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 tort is a private or civil wrong (offense against an individual). • If someone commits a tort, the person injured as a result can sue and obtain a judgment for damages which is a monetary award intended to compensate the injured party for the harm done to her or him. • This awarding of damages is meant to prevent the desire for revenge by injured party.

5. What’s your verdict? Answer: Does K. C.’s conduct represent a criminal or civil wrong or both? K.C. committed the crime of manslaughter (11 counts) – for which he was tried, convicted, and sentenced to a total of 30 years in jail. K.C. also committed a tort by his negligent conduct in driving the train. In addition, by its management’s failure to correct K.C.’s known violations of its own policies, the railroad was held to be vicariously liable for the injuries and deaths under the master-servant rule. As a consequence, lawsuits brought by the families of the deceased passengers and by the injured recovered more than $32 million in damages mainly from the railroad but also from K.C.’s personal assets, eventually forcing him into bankruptcy.

6. Checkpoint ? What is the difference between a crime and a tort? A crime is a public offense against society. A tort is a private wrong typically against individuals.

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 . • Duty – legal obligation to do or not to do something • Breach – violation of the duty • Injury – harm recognized by the law • Causation - proof that the breach caused the injury

9. Duty • The following are the duties created by tort law: • The duty NOT to injure another (including property, reputation, privacy) • The duty NOT to interfere with property rights of others • The duty NOT to interfere with economic rights of others • It is up to a judge to decide whether or not a duty exists.

10. Violation of the Duty • Must be proved before damages are awarded. • Breach of duty is almost always a question of fact for judge or jury to decide. • Intentional torts acknowledge a breach only when the defendant actually intended to inflict harm. • Negligence doesn’t require intent to inflict harm; it is enough that the harm occurred as a result of neglect or carelessness. • Strict liability 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 proved. • If you act recklessly but no one is injured, there usually is NO tort.

12. Causation • Breach of the duty caused the injury. • There are degrees of causation but when the amount is great enough for it to be recognized by the law it is called proximate cause. • Proximate cause exists when it is reasonably foreseeable that a breach of duty will result in an injury.

13. What’s your verdict? Answer: Did Mason commit a tort? Mason committeed a tort because 1) he owed a duty to the neighbors not to injure their property; 2) he breached the duty when he carelessly left the fire unattended so it spread to the neighbor’s property; 3)the injury occurred when the neighbor’s house was burned; 4) leaving the fire unattended was a proximate cause of the loss of the fence, the tool shed, and the house. Therefore, the neighbor can obtain a judgment against Mason for the value of the loss.

14. Checkpoint ? Name the four elements of a tort. The four elements of a tort are duty, breach, injury, and causation.

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 persons, including minors, are personally responsible for their conduct and liable for their torts. • This includes children and insane persons. • When one person is liable for the actionable conduct of another based solely on the relationship between the two, it is called vicarious liability. • Employers-employees • Principals-agents • Parents-children • Parents can be liable, by statute, up to a specified amount of money for property damage by their minor children (vandalism & malicious destruction of school property, operating motor vehicles).

17. What’s your verdict? Answer: Who was liable for Dorfer’s injuries? Faber’s negligence would result in his being liable to Dorfer for Dorfer’s injuries. In addition, the Bungee Slingshot Company as the respondeat superior can be held liable for the negligence of its agent and employee Faber.

18. Checkpoint ? What parties might be held responsible for another person’s tort? Parents can be held responsible for torts their children commit as can employers for employees’ torts and principals for agents’ torts.

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? • Intentional torts are torts in which the defendant possessed the intent or purpose to inflict the resultant injury. • Different than negligence and strict liability in that those 2 don’t require intent. • Most common types of intentional torts: • Assault • Battery • False imprisonment • Defamation • Invasion of privacy • Intentional inflictionof emotional distress • Trespass to land • Conversion • Fraud

22. Assault • Occurs when one person intentionally puts another in reasonable fear of an offensive or harmful touching. • Can be based on words or gestures. • Must include a display of force indicating a present ability to carry it out. • “Reasonable” must be believable from viewpoint of potential victim. • Examples: • Can be physical – a person may raise a fist threatening to punch you • Can be offensive – a person might threaten unwanted sexual touching by attempting to kiss you

23. Battery • An intentional breach of the duty of refraining from harmful or offensive touching of another. • Examples: shooting, pushing in anger, spitting on, or throwing something and hitting them with it • An assault frequently precedes a battery. • There can be harmful or offensive touching that is not battery if the contact is not intentional. • Contact can also be justified if it is in self-defense.

