Unit 4 Content Check

Tort

the harm, injury, or damage caused, or infringement of an individual’s right, in a civil lawsuit

How does a tort differ from a crime?

Crimes typically affect and offend society while torts harm, injure, or damage a person.

Plaintiff

a harmed individual who seeks to win a judgment against the accused wrongdoer

How does a plaintiff differ from a prosecutor?

Unlike the role of the prosecution, which has to prove a person innocent in court proceedings, the plaintiff in a civil procedure has to prove that something occurred to cause the issue in the case. (prosecution is criminal, plaintiff is civil)

Defendant

the accused wrongdoer who gets sued by a harmed individual

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Liability

state of being responsible for something, especially by law

Explain the concept and purpose of tort law and liability.

to compensate individuals or entities that suffer personal or property damage because of another's wrongful conduct and, when possible, enjoin continuing misconduct.

Remedy

a relief available to the person against whom any wrong has been committed. The accused party gives such relief.

Legal Remedies (“damages”)-Tort action resolution

monetary payments

EX: compensatory damages or punitive damages

Restitutionary Remedies- Tort action resolution

restore the plaintiff to wholeness/how they were before the tort

EX: restitutionary damages, restraining orders, replevin, ejectment

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Equitable Remedies- Tort action resolution

in place of monetary damages

Intentional wrongs

result of an intentional act (commits wrong and knows consequences)

EX: Assault and Battery, Trespass, False imprisonment

Acts of negligence

failure to behave with the level of reasonable care as an ordinary person (reckless/careless acts)

EX: accident caused by failure to obey traffic law, neglecting duty to help victims of one's previous conduct

Strict liability activities

defendant is liable for the results of ultrahazardous activities regardless of their mental state or intent

EX: defective products, animal attacks

Civil Law

the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.

who brings a civil (tort) suit and who files criminal charges?

In civil litigation, the plaintiff is asking the court to order the defendant to remedy a wrong, often in the form of monetary compensation to the plaintiff. In contrast, in criminal law, the case is filed by the government, usually referred to as the State and represented by a prosecutor, against a defendant.

Standard of proof used to determine guilt in a criminal prosecution

beyond reasonable doubt (higher standard of proof than preponderance of evidence)

Standard of proof used to determine liability in a tort suit

preponderance of the evidence; judge/jury only needs to be 51% sure the defendant is legally responsible for the plaintiff's injuries

Class Action Lawsuit

a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class".

Why should you hire an attorney if you have been injured?

• Increase/ensure you get a fair settlement amount for your damages

• Allow you to focus on recovery while the attorney manages the aspects of your case

• Deflects any wrongful accusations of fault

Hourly

lawyers charge an hourly rate for their services

On contingency

if lawyers don't get you any additional compensation over what the government offered you for your property, they don't recover an attorney's fee.

On retainer

client pays the lawyer a small amount on a regular basis. In return the lawyer performs specific legal services when needed.

Flat fee

the client pays the lawyer a set amount at the beginning of the matter to cover the agreed-on work.

Intentional tort

When a person commits a wrong against another and knows and desires the consequences of his or her act.

Ex: Assault and Battery, Trespass, False imprisonment

Two different classes of intentional torts

• Intentional torts to person

• intentional torts to property

Compensatory Damages

recover damages to make up for the harm caused

Nominal Damages

small amount of money awarded by the courts to show that the claim was justified

Punitive Damages

amounts of money awarded to the plaintiff to punish the defendants for malicious, willful, or outrageous acts

Tort of emotional distress

tort that occurs when one acts in a manner that intentionally or recklessly causes another to suffer severe emotional distress

• The defendant's conduct is outrageous/causes emotional distress

• The defendant acts purposely or recklessly, causing the victim emotional distress so severe that it could be expected to adversely affect mental health

Describe situations in which a plaintiff might be able to claim intentional infliction of emotional distress.

• issuing the threat of future harm (physical harm is not necessary)

• racial insults, sex discrimination, false imprisonment

EX: someone repeatedly yells at an actor, saying the worst things about that person in front of an audience

Two types of Defamation

Libel is a defamatory statement that is written. Slander is a defamatory statement that is oral.

Defenses to Defamation

• the statement was true.

• the statement was an opinion, not an assertion of fact.

• the person who made the statement retracted it.

• consent of plaintiff to make the statement.

Analyze the amount of force that may be used to protect property and/or to protect an individual.

