大四上商法上课课件

1、TortsCHAPTER 6Quotes of the Day“The life of the law has not been logic; it has been experience.”Oliver Wendell Holmes, Jr., Supreme Court Justice“It is perfectly monstrous the way people go about nowadays saying things behind ones back that are absolutely true.”Lord Henry, in Oscar Wildes The Pictur

2、e of Dorian GrayExamplesTort Means “Wrong”Defamation - making a false statement about someone - written or verbal Negligence - performing wrong surgeryInterference with contract - stealing a client away from a competitorFraud - offering to sell something that doesnt existA tort is a violation of a d

3、uty imposed by civil law.Criminal Law - behavior classified as dangerous to society; prosecuted by the government, whether victim wants to prosecute or not; money award goes to the governmentContract Law - based on breach of an agreement between the two parties; victim prosecutes and receives compen

4、sation or restitution.Tort Law - based on an obligation imposed by the law with no agreement needed between parties; victim prosecutes and receives compensation or restitution.Tort vs. Criminal or Contract LawCategories of Tort LawIntentional TortsDoes not necessarily require an intention to harm th

5、e victim, only an intention to perform the act which caused the injury. (Intentionally throwing an object, but not meaning to hit anyone is a tort if it causes injury to someone.)Includes business torts, a category of torts perpetuated almost exclusively by business entities.Negligence and Strict Li

6、abilityWhen a duty is breached and harm results, courts will examine the facts to determine if there has been negligence.Intentional Tort - DefamationDefamation is irresponsible speech to harm anothers reputation.Written defamation is libel.Verbal defamation is slander.There are four facts to prove

7、to win a defamation suit:The defamatory statement was actually made.The statement is false.The statement was communicated to someone other than the plaintiff.In slander cases, the plaintiff must show some injury that resulted from the defamation.Defamation (contd)Opinion - to be defamation, the stat

8、ement must be provable and not simply someones opinion.Vague terms in the statement usually indicate it is an opinion, not a provable fact.Extreme exaggerations are usually not taken as fact.Kobe Bryant Drunk at Game?Defamation (contd)Public PersonalitiesIncludes: public officials (police and politi

9、cians) and public figures (movie stars and other celebrities) Public personalities have a harder time winning a defamation case because they have to prove that the defendant acted with actual malice.Internet Service Providers have been held to be not liable for postings made by their users.Privilege

10、Defendants receive extra protection in special cases.In courtrooms and legislatures, speakers have absolute privilege. They may speak freely, as long as it is true.When information is legitimately needed, the speaker giving it has qualified privilege. This may happen when someone reports a suspected

11、 criminal act.False ImprisonmentIntentional Tort - False ImprisonmentFalse imprisonment is the restraint of someone against their will and without reasonable cause.An employer who doesnt let a sick employee go home might be guilty of false imprisonment.If the police detain a person with no reason to

12、 suspect him of any crime, it could be false imprisonment.In general, a store may detain a person suspected of shoplifting if there is a reasonable basis for the charge and the detention is done reasonably (in private and for a reasonable time).Intentional Infliction of Emotional Distress Intentiona

13、l Tort - Historically, no recovery was allowed if the injury was only emotional instead of physical.Today, most courts allow a plaintiff to recover from a defendant who intentionally causes emotional injury.Behavior causing injury must be extreme and outrageous.Must have caused serious emotional har

14、m. Some courts allow recovery for emotional injury caused by negligent behavior.Battery is a touching of another person in a way that is unwanted or offensive.Additional Intentional TortsBattery is a touching of another person in a way that is unwanted or offensive.The touch does not have to hurt th

15、e victim - sexual touching that is offensive, but not painful, is battery.An intentional action that does hurt someone may be battery even if the injury is unintentional.Assault is an action that causes the victim to fear an imminent battery.Assault can occur without battery ever happening.Pulling a

16、 gun on someone - even if it is unloaded - is usually considered assault.Fraud is injuring another person by deliberate deception.Compensatory DamagesA jury may award compensatory damages - payment for injury -to a plaintiff who prevails in a civil suit.The Single Recovery Principle mandates that th

17、e court must decide all damages - past, present and future - at one time and settle the matter completely.Damages may include money for three purposes:to restore any loss (such as medical expenses) caused by the illegal actionto restore lost wages if the injury kept the defendant from workingto comp

