Chapter 5 Civil Law and Procedure

1. Chapter 5Civil Law and Procedure 5-1 Private Injuries vs. Public Offenses 5-2 Intentional Torts, Negligence, and Strict Liability 5-3 Civil Procedure Chapter 5

2. 5-1 Private Injuries vs. Public Offenses GOALS • Distinguish a crime from a tort • Identify the elements of torts • Explain why one person may be responsible for another’s tort Chapter 5

3. HOW DO CRIMES AND TORTS DIFFER? • Offense against society - CRIME • Offense against individual - TORT Chapter 5

4. What is the difference between a crime and a tort? Chapter 5

5. ELEMENTS OF A TORT • Person wronged can sue and recover damages (monetary awards to compensate the injuery) • Prevent revenge • Duty – legal obligation to do/not do something • Judges decide based on state statutes/case law or federal law • Violation of the duty – BREACH • INJURY • CAUSATION Chapter 5

6. ELEMENTS OF A TORT • Duty – legal obligation to do/not do something • Judges decide based on state statutes/case law or federal law • Duty not to injure another (bodily, reputation, invasion of privacy) • Duty not to interfere with property rights (trespassing) • Duty not to interfere with economic rights Chapter 5

7. ELEMENTS OF A TORT • Violation of the duty (breach) – determined by judge/jury • Intentional torts – require intent • Negligence – no intent required; harm is caused by carelessness • Strict liability – no negligence or intent • Violation simply for acting a certain way (dangerous activites Chapter 5

8. ELEMENTS OF A TORT • Injury – harm recognized by law • Must be proved; usually no harm – no tort • Causation – proof that the breach is what caused the injury • Proximate cause – reasonably foreseeable that a breach will result in injury Chapter 5

9. Name the four elements of a tort. Chapter 5

10. RESPONSIBILITY FOR ANOTHER’S TORTS • Vicarious liability – one person is liable for torts of another (employees and parents) • All persons (including minors) are responsible for their conduct – and thus their torts • Children and insane people • Parent Liability Laws – vandalism, destruction of property, motor vehicle damages Chapter 5

11. What parties might be held responsible for another person’s tort? Chapter 5

12. 5-2 Intentional Torts, Negligence, and Strict Liability GOALS • Identify common intentional torts • Recognize the elements of negligence • Explain the basis for strict liability Chapter 5

13. WHAT ARE THE MOST COMMON INTENTIONAL TORTS? • Assault – person intentionally puts another in reasonable fear of an offensive or harmful bodily contact. • Can be based on words/gestures • Must be believable • Must include a display of force indicating a present ability to carry it out • Battery – harmful or offensive TOUCHING of another • Frequently proceeded by assault • Consent waives the intent Chapter 5

14. WHAT ARE THE MOST COMMON INTENTIONAL TORTS? • False imprisonment – intentional confinement of a person against his/her will and w/o lawful privilege (police, merchants) Chapter 5

15. WHAT ARE THE MOST COMMON INTENTIONAL TORTS? • Defamation – act of harming another’s reputation or good name • Statement must be false • Be communicated to a 3rd party • Bring victim into disrepute, contempt, or ridicule by others • Slander – spoken • Libel – written or printed • Public figures exempted – unless it was done with malice • Plaintiff must show that he’s suffered actual physical losses or damages • EXCEPTIONS • Plaintiff committed a serious crime • Plaintiff has a loathsome disease • Plaintiff injures someone in his profession Chapter 5

16. WHAT ARE THE MOST COMMON INTENTIONAL TORTS? • Invasion of privacy – uninvited intrusion into an individual’s personal relationships and activities in a way likely to cause shame or mental suffering in an ordinary person • Public figures forfeit right • Trespass to land – entry onto the property of another w/o owner’s consent • Conversion – the wrongful possession or disposition of another’s property as if it were one’s own • Thieves are always converters Chapter 5

17. WHAT ARE THE MOST COMMON INTENTIONAL TORTS? • Interference with contractual relations – 3rd party encourages the breach of the contract • Fraud – a knowing misrepresentation of the truth, or concealment of a material fact to induce another to act to his/her detriment • Other party must enter the contract • Must exercises due diligence • Statements of opinion don’t count Chapter 5

