2 Difference between criminal and civil law Criminal Law Civil LawPlaintiff is the state (e.g., - Plaintiff is private party State v. Doe) (e.g., Doe v. Roe)Guilty or Not Guilty - Liable or Not LiableGuilty verdict results in - Liability results in prison sentence paying damages (i.e., money)Prosecution must prove - Plaintiff only needs aguilt beyond a reasonable preponderance of doubt doubt evidence (i.e., 51% or more)This is a very basic overview. There are other differences, but these are the main ones.
3 For example In the case of OJ Simpson, he was tried in two courts- one criminal and one civil.Criminal trial- He was declared innocentCivil trialThe parents of Ron Goldman, Fred Goldman and Sharon Rufo, brought suit against Simpson for wrongful death, and Brown's estate, represented by her father Lou Brown, brought suit against Simpson in a "survivor suit“.The jury in the civil trial awarded Brown and Simpson's children, Sydney and Justin, $12.6 million from their father as recipients of their mother's estate. The victims' families were awarded $33.5 million in compensatory and punitive damagesHow? In a criminal trial, the burden of proof has to be BEYOND A REASONABLE DOUBT, in a civil trial the proof has to be a preponderance of evidence (meaning that the existence of the fact in issue is more probable than not)What do you think? If you’re found not guilty for a crime should you be found “liable” for essentially the same thing?
5 Nope. This is a character from a Japanese children’s show. So, What Is a Tort?Nope. This is a character from a Japanese children’s show.
6 So, What Is a Tort?Here are some torts… Person spits on man Nuisance- both public and privateAmerica’s Funniest Home Videos is a wonderful source of torts videos.
7 Definition of a TortThe book defines a tort as 1. A private wrong committed by one person against another. It involved ones person’s interference with another person’s rights. A tort will lead the wronged party to try and recover money as compensation for the loss or injury suffered I define a tort as: All the crazy stuff that you can possibly imagine happening to a person, and then suing the other person for $$$$This might be a good place to mention that many torts can also form the basis for a criminal wrong as well (e.g. homicide/wrongful death, robbery/conversion, etc.), but it can also be mentioned at a later point in the presentation.
8 Sooo…. The law of torts is grounded in a person’s rights Let’s review. We ALL have certain rights entitled to us simply because we are members of a society.Some of our rights:The right to be free from bodily harmThe right to enjoy a good reputationThe right to conduct business without unwarranted interferenceThe right to own property free from damage or trespassThe right to keep another from interfering with our enjoyment of lifeThe right to be detained only with a reasonable amount of time and reasonable grounds
9 Types of Torts- (Forgot to add these to your notes, please add the 3 categories of Torts) There are a variety of torts, which can broadly be broken into the following three categories:Negligent tortsNegligent torts, as their name suggests, are torts that are caused by the negligence of the tortfeasor, or person who commits the tort.Intentional tortsIntentional torts, also as their name suggests, are torts caused intentionally by the tortfeasor.Strict liability tortsStrict liability torts are torts where the law has determined that some activities are so dangerous that an individual engaging in those activities is liable for damages regardless of intent or negligence resulting in harm. A common example is blasting with dynamite.Explain to students that the focus of the class will be on negligent torts.There are a wide variety of intentional torts, each with different elements, so the subject is not as amenable to a one or two class session. Strict liability torts are traditionally very uncommon and there is little more else to be said about them than the summary above.
10 Intentional TortsTorts are classified as intentional and unintentional.Today we will only be looking at intentional torts and strict liability tortsIntentional tort- occurs when a person knows and desires the consequences of his or her actLet’s look at some common intentional torts…
11 Assault and Battery Assault and battery: two separate torts Tort of assault- occurs when one person deliberately leads another person to believe that he or she is about to be harmedExample: rushing towards someone with a knifeTort of battery- involves the unlawful touching of another person, even if the physical contact is not harmfulCrime of assault vs. tort of assault: in a tort of assault the victim MUST prove that the person meant to commit harm, otherwise, the victim has not been frightened, and no harm has resulted
12 Example of BatteryStudent John and Student Jack are walking down the hall at school in opposite directionsThe students accidentally bump shoulders as they pass each otherStudent John reaches over and punches Student Jack in the stomach and tells him to be more careful next timeWas there: (1) Intent (2) A volition (a purposeful act) (3) a harmful or offensive contact (4) to the victim
13 TrespassThe wrongful damage to or interference with the property of anotherProperty includes anything you ownReal property includes land and things built on the land, growing on the land, or located within the landExample: Hunting season is now (deer). So if I went on someone’s private land to hunt without their permission, the landowner could bring a lawsuit against me.
