Business Tort Liability

Tort in the French language means “a wrong.” In the layman term it is a wrong done to a person or the property either intentionally or unintentionally. There are provisions in the law to provide remedy for the damage or injury caused to a person or their businesses or their property against those who have done the damage. As stated in the beginning torts could be either intentional or unintentional in nature. Intentional torts would be those which are committed in full knowledge of the individual. On the other hand, unintentional torts are mostly caused due to negligence on the part of the person. Under the tort law, an injured party can file a civil suit against the accused and seek the monetary compensation for the wrong done to him or his property and business. In many cases the damages can be claimed for future as well as those relating to the medical expenses, loss of salary, mental and physical pain and other damages. In the event of death of a person due to these torts, their legal representatives or beneficiaries can take the action to recover the damages from the accused. (Cheeseman, 2013)

Potential Torts in business

Torts are broadly divided into two main types namely, Intentional Tort and Unintentional Tort. 

A) Intentional Torts: These types of torts are those which are committed by a person deliberately having a malicious intent to cause damage and injury to another person. The various types of intentional torts are as follows: (Cheeseman, 2013)

1) Assault- Assault refers to the threat of an immediate harm or an offensive contact or an action that would increase the chance of an imminent harm. In the case of an Assault, the actual physical contact may not be necessary.

2) Battery- Battery means a harmful and unauthorized direct as well as an indirect physical contact with another person like blowing one’s fist on another person that causes an injury to him or her is called battery. Indirect physical contact also would come under battery if there has been any injury caused to the person.

3) False Imprisonment- This refers to intentional confinement or putting the person in a prison or any other kind of restraint imposed by some person without the proper legal authority and justification or without that consent of the person is a false imprisonment. The confinement could happen by a physical force, threats, barriers etc. 

4) Shoplifting: Shoplifting refers to the pilferage of goods from the shop floor by the employees or the customers intentionally and not pay for it. These phenomenon causes severe losses to retail merchants The merchant protection status enacted in the USA, allows the merchants to stop and detain the suspected shoplifters if they have reasonable cause for suspicion and this confinement will not lead to false imprisonment claim against the merchant.

5) Misappropriation of the Right to Publicity- This kind of tort happens when a company uses the picture of a famous actor or a sports personality without the person’s knowledge and permission, the person has the right to sue the company and can recover the profits made by the company in using his picture or name for the advertisement.

6) Invasion of the Right to Privacy- According to the law every person has a right to live a life without undesired or unwanted publicity. Anybody who violates this right commits a tort of invasion of the right to privacy. These would include secretly taking someone’s photo or reading someone’s email without their permission.

7) Defamation of Character: Any false statement made by a person against another which damages the reputation and character of the other person comes under the purview of defamation of character. 

8) Intentional Misrepresentation or Fraud: Intentional misrepresentation is also known as fraud which means defrauding any person out of his money or property with the aim of cheating him is called intentional misrepresentation.

B) Unintentional Torts: Unintentional torts are mostly caused due to the negligence of the person. It is based on the principle that a person is liable for any harm whose consequences can be seen by him before committing that act. Various elements of an unintentional tort or negligence are 1) there was a duty of care owed to the victim, 2) there was a breach in the same duty of care, 3) the victim has suffered injury, 4) the accused due to his negligent act has caused this injury and 5) the negligent act of the accused is the proximate cause of this injury. (Cheeseman, 2013)

1) Duty of Care: In order to prove whether the accused is liable for negligence, it must be determined that the accused owed a duty of care to victim. Duty of care means an obligation not to cause any unnecessary or unreasonable harm or put the other person into a risk.

2) Breach of the Duty of Care: A breach of duty of care means failure to exercise this care by the accused. It also means failure to act as a reasonable person or failure to act when there was a need for the duty to act.

3) Injury to the victim: Negligence or unintentional tort can only be established if the victim has suffered some injury and these damages can be recovered monetarily from the accused. This damage and injury compensation would depend on the life and profession of the victim.

4) Actual Cause of injury is the accused: The law states that a person who has committed a negligent act is not liable under the court of law for unintentional tort unless it is proved that he was the actual cause of the incident.

5) Proximate Cause is also the accused: Under the law, a negligent person may not be liable for all the damages that would happen because of his negligent act. This is called the proximate clause. The usual test for this is foreseeability of the near future or further damage. These kinds of situations are determined by the court on a case-to-case basis.

Liability of the driver and the company

The given case is about Mr. Max Speed the driver of ABC taxi company who causes injury to one of the passenger Ms. Smith outside a downtown hotel due to his reckless driving and lack of attention towards the passenger’s safety while boarding the taxi. In this case Mr. Max Smith is liable under the law of unintentional tort or negligence on his part due to his inability to take care of the passenger in the car and causing injury to him. If we analyze the definition of unintentional tort caused due to negligence, this case satisfies all the five criteria necessary to establish negligence. The driver had the duty of care which he breached by speeding the taxi before the passenger could properly board.

This lead to an injury to Ms. Smith and the driver was definitely the actual and proximate cause for this incident. 

The company ABC Taxi is also liable under this case because of the act of its driver. The company failed to provide proper training to the driver in handling such situations when he sees another vehicle approaching from behind. They compromised on the safety of the passenger by employing a reckless driver who does not have the capacity to take the right judgement thus causing injury to the passenger. Hence Ms. Smith can sue both the driver and the company under the law of torts for the injury and damages caused due to negligence of Mr. Max Speed.

Mitigating potential Torts

There are various ways of mitigating the potential torts that may occur in a business. Firstly, the business should define what would be their liability in a particular incident. For example, the company may say that in case of loss or damage to one’s property due to use of our services, the company’s liability is limited to the cost of the service.

Another way of mitigating potential torts is through Torts insurance. This is an insurance cover against potential torts in future either by their own employees or associates. Another way of dealing with torts is to prove the happening of a superseding event. An example for this would be say a person is hit with a ball and becomes unconscious. Now when he is being taken to a hospital, he is struck with lightning and he dies. In this case the eventual death was due to a superseding event in the form of lightning and the person hitting the ball is not liable for the death of the victim. Hence in these ways a business can mitigate potential torts in future. (Handbook of Law, University of Phoenix)

Conclusion

The case of Mr. Max Speed and Ms. Smith deals with the subject of unintentional torts or negligence in common parlance. Torts generally arise both because of intentional as well as unintentional reasons. These torts have the potential to damage the reputation of a business and can have long term repercussions. Some intentional torts like assault can also lead to criminal liability for the accused. In the given case study, Mr. Max speed is held liable for unintentional tort or negligence in his duty of carrying passengers safely to their destination. Ms. Smith who suffered the injury of her hands has full right to sue both the company and the driver for this act.

References

Cheeseman, H. R. (2013). Business Law (8th ed.): Pearson.

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