• In NC under the Castle Doctrine, a person is justified in the use of deadly force and does not have the duty to retreat in any place he or she has the lawful right to be if either of the following applies: he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another."

• Deadly force is not allowed when the threat has stopped or the person flees, the person is a law enforcement officer acting in official duties, the person is a lawful resident of the property, or the person is under the legal guardianship of the person the force is used against.

Castle Doctrine

You have the right to defend your home, your vehicle and your workplace with deadly force.

Negligence

an accidental or unintentional tort resulting because of the failure to exercise the degree of care that a reasonable person would have exercised in the same circumstances

Elements

an essential requirement to make a claim or defense in court, as in elements of a civil action or a criminal action

Duty/standard of care - Element of negligence

 All of us have a duty not to violate certain rights of others. The plaintiff must demonstrate that the defendant owed him or her duty of care. The degree of care society expects of the defendant. The standard of care expected of someone who has expertise in a particular area would be greater than that expected from an average person.

Breach of Duty- Element of Negligence

the failure to use the degree of care that a reasonable person would exercise in that same situation

Proximate cause- element of negligence

the legal connection between the negligence and the injury (Courts apply the foreseeability test to determine proximate cause.“Was the injury to the plaintiff foreseeable at the time that the defendant engaged in the unreasonable conduct?”) Without proximate cause, the result would not have occurred.

Actual Harm- element of negligence

a violation of a duty that results in injury to the plaintiff. The plaintiff must have actually suffered physical injury, property damage, or financial loss.

duty

an obligation, created by law or contract

breach

a violation of law or when a party fails to perform their part of a contractual agreement

Reasonable person standard

Reasonable person standard refers to a hypothetical, average person's reaction to the actual circumstances of alleged illegal activities such as harassment, negligence or discrimination

• For minors: generally not expected to act as a reasonable adult would act, and courts hold them to modified standard; compares their behavior to a reasonable standard of behavior for a child of a similar age with comparable experiences and intelligence.

• For professional experts: define the reasonable person standard based on the person’s specialization; doctors and nurse practitioners have medical experience so courts may determine negligence by comparing such persons to the reasonable standard of behavior for someone in the same profession in the same circumstances.

Causation

the defendant's act must be an operative and substantial cause of the consequence

Differentiate between cause in fact and proximate causation.

Actual cause, also known as “cause in fact,” is straightforward. When a bus strikes a car, the bus driver's actions are the actual cause of the accident. Proximate cause means “legal cause,” or one that the law recognizes as the primary cause of the injury.

Damages

the remedy that a party requests the court award in order to try to make the injured party whole.

Examples of the types of losses plaintiffs can recover in court.

• property damages

• punitive damages

• non-economic damages/general compensatory damages (pain and suffering, emotional distress, etc)

• special compensatory damages/economic damages (medical expenses, loss of income, funeral expenses, etc)

Contributory Negligence- defense to negligence suit

Behavior by the plaintiff (person who is harmed) that helps cause the harm/injuries they are facing.

Comparative Negligence- defense to negligence suit

A principle used to lessen the number of damages that a plaintiff can recover (in negligence-based claims) by assigning percentages of negligence to each party involved

Counterclaim- defense to negligence suit

a claim for relief filed against an opposing party after the original claim is filed. Most commonly, a claim by the defendant against the plaintiff.

Assumption of Risk- defense to negligence suit

Proof (usually shown by the defendant) that the plaintiff knew of the risk involved and chose to participate in the action knowing there was a chance of being injured.

Strict liability

Some activities that are considered so dangerous that the law will apply neither the principles of negligence nor the rules of intentional torts to them. If these ultrahazardous 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.

Explain how and why strict liability differs from negligence.

In a negligence lawsuit, the plaintiff contends that the defendant's negligence or recklessness caused their injuries. In a strict liability lawsuit, the defendant is liable for damages even if he or she was not negligent or at fault.

Some of the dangerous activities for which strict liability applies.

• owning wild animals

• nuclear power plants

• blasting rock with dynamite

• products liability

• storing explosives

Explain why applying the standard of strict liability to certain activities creates an incentive for careful and safe practices.

being held liable regardless of intent incentivizes safe practices and cautiousness that will minimize harmful outcomes

Summarize how courts have decided liability for harm caused by untamed animals and household pets.

