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American tort law originated in the English common law; which is also known as judge-made law or case law. Even though the most areas of law have already been codified, tort law may primarily be found in the court opinions today. The torts are constantly changing and evolving through the common law and the society, this is why the tort law is rather a process than a body of rules. Tort law is often referred to as Personal Injury law in the United States. There are three primary types of wrongdoings: negligence torts, intentional torts, and strict liability torts. NEGLIGENCE TORTS are defined by the way they have been committed – through negligence – rather than as a distinct category of torts. In case of negligence, a person’s behavior created foreseeable risk of consequences that resulted in the injury of another person. Medical malpractice lawsuits may serve as an example. INTENTIONAL TORTS include assault, battery, false imprisonment, infliction of mental distress, defamation, misrepresentation, invasion of the right to privacy, trespass to land or personal property, conversion, nuisance, and infringement of trademarks, patents, and copyrights. The third area of torts involves STRICT LIABILITY TORTS or torts with liability without fault. It is e.g. the productliability.

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NEGLIGENCE

Negligence has become the largest area of tort law. It is the breach of legal duty to take care which results in damage to the plaintiff. This definition can be broken down to four parts, where each part needs to be proven by the plaintiff. (1) The plaintiff was owed a DUTY OF CARE. (2) There was a BREACH of that duty of care. (3) The plaintiff suffered DAMAGE as a result of that breach (CAUSATION). (4) The damage wasn’t REMOTE.

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DUTY OF CARE The first element of negligence is the duty to take care. It concerns special relationships between the defendant and the plaintiff. There are a number of situations where the relationship was recognized by the courts, e.g. one road-user to another, doctor to patient, manufacturer to consumer, lawyer to client. Duty of care means the duty to behave reasonably, as a reasonable prudent person would do under certain circumstances. Behavior of the defendant will be compared to that of a reasonable person – What would a person with an ordinary degree of reason, prudence, care and foresight do in a similar situation. Thus it is in fact an average person, not a perfect one. Key case: duty of care CASE 1 Employer was found liable for injury to a miner as a result of unsafe conditionsfor work. Legal principle: ¾ ¾

Proximity of relationship – employer and employee – in this case it is just, fair and reasonable to impose a duty Reasonable foresight of harm – reasonable prudent person would foresee the possibility of harm CASE 2

A female drank a soft drink with a decomposed snail inside. She took ill and sued the manufacturer. Legal principle: The defendant was in a proximate relationship with a duty to take care – manufacturer to consumer, he breached this duty, and as a result of that breach, the plaintiff suffered damage. Exercise – Think of other similar situations, write down the possible plaintiff and the defendant, and explain the legal principle of the case.

BREACH OF DUTY It is the second element of negligence. If it is established that a duty of care exists in a particular situation, the next step in proving the liability of

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defendant is to decide whether the defendant is in breach of that duty. In other words the person did not provide the standard of care required by law. A driver, for example, has a duty to use reasonable care to avoid accidents and injury. If he fails to do so, he has breached his duty and will be responsible for the caused injury.

CAUSATION Causation simply means that there is a link between the act of the defendant and the result of this act – the harm suffered, or between defendant’s negligence and plaintiff’s injury, harm, loss. This link is also called the causal link – or the chain of causation. The question to be asked is the following: Did the defendant cause the harm? Besides the act, also the omission of an act may lead to an injury, harm, or loss (e.g. not wearing a helmet, not fastening the seatbelts). The general test used by the courts to determine causation is the “but for” test. The question asked by the courts is “but for the defendant’s breach of duty, would the loss/damage have occurred?” or in other words “but for the action, the result would not have happened.” In some situations the “but for” test is not always straightforward. If it rains, one could say that but for the rain you would not have caused an accident – the rain may be the cause of accident, but cannot be culpable. Therefore another test used is the proximity cause. It is the demonstration that the injury or harm is not remote and was foreseeable as a result of defendant’s act. Foreseeability determines whether the defendant could foresee the risk of his conduct, the consequences or the harm caused.If the defendant should have foreseen the harm or injury, he will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed. The chain of causation may be broken by the intervening act. Something that jumps inbetween the act and its result. The intervening act may be: an act of third party, an act of God (superior power, vis major), or act of plaintiff. If one of the mentioned acts breaks the chain of causation, the defendant may not be liable. Key case: intervening act The plaintiff was injured at work due to his employer’s negligence. Later he slipped on a staircase and injured his back. He lost 50% of his earning capacity as a result.

