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THE LAW OF TORTS What is a Tort? Nope! A tort is a private wrong committed by one person against another. Interference with another person’s rights. However…such an offense does not call upon government to punish wrongdoers. So then…what is the difference between a crime and a tort? Crimes harm not only specific individuals, but also the general welfare. Torts lead the wronged party to try and recover money as compensation for the loss or injury suffered. Can a single action, such as murder, be both a tort and a crime? You tell me! O.J. Simpson Case Questions… 1. Who are the parties involved in the case? 2. Describe the issue that the court must decide; what is the nature of the case? 3. What is the penalty or remedy being sought in the case? 4. What must the person bringing the case prove to win? 5. Why do these cases not constitute double jeopardy? Tort Law States that all people are entitled to certain rights simply because they are members of a society, such as: Right to be free from bodily harm The right to enjoy a good reputation Right to conduct business without unwarranted interference The right to own property free from damage or trespass. Real or Fake…You Decide! A 13-year-old boy from Staten Island -- who is now 5 feet 4 inches tall and 278 pounds -- claims he didn't know that eating three-to-four fast food meals a week would add to his girth. Real! A man is suing a local McDonald's fast food outlet for allegedly being too heavy on the black pepper. The lawsuit says that a 61-year-old cancer patient, coughed up black pepper, sneezed, and suffered a bloody nose after eating a "breakfast burrito supersaturated with black pepper." He said he can only eat soft foods because of his radiation treatment, accuses the restaurant's employees of negligence and seeks to recover damages stemming from the physical and mental injuries brought on by the peppered burrito. Real! Real or Fake…You Decide! The attorney who sued Clint Eastwood over disability accommodations at his hotel near Carmel was himself sued on allegations his office bathroom was not wheelchair friendly. Real! A New Jersey couple is suing the Kellogg Co., as well as appliance maker Black & Decker Corp., for $100,000 in damages, alleging that a cherry Pop-Tart they put in their toaster turned into a blowtorch and burned down their house. The couple admitted to leaving their house while the Pop-Tart was heating up, despite the warning label on the box advising against leaving food unattended in the toaster. Real! Scott Bender of Philadelphia sued U.S. Airways for negligence, claiming he thought the plane he was on had crashed and he was dead after the crew left him asleep on the aircraft. It was really dark, said his lawyer, and Bender "didn't know if he was alive or dead" -- it turned out the former. Now the snoozing passenger wants money for mental and emotional anguish. Real! Real or Fake…You Decide! A judge in Germany is suing Coca-Cola, claiming the habit of drinking two Cokes a day for many years caused him to develop diabetes. He is also suing MasterFoods since he ate lots of candy bars that they make -- Mars, Snickers, and Milky Way -- and believes labels should have been put on these sugary products warning consumers of possible health risks. Real! A Levittown, Pa., teenager sued her former softball coach for $700,000 in damages. She claims that bad coaching cost her a college athletic scholarship. Real! According to the San Antonio Express-News, a dozen students who took a Microsoft computer certification course at the Houston branch of Southern Methodist University are suing the school, contending they were misled the course would be easy. The 12 enrolled in June 1997 and all failed certification tests that would have made them eligible for jobs overseeing Microsoft computer systems. Real! Real or Fake…You Decide! Former "Munsters" television star Al Lewis filed a lawsuit to be listed on the ballot for governor in New York as "Grandpa." The lawsuit was filed against the New York State Board of Elections because he said by not listing him on the ballot as "Grandpa Al Lewis" voters would be confused and not cast an informed vote. Real! "Unfortunately, wacky lawsuits are just the tip of the lawsuit abuse iceberg," said Jon Opelt, director of Houston's Citizens Against Lawsuit Abuse. "Junk lawsuits waste tax dollars and tie up court time. That means the rest of us pay when others use our courts for frivolous reasons. What's more, it means people with legitimate claims have to wait longer to have their case heard." Partner Activity! In pairs, students will locate 3 notices placed around school that they feel is meant to reduce liability in relation to torts. Intentional Torts Occurs when a person knows and desires the consequences of his/her act. The most common intentional torts are: Assault & battery Trespass Nuisance False imprisonment Defamation Invasion of privacy Assault & Battery 2 separate torts. May or may not be committed together. Assault: one person deliberately leads another person to believe that he/she is about to be harmed. Battery: involves the unlawful, unprivileged touching of another person, even if the physical contact is not harmful. Must know that the tortfeasor, or the person who committed the tort, meant to commit harm. Trespass Nuisance Wrongful damage to The tort of nuisance is or interference with the anything that interferes property (anything you with the enjoyment of own) of another. life or property. Includes cars, DVDs, CD Includes loud noises at players, purses, wallets, night, noxious odors, or and real property. smoke or fumes coming from a nearby house. False Imprisonment Defamation Law enforcement The wrongful act of makes an arrest injuring another’s without having a reputation by making probable cause or false statements. warrant. Divided into 2 They can then be sued categories: for false imprisonment, Libel: a false