2. Week 2: Torts
What is the definition of a tort?
Tort . . . A private or civil wrong or injury, other
than breach of contract, for which the court will
provide a remedy in the form of an action for
damages. . . By definition, a tort is "civil (private)
wrong or injury, other than a breach of contract.
3. Torts
Personal injuries have been protected
by law since the beginning of legal
standards.
? What were some of the
“personal injuries” that were
covered by the Code Hammurabi?
4. Elements of a Tort
1. Existence of legal duty from
defendant to plaintiff,
2. Breach of duty
3. Damage as proximate result.
If there is no injury, then there
is no tort.
5. Classification of Torts
So torts are civil wrongs, not criminal, and they are
substantive, not procedural laws. But they can be
either state or federal laws. For example- sexual
harassment laws (Kansas Acts Against
Discrimination AND Title VII).
Torts themselves can be classified into three main
categories:
1. Intentional Torts
2. Negligence
3. Strict Liability
6. Intentional Torts
“Personal harms caused by a wilfull
act:”
Examples of intentional torts:
Assault,
Battery,
False Imprisonment,
Defamation,
Invasion of Privacy,
Trespass
7. Elements of Intentional Torts
Elements of Assault
1. Intentional act
2. Causes a reasonable apprehension
3. Of immediate harmful or offensive contact
Elements of Battery
1. Intentional act
2. Causes harmful or offensive contact
Elements of False Imprisonment
1. Intentional act
2. Confines or restrains a person, without lawful privilege, for an
appreciable length of time
9. Negligence
Negligence is a tort that was not caused
intentionally, but applies to numerous
situations.
? What are the Elements of Negligence?
1. Duty
2. Breach of duty
3. Actual and proximate cause
4. Damage to person or property
10. Duty
Duty- decided by a judge- question of
law
Where a “reasonable person” would
find that a duty exists under a
particular set of circumstances, the
court will generally find that such a
duty exists.
11. Breach of Duty
Breach of Duty- decided by a jury –
question of fact
A defendant breaches such a duty by
failing to exercise reasonable care in
fulfilling the duty.
12. Cause in Fact
“Causation”
Under the traditional rules in
negligence cases, a plaintiff must
prove that the defendant's actions
actually caused the plaintiff's injury.
This is often referred to as "but-for"
causation. In other words, but for the
defendant's actions, the plaintiff's
injury would not have occurred.
13. Causation-cont’d
Proximate cause relates to the scope of a
defendant's responsibility in a negligence case. A
defendant in a negligence case is only
responsible for those harms that the
defendant could have foreseen through his or
her actions.
If a defendant has caused damages that are
outside of the scope of the risks that the
defendant could have foreseen, then the plaintiff
cannot prove that the defendant's actions were
the proximate cause of the plaintiff's damages.
14. Damages
A plaintiff in a negligence case must
prove a legally recognized harm, usually
in the form of physical injury to a person
or to property.
It is not enough that the defendant failed
to exercise reasonable care. The failure
to exercise reasonable care must result
in actual damages to a person to whom
the defendant owed a duty of care.
15. Defenses to Negligence
1. Contributory negligence – 100% defense-
The idea is that an individual has a duty to act as a
reasonable prudent person. When a person does not
act this way and injury occurs, that person may be
held entirely or partially responsible for the resulting
injury, even though another party was involved in the
accident.
If Plaintiff is 1% at fault- then no recovery
2. Comparative negligence – recover money if you
are less at fault than defendant .
16. Defenses, cont’d
3. Assumption of risk – you cannot
recover for participating in a very risky
activity that Plaintiff was well aware of
the danger involved (sky diving).
Perhaps even amusement park rides
.. .?
17. Strict Liability
Liability even though there is no
determination of fault
Elements of Strict Liability
1. Absolute duty
2. Breach of duty
3. Actual and proximate cause
4. Damage to person or property
18. Categories of Tort Damages
Compensatory Damages
The purpose of compensatory damages is to monetarily compensate
the injured person for the loss suffered as a result of the tort.
Compensatory damages can include medical expenses, loss of
income, and pain and suffering.
Punitive Damages
Punitive damages, sometimes called exemplary damages,
may be awarded in addition to compensatory damages.
