2TORTS Damages CIVIL LAW CRIMINAL LAW From Chapter 1 4/11/2017CIVIL LAWCRIMINAL LAWWrongs against individualsPolice do not take actionSeek remedy for wrongs doneWrongs against societyGov’t investigates/ prosecutesConviction results in fines/ imprisonment/ executionTORTSDAMAGES -- The money award is intended to compensate the injured party for the harm done to her or him.From society’s standpoint, the money is meant to restrain the injured individual’s desire to exact revenge by taking the law into her or his own hands.DamagesFrom Chapter 1Chapter 1
3Elements of Criminal Acts From Chapter 4DutyTo do or not do a certain actionBreachFailure to do duty is the criminal actIntentUsually, but not always required to be provenWhat duties do you have?not harm othersbuckle up babypick up dog wastelock up guns/medicineFailure to actin a rage, beat someone (recent case of Chicago Bear fan in Florida)did not secure child seat (in a hurry)left waste (unhealthy for society)did not lock up (child finds/uses)Intent -- not always neededknew that action was wrong
4Elements of a Tort What is different? DutyTo do or not do a certain actionBreachFailure to show proper careInjuryMust be provedCausationThe breach caused the injuryWhat is different?Did intent need to be proved in criminal? Why would we need to prove it in civil?Why is causation important?Mrs. Sigsworth did not take accept late work in Intro to Business and that is why I did not get in to college.Did McDonald’s really make your kid fat?Like criminal law, tort law is a broad legal category. Just as there are many specific crimes, there also are many specific torts. Certain elements are common to most torts. In a trial, these elements must be proved to establish liability (legal responsibility).
5Chapter 54/11/2017What’s your verdict?Jerone failed to tell the Coast Guard about his high blood pressure and prescription drug use when he applied for his license as a ferry pilot for the city. 3 years later, while operating the ferry, Jerone passed out at the controls. 18 commuters died and dozens more were injured. At the time Jerone was also taking 2 pain medications for back pain. BOTH medications listed drowsiness as a possible side effect.Chapter 4LAW
6A tort by his negligent conduct in piloting the ferry. Chapter 54/11/2017Manslaughter is punishable in most states by up to 10 years in prison for each count.Damages of negligence will be awarded appropriate to the claims of the injured and the families and estates of deceased passengers.You must file for damages in order to receive them!2 crimes, 18 counts of the crime of manslaughter and the crime of failing to disclose his drug use and blood pressure status in applying for the position.A tort by his negligent conduct in piloting the ferry.Chapter 4LAW
7State Island ferry crash of October 22, 2003 Chapter 54/11/2017State Island ferry crash of October 22, 2003The captain of that ferry who had allegedly fled the scene and attempted suicide, ultimately pled guilty to the manslaughter charges brought against him.This factual construct is based upon the State Island ferry crash of October 22, The captain of that ferry who had allegedly fled the scene and attempted suicide, ultimately pled guilty to the manslaughter charges brought against him. Other officers and ferry operations officials were also accused of various crimes including failing to be on post during docking and obstruction of justice in the investigation. More than 50 civil suits resulting in millions of dollars in damages were filed against the captain and the city. (The investigation revealed serious problems with the safety rules and the enforcement of those rules by the city. )Chapter 5LAW
8Duty – Question of LAW for the court Not to injure another personBody, reputation, privacyNot to interfere with another’s propertyArson, trespassing, car accidentsNot to interfere with another’s economic rightsContracts, loss of wages, false advertisingHow can you injure someone?How can you interfere with another’s property?How can you interfere with another’s economic rights?in soccer: team tampering?Whether or not a duty exists in a certain situation is a question of law for the judge to decide. A judge will make this decision by consulting state case (precedent cases) and statutory law (legislation) and, on occasion, federal law.
