INTRODUCTION TO TORTS

Civil Law

Common Questions about Civil Law

Who can be sued? Anyone Children? Deep Pockets (Employers, Companies, etc)

Who can sue? Just about anyone (must have standing – show a harm) Class action: a group that sues together

Criminal Law Cases Civil Law Cases

Liberty is at stakeThe People v. DefendantDetermines

guilt/innocencePunishment: fine, jail,

etc.Burden of Proof: Beyond

a Reasonable Doubt Crime

Money is at stakePlaintiff v. DefendantDetermines liabilityPunishment: damagesBurden of proof:

Preponderance of Evidence (more right than the other side)

Tort

Criminal Law v. Civil Law

So, What Is a Tort?

Nope. These are tortes.

Definition of a Tort

A tort is a civil wrong that has two questions:Who is responsible (liable)?How much should the responsible party pay?

A far less formal definition of a tort isAll the crazy stuff that you can possibly imagine happening to a person.

Torts: Fact or Fiction?

Raise your hand if you think the following actually happened:1. A woman sued a doctor for malpractice because he invited his

friend to watch him deliver her baby.2. A woman sued a railroad company because scales fell on her on a

railroad platform. A railroad worker had helped a young man, who happened to be carrying a bundle of fireworks, jump onto a moving train. While jumping on the train the young man dropped his package, which caused the explosion that caused the scales to fall.

3. A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver’s head.

4. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

3 Types of Torts

Intentional Wrong

Occurs when a person acts with intent of injuring a person, property, or both.

The case of Milkman BobThe case of Lucy’s letter of lies

Negligence

Occurs when a person’s failure to use reasonable care causes harm

Unintentional

The Case of the Slippery SidewalkThe Case of the Hot Coffee

Strict Liability

Defendant is engaged in an activity so dangerous that there is a serious risk of harm even if he or she acts with the utmost care

Do not have to prove negligence or intention Three groups of people fall under this law:

Owners of dangerous animals People who engage in inherently dangerous activities Sellers and manufacturers of defective products

The case of the wolf breed dogThe case of ACME dynamiteThe case of fen-phen

Which kind of tort?

Mr. S take a strong painkiller and his heart stops.

Jamie trips over his shoelace and breaks an ankle.

Dr. Rich drinks too much at the holiday party and drive home drunk. He hits an injures a pedestrian.

Suzy spray paints an inflammatory word on Christa’s car after Christa and Suzy’s ex-boyfriend go on a date.

What are these torts?

Sidewalk slippageHot CoffeeBag of GlassPunching a Car Window

Intentional Torts: Damages

Compensatory Awards that compensate for harm caused, usually

they can be calculated based on a loss Examples: Lost wages, Medical bills, Pain and

sufferingNominal

Symbolic awards that show who was right in the casePunitive

Awards that are meant to punish the defendant, they serve as a warning to others not to engage in similar conduct

Intentional Torts: Defenses

Consent The plaintiff agreed to take part in the harm (boxing)

Privilege Some people have more authority to use force (police,

parents, owners of property) Self-defense Defense of Property

Negligence: Elements

There are four basic elements of negligence: Duty: defendant owes care to the plaintiff Breach: defendants acts violated the duty owed Causation: defendant acts caused harm Damages: Plaintiff suffers actual harm (injuries/losses)

Negligent Torts: Duty

Can you think of examples of due care that each of the following people must exercise?:

1. A lifeguard at a municipal pool.2. A lumberjack felling a tree.3. An owner of an aggressive dog.4. A high school football coach.

Negligent Torts: Breach

Breach is the simplest of the four elements.Once you determine the standard of care, you

ask, did the defendant follow that standard of care?

For example, if the standard of care requires the owner of an aggressive dog to keep the dog on a leash and the owner does not do so s/he has breached the duty of care.

Negligent Torts: Causation

There are two types of causation:

Causation in fact; and Proximate cause

Negligent Torts: Causation

Cause in fact:Did A cause B?Example: Bobby Rae picks up a golf club and

strikes LaFonda. LaFonda suffers a dislocated jaw. Did A (Bobby Rae) cause the harm (dislocated jaw)?

Proximate Cause

Proximate cause is a little more difficult. The issue is where the court wants to cut off liability

for a negligent actor because of public policy needs

Foreseeable Harm: Would the defendant be able to foresee the extent of the harm? A driver crosses the double yellow line in the road and

collides with a truck. The truck happens to be carrying dynamite, which explodes and kills a person two blocks away. Could the driver have foreseen the death?

