A business tort is not a chocolate cake you bring to the office, Part 3: miscellaneous consumer injuries
Phew, we’ve covered the “big” torts regarding consumers. Alas, there are a few more torts that, as a business owner, you need to know of:
The Wisconsin Deceptive Trade Practices Act - this statute is also known as the fraudulent advertising statute, which indicates the commercial wrong it addresses (although it covers an array of other issues aside from fraudulent advertising). Essentially, if a salesperson makes a misleading, false, or deceptive advertisement (including face-to-face statements) to a consumer, the salesperson’s business will be liable for damages. Luckily, silence is not covered by the statute and neither is the usual sales “puffery.”
This statute is particularly pernicious to businesses because it has what is known as a fee-shifting provision. What does this mean for you, the business owner? It means that not only does the injured consumer get to recover any economic damages s/he suffers from the allegedly bogus representation, s/he also gets to recover attorney fees from you - if you lose, you get to pay the consumer’s reasonable legal fees. A very harsh penalty, indeed. Under this law, there is great value in honesty and silence.
Invasion of privacy - most folks think of the Constitution and the government when privacy is mentioned, but businesses can be liable for privacy invasion in certain instances. By and large, health-related industries are the most likely targets for invasion of privacy suits because they deal with extremely sensitive information about individual’s health matters.
Here’s the framework: (1) the business disseminates information about the plaintiff to the public at large, which can be done in a number of ways, including acts ranging from publishing internal memoranda to press releases to the local news outlets; (2) the information disseminated is private (ex: that someone has HIV); (3) the information disseminated is the kind that a reasonable person of ordinary sensibilities would find highly offensive (again, HIV diagnoses); and (4) the business acted unreasonably or recklessly with that information, given the information’s sensitive nature (a lack of a legitimate need for the public to know about such information). Other laws often come into play in invasion cases, such as federal health laws and the First Amendment. Further, companies often have privacy elements in contracts with customers which can further exacerbate an invasion tort matter.
Negligently provided services - a/k/a “malpractice” for non-professional service providers - the basic negligence rules apply here: (1) you have a duty of care your customers to not negligently perform your services for them; (2) you breach that duty of care to the customer; (3) there is a causal connection between your alleged negligence and the injury suffered by the customer; and (4) the customer suffered an actual injury. The lesson here is that your are under an obligation to perform your services with extreme care - don’t skimp on the work or you will run the risk of paying up.
As my three “consumer tort” cases show, businesses must walk a fine line when dealing with customers. Consumers in Wisconsin have many legal options available to them when they feel wronged by a business. However, one theme rings true through all of these business torts: honesty matters. Good sales skills are essential for a profitable business, but the law lays out boundaries. As always, the assistance of an attorney can prove invaluable in avoiding consumer lawsuits.