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Legal principle: The injury to the spine was held to be a new intervening act for which the defendant wasn’t liable. It was a new act which did break the chain of causation. The vast majority of states have a system of comparative negligence. It means that a jury compares the acts of parties and then attributes the fault. A defendant is obligated to pay only the amount of damages he caused by own negligence. So if the plaintiff’s negligence caused 20 percent of the damage, the defendant would only be responsible for 80 percent of damage sustained. Said in other words, financial compensation will be reduced by plaintiff’s percentage of negligence.

REMOTENESS OF DAMAGE The final element required in establishing negligence is remoteness of damage. Actually it is the extent of damage that is attributable to the defendant. It states what the defendant is responsible for. This may include direct and indirect consequences of a negligent act as displayed in the case below. Key case: remoteness of damage Containers of petrol were put on board a ship. The cargo hold filled with petrol vapor which ignited when a heavy plank was dropped into the hold by a worker on ship when the ship was unloading. The fire destroyed the ship. Legal principle: The defendants were liable for all damages which resulted from the breach of duty, regardless of whether the damage was foreseeable by the defendant. If some damage was foreseeable, defendant is liable for all such damage irrespective of the foreseeability of its extent and its immediate cause. Exercise: Try to invent a story where the negligent act of defendant in a chain of events causes damage, injury to one or more plaintiffs. Exercise: Identify the possible plaintiff, and the elements of negligence – the duty to take care, breach of duty, and the amount of damage in the following cases: a.

John drove a car that struck pedestrian James who was crossing the road. Neither saw each other because of other traffic. James injured his

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b. c.

d.

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leg and ankle. John had been driving at excessive speed or had failed to keep a proper look-out. James did not see that more than one car was approaching and did not wait until they had passed. A driver hit the accelerator instead of brake; his vehicle crashed into another vehicle and harmed the passenger sitting inside. USA Today reported a case of medical malpractice that happened to Dana. Roughly two months after the double bypass operation that was supposed to preserve her life, Dana received the news that the surgeon had bypassed one of the wrong arteries. A surgery was intended to have removed a tumor located in the abdomen of patient. The tumor was removed. In its stead was left a 13 inch long metal retractor. n

INTENTIONAL TORTS

An intentional tort occurs when the defendant intentionally commits a certain wrong(tort) and another is harmed by it. The intentional torts are actions made with the purpose or intent to injure another person or his property. There are intentional torts against person and intentional torts against property. The intentional torts against person include: assault, battery, false imprisonment, infliction of emotional distress and defamation. Assault and battery Assault is an attempt or immediate threat of causing immediate bodily harm, offensive physical contact. An assault need not result in actual touching, but the victim must have reasonable fear of harm or contact. The assault is known as the apprehension (expectation) of force, harm. The court will consider whether the fear was reasonable. An assault may be a tort and a crime. It is often combined with battery. The assault may be done by words, gestures or conduct. Battery is intentionally or recklessly causing offensive physical contact or bodily harm, to which the victim does not consent. It is the intentional and direct application of force. Battery can be both a tort and a crime. Anyone who comes into contact with some part of defendant’s body (violates the right to bodily integrity) or clothing without consent of the defendant may be liable for battery. In this case no damage needs to be proven; it is enough that the right was violated. These torts are actionable

