CHAPTER 5 Civil Law and Procedure 6/17/2018 CHAPTER 5 Civil Law and Procedure 5-1 Private Injuries vs. Public Offenses 5-2 Intentional Torts, Negligence, and Strict Liability 5-3 Civil Procedure In chapter 4 we talked about CRIMINAL LAW and PROCEDURE. We defined CRIME as a punishable offense against society. We identified some business related or white collar crimes as Larceny receiving stolen false pretenses forgery bribery computer crimes. Now, In Chapter 5 we are going to learn about CIVIL Law and Procedure, and understand the difference between Criminal Law and Civil Law. One of the first things that we need to understand is the difference between a crime and a tort. We use the word CRIME we discussing Criminal Law and Criminal Procedure. But when discussing Civil Law and procedure we use the word TORT. This chapter has three sections. 5-1, 5-2, 5-3

5-1 Private Injuries vs. Public Offenses Chapter 5 6/17/2018 5-1 Private Injuries vs. Public Offenses GOALS Distinguish a crime from a tort Identify the elements of torts Explain why one person may be responsible for another’s tort Let’s take this one section at a time, beginning with 5-1 – Private Injuries vs. Public Offenses In this section we are going to learn the following goals. READ GOALS Distinguish a crime from a tort – there’s that word TORT again Identify the elements of torts – so what really is a tort Explain why one person may be responsible for another’s tort. In Chapter 4 we talked about how businesses can be responsible for the criminal actions of its employees. What was that term - the doctrine Vicarious Criminal Liability. Well we will also see how one person can be responsible for another’s tort. – also called vicarious liability Chapter 5

CRIME versus TORT What is a crime? What is a tort? Chapter 5 6/17/2018 CRIME versus TORT What is a crime? A crime is a punishable offense against society It is a public wrong What is a tort? A private or civil wrong An offense against an individual If someone commits a tort, the person injured as a result can sue and obtain a judgment for damages. A monetary award to compensate for the loss caused by a tort Now let’s define TORT in more detail. READ CRIME READ TORT ASK - What is the difference between crimes and torts? A crime is a public offense against society. A tort is a private wrong typically against individuals. Damages is a monetary award intended to compensate the inured party for the harm done to her or him. Why are people awarded damages? Its to keep the injured person from taking the law into her/his own hands. Chapter 5

TORTS CRIMES Assault Larceny Battery Receiving stolen property False imprisonment Defamation Invasion of privacy Trespass to land Conversion Interference with contractual relations Fraud Larceny Receiving stolen property False pretenses Forgery Bribery Computer crime Extortion Conspiracy Arson Just to give you an example of what some torts are And we will talk about each of these TORTS in more detail later. But here is a list of TORTS compared to the list of Business Related Crimes that we talked about earlier. Defamation-False statements that injures a person’s reputation

Chapter 3 6/17/2018 What's Your Verdict? To support his family and still pursue a college education, JJ worked for a delivery service from 3:30am until his college classes began at 9am every weekday morning He then student taught as a basketball coach after classes. Returning home each evening he would care for his children until his wife finished her workday at 10pm. Early one morning, JJ fell asleep at the wheel of the delivery truck and crashed it into an oncoming car. JJ and the other driver, Shirley were seriously injured and the vehicles were “totaled.” What did JJ do wrong? He did two things. 1. Fell asleep at the wheel of the delivery truck – reckless driving. Is reckless driving a crime or a tort, based on what we just learned about our definition. 2. He also crashed it into an oncoming car causing serious injury to Shirley. Remember a crime is: A crime is a punishable offense against society It is a public wrong Remember a tort is: A private or civil wrong An offense against an individual. If someone commits a tort, the person injured as a result can sue and obtain a judgment for damages. ONE ACT CAN BE BOTH A TORT AND A CRIME. JJ will be charged for a crime because of his reckless driving. He may get a ticket or arrested. He’ll probably be prosecuted in a criminal trial. If convicted he may be fined or jailed. JJ also committed a tort by inuring Shirley and her property (the car). She may bring a civil suit against him. If she wins, Shirley can obtain judgment against JJ as compensation for her injuries. If JJ is convicted of both, which one do you thing will do him the most economic harm. Does JJ’s conduct represent a criminal or civil wrong or both? Chapter 3 Slide 5 5

TORT CRIME ELEMENTS OF A …. Chapter 5 6/17/2018 ELEMENTS OF A …. TORT CRIME Duty-a legal obligation to do or not to do something Breach-Violation of the duty Injury- a harm that is recognized by the law Causation- proof that the breach caused the injury Duty Violation of the duty Criminal Intent Just like criminal law, tort law is a broad legal category. Just like there a specific crimes, there are specific torts. But certain elements are common to most torts. Now you’ll remember that the three elements of a crime were: DUTY,VIOLATION OF THE DUTY, CRIMINAL INTENT The three elements of a TORT are – DUTY, VIOLATION OF THE DUTY, INJURY, CAUSATION. Just like the elements have to exist and be proven for criminals, In a trial, these elements for TORT must exist and be proved to establish liability (legal responsibitility) Let’s look at each of these elements. Chapter 5

A legal obligation to do or not to do something Chapter 5 6/17/2018 DUTY… A legal obligation to do or not to do something CIVIL LAW CRIMINAL LAW The duty not to injure another (body, reputation, property, invasion of privacy) The duty not to interfere with the property rights of other (trespassing) The duty not to interfere with the economic rights of others Were you aware of your duty? Its everyone’s duty to know the law and to conform his or her conduct to the law’s requirements The duty not to injure another including bodily injury (assault/battery), injury to someone’s reputation (defamation), property or invasion of someone’s privacy The duty not to interfere with the property rights of other Trespassing on their land The duty not to interfere with the economic rights of others Right to contract Chapter 5

BREACH-VIOLATION OF THE DUTY Chapter 5 6/17/2018 BREACH-VIOLATION OF THE DUTY CIVIL LAW Intentional torts Tort in which the defendant means to commit the injurious act Negligence Most common, based on carelessness (NOT intentional) Strict Liability Holding a defendant liable without a showing of negligence A violation (or breach) of the duty must be proved before the injured party can collect damages. That definition applies to both Criminal and Civil Law. For Criminal law – they simply look to see whether your performed an act or omission in violation of that duty. For CIVIL law, however - Breaches are usually acknowledged in one of three ways. (as intentional, negligent, or strict liability) INTENTIONAL Some TORTS acknowledge a breach only when the defendant possess a certain mental state at the time of the breach. Some torts require that the breach be intentional and these are classified as intentional torts In other torts, intent is not required. NEGLIGENT It is enough if the breach occurred because someone was careless or negligent. These torts, based on carelessness, are classified as negligent STRICT LIABILITY Still in other torts, even carelessness is not required. Liability is imposed simply because a duty was violated and this caused an injury. The last classification, where neither intent nor carelessness is required is classified as strict liability. ACTIVITY Elements of a Tort (p. 86 L margin) CRIMINAL LAW Whether you performed an act or omission in violation of that duty Chapter 5

CIVIL LAW CRIMINAL LAW Two elements that need to be present Injury Chapter 5 6/17/2018 CIVIL LAW Two elements that need to be present Injury Causation CRIMINAL LAW Third and final element is CRIMINAL INTENT The defendant 1) intended to commit the act and 2) intended to do evil For Criminal law – the third and final element that must be present is CRIMINAL INTENT – which means that the defendant 1) intended to commit the act and 2) intended to do evil. But for CIVIL law, there are two more elements that need to be present – INJURY and CAUSATION Chapter 5

INJURY CAUSATION A harm that is recognized by the law Chapter 5 6/17/2018 INJURY A harm that is recognized by the law Generally, injury resulting from the breach of duty must be proved. If you act recklessly, but no one is injured, there usually is no tort. CAUSATION Breach of duty caused the injury Proximate cause Exists when it is reasonably foreseeable that a breach of duty will result in an injury. For Criminal law – the third and final element that must be present is CRIMINAL INTENT – which means that the defendant 1) intended to commit the act and 2) intended to do evil. But for CIVIL law, there are two more elements that need to be present – INJURY and CAUSATION INJURY – a harm that is recognized by law CAUSATION – as we said before the breach of duty CAUSED the injury There’s also PROXIMATE cause – when the amount of causation is great enough for it be recognized by law, it is called proximate cause. Generally proximate cause exists when it is reasonably foreseeable that a breach of duty will result in an injury. Chapter 5 Slide 10 10

Chapter 3 6/17/2018 What's Your Verdict? On a windy autumn day, Mason was burning dry leaves in his backyard. When he went inside to answer a telephone call, flames from the fire leaped to the next-door neighbor’s fence and then to a tool shed where a small can of gasoline exploded. Soon the neighbor’s house was ablaze, and it burned to the ground. Let’s apply the elements of a tort. Duty – Mason owed a duty to the neighbors not to injure their property. Violation of the duty – he breached the duty when he left the fire unattended so it spread to the neighbors property. Injury – the injury occurred when the neighbor’s house was burned Proximate cause – leaving the fire unattended was a proximate cause of the loss of the fence, the tool shed, and the house. Therefore the neighbor can obtain a judgment against Mason for the value of he loss. Intentional, negligent, or strict liability? Did Mason commit a tort? Chapter 3 Slide 11 11

RESPONSIBILITY FOR ANOTHER’S TORTS Chapter 5 6/17/2018 RESPONSIBILITY FOR ANOTHER’S TORTS With few exceptions, all persons, including minors are personally responsible for their conduct and are therefore liable for their torts. Even children or insane persons may be held liable for injuring others. When one person is liable for the torts of another, the liability is called vicarious liability. Unlike criminal law where children and insane persons can not be held liable for their actions In civil law, children or insane persons may be held liable for injuring others. Chapter 5 Slide 12 12

Chapter 5 6/17/2018 Vicarious Liability Vicarious Liability - Legal doctrine by which one party is held liable for the torts of another. Parents may be liable if they give their children ‘dangerous instrumentalities’, such as guns, without proper instruction. Parents may be liable for their children’s continuing dangerous habits (Child continues to throw rocks at trains and vehicles and the parents do not stop them). In some state parents are liable, by statute, up to a specified amount of money for property damaged by their minor children. (Vandalism and malicious destruction of school property) Most states also provide that parents are liable, up to the limits of financial responsibility laws, for damages negligently caused by their children while operating motor vehicles. In criminal law, employers can be responsible for the criminal acts of their employees. That is called vicarious criminal liability. In civil law you have vicarious liability. READ SLIDE So, be careful what you do as it could affect your parents, financially Chapter 5

Chapter 3 6/17/2018 What's Your Verdict? Hunt was taking riding lessons from Saddleback Stables. Patterson, the Saddleback instructor, was a skilled rider although only 15 years old. Nevertheless, during a lesson while leading the horse Hunt was riding, Patterson negligently dropped the bridle. As a result, the horse bolted and Hunt was throw to the ground and injured. Patterson’s negligence would result in his being liable to Hunt or Hut’s injuries. In addition, Saddleback Stables can be held liable for the negligence of its employee Patterson. In such cases, the injured party may sue both employer and employee. Who was liable for Hunt’s injuries? Chapter 3 Slide 14 14

Review Distinguish a crime from a tort Identify the elements of torts Chapter 5 6/17/2018 Review Distinguish a crime from a tort A crime is an offense against society; a public wrong. A tort is a private or civil wrong; an offense against an individual. Identify the elements of torts The elements of torts are: (1) duty, (2) violation of duty, (3) injury, and (4) causation. Chapter 5

Review Explain why one person may be responsible for another’s tort Chapter 5 6/17/2018 Review Explain why one person may be responsible for another’s tort When one person is responsible for another person’s tort the liability is called vicarious liability. Parents may be liable if they give their children “dangerous instrumentalities,” such as guns, without proper instruction. A parent also may be held liable for their children’s continuing dangerous habits. If a child continues to throw rocks at trains and vehicles, the parents may be liable if they fail to stop the child’s behavior. Chapter 5

5-2 Intentional Torts, Negligence, and Strict Liability Chapter 5 6/17/2018 5-2 Intentional Torts, Negligence, and Strict Liability GOALS Identify common intentional torts Recognize the elements of negligence Explain the basis for strict liability Chapter 5

