Introduction to TortsChapter 18

Crimes vs. Torts A crime is a “public” wrong

committed against society (in addition to the specific victim)

A tort is a “private” wrong committed against an individual

Key Differences Parties Burden of Proof Remedies

Two Key Questions in Torts

1. Who is liable for harm caused by the activity in question?

Liable- Legal responsibility for an act

2. How much should the liable person have to pay? (damages)

What are the goals of awarding damages?• Compensation• Deterrence• In some cases, punishment

• Whenever a person or property is injured, someone has to pay for the costs associated with the injury

• Tort law the is concerned with determining who must pay and how much they are liable.

• Remedy- Something to make up for harm done, ordered by the court in a civil case

• Settlement- Mutual agreement between parties in a Civil law suit, prior to final judgment, usually to avoid a trial, a settlement is legally binding• 90 % of all civil cases end with a settlement versus

going to court

The Idea of Liability

Three Classes of Torts

Negligent tort - negligence Example 1: Mary carelessly runs a

red light and hits Tim’s car, damaging both the car and Tim.

Intentional tort - assault Example 2: Ben gets mad at Bart and

punches him in the nose.

Strict liability tort - defective (unreasonably dangerous) product Example 3: Joe takes an over-the-

counter medication and has an adverse reaction

Taking Your Case to Court

In a Civil Case the injured party [plaintiff] brings a law suit against the person that caused the harm [defendant]

Standard of Proof- Amount of evidence needed to win a case. Is much less in a Civil Case, simply more than 50% of the evidence must show that the defendant was liable.

A person can never go to jail for committing a Tort, only a Crime can send a person to jail. Remember some torts are also crimes, but must be tried in separate cases.

Who Can be Sued? Almost anyone can be sued including Individuals,

groups, organizations, businesses, and even units of government can be sued.

Plaintiffs may sue multiple defendants looking for the one with Deep Pockets

Sometimes a group of people will bring a lawsuit against a person or company. Class Action [law suit]- Lawsuit brought by one or more persons on behalf of a larger group [class]

Children can be sued, but to recover damages from a Minor a plaintiff must show the the child acted unreasonably for their age and experience.

Who is Immune? Parents generally cannot be sued by their

children

A spouse generally cannot be sued by their spouse

The State and Federal Government cannot be sued unless they Waive- Give up their right to be sued “The King can do no Wrong”

Federal Tort Claims Act makes the government liable for negligent acts by employees

Workers’ Compensation

Workers compensation works to automatically compensate employees who are injured on the job

Workers that are injured do not have to go to court to gain benefits, even if they were at fault

In exchange for this agreement workers usually give up the right to sue their employer for the injury

Most states limit the benefits for employees that fail to follow safety guidelines or may deny benefits if the employee was impaired by drugs or alcohol

Insurance Primer

Liability insurance - protects the insured against liability for negligent torts

CGL (comprehensive general liability) is carried by most businesses• Usually includes coverage for defective

products• Intentional torts are usually not covered

Malpractice insurance - specialized insurance for professionals (doctors, lawyers, etc.) Coverage up to policy limits

INTENTIONAL TORTSChapter 19

Damages in Intentional Tort Cases

Compensatory—damages that compensate the plaintiff for harm caused by the defendant

Examples Lost wages, medical bills, “pain and

suffering,” loss of consortium

Nominal—a small or “token” amount of damages awarded as a symbol of wrongdoing

Punitive—damages to punish the person committing the intentional tort

Intentional Torts—Injury to Persons

Battery—intentional harmful or offensive contact (touching)

Examples Shoving

Hitting

Slapping

Intentional Torts—Injury to Persons

Assault—action that puts another person in fear of an immediate harmful or offensive contact

Actual contact is not required

Intentional Torts—Injury to Persons

Infliction of emotional distress—words or actions intended to cause extreme anxiety or emotional distress

Conduct must be outrageous

Intentional Torts—Injury to Persons

False Imprisonment —intentional, wrongful confinement of a person against his will

