January 9, 2006BUSINESS LAW (Ms. Hawkins)1 CHAPTER 5: CIVIL LAW & PROCEDURE Chapter 5 presents offenses against individuals, with an emphasis on intentional torts, negligence, strict liability, and civil procedures.

January 9, 2006BUSINESS LAW (Ms. Hawkins)2 CHAPTER 5: CIVIL LAW & PROCEDURE Lets distinguish a crime from a tort: A crime is an offense against society. Tort is a private or civil wrong; it is an offense against an individual, which individual can sue and obtain a judgment for money damages to compensate for injuries.

January 9, 2006BUSINESS LAW (Ms. Hawkins)3 CHAPTER 5: CIVIL LAW & PROCEDURE Can an act be both a tort and a crime? Lets look at the case of Josephina: After an exhausting day of skiing, Josephina was driving home near sunset. She dozed off momentarily and crossed the highway dividing lane. She then crashed head-on into Johns panel truck. Both drivers were seriously injured, and their vehicles were totaled.

January 9, 2006BUSINESS LAW (Ms. Hawkins)4 CHAPTER 5: CIVIL LAW & PROCEDURE Can an act be both a tort and a crime? Although Josephina was asleep at the time, has she violated any rights of the other driver? Yesthe right not to be injured by another person. What tort has Josephina committed? Injury to John and his property. What offense has Josephina committed against society? The crime of reckless driving.

January 9, 2006BUSINESS LAW (Ms. Hawkins)5 What are the elements of a tort? Although there are many specific torts, certain elements are common to most torts, and must be proven to establish liability. Duty (legal obligation to do or not to do something) Breach (violation of the duty) Injury (a harm that is recognized by the law) Causation (proof that the breach caused the injury) CHAPTER 5: CIVIL LAW & PROCEDURE

January 9, 2006BUSINESS LAW (Ms. Hawkins)6 CHAPTER 5: CIVIL LAW & PROCEDURE By law, we all have a duty to respect the rights of others. These duties are created by tort law: The duty not to injure another (body, reputation, privacy) The duty not to interfere with the property rights of others (trespassing) The duty not to interfere with the economic rights of others (the right to contract)

January 9, 2006BUSINESS LAW (Ms. Hawkins)7 CHAPTER 5: CIVIL LAW & PROCEDURE Violation or Breach of Duty: Some torts require that breach be intentional. Some torts are based on carelessness-- negligence. Some torts are based solely on injury having been caused-- strict liability. Some torts are based on the fact that it was reasonably foreseeable that a breach will result in an injury-- proximate cause.

January 9, 2006BUSINESS LAW (Ms. Hawkins)8 CHAPTER 5: CIVIL LAW & PROCEDURE Lets apply what we learned about breach of duty On a windy autumn day, Mason was burning dry leaves in his backyard. When he went to answer a telephone call, flames from the fire leaped to the next-door neighbors fence and then to a tool shed where a small can of gasoline exploded. Soon the neighbors house was ablaze, and it burned to the ground.

January 9, 2006BUSINESS LAW (Ms. Hawkins)9 CHAPTER 5: CIVIL LAW & PROCEDURE Lets apply what we learned about breach of Duty Did Mason commit a tort? Mason had a duty not to injure neighbors property. Mason breached when he left the fire unattended. Injury occurred when the neighbors house burned. Leaving the fire unattended was a proximate cause of the loss of the fence, tool shed, and the house; it was reasonably foreseeable that a breach would result in an injury.

January 9, 2006BUSINESS LAW (Ms. Hawkins)10 CHAPTER 5: CIVIL LAW & PROCEDURE Responsibility for the Torts of Another Should your parents be liable for your actions and have to pay damages if you cause harm to another person or anothers property?

January 9, 2006BUSINESS LAW (Ms. Hawkins)11 CHAPTER 5: CIVIL LAW & PROCEDURE Responsibility for the Torts of Another In general, all persons, including minors and insane persons, are responsible for their conduct and are therefore liable for their torts. When one person is responsible for the torts of another, the liability is called vicarious liability. With some exceptions, parents are not liable for the torts of their children. (IAW the text): e.g., dangerous instrumentalities (gun/car) and continuing dangerous habits

January 9, 2006BUSINESS LAW (Ms. Hawkins)12 CHAPTER 5: CIVIL LAW & PROCEDURE Vicarious Liability of Parents for Torts of Minor Children Parental liability is a parent's obligation to pay for damage done by negligent, intentional or criminal acts of his child. In 47 states, parents are responsible for all malicious or willful property damage done by their children.