statement or false arrest, is they in written or printed form. make an arrest without Slander: a false meeting the above statement that is made orally to a third party. requirements. Invasion of Privacy Interfering with a person’s right to be left alone, including the right to be free from unwanted publicity, interference with private matters. Federal Privacy Act of 1974 Fair Credit Reporting Act Right to Financial Privacy Act Defenses to Intentional Torts Consent: Where a defendant has the plaintiff's consent to commit an act of assault or battery, the plaintiff may not later bring a lawsuit. In sports, injuries that result from rule violations that are part of ordinary play are unlikely to support a legal action. Police Conduct: A police officer is privileged to apply the threat of force, or if necessary to apply actual force, in order to make a lawful arrest. A defendant who suffers injury as the result of reasonable force exerted by the police to make a lawful arrest will not be able to sustain a lawsuit against the arresting officers for assault or battery. Self-Defense: A person can use such reasonable force as may be necessary to protect himself. Defenses to Intentional Torts Voluntary (Mutual) Combat: Where the plaintiff voluntarily engages in a fight with the defendant for the sake of fighting and not as a means of self-defense, the plaintiff may not recover for an assault or battery unless the defendant beats the plaintiff excessively or uses unreasonable force. Defense of Property: Many jurisdictions allow the use of some amount of threat or force by a person who is seeking to protect his or her own property from theft or damage. However, there is no privilege to use force that may cause death or serious injury unless the property owner is threatened with death or serious injury. Provocation: Words alone, no matter how insulting or provocative, do not justify an assault or battery. Unintentional Torts A person can breach his/her duty in society through other ways than by committing an intentional tort. Negligence: Injury that is caused by a person’s mere carelessness. Strict Liability: Injury caused by an individual’s participation in ultrahazardous activity. Elements of Negligence A plaintiff must prove all of the following elements: 1. Duty of care 2. Breach of duty 3. Proximate cause 4. Actual harm Duty Of Care Everyone has a duty to exercise due care all of the time. What is due care? Due care is the amount of care that a reasonable person would exercise under the circumstances. What is a reasonable person? A reasonable person who takes the precautions necessary to avoid harming another person or their property. Can you think of examples of due care that each of the following people must exercise?: A lifeguard at a municipal pool. Actively scanning the pool. A lumberjack cutting down a tree. Yelling “timber” and making sure area is clear. An owner of an aggressive dog. Keeping dog on leash or fenced in. A high school football coach. Making sure players do not play injured. Breach of Duty Once you determine due care, you ask, did the defendant follow that due care? Breach of duty: not exercising the degree of care that a reasonable person would exercise in that same situation. For 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 they have breached the duty of care. Proximate Cause Proximate cause: “Was the injury to the plaintiff foreseeable at the time the defendant engaged in unreasonable conduct?” Hypo: This is Ken Griffey Jr. Ken Griffey likes to practice his swing in his living room. Unfortunately, this sometimes leads to disaster. One day, while practicing his swing in his living room, Ken loses his grip on the bat. The bat flies into the sitting room and hits his wife’s friend in the head, causing minor injuries. Is there proximate causation? Actual Harm The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount. Actual harm: “Did the plaintiff suffer physical injuries, property damage, or financial loss?” 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. Hypothetical… Betty and Derek are walking to school. Steven is driving down the street talking to his friends in the backseat. One of Steven’s friends screams “Look out!” Steven reacts by turning the wheel of his car, which jumps the curb and pins Betty’s arm to the wall crushing it. What remains of Betty’s arm needs to be amputated. Q1: How much is Betty’s arm worth? Q2: Does the answer change if Betty was a concert pianist? Q3: What if Betty simply wanted to be a concert pianist, but wasn’t one yet? Defenses to Negligence People can defend themselves in a negligence suit by eliminating 1 of the 4 elements: Owed no duty to the plaintiff. Conduct conformed to the reasonable person standard. Conduct was not the proximate cause of the plaintiff’s injuries. Plaintiff suffered no injuries. Defenses to Negligence (cont.) Contributory negligence: behavior by the plaintiff that helps cause his or her injuries. Even if plaintiff contributes to only 1% of their injuries, they will not receive a dime! Comparative negligence: the amount of the plaintiff’s recovery is reduced by the percent of his or her negligence. 50% Rule: the plaintiff is allowed to recover part of the award as long as his/her negligence was not greater than that of the defendant. Assumption of risk: defendant must show the plaintiff knew of the risk involved and still took the chance of being injured. Ex.) cigarette smoking Liability Strictdangerous that the law will Some activities are so apply neither the principles of negligence nor the rules of intentional torts. According to strict liability, if these activities injure someone or damage property, the people engaged in the activities will be held liable, regardless of how careful they were and regardless of their intent. Ex.) using explosives, keeping wild animals, and storing highly flammable liquids in densely populated areas.
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