A flaming barge is floating down a river, and a nearby house becomes engulfed in flames. Because of wind, so do thirty other houses. Could the captain have foreseen the damage?

Great Chicago fire and Mrs. O’Leary

Who started the fire?

Negligent Torts: Causation: Hypo

This is Jason Giambi. Jason Giambi likes to practice his swing in his

living room. Unfortunately, this sometimes leads to disaster…

Negligent Torts: Causation: Hypo 1

One day, while practicing his swing in his living room, Jason loses his grip on the bat. The bat flies into the sitting room and hits his wife’s friend in the head, causing minor injuries.

Q1: Is there causation in fact?

Q2: In there proximate causation?

Negligent Torts: Causation: Hypo 2

Jason did not learn his lesson when he injured his wife’s friend. Once again, during a practice session, Jason loses his grip. This time the bat flies through a window and hits the ladder his roofer is using to climb onto his roof. The roofer falls and breaks both his arms.

Q1: Is there causation in fact?

Q2: In there proximate causation?

Negligent Torts: Causation: Hypo 3

Jason, Jason, Jason. He keeps practicing, and keeps losing his grip. This time the bat flies into his neighbor’s yard. The bat hits his neighbor in the head just as he is squirting lighter fluid onto his grill. He squirts too much, which causes an explosion. In addition to his head injuries, he suffers burns from the explosion and there is some fire damage to his house.

Q1: Is there causation in fact for each injury?Q2: In there proximate causation?Q3: What if the fire had burned down the neighbor’s

house? Several neighbors’ houses?

Negligent Torts: Causation: Hypo 4

For some unknown reason, Jason is still practicing his swing in his house and he has a new neighbor, Eric, that loves to BBQ. It’s a perfect storm. And sure enough, Jason launches his bat through his window into his neighbor’s yard. The bat hits the BBQing neighbor, setting off another BBQ explosion. This time it kills the neighbor, and the neighbor’s wife is severely injured in the ensuing fire. As she is being wheeled to the ambulance she is struck by lightning.

Q1: Is there causation in fact for each injury?Q2: Is there proximate cause for each injury?Q3: Could Jane, another neighbor, sue Jason because she can

no longer sell the new gas grill she handmade for Eric to Eric because Eric is dead?

Negligent Torts: Damages

The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount.

The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it’s not so easy to figure out how much eyesight is worth.

Negligent Torts: Damages: Hypo

Betty and Derek are walking to school. Steven is driving down the street talking to his friends in the backseat. One of Steven’s friends screams “Look out!” Steven reacts by turning the wheel of his car, which jumps the curb and pins Betty’s arm to the wall crushing it. What remains of Betty’s arm needs to be amputated.

Q1: How much is Betty’s arm worth?Q2: Does the answer change if Betty was a concert

pianist?Q3: What if Betty simply wanted to be a concert

pianist, but wasn’t one yet?

Negligent Torts: Defenses

Even where the plaintiff has proven all of the elements of a negligent tort, the defendant may be found not to be liable or the defendant’s liability may be reduced based on certain defenses. These defenses include: Contributory Negligence:

The plaintiff’s actions contributed to the harms (ignoring warnings to keep off ice, etc.)

Comparative Negligence: The plaintiff is somewhat at fault (not wearing seatbelt)

Assumption of Risk: The plaintiff knowingly enters a dangerous situation (Swim at

your own risk, baseball and hockey games, etc.)

Strict Liability

The plaintiff need only prove causation and damages

Defenses: Prove negligence instead Prove there was no causation/no damages Product misuse

STELLA!

Stella McDonald’s

Duty: McDonald’s owes a level of care to their customers (safety, cleanliness, untainted food, etc).

Breach: Coffee was unsafe. Causation: Hot, unsafe,

coffee caused 3rd degree burns

Damages: Hospital bills (compensatory) and punitive (punish McDonald’s)

Duty: McDonald’s owes a duty of care to their customers.

Breach: McDonald’s did not breach their duty because their customers want hot coffee.

Causation: Stella caused her burns, not McDonald’s.

Damages: Stella should be responsible for her own bills

Hot Coffee: Four Elements of Negligence: