Introduction to Torts

Difference between criminal and civil law

Criminal Law Civil Law- Plaintiff is the state (e.g., - Plaintiff is private party

State v. Doe) (e.g., Doe v. Roe)- Guilty or Not Guilty - Liable or Not Liable- Guilty verdict results in - Liability results in

prison sentence paying damages (i.e., money)

- Prosecution must prove - Plaintiff only needs aguilt beyond a reasonable preponderance of doubt

doubt evidence (i.e., 51% or more)

For example

In the case of OJ Simpson, he was tried in two courts- one criminal and one civil. Criminal trial- He was declared innocent Civil trial

The parents of Ron Goldman, Fred Goldman and Sharon Rufo, brought suit against Simpson for wrongful death, and Brown's estate, represented by her father Lou Brown, brought suit against Simpson in a "survivor suit“.

The jury in the civil trial awarded Brown and Simpson's children, Sydney and Justin, $12.6 million from their father as recipients of their mother's estate. The victims' families were awarded $33.5 million in compensatory and punitive damages

How? In a criminal trial, the burden of proof has to be BEYOND A REASONABLE DOUBT, in a civil trial the proof has to be a preponderance of evidence (meaning that the existence of the fact in issue is more probable than not)

What do you think? If you’re found not guilty for a crime should you be found “liable” for essentially the same thing?

So, What Is a Tort?

Nope. These are tortes.

So, What Is a Tort?

Nope. This is a character from a Japanese children’s show.

So, What Is a Tort?

Here are some torts…

Person spits on man

Nuisance- both public and private

Definition of a Tort

The book defines a tort as1. A private wrong committed by one person against another. It involved ones person’s interference with another person’s rights. A tort will lead the wronged party to try and recover money as compensation for the loss or injury suffered

I define a tort as: All the crazy stuff that you can possibly imagine

happening to a person, and then suing the other person for $$$$

Sooo….

The law of torts is grounded in a person’s rightsLet’s review. We ALL have certain rights entitled to

us simply because we are members of a society.Some of our rights:

The right to be free from bodily harm The right to enjoy a good reputation The right to conduct business without unwarranted

interference The right to own property free from damage or trespass The right to keep another from interfering with our

enjoyment of life The right to be detained only with a reasonable amount of

time and reasonable grounds

Types of Torts- (Forgot to add these to your notes, please add the 3 categories of Torts)

There are a variety of torts, which can broadly be broken into the following three categories:

1. Negligent torts Negligent torts, as their name suggests, are torts that are

caused by the negligence of the tortfeasor, or person who commits the tort.

2. Intentional torts Intentional torts, also as their name suggests, are torts

caused intentionally by the tortfeasor.

3. Strict liability torts Strict liability torts are torts where the law has determined

that some activities are so dangerous that an individual engaging in those activities is liable for damages regardless of intent or negligence resulting in harm. A common example is blasting with dynamite.

Intentional Torts

Torts are classified as intentional and unintentional. Today we will only be looking at intentional torts and

strict liability tortsIntentional tort- occurs when a person knows

and desires the consequences of his or her act

Let’s look at some common intentional torts…

Assault and Battery

Assault and battery: two separate torts Tort of assault- occurs when one person deliberately leads

another person to believe that he or she is about to be harmed Example: rushing towards someone with a knife Tort of battery- involves the unlawful touching of another

person, even if the physical contact is not harmful Crime of assault vs. tort of assault: in a tort of assault the victim

MUST prove that the person meant to commit harm, otherwise, the victim has not been frightened, and no harm has resulted

Example of Battery

Student John and Student Jack are walking down the hall at school in opposite directions

The students accidentally bump shoulders as they pass each other

Student John reaches over and punches Student Jack in the stomach and tells him to be more careful next time

Was there: (1) Intent (2) A volition (a purposeful act) (3) a harmful or offensive contact (4) to the victim

Trespass

The wrongful damage to or interference with the property of another

Property includes anything you own

Real property includes land and things built on the land, growing on the land, or located within the land

Example: Hunting season is now (deer). So if I went on someone’s private land to hunt without their permission, the landowner could bring a lawsuit against me.

Nuisance

Anything that interferes with the enjoyment of life or property

Loud noises at night, obnoxious odors, etc.

Public nuisance- affects many people

Private nuisance- affects one person

Example: The Krispy Kreme on the corner of my street opened up a few years ago. After it was built, the lights that they had on in their parking lot were shining right into the neighbors windows. As a result, Krispy Kreme could have been sued (it was settled out of court, and the lights were moved) due to a public nuisance.

