Civil Law and Procedure
Chapter 5
5-1: Private Injuries v. Public Offenses
Difference between a crime and a tort:
A tort is a private wrong committed by one person against another, whether intentional or accidental. Torts involve interference with others rights that involve injury to another's person, property, reputation, and for which the injured party is entitled to compensation.
2) The plaintiff can sue for damages, money/compensation for injury, and any loss suffered as a result of the injury.
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.
What are your rights as a member of our society?
If someone knowingly violates these rights even though they know it's wrong, they are committing an intentional tort.
Example of a case that can be a crime and a tort
Sometimes a case can be considered both a crime and a tort. One of the more famous examples to help illustrate the contrast between crimes and torts, which received massive media coverage, is the criminal case of O.J. Simpson in his prosecution for the alleged murder of his wife and her friend, Ronald Goldman.
O.J. Simpson was found not guilty, by a jury, of any criminal charges related to their death; however, the families of the deceased brought actions in tort, an action for wrongful death and for battery in that case, against O.J. Simpson. Mr. Simpson lost that case, and the jury awarded a $33,500,000.00 dollar verdict against him.
How can this be? How can O.J. Simpson be found not guilty of killing his wife and her friend, but found liable (i.e., legally responsible) for battery as to his wife and for battery and wrongful death as to her friend in tort?
4) The plaintiff's attorney had the burden of proof - they had to prove it was more likely than not that the defendant was negligent and that the defendant's negligence caused the plaintiff injuries.
The jury found it was more likely than not that he was legally responsible for their deaths and the Court ordered him to pay damages to their families as the jury had found.
Elements of a tort
In a trial, these elements must be proved to establish liability (legal responsibility).
The elements of most torts include
5) Duty ~ a legal obligation to do or not to do something
- the duty not to injure another (including injury to someone’s person or property, injury to someone’s reputation, or invasion of someone’s privacy)
- the duty not to interfere with the property rights of others, for example, by trespassing on their land
- the duty not to interfere with the economic rights of others, such as the right to contract
6) Breach of Duty ~ a violation of the duty
- must be proved before the injured party can collect damage
- intentional tort ~ the defendant actually intended to inflict harm by her or his action
- a)Negligence ~ the harm occurred as a result of the neglect or carelessness of the defendant.
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.
7) Injury ~ injury resulting from the breach of duty must be proved
8) Causation ~ proof that the breach caused the injury
The question is, but for the defendant’s actions would the injury have occurred?
Example: A hits B in the shin with a golf club. B’s shin would not have been injured if A had not him in the shin with a golf club.
a) Proximate cause - exists when it is reasonably foreseeable that a breach of duty will result in an injury
When one person is liable for the actionable conduct of another based solely on the relationship between the two, the liability is called vicarious liability. Such relationships exist between employers and employees, principals and agents, and parents and children.
9) Felicia carelessly left a campfire before it was completely extinguished. The fire spread through the woods and caused the destruction of a nearby lodge.
Is she liable to the lodge owners for the loss of income until the lodge can be restored?
Do you think she is liable to the persons who had reservations for the lodge but whose trips are now ruined?
Answer #10-13
What's Your Verdict?
Dorfer and his Delta frat mates drove to Florida on their spring break. Spying the twin poles of the “Bungee Slingshot” from the balcony of their beach-front room, Dorfer paid the admission. He was placed in the “launch pad” by Wanton Faber, a student at the local high school hired at minimum wage to sell tickets to the ride. Unfortunately, as he was only standing in for the owner for a few minutes and not trained in the job, Faber did not properly fasten the harness meant to restrain Dorfer from truly being slung into midair by the bungee cords. As a consequence, Dorfer was shot at a high velocity from the slingshot and skipped three times across the surface of the Atlantic Ocean before finally sinking beneath the waves. Rescued, but suffering from various broken bones and fish bites, Dorfer was taken to a nearby hospital.
Who was liable for Dorfer’s injuries?
5-2:Intentional Torts, Negligence, and Strict Liability
Tort of Assault
An example: Pointing a gun at someone's head would cause the victim to believe he/she is about to be harmed.
Under tort law, there is a plaintiff, who is the injured party, and a tortfeasor, who essentially is the defendant in the action.
The plaintiff would have to prove:
- they perceived immediate physical contact with the defendant
- they had suspicion that he/she was in eminent danger
- the actions of the defendant/tortfeasor were intentional, not accidental
You can assume that anytime someone points a gun at another person, one would experience eminent fear, believe the threat to be serious and perceive the action to be intentional.
The difference between crime of assault and tort of assault
The crime of assault (an attempted battery) the intended victim need not be aware of the attempt at all (example: could be carried out on an unconscious person).
Tort of Nuisance
In a private nuisance, a defendant engages in some activity that interferes with the plaintiff's right to enjoy his property. A land owner is entitled to a certain level of comfort that is free from interference while on his private property. Private nuisance can come in the form of physical damage to the property or the disturbance of comfort.
The courts will consider:
- Did the defendant's actions interfering with the plaintiff's enjoyment of property and violating their right to comfort?
