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

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

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

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

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

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.

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

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)

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

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

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

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

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

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.

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)

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

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)

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

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