24. False Imprisonment • The intentional confinement of a person against the person’s will and without lawful privilege. • Examples: handcuffed, locked in a room, car or jail, threatened to stay in one place • If there is consent to being confined it isn’t false imprisonment • When police have probably cause to arrest people, they are privileged to imprison them. • Merchants in many states have a privilege to detain a person if they have reasonable basis for believing a person shoplifted.

25. Defamation • False statement that injures a person’s reputation or good name. • If statement is spoken it is slander. • Must show that you have suffered an actual physical loss, or damages. • If statement is written or printed it is libel. • Here you are presumed to have suffered a loss, so damages don’t have to be shown to the court. • To be legally defamatory, the statement must: • Be false • Be communicated to a third person • Bring the victim into disrepute, contempt, or ridicule by others • Exceptions are made to encourage open discussion of issues of public concern. • Ex. There is no liability for defamatory statements about public officials or prominent personalities unless they were made with malice.

26. Invasion of Privacy • The uninvited intrusion into an individual’s personal relationships and activities in a way likely to cause shame or mental suffering in an ordinary person. • Can also result from unnecessary publicity regarding personal matters so unlike defamation, publication of even a true statement may be an invasion of privacy. • Also includes freedom from commercial exploitation of one’s name, picture, or endorsement without permission. • Examples: illegal eavesdropping with a listening device, interference with telephone calls, unauthorized opening of letters and telegrams • Public figures, such as politicians, actors, and people in the news, give up much of their right to privacy when they step into the public domain.

27. Intentional Infliction of Emotional Distress • Requires an intentional or reckless act by someone that is outrageous or extreme and that causes the victim to suffer severe emotional distress. • Was developed to fill a gap where physical harm is occurring in recovery of assault and battery. • Negligent infliction of emotional distress is currently receiving notice in appellate cases but only become law in a few states.

28. Trespass to Land • Entry onto the property of another without the owner’s consent. • May consist of other forms of interference with the possession of property: Ex. dumping rubbish on the land of another or damaging property of another. • Intent is required. • Even if you thought you were on your own property but were mistaken, there is intent.

29. Conversion • People who own personal property have the right to control their possession and their use; this right is violated if the property is stolen, destroyed, or used in a manner inconsistent with the owner’s rights. • A thief is always a converter. • Occurs even if converter doesn’t know there is a conversion. • Ex. Innocent buyer of stolen goods. • Party injured can receive damages. • Also occurs when someone exceeds the restrictions set by the owner when his or her property is borrowed or leased.

30. What’s your verdict? Answer: Had Hart committed an intentional tort? Yes, because Hart intentionally utilized the pick-up truck for his own ends after moving, thereby denying the owner her use of it, Hart committed the tort of conversion.

31. Interference with Contractual Relations • Parties who breach a contract to which they are a party must pay damages under contract law for the injury suffered by the other party. • If a third party encourages the breaching party in any way, they also may be liable.

32. Fraud • Occurs when there is an intentional or recklessly made misrepresentation of an existing important fact. • Misrepresentation must be made with the intent of inducing someone to enter into a contract and that person must actually enter into the contract. • To recover damages, the person alleging it must not have been able to check on the truth of the statement by exercising due diligence. • Personal statements of opinion or exaggerations are referred to as puffing.

33. Checkpoint ? Name at least six of the most common intentional torts. These include assault, battery, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, trespass to land, conversion, interference with contractual relations, and fraud.