14 NuisanceAnything that interferes with the enjoyment of life or propertyLoud noises at night, obnoxious odors, etc.Public nuisance- affects many peoplePrivate nuisance- affects one personExample: The Krispy Kreme on the corner of my street opened up a few years ago. After it was built, the lights that they had on in their parking lot were shining right into the neighbors windows. As a result, Krispy Kreme could have been sued (it was settled out of court, and the lights were moved) due to a public nuisance.
15 False ImprisonmentWhen police arrest someone without probable cause or a warrant, or when a person detains another person/or people without reasonable grounds and/or do not detain the suspect in a reasonable manner for a reasonable amount of timeExample: Mrs. Savitskie asks all Business Law students to come to a class meeting after school. Once everyone arrives I say “I suspect that some of you cheated on the last quiz. As punishment all of you must stay in this room for the entire weekend. If any of you try to leave I will fail you, and will also Tazer you when you attempt to leave. This should teach you a lesson!”Was there: (1) Restrain, (2) plaintiff’s physical liberty, (3) and the harm plaintiff suffers is loss of freedom
16 DefamationDefamation is divided into two categories: libel and slanderLibel: a false statement in written or printed form that injures another’s reputation or reflects negatively on that person ‘s characterSlander: a false statement is made orally that damages your reputation, is false, and is communicated to at least one other personExamples: radio and tv, newspaper stories, videos, movies, photographs, signs, paintings, statues
17 Defamation, cont.Some exceptions of privileged speech in which it is notconsidered defamation:Senators and representatives on the floor of CongressStatements made in a court of lawPeople in the “limelight” also have more difficulty than an average person in proving damage to their reputation in defamation lawsuitsPublic officials, judges, movie stars, singers, sports figures and other entertainers are considered in the public limelightA U. S. Supreme Court case ruled that public figures must prove that false statements about them were made with actual malice. In other words, it must be proven false or with a reckless disregard for whether it was truePublic figures are held to a more difficult standard because they have voluntarily chosen a lifestyle that naturally exposes them to close scrutiny by the press.
18 Examples of LibelThe following are a couple of examples from California cases; note the law may vary from state to state.Libelous (when false):Charging someone with being a communist (in 1959)Calling an attorney a "crook"Describing a woman as a call girlAccusing a minister of unethical conductAccusing a father of violating the confidence of sonNot-libelous:Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)Calling a TV show participant a "local loser," "chicken butt" and "big skank"Calling someone a "bitch" or a "son of a bitch"Changing product code name from "Carl Sagan" to "Butt Head Astronomer"Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.
19 Invasion of PrivacyInterfering with a person’s right to be left alone, which includes the right to be free from unwanted publicity and interference with private mattersExamples of your rights of privacy: Agencies must get permission to use records for purposes other than those for which they were gathered, people in business who are entrusted with confidential records must make great efforts to ensure that the records are not made publicPrivacy is not only public records, but also using your photograph, likeness or name without your permission for advertising, publicity, or publication purposes, also your right to privacy is violated when unauthorized people use the computer to gain access to confidential informationExample: You sit at my desk and see that I have left the PowerSchool login for the substitute to take attendance the day I am out. You take the login information and log in to my PowerSchool account and change the grades of you and your friends
20 Intentional Infliction of Mental Distress (IIMD) To cause emotional distress: The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.Example: Deante tells Ms. Savitskie that she better give him an A in the class or else he will shoot her parents and niece and nephew. Every day for a week Deante mimics pointing a gun and shooting. By the end of the weekMs. S is so frightened that she has a panicattack and is rushed to the emergency room.
21 Strict LiabilityStrict liability- activities that are so dangerous that the law will apply neither the principles of negligence NOR the rules of intentional tortsAccording to strict liability, if these activities injure someone or damage property, the people engages in the activities will be held liable, REGARDLESS of how careful they were and REGARDLESS of their intentExamples: using explosives, keeping wild animals, storing highly flammable liquids in highly populated areas, injury from defects in productsGreat example! In the news, there have been deaths associated with the injection of (legal) steroids used, causing meningitis (leading to death). This pharmaceutical company is currently being sued for those deaths (very sad case if you haven’t read about it).
