Week 02 Discussion - Cyber Crime and Civil Liberties:
Is it possible to control cyber crime without some degree of restriction on traditional civil liberties?
Week 02 Individual Assignment - Tort Reform:
The following is a written assignment based upon the two attached articles. Your completed assignment should be 3-4 pages, double-spaced with all citations properly footnoted.
These articles have opposing views of the movement known as "tort reform". Summarize the respective positions and their strength and weakness. Has anything in the material changed your perception of tort reform?
The Right Wing's Drive for 'Tort Reform'
http:
www.thenation.com/article
ight-wings-drive-tort-reform
By Dan Zegart
October 25, 2004
The Nation
Tort Reform
http:
www.newsbatch.com/tort.htm
Updated May 2006
Your Internet Guide to an Understanding of Policy Issues
The Judiciary’s Role in American Government
Chapter 6 Overview
Basic Tort Concepts
Product Liability
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Basis and Purpose of Tort Law
A tort is a private, civil legal action to obtain monetary damages from a legal injury a person or property.
Damages Available:
Compensatory Damages: actual losses. Puts plaintiff in position he would have been in if the tort had not occu
ed. Special Damages: quantifiable such as lost wages, medical bills. General Damages: nonmonetary losses such as pain and suffering.
Punitive Damages: punish wrongdoer or outrageous conduct exemplary damages.
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Classification of Torts
Intentional.
Unintentional (negligence-no fault).
Strict Liability (absolute liability).
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Defamation: Publication of a false statement (oral or written) that injures a person’s good reputation.
Fact or Opinion?? Opinions are free speech and generally not actionable.
Slander is oral, Libel is written. Statements made on the internet may be libel.
Defamation
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Publication Requirement: third party must hear or see statement. An individual who re-publishes the statement may be liable.
Defamation – Damages
Libel Damages: presumed as a matter of law. Plaintiff need not prove she was actually injured. Reason: libel is “permanent” and continues to harm after statement made.
Defamation
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Defamation Defenses.
Truth is an absolute defense.
Statement was Privileged:
Absolute: judicial and legislative proceedings. P.144
Public Figures: plaintiff must show statement made with “actual malice.” p.144
Defamation
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Person has the right to solitude. Breach of that duty is a tort.
Intrusion into private affairs or seclusion.
False Light.
Public disclosure of private facts.
Invasion of the Right to Privacy
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Appropriation
Use of another person’s name, likeness or other identifying characteristic, without permission, with benefit to user.
Degree of Likeness is distinguished by different courts.
Right of Publicity as a property right: focuses on commercial exploitation of likeness
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Fraudulent (Intentional) Misrepresentation.
Intentional deception of another that causes belief in a condition that is different from the condition that already exists.
Knowing misrepresentation of fact.
Intent to induce innocent party to rely.
Justifiable reliance by innocent party.
Causation and Damages.
Contrast: “puffery” which is not considered misrepresentation.
Fraudulent Misrepresentation
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Wrongful Interference with Contracts.
Valid, enforceable contract exists between two parties.
Third party knows about contract.
Third party intentionally causes either party to
each the original contract.
Wrongful Interference
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Wrongful Interference with Business Relationship.
Distinguish competition vs. predatory behavior. Predatory behavior is unlawfully driving competitors out of market.
To prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and product.
Defenses to Wrongful Interference: Interference was justified or permissible (bona fide competitive behavior).
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Unintentional Torts (Negligence)
Negligence occurs when plaintiff is legally injured due to defendant’s failure to live up to a reasonable standard of care causing foreseeable risk of injury.
Analysis:
Did defendant owe plaintiff a legal duty of care?
Did defendant
each that duty?
Did plaintiff suffer a legal injury?
Did defendant’s
each of duty cause plaintiff’s injury?
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Negligence: Duty of Care and Breach
Duty is based on reasonable person standard.
How would a reasonable person have acted under the circumstances?
Duty of Landowners: Warn Business Invitees of risks, and keep common areas safe. Exception: Obvious risks.
Duty of Professionals to clients (attorneys, CPA’s, doctors).
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Defenses to Negligence
Assumption of the Risk.
Not applied in emergency situations.
Superseding Cause.
Event must be unforeseeable.
Contributory Negligence (few jurisdictions).
Comparative Negligence (more common).
As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.
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Strict Liability
Liability without fault.
Courts apply strict liability based on activities involving extreme risk of injury. Applications include:
Blasting.
Dangerous Animals.
Product Liability
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Product Liability Based on Negligence
Manufacturers, sellers and lessors of goods can be liable for a defective good that causes injury.
Due Care: manufacturers must exercise due care in designing the product, selecting materials, production process, assembly, providing adequate warning labels. Adequate warning labels for ordinary person.
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Strict Product Liability
and Public Policy
Liability without regard to fault or standard of care.
Injured party can be 3rd party (not the buyer).
Assumption that:
Consumers should be protected against unsafe products.
Manufacturers and distributors should not escape liability for defective products, and
Manufacturers and sellers are in a better position to bear the costs of injury.
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Requirements for Strict Liability
Plaintiff must incur injury to self or property by use or consumption of the product
Defective condition must be cause
Goods have not substantially changed from time of sale.
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Defenses to Product Liability
Assumption of Risk.
Product Misuse.
Severely limited.
Comparative Negligence (Fault).
Commonly Known Dangers.
Sharp knives and guns.
Knowledgeable User Defense.
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