Torts

1. Torts and Cyber Torts
Roland Cyr CPCU – Instructor
March 16, 2009

2. Cars
Homes
Life

3. Bus Accident
Bus/Overhang
Intentional Act

4. Sliding on Ice
Ten Car Pile-Up
Pedestrian/Car
Car/Bus/Intersection

5. What is a tort?

What is the purpose of tort law?

What are the four elements of negligence?

What is meant by strict liability? In what

circumstances is strict liability applied?
What is a cyber tort, and how are tort theories

being applied in cyberspace?

6. Part of doing business is the risk of being

involved in a lawsuit. An ever increasing
business operating cost is the premium to
obtain liability insurance to pay an adverse
judgment in a suit. Many of these suits
involve torts. In fact, in the United States
today, negligence is the dominant cause of
action for accidental injuries.

7. Tort law provides a remedy for acts causing

physical injury or interfering with physical
security and freedom of movement, for acts
causing destruction or damage to property,
and for the invasion of protected interests in
such things as personal privacy, family
relations, reputation, and dignity. As new
interests develop with social change, new
torts are recognized to protect those
interests.

8. Generally speaking, businesses may engage

in whatever is reasonably necessary to obtain
a fair share of a market or to recapture a
share that has been lost. They may not,
however, engage in certain business activities
with the motive of completely eliminating
competition. It is for this reason that
business torts have been defined. A tort is a
breach of a duty owed to an individual or a
group; a business tort is a wrongful
interference with another‘s business rights.

9. A tort is a civil, legal injury to a person or

property caused by a breach of a legal duty.
Plaintiff (the injured party) sues the

Defendant (the Tortfeasor) for damages.
Three Torts:

◦ Intentional. (punching someone in the face)
◦ Unintentional (negligence-no fault).
◦ Strict Liability (absolute liability). (dog bite)

10. Assault and Battery.

◦ Assault: the reasonable apprehension or fear of
immediate contact.
◦ Battery: completion (contact) of the assault.
◦ Defenses:
 Consent.
 Self-Defense and Others.
 Defense of Property.

11. False Imprisonment.

◦ Confinement or restraint of another person‘s
activities without justification.
◦ Merchants can detain a suspected shoplifter as long
as there is probable cause.
Infliction of Emotional Distress.

◦ Extreme and outrageous conduct.
◦ Some courts require physical symptoms.

12. Defamation (cont‘d).

◦ Slander per se (no proof of damages is required):
Loathsome communicable disease. (self explanatory)

Professional impropriety. (attorney/client priv)

Imprisonment for a serious crime. (shop lifiting)

Unmarried woman is unchaste ((plays the field)


13. What is the basis for the tort of defamation?

The publication of a statement that holds an

individual up to contempt, ridicule, or hatred.
Publication means that the statements are
made to or within the hearing of persons
other than the defamed party (statements
dictated to a secretary, for example).
Re-publication is also defamatory—thus, a

person who repeats defamatory statements is
liable.

14. Imagine that Dave invites Beth to a swimming party.

At the party, Dave gives Beth a suit that Dave knows
will dissolve in water. When Beth goes swimming, the
suit dissolves, leaving Beth naked in the presence of
the other guests. Beth suffers extreme
embarrassment, shame, and humiliation. Is Dave
liable for intentional infliction of emotional distress?
Under the circumstances, Dave is liable for Beth‘s

emotional distress. Liability can be found where the
conduct has been so outrageous in character, and so
extreme in degree, as to go beyond what has been
described as ―all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a
civilized community.‖

15. Invasion of the Right to Privacy.

◦ Person has the right to solitude. Breach of that duty
is a tort.
Appropriation.

◦ Use of another‘s name or likeness without
permission, and for the user‘s benefit.

16. Wrongful Interference with Contractual

Relationship.
◦ Valid, enforceable contract exists between two
parties.
◦ Third party knows about contract.
◦ Third party intentionally causes either party to
breach the original contract.
CASE 4.1: Mathis v. Liu (2002).

 Enters into a contract with K-mart. 2 months later he
breaks the contract to re-contract with another party – K-
mart sues and wins

17. Trespass to Land.

Trespass to Personal Property.

◦ CASE 4.2: Register.com v. Verio, Inc. (2004).
 Computer trespass to personal property occurs when one
party impairs the condition, quality, or value of another‘s
computer
Conversion. (borrow your car to go to the store, intending

only to go to the store. But then I decide later not to return it)
Disparagement of Property.

