USINESS AW

TEXT AND CASES

Fourteenth Edition

CLARKSON MILLER CROSS  

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
 Tort: A civil wrong, not arising from a
vi phạm hành chính, not riminal law

breach of contract or other agreement
or a breach of a legal duty, proximately
causing another person harm or injury.
 Purpose of Tort Law: To provide a
remedy (damages) for injury to a
bồi thường thiệt hại (damages phải có 's')

protected interest. 
những lợi ích đc pháp luật bảo vệ

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
2
 Damages Available in Tort Actions:
những trường hợp bồi thường thiệt hại

bồi thường

 Compensatory: Reimburse plaintiff for

hoàn trả

actual losses.
• Special: For quantifiable losses, such
as medical expenses, lost wages, and
lương bị mất khi nghỉ việc dưỡng thương

benefits.
• General: For nonmonetary aspects,
such as pain, suffering, and
reputation.  3
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
  Damages Available in Tort Actions:
 Punitive: Punish the wrongdoer and
deter similar conduct in the future.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
4
  Legislative Caps on Damages: More
than twenty-five U.S. states have caps
on the amount of damages—both
punitive and general—that can be
awarded to the plaintiff.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
5
  Classification of Torts:
 Two broad classifications of torts:
intentional torts and unintentional
k cố tình, bao gồm cả các TH do cẩu thả

torts (those involving negligence).

cẩu thả

 Classification of a tort depends largely

on how the tort occurs and the
surrounding circumstances.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
6
 ng thực hiện hành vi

 Defenses:
có thể tự bào chữa bằng các lý do pháp luật cho phép

 The defendant can raise a number of

legally recognized defenses.
 A successful defense releases the
defendant from partial or full liability
for the tortious act.
 Available defenses vary depending on
the tort involved. 7
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
 hành vi cố tình mà có đối tượng cụ thể

 Intentional Tort: The tortfeasor (person

committing the tort) must “intend” to
commit the act:
 He intended the consequences of his
cố tình gây ra hậu quả

act; or = strongly: biết 1 cách chắc chắn sẽ có 1 hậu quả xảy ra và cố tình để
mặc hậu quả đó xảy ra
 He knew with substantial certainty that
certain consequences would result. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
8
  Transferred Intent: Intent of tortfeasor is
transferred when he intends to harm
person “A” but unintentionally harms
person “B” as well.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
9
 Assault:
tấn công, hành hung


 Any intentional and unexcused threat of

tạo ra 1 mối nguy cố tình và k có 1 excused nào về thiệt hại gây ra ngay lập tức

immediate harmful or offensive

bằng cả lời nói và hành động
contact—whether words or acts—that
create a reasonably believable threat.
tác động đến cơ thể, con người

 No physical contact is necessary for an

assault to occur.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
10
 bạo hành

 Battery is the completion of the assault:

 It is unexcused and harmful or offensive
physical contact intentionally
performed.
 The contact can be made by the
defendant or by some force set in
motion by the defendant.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
11
 bắt giữ người trái phép

 False Imprisonment:
 The intentional confinement of
another person or restraint of k có sự xem xét 1 cách hợp lý

another person’s activities without

justification.
 The confinement may occur through
the use of physical barriers, physical
restraint, or threats of physical force.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
12
  Infliction of Emotional Distress: An
đến mức độ extreme
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. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
13
  Infliction of Emotional Distress:
Ngoại lệ: 1 tu chính án (điều luật sửa đổi bổ sug vào hiến pháp của Mỹ)

 The First Amendment’s guarantee of

hạn chế các yêu cầu liên quan đến tổn thương về mặt tinh thần
freedom of speech limits emotional
distress claims when the outrageous
conduct consists of speech about a
bao gồm lời nói của các hình tượng đại chúng (như tổng thống)

public figure.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
14
 phỉ báng, nói sai

