Civil Law and Procedure

1. Civil Law and Procedure Chapter 5

2. Section 5-1 • Private Injuries v. Public Offenses

3. What’s your verdict? K. C. Jones was a railroad engineer on a passenger train that ran up and down the West Coast. A vocal advocate of railroads, he nonetheless often violated railroad policies. For example, he routinely sent text messages to members of a railroad hobby group while the train was in motion and invited guests into the driver’s cab to let them run the train for short moments. His managers knew of his behavior but did nothing to prevent it. One day while sending a text he missed a red signal and crashed his train into another, resulting in 11 deaths and hundreds of injuries. Does K. C.’s conduct represent a criminal or civil wrong or both?

4. How Do Crimes and Torts Differ? • A crime is offense against ______________? • A ______ is a private or civil wrong (offense against an ____________). • If someone commits a ____, the person _________ as a result can ____ and obtain a _____________ for ___________ which is a monetary award intended to compensate the injured party for the harm done to her or him. • This awarding of __________ is meant to ___________ the desire for __________ by injured party.

5. What’s your verdict? Answer: Does K. C.’s conduct represent a criminal or civil wrong or both?

6. Checkpoint ? What is the difference between a crime and a tort?

7. What’s your verdict? On a windy autumn day, Mason was burning dry leaves in his backyard. When he went inside to answer a telephone call, flames from the fire leaped to the next-door neighbor’s fence and then to a tool shed where a small can of gasoline exploded. Soon the neighbor’s house was ablaze, and it burned to the ground. Did Mason commit a tort?

8. Elements of a Tort • There are many specific torts and there are certain elements common to most. • In a trial, these elements must be proved to establish liability .

9. Duty • The following are the duties created by tort law: • The duty NOT to ___________ ____________(including property, ____________, privacy) • The duty NOT to __________ with __________ rights of others • The duty NOT to ___________ with ____________ rights of others • It is up to a ________ to decide whether or not a duty exists.

10. Violation of the Duty • Must be _________ before __________ are awarded. • ________ of duty is almost always a question of ______ for _______ or _______ to decide. • ___________ _______ acknowledge a breach only when the defendant actually intended to inflict harm. • _____________ doesn’t require intent to inflict harm; it is enough that the harm occurred as a result of neglect or carelessness. • ________ ___________ doesn’t require intent or carelessness; liability is imposed b/c a person acted in a certain, extremely hazardous way that caused injury.

11. Injury • Injury resulting from breach of duty must be ________. • If you act ______________ but no one is __________, there usually is ___ tort.

12. Causation • ________ of the duty _________ the injury. • There are __________ of causation but when the amount is ______ enough for it to be recognized by the ____ it is called ___________ __________. • _________ ________ exists when it is reasonably foreseeable that a ________ of duty will result in an __________.

13. What’s your verdict? Answer: Did Mason commit a tort?

14. Checkpoint ? Name the four elements of a tort.

15. 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?

16. Responsibility for Another’s Torts • With few exceptions, all _________, including ________, are personally ____________ for their ________ and _________ for their torts. • This includes __________ and ___________ persons. • When one _________ is liable for the actionable conduct of _____________ based solely on the _________________ between the two, it is called ________________ _________________. • Employers-employees • Parents-children • ___________ can be liable, by statute, up to a ______________ amount of money for _______________ ______________ by their minor _______________ (______________ & malicious ________________ of _________ property, operating motor _________________).

17. What’s your verdict? Answer: Who was liable for Dorfer’s injuries?

18. Checkpoint ? What parties might be held responsible for another person’s tort?

19. Section 5-2 • Intentional Torts, Negligence, and Strict Liability

20. What’s your verdict? When Hart asked to borrow Angelique’s pick-up truck to move some of his furniture to his new apartment, she gave him permission on the condition that he only use it for that purpose and have it back to her by that evening. After he finished moving, however, Hart called a couple of his buddies, hitched his bass boat to the truck, and towed it to the lake. When Hart returned the truck late the next day, Angelique told him she was suing him. Had Hart committed an intentional tort?

