Download Lesson Four

Lesson One
Basis: tort law generally
I. Definition
► A.
Tort
► 1. There is no single definition of “tort”, The most
we can say is that: (1) a tort is a civil wrong
committed by one person against another; and (2)
torts should be distinguished from breach of
contracts, it can and usually do arise outside of
any agreement between the parties.
► 2. Tort, in law, means the violation of some duty
clearly set by law, not by a specific agreement
between two parties. When such a duty is
breached, the injured party has the right to
institute suit for compensatory damages.
► B.
Tort law
► Tort law is a body of rights, obligations, and
remedies that is applied by courts in civil
proceedings to provide relief for persons who have
suffered harm from the wrongful acts of others.
► 3.
Victim and tortfeasor
► The person who sustains injury or suffers
pecuniary damage as the result of tortious conduct
is known as the victim or plaintiff;
► The person who is responsible for inflicting the
injury and incurs liability for the damage is known
as the defendant or tortfeasor.
II. Objectives of tort law
► The
law of torts serves four objectives.
► First, it seeks to compensate victims for injuries
suffered by the culpable action or inaction of
others.
► Second, it seeks to shift the cost of such injuries
to the person or persons who are legally
responsible for inflicting them.
► Third, it seeks to discourage injurious, careless,
and risky behavior in the future.
► Fourth, it seeks to vindicate legal rights and
interests that have been compromised, diminished,
or emasculated.
III. Branches of torts
► A.
Intentional torts:
► An intentional tort is any deliberate
interference with a legally recognized
interest, such as the rights to bodily
integrity, emotional tranquility, dominion
over property, seclusion from public scrutiny,
and freedom from confinement or deception.
► B.
Negligence: Here, the defendant has not
intended to bring about a certain result, but
has merely behaved carelessly.
► There are no individually-named torts in this
category, merely the general concept of
“negligence.” But in substance, negligence is
a tort which targets an unreasonable breach
of duty by one person to another.
► C.
Strict liability: This is the least culpable
category, “strict liability.” Here, the
defendant is held liable even though he did
not intend to bring about the undesirable
result, and even though he behaved with
utmost carefulness. There are two main
individually-named torts that apply strict
liability:
► a. Conducting of abnormally dangerous
activities (e.g., blasting); and
► b. The selling of a defective product which
causes personal injury or property damage.
► D.Nuisance:
The term “nuisance” refers not
to a type of tort, but to a type of injury
which P has sustained. The tort of nuisance
allows a claimant (formerly plaintiff) to sue
for most acts that interfere with their use
and enjoyment of their land.
► E.
Defamation :
► Defamation means tarnishing the reputation
of someone. It is divided into two parts,
slander and libel. Slander is spoken
defamation and libel is defaming somebody
through print (or broadcasting). Both share
the same features.
► To defame someone, you must (a) make a
factual assertion (b) for which you cannot
provide evidence of its truth.
IV. Elements of torts
► Four
elements must be established in every tort
action：
► First, the plaintiff must establish that the
defendant was under a legal duty to act in a
particular fashion.
► Second, the plaintiff must demonstrate that the
defendant breached this duty by failing to conform
her behavior accordingly.
► Third, the plaintiff must prove that he suffered
injury or loss as a result of the defendant’s breach,
► Fourth, the plaintiff must prove that there is a
proximate cause between the injury and the tort.
V. Remedies
► A.The
main remedy against tortious loss is
compensation in “damages” or money;
► B. In a limited range of cases, tort law will tolerate
self-help, such as reasonable force to expel a
trespasser. This is a defence against the tort of
battery;
► C. Further, in the case of a continuing tort, or even
where harm is merely threatened, the courts will
sometimes grant an injunction. This means a
command, for something other than money by the
court, such as restraining the continuance or
threat of harm.
VI. Damages
► A.
► 1.
Types of damages:
Compensatory damages, also called actual
damages, are paid to compensate the claimant for
loss, injury, or harm suffered by another's breach
of duty.
► 2.General damages, sometimes styled hedonic
damages, compensate the claimant for the nonmonetary aspects of the specific harm suffered.
Examples of this include physical or emotional pain
and suffering, loss of companionship, loss of
consortium, disfigurement, loss of reputation, loss
or impairment of mental or physical capacity, loss
of enjoyment of life, etc.
► 3.Special
damages compensate the claimant for
the quantifiable monetary losses suffered by the
plaintiff. For example, extra costs, repair or
replacement of damaged property, lost earnings
(both historically and in the future), loss of
irreplaceable items, additional domestic costs, etc.
► Special damages can include direct losses (such as
amounts the claimant had to spend to try to
mitigate problems) and consequential or economic
losses resulting from lost profits in a business.
