Business Law:

Chapter 6: Tort Law

Slide:

1. The basis of tort law (Kim)

Tort law is designed to compensate those who have suffered a loss or injury due to another
person’s wrongful act.
In a tort action, one person or group brings a lawsuit against another person or group to
obtain compensation (monetary damages) or other relief for the harm suffered.

The purpose of tort law is to provide remedies for the violation of various protected interests.
Society recognizes an interest in personal physical safety.

Plaintiffs seek various remedies, or damages, in tort actions. Note that legal usage
distinguishes between the terms damage and damages. Damage refers to harm or injury to
persons or property, while damages refers to monetary compensation for such harm or
injury.

Compensatory damages:
Special damages compensate the plaintiff for quantifiable monetary losses, such as medical
expenses and lost wages and benefits
General damages compensate individuals (not companies) for the nonmonetary aspects of
the harm suffered, such as pain and suffering. A court might award general damages for
physical or emotional pain and suffering, loss of companionship, loss of consortium,
disfigurement, loss of reputation, or loss or impairment of mental or physical capacity.

Punitive damages: in tort cases to punish the wrongdoer and deter others from similar
wrongdoing.

Legislative Caps on Damages State laws may limit the amount of damages—both punitive
and generalthat can be awarded to the plaintiff.

Classification of Torts
There are two broad classifications of torts: intentional torts and unintentional torts (torts
involving negligence). The classification of a particular tort depends largely on how the tort
occurs (intentionally or negligently) and the surrounding circumstances. Intentional torts
result from the intentional violation of person or property. Negligence results from the breach
of a duty to act reasonably.

Defense
Even if a plaintiff proves all the elements of a tort, the defendant can raise a number of
legally recognized defenses (reasons why the plaintiff should not obtain damages). A
successful defense releases the defendant from partial or full liability for the tortious act.

The defenses available may vary depending on the specific tort involved. A common
defense to intentional torts against persons, for instance, is consent. When a person
consents to the act that damages her or him, there is generally no liability. The most widely
used defense in negligence actions is comparative negligence.
2. Intentional Torts against Persons + Case (ex: the case of Lowe's Home Centers, LLC
v. O.M. Scott & Sons Company) (Trang)
- Requires Intent
- Tortfeasor: The Person Accused
- Intended the consequences of an act
- Knew or should have known that certain consequences would result from an
act
- Transferred Intent: Intent of tortfeasor transferred when he intends to harm person
“A” but unintentionally harms person “B” as well.
- Fall into Two Categories
- Against persons
- Against property

● Assault
○ Act intended to cause an apprehension of harmful or offensive contact
○ Act caused apprehension in the victim that harmful or offensive contact is
imminent

● Battery
○ If the act that created the apprehension is completed and results in harm to
the plaintiff, it is a battery of unexcused and harmful or offensive physical
contact intentionally performed.
○ Example: Ivan threatens Jean with a gun and then shoots her. The pointing
of the gun at Jean is an assault. The firing of the gun (if the bullet hits Jean) is
a battery
○ A plaintiff may be compensated for the emotional harm or loss of reputation
resulting from a battery, as well as for physical harm.
○ A defendant may assert self-defence or defence of others in an attempt to
justify his or her conduct.

● False Imprisonment
○ The intentional confinement of another person or restraint of another person’s
activities without justification.
○ The confinement may occur through the use of physical barriers, physical
restraint, or threats of physical force.

● Intentional Infliction of Emotional Distress

○ An intentional act that amounts to extreme and outrageous conduct resulting
in severe emotional distress to another.
○ The act must be extreme and so outrageous that it exceeds the bounds of
decency accepted by society in order to be actionable.
○ The First Amendment’s guarantee of freedom of speech limits emotional
distress claims when the outrageous conduct consists of speech about a
public figure.
● Defamation
○ Wrongfully harming a person’s good reputation
■ Damages for Libel: General damages are presumed and the plaintiff
does not have to prove actual injury
■ Damages for Slander: The plaintiff must prove special damages
(actual economic loss).
■ Slander Per Se is an exception and no proof of damages is necessary
when the statement involves a loathsome communicable disease;
business improprieties; serious crime; or serious sexual misconduct.
○ To establish defamation, the following elements must be proved:
■ The defendant made a false statement of fact.
■ The statement was understood as being about the plaintiff and tended
to harm the plaintiff’s reputation.
■ The statement was published to at least one person other than the
plaintiff.
■ If the plaintiff is a public figure, she or he must also prove actual
malice.
○ Statement-of-Fact Requirement
○ The publication requirement
The false statement must hold an individual up to hatred, contempt, or ridicule in
the community and be “publicised” (communicated) to a third party.
○ Defences against defamation
■ Truth is generally an absolute defence for defamation
■ Privileged communications
■ Made without actual malice

