1. Torts and Damages
Up to now, everything discussed has related to contract liabilities- voluntary assumptions of obligation and risk
Tort duties are legal liabilities independent of contract standing- apply to involuntary assumption of liability and risk
Tortfeasor- party who breaches a tort duty
Victim-party suffering loss due to breach

2. Torts and Damages
Types of torts (Names differ by jurisdiction- many types not listed, all are civil matters
Negligence- unreasonable actions
Fraud- misrepresentation for value
Libel- untrue written statements causing loss
Slander- untrue spoken statements causing loss
Battery- touching without consent
Assault- threatening to touch without consent

3. LAW Torts and Damages Criminal Civil Contract Tort Reasonable Doubt
Government prosecutes
Jury system
Punishment
Contract
Tort
Preponderance of Evidence
2-Party suits
Voluntary
No punishment
Involuntary
Punishment

4. Torts and Damages Intentional torts carry punitive damages
Intent is to make people pay for injuries resulting from their unreasonable acts
Four general categories of tort common in construction
Negligence
Intentional tort/ Fraud
Strict liability
Deceptive practices

5. Torts and Damages
Negligence- failure to act reasonably causing injury to others (most common tort)
Must prove all of the following
Existence of duty to be reasonable
Breach of that duty
Damages incurred as a result of that breach
Causation between breach and damage is direct

6. Torts and Damages
We all have a duty to act reasonably in certain situations (driving, public gatherings, professional relationships, manufacturing and selling)
Duty must be based on a specific act- can’t sue for “general unreasonableness”
Arch/Engr has no duty to contractor, can’t sue for tort (in general) except for things such as safety, injury from design flaw, etc.

7. Torts and Damages
Breach- prove that the specific act was unreasonable for the conditions (speeding, yelling fire). Harder to prove than duty
Damages- injured person must prove loss- no loss-no tort
Causation- loss caused directly by breach (aggravating condition can be included, but not original condition) can be hard to prove

8. Torts and Damages
Making a mistake is not the same as negligence. Reasonableness standard protects to some degree
Misrepresentation of fact is a special form of negligence when no reasonable grounds for believing a statement can be found
Statement issued as fact (“this drug is safe”)
Statement is false (drug causes heart problem)
No reasonable grounds for belief (drug wasn’t tested)
Party justifiably relies on statement (party takes drug)
Damages result (Party has heart damage)

9. Torts and Damages
Negligence per se- violation of statute, no proof of duty or breach required
Valid ordinance was violated
Injured party is member of protected class
Harm suffered is prevented by the ordinance
Violation of statute caused harm or damages
Party suffered loss
OSHA, ADA, EEO, building codes, etc
Currently undergoing re-interpretation

10. Torts and Damages
Liability of designers to subsequent users- duty exists to subsequent users of a product. Remodeling industrial sites
Liability of designers to subcontractors and contractor differs by jurisdiction
Majority rule- no duty exists, so no damages can be collected from designer except for personal injury

11. Torts and Damages California Rule
Balance test under theory of negligence
Degree of certainty of harm
Foreseeability of harm
Closeness of connection between conduct and injury
Advancing policies to prevent future harm
Assignability of moral blame
Difficult to enforce

12. Torts and Damages
Intentional Tort (Fraud)- presence of intent to cause injury or harm makes tort intentional (difficult to prove intent)
Fraud (deceit, misrepresentation, false claim) is the most common intentional tort in construction

13. Torts and Damages Fraud
False representation or nondisclosure of material fact
With intent to deceive
Misleading statement was relied on by complainant
Actual damages result

14. Torts and Damages
Deceptive practice laws- discourage fraud and make it easier to bring the case (no longer need to prove intent)
Deception is inherent in the act covered by the statute
Contorts- claiming a contract breach as a tort.

15. Torts and Damages Contorts
Torts carry higher awards than contract cases
Lawyers “prefer” tort claims
Try to claim some specific action under contract is actually a tort
Historic reluctance by the court to allow breach of contract to be turned into a tort
Mostly for personal contracts (not construction)

16. Torts and Damages
Strict liability-only applied in very limited situations such as manufacture of defective products or practice (blasting)
Manufacturers of defective products are strictly liable for injury IF
Flaw is present at time of sale AND
Flaw causes injury OR
Manufacturer fails to warn of risk OR
Product has correctable design defect

17. Torts and Damages
Strict Liability of product manufacturers is why we have so many warning labels on products
Construction contractors are not considered manufacturers of products
Assumption of risk- common defense against tort in construction (and elsewhere)
Injured parties are responsible for their own injury if they have voluntarily assume risk inherent in the activity (sign a risk assumption to go bungie jumping)

18. Torts and Damages
Proximate cause damages- tort damages are generally greater than contract damages because they include foreseeable AND unforeseeable damages (proximate cause)
Pain and suffering- compensation for experience of pain and suffering over a specified time. Difficult to assess, usually per diem award. Includes emotional pain

19. Torts and Damages
Punitive damages- intentional torts allow exemplary awards used to “make and example” out of offender. Frequently reduced by the court
Tort cases- McDonalds coffee, Toro mowers, Philadelphia hospital
Calls for tort reform, resisted by trial lawyers. Tort does allow for eliminating the incompetent, but can be abused. Key is to find the best balance