Basic Principles of Tort Law

1What is a tort? A civil wrongAn injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the partys property

Introduction

2A tort is a civil wrong committed against an individual or the individuals property. If a person brings a suit for a wrong committed against his/her, she/he may recover monetary damages.

What is a tort? Tort damages = monetary damagesCompensatory damagesPunitive damagesMay be recovered in intentional tort and strict liability cases

Introduction

3There are two types of damages Compensatory damages and punitive damages. Compensatory damages is compensation for the actual wrong done.

Punitive damages are designed to punish the wrongdoer. This type damage can be awarded in addition to compensatory damages. Punitive damages may be recovered for intentional torts like sexual harassment and strict liability cases.

3 categories of tortIntentional tortsUnintentional torts (negligence)Strict liability

Relationship between Tort and Criminal LiabilityThe primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harmsIntroduction

4While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms

There are three categories of torts intentional, unintentional (negligence) and strict liability. I will discuss each categories of tort in upcoming slides. The type of tort committed determines the type and amount of damages awarded.

There is a relationship between Tort law and Criminal law. Some tort are also crimes. The primary purpose of criminal law is to punish. The primary purpose of tort law is to provide monetary relief for the damages incurred.

Intentional TortsA category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiffs injuries The law protects people from unauthorized touching, restraint, or other contact

The law protects a persons reputation and privacy

5An intentional tort require an intentional act. That is, the person must have the intent to do wrong and cause injury. There are intentional torts against persons and intentional torts against property.

The two intentional tort against persons are assault and battery.

The Three intentional torts against property are trespass to land, trespass to personal property and conversion of personal property.

Intentional Torts Against PersonsAssault

The threat of immediate harm or offensive contact, or

Any action that arouses reasonable apprehension of imminent harmActual physical contact not necessaryThreats of future harm not actionable

6An assault is the threat of immediate harm or an offensive contact or any action that arouses reasonable fear of harm. There does not have to be actual contact to constitute an assault.

ExampleSuppose a 6 5, 250 pound man makes a fist and threatens to punch a 5, 100 pound woman. If the woman is afraid, can she sue him for assault?

7Yes. There is a offer/threat to do harm and there is a reasonable apprehension of fear.

ExampleSuppose a 6 5, 250 pound man makes a fist and threatens to punch a 5, 100 pound woman. If the woman is afraid, can she sue him for assault?If she is a black-belt karate champion and laughs at the threat and is not afraid, can she sue him for assault?

8No. No apprehension of fear.

Intentional Torts Against PersonsBattery The unauthorized and harmful or offensive physical contact with another person

Intentionally hitting someone is considered battery because it is harmful

Direct physical contact between victim and perpetrator unnecessary

9The second type of intentional tort is a battery. A battery is an unauthorized and harmful or offensive contact with another. There may be direct or indirect contact to constitute a battery.

Battery The unauthorized and harmful or offensive physical contact with another personIntentionally hitting someone is considered battery because it is harmfulDirect physical contact between victim and perpetrator unnecessaryThrowing a rockShooting an arrow or a bulletKnocking off a hatPulling a chair out from under someonePoisoning a drink

Intentional Torts Against PersonsBattery The victim need not be aware of the harmful or offensive contactAssault and battery often occur together

Transferred intent doctrineApplies when a person acts with intent to injure one person but actually injures anotherThe law transfers the intent from the target to the actual victim of the act

10Battery The victim need not be aware of the harmful or offensive contact (e.g., it may take place while the victim is asleep)Assault and battery often occur together, but they dont have to

Transferred intent doctrineApplies when a person acts with intent to injure one person but actually injures anotherThe law transfers the intent from the target to the actual victim of the act

ExampleOn Sep 16, 1975, the Baltimore Orioles baseball team was at Bostons Fenway Park to play the Boston Red Sox. Ross Grimsley was a pitcher for the visiting Orioles. During the game, Grimsley was warming up in the bullpen, throwing pitches to a catcher. During this warm-up, Boston spectators in the stands heckled Grimsley. After Grimsley had completed warming up and the catcher had left from behind the plate in the bullpen, Grimsley wound up as if he were going to throw the ball in his hand at the plate, then turned and threw the ball at one of the hecklers in the stands. The ball traveled at about 80 mph, passed through a wire fence protecting the spectators, missed the heckler that Grimsley was aiming at, and hit another spectator, causing injury. Can the spectator sue Grimsley?

Unintentional Torts (Negligence)Where a person is liable for harm that is a foreseeable consequence of his/her actions

Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do

12The second type of tort is the unintentional tort. An unintentional tort occurs when ones negligent act causes harm to another. Negligence occurs when one fails to do something a reasonable person would do or does something a reasonable person would not do. A person is liable for harm that is the foreseeable consequence of his/her action.

The individual employee within a company who performs the work of the safety, health and environmental professional is probably not going to be sued or held legally liable in the event of injury to a worker or others. Workers compensation laws usually prevent lawsuits against ones fellow employees'. And lawsuits against corporations do not usually include claims against the individual employees who acted for the company; it is usually simpler and faster to sue the corporate defendant alone. Most corporate systems include provisions that indemnify or pay the costs of defense of employees who are sued when performing their assigned duties.