22 Defenses to Intentional Torts ConsentSelf defenseDefense of OthersDefense of PropertyRecapture of Converted PropertyPrivilege of Public Necessity- actingto protect interests of the public
23 Questions? Today’s assignment Complete the Tort Hypothetical Assignment answering a,b, c, d, for each of the 10 hypothetical situations
24 Torts: Fact or Fiction?Raise your hand if you think the following actually happened:A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby.A woman sued a railroad company because scales fell on her on a railroad platform. A railroad worker had helped a young man, who happened to be carrying a bundle of fireworks, jump onto a moving train. While jumping on the train the young man dropped his package, which caused the explosion that caused the scales to fall.A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver’s head.A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.Take a poll of students to determine whether they think these torts actually happened. The poll may be taken either after each fact scenario or after all of them. These are all actual tort cases.
25 Negligent Torts: Elements There are four basic elements of a tort:1) Duty2) Breach3) Causation4) DamagesExplain that in order to win a negligent tort claim, the plaintiff must prove each of the four elements. If one of the elements is missing then the plaintiff cannot win (e.g., if the plaintiff cannot prove that the defendant’s breach of duty caused the plaintiff’s damages then even if the plaintiff was injured s/he cannot recover).
26 Negligent Torts: DutyEveryone has a duty to exercise due care all of the time. What is due care? Due care is the amount of care that a reasonable person would exercise under the circumstances. What is a reasonable person? A reasonable person is not any real person or even the average person, but an imaginary prudent person who takes the precautions necessary to avoid harming another person or their property.Ask students to attempt to answer each of the questions on the slide.In addition, you may want to ask questions such as whether everyone is held to the same reasonable person standard. Ordinarily they are, but some interesting exceptions include professionals such as architects, doctors and lawyers (held to the standard of a reasonable member of their profession) and people with physical disabilities (held to the standard of a reasonable person with such a disability). Note, however, that people with mental disabilities are held to the same standard as people who do not have such disabilities.
27 Negligent Torts: DutyCan you think of examples of due care that each of the following people must exercise?:A lifeguard at a municipal pool.A lumberjack felling a tree.An owner of an aggressive dog.A high school football coach.There is not necessarily one right answer for any of these individuals. Possible answers include: (1) actively scanning the pool or not placing too much chlorine in the pool; (2) yelling “Timber!” or making sure the surrounding area is clear; (3) keeping the dog on a leash or keeping the dog fenced in; and (4) making sure players are properly hydrated or making sure players are not forced to play injured.
28 Negligent Torts: Breach Breach is the simplest of the four elements.Once you determine the standard of care, you ask, did the defendant follow that standard of care?For example, if the standard of care requires the owner of an aggressive dog to keep the dog on a leash and the owner does not do so s/he has breached the duty of care.
29 Negligent Torts: Causation There are two types of causation:Causation in fact; andProximate cause
30 Negligent Torts: Causation Causation in fact, also known as “but-for” causation, is pretty simple. The question is, but for the defendant’s actions would the injury have occurred? Example: A hits B in the shin with a golf club. B’s shin would not have been injured if A had not him in the shin with a golf club.
31 Proximate Cause Proximate cause is a little more difficult. Ultimately, it is more of a policy question than a legal question. The issue is where the law wants to cut off liability for a negligent actor.Several theories exist regarding proximate cause:ForseeabilityDirect CausationThe “Danger Zone”It would be good to mention an actual case where it was held that there was no proximate cause. One good case involves a flaming barge floating down a river that set fire to a house on the riverside and due to a strong wind thirty neighboring houses caught fire. The court held the barge operator liable for the first house, but not the other 29. One of the courts rationales was to promote a social policy that encouraged purchasing homeowner’s insurance.The theories, on a basic level, are: (1) whether the tortfeasor could have foreseen the consequences of his or her actions; if not no proximate cause; (2) whether the tortfeasor’s actions were the direct cause of the consequences; if there was an intervening cause such as a lightning strike then no proximate cause; and (3) similar to forseeability, whether the harm was within the range of harms that could be expected from the tortfeasor’s actions.