Punitive damages are intended to punish the wrongdoer
for outrageous or reckless conduct, such as fraud.
Punitive damages differ from a criminal fine in that the
injured person receives the punitive damages, while
criminal fines are received by the government
prosecuting the crime.
19. How To Brief A Case
IRAC
Issue: What is the controversy?
Rule: What cases does the court rely
upon to make it’s decision?
Analysis: Balancing of the facts and
law.
Conclusion: The answer to the
controversy.
20. GARNER v. KOVALAK
Issue: What is the controversy?
Garner claims the court should have
found Kovalak responsible for the
damage to his trees under the theory
of trespass quare clausum fregit.
So the issue is, Whether Kovalak is
responsible for tree damage pursuant
to quare clausum fregit (trespass).
21. Garner v. Kovalak- cont’d
Rule: quare clausum fregit:
Under that theory: [I]t is necessary for the plaintiff
to prove only that he was in possession of the
land and that the defendant entered thereon
without right, such proof entitling the plaintiff to
nominal damages without proof of injury, and
upon additional proof of injury to products of the
soil, the plaintiff is entitled to compensatory
damages. Hawke v. Maus, 141 Ind. App. 126,
131, 226 N.E.2d 713, 717 (1967).
22. Garner v. Kovalak- cont’d
Conclusion:
As a trier of fact could reasonably find
Kovalak’s action was impelled by the
brown Cadillac, we decline to hold as a
matter of law his act was intentional.
23. Garner v. Kovalak- cont’d
Analysis
Kovalak’s actions were not intentional
He swerved into the tree while
avoiding a collision
Insurance company found him not
liable for the accident
An intentional act is one ―resulting for the actor’s will directed to that end.‖
Black’s Law Dictionary 25 (7th ed. 1999). ―An act is intentional when
foreseen and desired by the doer, and this foresight and desire resulted in the
act through the operation of the will.‖ Id. An act done intentionally is also
done voluntarily. Id. at 1569. An act is voluntary if it is ―not constrained,
impelled or influenced by another.‖ Webster’s 3rd New International
Dictionary Unabridged 2564 (G. & C. Merriam Co. 1976).
Example: Defendant is loading bags of grain onto a truck, and strikes a child with one of the bags.The first question that must be resolved is whether the defendant owed a duty to the child? If the loading dock were near a public place, such a public sidewalk, and the child was merely passing by, then the court may be more likely to find that the defendant owed a duty to the child. On the other hand, if the child were trespassing on private property and the defendant did not know that the child was present at the time of the accident, then the court would be less likely to find that the defendant owed a duty.
Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.
The child injured by the defendant who tossed a bag of grain onto a truck could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.
In the example described above, the child injured by the bag of grain would prove proximate cause by showing that the defendant could have foreseen the harm that would have resulted from the bag striking the child. Conversely, if the harm is something more remote to the defendant's act, then the plaintiff will be less likely to prove this element. Assume that when the child is struck with the bag of grain, the child's bicycle on which he was riding is damaged. Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way to the shop, the father and son are struck by another car. Although the harm to the child and the damage to the bicycle may be within the scope of the harm that the defendant risked by his actions, the defendant probably could not have foreseen that the father and son would be injured three days later on their way to having the bicycle repaired. Hence, the father and son could not prove proximate causation.
There are two approaches to comparative negligence. "Pure" comparative negligence is the most flexible approach used to allocate fault. Under pure comparative negligence, a plaintiff's damages would be totaled and then reduced to reflect her contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for her injury, she would be awarded $7,500. Even if the plaintiff was 90% responsible for the injury, she would be entitled to recover 10% of the total damages. Most states, however, have adopted a "modified" comparative negligence scheme. Under this approach, a plaintiff will not recover if he or she is found to be either equally responsible or more responsible for the resulting injury. In other words, in order to recover damages, the plaintiff must not be more than 50% at fault for the resulting injury. States differ regarding whether to preclude damages when the plaintiff is found to be 50% (equally responsible) or 51% (more responsible) for the injury.
Unlike negligence, strict liability imposes an absolute duty in certain situations, including: Ultra hazardous or abnormally dangerous activities Keeping wild animals