- Did the defendant make any attempts to minimize the alleged nuisance?
- Were the defendant's actions continuous over time and not an infrequent occurrence?
False Imprisonment
A police officer can arrest you but they need probable cause or a warrant.
A store manager or store security can detain suspected shoplifters for a reasonable amount of time.
Defamation
Examples of defamatory statements: Saying someone has committed a serious crime (before they have been found guilty at trial); saying someone has an infectious or terrible disease, or saying someone is incompetent in his job, trade, or profession (if these things are untrue or cannot be proven).
Opinions are not defamatory, but be careful who you say things to and how you say them.
Two categories of defamation:
- slander - a false statement that is spoken to a 3rd party
- libel - a false statement in written/printed form that injures another's reputation or reflects negatively on that person's character
To prove defamation the plaintiff must prove the false statements were made about them with actual malice and made knowing that it was false, or with a reckless disregard for whether it was true.
A plaintiff in a defamation case is entitled to receive damages for any actual injuries that he/she incurred as a result of the defamatory statement. This could include lost wages, and pain and suffering, as well as impairment to reputation, personal humiliation, shame, and disgrace.
Invasion of Privacy
Negligence - Unintentional Torts
A person can be held liable for any damages they cause through their careless (negligent) behavior. The plaintiff will have to show that the defendant was at fault for his/her injury.
Example: You forget to lock your fence gate and your dog gets loose and attacks someone. You will be responsible for the damages, paying for the medical care needed to treat the victims injuries.
At all times, all U.S. citizens have a legal duty to act reasonably so as to avoid injuring other people. When people fail to meet this legal duty, they may be liable for any resulting injuries to others.
To win a negligence case these four elements must be proven:
An example: Pete rides the bus to work every day. One day, Dave, the bus driver, fails to pay attention while driving, runs a red light, and strikes another bus. Pete suffers a broken arm. Pete sues the bus company for his injuries.
Pete would have to prove that Dave had a duty to act (duty of care) with a level of care to keep passengers safe. He would have to prove that Dave breached the duty of care. (Dave ran the red light because he was not paying attention.) Pete would also have to prove that he was harmed. (His broken arm.) And, Pete would have to prove the breach of duty caused the harm. (Pete would not have been injured if Dave had been paying attention.)
If one of these four elements can not be proven, the plaintiff will lose their case.
5.3 - Civil Procedure
Contributory and Comparative Negligence
If the defendant can prove the plaintiff's own negligence helped cause the injuries they can lose the lawsuit.
An example: Dave was driving down Broad Street where he hits Sally, who was crossing the street without checking traffic and ignoring the do-not-cross sign at the traffic light.
Sally would most likely be at least partially at fault for carelessly crossing the street and Dave would win the case, or he would not have to pay as much in damages as he would had she not also been found negligent.
Comparative Negligence - The negligence of each party is compared and the amount of the plaintiff's recovery is reduced by the % of his/her negligence.
An example: Sally was awarded $10,000 and the judge or jury determined that she was 25% responsible for her injury, so she is awarded $7,500.
Assumption of Risk
An example: Jason went to Kings Island and rode the Banshee, a ride that flips passengers completely upside down. He rode the ride, knowing this would happen, and injured his neck while on the ride. Jason was aware of the risk and rode anyway.
If something went wrong, such as a loosened bolt that caused the ride to malfunction, causing Jason's injury, he would not have assumed that risk.
Strict Liability
Example of strict liability: Say you owned an exotic Python. If the snake creeps out of the house and bites your neighbor, you will be held responsible even though you did not let the snake out. You are responsible because you are the owner.
The buyer or anyone injured because of a product defect can sue. The person could be injured no matter how careful they were, but, they do have to prove that the product was defective.
Another form of strict liability comes with engaging in abnormally dangerous, ultra-hazardous, acts. These acts can be defined as an act that carries substantial risk to oneself and others' personal property and physical being.
Examples of ultra-hazardous activities - using explosives, keeping wild animals, storing highly flammable liquids.
Two types of remedies in a civil lawsuit
Damages - a monetary award by the court to a person who has suffered loss or injury because of the act or omission of another
- Compensatory - meant to place the injured party in the position he or she was in prior to the injury or loss. Under tort law these damages are the sum of the injured party’s lost wages, doctor’s fees, and a monetary amount to compensate for the injured party’s pain and suffering.
- Punitive - a type of damages generally only awarded in intentional tort cases. They are meant to punish the person who inflicted the injury.
Procedure for a Civil Case
Initiation of the Case
- Plaintiff files a complaint with the court - makes allegations which detail the injury he or she has received at the hands of the defendant and asks for appropriate relief typically in the form of a dollar amount of damages and/or an injunction
- A summons (a court order to appear in court) is sent to the defendant
- The defendant will file an answer (legal document containing the defendant’s responses to the complaint’s allegations)
- Discovery may involve taking sworn statements called depositions from parties and witnesses conducting physical exams of the parties.
- Judge or Jury hears the case (evidence, testimony) and makes a decision.