False Imprisonment

When police arrest someone without probable cause or a warrant, or when a person detains another person/or people without reasonable grounds and/or do not detain the suspect in a reasonable manner for a reasonable amount of time

Example: Mrs. Savitskie asks all Business Law students to come to a class meeting after school. Once everyone arrives I say “I suspect that some of you cheated on the last quiz. As punishment all of you must stay in this room for the entire weekend. If any of you try to leave I will fail you, and will also Tazer you when you attempt to leave. This should teach you a lesson!”

Was there: (1) Restrain, (2) plaintiff’s physical liberty, (3) and the harm plaintiff suffers is loss of freedom

Defamation

Defamation is divided into two categories: libel and slander

Libel: a false statement in written or printed form that injures another’s reputation or reflects negatively on that person ‘s character

Slander: a false statement is made orally that damages your reputation, is false, and is communicated to at least one other person

Examples: radio and tv, newspaper stories, videos, movies, photographs, signs, paintings, statues

Defamation, cont.

Some exceptions of privileged speech in which it is not considered defamation:

Senators and representatives on the floor of Congress Statements made in a court of law

People in the “limelight” also have more difficulty than an average person in proving damage to their reputation in defamation lawsuits

Public officials, judges, movie stars, singers, sports figures and other entertainers are considered in the public limelight

A U. S. Supreme Court case ruled that public figures must prove that false statements about them were made with actual malice. In other words, it must be proven false or with a reckless disregard for whether it was true

Public figures are held to a more difficult standard because they have voluntarily chosen a lifestyle that naturally exposes them to close scrutiny by the press.

Examples of Libel

The following are a couple of examples from California cases; note the law may vary from state to state.

Libelous (when false): Charging someone with being a communist (in 1959) Calling an attorney a "crook" Describing a woman as a call girl Accusing a minister of unethical conduct Accusing a father of violating the confidence of son

Not-libelous: Calling a political foe a "thief" and "liar" in chance encounter (because

hyperbole in context) Calling a TV show participant a "local loser," "chicken butt" and "big skank" Calling someone a "bitch" or a "son of a bitch" Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.

Invasion of Privacy

Interfering with a person’s right to be left alone, which includes the right to be free from unwanted publicity and interference with private matters

Examples of your rights of privacy: Agencies must get permission to use records for purposes other than those for which they were gathered, people in business who are entrusted with confidential records must make great efforts to ensure that the records are not made public

Privacy is not only public records, but also using your photograph, likeness or name without your permission for advertising, publicity, or publication purposes, also your right to privacy is violated when unauthorized people use the computer to gain access to confidential information

Example: You sit at my desk and see that I have left the PowerSchool login for the substitute to take attendance the day I am out. You take the login information and log in to my PowerSchool account and change the grades of you and your friends

Intentional Infliction of Mental Distress (IIMD)

To cause emotional distress: The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.

Example: Deante tells Ms. Savitskie that she better give him an A in the class or else he will shoot her parents and niece and nephew. Every day for a week Deante mimics pointing a gun and shooting. By the end of the week

Ms. S is so frightened that she has a panic attack and is rushed to the emergency room.

Strict Liability

Strict liability- activities that are so dangerous that the law will apply neither the principles of negligence NOR the rules of intentional torts

According to strict liability, if these activities injure someone or damage property, the people engages in the activities will be held liable, REGARDLESS of how careful they were and REGARDLESS of their intent

Examples: using explosives, keeping wild animals, storing highly flammable liquids in highly populated areas, injury from defects in products

Great example! In the news, there have been 40-50 deaths associated with the injection of (legal) steroids used, causing meningitis (leading to death). This pharmaceutical company is currently being sued for those deaths (very sad case if you haven’t read about it).

Defenses to Intentional Torts

ConsentSelf defenseDefense of OthersDefense of PropertyRecapture of Converted PropertyPrivilege of Public Necessity- acting to protect interests of the public

Questions?

Today’s assignmentComplete the Tort Hypothetical Assignment

answering a,b, c, d, for each of the 10 hypothetical situations

Torts: Fact or Fiction?

Raise your hand if you think the following actually happened:1. A woman sued a doctor for malpractice because he invited his

friend to watch him deliver her baby.2. A woman sued a railroad company because scales fell on her

on a railroad platform. A railroad worker had helped a young man, who happened to be carrying a bundle of fireworks, jump onto a moving train. While jumping on the train the young man dropped his package, which caused the explosion that caused the scales to fall.