9Violation of Duty (Breach) Question of FACT for the jury/judge Must be proven to collect damagesIntentional Tort – Actual intent to cause harmNegligence – Carelessness, no intentStrict Liability – no intent or carelessness neededMore later…….What are examples of intentional torts? Assault, battery, false imprisonment, defamation, intentional infliction of emotional distress (bullying)The most common tort (wrongdoing) — and the one most difficult to define — is negligence.Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place or thing.What are examples of Negligence? Operating on the wrong foot, distracted driving (lighting cigarette, phone use, eating), Slip & FallStrict Liability will be discussed later in chapter…… but some examples are – owner of a pet tiger, defective products (Toyota – unintended acceleration)
10Classify the following situation After clearing the danger area of known personnel, sounding warnings, and igniting the charge in the early morning, you set off a dynamite explosion to break up rocks for a road bed. Regardless of your precautions a dislodged rock hits a hiker, injuring her.Intentional TortNegligenceStrict LiabilityChapter 5
11Classify the following situation You were glancing down at your cell phone to dial a number and hit another vehicle.Intentional TortNegligenceStrict LiabilityChapter 5
12Classify the following situation You purposely scratched your ex’s car with a key.Intentional TortNegligenceStrict LiabilityChapter 5
13Injury Damage (bodily, property, financial) must occur Car Accident: No intent needed, but costs incurredBodily: emergency room, broken leg, rehabilitationProperty: towing, rental, repairFinancial: loss of wagesIf you act recklessly, but no one is injured, there is usually no tortNo damage = No TortInjury resulting from the breach of duty must be proven.Ask students to view scene. What costs might be incurred by the victim in this accident?Damage to vehicle, ride in ambulance and hospital visit, can’t work for a period of timeReckless behavior: Rent boat from Three Oaks Recreation Area – goofing around, tip boat, all good swimmers…..no harm done
14Causation The breach caused the injury Proximate Cause – reasonably foreseeable that breach would result in injuryREASONABLE PERSON TEST!Would a reasonable person have predicted the result of the action?How far back can we go for causation?I was struck by a car…..I am going to sue Mercedes-Benz because Karl Benz invented the modern day automobile.Example from yesterday…..was my not accepting late work from student the proximate cause of Dana not getting scholarship?would a REASONABLE PERSON believe the act was foreseeable?
15Chapter 54/11/2017On a windy autumn day, Mason was burning dry leaves in his backyard. When he went inside 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 on fire, and it burned to the ground.Walk through the 4 elements:Did Mason owe a duty to his neighbor?Did Mason breach his duty?Was injury caused? What?Was there proximate cause? Would a reasonable person have foreseen the risk?Would this have happened if Mason hadn’t answered his phone?Who has fires in their yard?What care is taken?What if Mason had been there and there was a strong gust of wind?Would a reasonable person had a hose ready?Mason committed a tort because (1) he owed a duty to the neighbors not to injure their property; (2) he breached the duty when he carelessly left the first unattended so it spread to the neighbor’s property; (3) the injury occurred when the neighbor’s house was burned; and (4) leaving the fire unattended was a proximate cause of the loss of the fence, the tool shed, and the house. Therefore, the neighbor can obtain a judgment against Mason for the value of the loss.Did Mason commit a tort?Chapter 4LAW
16Criminal Intent (cont.) Know the difference between right and wrongAges 0 to 7Incapable of forming criminal intentLack moral sense/understanding of actionLaws vary state to state after thatAges 7-14Presumed incapable of committing crimeCan be disproved by showing child understood nature of actIllinois – can be tried as adult as early as 10Insane: did not know right from wrongFrom Chapter 40 to 7 – cartoons: how many times can Wyle E Coyote die?A Time to Kill – dad was temporarily insane due to violence against his daughterJohn Hinckley
17Responsibility for Another’s Torts All person’s are personally responsible for their own tortsInsaneChildrenDifferences in development and experience makes a subjective test more accurate.Factors considered in this analysis include:AgeIntelligenceExperienceWhen a minor engages in adult activity (driving a car), the child is held to the same standard as an adult.Minors’ Liability for Own TortsA minor is responsible for his or her own torts; however, more lenient standards of intent or negligence may be applied. In determining tort liability for children, there are special rules, usually based on the age of the minor. Historically, there was a bright-line test based on the child’s age. Specifically:Under age 7: A child could not be negligent.Between age 7 and 14: There was a rebuttable presumption that the child could not be negligent.Between age 14 and 21: There was a rebuttable presumption that the child was capable of negligence.Example:Ted was 6 ½ years old when he was injured after running in front of a car. The driver argued that Ted was contributorily negligent as a matter of law. The lower court held that the child could not be negligent because of his age. However, on appeal, the court ruled that the jury should be able to decide whether, based on the facts and circumstances of this case and the characteristics of this child, Ted could be held to