January 9, 2006BUSINESS LAW (Ms. Hawkins)13 CHAPTER 5: CIVIL LAW & PROCEDURE Vicarious Liability of Parents for Torts of Minor Children… Hawaii, Louisiana and Oregon hold parents responsible for all torts committed by their children. Only Washington, D.C. does not hold parents liable at all. All parental liability laws limit the amount of liability to between $300 and $15,000, depending on the state.

January 9, 2006BUSINESS LAW (Ms. Hawkins)14 CHAPTER 5: CIVIL LAW & PROCEDURE Vicarious Liability of Parents for Torts of Minor Children… Parental liability usually ends when the child reaches the age of majority and does not begin until the child reaches somewhere between eight and ten. No one is liable for damage done by a child younger than eight or so unless the parent was grossly negligent--for example, giving the child a loaded gun.

January 9, 2006BUSINESS LAW (Ms. Hawkins)15 CHAPTER 5: CIVIL LAW & PROCEDURE Responsibility for the Torts of Another… The most common example of vicarious liability is the liability of an employer for the acts of employees committed within the scope of the employment.

January 9, 2006BUSINESS LAW (Ms. Hawkins)16 CHAPTER 5: CIVIL LAW & PROCEDURE Responsibility for the Torts of Another… Hunt was taking riding lessons from Saddleback Stables. Patterson, the Saddleback instructor, was a skilled rider although only 17 years old. Nevertheless, Patterson negligently lost control of the horse that Hunt was riding. As a result, Hunt was thrown to the ground and injured.

January 9, 2006BUSINESS LAW (Ms. Hawkins)17 CHAPTER 5: CIVIL LAW & PROCEDURE Responsibility for the Torts of Another… Who was liable for Hunts injuries? Saddleback Stables was liable for the negligence of its employee. The injured party may sue both the employer and the employee. Does liability make a difference if youre under 21? Under 18? No. All persons are responsible for their tortseven minors.

January 9, 2006BUSINESS LAW (Ms. Hawkins)18 CHAPTER 5: CIVIL LAW & PROCEDURE Violation or Breach of Duty (Lets Review): Some torts require that breach be intentional. Some torts are based on carelessness-- negligence. Some torts are based solely on injury having been caused-- strict liability. Some torts are based on the fact that it was reasonably foreseeable that a breach will result in an injury-- proximate cause.

January 9, 2006BUSINESS LAW (Ms. Hawkins)19 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts Intentional torts are those for which the defendant intended either the injury or the act: Assault Invasion of Privacy Battery Trespass to Land Fraud Interference With Contractual Relations Defamation Conversion False Imprisonment

January 9, 2006BUSINESS LAW (Ms. Hawkins)20 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Assault A person intentionally threatens to physi- cally or offensively (with words or ges- tures) injure another. The threat must be believablethere must be an ability to carry it out.

January 9, 2006BUSINESS LAW (Ms. Hawkins)21 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Assault Is the following example assault? Spencer, elderly and totally blind, thought Wills had swindled him. Spencer told Wills that he was going to beat your face to a pulp. No. Why? Spencer is not capable of carrying out the threat.

January 9, 2006BUSINESS LAW (Ms. Hawkins)22 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Battery Battery is an intentional breach of the duty to refrain from harmful or offensive touching of another. Battery can include shooting, pushing in anger, spitting on, or throwing a pie in the face. Example: You are in the school cafeteria and throw a pie in someones face.

January 9, 2006BUSINESS LAW (Ms. Hawkins)23 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Assault & Battery Can there ever be battery without assault? Yes. Example: The victim is hit without warning from behind. Why? There was no offensive threat.

January 9, 2006BUSINESS LAW (Ms. Hawkins)24 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… During deer-hunting season, Hart drove miles into the country in search of game. He parked his pickup truck along a dirt road, climbed a fence, and hiked into the woods. Hart thought the land was part of a national forest. However, it actually belonged to Quincy, who had posted No Trespassing signs. Confronted by Quincy, Hart apologized for his mistake and left.

January 9, 2006BUSINESS LAW (Ms. Hawkins)25 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Whats Your Verdict? (Page 82) Was Hart guilty of a tort? No. Why, or why not? There was no intent.

