Torts

Individual & the Law

Unit IV

Torts: a civil wrong

Chapter 17

In Civil, when a person commits a wrong, it’s called a TORT

The harmed person is the PLAINTIFF The Plaintiff seeks judgment against the

DEFENDANT (wrongdoer) A guilty defendant in tort/civil law doesn’t go

to jail, they have to pay DAMAGES – money to compensate for the wrong they did

The Idea of Liability Tort law deals with basic questions

Who should be responsible or LIABLE for harm caused by human activities

How much should the responsible person have to pay

Almost any activity cam be a source of harm and therefore of tort liability Driving a car Operating a business Speaking Writing Using property

Tort law provides the injured party with a REMEDY – something to make up for what was lost

Failure to exercise reasonable care may result in legal LIABILITY. The person harmed may sue the person who acted

unreasonably for damages Less tangible costs – such as emotional suffering –

may also be a cost of an injury

Legal responsibility for harm – LIABILITY - is not the same as moral responsibility A person may be morally at fault for harming

someone but not civilly liable for the injuries. You lie to a friend about the correct time, causing her to

miss a job interview and not get a job The lie is morally wrong and would cause harm, but

would not result in civil liability

The agreement reached in tort law is called a settlement

Settlements are much more common that trials in tort law Approximately 90% of tort cases filed in court are

settled without a trial

The Idea of Torts: Yesterday, Today, and Tomorrow Tort law is generally based on COMMON LAW

This is law made by judges through court decisions

These decisions become precedents used to decide future cases

Tort law evolved over time, reflecting changes in both technology and social values

Tort law continues to balance usefulness against harm How safe must a drug be before the manufacturer

is not considered legally responsible if the drug injures someone? If a drug is discovered that saves the lives of many

cancer patients but causes the deaths of some, should the drug manufacturer be liable for the deaths?

Tort law tries to preserve individual choice Labels on the dangers of smoking on cigarette packages

Tort cases often involve a clash of values and interests

Types of Torts An INTENTIONAL WRONG occurs when a

person acts with the intent of injuring a person, his or her property, or both

The most common tort is NEGLIGENCE – an unintentional tort Occurs when a person’s failure to use reasonable

care causes harm

STRICT LIABILITY applies when the defendant is engaged in an activity so dangerous that there is a serious risk of harm even if he or she acts with utmost care

Three groups of people face strict liability Owners of dangerous animals People who engage in highly dangerous activities Manufacturers and sellers of defective consumer

products

Taking Your Case to Court Tort law is Civil Law Who can be sued?

Almost anyone Individuals Groups of people Organizations Businesses Government

Plaintiffs typically look for those with “deep pockets” to sue – people who can afford to pay the damages

People can sue employers for torts committed by employees in the course of their employment The reason is that the employer is in a better position

than the employee to handle the cost of the suit. Children commit torts and may be sued for

damages To recover damages from a minor

One has to prove the child acted unreasonable for a person of that age and experience

Because most children do not have very ‘deep pockets’, plaintiffs also sue the child’s parents

Certain defendants are immune from some kinds of tort suits Suits within families and against the government

Parents and children cannot sue each other The President, Federal Judges, and Members of

Congress are totally immune from tort liability for acts carried out within the scope of their duties Jones v Clinton, 1997 – the Supreme Court ruled a sitting

President can be sued for stuff he may have done BEFORE he was president

The FEDERAL TORT CLAIMS ACT has made it so the federal gov’t can be held liable in civil actions for negligent acts or omissions by gov’t employees

CLASS ACTION SUIT is where many people have been injured/wronged and they band together to sue the wrongdoer

Some attorneys for plaintiffs will work for a CONTINGENCY FEE – meaning they will only be paid fi they win the case – usually 30-40% of the winnings.