3. A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver’s head.

4. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

Negligent Torts: Elements

There are four basic elements of a tort:1) Duty2) Breach3) Causation4) Damages

Negligent Torts: Duty

Everyone has a duty to exercise due care all of the time. What is due care?

Due care is the amount of care that a reasonable person would exercise under the circumstances. What is a reasonable person?

A reasonable person is not any real person or even the average person, but an imaginary prudent person who takes the precautions necessary to avoid harming another person or their property.

Negligent Torts: Duty

Can you think of examples of due care that each of the following people must exercise?:

1.A lifeguard at a municipal pool.2.A lumberjack felling a tree.3.An owner of an aggressive dog.4.A high school football coach.

Negligent Torts: Breach

Breach is the simplest of the four elements.Once you determine the standard of care, you

ask, did the defendant follow that standard of care?

For example, if the standard of care requires the owner of an aggressive dog to keep the dog on a leash and the owner does not do so s/he has breached the duty of care.

Negligent Torts: Causation

There are two types of causation:

Causation in fact; and Proximate cause

Negligent Torts: Causation

Causation in fact, also known as “but-for” causation, is pretty simple.

The question is, but for the defendant’s actions would the injury have occurred?

Example: A hits B in the shin with a golf club. B’s shin would not have been injured if A had not him in the shin with a golf club.

Proximate Cause

Proximate cause is a little more difficult. Ultimately, it is more of a policy question than

a legal question. The issue is where the law wants to cut off liability for a negligent actor.

Several theories exist regarding proximate cause:

1)Forseeability2)Direct Causation3)The “Danger Zone”

Negligent Torts: Causation: Hypo

This is Ken Griffey, Jr. Ken Griffey, Jr. likes to practice his swing in his

living room. Unfortunately, this sometimes leads to disaster…

Negligent Torts: Causation: Hypo 1

One day, while practicing his swing in his living room, Ken loses his grip on the bat. The bat flies into the sitting room and hits his wife’s friend in the head, causing minor injuries.

Q1: Is there causation in fact?

Q2: In there proximate causation?

Negligent Torts: Causation: Hypo 2

Ken did not learn his lesson when he injured his wife’s friend. Once again, during a practice session, Ken loses his grip. This time the bat flies through a window and hits the ladder his roofer is using to climb onto his roof. The roofer falls and breaks both his arms.

Q1: Is there causation in fact?

Q2: In there proximate causation?

Negligent Torts: Causation: Hypo 3

Ken, Ken, Ken. He keeps practicing, and keeps losing his grip. This time the bat flies into his neighbor’s yard. The bat hits his neighbor in the head just as he is squirting lighter fluid onto his grill. He squirts too much, which causes an explosion. In addition to his head injuries, he suffers burns from the explosion and there is some fire damage to his house.

Q1: Is there causation in fact for each injury?Q2: In there proximate causation?Q3: What if the fire had burned down the

neighbor’s house? Several neighbors’ houses?

Negligent Torts: Causation: Hypo 4

For some unknown reason, Ken is still practicing his swing in his house and he has a new neighbor, Eric, that loves to BBQ. It’s a perfect storm. And sure enough, Ken launches his bat through his window into his neighbor’s yard. The bat hits the BBQing neighbor, setting off another BBQ explosion. This time it kills the neighbor, and the neighbor’s wife is severely injured in the ensuing fire. As she is being wheeled to the ambulance she is struck by lightning.

Q1: Is there causation in fact for each injury?Q2: Is there proximate cause for each injury?Q3: Could Jane, another neighbor, sue Ken because she

can no longer sell the new gas grill she handmade for Eric to Eric because Eric is dead?

Negligent Torts: Damages

The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount.

The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it’s not so easy to figure out how much eyesight is worth.

Negligent Torts: Damages: Hypo

Betty and Derek are walking to school. Steven is driving down the street talking to his friends in the backseat. One of Steven’s friends screams “Look out!” Steven reacts by turning the wheel of his car, which jumps the curb and pins Betty’s arm to the wall crushing it. What remains of Betty’s arm needs to be amputated.

Q1: How much is Betty’s arm worth?Q2: Does the answer change if Betty was a concert

pianist?Q3: What if Betty simply wanted to be a concert

pianist, but wasn’t one yet?

Negligent Torts: Defenses

Even where the plaintiff has proven all of the elements of a negligent tort, the defendant may be found not to be liable or the defendant’s liability may be reduced based on certain defenses. These defenses include:1. Contributory Negligence2. Comparative Negligence3. Consent4. Illegality