Page 36 Accident Prevention Manual for Business and Industry: Administration and Programs, 12 ed., 2001, Philip Hagan, John Montgomery, James OReilly

Unintentional Torts (Negligence)Elements of negligence

Duty of care Breach of dutyHarm or injury

13The elements of an unintentional Torts (Negligence) are Duty of care, breach of duty and harm or injury. Before one can be liable for an unintentional tort, the accuser must prove that the person had a duty to behave in a certain manner, failed to behave in that manner and as a result, the accuser or his property was injured/damaged.

Elements of negligenceDuty of care The obligation we all owe each other not to cause any unreasonable harm or risk of harmBreach of dutyA failure to exercise care or to act as a reasonable person would actHarm or injuryThe plaintiff must suffer personal injury or damage to his/her property to recover monetary damages for the defendants negligence

Unintentional Torts (Negligence)CausationA person who commits a negligent act is not liable unless this act was the cause of the injuries.Causation in fact or actual causeProximate cause or legal cause

14The injury or damage must have been caused by the person who behaved negligently before the plaintiff may recover. There are two types of causations Actual cause and proximate cause.

Actual cause means there is a cause and effect relationship.

Proximate cause is determined by whether the damage was foreseeable.

CausationA person who commits a negligent act is not liable unless this act was the cause of the injuries.Causation in fact or actual causeCause and effect relationshipProximate cause or legal causeA point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his/her actionsTest is foreseeabilitySimple NegligenceFailure to use the degree of care an ordinary person would exerciseGross NegligenceShow indifference to othersShocks fair-minded peopleWillful and Wanton NegligenceConsciously acts with reckless indifference to the consequencesKnowledge indicated probable injury to others

Degrees of NegligenceAdministration Textbook @ Page 14215Unintentional Torts (Negligence)Professional malpractice

Reasonable professional standardBreach of this standard constitutes professional malpractice

16Another type of unintentional tort is professional malpractice. Doctors, Lawyers and accountants may be liable if they failed to maintain a professional standard of care.

Professional malpracticeReasonable professional standardBreach of this standard constitutes professional malpracticeMedical malpracticeLegal malpracticeAccounting malpracticeSpecial Negligence DoctrinesNegligence per seTort where the violation of a statute or ordinance constitutes the breach of the duty of care

Dram Shop Acts

Social host liability

Guest statutes

17Some statutes hold a person liable or negligent if that person violate the statute. This doctrine is called negligence per se. Some examples of negligence per se laws are the Dram shop Act, Social Host Act and Guest Statute.

The Dram Shop Act holds taverns and bartenders liable for injuries caused to or by patrons who are served too much alcohol.

Negligence per seTort where the violation of a statute or ordinance constitutes the breach of the duty of careFailing to fix faulty sidewalk if required by lawDram Shop ActsStatute that makes taverns and bartenders liable for injuries caused to or by patrons who are served too much alcoholSocial host liabilityRule that provides that social hosts are liable for injuries caused by guests who become intoxicated at a social functionThe alcohol served as the social function must be the cause of the injuryGuest statutesStatute that provides that if a driver of a vehicle voluntarily and without compensation gives a ride to another person, the driver is not liable to the passenger for injuries caused by the drivers ordinary negligence

Defenses Against NegligenceSuperseding or intervening eventA unforeseeable event that is the actual cause of the injuryAssumption of the riskCan be used against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury

18 There are two defenses against negligence claims Superseding or intervening eventA unforeseeable event that is the actual cause of the injuryExample: an avid golfer negligently hits a spectator with a golf ball, knocking the spectator unconscious. While lying on the ground waiting for an ambulance to come, the spectator is struck by a bolt of lightning and killed. Is the golfer liable for anything?

Assumption of the risk occurs when one knowingly and voluntarily enters into or participates in a risky activity that results in injury. If the defendant shows the plaintiff assumed the risk the plaintiff may not be liable. Frisbee Football.

Assumption of the riskCan be used against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injuryAssumptionsPlaintiff had knowledge of the specific riskPlaintiff voluntarily assumed that riskExamples: inherently dangerous sports or activities

Strict LiabilityLiability without faultParticipant in a covered activity will be held liable for any injuries caused by the activity even if he/she is not negligentRationale

19The third type of tort is Strict liability. Strict liability means that if an individual participates in a covered activity, he/she is liable for the consequences of his/her actions. Negligence is not required.

Liability without faultParticipant in a covered activity will be held liable for any injuries caused by the activity even if he/she is not negligentRationaleThere are certain activities that can place the public at risk of injury even if reasonable care is takenThe public should have some means of compensation if such injury occursExamples: crop dusting, blasting, storage of explosives, keeping wild animals as pets, etc.

Effect of Violating Safety Standards on Tort LiabilityCriminal CulpabilityNegligence CrimesCivil SuitAdministrative Actions of Federal AgenciesParallel systems in statesOSHA Publicizes PenaltiesPreventive Deterrent EffectWillful, Serious and RoutineThousands to Millions of $$$$15 days to challenge by requesting a hearingMine Safety & Health Administration, EPA, DOT, CPSC, NRC, etc.Citizen LawsuitsStrict Liability OffensesFraud or ConcealmentFederal Contract Debarment & Blacklisting

PenaltiesAdministration Textbook @ Page 144-14821

Questions

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