January 9, 2006BUSINESS LAW (Ms. Hawkins)1 CHAPTER 5: CIVIL LAW & PROCEDURE Chapter 5 presents...

January 9, 2006 BUSINESS LAW (Ms. Hawkins) 1

CHAPTER 5: CIVIL LAW & PROCEDURE

Chapter 5 presents offenses against individuals, with an emphasis on intentional torts, negligence, strict liability, and civil procedures.



Let’s distinguish a crime from a tort:

A crime is an offense against society.

Tort is a private or civil wrong; it is an offense against an individual, which individual can sue and obtain a judgment for money damages to compensate for injuries.



Can an act be both a tort and a crime?Let’s look at the case of Josephina:

After an exhausting day of skiing, Josephina was driving home near sunset. She dozed off momentarily and crossed the highway dividing lane. She then crashed head-on into John’s panel truck. Both drivers were seriously injured, and their vehicles were “totaled.”



Can an act be both a tort and a crime?

Although Josephina was asleep at the time, has she violated any rights of the other driver?Yes—the right not to be injured by another person.

What tort has Josephina committed?Injury to John and his property.

What offense has Josephina committed against society?The crime of reckless driving.


What are the elements of a tort?

Although there are many specific torts, certain elements are common to most torts, and must be proven to establish liability.

Duty (legal obligation to do or not to do something)

Breach (violation of the duty)

Injury (a harm that is recognized by the law)

Causation (proof that the breach caused the injury)




By law, we all have a duty to respect the rights of others.

These duties are created by tort law:

The duty not to injure another (body, reputation, privacy)

The duty not to interfere with the property rights of others (trespassing)

The duty not to interfere with the economic rights of others (the right to contract)



Violation or Breach of Duty:

Some torts require that breach be intentional.

Some torts are based on carelessness-- negligence.

Some torts are based solely on injury having been caused--strict liability.

Some torts are based on the fact that it was reasonably foreseeable that a breach will result in an injury--proximate cause.



Let’s apply what we learned about breach of duty

On a windy autumn day, Mason was burning dry leaves in his backyard. When he went 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.



Let’s apply what we learned about breach ofDuty

Did Mason commit a tort? Mason had a duty not to injure neighbor’s property. Mason breached when he left the fire unattended. Injury occurred when the neighbor’s house burned. Leaving the fire unattended was a proximate cause of the

loss of the fence, tool shed, and the house; it was reasonably foreseeable that a breach would result in an injury.



Responsibility for the Torts of Another

Should your parents be liable for your actions and have to pay damages if you cause harm to another person or another’s property?



Responsibility for the Torts of Another

In general, all persons, including minors and insane persons, are responsible for their conduct and are therefore liable for their torts.

When one person is responsible for the torts of another, the liability is called vicarious liability.

“With some exceptions, parents are not liable for the torts of their children.” (IAW the text): e.g., dangerous instrumentalities (gun/car) and continuing dangerous habits



Vicarious Liability of Parents for Torts of Minor Children

Parental liability is a parent's obligation to pay for damage done by negligent, intentional or criminal acts of his child.

In 47 states, parents are responsible for all malicious or willful property damage done by their children.

http://www.lectlaw.com/files/fam17.htm



Vicarious Liability of Parents for Torts of Minor Children…

Hawaii, Louisiana and Oregon hold parents responsible for all torts committed by their children. Only Washington, D.C. does not hold parents liable at all.

All parental liability laws limit the amount of liability to between $300 and $15,000, depending on the state.




Vicarious Liability of Parents for Torts of Minor Children…

Parental liability usually ends when the child reaches the age of majority and does not begin until the child reaches somewhere between eight and ten.

No one is liable for damage done by a child younger than eight or so unless the parent was grossly negligent--for example, giving the child a loaded gun.




Responsibility for the Torts of Another…

The most common example of vicarious liability is the liability of an employer for the acts of employees committed within the scope of the employment.




Hunt was taking riding lessons from Saddleback Stables. Patterson, the Saddleback instructor, was a skilled rider although only 17 years old. Nevertheless, Patterson negligently lost control of the horse that Hunt was riding. As a result, Hunt was thrown to the ground and injured.




Who was liable for Hunt’s injuries?

Saddleback Stables was liable for the negligence of its employee.

The injured party may sue both the employer and the employee.

Does liability make a difference if you’re under 21? Under 18?

No. All persons are responsible for their torts—even minors.



Violation or Breach of Duty (Let’s Review):

Some torts require that breach be intentional.