◦ Slander of Quality.
◦ Slander of Title

18. Unintentional Torts (Negligence)

Under negligence theory, a tortfeasor (wrongdoer) neither wishes to

bring about the consequences of an act nor believes that they will
occur. The actor‘s conduct merely creates a risk of the
consequences. Without the creation of a risk, there can be no
negligence. The risk must be foreseeable—that is, it must be such
that a reasonable person would anticipate it and guard against it. In
determining whether the conduct creating the risk was reasonable,
courts consider the nature of the possible harm. A very slight risk of
a dangerous explosion might be unreasonable; a distinct possibility
of burning one‘s fingers on a stove might be reasonable.
Negligence involves four elements: (1) a duty of care; (2) a breach of

the duty; (3) a legally recognizable injury; and (4) causation (the
breach must have caused the injury).

19. A A DUTY OF CARE. (DRIVE CAREFULLY) IS THE

DUTY OWED?
B BREACH OF A DUTY OF CARE. Did the

Defendant breach that duty?
C CAUSATION (THE BREACH OF THE DUTY OF CARE

MUST CAUSE AN INJURY).
D DAMAGE (INJURY OR HARM). Did the

Defendant‘s breach of duty cause the
Plaintiff‘s injury?

20. THE DUTY OF CARE

Duty is measured by a standard of reasonableness.

The measure is objective—how would a reasonable
person act in the same circumstances? The answer
defines the duty: A reasonable person would
exercise reasonable care. An individual with
knowledge, skill, or intelligence superior to that of an
ordinary person has a higher standard of care—his or
her duty is that which is reasonable in light of those
capabilities. Business firms that invite persons onto
their premises usually have a duty to exercise
reasonable care to protect their business invitees
against foreseeable risks that the owner knew or
should have known about.

21. BREACH OF THE DUTY OF CARE

Failing to exercise reasonable care is potentially

tortious conduct. The failure may be an act
(setting fire to a building) or an omission
(neglecting to put out a fire); it may be
intentional or careless; it may be unavoidably
dangerous. Whether conduct is unreasonable
depends on a number of factors: the nature of
the act, the manner in which the act is
performed, the nature of the injury, whether the
activity causing the injury was socially useful, and
how easily the injury could have been guarded
against.

22. CAUSATION

The breach of the duty of care must have caused

the harm for which recovery is sought. There
must be (1) causation in fact and (2) the act must
be the proximate cause of the injury. If an injury
would not have occurred without the
breach, there is causation in fact. Causation in
fact can usually be deter-mined by the but-for
test: But for the wrongful act, the injury would
not have occurred. Proximate cause is a question
not of fact but of law and policy: is the
connection between an act and an injury strong
enough to justify imposing liability?

23. INJURY

Without an injury (loss, harm, wrong, or

invasion of a protected interest), there is
nothing to recover. The purpose of damages
is to compensate injured parties. To
discourage especially reprehensible behavior,
however, punitive damages may be awarded.

24. DEFENSES TO NEGLIGENCE

A superseding intervening force may break

the connection between a wrongful act and
an injury, thereby canceling the liability of the
party who committed the wrongful act.
Assumption of risk

Contributory negligence

Comparative negligence

The last-clear-chance doctrine can excuse

the effect of a plaintiff‘s contributory
negligence

25. On what basis might patrons at a ballpark

recover for an injury suffered during a game?
Courts have ruled that patrons can recover

only for injuries caused by the park‘s
operator's failure to exercise reasonable care
in the construction, maintenance, or
management of the facility.

26. Injury Requirement and Damages.

◦ Plaintiff must suffer a legally recognizable injury.
◦ Not all injuries can be compensated.
Causation.

◦ Causation in Fact (―but for‖ test).
◦ Proximate Cause (foreseeably strong connection).

27. In any scenario analyze circumstances involving

potential negligence and then use a basic duty-
breach causation-injury analysis. If any of these
elements is missing, there may be liability but it
won‘t be on a negligence theory. - Example
Driving down a one-way street in the right direction,

at no more than the posted speed limit, Walter hits a
teenager, who is injured. The boy had jumped in
front of Walter‘s car from behind a stone wall to
impress his friends by scaring Walter. Walter had a
duty to drive his car in a safe manner; Walter‘s car
struck the boy; the boy was injured. But Walter is not
liable because he did not breach the duty to drive
with care

28. DRIVING ON, AT THE NEXT BLIND SPOT IN THE

ROAD, WALTER HONKS HIS HORN THREE TIMES TO
WARN ANY TEENAGER WHO MAY BE WAITING TO JUMP
IN FRONT OF HIS CAR. TWO BLOCKS AWAY, AN
ELDERLY WOMAN BELIEVES THE HORN IS AN AIR RAID
SIREN AND SUFFERS A HEART ATTACK. WALTER
HONKED HIS HORN; THE HONKING CAUSED THE
WOMAN‘S DEATH. BUT WALTER IS NOT LIABLE
BECAUSE THERE IS NO DUTY NOT TO HONK YOUR
HORN.