○ Invasion of the right to privacy

■ Use of person’s name, picture, or likeness for commercial purposes
without permission
■ Intrusion into person’s affairs or seclusion
■ Publication of information that places person in false light
■ Public disclosure of private facts about individual that ordinary person
would find objectionable

○ Appropriation
■ Use by one person of another person’s name, likeness, or other
identifying characteristic without permission and for the benefit of the
user

● Misrepresentation (fraud)
○ Intentional deceit for personal gain
○ Elements of fraud
■ Misrepresentation of facts or conditions with knowledge that they are
false or with reckless disregard for the truth
■ Intent to induce another to rely on the misrepresentation
■ Justifiable reliance by the deceived party
■ Damages suffered as a result of the reliance
 ■ Causal connection between the misrepresentation and the harm
suffered
○ Fact versus opinion
● Abusive or Frivolous Litigation:
○ Torts related to abusive or frivolous litigation include:
■ Malicious prosecution.
■ Abuse of process.

● Wrongful interference
○ Wrongful interference with a contractual relationship
■ Valid, enforceable contract exists between two parties
■ Third party knows that this contract exists
■ Third party intentionally causes either of the two parties to breach the
contract
■ Defendant knew or had reason to know that a third party and the
plaintiff are in a business relationship
■ Defendant intentionally interfered in the relationship
○ Defences to wrongful interference
Case Summary: Blake and Birzon were accusing Giustibelli for fraud, they said that she
changed the contract adding to her bill and wasn’t helpful at all. Giustibelli said it was
defamation and brought the case to the district court of Florida. Evidence later on showed
that Blake agreed to pay Giustibelli the reflected amount on the written agreement. Blake
and Barizon admitted in court that Gustibelli had not charged more than what was quoted on
the agreement, but that the defamation was protected by the first amendment and not action
of defamation.
Issue: where Blake and Birzon internet post a defamation towards Gustibelli and there are
libel damages (damages that are directly to reputation)
Rule: First Amendment, which protects people who made a statement or fact (statement of
opinion) normally not actionable and libel damages that affect directly to the reputation of a
person
Application: defamation has its limits on freedom of speech and freedom of press, there is
no false opinion or idea but it can be false facts and these are not protected by the first
amendment. Blake and Birzon posted defamatory statements and personal opinions towards
Gustibelli but they had no facts but their word. This statement harms directly her reputation
which affects her job and where libel damages. Conclusion: Blake and Barizon are libel
damages, and the court acted on favour of Giustibelli, but the first amendment protects their
post because there were no facts
Legal Reasoning Questions extra credit
1. What is the standard for the protection of free speech guaranteed by the First
Amendment?
People who made statement or fact of statement of opinion(including online) normally not
actionable because they are protected by the firs
2.How did this standard apply to the statements posted online by Blake and Birzon?
The statement posted online has a negative statement towards Gustibelli and represented
their contract as a false fact.
3. The First Amendment normally protects statements of opinion, and this can be an
effective defence against a charge of defamation. Does it seem reasonable to disregard
this defence if any assertion of fact within a statement of opinion is false? Discuss.
Yes, because if it is false accusation if the declaration is false it will not have to be
considering=the case

3. International torts against property (Nhật Minh)

International torts against property refer to legal disputes regarding property damage across
different countries. These disputes can arise from various situations, such as trespass to
land, trespass to personal property, conversion, and disparagement of property.

The law recognizes and distinguishes two different kinds of property: real property and
personal property:
-Real property is property that is immovable, such as real estate, and is ruled
as real property. This includes land and everything that is built within it and the rights that
“run with” the land
-Personal property, on the other hand, is movable, and is classified as
everything that is not real property, such as cash, clothing, phones and laptops, cars, and
any items that can be transported, unattached to real estate.

A) Trespass to land: Occurs when a person, without permission, does any of the
following:
-Enters onto, above, or below the surface of land that is owned by another.
-Causes anything to enter onto land owned by another.
-Remains on land owned by another or permits anything to remain on it.
Any harm done to the land itself is not an essential element of the tort, because it is
designed to protect the right of an owner to exclusive possession. Common types of offense
include driving on someone else’s land or throwing rocks at a building that belongs to
another owner. Another form of tresspass is construction that extends into someone’s land
without permission.

Before a person can be a trespasser, the property owner must establish the person as so by,
for example, posting signs that expressly establish as a trespasser a person who ignores
these signs and enters onto the property. Any person who enters other property to commit
illegal acts(such as thievery) is explicitly a trespasser, signs or not.

At common law, a trespasser is liable for any damage caused to the property and generally
cannot hold the owner liable for injuries that the trespasser sustains on the premises,
however, it is being modified in many jurisdictions in favor of a reasonable duty of care rule
that varies depending on the status of the parties.