18. Name at least six of the nine most common intentional torts. Chapter 5

19. WHAT CONSTITUTES NEGLIGENCE? • Duty imposed by negligence • “Reasonable person” standard – requires people to act with care, prudence, and good judgment of a reasonable person, so as not to cause to injury to another • Different degrees • Child under 7 can’t be negligent • 7-14: act like a reasonable child of that age • UNLESS child undertakes adult activities • Professionals and skill trade people are held to higher degrees Chapter 5

20. WHAT CONSTITUTES NEGLIGENCE? • Breach of duty • Defined by “reasonable person” • Causation and injury Chapter 5

21. WHAT CONSTITUTES NEGLIGENCE? • Defenses to negligence • Contributory (some states) vs. Comparative (most states) • Contributory – Plaintiff can’t recover damages if their also negligent • Comparative – P & D awarded damages based on % of responsibility (trier determines that) • Assumption of the Risk – P knew of the danger but acted anyway Chapter 5

22. Name the four elements of the tort of negligence. Chapter 5

23. WHY IS STRICT LIABILITY NECESSARY? • Engaging in abnormally dangerous activities • Negligence DOES NOT MATTER • Only need to prove the activity and the injury • Owning dangerous animals • Selling unreasonably dangerous goods Chapter 5

24. What is strict liability and why is it necessary? Chapter 5

25. 5-3 Civil Procedure GOALS • State the legal remedies that are available to a tort victim • Describe the procedure used to try a civil case Chapter 5

26. REMEDIES AVAILABLE IN A CIVIL SUIT • Injunction • A court order for a person to do/not do something • Damages • Compensatory (actual) – meant to place the injured party back to original status • Punitive (exemplary) – generally for intentional torts. Meant to punish. Chapter 5

27. Name the two remedies available in a civil suit. Chapter 5

28. WHAT PROCEDURE IS USED TO TRY A CIVIL CASE? • Judge or jury – 7th Amend. – right to a jury trial in civil cases more than $20 • Judge decides questions of law • Jury decides questions of fact • Juries usually have 6-12 people • Usually don’t have to be unanimous Chapter 5

29. WHAT PROCEDURE IS USED TO TRY A CIVIL CASE? • Opening statements and testimony • O.S. – brief summaries given by P & D • Evidence is presented – prove/disprove facts • Witnesses can be subpoenad • Closing arguments and instructions to the jury • Each attorney summarizes the case trying to persuade for his side • Judge instructs jury on what laws apply and what issues of fact they need to decide on • Jury deliberation and the verdict Chapter 5

30. WHAT PROCEDURE IS USED TO TRY A CIVIL CASE? • Jury deliberation and the verdict • Verdict is the decision • Judge determines the judgment Chapter 5

31. List the steps in the procedure used to try a civil case. Chapter 5

32. HOW ARE CIVIL DAMAGES COLLECTED? • Defendant is ordered to pay • Writ of execution • D’s who won’t pay Chapter 5

33. How does a plaintiff collect damages if the defendant refuses to pay? Chapter 5

34. PREVENT LEGAL DIFFICULTIES As a citizen . . . • Avoid legal liability for torts by consistently respecting the rights of others and their property. • If you commit a tort or are the victim of a tort that may lead to a lawsuit, consult a lawyer promptly. Critical evidence may be lost if you delay. Continued on the next slide Chapter 5

35. PREVENT LEGAL DIFFICULTIES • Choose your attorney carefully for a tort case. • Be sure that the legal issues are in their area(s) of specialty. • Check their list of clients and past legal victories. • If employed on a contingency fee basis, make sure they have the resources to handle the case. • Investigate the negligence laws in your state. • In some states, your own negligence, however slight, may bar any recovery under the doctrine of contributory negligence. • In states that use the alternate doctrine of comparative negligence, even though you are somewhat negligent, you may recover. Continued on the next slide Chapter 5

36. PREVENT LEGAL DIFFICULTIES • If you injure a third party while on the job, both you and your employer may be liable. • The automobile is the principal source of tort liability for most persons, young and old. Drive carefully. • If you are injured as the result of a tort, do not be rushed by insurance adjusters or others into signing a statement releasing the other party from liability. Let your lawyer decide if the settlement offer is fair. Continued on the next slide Chapter 5

37. PREVENT LEGAL DIFFICULTIES • Realize that just obtaining a judgment against a defendant in a tort may not end the legal ordeal. The judgment may not be voluntarily paid and execution will have to be carried out. • A judgment, once obtained, may be executed in other states and over a considerable period of time. The fact that a defendant is without resources today does not mean he or she will remain so forever. Chapter 5