discussion 9
pinkyk
Chapter9-BusinessTorts..pptxChapter 9 Business Torts
Its Legal, Ethical, and Global Environment
Marianne M. Jennings
Business
11th Ed.
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Latin Word Tortus: Means “Crooked, Dubious, Twisted”
A Tort is a Civil Wrong That is an Interference With Someone’s Person or Property Such That Injury Results
What Is a Tort?
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Tort is a Private Wrong
Injured party seeks remedy
Recovers damages from the one who commits the tort
Crime is a Public Wrong
Wrongdoer is prosecuted
Pays fine to government or is jailed to pay debt to society
Torts vs. Crimes
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Intentional Torts
More than an accidental wrong
Tort of Negligence
Accidental harms that result from the failure to think through the consequences
Still have liability but there are defenses
Strict Tort Liability
Absolute standard of liability
Used in product liability cases
Types of Torts
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Untrue Statement By One Party That is Published To a Third Party
Slander is Oral or Spoken Defamation
Libel is Written, and in Some States Broadcast, Defamation
Defamation
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Elements
Statement about a business’ or person’s reputation or honesty that is untrue
Statement is directed at business and made with malice and intent to injure
Publication − someone heard and understood the statement
Damages − economic losses such as damage to reputation
Defamation
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Defenses
Truth is a complete defense
Privileged speech: three types
Absolute privilege
Opinion privilege
Qualified privilege
Defamation
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Defense of Privilege
Absolute: Testimony under oath and legislative debate (so long as related to the matter at hand)
Opinion: Analysis and op-ed articles; choice of words and thoughts on conduct or actions (calling someone a “deadbeat” who has, in fact, not paid his bills) are not defamation and enjoy First Amendment protection
Qualified: Media (so long as item published without malice, which is knowing information is false or with reckless disregard for whether it is true or false)
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Manager’s Desk: Randi W. v. Muroc Joint Unified School District (1997)
What concerns are raised about imposing liability on those who provide letters of recommendation?
What was the proximate cause of Randi W’s injury?
Defamation & Privilege
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Randi W Case: Employment History
Mendota District
Tranquility District
Golden Plains District
Muroc District
Livingstone District
“Sexual remarks”; “sexual situations”
“Panty raid”; “sexual remarks”; “sexual overtures”
“Parent complaints”
“Sexual touching” allegations
“Molested and touched Randi W”
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Defamation
Malice required if the person claiming defamation is a public figure
Malice is knowledge that the statement is true or false
Malice is publishing a false statement with reckless regard as to whether it was true or false
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Case 9.1 Trump v. O’Brien (2011)
Was malice established in the case?
Why was it necessary to establish malice?
Is the author entitled to the protection of the privilege?
Defamation
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Elements
Third party knew of existing contract between two primary parties
Third party intended to interfere with or cause a breach contract
Original party to the contract is injured by breach of contract induced by the third party
Contract Interference
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Macy’s v. Martha Stewart Living Omnipedia, Inc. (2015)
Martha Stewart, Penney’s, and Macy’s
The court found for Macy’s, but case continues its litigation
Martha Stewart was dismissed from the litigation as the two retail stores battled whether there had been interference
Contract Interference
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Custody of Someone Else for any Period of Time Against Their Will
Need Not Establish Physical Damages; Just the Fact That They are Detained Establishes Sufficient Damages
Defense of Shopkeeper’s Privilege
Can detain for reasonable time
Must have basis for detaining the individual
False Imprisonment
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Liability for Conduct That Exceeds All Bounds of Decency
Difficult for Plaintiff to Establish Emotional Distress
Has Been Used By Debtors Against Collectors
Intentional Infliction of Emotional Distress
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Public Disclosure of Private Facts
Appropriation of Another’s Name For Commercial Advantage
Intrusion Into Private Affairs of Another – The First Paparazzi Case
Galella v. Onassis (1972)
The court ruled Galella had invaded Jacqueline Kennedy Onassis’ privacy
HIPAA Protects Health/Patient Privacy
Invasion of Privacy
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Unauthorized Use of Someone’s Name, Voice, Image, or Likeness For Commercial Advantage
Even if Manner of Use is Accurate, it is a Tort Because of the Use Without Authorization
Appropriation
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Case 9.2 Bullard v. MRA Holding LLC (2013)
Did MRA have permission to use the photos?
Was the use of Bullard’s photos appropriation?
Appropriation
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Duty − Element One
All persons are expected to behave as ordinary and reasonably prudent persons do
Standard of the law is not always used
Example: The speed limit of 45 is not appropriate in ice and snow
Negligence
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Case 9.3 Van Horn v. Watson (2008)
Breach of Duty − Element Two
Failure to comply with established standard of conduct
Often connected with element one as courts struggle to determine whether a duty even exists
Negligence
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Negligence
Case 9.4 Chaney v. Starbucks (2015)
Issue of liability for actions of third parties
Duty to watch who’s plugging what and where?
Duty of customer to watch for plug?
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Premises Liability Tips
Good lighting
Access to public phones
Security patrols
Locked gates to parking lots; gate or security access
Escorts provided for customers and employees to their vehicles after closing hours
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Premises Liability Tips
Camera security
Assigned parking spaces for tenants and employees
Warning signs to use caution and be alert
Many hotels change key access codes with each guest and post security personnel near guest elevators at night so that there is no access to the elevators unless you can show your room key. Some hotels have floors for women who are traveling alone, and extra security is provided on those floors.
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Causation − Element Three
Breach of duty caused the plaintiff’s injuries
“But/for” causation test
Restricted by the zone of danger rule = Duty
Negligence
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Proximate Cause (Foreseeability) − Element Four
Some courts hold the cut-off line must be drawn between the "but/for" causation and events contributing to plaintiff's injuries
Case 9.5 Palsgraf v. Long Island Ry. Co. (1928)
There is a legal limit to what is foreseeable
Negligence
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Damages − Element Five
Medical bills
Lost wages
Pain and suffering
Loss of consortium (as between spouses)
Negligence
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Contributory Negligence
Plaintiff is also negligent
Operates as a complete bar to recovery
Comparative Negligence
Compare acts of plaintiff and defendant and assess blame for accident
Reduces plaintiff’s recovery by amount of fault
Defenses to Negligence
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Assumption of Risk − Plaintiff Knew of Inherent Risk and Went Forward Anyway
Case 9.6 The Landings Assoc. Inc. v. Williams (2012)
Is the risk of being attacked by an alligator inherent in a neighborhood such as this one?
Had there been any previous attacks?
Defenses to Negligence
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Current Attempts at Reform
Limits on verdicts
Standards for recovery
Limits on Punitives
Eighth Amendment excessive punitive damages is cruel and unusual punishment
Due Process violated with excessive punitives – State Farm v. Campbell (2003)
Exxon case and other statutory limitations
Tort Reform
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Strict Liability
Absolute Liability for Injury
Can Result From Violation of Statute (Improper Disposal of Toxic Waste)
Public Policy Reason – Manufacturers Take Appropriate Steps to Design and Manufacture Products
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