Insurance Liability insurance is purchased by many

Americans in various forms all the time The people pay insurance premiums ‘just in

case’ they need the insurance to cover something they’ve done Malpractice – a form of liability insurance

purchased by doctors, lawyers, and other professionals

Manufacturers liability is to cover injuries that may be caused by faulty products

Homeowners and Renters insurance covers loss and damage to property

Auto insurance is the most important liability insurance purchased Covers damage you do to people and property Limits on how much a person can collect

A limit on injuries per person A limit on total injuries to all people involved in the accident A limit on property damage per accident

Medical coverage pays for your own medical expenses resulting from accidents involving your car or the one you’re driving Also pays for passengers in your car regardless of fault

Collision coverage pays for damage to your own car, even if the accident was your fault Can lower the payments each month by getting a higher

deductible – what you must pay before the insurance money kicks in

Comprehensive coverage protects you against damage or loss to your car from causes other than collisions

Uninsured Motorist coverage protects you from other drivers who do not have insurance or do not have enough insurance

No-Fault insurance pays up to a certain amount for injuries your receive in an accident regardless of who’s fault the accident is

Workers’ Compensation Every state has a workers’ compensation system

that automatically compensates employees who are injured on the job Employers make regular payments to the state or

private companies to cover this if it happens Workers can usually recover for their injuries even if

they were negligent The amount of money awarded for a specific injury is

limited according to a schedule set up by the state Workers cannot usually recover additional

damages from the employer Workers’ compensation is the EXCLUSIVE REMEDY for

on-the-job injuries

Intentional Torts

Chapter 18

Types of Damages Intentionally – on purpose

Compensatory Damages are reward for intentionally harming someone. These damages include

Lost wages Pain Suffering Medical bills

Nominal Damages are rewarded as a token amount – symbolically No harm was really caused, but the action was wrong.

Punitive Damages are awarded to punish the defendant for malicious, willful or outrageous acts even if no real harm was done.

Torts that Injure Persons Battery is when a person intentionally causes a

harmful or offensive contact with another person. Assault occurs when a person intentionally puts

someone in fear of an immediate harmful or offensive act

Infliction of Mental Distress is kind of a new tort and it’s when someone intentionally uses words or actions that are meant to cause someone fright, extreme anxiety, or mental distress. Actual physical injury is NOT required

False Imprisonment protects someone from being held against their will. Does not include arrest and jail

Torts Related to Defamation Two kinds of defamation

Slander is when oral statements harm someone’s reputation

Libel is written defamation

Torts that Harm Property Tort law protects your property in two ways

It protects against interference with the owner’s exclusive use of the property

It protects against the property’s being taken or damaged Three kinds of property covered by tort law

Real Property – land and the items attached to it Personal Property – property that can be moved Intellectual Property – the ownership interest in creations

of a person’s mind. Real Property Offenses include

Trespass Nuisance Injunctions can stop the real property offenses

Attractive nuisance – a law that allows for something to get in the way temporarily until the overall problem can be fixed. Example is fencing in a construction site until the job is

completed.

Personal Property offenses include Conversion – someone exercises control over the

personal property of another person Reasonable Force can be used to protect personal

property What reasonable force is depends on the circumstances

surrounding the crime In general, deadly force cannot be used to protect

personal property

Intellectual Property is creations of the mind and includes: Patents which are granted to people who invent

things. The invention must be novel (new) for a patent to be

issued Grants the inventor a monopoly on the product for 20

years Copyrights which are granted to authors and

composers Works do NOT have to be novel/new to receive a

copyright. Works only need to show some slight spark of creativity Exceptions to the exclusive rights of a copyright holder

are: First Sale means that once the copyright owner sells a coy

of their work, the lawful owner of the particular copy can make further copies and sell them

Defenses to Intentional Torts Consent is the most common defense

The plaintiff consented to the act so they gave up the right to sue later

Privilege justifies conduct that would otherwise be a tort because the defendant’s interests or those of the public require it and because public policy is best served by permitting such behavior

Legal authority is a privilege that can be used to protect property and such

Self-defense is the best known defense. Allows someone to come to the rescue of another person and to use the same amount of force the victim could have used to repel the attacker

Defense of Property Deadly force is never allowed here

Negligence

Chapter 19

Elements of Negligence For a plaintiff to win a negligence action

against the defendant, each of the following elements MUST be proven by a preponderance of evidence: Duty – the defendant owed a duty of care to the

plaintiff Breach of Duty – the duty was breached (violated)

by the defendant’s conduct Causation – the defendant’s conduct caused the

plaintiff’s harm Damages – the plaintiff suffered actual damages

Duty and Breach Negligence law is primarily concerned with compensating

victims who are harmed by a wrongdoer’s action or inaction that breaches the standard of reasonable care

The Reasonable Person Standard Everyone has a duty toward everyone else in society

The duty to act reasonably The law has developed an imaginary creature to help judge

whether conduct is negligent The reasonable person of ordinary prudence or carefulness The reasonable person considers

How LIKELY a certain harm is to occur How SERIOUS the harm would be The BURDEN involved in avoiding the harm

The likelihood and seriousness of the harm are balanced against the burden of avoiding the harm

The law assumes that reasonable people do not break the law!

