A tort can be defined as a private or civil wrong or injury; it is a violation of some duty to the plaintiff and a wrongful act for which a civil suit can brought. The purpose of tort law is to compensate the person injured, not to punish the wrongdoer, as is the case in criminal law. It differs from a crime in that a crime is a positive or negative act in violation of a penal law.It is an offense against the state or society as a whole, rather than against the individual. An act can be a tort and a crime.
Types of Torts In Business
As stated a tort is any wrongful act consisting of the violation of a right for which a civil suit can be brought. Following are some of the common types of torts found in the business environment.
Negligence is the failure to use reasonable care that causes harm to a person or property- Reasonable care means the care that an ordinary prudent Person would exercise under similar circumstances. Four basic requirements are necessary for negligence: (1 ) there must be a duty owed; (2) it must be breached; (3) the breach must be the proximate cause of the harm; and (4) there must be damages.
The dutyrequirement generally arises by operation of law; for example, the legislature passes a statute regulating the speed ofa motor vehicle. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. It is the efficient cause the one that necessarily sets in operation the factors that accomplish the injury. Proximate cause remains an elusive concept, and both its rules and their application have been the subject of continual debate by courts and legal writers.
A simple example of proximate cause is where the driver of an automobile runs a red light and strikes a pedestrian crossing the street in the crosswalk. Running the red light was the proximate cause of the harm to the pedestrian. Examples or negligence in business are injuries caused by foods, drugs, and other products; malpractice by accountants, lawyers, and doctors; and motor vehicle collisions while the vehicle is used for a business purpose. In most states, if the plaintiff is also negligent and that negligence contributed to his or her injuries, he or she cannot recover. This is called the doctrine of contributory negligence. Many states have discarded this doctrine in negligence cases and instead compare the negligence of the parties. That is, the plaintiffs negligence reduces the amount recovered in proportion to the degree of his or her own negligence. Another possible defense is assumption of risk by the plaintiff.
This involves a case where the plaintiff voluntarily enters into a risky situation knowing the risk involved. For example, a baseball fan voluntarily sits in a section where a foul ball often lands. The fan knows he might be hit but still sits there. The doctrine Of assumption of risk should preclude the plain- tiff from recovering a judgment. However, if a person sits in an unprotected area not knowing the danger, recovery should take place. 2. STRICT LIABILITY Strict liability is discussed in Chapter 30 on products liability- It means that a person who commits such a tort is liable whether there was any negligence or intention to cause harm. Examples are injuries resulting from a defective product and abnormally dangerous activities such as dynamiting, Crop dusting, fumigating, keeping wild animals, and emitting noxious gases or fumes into a settled community.
2. STRICT LIABILITY.
Strict liability is discussed in Chapter 30 on products liability- It means that a person who commits such a tort is liable whether there was any negligence or intention to cause harm. Examples are injuries resulting from a defective product and abnormally dangerous activities such as dynamiting, Crop dusting, fumigating, keeping wild animals, and emitting noxious gases or fumes into a settled community.
3. INTERFERENCE WITH CONTRACT OR BUSINESS RELATIONSHIP.
The tort of wrongful interference with a contract arises when a third party intentionally and unjustifiably interferes with the performance of a contract between two other persons which causes one of the persons to the contract not to perform. For example, coach Chuck Fairbanks has a five-year contract with the New England Patriots. The University of Texas wants to hire Fairbanks to coach its team and offers Fairbanks $75,000 more per year than he is getting with the Patriots, The university makes this offer knowing that Fairbanks has four more years to run on his contract. If the offer by the university interferes with the Fairbanks-patriot contract, the university will be liable for intentional interference with contractual relations.
The tort of wrongfUl interference with a business relationship arises when a person intentionally interferes With a business relationship between two parties. This relationship is not based on contract, because there is no binding contract between the parties. For example, while Fairbanks is negotiating a new contract with the Patriots, the university untruthfully tells Fairbanks that a person who knows nothing about football is buying the Patriots, that this will ruin the team, and that he, Fairbanks, should get out while he can and sign with the university. Fairbanks, concerned that the new owner will ruin the team, signs a contract with the university. The university is guilty of the tort of interfering with a business relationship.
Not every interference is actionable. For the defendant’s conduct to be privileged. however, it must be for justifiable ends and he or she must use justifiable means. For example, the end may be justifiable when the defen- dant carries on such an effective advertising campaign that one party breaches the contract with another party. The means may be justifiable by use of honest advertising.
The essential elements of fraud are (1) a false representation of a material fact, (2) made with knowledge of its falsity or made with inexcusable ignc- rance of its truth, (3) with intention that it be acted upon by the party deceived, (4) that the party deceived reasonably relied upon the representa- tion and acted upon it, and (5) that the party was thereby injured. It is one of the most frequently committed business torts. A per-son defrauded can recover damages for the harm caused or rescind the contract. Fraud can also be a crime if it is in violation of a penal statute.
Defamation is a communication by the defendant to a third person that injures the plaintiff in his or her good name or reputation. There are two types of defamation: libel and slander. Libel is written and slander is oral. The plaintiff must show that the defamatory matter was intentionally communicated by the defendant to some third person who understood it or that the defendant communicated through failure to exercise due care (e. g., left defamatory writing where it was reasonably forseeable that a third person may see it).