29. WALTER IS DYING. PAULA REFUSES TO DONATE BLOOD

TO SAVE HIM. PAULA HAS COMMITTED NO TORT AND
NO CRIME.
Injury Requirement and Damages.

◦ Plaintiff must suffer a legally recognizable injury.
◦ Not all injuries can be compensated.
Causation.

◦ Causation in Fact (―but for‖ test).
◦ Proximate Cause (foreseeably strong connection).

30. What is the purpose of tort law? What are the

two basic categories of torts?
Generally, the purpose of tort law is to

provide remedies for the invasion of legally
recognized and protected interests (personal
safety, freedom of movement, property, and
some intangibles, including privacy and
reputation). The two broad categories of torts
are intentional and unintentional.

31. Assumption of the Risk.

Superseding Intervening Cause.

◦ Event must be unforeseeable.
Contributory Negligence (few jurisdictions).

◦ Plaintiff recovers nothing if he is at fault.
Comparative Negligence (more common).

◦ As long as Plaintiff is less than 50% at fault he can
recover a pro-rata share of the verdict.

32. Most crimes involve torts, but the commission of

a tort is not always a crime. A crime is an act so
reprehensible that it is considered to be a wrong
against society as a whole. The state prosecutes
criminals, who may receive jail terms, fines, or
both. A tort action is a civil action in which one
per-son brings a suit of a personal nature against
another. The state is not a party, and the
judgment may impose damages but no jail term.
The function of tort law is to provide an injured
party with a remedy.

33. What is a tort?

A tort is a wrongful action—a civil, as

opposed to criminal, wrong not arising from a
breach of contract. A tort is a breach of legal
duty that proximately causes harm or injury
to another.

34. What are the four elements of negligence?

(1) a duty of care owed by the defendant to

the plaintiff
(2) the defendant‘s breach of that duty

(3) the plaintiff‘s suffering a legally

recognizable injury
(4) the in-fact and proximate cause of that

injury by the defendant‘s breach.

35. Assumption of the Risk.

Superseding Intervening Cause.

◦ Event must be unforeseeable.
Contributory Negligence (a few jurisdictions).

◦ Plaintiff recovers % if he is at fault. (80/20)
Comparative Negligence (more common).

◦ As long as Plaintiff is less than 50% at fault he can
recover a pro-rata share of the verdict.
◦ NH and MA allows for 50% recovery anyhow....

36. Res Ipsa Loquitur. (a rule of evidence whereby the negligence

of an alleged wrongdoer can be inferred from the fact that the accident
happened)
Negligence Per Se. Violation of law is legal breach

of duty. Plaintiff must show:
◦ Defendant broke a law/statute.
◦ Plaintiff is in special class to be protected; and
◦ Statute designed to prevent injury to Plaintiff.
―Danger Invites Rescue‖ doctrine. (if a tortfeasor

creates a circumstance that places the tort victim in danger, the
tortfeasor is liable not only for the harm caused to the victim, but
also the harm caused to any person injured in an effort to rescue
that victim)
Dram Shop Acts.


37. Res Ipsa Loquitur

Under the doctrine of res ipsa loquitur,

negligence may be inferred (and a defendant
must prove that he or she was not negligent).
This applies when the event causing damage or
injury is one that ordinarily does not occur in the
absence of negligence—train derailments, falling
elevators, and so on. It must be caused by
something within the exclusive control of the
defendant, and it must not have been due to any
act on the part of the injured party.

38. Negligence per se may occur if an individual

violates a statute providing for a criminal
penalty, injuring another. The injured person
must prove (1) that the statute clearly sets
out the expected standard of conduct, when
and where it is expected, and of whom it is
expected; (2) that he or she is in the class
intended to be protected by the statute; and
(3) that the statute was designed to prevent
the type of injury that he or she suffered.

39. Most states have Good Samaritan statutes, under

which persons who are aided voluntarily by
others cannot sue them for negligence. Many
states have dram shop acts, under which a tavern
owner or bartender may be held liable for injuries
caused by a person who became intoxicated
while drinking at the bar or who was already
intoxicated when served by the bartender. In
some states, statutes impose liability on social
hosts (persons hosting parties) for injuries
caused by guests who became intoxicated at the
hosts‘ homes.

40. Does not require fault, intent or breach of

duty.
Usually involves ‗abnormally dangerous‘

activities and risk cannot be prevented.
Dangerous Animals.

Product Liability—manufacturers and sellers

of harmful or defective products.

