Business Law

Week Two: Tort

Learning Plan 2

Week 2: Torts

What is the definition of a tort?

Tort . . . A private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. . . By definition, a tort is "civil (private) wrong or injury, other than a breach of contract.

TortsPersonal injuries have been

protected by law since the beginning of legal standards.

? What were some of the “personal injuries” that were covered by the Code Hammurabi?

Elements of a Tort

1. Existence of legal duty from defendant to plaintiff,

2. Breach of duty

3. Damage as proximate result.

If there is no injury, then there is no tort.

Classification of TortsSo torts are civil wrongs, not criminal, and

they are substantive, not procedural laws. But they can be either state or federal laws. For example- sexual harassment laws (Kansas Acts Against Discrimination AND Title VII).

Torts themselves can be classified into three main categories:

1. Intentional Torts2. Negligence3. Strict Liability

Intentional Torts

“Personal harms caused by a wilfull act:”

Examples of intentional torts:

Assault, Battery,

False Imprisonment, Defamation,

Invasion of Privacy, Trespass

Elements of Intentional Torts

Elements of Assault   1. Intentional act 2. Causes a reasonable apprehension 3. Of immediate harmful or offensive contact

 Elements of Battery 1. Intentional act  2. Causes harmful or offensive contact

Elements of False Imprisonment 1. Intentional act  2. Confines or restrains a person, without lawful privilege,

for an appreciable length of time

Defenses to Intentional Torts

1. Consent

2. Self Defense

Negligence

Negligence is a tort that was not caused intentionally, but applies to numerous situations.

? What are the Elements of Negligence?  1. Duty  2. Breach of duty  3. Actual and proximate cause  4. Damage to person or property  

Duty

Duty- decided by a judge- question of law

Where a “reasonable person” would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.

Breach of Duty

Breach of Duty- decided by a jury – question of fact

A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty.

Cause in Fact

“Causation”Under the traditional rules in

negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In other words, but for the defendant's actions, the plaintiff's injury would not have occurred.

Causation-cont’dProximate cause relates to the scope of a

defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions.

If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages.

Damages

A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property.

It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.

Defenses to Negligence1. Contributory negligence – 100% defense- The idea is that an individual has a duty to act

as a reasonable prudent person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.

 If Plaintiff is 1% at fault- then no recovery

2. Comparative negligence – recover money if you are less at fault than defendant .

Defenses, cont’d

3. Assumption of risk – you cannot recover for participating in a very risky activity that Plaintiff was well aware of the danger involved (sky diving). Perhaps even amusement park rides .. .?

Strict Liability

Liability even though there is no determination of fault

Elements of Strict Liability 1. Absolute duty  2. Breach of duty  3. Actual and proximate cause  4. Damage to person or property

Categories of Tort Damages

Compensatory DamagesThe purpose of compensatory damages is to monetarily

compensate the injured person for the loss suffered as a result of the tort. Compensatory damages can include medical expenses, loss of income, and pain and suffering.

Punitive DamagesPunitive damages, sometimes called exemplary

damages, may be awarded in addition to compensatory damages. Punitive damages are intended to punish the wrongdoer for outrageous or reckless conduct, such as fraud. Punitive damages differ from a criminal fine in that the injured person receives the punitive damages, while criminal fines are received by the government prosecuting the crime.

How To Brief A Case

IRACIssue: What is the controversy?Rule: What cases does the court

rely upon to make it’s decision?Analysis: Balancing of the facts

and law.Conclusion: The answer to the

controversy.

GARNER v. KOVALAK

Issue: What is the controversy?Garner claims the court should

have found Kovalak responsible for the damage to his trees under the theory of trespass quare clausum fregit.

So the issue is, Whether Kovalak is responsible for tree damage pursuant to quare clausum fregit (trespass).

Garner v. Kovalak- cont’d

Rule: quare clausum fregit:

Under that theory: [I]t is necessary for the plaintiff to prove only that he was in possession of the land and that the defendant entered thereon without right, such proof entitling the plaintiff to nominal damages without proof of injury, and upon additional proof of injury to products of the soil, the plaintiff is entitled to compensatory damages. Hawke v. Maus, 141 Ind. App. 126, 131, 226 N.E.2d 713, 717 (1967).

Garner v. Kovalak- cont’d

Conclusion:

As a trier of fact could reasonably find Kovalak’s action was impelled by the brown Cadillac, we decline to hold as a matter of law his act was intentional.

Garner v. Kovalak- cont’dAnalysisKovalak’s actions were not intentionalHe swerved into the tree while

avoiding a collisionInsurance company found him not

liable for the accident An intentional act is one ―resulting for the actor’s will directed to that end.‖

Black’s Law Dictionary 25 (7th ed. 1999). ―An act is intentional when foreseen and desired by the doer, and this foresight and desire resulted in the act through the operation of the will.‖ Id. An act done intentionally is also done voluntarily. Id. at 1569. An act is voluntary if it is ―not constrained, impelled or influenced by another.‖ Webster’s 3rd New International Dictionary Unabridged 2564 (G. & C. Merriam Co. 1976).

Business Law

Week Two: Tort

Learning Plan 2