► Special damages basically include the
compensatory and punitive damages for the tort
committed in lieu of the injury or harm to the
plaintiff.
► 4.
Statutory damages are laid down in law.
Mere violation of the law can entitle the
victim to a statutory award, even if no
actual injury occurred.
► These are similar to, but different from,
nominal damages (see below) in which no
written sum is specified.
► 5.
Nominal damages are very small
damages awarded to show that the loss or
harm suffered was technical rather than
actual.
► 6.
Punitive damages (termed exemplary
damages in the United Kingdom) are
damages intended to reform or deter the
defendant and others from engaging in
conduct similar to that which formed the
basis of the lawsuit.
► Although the purpose of punitive damages
is not to compensate the plaintiff, the
plaintiff will in fact receive all or some
portion of the punitive damage award.
► B.
Scope of damages:
► 1.Personal injury tort victims must normally
recover all their damages—past, present, and
future—during a single lawsuit.
► Damages may be recovered for physical,
psychological, and emotional injury. Specifically,
these injuries may include permanent disability,
pain and suffering, disfigurement, embarrassment,
distress, impairment of earning capacity, lost
wages or profits, medical costs, and out-of-pocket
expenses. Courts typically rely on expert testimony
to translate such losses into dollar figures.
► C. Ways of recovery:
► Plaintiffs suffering damage
to personal property
may elect among four methods of recovery:
► First, plaintiffs may elect to recover the difference
between the value of the property before the tort
and the value of the property after it.
► Second, plaintiffs may elect to recover the
reasonable costs of repair for damaged personal
property.
► Third, if the property is destroyed, irreparable, or
economically infeasible to repair, damages are
measured by the replacement value of the
property.
► Lastly, Persons who are temporarily deprived of
personalty may sue to recover the rental value of
the property for the period of deprivation.
VII. Defenses
► A.Volenti
non fit injuria (Assumption of risk)
► This is Latin for “to the willing, no injury is done.”
It operates when the claimant either expressly or
implicitly consents to the risk of loss or damage.
► For example, if a regular spectator at an ice
hockey match is injured when a player strikes the
puck in the ordinary course of play, causing it to
fly out of the rink and hit him or her, this is a
foreseeable event and regular spectators are
assumed to accept that risk of injury when buying
a ticket.
► B.
Contributory negligence
► This is an absolute defence in the U.S., if
the defendant proves both that the plaintiff
also acted negligently and that this
negligence contributed to the loss or
damage suffered, this is a complete defence.
This doctrine has been widely criticized as
draconian, in that a plaintiff whose fault was
comparatively minor might recover nothing
from a more egregiously irresponsible
defendant.
► C.
Comparative negligence
► Most states, either by court decision or statute,
have now adopted some form of comparative
negligence in place of pure, contributory negligence.
► Under comparative negligence, a plaintiff's
negligence is not a complete bar to her recovery.
Instead the plaintiff's damages are reduced by
whatever percentage her own fault contributed to
the injury. This requires the jury to determine, by
percentage, the fault of the plaintiff and defendant
in causing the plaintiff's injury.
► For example, suppose a plaintiff is injured in an
automobile accident and sustains $1000 in damages.
► The
jury determines that the plaintiff was 25
percent responsible for the accident and that the
defendant was 75 percent responsible. The
plaintiff will then be allowed to recover 75 percent
of her damages, or $750.
► Most states have adopted the “50 percent rule” of
comparative negligence. Under this rule the
plaintiff cannot recover any damages if her
negligence was as great as, or greater than, the
negligence of the defendant. This rule partially
retains the doctrine of contributory negligence,
reflecting the view that a plaintiff who is largely
responsible for her own injury is unworthy of
compensation.
► D.
Ex turpi causa non oritur actio --Illegality
► Ex turpi causa non oritur actio is the illegality
defence, the Latin for “no right of action arises
from a despicable cause”. If the claimant is
involved in wrongdoing at the time the alleged
negligence occurred, this may extinguish or reduce
the defendant’s liability.
► For example, if a burglar is verbally challenged by
the property owner and sustains injury when
jumping from a second story window to escape
apprehension, there is no cause of action against
the property owner even though that injury would
not have been sustained “but for” the property
owner's intervention.
► E.Immunity
► An
immunity is a defense to a legal action
where public policy demands special
protection for an entity or a class of persons
participating in a particular field or activity.
Historically, immunity from tort litigation has
been granted to government units, public
officials, charities, educational institutions,
spouses, parents, and children.
Questions
► 1.
Please introduce the branches of torts.
► 2.
What are the defenses against tort action?