1. Civil Law & Procedure Chapter 5

2. Ch. 5-1 Objectives Distinguish a crime from a tort Identify the elements of torts Explain why one person may be responsible for another’s tort

3. Crimes vs. Torts Crime –Offense against society or a public wrong Tort –Private or civil wrong – against individual –Sue & obtain judgment for money damages One act can be both a tort and a crime –Car accident –Fine and/or jail term & pay for damages

4. Elements of a Tort 1.Duty legal obligation to do or not to do something 2.Breach violation of duty 3.Injury A harm that is recognized by the law 4.Causation Proof that the breach caused the injury

5. Elements of a Tort 1. Duty Respect right of others duty to: –Not injure another (body, reputation, privacy) –Interfere with the property rights of others –Interfere with the economic rights of others Judge determines question of law –Consults state case & statutory law (federal)

6. Elements of a Tort 2. Violation of Duty Question of fact for a jury to decide Intent = Intentional torts Careless = negligence –Intent is Not needed Strict Liability –Liability imposed b/c duty was violated & caused injury, no intent nor carelessness required

7. Elements of a Tort 3. Injury Resulting from breach of duty must be proved. No injury = No tort

8. Elements of Tort 4. Causation Breach of duty caused injury Degrees of causation Proximate cause –Amount of causation is great enough for it to be recognized by the law –“reasonably foreseeable” that a breach of duty will cause injury Fire out of control

9. Responsibility for Torts of Another “all persons, including minors, are responsible for their conduct and are therefore liable for their torts.” Vicarious liability –One person responsible for torts of another –Parents may be liable for children’s torts up to a specified amount of money Parental Responsibility Laws

10. Parent Responsibility Laws Parents are liable for –Specified amount of money for property damage –Financial responsibility for damages negligently caused while operating motor vehicle –Give children “dangerous instrumentalities” (guns) Responsibility for Torts of Another

11. Ch. 5-2 Objectives Identify common intentional torts Recognize the elements of negligence Explain the basis for strict liability

12. Intentional Torts Defendant intended either the injury or the act A.ASSAULT –Intentionally threatens to physically or offensively injure another –Must be believable –Must be able to carry out the threat

13. B.BATTERY Harmful or offensive touching of another –Shooting, pushing, spitting Assault precedes battery If unintentional contact = no battery Self-defense = no battery Consent (boxers) = no battery Intentional Torts

14. C.FALSE IMPRISONMENT Depriving a person of freedom of movement without the person’s consent & without privilege Probable cause to arrest = privilege Merchants may detain if reasonable basis for believing person is shoplifting Intentional Torts

15. D.DEFAMATION False statement injures one’s reputation –Spoken = slander –Written = libel Prove Defamation: Statement… 1. Must be false 2. Must be communicated to a third person 3. Bring the victim into disrepute, contempt, or ridicule by others Intentional Torts

16. D.DEFAMATION Slander – prove actual physical loss or damages as a result Libel – presumed to have suffered a loss Exception: statements about public officials or prominent personalities No liability unless was made with malice –Free discussion of public issues During trials – no liability for statements Intentional Torts

17. E.INVASION OF PRIVACY Unwelcome & unlawful intrusion into one’s private life so as to cause outrage, mental suffering, or humiliation Unnecessary publicity Commercial exploitation Illegal eavesdropping (phones, mail) Warrant to do so Intentional Torts

18. F.TRESPASS TO LAND Entry onto the property of another w/o consent –Dumping –Breaking windows Intent required –Even if no knowledge still responsible Intentional Torts

19. G.CONVERSION Right to control own possession, violated by being stolen then conversion occurs Thief = converter Occurs even when converter doesn’t know –Buyer of stolen goods Intentional Torts

20. H.INTERFERENCE W/ CONTRACTUAL OBLIGATIONS 3 rd party entices or encourages the breach, that 3 rd party may be liable in tort to the nonbreaching party Intentional Torts

21. I.FRAUD Intentional misrepresentation of an existing important fact. –Relied on –Cause financial injury Opinion is not fraudulent Intentional Torts

22. Negligence Most common tort –Intent not required –Carelessness is required

23. What Constitutes Negligence? Duty Imposed by Negligence “Reasonable person standard” –Act with care, prudence, & good judgment Children under 7 – not capable of negligence Others need to act as a reasonable person w/ like age, intelligence, & experience –Adult activity = adult standard (cars, boats) Professionals held to higher degree for their work

24. Breach of Duty “reasonable-person” standard used to define due care for any specific case Causation & Injury in Negligence Violation of the duty must be the proximate cause of the injury Reasonably foreseeable What Constitutes Negligence?

25. Defenses to Negligence Contributory negligence –“Plaintiff cannot recover for loss caused by another’s negligence if the plaintiff was contributory negligent” Plaintiff’s negligence was partial cause Comparative negligence –Awarded damages but reduced in proportion to plaintiff’s negligence Assumption of risk –Aware of danger but do it anyway –You assume risk after being informed of the danger –Can’t recover damages

26. Strict Liability Exists even though defendant was not negligent Liable if engaged in activity that resulted in injury Proof of both the activity & the injury substitutes for proof of a violation of a duty –Abnormally dangerous activities –Ownership of dangerous animals –Sale of goods that are unreasonably dangerous

27. Ch. 5-3 Objectives State the legal remedies that are available to a tort victim Describe the procedure used to try a civil case

28. Remedies in a Civil Suit 1. Injunction –court order for a person to do or not do an act –prevent a private injury, stop it from continuing, or undo it. 2. Damages –Monetary award to the injured party to compensate for loss A. Punitive damages –Awarded as punishment to deter others –Intentional torts & meant to punish defendant B. Compensatory damages –Sum of lost wages, doctor’s fees, pain and suffering

29. 1. Judges = issues of law –No jury = judges decision for both 2. Jury = Issues of fact –6-12 citizens – doesn’t need to be unanimous Steps in a Trial

30. 3. Opening statements Evidence –Anything judge allows to be presented to the jury that helps prove or disprove alleged facts –Testimony ( most common type of evidence ) –Witness ( personal knowledge of facts ) –Expert witness ( opinion based on knowledge and facts ) Subpoena – written order by judge commanding witness to appear in court to give testimony

31. Steps in a Trial 4a. Closing Statements Attorneys summarize and persuade 4b. Judge gives instructions to the jury –Rules of law that apply 5a. Jury retire to the jury room for secret deliberation 5b. Verdict – jury’s decision 6. Judgment – final result of trial

32. How is a Judgment Satisfied? Defendant doesn’t pay –Plaintiff may obtain a writ of execution Defendant’s property is taken by the courts –Property sold –Money out of accounts