 Defamation: Defamation involves

xâm phạm 1 cách sai trái đến danh tiếng tốt của 1 ng nào đó
wrongfully hurting a person’s good
reputation.
 Law imposes duty to refrain from making
false statements of fact about others.
 Orally breaching this duty is slander;
nói xấu bằng miệng

breaching it in print or media (and nói xấu trên mạng, truyền thông

Internet) is libel. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
15
 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.
phí bảng với ng khác ngoài ng bị phỉ báng
 The statement was published to at least one person
other than the plaintiff.
hình mẫu của công chúng
 If the plaintiff is a public figure, she or he must also
phải chứng minh đc sự ác ý của ng phỉ báng public figure
prove actual malice. 16
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
  Defamation: Published statement must
be a fact. Statements of opinions are
protected speech under the First
Amendment and not actionable.
 Publication Requirement: The false
statement must hold an individual up
to hatred, contempt, or ridicule in the
community and be “publicized”
(communicated) to a third party. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
17
  Damages for Libel: General damages
are presumed and the plaintiff does not
have to prove actual injury.
 Damages include compensation for
disgrace, dishonor, humiliation, injury
to reputation, and emotional distress.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
18
  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. 19
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
 Defenses to Defamation:
 Truth is generally an absolute defense for
defamation.
 Privileged (or Immune) Speech.
• SEE MCKEE V. LAURION (2013).
 Absolute Privilege.
 Qualified Privilege.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
20
 Defenses to Defamation:
 Absence of Malice: False and defamatory
statements made about public figures are
privileged unless they are made with
actual malice (knowledge of falsity OR
reckless disregard of the truth or falsity).

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
21
  Invasion of Privacy: Common law
recognizes four acts that qualify as
improperly infringing on another’s
privacy. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
22
 Invasion of Privacy:
 Intrusion on individual’s affairs or seclusion.
 Publication of information that places a
person in false light.
 Public disclosure of private facts.
 Appropriation: Use of another’s name,
likeness, or other identifying characteristic
for commercial purposes without the
owner’s consent.
k có sự đồng ý của ng chủ sở hữu

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
23
  Fraudulent Misrepresentation (Fraud):
Intentional deceit, usually for personal
gain. This tort has several elements.
 Misrepresentation of material fact.
 Intent to induce another to rely on the
misrepresentation.
 Justifiable reliance by innocent party. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
24
  Fraudulent Misrepresentation (Fraud):
 Damages suffered as a result of
reliance.
 A causal connection between
misrepresentation and the injury
suffered.
 Fraud is more than just puffery (“seller’s
thổi phồng, chém gió

talk”).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
25
  Abusive or Frivolous Litigation:
 Torts related to abusive or frivolous
litigation include:
• Malicious prosecution.
• Abuse of process.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
26
  Wrongful Interference with a
Contractual Relationship Occurs When:
 Defendant knows about contract
between A and B;
 Intentionally induces either A or B to
breach the contract; and
 Defendant benefits from breach.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
27
 Wrongful Interference with a Business
Relationship Occurs When:
 Established business relationship;
 The defendant uses predatory methods
to cause the relationship to end; and
 Plaintiff suffers damages.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
28
  Defenses to Wrongful Interference:
 The interference was justified or
permissible.
 Bona fide competitive behavior (such
as marketing) is a permissible
interference even if it results in the
breaking of a contract.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
29
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
30
 xâm phạm

 Trespass to Land: Occurs when a person,

without permission:
đích thân xâm nhập

 Physically enters onto, above, or below

the surface of another’s land; or
 Causes anything to enter onto the land;
or
ở lại hoặc để gì ở lại cái land đó

 Remains—or permits anything to

remain—on the land. 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
31
 Liability for Harm: A trespasser is generally
liable for damage caused to the property and
chịu trách nhiệm cho thiệt hại

generally cannot hold the owner liable for

k bắt chủ nhà chịu bất cứ tổn thất, thiệt hại j của ng xâm nhập

injuries sustained on the premises.

 Many jurisdictions use a reasonable duty of
care rule that varies depending on the
status of the parties. Property owners may
be liable for objects that attact children
under the attractive nuisance doctrine. 32
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
 Defenses to Trespass to Land:
 The trespass is warranted (necessary) to
bào chữa: xâm nhập để cứu ai đó đang nguy hiểm
assist some in danger.
 The trespasser is a licensee (such as a
utility service person).