For example, a landowner now may have a duty to post a notice if there are guard
dogs patrolling the property. Or if children are injured from a swimming pool or a sand pile,
under the attractive nuisance doctrine, the owner may be held liable. Still, an owner can
normally use reasonable force to remove a trespasser from the premises or detain the
trespasser for a reasonable time without liability

Defense against Trespass to Land: One defense to a claim of trespass is to show that the
trespass was warranted, such as when a trespasser enters a building to assist someone in
danger. Another defense exists when the trespasser can show that she or he had a license
to come onto the land. A licensee is one who is invited (or allowed to enter) onto the
property of another for the licensee’s benefit, such as a plumber or an electrician. Note that
should a license to enter be revoked and the former licensee refuses to do so, they become
a trespasser.

B) Trespass to Personal Property: Happens whenever any individual wrongfully takes

or harms the personal property of another or otherwise interferes with the lawful
owner’s possession and enjoyment of personal property.

● In this context, harm doesn’t necessarily mean destruction of the property, but
anything that degrades the property’s value, condition and quality.

Trespass to personal property involves intentional meddling with a possessory interest, like
barring an owner’s access to personal property. If it can be shown that trespass to personal
property was warranted, then a complete defense exists. Most states allow car repair shops
to hold a customer’s vehicle should they refuse for already completed repairs.

C) Conversion: Is when an owner is deprived of personal property without permission

and without just cause.

Often, when conversion occurs, a trespass to personal property also occurs, from the
process of taking the property to retaining it wrongfully.

● Failure to Return Goods: Even when the rightful owner consented to the initial taking
of the property, so no theft or trespass occurred, a failure to return the property may
still be conversion. Case example: Chen borrows Mark’s iPad mini to use while
traveling. When asked to give it back, Chen says he had already given it to his
younger brother for christmas. Mark can sue Chen for conversion, and Chen will
have to either give the iPad back or pay Mark the same value of money to what the
iPad is worth.
● Intention: Conversion can happen even when a person mistakenly believes they are
entitled to certain goods. For example, someone who buys stolen goods can still be
sued for conversion even if they did not know they were stolen. In which case, they
either have to return the goods or compensate th full value of the property.

D) Disparagement of property: Occurs when economically injurious falsehoods are

made about another’s product or property rather than about another’s reputation.
This can also refer to the act of slander of quality or slander of title.

● Slander of Quality: Is the act of publishing false information about another’s product,
alleging that it is not what its seller claims, which constitutes the tort of slander of
quality, or trade libel. To establish trade libel, the plaintiff must prove that the
improper publication caused economic harm due to a third person no longer
engaging with the plaintiff as a result. This may also be defamation of character by
implication if the statement disparages the character of the person selling the
product.
● Slander of Title: Occurs when a publication falsely denies or casts doubt on another’s
legal ownership of property, resulting in financial loss to the property’s owner.
Usually, the tort is intentional, with the purpose of slander by publishing untrue
 statements about the ownership of certain properties in order to encourage doubt
and making a third person discouraged from dealing with the slandered.

4. Unintentional torts - negligence + Case (trong sách) (Minh Phạm)

● Unintentional Tort: A wrongful act the tortfeasor committed without knowing its
wrongfulness or without intending to commit the act.

● Negligence: the unintentional tort caused by a person's failure to fulfil their duty of
care. To prove negligence, four elements must be established: duty, breach,
causation, and damages.

- Duty: Defendant owed plaintiff a duty of care.

- Breach: Defendant breached that duty.
- Causation: Defendant’s breach caused the injury.
- Damages: Plaintiff suffered legal injury.

● Duty of Care and Breach: The courts consider the following factors when determining
whether a duty of care was breached:

- The nature of the act.

- The manner in which the act was performed.
- The nature of the injury.

(Introduce case): This case involves the death of David Bogenberger at a hazing event
organised by the Pi Kappa Alpha fraternity at Northern Illinois University. David's father filed
a negligence complaint against the fraternity chapter and its officers for requiring pledges to
consume excessive alcohol, leading to David's death. The court initially dismissed the
complaint, but an appellate court reversed the decision. The Illinois Supreme Court affirmed
the reversal, stating that the fraternity chapter and officers had a duty to protect the pledges,
and the complaint could proceed.

Case question answers:

1. Legal Environment: The NIU chapter invited nonmember sorority women to
participate in the hazing event by filling the pledges’ cups with vodka and directing
them to drink it. Did these women owe a duty of care to the pledges? Discuss.
In the given scenario, whether the nonmember sorority women owed a duty of care
to the pledges would depend on the specific circumstances and applicable laws. If
these women actively participated in the hazing event and knew it could cause
harm to the pledges, they could be seen as contributing to the dangerous situation
and may be held liable for negligence.