January 9, 2006BUSINESS LAW (Ms. Hawkins)26 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… False Imprisonment False imprisonment is depriving a person of freedom of movement without the persons consent and without privilege (the right to do so). Example: You are accused, without reason, of shoplifting in a store and you are detained.

January 9, 2006BUSINESS LAW (Ms. Hawkins)27 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Defamation Statements about people can injure them. If a false statement injures ones reputation, it may constitute the tort of defamation. Whats the difference between slander and libel? Slander is oral and libel is written.

January 9, 2006BUSINESS LAW (Ms. Hawkins)28 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Defamation… There are several criteria for legal defamation: The statement must be false; truth is a valid defense to a charge of defamation. The statement must be communicated to a third person (if no one hears or reads it, reputation is not damaged) The statement must bring the victim into disrepute, contempt, or ridicule by others. There is no liability for statements about public officials or prominent personalities unless the statement was made with malice.

January 9, 2006BUSINESS LAW (Ms. Hawkins)29 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Invasion of Privacy People are entitled to keep personal matters private. This is the right to privacy. This tort is defined as the unwelcome and unlawful intrusion into ones private life so as to cause outrage, mental suffering, or humiliation. Publication of even a true statement can be invasion of privacy. Example: A two-way mirror in the womens restroom of a gas station

January 9, 2006BUSINESS LAW (Ms. Hawkins)30 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Trespass to Land This tort is entry onto the property of another without the owners consent. Dumping rubbish on the land of another or breaking the windows of a neighbors house are also trespasses. What common student practice does this remind you of? Intent is required to commit the tort of trespassthat is, intent by the intruder to be on the particular property.

January 9, 2006BUSINESS LAW (Ms. Hawkins)31 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Conversion If property is stolen, destroyed, or used in a manner inconsistent with the owners rights, a conversion has occurred. Conversion occurs even when the converter does not know that there is a conversion. Example An innocent buyer of stolen goods is a converter.

January 9, 2006BUSINESS LAW (Ms. Hawkins)32 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Interference With Contractual Relations If a third party to a contract entices or encourages a breach, the third party may be liable in tort to the nonbreaching party. Actual parties to a contract may be able to breach the contract if they pay for the injury suffered by the other party.

January 9, 2006BUSINESS LAW (Ms. Hawkins)33 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… Fraud Fraud occurs when there is an intentional misrepresentation of an existing important fact (a lie). Misrepresentation must be relied on and cause financial injury, in order to be a tort. Fraud does not apply when there is a misstatement of opinion, because the hearer should recognize it is just the speakers personal view.

January 9, 2006BUSINESS LAW (Ms. Hawkins)34 CHAPTER 5: CIVIL LAW & PROCEDURE Common Intentional Torts… In This Case Smith is trying to sell her home. While showing the property to Hernandez, Smith said, This roof is in very good repair and has never leaked. Hernandez buys the house and later learns that the roof leaks and is in need of repairs costing $8,500. Hernandez also learns that Smith was given an estimate for similar repairs before the sale occurred. Smith committed fraud and is liable to Hernandez.

January 9, 2006BUSINESS LAW (Ms. Hawkins)35 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence? Negligence is the most common tort. Intent is not required for this tort, only carelessness. Like the other torts, negligence requires the elements of duty, breach, injury, and causation (the breach caused injury).

January 9, 2006BUSINESS LAW (Ms. Hawkins)36 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Duty and Negligence (Reasonable Person Standard) The general duty imposed by negligence law is the reasonable person standard. This duty requires that we act with care, prudence, and the good judgment of a reasonable person so as not to cause injury to others.

January 9, 2006BUSINESS LAW (Ms. Hawkins)37 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Duty and Negligence (Reasonable Person Standard)… Exceptions to the Reasonable Person Standard: Children under age seven Older children (they only need to exert the care of a reasonable child of like age, intelligence, and experience). This does not include children engaging in adult activity like driving a boat or car; they are held to the adult standard.

January 9, 2006BUSINESS LAW (Ms. Hawkins)38 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Breach of Duty in Negligence Exceptions to the Reasonable Person Standard: Children under age seven Older children (they only need to exert the care of a reasonable child of like age, intelligence, and experience). This does not include children engaging in adult activity like driving a boat or car; they are held to the adult standard.

