Torts and Damages

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					    Torts and Damages
   Up to now, everything discussed has
    related to contract liabilities- voluntary
    assumptions of obligation and risk
   Tort duties are legal liabilities
    independent of contract standing- apply
    to involuntary assumption of liability and
    risk
   Tortfeasor- party who breaches a tort
    duty
   Victim-party suffering loss due to breach
Torts and Damages
   Types of torts (Names differ by jurisdiction-
    many types not listed, all are civil matters
      Negligence- unreasonable actions
      Fraud- misrepresentation for value
      Libel- untrue written statements causing loss
      Slander- untrue spoken statements causing
       loss
      Battery- touching without consent
      Assault- threatening to touch without
       consent
          Torts and Damages




Reasonable Doubt
Government prosecutes
                                    Preponderance of Evidence
Jury system
                                    2-Party suits
Punishment
                        Voluntary                   Involuntary
                        No punishment               Punishment
Torts and Damages
   Intentional torts carry punitive damages
   Intent is to make people pay for injuries
    resulting from their unreasonable acts
   Four general categories of tort common in
    construction
      Negligence
      Intentional tort/ Fraud
      Strict liability
      Deceptive practices
Torts and Damages
   Negligence- failure to act reasonably
    causing injury to others (most common
    tort)
   Must prove all of the following
      Existence of duty to be reasonable
      Breach of that duty
      Damages incurred as a result of that
       breach
      Causation between breach and
       damage is direct
Torts and Damages

   We all have a duty to act reasonably in
    certain situations (driving, public gatherings,
    professional relationships, manufacturing
    and selling)
   Duty must be based on a specific act- can’t
    sue for “general unreasonableness”
   Arch/Engr has no duty to contractor, can’t
    sue for tort (in general) except for things
    such as safety, injury from design flaw, etc.
Torts and Damages

 Breach- prove that the specific act
  was unreasonable for the conditions
  (speeding, yelling fire). Harder to
  prove than duty
 Damages- injured person must prove
  loss- no loss-no tort
 Causation- loss caused directly by
  breach (aggravating condition can be
  included, but not original condition)
  can be hard to prove
        Torts and Damages
   Making a mistake is not the same as negligence.
    Reasonableness standard protects to some degree
   Misrepresentation of fact is a special form of
    negligence when no reasonable grounds for
    believing a statement can be found
      Statement issued as fact (“this drug is safe”)
      Statement is false (drug causes heart problem)
      No reasonable grounds for belief (drug wasn’t
       tested)
      Party justifiably relies on statement (party takes
       drug)
      Damages result (Party has heart damage)
Torts and Damages

   Negligence per se- violation of statute, no
    proof of duty or breach required
       Valid ordinance was violated
       Injured party is member of protected class
       Harm suffered is prevented by the ordinance
       Violation of statute caused harm or damages
       Party suffered loss
       OSHA, ADA, EEO, building codes, etc
       Currently undergoing re-interpretation
Torts and Damages

 Liability of designers to subsequent
  users- duty exists to subsequent
  users of a product. Remodeling
  industrial sites
 Liability of designers to subcontractors
  and contractor differs by jurisdiction
       Majority rule- no duty exists, so no
        damages can be collected from
        designer except for personal injury
Torts and Damages

    California Rule
      • Balance test under theory of negligence
      • Degree of certainty of harm
      • Foreseeability of harm
      • Closeness of connection between
        conduct and injury
      • Advancing policies to prevent future harm
      • Assignability of moral blame
      • Difficult to enforce
Torts and Damages

 Intentional Tort (Fraud)- presence of
  intent to cause injury or harm makes
  tort intentional (difficult to prove intent)
 Fraud (deceit, misrepresentation,
  false claim) is the most common
  intentional tort in construction
Torts and Damages

   Fraud
     False representation or nondisclosure
      of material fact
     With intent to deceive
     Misleading statement was relied on by
      complainant
     Actual damages result
Torts and Damages

 Deceptive practice laws- discourage
  fraud and make it easier to bring the
  case (no longer need to prove intent)
 Deception is inherent in the act
  covered by the statute
 Contorts- claiming a contract breach
  as a tort.
        Torts and Damages
   Contorts
     Torts carry higher awards than contract
      cases
     Lawyers “prefer” tort claims
     Try to claim some specific action under
      contract is actually a tort
     Historic reluctance by the court to allow
      breach of contract to be turned into a tort
     Mostly for personal contracts (not
      construction)
Torts and Damages

   Strict liability-only applied in very limited
    situations such as manufacture of defective
    products or practice (blasting)
   Manufacturers of defective products are
    strictly liable for injury IF
       Flaw is present at time of sale AND
       Flaw causes injury OR
       Manufacturer fails to warn of risk OR
       Product has correctable design defect
Torts and Damages

   Strict Liability of product manufacturers is
    why we have so many warning labels on
    products
   Construction contractors are not considered
    manufacturers of products
   Assumption of risk- common defense
    against tort in construction (and elsewhere)
       Injured parties are responsible for their own
        injury if they have voluntarily assume risk
        inherent in the activity (sign a risk
        assumption to go bungie jumping)
    Torts and Damages

   Proximate cause damages- tort damages
    are generally greater than contract
    damages because they include foreseeable
    AND unforeseeable damages (proximate
    cause)
   Pain and suffering- compensation for
    experience of pain and suffering over a
    specified time. Difficult to assess, usually
    per diem award. Includes emotional pain
Torts and Damages
 Punitive damages- intentional torts
  allow exemplary awards used to
  “make and example” out of offender.
  Frequently reduced by the court
 Tort cases- McDonalds coffee, Toro
  mowers, Philadelphia hospital
 Calls for tort reform, resisted by trial
  lawyers. Tort does allow for
  eliminating the incompetent, but can
  be abused. Key is to find the best
  balance

				
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posted:6/24/2012
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