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“per se”, i.e. there is no need for proving damage or harm. It should be remembered that the difference between battery and negligence – battery is intentional action whereas negligence is unintentional. Key case: battery A boy put a firecracker in the left sneaker of plaintiff, who sustained burn injuries. Legal principle: The conduct of the defendant was intentional, and intentional conduct cannot be negligent conduct, which applies also vice versa. The only evidence of any conduct of the defendant on which liability could be based, was the intentionality of the behavior. His conduct was thus battery. Comparison of Battery and Assault ASSAULT

BATTERY

The defendant causes the victim to apprehend immediate unlawful violence

The defendant applies unlawful force to the body/clothing of victim without consent

The attack to victim is imminent

The attack to victim takes place

John sees Mark running towards him with an axe in his hands

Mark hits John with the axe

False imprisonment “unlawful violation of the personal liberty of another“ The situation where the plaintiff’s liberty or movement was constrained is called false imprisonment. False imprisonment is the act of restraining the freedom of a person against his will, and without having legal authority for such conduct. For example, if someone prevents you from leaving a room or vehicle. The essential elements of false imprisonment include: ¾

willful detention,

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without consent,

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without authority of law.

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What are the possible defenses to false imprisonment? Some examples of the defenses to false imprisonment include: Arrest under legal authority – it is a complete defense, where the restriction of freedom is under legal authority or justification. Consent – where there is voluntary consent, there is no false imprisonment. Probable cause – the existence of probable cause is a complete defense to false imprisonment. It is defined as a situation where there is strong suspicion that the person in question is guilty. Merchants who have reasonable ground to believe a person stole something, may detain such person Self-defense – in some states the law permits everyone to use reasonable force to defend themselves from bodily harm Parental rights – parents have right to restrict the freedom of their children by bringing them up Possible penalties for false imprisonment if brought to court as a civil case are up to 1 year in jail and/or up to 2,000$ in fines. Intentional Infliction of Emotional Distress – Mental Distress Intentional infliction of emotional distress occurs when the defendant acted intentionally or recklessly, his conduct was extreme and outrageous and caused the plaintiff mental distress. Such behavior must be seen as intolerable behavior in the civilized community. The defendant will be liable for causing mental distress, if it is proven that the conduct was outrageous and extreme as mentioned earlier. The courts will consider the behavior to be outrageous, if it is a series of conduct rather than a single incident, if the plaintiff was susceptible to emotional distress and the defendant knew it, and if the defendant had actual or apparent authority and misused it. EXERCISE: Identify the elements of outrageous/extreme conduct in the example case below: The plaintiff entered into a contract for the purchase of car. She took the car and paid the purchase price. The plaintiff dealt directly with a salesperson, an employee of car selling company. The employer approved the transaction based on representations from the salesperson, which later

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turned out to be erroneous in the calculations. When the employer discovered it several days later, he instructed the salesperson to make good the loss (app. 1000 dollars) either by demanding more money from plaintiff, retrieving the car, or paying the difference out of salesperson’s salary. The salesperson refused to do so, but his colleague Anthony telephoned the plaintiff and asked her to return the car as it is recalled. The plaintiff came to the showroom, but refused to give up possession of her car. Anthony yelled, screamed, used abusive language, grabbed her by the arm in a threatening manner, threatened her and intimidated her when she attempted to secure the return of her car. Both the employer and the salesperson knew the plaintiff for many years, and knew that she had seen her husband die. EXERCISE: Try to make up a story that establishes the infliction of mental distress. Further examples of intentional torts against person include: defamation (slander, libel), invasion of privacy, malicious prosecution. Defamation – is an untrue statement of fact about the plaintiff that harms his reputation due to the information said or communicated. The defamatory statement must be intentional, false, and published to a third party. The statements that meet these criteria may be spoken, written or otherwise expressed. There are two types of defamation – slander (non-permanent form of defamation, expressed orally) and libel (permanent form – in newspapers, letters, magazine, book, photo, video, internet, etc.) Invasion of privacy – means the intrusion into personal life of another without just cause. The situation differs with public personages, but as a non-public individual one has right to privacy from intrusion of its own private affairs, from public disclosure of embarrassing private information, putting you in false light, or using of your name for personal or commercial advantage. Malicious prosecution is the malicious institution of unsuccessful civil or criminal proceedings. It is in fact the abuse of the process of court by wrongfully setting the law in motion. In order to succeed, the plaintiff must prove that there was a prosecution without any just and reasonable cause, initiated by malice and that the case was decided in the plaintiff’s favor. It is necessary to prove that damages were incurred by the plaintiff as a result of the prosecution. Plaintiff has to prove the existence of malice. A specific class of intentional torts is represented by torts to property. A tort to property arises when a property right of the person is invaded rather

