Individual & the Law Unit IV 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

Failure to exercise reasonable care may result in legal LIABILITY. 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

Three groups of people face strict liability 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

Children commit torts and may be sued for 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

Homeowners and Renters insurance covers loss and damage to property 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

Personal Property offenses include 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

Critics of our current tort law claim 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