Example: restraining a suspected

shoplifter Allowed, but must be

reasonably brief and use no greater restraint than necessary to protect property

Intentional Torts—Injury to Persons

Defamation—oral (slander) or written (libel) statements that are false, and which harm a person’s reputation

Must be a statement of fact, not opinion

“Public figures” must prove actual malice (intent to harm, not just intent to say something)

Intentional Torts—Injury to Property

Real property—land/real estate

Personal property—things that can be moved

Intellectual property—inventions and creative works

Intentional Torts—Real Property

Trespass—entry onto real property without owner’s permission

Can a trespasser sue you for damages if they hurt themselves while trespassing? Only for things like booby-traps Higher duties are owed to guests

and business invitees

Intentional Torts—Real Property

Nuisance—unreasonable interference with ability to use and enjoy property

Examples Repetitive loud noises at

unreasonable times of day Odors Plaintiff can recover damages

and/or receive injunctive relief (stop doing it!)

Intentional Torts—Personal Property

Conversion—unlawfully exercising control over another person’s personal property

May use reasonable force to protect property

Some states allow use of deadly force (“Make My Day” laws)

Intentional Torts—Intellectual Property

Infringement—unauthorized use of a patented or copyrighted work

Patents protect inventions for 20 years; after that, the invention becomes public domain

Must be granted by US Patent and Trademark office

Copyrights apply automatically when a work is created Covers the work for the lifetime of the holder, plus 70 years

Defenses

1. Consent—no intentional tort occurs if a person consents to the conduct (e.g., football players, boxers, wrestlers)

2. Privilege—some persons have lawful authority over others (police, parents, etc.)

3. Self-defense—must use reasonable force

4. Defense of property

Negligence

Chapter 20

Four Elements Duty—defendant owes a duty of

care to the plaintiff (judge decides)

Breach of duty —defendant’s conduct breached or violated that duty (jury decides)

Causation —the defendant’s conduct legally caused the plaintiff’s injuries/harm

Damages —plaintiff suffered actual injuries or losses

Breach of Duty—The “Reasonable Person” Standard

Negligence cases are decided based on whether a person’s conduct conforms to that of “the reasonable person of ordinary prudence or carefulness”

Reasonableness—must evaluate:• Likelihood of harm• Seriousness of harm• Burden/cost of avoiding harm

Criminal acts may constitute breach of duty as a matter of law (negligence per se)

Causation

Two concepts:

• Cause in fact —harm would not have occurred without the wrongful act

• Proximate cause —the harm was reasonably foreseeable as a consequence of the wrongful act

Damages Goal —restore the plaintiff to pre-injury

condition (to extent possible)

Money is the primary remedy

Examples of damages:• Hospital and medical bills• Lost wages (past)• Lost future earnings• Property damage• Pain and suffering• Emotional distress• Mental/physical disabilities• Loss of consortium

Defenses Contributory negligence

• The Plaintiff's negligence contributed to the harm suffered

Comparative negligence (responsibility)• Plaintiff’s recovery reduced by own

percentage of responsibility

• Most states bar recovery if plaintiff >50% responsible

Assumption of Risk

STRICT LIABILITYChapter 21

What is Strict Liability?

Strict liability= liability without fault

Elements: Causation

Damages

Does not require proof of duty owed nor breach of duty, as required in negligence cases

Types of Activities

Strict liability applies to: Dangerous (“ultrahazardous”)

activities—an activity where risk cannot be eliminated even by reasonable care(1) wild animals kept as pets; and (2) domesticated animals whose tendency to bite is known

Defective (“unreasonably dangerous”) products

Types of Defects

Defective Design —product was made according to specs, but the design is bad

Manufacturing Defect —design is OK, but the product wasn’t manufactured properly

Failure to Warn —Instructions/Precautions/ Warnings were not adequate to protect the consumer

Defenses Intervening or super-

ceding cause —the defect did not cause the injury

Misuse—some misuse is foreseeable and therefore manufacturers must guard against or adequately warn