41. Under the doctrine of strict liability, liability is

imposed for reasons other than fault. For
example, strict liability is applied to abnormally
dangerous activities because of their extreme risk.
Abnormally dangerous activities

(1) involve potentially serious harm to persons or property
(2) involve a high degree of risk that cannot be completely
guarded against by the exercise of reasonable care
(3) are activities not commonly performed in the area.
Strict liability is imposed on persons who keep dangerous
animals for any harm in-flicted by the animals.
Strict liability is also a theory applicable in product liability
cases.

42. What is meant by strict liability? In what

circumstances is strict liability applied?
Strict liability is liability without fault. Strict

liability for damage proximately caused by an
abnormally dangerous or exceptional activity,
or by the keeping of dangerous animals, is an
application of this doctrine.
Another significant application of strict

liability is in the area of product liability

43. Can a person be liable for a tort committed in

cyberspace?
Communications Decency Act (1996).

◦ ―No provider/user of an interactive computer
service shall be treated as the publisher …provided
by another information content provider. (Only
Service Providers)
◦ Supreme Court held that the Communications Decency Act
violated the First Amendment's guarantee of freedom of speech
◦ rejects censorship of the on-line medium and establishes the
fundamental principles that will guide judicial consideration of the
Internet

44. SPAM – JUNK E-MAIL

The First Amendment limits what the

government can do to restrict it, but its
sending may constitute trespass to personal
property.
The Controlling the Assault of Non-Solicited

Pornography and Marketing (CAN-SPAM) Act
preempts State anti-spam statutes to permit
the use of unsolicited commercial e-mail but
prohibit certain spamming activities (details
are listed in the text).

45. DEFAMATION ONLINE

Under the Communications Decency Act

(CDA) of 1996, Internet service providers
(ISPs) are not liable for the defamatory
remarks of those who use their services.

46. What is a cyber tort, and how are tort theories

being applied in cyberspace?
A cyber tort is a tort committed in cyber

space. The text states that determining what
tort duties apply in cyber-space and the point
at which one of those duties is breached is
not an easy task for the courts. Generally, tort
theories are being applied in cyberspace in
traditional ways with some additional
problems caused by the technology.

47. New applications of traditional tort law may

arise from the use of new technology. Future
Cyber-torts will likely arise from a number of
areas, including but not limited to:
Online websites

Electronic e-mail

Computer bulletin boards

Software claims……….


48. 1) the injurious exposure rule -- when the

claimant was exposed to the injurious
condition, i.e., when the asbestos fibers were
inhaled
(2) the manifestation rule -- when the injury

becomes evident
(3) quot;injury in factquot; -- when effects of exposure

result in diagnosable and compensable injury
(4) A continuous trigger theory which implicates

all policies in effect during exposure, exposure-
in-residence and manifestation
This slide is beyond the scope of this course.


49. The choice for a coverage trigger is not a

consistent endeavor. Often, the choice is
influenced by public policy reasons which
lean toward maximizing coverage/protection

50. Most commercial general liability policies contain

an exclusion for person injuries or advertising
injuries quot;arising out of oral or written publication
of material whose first publication took place
before the beginning of the policy period.quot; In
cases where the advertising activity or
defamation may have arisen before the beginning
of the policy period coverage should also be
excluded for online or other similar forms of
publication.
no coverage for alleged libelous statements

published prior to the effective date of the policy

51. In cyberspace, conversations happen in ―chat

rooms‖, and messages are posted on ―bulletin
boards with instant distribution
worldwide. Although our ancestors would
not be surprised that people are still saying
disturbing and sometimes actionable things
about each other, they likely did not
contemplate that these wrongs would occur
in a place known
as ―cyberspace‖. Defamation issues arise
through multiple means in ―cyberspace.

52. Defamatory statements may be published over

private e-mail systems or distributed through the
Internet, Service provider discussion lists,
roundtables, real-time conferences, news
groups, list servers, and bulletin boards - all
potential sources of defamatory
publications. The technology used to publish
allegedly defamatory statements does not change
the nature of the underlying tort. It will,
however, result in an increased number of claims
due to the proliferation of the use of e-mail in
the United States…….

53. Why are Internet service providers (ISPs) exempt

from liability, under some statutes, for the
actions of their customers?
Sometimes it is viewed as unfair to impose

liability on an ISP for the actions of its customers,
who may number in the hundreds of thousands,
or more. Imposing such liability would inhibit the
development of the Web and the Internet.
An analogy might be the imposition of liability on

a bookseller for the statements of every author in
every book that the seller sold. To so restrict
ISPs (or booksellers) would limit access to their
products and services to very few customers.