Chapter 3 Tort Law

The Nature of Tort Law Based on the idea that……. Everyone has certain rights. Everyone has the duty to respect the rights of others. Tort law enforces these rights.

What is a Tort Tort: is a private wrong committed by one person against another. TortFeasor: is a person who commits a tort. Interferes with a person’s rights.

Three Elements to a Tort The possession of certain rights by an individual. A violation of those rights by a TortFeasor. A resulting injury that somehow hurts the person whose rights were violated. The person injured is called the victim, the innocent party or the plaintiff in a lawsuit. The TortFeasor is the defendant.

Criminal Law vs Tort Law Crime: wrong committed against public good Tort (Civil) Law: wrong committed against a particular person or property. An act can be both Criminal and Civil. Penalties (Criminal Law): Purpose is to protect society, fines and imprisonment. Remedies (Civil Law): compensate victim for injuries caused by the TortFeasor.

Damages and Remedies Damages: Monetary sum paid to the plaintiff for injuries, pain and suffering, etc. Remedy: A legal means of enforcing a right or correcting a wrong.

Intentional Torts Against Persons Assault and Battery False Imprisonment Defamation Invasion of Privacy Intentional Infliction of Emotional Distress are most of the time, actions that deliberately hurt, embarrass, or scare people.

Assault and Battery Two separate Torts Assault: occurs as soon as a person is afraid of immediate harm. Battery: is the unlawful touching of another person, even if the physical contact does not cause harm. Can also be touching something closely associated with a person’s body, such as a backpack or cap, that causes them harm. If you pull a chair out from someone before the person sits down you have committed battery.

False Imprisonment People have the right to move around freely. If someone interferes with this right, they have committed false imprisonment. Example: Security guards in a store must have reasonable grounds to suspect shoplifting before they stop a customer. They must hold the person in a reasonable way and only for a reasonable time.

Invasion of Privacy Person’s right to be left alone. Right to be free of unwanted publicity, people must stay put of your private matters. People who use confidential records in their jobs (doctors, nurses, lawyers, teachers and counselors) have to be extremely careful with those records. Someone cannot use your photograph, likeness or name without your permission for advertising, publicity or marketing purposes. Confidential Records A nurse may talk to another nurse if both nurses are caring for the same patient, BUT the nurse cannot talk to outside people or share the patients records with outside people.

Defamation Occurs when somebody lies about another person in a way that hurts the innocent person’s reputation. There are two types: Libel Slander Libel: lies about a person in written, printed, or recorded form, including television shows, magazine stories, web sites and email. Slander: consists of verbal or spoken lies that damage a person’s reputation.

Defamation Continued Movie Stars, famous athletes, and politicians must prove that lies told about them are told with actual malice (Supreme Court Ruling). Which means that the person who published the lie knew it was a lie and published it anyway, or the person who published the lie did not do an adequate job of checking the facts.

Intentional Infliction of Emotional Distress Someone can cause great emotional or mental distress to another person, even if there is no intent to cause physical harm The distress must be caused by extreme and outrageous conduct. Example: convincing someone that their loved one died.

Intentional Torts Against Property Trespass Conversion Nuisance Disparagement

Trespass Interfering with somebody’s real property. Real property is land, things built on land and things attached to the land permanently, can even include things that may be under the property such as minerals and oil.

Conversion Interfering with someone’s right to personal property. Example: lending your boyfriend your cell phone, he never returns it! He has converted your property to his and interfered with your right of ownership.

Disparagement Lies about objects. The lies can be about quantity or ownership. Example: if you try to sell your used car, which is in excellent condition, to a friend and someone claims your car is defective, that person has committed disparagement. In court you must prove that you lost money because of the lie.

Negligence Is a tort that results when one person carelessly injures another. Negligence is being less careful than a reasonable should be in the same situation. Accidental Tort, most common Tort. No actual intent by the TortFeasor.

Elements of Negligence The plaintiff must prove all the following elements: The defendant owed the plaintiff a duty of care. The defendant breached that duty by being careless. The defendant’s carelessness was the proximate cause of harm. The plaintiff was really hurt by the defendants carelessness.

Duty of Care Is the obligation to use a reasonable standard of care to prevent injuries to others.

Breach of Duty You breach or break, your duty to another person when you fail to use reasonable care in dealing with that person. To determine whether the conduct is negligent, the law has developed a standard called the reasonable person test. You have to be as careful as a reasonable person would be, a reasonable person considers how likely a certain act is to cause harm, how serious the harm would be, and the burden involved in avoiding the harm.

Proximate Cause It is not enough to show that the defendants actions were unreasonable, the action or behavior must also be the proximate cause of the injury. Proximate Cause: or legal cause, exists when the link between the negligent conduct and the injury is strong enough to be recognized by the law. Use the Foreseeability Test The court asks whether the injury to the victim was foreseeable at the time of the negligent conduct. If the injury to the victim was foreseeable, then proximate cause exists, and the defendant is liable for negligence. Actual Harm – VICTIM MUST HAVE SUFFERED AN INJURY!

Defenses to Negligence There are four defenses to Negligence Eliminate one of the four elements. Contributory Negligence Comparative Negligence Assumption of Risk

Contributory Negligence A defense against negligence when the defendant can show the victim did something to cause his or her own injuries. If the plaintiff can prove this then the defendant loses. Originated in Common Law. Many states no longer use this.

Comparative Negligence A defense against negligence which is raised when the carelessness of each party is compared to the carelessness of the other party. 50% Rule (most states use this) the plaintiff is allowed to receive some damages if the plaintiff’s negligence is less than the defendant’s. If the plaintiff’s negligence is more than half the plaintiff gets nothing.

Assumption of Risk A defense against the negligence that is raised when the plaintiff knew of the risk involved and still took the chance of being injured. Examples:extreme sports, bungee jumping, Wind Surfing and skydiving.

Strict Liability Is a legal doctrine that says that some activates are so dangerous that liability will always follow any injury that results from those activates. Examples are using explosives or keeping wild animals.

Product Liability When people are injured by defective products, both the manufacturer and the seller of the product(s) are liable for injuries. Fault does not matter

Limits to Product Liability Does not apply if the seller of the defective product does not usually sell such items. Does not apply if the only damage done by the product is damage to the product itself.

Tort Reform Survival Statutes: A lawsuit can continue even if both the plaintiff and Defendant are deceased. Previously under common law, Dead = end to the lawsuit. Wrongful Death Status: relatives can bring a lawsuit even if the victim has dies.