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? • Negligence is the most common tort. • Intent to injure is not required – only careless behavior. • Proven in court by the 4 elements of the tort: • Duty • Breach • Causation • Injury

36. Duty Imposed by Negligence • General duty imposed by negligence is defined by the reasonable-person standard. • Requires that you act with the care, prudence, and good judgment of a reasonable person so as not to cause injury to others. • Jury is asked how reasonable person would act and the answer sets the standard for which the defendant’s actions will be compared. • For children under 7, they can be held to be incapable of negligent conduct. • Children 7-14 are only required to act with the care that a reasonable child of like age, intelligence, and experience would act. • However, if child takes on an adult activity (e.g. driving a car) then they are held to adult standard • Professionals and skilled tradespersons are held to a higher degree of care in their work.

37. Breach of Duty • The “reasonable-person” standard defines the duty of due care in each specific case and then compared to the defendant’s actual conduct to determine whether a violation has occurred.

38. What’s your verdict? Answer: Who will have to pay damages for the injuries and property damage sustained in the accident? A defendant’s actual conduct, such as Britt’s, is compared with the “reasonable-person” standard to determine whether a violation of it has occurred. You could conclude that a reasonable person would drive a car only at a safe speed, only when sober, and at night only when the car’s lights work. Because Britt engaged in speeding, driving while intoxicated, and driving at night without proper lights, she clearly breached the duty of due care set by the reasonable-person standard.

39. Causation and Injury • Violation of the duty must be the proximate cause of the injury.

40. Defenses to Negligence • Cannot recover for loss caused by another’s negligence if the plaintiff also was negligent = contributory negligence. • Most states have substituted comparative negligence for contributory negligence which applies when a plaintiff in a negligence action is partially at fault. • Plaintiff and defendant are awarded damages in proportion to their percentage of responsibility for the accident. • Assumption of risk is another defense if plaintiffs are aware of a danger, but decide to subject themselves to the risk.

41. Checkpoint ? Name the four elements of the tort of negligence. The elements are duty of due care, breach of the duty, causation, and injury.

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 defendant can be held liable if he or she merely engaged in a particular activity that resulted in injury, regardless of whether or not he or she was negligent. • Proof of both the activity and the injury substitutes for proof of a violation of duty. • It is only applied when someone has engaged in abnormally dangerous 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 strict liability cases, states have enacted statutes of repose (nonclaim statutes) that cut off the right to sue for defects in design and manufacturing of products after a certain time, typically 10-12 years, after manufacture or sale.

44. What’s your verdict? Answer: Can she collect in tort from the grocery store or the bottler? Because the bottle was defective and the defect made the product unreasonably dangerous, Mrs. Lamm could collect from either the store, the bottler, or both under strict liability.

45. Checkpoint ? What is strict liability and why is it necessary? Strict liability is a legal doctrine that imposes liability merely upon the showing of an act and a resultant injury by the defendant. It is imposed regardless of the precautions taken or the lack of negligence on the part of the defendant. It is necessary because certain actions are so ultrahazardous that the actor is responsible regardless of the level of care he or she exercises or because it is extremely difficult for an injured party to reliably affix responsibility for the harm that results (for example in a defective product’s manufacturing and distribution chain).

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 2 Types of Remedies Available in a Civil Lawsuit: • Injunctions – court order for a person to do or not do a particular act • Damages– monetary award by the court to a person who has suffered loss or injury • 2 Types of Damages: • Compensatory (also known as actual) – meant to place the injured party in the position he or she was in prior to the injury or loss • Includes: lost wages, doctor’s fees, and a monetary amount to compensate for the injured party’s pain and suffering • Punitive – type of damages generally only awarded in intentional tort cases meant to punish the person who inflicted the injury • Lawyers who handle civil lawsuits can either be paid an hourly rate or receive a percentage of the ultimate recovery should there be one which is called a contingency fee.

49. What’s your verdict? Answer: What kind of damages could Horsley collect from Eardly in a lawsuit? Horsley could recover both compensatory damages (for any provable loss of business) and punitive damages (to punish Eardly for his conduct).

50. Checkpoint ? Name the two remedies available in a civil suit. The two basic remedies available in a civil suit are injunctions and damages.