Some torts are based on carelessness-- negligence.

Some torts are based solely on injury having been caused--strict liability.

Some torts are based on the fact that it was reasonably foreseeable that a breach will result in an injury--proximate cause.



Common Intentional TortsIntentional torts are those for which the defendant intended either the injury or the act:

Assault Invasion of PrivacyBattery Trespass to LandFraud Interference With Contractual RelationsDefamation Conversion

False Imprisonment



Common Intentional Torts…

Assault

A person intentionally threatens to physi- cally or offensively (with words or ges- tures) injure another.

The threat must be believable—there must be an ability to carry it out.




Assault

Is the following example assault?

Spencer, elderly and totally blind, thought Wills had swindled him. Spencer told Wills that he was going to “beat your face to a pulp.”

No.

Why?

Spencer is not capable of carrying out the threat.




Battery

Battery is an intentional breach of the duty to refrain from harmful or offensive touching of another.

Battery can include shooting, pushing in anger, spitting on, or throwing a pie in the face.

Example: You are in the school cafeteria and throw a pie in someone’s face.




Assault & Battery Can there ever be battery without

assault?Yes.

Example: The victim is hit without warning from behind.

Why?There was no offensive threat.




During deer-hunting season, Hart drove miles into the country in search of game. He parked his pickup truck along a dirt road, climbed a fence, and hiked into the woods. Hart thought the land was part of a national forest. However, it actually belonged to Quincy, who had posted “No Trespassing” signs. Confronted by Quincy, Hart apologized for his mistake and left.




What’s Your Verdict? (Page 82)

Was Hart guilty of a tort?

No.

Why, or why not?

There was no intent.




False Imprisonment

False imprisonment is depriving a person of freedom of movement without the person’s consent and without privilege (the right to do so).

Example: You are accused, without reason, of shoplifting in a store and you are detained.




Defamation

Statements about people can injure them. If a false statement injures one’s reputation, it may constitute the tort of defamation.

What’s the difference between slander and libel?

Slander is oral and libel is written.




Defamation…There are several criteria for legal defamation:• The statement must be false; truth is a valid defense to a

charge of defamation.• The statement must be communicated to a third person (if

no one hears or reads it, reputation is not damaged)• The statement must bring the victim into disrepute,

contempt, or ridicule by others.• There is no liability for statements about public officials

or prominent personalities unless the statement was made with malice.




Invasion of Privacy• People are entitled to keep personal matters private. This

is the right to privacy. This tort is defined as the unwelcome and unlawful intrusion into one’s private life so as to cause outrage, mental suffering, or humiliation.

• Publication of even a true statement can be invasion of privacy.

Example: A two-way mirror in the women’s restroom of a gas station




Trespass to Land

• This tort is entry onto the property of another without the owner’s consent.

• Dumping rubbish on the land of another or breaking the windows of a neighbor’s house are also trespasses. What common student practice does this remind you of?

• Intent is required to commit the tort of trespass—that is, intent by the intruder to be on the particular property.




Conversion

• If property is stolen, destroyed, or used in a manner inconsistent with the owner’s rights, a conversion has occurred.

• Conversion occurs even when the converter does not know that there is a conversion.

Example

An innocent buyer of stolen goods is a converter.




Interference With Contractual Relations• If a third party to a contract entices or encourages a

breach, the third party may be liable in tort to the nonbreaching party.

• Actual parties to a contract may be able to breach the contract if they pay for the injury suffered by the other party.




Fraud• Fraud occurs when there is an intentional

misrepresentation of an existing important fact (a lie).• Misrepresentation must be relied on and cause financial

injury, in order to be a tort. • Fraud does not apply when there is a misstatement of

opinion, because the hearer should recognize it is just the speaker’s personal view.




In This CaseSmith is trying to sell her home. While showing the property to Hernandez, Smith said, “This roof is in very good repair and has never leaked.” Hernandez buys the house and later learns that the roof leaks and is in need of repairs costing $8,500.

Hernandez also learns that Smith was given an estimate for similar repairs before the sale occurred. Smith committed fraud and is liable to Hernandez.



What Is Negligence?

• Negligence is the most common tort.• Intent is not required for this tort, only carelessness.• Like the other torts, negligence requires the elements of

duty, breach, injury, and causation (the breach caused injury).



What Is Negligence?…

Duty and Negligence (“Reasonable Person” Standard)

The general duty imposed by negligence law is the “reasonable person” standard.

This duty requires that we act with care, prudence, and the good judgment of a reasonable person so as not to cause injury to others.