In most states, dog owners are protected to some degree from injury liability the first time their dog injures someone else (“one bite rule”) if they had no reason to believe their dog was dangerous. In North Carolina, statute (N.C. Gen. Stat. Ann. § 67-4.4) makes the owner "strictly liable", meaning regardless of the animal's past behavior, the dog owner is responsible for a personal injury caused by his/her dog.

Describe the relationship between pet owner negligence and liability.

• The dog owner is liable if the injury occurred because the dog owner was unreasonably careless (negligent) in controlling the dog.

• In many states, the dog owner may not be liable to trespassers who are injured by a dog.

• NC statutes states that the owner is responsible for personal injury caused by their dog, regardless of their dog’s past behavior.

Describe the role of the U.S. Consumer Product Safety Commission in protecting consumers from defective products.

The USCPSC regulates products that pose a fire, electrical, chemical, or mechanical hazard or can injure children; can pursue recalls or ban products that they deem very dangerous

Product liability

a term used to describe the legal liability of manufacturers or sellers of goods to compensate buyers, users and even bystanders for damages or injuries suffered because of defects in goods purchased.

product liability and the way it relates to strict liability.

Products Liability is generally considered a strict liability offense. With regard to products liability, a defendant is liable when the plaintiff proves that the product is defective, regardless of the defendant's intent.

Tort Reform

a group of ideas that are designed to change the laws of the civil justice system so that tort litigation and damages are reduced. ( involve making it harder for injured people to file a lawsuit, limiting the amount of money or damages that injured people receive as compensation for their injuries in a lawsuit, reducing damages to punish wrongdoers (punitive damages), and making it more difficult to obtain a jury trial.)

Statute of limitations

a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim.

Frivolous Lawsuits

a lawsuit, motion or appeal that is intended to harass, delay or embarrass the opposition. A claim is frivolous when the claim lacks any arguable basis either in law or in fact

torts that harm *real property*. (cannot move and attached to land)

Trespass on land (entering someone's land without permission)

the torts that harm personal property. (can move and own; not land)

• Trespass to chattels (handling items owned by another person without their permission)

• Conversion (taking possession of someone else's property with the intent of not returning it)

Consent defense

plaintiff’s consent is implied when the plaintiff fails to object, or is silent in a situation in which a reasonable person would object to the defendant’s actions.

ex: unconscious but need to perform life-saving operation

Privilege defense

justifies or excuses tort

EX: attorney-client privilege protects any conversations between client and attorney

self defense

The use of force to protect oneself from an attempted injury by another. (if justified can be used as a defense for various crimes and torts)

EX: a defendant may have been threatened by a man holding a toy gun and responded by assaulting or harming the man.

property defense

an affirmative defense to liability for an alleged crime that one used force in order to protect one's property

EX: When defendants are charged with criminal assault or battery, they may argue that their acts were reasonably necessary to protect their property

Assumption of risk- defense to strict liability

requires the defendant to prove that plaintiff knew and appreciated the risk created by a particular condition and plaintiff voluntarily assumed that risk

statute of limitations- defense to strict liability

requires an action be brought within a specific period of time after the victim discovered or should have discovered his or her injuries

statute of repose- defense to strict liability

mandates an absolute limit on the time within which an action should be brought, regardless of when the injury was discovered

comparative fault- defense to strict liability

court reduces amount of damages awarded in accordance with percentage of harm which was self-inflicted

misuse or abuse of product- defense to strict liability

plaintiff used the item in a manner for which it was not intended or a manner in which could not have been reasonably foreseen

Identify purposes of the tort law system.

• to compensate individuals or entities that suffer personal or property damage because of another's wrongful conduct and, when possible, inhibit continuing misconduct; fix wrong and provide relief

• holds individuals legally accountable for the consequences of their actions in the absence of contracts

Summarize common criticisms given of the tort law system.

costly and inefficient, arbitrary and open to abuse, blamed for driving liability insurance premiums to excessive levels

Explain the relationship between causation and damages in strict liability cases.

Strict liability is a theory that imposes legal responsibility for damages or injuries even if the person who was found strictly liable did not act with fault or negligence. This theory usually applies in three types of situations: animal bites (in certain states), manufacturing defects, and abnormally dangerous activities.

example of states’ tort reform efforts that target the process and the outcome of tort cases.

Twenty-nine states currently have tort reform that places a cap on malpractice damages that have so far survived constitutional challenges. Some of these medical malpractice "tort reform" states have malpractice limits on pain and suffering.

* In most states the cap is for non-economic damages but some states include caps for punitive damages as well.