Causation When considering the element of causation,

two separate issues are looked at CAUSE IN FACT – if the harm would not have

occurred without the wrongful act, the act is the cause in fact

PROXIMATE CAUSE – there must be a close connection between the wrongful act and the harm caused The harm caused must have been a foreseeable result

of the act or acts

Damages The plaintiff should be restored to his or her

pre-injury condition The court allows for the recovery of

Hospital bills Lost wages Damage to property Reduced future earnings Other economic harm

The court may allow for the recovery of Pain and suffering Mental distress Permanent physical losses

Defenses To Negligence Suits Contributory Negligence is a traditional legal

defense If it can be proven that the plaintiff contributed toward

the harm suffered, then the defendant does not have to pay damages. Usually used when both parties are at fault Some states no longer consider contributory negligence

Comparative Negligence divides the loss according to the degree to which each person is at fault. This sometimes involves counterclaims – both parties

filing suits against each other Assumption of the Risk is when a person

voluntarily encounters a known danger and decides to accept the risk of that danger

Strict Liability

Chapter 20

Dangerous Activities Strict Liability means that the defendant is

liable to the plaintiff regardless of fault. Strict liability applied to activities that are

unreasonable dangerous. Activities are considered unreasonably dangerous

when they involve a risk of harm that cannot be eliminated even by reasonable care They may be socially useful or necessary – like

demolition work Companies conducting dangerous activities know that

they are strictly liable so they build the cost into the price they charge for the work.

Toxic Torts have been developed to address harm resulting from the use of toxic chemicals and other hazardous materials

Animals The traditionally holds owners responsible for

any harm caused by their untamed animals. The situation is different for household pets

The owner of the pet is strictly liable only if he knew or should have known that the pet was dangerous or destructive “Every dog is entitled to one free bite” but the owner

may be liable for that first bite! Leash laws also make the owner responsible for the

pet’s behavior.

Defective Products Some attorneys specialize in product liability

law – representing consumers who have suffered from product-related injuries.

U.S. Consumer Product Safety Commission was created in 1972 to deal with the issue of product safety. Strict liability on companies is meant to ‘force’

them to develop safe products Courts have been reluctant to apply strict liability

to unavoidably unsafe products whose benefits outweigh the dangers vaccines

Defenses to Strict Liability The best defense is to argue that the plaintiff should

have to prove negligence in a particular case and that sound public policy does not require the use of a strict liability standard. It’s harder for a plaintiff to win a negligence suit because

there must be proof of the defendant’s fault Strict Liability Plaintiffs have to prove BOTH

Causation Damages So, the defense can show that there is no causation or

there are not damages Another defense for product manufacturers is that the

Consumer misused the product Consumer ignored clear safety warnings.

Torts and Public Policy

Chapter 21

As a matter of public policy (laws) the tort law system should serve to Compensate harmed people in a prompt and efficient way Fairly allocate benefits to victims and costs to wrongdoers Deter risky conduct

Critics of our current tort law claim The amount of money awarded to plaintiffs is sometimes

unreasonably high Going to court has become much too expensive with lawyers

getting too much of the money awarded Civil courts take too long to resolve disputes Tort law is so complicated that it can be difficult to determine

who is at fault The injured party should sometimes receive compensation for

a loss, regardless of whether the other party was at fault

Tort Reform The main goal of tort reform is to change the process of

settling claims No-Fault insurance laws were developed to eliminate the

need for law suits after auto accidents Mediation programs may allow parties to resolve conflicts

without going to court Medical Malpractice

As the size of awards increased the insurance premiums paid by doctors rose. Part of this increase is passed along to patients

This means higher payments for care Some people cannot afford to pay for the more expensive care

Sometimes this means higher health insurance premiums Some people cannot afford health insurance

As the price of medical malpractice insurance rose, some doctors have had to quit practicing because they can’t afford the insurance

The Cost of Safety Either by preventing injuries by paying safety

costs, or by treating injuries by paying for damages, costs are spread to consumers through higher prices at the cash register.

Tort law generally requires that a reasonable amount of money be spent on safety If the benefits of adding the safety precaution

outweigh they it would be reasonable to require this safety precaution and vice versa