FOCUS What things are unique about intentional torts? Chapter 5 6/17/2018 FOCUS What things are unique about intentional torts? The intent to inflict, not just perform an act, of one sort or another and the availability of punitive damages. Distinguish between the nature of intent when one is playing a contact sport and when they would be acting in an intentionally tortuous manner. Chapter 5

WHAT ARE THE MOST COMMON INTENTIONAL TORTS? Chapter 5 6/17/2018 WHAT ARE THE MOST COMMON INTENTIONAL TORTS? Assault Battery False imprisonment Defamation Invasion of privacy Trespass to land Conversion Interference with contractual relations Fraud Chapter 5

Chapter 5 6/17/2018 ASSAULT Assault occurs when one person intentionally puts another in reasonable fear of an offensive or harmful bodily contact. Threats can be made with words or gestures. Threatened injury can be physical: a person may raise a fist threatening to punch you. Chapter 5

BATTERY Harmful or offensive touching Chapter 5 6/17/2018 BATTERY Harmful or offensive touching Punching, pushing in anger, spitting, or throwing a pie in another’s face Angrily raising a clenched fist and then striking someone in the faces involved first an assault and then a battery. When the victim is hit without warning from behind, there is no assault. There is no battery if the contact is not intentional. Self-defense Consent to offensive touching (boxing match) Chapter 5

Chapter 5 6/17/2018 FALSE IMPRISONMENT Depriving a person of freedom of movement without consent and without privilege Handcuffed; locked in a room, car, or jail; told in a threatening way to stay in one place; or otherwise denied their liberty. When the police have probable cause to arrest people, they are privileged to imprison them. Merchants in many states have a privilege to detain a person if they have reasonable basis for believing the person was shoplifting. Chapter 5

DEFAMATION False statement that injures one’s reputation Chapter 5 6/17/2018 DEFAMATION False statement that injures one’s reputation Slander: if the defamation is spoken Liable: if the defamation is written or printed. To be legally defamatory, the statement must be: False (truth is a complete defense) Communicated to a third party (your reputation is not harmed if no other person hears or reads the lie) Bring the victim into disrepute, contempt, or ridicule by others Chapter 5

Chapter 5 6/17/2018 DEFAMATION Cont. In slander suits, you must show that you have suffered an actual physical loss or damages, as a result of the slanderous remark. Judges, lawyers, jurors, witnesses, and other parties in judicial proceedings are immune from liability for statements made during the actual trial or hearing. Chapter 5

Chapter 5 6/17/2018 INVASION OF PRIVACY Unwelcome and unlawful intrusion into one’s private life so as to cause outrage, mental suffering, or humiliation. “The right of privacy is a personal and fundamental right protected by the Constitution of the United States.” Illegal eavesdropping by any listening device, interference with telephone calls, and unauthorized opening of letters and telegrams. Chapter 5

Chapter 5 6/17/2018 TRESPASS TO LAND To be on the land of another without right or permission of the owner Dumping rubbish on the land of another or breaking the windows of a neighbor’s house are also trespass. If a person is thrown onto another’s land, there would be no intent and not trespass. If a person thought she was waling on her own property, but was mistaken, there would be a trespass because she intended to be there. Chapter 5

Chapter 5 6/17/2018 CONVERSION Using property in a manner inconsistent with the owner’s rights A thief is always a converter. Conversion occurs even when the converter does not know that there is a conversion. The innocent buyer of stolen goods is a converter. Chapter 5

INTERFERENCE WITH CONTRACTUAL REALTIONS Chapter 5 6/17/2018 INTERFERENCE WITH CONTRACTUAL REALTIONS Enticing or encouraging a person to break a contract http://www.youtube.com/watch?v=hWrS4Jg46tY Chapter 5

FRAUD Intentional misrepresentation of an existing, important fact Chapter 5 6/17/2018 FRAUD Intentional misrepresentation of an existing, important fact A lie Ordinarily a statement of opinion is not considered fraudulent. This is because the hearer should recognize that the statement is the speaker’s personal view. Chapter 5

WHAT CONSTITUTES NEGLIGENCE? Chapter 5 6/17/2018 WHAT CONSTITUTES NEGLIGENCE? Negligence: Most common tort based on carelessness Chapter 5