21. What Are the Most Common Intentional Torts? • ________________ ________ are torts in which the defendant possessed the intent or purpose to inflict the resultant injury. • Different than ____________ and __________ ____________ in that those 2 don’t require __________. • Most common types of intentional torts:

22. Assault • Occurs when one person _______________________ puts another in ______________ _______ of an ______________ or harmful ______________. • Can be based on __________ or __________________. • Must include a _________ of _______ indicating a present ability to carry it out. • “______________” must be believable from viewpoint of potential ____________. • Examples: • Can be ______________ – a person may raise a fist threatening to punch you • Can be ______________ – a person might threaten unwanted sexual touching by attempting to kiss you

23. Battery • An intentional breach of the duty of _____________ from ____________ or offensive ___________ of another. • Examples: __________, pushing in anger, __________ on, or throwing something and __________ them with it • An ___________ frequently precedes a _____________. • There can be harmful or offensive touching that is not battery if the contact is not ________________. • Contact can also be justified if it is in ___________________________.

24. False Imprisonment • The intentional _______________ of a person against the person’s _____ and without lawful ______________. • Examples: ___________, ________ in a room, car or jail, ______________ to stay in one place • If there is __________ to being confined it _______ false imprisonment • When police have _____________ ____________ to __________ people, they are ______________ to imprison them. • ____________ in many states have a privilege to __________ a person if they have reasonable basis for believing a person _______________.

25. Defamation • ________ statement that __________ a person’s ____________ or good _______. • If statement is ___________ it is ____________. • Must show that you have suffered an actual __________ loss, or ______________. • If statement is ________ or ___________it is ________. • Here you are _____________ to have suffered a _____, so damages _________ have to be shown to the court. • To be legally ____________, the statement must: • Exceptions are made to encourage open discussion of issues of _________ ___________. • Ex. There is ____ liability for defamatory statements about ________ __________ or ______________ _____________ unless they were made with ___________.

26. Invasion of Privacy • The uninvited _______________ into an individual’s personal _________________ and ____________ in a way likely to cause _______ or mental ____________ in an ordinary person. • Can also result from _______________ publicity regarding ______________ matters so unlike ______________, ______________ of even a _______ _____________may be an invasion of privacy. • Also includes ______________ from commercial ______________ of one’s __________, __________, or _______________ without _________________. • Examples: illegal eavesdropping with a listening device, interference with telephone calls, unauthorized opening of letters and telegrams • Public figures, such as ______________, ________, and people in the ________, give up much of their right to privacy when they step into the ____________ __________.

27. Intentional Infliction of Emotional Distress • Requires an ______________ or ____________ act by someone that is _____________ or ______________ and that causes the ________ to suffer severe __________ _______. • Was developed to fill a _____ where _________ harm is occurring in recovery of ____________ and ____________. • ___________ __________ of __________ __________ is currently receiving notice in appellate cases but only became law in a ____ states.

28. Trespass to Land • _______ onto the ____________ of __________ without the owner’s _____________. • May consist of other forms of ______________ with the _____________ of property: Ex. dumping rubbish on the land of another or damaging property of another. • ___________ is required. • Even if you thought you were on your own _____________ but were _____________, there is ____________.

29. Conversion • People who own personal property have the right to ___________ their ____________ and their ____; this right is ___________ if the property is _______, ___________, or used in a manner _______________ with the owner’s __________. • A ___________ is always a __________________. • Occurs even if _____________ doesn’t know there is a _____________. • Ex. Innocent buyer of stolen goods. • Party injured can receive ______________. • Also occurs when someone ____________ the _______________ set by the _________ when his or her property is __________ or ___________.

30. What’s your verdict? Answer: Had Hart committed an intentional tort?

31. Interference with Contractual Relations • Parties who __________ a contract to which they are a party must pay ___________ under __________ law for the injury ____________ by the other party. • If a _______ party ______________ the _______________ party in any way, they also may be _______.

32. Fraud • Occurs when there is an ________________ or __________________ made ________________________ of an existing important ______. • _______________________ must be made with the intent of ____________ someone to enter into a ____________ and that person must _______ __________into the contract. • To ___________ damages, the person alleging it must not have been able to ________ on the _______ of the statement by exercising ____ _______________. • __________ statements of __________ or _____________ are referred to as _________.

33. Checkpoint ? Name at least six of the most common intentional torts.

34. What’s your verdict? Britt was driving home late one rainy night after drinking alcohol all evening. With only one working headlight, she raced down residential streets at speeds up to 60 miles per hour. Meanwhile, Yee was slowly backing her station wagon out of her driveway, but she failed to look both ways when she should have. Britt rammed into the right rear end of Yee’s car. Both Yee and Britt were injured in the collision and their vehicles severely damaged. Who will have to pay damages for the injuries and property damage sustained in the accident?