Duty and Negligence (Reasonable Person Standard)…

Exceptions to the “Reasonable Person” Standard: • Children under age seven• Older children (they only need to exert the care of a

reasonable child of like age, intelligence, and experience).• This does not include children engaging in adult activity

like driving a boat or car; they are held to the adult standard.




Breach of Duty in Negligence

Exceptions to the Reasonable Person Standard: • Children under age seven• Older children (they only need to exert the care of a

reasonable child of like age, intelligence, and experience).• This does not include children engaging in adult activity

like driving a boat or car; they are held to the adult standard.




What’s your Verdict? (Page 84)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 50 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. Yee’s station wagon was badly damaged, and she was injured.Question:Can Yee collect from Britt?




What’s your Verdict? (Page 84)…In this case, Britt’s conduct is compared with the reasonable person standard. This is how we determine breach of duty:

A reasonable person:• Would drive at a safe speed• Would drive sober• Would drive only when the car’s lights workIn addition, speeding was a cause of the injury to Yee andthe station wagon (causation)




What’s your Verdict? (Page 84)…As for Yee’s conduct, she backed up without looking andpartially caused the injury. Therefore, Britt could use as adefense, contributory negligence.

• In some states, a plaintiff (Yee) cannot recover for losses caused by another’s negligence, if the plaintiff was contributorily negligent.

• Most states have substituted comparative negligence for contributory negligence. Here, the plaintiff is awarded damages in proportion to the plaintiff’s negligence.




What’s your Verdict? (Page 84)…

Another defense for negligence is assumption of risk. If plaintiffs are aware of danger, but decide to subject themselves to the risk, that is a valid defense for the defendant.

Example: You walk into a fast-food restaurant and see a sign stating “Danger! This floor is slippery due to mopping.” As you walk through the wet area you slip and fall, and break your arm.



What Is Strict Liability?This is liability that exists even though the defendant was not negligent. In strict liability cases, proof of both the activity and the injury substitute for proof of a violation of a duty.

Examples: •Engaging in abnormally dangerous activities (target practice, blasting, crop dusting with dangerous chemicals, storing flammable liquids in large quantities).•Ownership of dangerous animals (not domesticated animals with no history of violence).•Sale of unreasonably dangerous goods—defect causes injury.



What Can A Tort Victim Collect?There are two types of possible remedies:

InjunctionThis is a court order to do or not to do a particular act.

DamagesThese are monetary awards to the injured party to compensate for loss. The object is to place the injured party in the same financial position as if the tort had not occurred.



What Can A Tort Victim Collect?...

Damages…There are two types of damages:

• Compensatory (Actual)Provides for reimbursement of lost wages, medical bills, and pain and suffering

• Punitive DamagesThese are available when an intentional tort has been committed. The purpose is to punish the defendant.



How Much Does My Lawyer Get?Lawyers handle civil lawsuits on a contingency basis. They are paid as a percentage of the recovery (not hourly).

• Cases Settled Before Trial Lawyers are paid 25%.

• Cases Won at Trial Lawyers are paid 33%.

• Cases Won on Appeal Lawyers are paid 40%.



How Is A Civil Case Tried?

• Judges decide issues of law.

• Juries decide issues of fact.

• If no jury, the judge decides on issues of law and fact.



How Is A Civil Case Tried?...

The Civil Jury

• Composed of 6-12 citizens.

• They listen to witnesses, review physical evidence, and reach a decision.



How Is A Civil Case Tried?...The Process• Jury selection is done.• Attorneys make opening statements.• Plaintiff and defendant present evidence.

Evidence may be written (records, charts, weapons, etc.) or spoken (testimony). A subpoena is a written order for a witness to appear and give testimony; failure to do so is contempt of court.

• The jury renders a verdict. • The judgment is the final result of the trial (money). • Sometimes the defendant appeals.



How Is A Judgment Satisfied?The Process

• The defendant pays the plaintiff.

• If the defendant doesn’t pay, the plaintiff gets a writ of execution—a judgment for money is enforced by the court.

• Enforcement can include seizure of the defendant’s property, savings account, car, or other assets.

January 9, 2006BUSINESS LAW (Ms. Hawkins)1 CHAPTER 5: CIVIL LAW & PROCEDURE Chapter 5 presents...

Documents

Transcript of January 9, 2006BUSINESS LAW (Ms. Hawkins)1 CHAPTER 5: CIVIL LAW & PROCEDURE Chapter 5 presents...