2. What If the Facts Were Different? Suppose that the pledges’ attendance at the
hazing event had been optional, and the NIU chapter had furnished alcohol, but not
required its consumption. Would the result have been different? Explain.
 If the pledges' attendance at the hazing event had been optional and the NIU
chapter provided alcohol but did not require its consumption, the outcome might
have been different. The court would likely consider whether the pledges voluntarily
chose to consume alcohol and assumed the associated risks, which could affect the
finding of negligence.

(It's important to note that the specific laws and legal precedents in the jurisdiction
where the case is being heard would play a significant role in determining the
outcome.)

● Reasonable Person Standard: The reasonable person standard is used to determine if

the duty of care has been breached. It assesses how a reasonable person would have
acted in similar circumstances, considering factors like occupation and relationship to
the plaintiff.

● Duty of Landowners: Landowners have a duty to protect visitors from harm, while
retailers and business operators must warn invitees about foreseeable risks on their
premises. These obligations ensure awareness of potential dangers and encourage
precautions.

● Duty of Professionals: Professionals may owe higher duty of care based on special
education, skill, or intelligence. Breach of duty is called professional malpractice.

● Causation: Even though a tortfeasor owes a duty of care and breaches the duty of
care, the act must have caused the plaintiff’s injuries. Courts ask two questions:

- Is there a causation in fact? (Causation in Fact: Did the injury occur because of the
defendant’s act, or would the injury have occurred anyway? Usually determined by
the “but for” test.)
- Was the act the proximate (or legal) cause of the injury? (Proximate Cause: When
the causal connection between the act and injury is strong enough to impose
liability.)

Overall, negligence is a tort that arises when someone fails to fulfil their duty of care, and
liability can be established by proving the elements of duty, breach, causation, and
damages. The reasonable person standard is used to determine if the duty of care has been
breached, and landowners and business operators have specific duties to protect individuals
and warn of foreseeable risks.

5. Defences to negligence (Huy)

a. Assumption of Risk
Assumption of risk is a defence in negligence cases. Specifically, it applies when a plaintiff
has been fully apprised of the potential dangers associated with a given activity or situation
and chooses to voluntarily proceed with it regardless.

In such instances, the plaintiff forfeits the right to pursue compensation for any injuries or
damages incurred as a result of the chosen course of action.
As an illustration, in the event of an individual engaging in bungee jumping and subsequently
incurring injuries, mitigation of damages may be unattainable in light of the assumption of
risk inherent within the said activity's nature.

Superseding Cause: The Unforeseeable Twist in Tort

Law
In tort law, a superseding cause is an intervening event that breaks the chain of causation
between a defendant's action and a plaintiff's injury.

It relieves the defendant of liability as the resulting harm was not reasonably foreseeable.

However, this defence can be challenging to prove as it requires showing that the
unforeseeable event was the sole cause of the plaintiff's injury.

Imagine if a person negligently leaves a gas stove on, and a subsequent earthquake causes
a fire that damages a neighbouring property, the earthquake may be considered a
superseding cause. The defendant would not be liable for the damage caused by the fire as
the earthquake was an unforeseeable event that broke the causal link between their
negligence and the plaintiff's injury.

Contributory Negligence
One defence to negligence is contributory negligence. This occurs when the plaintiff's own
negligence contributed to their injury.

If the plaintiff is found to be even partially responsible for their harm, they may be barred
from recovering any damages.

To give you an idea, if a pedestrian jaywalks across a busy street and is hit by a car, the
driver may argue that the pedestrian's negligence in crossing the street illegally contributed
to the accident and therefore they should not be held liable for the pedestrian's injuries.

Comparative Negligence
Another defence to negligence is comparative negligence. This occurs when both the
plaintiff and defendant are found to have been negligent and their respective degrees of fault
are compared.

The plaintiff's damages will be reduced by their percentage of fault.

The legal concept of modified comparative negligence involves deducting the percentage of
damages caused by the plaintiff from the total award. In the case of the 50 percent rule, the
plaintiff can only recover damages if their liability is less than 50 percent.

51 Percent Rule: Plaintiff gets nothing if over 50% liable. Modified Comparative Negligence:
Awarded damages reduced by own fault percentage.

50 Percent Rule: Plaintiff compensated only if liability < 50%. 51 Percent Rule: Plaintiff
receives no compensation if liability > 50%.

Conclusion
In conclusion, defendants may raise various defences to avoid liability for their actions in a
tort claim. These defences include contributory negligence, comparative negligence,
assumption of risk, and the statute of limitations.

It is important for both plaintiffs and defendants to understand these defences and how they
may affect their case. Consulting with an experienced attorney can help ensure that your
rights are protected and that you receive fair compensation for your injuries.