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
33
  Trespass to Personal Property:
 Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
• Conversion. 
• Failure to return property. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
34
  Conversion:
 Wrongful possession or use of property
without permission.
 Failure to Return Goods:

 Even if the rightful owner consented to

the initial taking of the property, a
failure to return the property may still
be conversion.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
35
  Disparagement of Property: Occurs
when economically injurious falsehoods
are made about another’s product or
property rather than about another’s
reputation. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
36
 Disparagement of Property:
 Slander of Quality: Publication of false
information about another’s product
(trade libel).
 Slander of Title: Publication falsely
denies or casts doubt on another’s legal
ownership of property, resulting in
financial loss.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
37
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
38
 Unintentional Tort: A wrongful act the
tortfeasor committed without knowing its
wrongfulness or without intending to commit
the act.
thất bại trong việc đáp ứng nghĩa vụ phải quan tâm tới

 Negligence: Failure to live up to a required

duty of care that a reasonable person would
exercise in similar circumstances. Intent is
not required, only the creation of risk of the
consequences experienced by the plaintiff.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
39
 nguyên đơn phải chứng minh đc 4 điều sau đây mới đc đi kiện
 The plaintiff must
có nghĩa vụ phải quan tâm
prove the following:
 Duty: Defendant owed plaintiff a duty of
care.
hành vi gây thiệt hại
 Breach: Defendant breached that duty.
mối qh nhân quả giữa hậu quả với việc làm sai
 Causation: Defendant’s breach caused
the injury.
thiệt hại thực tế
 Damages: Plaintiff suffered legal injury.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
40
 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.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
41
 Reasonable Person Standard: The degree
of care expected of a hypothetical
“reasonable person;” not necessarily how
this person would act, rather how this
person should act.
 Degree of care varies and depends on the
defendant’s occupation or profession, her
or his relationship with the plaintiff, and
other factors. 42
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
  Duty of Landowners:
 Landowners must exercise reasonable
care to protect persons on their
property from harm—even trespassers.
 Business owners must warn invitees of
potential harm on their premises.
 Obvious risks require no warning.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
43
 liên quan đến ngành nghề nào đó mà đòi hỏi phải có chuyên môn cao
 Duty of Professionals:
 Professionals may owe higher duty of
care based on special education, skill,
or intelligence.
 Breach of duty is called professional
malpractice. ex: bác sĩ mổ xong để quên kéo trong bụng bệnh nhân

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
44
 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? 
 Was the act the proximate (or legal)
cause of the injury? 
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
45
 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.
 Proximate Cause: When the causal
connection between the act and injury is
strong enough to impose liability.
 SEE PALSGRAF V. LONG ISLAND RAILROAD CO. (1928).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
46
 Forseeability:
 Defendant owes duty to protect plaintiff
from foreseeable risks that defendant
knew or should have known about.
• A foreseeable risk is one in which the
reasonable person would anticipate
and guard against it. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
47
 The Injury Requirement and Damages:
 To recover, plaintiff must show legally
recognizable injury.
 Compensatory damages are designed to
reimburse plaintiff for actual losses.
 Punitive damages are designed to punish
the tortfeasor and deter others from
wrongdoing.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
48
 ng có ý tốt, ng có nghĩa vụ phải thực hiện 1 hành động tốt
 Good Samaritan Statutes:
 Protects someone who renders aid to
an injured person from being sued for
negligence.
 Dram Shop Acts:

 Liability for injuries may be imposed

upon bartender and bar owner.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
49
  Assumption of Risk: A plaintiff that
knows the risk and voluntarily engages
in the act anyway may not recover from
the alleged tortfeasor.
 Risk may be assumed by express
agreement or be implied by the
plaintiff’s knowledge and conduct.
 CASE 6.3 TAYLOR V. BASEBALL CLUB OF SEATTLE, LP
(2006).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
50
  Superseding Cause: An unforeseeable,
intervening act that breaks the causal
link between defendant’s act and
plaintiff’s injury, relieving defendant of
liability.

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
51
 Contributory Negligence: Under common
law doctrine of contributory negligence, if
the plaintiff caused his injury in any way,
he was barred from recovery.
 Comparative Negligence: Most states
have replaced contributory negligence
with the doctrine of comparative
negligence.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
52
  Comparative Negligence: Comparative
negligence computes liability of plaintiff
and defendant and apportions
damages.
 Pure comparative negligence allows
plaintiff to recover even if his liability
is greater than that of defendant. 

© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
53
 Comparative Negligence:
 Modified Comparative Negligence:
Percentage of damages that the plaintiff
causes are subtracted from the total
award.
• 50 Percent Rule: Plaintiff recovers only
if liability is less than 50%.
• 51 Percent Rule: Plaintiff recovers
nothing if liability is greater than 50%.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
54