have been negligent. See, e.g., Tyler v. Weed, 280 N.W. 827 (Mich. 1938). See also, Baker v. Alt, 132 N.W. 2d 614 (Mich. 1965).Example: Albert (age 12) was wounded by a bullet from a gun discharged by his cousin, George (age 12), while they played in a cottage owned by their common grandfather. In an attempt to defeat a trespass action brought by Albert against George and his grandfather, George relied upon his age to absolve himself of any culpability for his actions. If the chronological age test had been applicable, there would have been a presumption that George could not be negligent. Instead, the appellate court affirmed the trial court finding that George and his grandfather were liable for Albert’s injuries. The court found that George was “under an obligation to exercise reasonable care, which was measured by the ‘reasonable care’ that other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances.” See Kuhns v. Brugger, 135 A.2d 395 (Pa. 1957).Example: David, who was 15 years old, was killed when a motorcycle he was driving collided with the driver’s car. At trial, the driver objected to the minor standard, which stated because the decedent was under the age of 21 at the time of the accident, he was considered a minor and was not to be held to the same degree of care as an adult. Instead, it was argued that the decedent was required to exercise the care of the average child of his age, experience and stage of mental development. On those jury instructions, the jury returned a verdict in favor of the administrator of David’s estate. On appeal, the court held that the correct standard of care was that of an adult because David (although a minor) was operating a motor vehicle. See, e.g., Daniels v. Evans, 224 A.2d 63 (N.H. 1966). As such, at the very least David could have possibly been considered contributorily negligent in the accident.
18Parental Responsibility Laws. 1. Restitution (money) $$$$$ Chapter 54/11/2017Should your parents be liable for your actions and have to pay damages if you cause harm to another person (hitting them) or another’s property (keying their car)?Parental Responsibility Laws.1. Restitution (money) $$$$$2. Institutional Costs – In Illinois, parents or guardians must pay room and detention board associated with their child’s delinquent acts. (1999)3. Service Costs – rehab, family counseling, electronic monitoring4. Procedural costs5. Community Service from parents whose children violate curfewParental Liability for Minor’s TortsA survey of various judge television shows would reveal a fair amount of lawsuits against minors. Often, the plaintiff attempts to collect restitution from the parents for the tortious conduct of a minor child. In certain circumstances, parents can be held civilly or criminally negligent for the conduct of their minor children.Each state has its own law regarding parents' financial responsibility for the acts of their children. Parents are responsible for their children's harmful actions much the same way that employers are responsible for the harmful actions of their employees. This legal concept is known as vicarious liability. The parent is vicariously liable, despite not being directly responsible for the injury. A number of states hold parents financially responsible for damages caused by their children. Some of these states, however, place limits on the amount of liability. For example, in California parents are civilly liable for a “minor’s acts of willful misconduct resulting in death, personal injury or property damage.” See Cal. Civ. Code § (2005). Specifically,Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($ 25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($ 25,000). The liability imposed by this section is in addition to any liability now imposed by law.See Cal. Civ. Code § (a) (2005).Example: Andrew, who is 16 years old, went on a drinking binge with some friends (also minors). While drunk, he stole a small airplane and went on a joy ride with his friends. He did not have a pilot’s license. Although he managed to land the plane without incident, he did slide into another small plane and cause $10,000 worth of damage. The owner of the damaged plane sued Andrew and his parents. If this incident had happened in California, both Andrew and his parents could be held jointly and severally liable for the $10,000 in damages as a result of Andrew’s willful misconduct. See Cal. Civ. Code § ; see also Nev. Rev. Stat. Ann. § (2005).Other types of tort liability are covered more fully in the torts class.Chapter 5LAW
20Sec. 1. This Act shall be known and may be cited as the Parental Responsibility Law. Sec. 2. As used in this Act, the terms specified have the meanings ascribed to them: (1) "Legal guardian" means a person appointed guardian, or given custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the Juvenile Court Act or the Juvenile Court Act of (2) "Minor" means a person who is above the age of 11 years, but not yet 19 years of age. Sec. 3. Liability. The parent or legal guardian of an unemancipated minor who resides with such parent or legal guardian is liable for actual damages for the wilful or malicious acts of such minor which cause injury to a person or property, including damages caused by a minor who has been adjudicated a delinquent for violating Section of the Criminal Code of Reasonable attorney's fees may be awarded to any plaintiff in any action under this Act. If the plaintiff is a governmental unit, reasonable attorney's fees may be awarded up to $15,000.The changes to this Section made by this amendatory Act of the 95th General Assembly apply to causes of action accruing on or after its effective date.