Class Rreflection 1QuynhCao
THE LEGAL ENVIRONMENT OF BUSINESS
With Doreen Smith, Esquire
- What is a Tort?
Civil wrong that interferes with one’s property or person. A common tort is a negligence action which often impact a business (such as a slip and fall action or car accident).
- Torts distinguished from crimes/contracts
Crime arises from violation of public duty, whereas tort arises from violation of private duty. Same act can be both a crime and a tort.
A breach of contract action is not a tort.
CIVIL VS. CRIMINAL CASE
- Burden of Proof—beyond a reasonable doubt
- Case brought by government
- Guilty person would pay a fine, serve time in prison or receive the death penalty
- Burden of Proof—By the preponderance of the evidence
- Case brought by a private party
- A Defendant may pay damages for what they did wrong.
Types of Torts:
- Intentional (see below for specific torts)
- Civil wrong that results from intentional conduct. This a a category of torts that includes assault, battery and defamation.
- Civil wrong that results from careless conduct
- Strict Liability
- Civil wrong for which there is absolute liability because the activity is inherently dangerous
Intentional conduct that threatens a person with a well-founded fear of imminent harm.
Intentional, wrongful touching of another (the completion of the assault).
- Intentional detention without consent.
- Shopkeeper’s Privilege
- Defense to a claim of false imprisonment for retail stores.
- Permits detention for reasonable time with reasonable suspicion.
Intentional Infliction of Emotional Distress.
Outrageous conduct which goes beyond all bounds of decency.
Invasion of Privacy—three separate torts:
- Intrusion into plaintiff’s private affairs.
- Public disclosure of private facts.
- Appropriation of another’s name, likeness or image for commercial advantage.
- Untrue statement published to a third party that damages a person’s property interest.
- Requires three elements: statement, publication and damages
- Slander is oral defamation.
- Libel is written (broadcast, internet).
- Absolute Privilege: when members of Congress speaking on floor of senate or House, witnesses in court proceedings.
- Qualified Privilege: as long as released without malice and a retraction is made.
- Example—news media
- Product Disparagement
- When someone makes a false statement about a business or product.
- Wrongful Interference with Contracts
- When a third party interferes with someone else’s freedom to contract.
- Negligence exists when a person acts with less care than is reasonable, causing foreseeable injury.
- Elements of a negligence claim:
3. Causation and
- Duty and Breach
There is a general duty to act as a reasonably prudent person in a similar circumstance.
A professional (doctor, lawyer, accountant) must act at the same skill level as other professionals in same field.
The second element is that the defendant breached that duty established by statute or under the reasonable person standard.
Causation. Connects duty with injuries to plaintiff—two types of causation:
“But For” defendant’s action, plaintiff would not have suffered the injury.
Proximate Cause: plaintiff’s injury was foreseeable.
Past and future pain and suffering, physical impairment, medical care, loss of earning capacity. Experts help juries “quantify” the injuries.
Joint and Several Liability: when actions of two or more defendants impose liability on all actors. Each one is responsible for all injuries.
Defenses to Negligence.
Contributory Negligence: plaintiff’s partial negligence bars recovery for his injuries.
Comparative Negligence: determines the fault of both parties. Plaintiff receives partial recovery based on percentage of defendant’s fault.
Defenses to Negligence. (continued)
Assumption of Risk: burden is on defendant to prove plaintiff knew about risk and chose to proceed.
Express Assumption: usually exculpatory writing.
Implied Assumption: subjective, based on circumstances.
What is Strict Liability?
- Absolute liability imposed by law to protect the public or ultra-hazardous activities such as dynamite excavations.
Imposing Strict Liability.
- Can involve transportation of toxic materials, but most common is product liability.
- Strict Liability also refers to products liability (this topic will be revisited in Chapter 24)