonable manner, and For no more than a reasonable period of time. (partial confinement of another by blocking her path or by depriving her of one means of escape where several exist, such as locking one door of a building having several unlocked doors, it is not false imprisonment.

Fraud

Fraud is the formal name for the tort claim available to victims of intentional or reckless misrepresentations in the context of contract negotiations: Often tied to a breach of contract claim, Requires proof of false statement of fact, knowingly or recklessly made by defendant with intent to induce reliance by the plaintiff, along with actual, justifiable, and detrimental reliance on plaintiff's part.

Commercial Torts

Injurious falsehood (product disparagement) involves publishing false statements that disparage the reputation of another's business, products or services. Intentional interference with prospective advantage occurs when a defendant wrongly causes a plaintiff to lose the benefit of prospective relations (not existing contracts) See: Bombliss case Intentional interference with contractual relations occurs when one party to a contract claims that the defendant's interference with the other party's performance of the contract wrongly caused the plaintiff to lose the benefit of that performance

Invasion of Privacy

Invasion of privacy refers to four distinct torts: 1."Intrusion on Solitude or Seclusion" if highly offensive to the reasonable person (illegal search of home/person, opening mail, hacking bank accounts or telephones taps). 2. "Public Disclosure of Private Facts": Publicizing facts about as person's private life if the publicity is highly offensive to a reasonable person (debts or illnesses). 3. "False Light Publicity" - placing persons in a false light in the public eye if the false light would be highly offensive to a reasonable person. (signing a person's name to a petition in violation of that person's strongly held position) 4. "Commercial Appropriation of Name or Likeness" - using a person's name or likeness for commercial purposes without the consent of that person. (Endorsements and otherwise in connection with advertisements.)

Private Nuisance

Involves some interference with plaintiff 's use and enjoyment of the land Unlike trespass to land, nuisance does not require a physical invasion of the property Includes odors, noise, smoke, light, vibration Liability requires the interference to be intentional, substantial and unreasonable

Intentional Infliction of Emotional Distress

Most courts allow recovery for emotional distress based on the following elements: The defendant acted intentionally or recklessly The defendant's conduct was extreme and outrageous (unreasonable), The conduct caused emotional distress, and The emotional distress was severe. (The severe distress was a reasonable response in the circumstances.) Durham v. McDonald's Restaurants of Oklahoma, Inc.: Court applied elements of intentional infliction of emotional distress to facts involving a manager's allegedly inappropriate treatment of an employee. The manager denied the employee permission to take anti-seizure medicine and called him a "retard." The employee ran from the restaurant crying and became a recluse, sleeping all day and refusing to go to school.

New York Times Co. v. Sullivan

New York Times Co. v. Sullivan (1964): the U.S. Supreme Court held that when a public official brings a defamation case, s/he must prove the usual elements of defamation, plus actual malice (a First Amendment-based fault requirement) Actual malice means that the publisher had knowledge of falsity or showed reckless disregard for the truth (See Kipper v. NYP Holdings Co.) Rule of this case extended to include a public figure, but does not include private figures

"Harm"

Persons (defendants) commit torts when they cause "harm,": i.e.: Injury to persons (i.e., victims/plaintiffs); Damage to private property; or Commit fraud = create materially false expectations in the plaintiff's mind (i.e., false inducements) as part of the contracting process.

Commercial torts

Section 43(a) of the Lanham Act creates civil liability for unfair competition: a wide range of false, misleading, confusing or deceptive practices made in connection with the commercialization of goods and services, such as: Infringement and dilution of trademark and trade dress; and False advertising.

Misuse of Legal Proceedings

Wrongfully instituted legal proceedings can constitute a tort: Abuse of process: imposes liability on those who initiate legal proceedings, whether criminal or civil, for a primary purpose other than the one for which the proceedings were designed: Malicious prosecution: wrongful institution of criminal proceedings Wrongful use of civil proceedings: wrongful institution of civil suits

A "Tort"

a tort is a civil wrong that is not a breach of a contract. 1. intent, recklessness, negligence, strict liability. A "tort" is an act or omission by one person (i.e., the defendant) which constitutes a breach of duty and causes harm to the legally protected interests of another person (i.e., the plaintiff); if and only if there are no "affirmative defenses" , i.e., no intervening causes - or no other circumstances, such as privileges - which are so significant that defendant should be excused in whole or part from legal liability.

slander per se

slander, on the other hand of libel, is generally not actionable without proof of special damages, unless the nature of the slanderous statement is so serious that it can be classified as slander per se. In cases of slander per se, presumed damages are allowed by the common law.