32 Negligent Torts: Causation: Hypo This is Ken Griffey, Jr. Ken Griffey, Jr. likes to practice his swing in his living room. Unfortunately, this sometimes leads to disaster…
33 Negligent Torts: Causation: Hypo 1 One day, while practicing his swing in his living room, Ken loses his grip on the bat. The bat flies into the sitting room and hits his wife’s friend in the head, causing minor injuries. Q1: Is there causation in fact? Q2: In there proximate causation?For each of these scenarios, ask the students the questions and ask for the rationales for their answers.For this scenario there is clearly both causation in fact and proximate cause. There does not appear to be a policy reason why the court would not want to hold Griffey liable for the injuries.
34 Negligent Torts: Causation: Hypo 2 Ken did not learn his lesson when he injured his wife’s friend. Once again, during a practice session, Ken loses his grip. This time the bat flies through a window and hits the ladder his roofer is using to climb onto his roof. The roofer falls and breaks both his arms. Q1: Is there causation in fact? Q2: In there proximate causation?In this scenario there is clearly causation in fact and it seems there is proximate cause. This is a good place to point out that simply because something is uncommon (such as a roofer being on a ladder outside your window) does not mean it is not foreseeable and therefore there is no proximate cause.
35 Negligent Torts: Causation: Hypo 3 Ken, Ken, Ken. He keeps practicing, and keeps losing his grip. This time the bat flies into his neighbor’s yard. The bat hits his neighbor in the head just as he is squirting lighter fluid onto his grill. He squirts too much, which causes an explosion. In addition to his head injuries, he suffers burns from the explosion and there is some fire damage to his house.Q1: Is there causation in fact for each injury?Q2: In there proximate causation?Q3: What if the fire had burned down the neighbor’s house? Several neighbors’ houses?In this scenario there is clearly causation in fact. However, proximate cause may be more difficult. Perhaps there is something wrong with the grill or the lighter fluid that caused the fire. Perhaps one could foresee the neighbor burning himself at the grill, but could the fire damage to the house be foreseen? There is no real right or wrong answer, and whether there is liability for some of the more extenuating harms, such as burning down several houses, can depend on factors such as the quality of the attorneys’ arguments and the jurisdiction where the trial is being held.
36 Negligent Torts: Causation: Hypo 4 For some unknown reason, Ken is still practicing his swing in his house and he has a new neighbor, Eric, that loves to BBQ. It’s a perfect storm. And sure enough, Ken launches his bat through his window into his neighbor’s yard. The bat hits the BBQing neighbor, setting off another BBQ explosion. This time it kills the neighbor, and the neighbor’s wife is severely injured in the ensuing fire. As she is being wheeled to the ambulance she is struck by lightning. Q1: Is there causation in fact for each injury? Q2: Is there proximate cause for each injury? Q3: Could Jane, another neighbor, sue Ken because she can no longer sell the new gas grill she handmade for Eric to Eric because Eric is dead?There is causation in fact for some of these injuries, but, for example, there is no causation in fact for Eric’s wife’s lightning strike-related injuries. Proximate cause is also much less likely to be found for the lightning strike injuries, but could be found for the BBQ explosion and ensuing fire. It is also highly unlikely there would be proximate cause for Jane’s injury (i.e., loss of income from the BBQ).
37 Negligent Torts: Damages The basic idea of damages is fairly simple: All injuries can be reduced to a monetary amount. The real difficulty comes in calculating damages. For example, it is pretty easy to figure out how much a totaled car is worth, but it’s not so easy to figure out how much eyesight is worth.
38 Negligent Torts: Damages: Hypo Betty and Derek are walking to school. Steven is driving down the street talking to his friends in the backseat. One of Steven’s friends screams “Look out!” Steven reacts by turning the wheel of his car, which jumps the curb and pins Betty’s arm to the wall crushing it. What remains of Betty’s arm needs to be amputated. Q1: How much is Betty’s arm worth? Q2: Does the answer change if Betty was a concert pianist? Q3: What if Betty simply wanted to be a concert pianist, but wasn’t one yet?Ask several students for their answers to each question and the rationales for their answers.
39 Negligent Torts: Defenses Even where the plaintiff has proven all of the elements of a negligent tort, the defendant may be found not to be liable or the defendant’s liability may be reduced based on certain defenses. These defenses include:1. Contributory Negligence2. Comparative Negligence3. Consent4. IllegalitySee the lesson plan for details regarding each defense, which should be explained to the students. Also, ask students their opinions on these defenses, e.g. do they think any defenses are better than others, or do they think it is fair to allow these defenses?
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