18、ensate for pain and sufferingPunitive DamagesWhile the purpose of compensatory damages is to help the victim recover what was lost, punitive damages are intended to punish the guilty party.Intended for conduct that is outrageous and extremeDesigned to “make an example” out of the defendantShould det

19、er others from doing same conduct and prevent this defendant from repeating actionsSometimes punitive damage awards are huge, but in most cases they are close to or less than the amount of compensatory damages awarded.Business Torts Interference with business relationsInterference with a contractInt

20、erference with a prospective advantageThe rights to privacy and publicityIntrusionCommercial exploitationIntentional torts that occur almost exclusively in a business setting are called business torts.Interference with Business RelationsInterference with a contract exists if the plaintiff can prove

21、these elements:There was a contract between the plaintiff and a third party and the defendant knew of the contract.The defendant induced the third party to breach the contract or make performance impossible.There was injury to the plaintiff.Interference with Business RelationsInterference with prosp

22、ective advantage exists:when there is a relationship which gives the plaintiff a reasonable expectation of economic advantage, even though no contract exists when the defendant maliciously interferes and prevents the relationship from developingPrivacyPrivacy and PublicityIntrusion (prying into some

23、ones private life) is a tort if a reasonable person would find it offensive.Examples: wiretapping, stalking, peepingWould this include buying your personal information from your credit card company?a persons image or voice is used for commercial purposes without that persons permission.Negligence -D

24、uty of due care - there must be a duty owed to the plaintiff.Breach - duty must be breached.Factual cause - the injury must have been caused by the defendants actions.Foreseeable harm - it must have been foreseeable that the action would cause this kind of harm.Injury - the plaintiff must have been

25、hurt.To win a negligence case, the plaintiff must prove that the defendant failed in five areas: “The Unintentional Tort”Palzgraf CaseDuty of Due CareIf a defendant could have foreseen injury to a particular person, she has a duty to him.In some states, a social host serving alcohol to an adult may

26、be found liable for harm done by the person drinking the alcohol.Many states have a “dram act,” making liquor stores, bars and restaurants liable for serving drinks to intoxicated customers who later cause harm.Breach of DutyA defendant breaches his duty of due care by failing to behave the way a re

27、asonable person would under similar circumstances.Companies and Employees - courts have found companies liable for hiring and retaining employees known to be violent, when those employees later injured co-workers.Negligence per se - in special cases, legislatures set a minimum standard for certain g

28、roups of people (esp. children). When a violation of that statute hurts a member of that group, the duty is breached.Factual Cause & Foreseeable HarmFactual Cause - if the defendants breach ultimately led to the injury, he is liable.Does not have to be the immediate cause of injury, but must be the

29、first in the direct line.Foreseeable Harm - to be liable, this type of harm must have been foreseeable.The defendant does not have to know exactly what would happen - just the type of event.Res Ipsa Loquitur - in a few cases, the defendant must prove he was NOT negligent or the facts imply that his

30、negligence caused the injury.Example: Factual Cause & Foreseeable HarmMechanic fails to fix customers brakes, which causes.Car accident, car hitting bicyclistMechanic is liable to cyclistCar accident, car hitting bicyclistNoise from accident startles someone who falls out a window Mechanic is NOT li

31、able for falling personFactual cause and foreseeable type of injuryFactual cause, but no foreseeable type of injuryCar accident, cardoes not hit bicyclistBicyclist hits pothole and crashesMechanic is NOT liable to cyclistNo factual causeMechanic fails to fix customers brakes, which causes.Mechanic f

32、ails to fix customers brakes, which causes.DO NOT CLICK! Let slide “build” on its own.Injury & DamagesInjury - plaintiff must show genuine injuryFuture injury may be compensated, but must be determined at the time of trial.Damages - are usually compensatory, designed to restore what was lost. In unu

33、sual cases, they may be punitive. NegligenceContributory NegligenceIn a few states, if the plaintiff is AT ALL negligent, he cannot recover damages from the defendant.Comparative NegligenceIn most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff.The plaintiff can recover from the defendant to the percentage that the defendant is negligent.In some cases, a plaintiff found to be more t