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than their personal rights. The property torts include – nuisance, trespass to land, trespass to goods. An activity or state of affairs that interferes with the use or enjoyment of land or rights over land constitutes private nuisance. Activity that interferes with safety, health or comfort of the public at large constitutes public nuisance. While the private nuisance mainly concerns disputes of neighbors, i.e. it affects a particular individual or property, public nuisance impacts a wider group of people.

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STRICT LIABILITY TORTS

This is the third major group of torts. The liability for committing a strict liability tort is imposed even in the absence of intent to injure or negligence. It is known as strict liability or liability without fault. Strict liability is imposed on manufacturers of defective products that might cause injuries. The lawyers call it product liability. This part of torts tries to regulate activities that create dangerous risks and frequently it is impossible to prove negligence. Consider the following case. Plaintiff was a waitress, and her job was to put the Coca-Cola bottles into the refrigerator. On one occasion, a bottle exploded in her hands. Plaintiff sued defendant for selling bottles containing beverage bottled with excessive pressure of gas. The defendant was strictly liable for selling a defective product that caused injury to humans without the need to prove negligent behavior. The key is that the product was in a condition unreasonably dangerous. Whether the manufacturer acted negligently or not, doesn’t matter. The courts developed strict products liability for four major reasons: 1. 2. 3. 4.

negligence is difficult or impossible to prove, strict liability induces the manufacturers to produce safe products, manufacturers promote their product as safe, so expectations of consumers should be protected, the cost of the injury should be shifted to the manufacturer – the product should include its cost (higher price – including the cost of injuries it produces).

A product may be defective because of a defect in manufacturing or design or a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product. The manufacturer is not deemed responsible when injury results from an unforeseeable use of its product.

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REMEDIES IN TORT LAW

The primary remedies available in tort are damages. The idea behind the award of damages is to return the plaintiff to the position as if the tort did not occur. Of course, some harms, losses or injuries are easily quantifiable, while in some situations it is hard to specify the value lost. In addition to the difficulties of calculating the value of various damages, other factors need to be taken into account such as the duty to mitigate the loss. The plaintiff himself must take steps to keep the losses to a minimum. Examples of damages: Special damages

General damages

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are those that may be calculated at the time of the trial; the calculation is presented to the court

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are not capable of being calculated at the time of trial; the court quantifies these damages

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loss of earnings before trial

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loss of future earnings

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medical expenses prior to trial

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cost of future medical expenses

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damage to property (e.g. loss of vehicle in an accident)

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pain and suffering

Nominal and Contemptuousdamages Nominal damages are awarded when the plaintiff’s rights were infringed, but the harm is of a little amount. They are frequently awarded in relation to torts where the primary aim of the plaintiff is to obtain injunction. (The aim is to solve that the neighbor parks the car on its property, for example.) Contemptuous damages – are awarded when the level of harm caused is low, and the court feels the action should not have been brought at all. Aggravated and Punitive damages Aggravated damages are additional sums of money, over and above damages that are necessary to return the plaintiff to previous position (as if no tort was committed). They reflect an aggravating factor, injury to feelings, anxiety or distress caused by the defendant. Punitive damages are also an additional amount, punishing the defendant and teaching the defendant not to commit the tort again, deterring others from doing it.

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