35. What Constitutes Negligence? • ____________ is the most common __________. • _________ to injure is _____ required – only ______________ behavior. • Proven in court by the ___ elements of the tort:

36. Duty Imposed by Negligence • General duty imposed by negligence is defined by the _____________________ _____________. • Requires that you act with the _____, _____________, and good _______________ of a _________________ person so as not to cause ___________ to others. • ______ is asked how ______________ person would ____ and the answer sets the _____________ for which the defendant’s ________ will be ___________________. • For children under __, they can be held to be _________ of negligent conduct. • Children _____ are only required to act with the care that a ____________ child of like ____, ________________, and _______________ would act. • However, if _____ takes on an _____activity (e.g. driving a car) then they are held to _______ standard • _____________________ and skilled _________________________ are held to a higher ________________ of care in their work.

37. Breach of Duty • The “_____________________” standard defines the _______ of ___ ______ in each specific case and then _____________ to the defendant’s _________ conduct to determine whether a ______________ has occurred.

38. What’s your verdict? Answer: Who will have to pay damages for the injuries and property damage sustained in the accident?

39. Causation and Injury • Violation of the _____ must be the _____________ cause of the ___________.

40. Defenses to Negligence • _____________ recover for loss caused by _____________ negligence if the ________ also was ____________ = _____________ negligence. • Most states have substituted _____________ _________________ for _______________ negligence which applies when a __________ in a negligence action is _____________ at fault. • __________ and _____________ are awarded ___________ in proportion to their _______________ of ______________ for the accident. • ________________ __ ________ is another defense if plaintiffs are __________ of a ___________, but decide to __________ themselves to the risk.

41. Checkpoint ? Name the four elements of the tort of negligence.

42. What’s your verdict? While grocery shopping, Mrs. Lamm placed a large glass container of a new drain cleaner in her shopping cart. Later, when she set the container on the check-out counter, it exploded. The flying glass cut her in several places. Can she collect in tort from the grocery store or the bottler?

43. Why Is Strict Liability Necessary? • A _____________ can be held ______ if he or she merely _____________ in a particular activity that resulted in _______, regardless of whether or not he or she was ___________. • _______ of both the ___________ and the __________ substitutes for _______ of a ____________ of ________. • It is only ____________ when someone has engaged in ______________ ________________ activities. • Ex. – target practice, blasting, crop dusting with dangerous chemicals, or storing flammable liquids in large quantities, ownership of dangerous animals, sale of goods that are unreasonably dangerous (merchant and manufacturer are liable). • In reaction to the number of _______ ___________ cases, states have enacted __________ __ ____________ (nonclaim statutes) that ___ off the right to ___ for _______ in design and manufacturing of products after a certain _______, typically ________ years, after manufacture or sale.

44. What’s your verdict? Answer: Can she collect in tort from the grocery store or the bottler?

45. Checkpoint ? What is strict liability and why is it necessary?

46. Section 5-3 • Civil Procedure

47. What’s your verdict? Horsley, the owner of a dry cleaning store, lived next door to Eardly, who ran a competing dry cleaning store in the same town. The two quarreled frequently and became enemies. One summer night Eardly composed, printed, and secretly posted around town a flyer accusing Horsley of dealing drugs out of Horsley’s store. The accusation was untrue and defamatory. Several witnesses saw Eardly posting the flyers. What kind of damages could Horsley collect from Eardly in a lawsuit?

48. Remedies Available in a Civil Suit ___ Types of Remedies Available in a Civil Lawsuit: • ________________– court order for a person to do or not do a particular act • ________________– monetary award by the court to a person who has suffered loss or injury • ____ Types of Damages: • _______________________ (also known as __________)– meant to place the injured party in the position he or she was in prior to the injury or loss • Includes: lost ________, __________ fees, and a monetary amount to compensate for the injured party’s _________ and ______________ • _____________– type of damages generally only awarded in _________________ tort cases meant to ___________ the person who _____________ the injury • Lawyers who handle civil lawsuits can either be paid an ______________ ______ or receive a _______________ of the ultimate _____________ should there be one which is called a ____________________ ______.

49. What’s your verdict? Answer: What kind of damages could Horsley collect from Eardly in a lawsuit?

50. Checkpoint ? Name the two remedies available in a civil suit.