A publisher is one who is responsible for the original publication of a defamation and is strictly liable for that defamation unless he or she has a valid defense. One who repeats or republishes a defamation is also a publish. A disseminator merely circulates, sells, rents or otherwise distributes the material (e.g., dealer or distributor of books or newspapers).
A disseminator is held only to a standard of due care (i. e. , is liable only if he or she knew or should have known of the defamatory nature of the material). I)efamation has four defenses: (1) the plaintiff consented to the defama- tion; (2) the defamatory statement was true; (3) absolute privilege existed (statements made in the course of a judicial proceeding, statements made in a legislative proceeding, statements made by t.op rank executives as to a relevant communication in the discharge of their official duties, and defamatory statements uttered by either spouse about a third person to the other SEX»use); and (4) conditional or qualified privilege existed (e. g. , most courts hold that credit-rating agencies have a conditional privilege if acting in good faith to provide information upon to these having a legitimate interest.
Disparagement is a false statement intentionally made to others that causes harm to the plaintiff The false statement explicitly reflects on the plaintiff and tends to disparage the plaintiffs productive or service. For example, a buyer contemplates purchasing seller’s stock of merchandise but does not purchase because the buyer has read an advertisement in a newspaper in which a third party falsely asserts that he has a lien on the merchandise. The third party has disparaged the seller’s property in the goods. Disparagement differs from defamation in that defamation is generally available as a defense to reputation of a person, whereas disparagement usually involves business or property (defendant states that plaintiff’s watch has only 10 jewels when it really has 21 jewels). It differs from fraud in that the statement in fraud is made directly to the plaintiff, whereas in disparagement, the statement is made to a third party.
7. INTENTIONAL INFLICTION OF MEMAL DISTRESS.
Intentional infliction of mental distress permits a person to recover from one who by an extreme and outrageous act causes the plaintiff to suffer serious mental distress (e. g., a bloody. dead rat wrapped up as a loaf of bread for a sensitive person to open, a collection agency using threatening language designed to harass the debtor, abusive and threatening conduct used by an evicting landlord or an insurance adjuster).
False imprisonment is the unlawful confinement of one person by another. It is a misdemeanor at common law. Confinement can consist Of forcibly restraining a person within an enclosure with no reasonable means of escape. It can occur when a person is under no physical restraint but submits to a threat of force or asserted legal authority.
9.ASSAULT AND BATTERY.
An assault is the intentional action or conduct by one person directed at another that places him or her in apprehension of immediate bodily harm or offensive contact. For example, a manager of a store threatening a cus- torner with a punch in the nose would constitute an assault. The person in danger of the assault must have knowledge of the danger and be apprehenSive Of an imminent threat to his or her safety. For example, if a store manager tells a fellow employee that he is going to punch a customer in the nose, there is no assault. since the Customer is not aware of the threat. An assault can also be a crime. A battery is the intentional act by a person to cause harmful or offensive bodily contact and the contact is actually made. For example, a store manag-er who actually hits a customer has committed a battery. A battery can also a crime.
10. INVASION OF PRIVACY.
Generally the tort of intentional invasion of privacy can occur in four situations: ( 1 i when a person uses another’s name or likeness for profit without permission; 12) when an unreasonable publication occurs placing a person in a false light, such as putting a sign on the victim’s place of business accusing him or her of criminal activity that is not true; (3′ when there is a disclosure of private facts, such as a merchant’s putting a sign in his or her store window stating that a customer will not pay his or her bill;or (4) when there is an intrusion on the solitude or seclusion of another. such as eavesdropping on another’s private conversations.
A nuisance is the unreasonable interference with the possessory interest of an individual in the use or enjoyment of his or her land. The defendant’s conduct or use of the may have been intentional, negligent, or neither. Nearly anything can be a nuisance •e. g.. pollution of air with noxious fumes, gases. vapors, smoke, or soot; loud noise from a race track, especially at night: the storing of explosives in a residential neighborhood). The interference must annoying, offensive, or inconvenient to a “normal” person in the community. An unduly sensitive would not have a case. Also. the gravity of the harm must outweigh the utility of the defendant’s conduct, Factors considered are the of neighborhood, relative value of the properties. and the existence of alternatives by which the defendant might achieve his or her goals.
Conversion is the unauthorized and unjustified interference with the domin- ion and control of another’s personal property. It is a civil action for theft. Conversion can be committed by taking property wrongfully or fraudulent; destroying property; using another’s without authority; buying, receiving. or selling stolen property: delivering property to the wrong son; or refusing to surrender property to the rightful owner on demand.
11. TRESPASS .
Real property is land and anything attached thereto, such as minerals, trees, and buildings. The law protects the rights of the possessor of land to its exclusive use and quiet enjoyment. Section 158 of the Restatement of Torts, provides the following: One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally does any of the following:
1.Enters land in the possession of the other or causes a thing or a third person to do so.
2. Remains on the land. 3. Fails to remove from the land a thing which he is under a duty to remove.
12. UNFAIR COMPETITION.
Unfair competition is an intentional tort enabling the victim to sue for damages or for an injunction to stop the unfair practice. The tort does not attempt to prevent all competition, only that which the court deems unfair. The use of an employer’s trade secret by a former employee is an example of unfair competition, since it gives other competitors in the same business a competitive advantage, Other examples are imitating a competitor’s packaging of products, signs, advertisements, trade name, or trademarks.