DUTY IMPOSED BY NEGLIGENCE Chapter 5 6/17/2018 DUTY IMPOSED BY NEGLIGENCE Acts with care, prudence, and good judgment of a reasonable person so as not to cause injury to others. Children are only required to act with the care that a reasonable child of like age, intelligence, and experience would act. If a child undertakes an adult activity, such as driving a boat or a car, the child is held to the adult standards. Professional and skilled tradesperson are held to a higher degree of care in their work. Chapter 5

BREACH OF DUTY Breach the duty of a “reasonable-person” standards. Chapter 5 6/17/2018 BREACH OF DUTY Breach the duty of a “reasonable-person” standards. Example: A reasonable person would only drive a car at a safe speed, not intoxicated, and only at night with the lights on. If they breach the “reasonable-person” standards, they could be found guilty. Chapter 5

Chapter 5 6/17/2018 CAUSATION AND INJURY The violation of the duty must be the proximate cause of the injury. Proximate cause Exists when it is reasonably foreseeable that a breach of duty will result in an injury. Chapter 5

DEFENSES TO NEGLIGENCE Chapter 5 6/17/2018 DEFENSES TO NEGLIGENCE In several states a plaintiff cannot recover for loss caused by another’s negligence if the plaintiff also was negligent. – contributory negligence. Comparative negligence applied when a plaintiff in a negligence action is partially at fault. Assumption of the risk is where a plaintiffs are aware of a danger, but decide to subject themselves to the risk. Chapter 5

WHY IS STRICT LIABILITY NECESSARY? Chapter 5 6/17/2018 WHY IS STRICT LIABILITY NECESSARY? Strict Liability: Holding a defendant liable without a showing of negligence Engaging in abnormally dangerous activities such as target practice, blasting, crop dusting with dangerous chemicals, or storing flammable liquids in large quantities. Owning dangerous animals Selling unreasonably dangerous goods Chapter 5

Review Identify common intentional torts Chapter 5 6/17/2018 Review Identify common intentional torts Recognize the elements of negligence Explain the basis for strict liability Chapter 5

5-3 Civil Procedure GOALS Chapter 5 6/17/2018 5-3 Civil Procedure GOALS State the legal remedies that are available to a tort victim Describe the procedure used to try a civil case Explain how civil damages are collected Chapter 5

REMEDIES AVAILABLE IN A CIVIL SUIT Chapter 5 6/17/2018 REMEDIES AVAILABLE IN A CIVIL SUIT Injunction A court order for a person to do or not do a particular act Damages Damages: Monetary award to the injured party to compensate for loss Actual or Compensatory damages: amount of money awarded to compensate for a plaintiff’s loss Contingency fee: % of damages awarded to the plaintiff which is used to pay the lawyers fee. Pain and suffering is hard to place a dollar value – usually amount is decided by jury and recommended by the judge using past practice. Chapter 5

WHAT PROCEDURE IS USED TO TRY A CIVIL CASE? Chapter 5 6/17/2018 WHAT PROCEDURE IS USED TO TRY A CIVIL CASE? Judge or jury Opening statements and testimony Evidence: anything that the judge allows to be presented to the jury that helps to prove or disprove the alleged facts Testimony: statements made by witnesses under oath Witnesses (expert witness): someone who has personal knowledge of the facts. Subpoena: Written order by the judge commanding a witness to appear and give testimony Closing arguments and instructions to the jury Jury deliberation and the verdict Verdict: Jury’s decision Judgment: the final result of the trial – normally will be for a sum of money Chapter 5

HOW ARE CIVIL DAMAGES COLLECTED? Chapter 5 6/17/2018 HOW ARE CIVIL DAMAGES COLLECTED? Defendant is ordered to pay Writ of execution The process by which a judgment for money is enforced. The court directs that the defendant’s property (savings account, car, proceeds from a book) be seized or sold. Chapter 5

Review State the legal remedies that are available to a tort victim Chapter 5 6/17/2018 Review State the legal remedies that are available to a tort victim Describe the procedure used to try a civil case Explain how civil damages are collected Chapter 5