January 9, 2006BUSINESS LAW (Ms. Hawkins)39 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Whats your Verdict? (Page 84) Britt was driving home late one rainy night after drinking alcohol all evening. With only one working headlight, she raced down residential streets at speeds up to 50 miles per hour. Meanwhile, Yee was slowly backing her station wagon out of her driveway, but she failed to look both ways when she should have. Britt rammed into the right rear end of Yees car. Yees station wagon was badly damaged, and she was injured. Question: Can Yee collect from Britt?

January 9, 2006BUSINESS LAW (Ms. Hawkins)40 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Whats your Verdict? (Page 84)… In this case, Britts conduct is compared with the reasonable person standard. This is how we determine breach of duty: A reasonable person: Would drive at a safe speed Would drive sober Would drive only when the cars lights work In addition, speeding was a cause of the injury to Yee and the station wagon (causation)

January 9, 2006BUSINESS LAW (Ms. Hawkins)41 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Whats your Verdict? (Page 84)… As for Yees conduct, she backed up without looking and partially caused the injury. Therefore, Britt could use as a defense, contributory negligence. In some states, a plaintiff (Yee) cannot recover for losses caused by anothers negligence, if the plaintiff was contributorily negligent. Most states have substituted comparative negligence for contributory negligence. Here, the plaintiff is awarded damages in proportion to the plaintiffs negligence.

January 9, 2006BUSINESS LAW (Ms. Hawkins)42 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Negligence?… Whats your Verdict? (Page 84)… Another defense for negligence is assumption of risk. If plaintiffs are aware of danger, but decide to subject themselves to the risk, that is a valid defense for the defendant. Example: You walk into a fast-food restaurant and see a sign stating Danger! This floor is slippery due to mopping. As you walk through the wet area you slip and fall, and break your arm.

January 9, 2006BUSINESS LAW (Ms. Hawkins)43 CHAPTER 5: CIVIL LAW & PROCEDURE What Is Strict Liability? This is liability that exists even though the defendant was not negligent. In strict liability cases, proof of both the activity and the injury substitute for proof of a violation of a duty. Examples: Engaging in abnormally dangerous activities (target practice, blasting, crop dusting with dangerous chemicals, storing flammable liquids in large quantities). Ownership of dangerous animals (not domesticated animals with no history of violence). Sale of unreasonably dangerous goodsdefect causes injury.

January 9, 2006BUSINESS LAW (Ms. Hawkins)44 CHAPTER 5: CIVIL LAW & PROCEDURE What Can A Tort Victim Collect? There are two types of possible remedies: Injunction This is a court order to do or not to do a particular act. Damages These are monetary awards to the injured party to compensate for loss. The object is to place the injured party in the same financial position as if the tort had not occurred.

January 9, 2006BUSINESS LAW (Ms. Hawkins)45 CHAPTER 5: CIVIL LAW & PROCEDURE What Can A Tort Victim Collect?... Damages… There are two types of damages: Compensatory (Actual) Provides for reimbursement of lost wages, medical bills, and pain and suffering Punitive Damages These are available when an intentional tort has been committed. The purpose is to punish the defendant.

January 9, 2006BUSINESS LAW (Ms. Hawkins)46 CHAPTER 5: CIVIL LAW & PROCEDURE How Much Does My Lawyer Get? Lawyers handle civil lawsuits on a contingency basis. They are paid as a percentage of the recovery (not hourly). Cases Settled Before Trial Lawyers are paid 25%. Cases Won at Trial Lawyers are paid 33%. Cases Won on Appeal Lawyers are paid 40%.

January 9, 2006BUSINESS LAW (Ms. Hawkins)47 CHAPTER 5: CIVIL LAW & PROCEDURE How Is A Civil Case Tried? Judges decide issues of law. Juries decide issues of fact. If no jury, the judge decides on issues of law and fact.

January 9, 2006BUSINESS LAW (Ms. Hawkins)48 CHAPTER 5: CIVIL LAW & PROCEDURE How Is A Civil Case Tried?... The Civil Jury Composed of 6-12 citizens. They listen to witnesses, review physical evidence, and reach a decision.

January 9, 2006BUSINESS LAW (Ms. Hawkins)49 CHAPTER 5: CIVIL LAW & PROCEDURE How Is A Civil Case Tried?... The Process Jury selection is done. Attorneys make opening statements. Plaintiff and defendant present evidence. Evidence may be written (records, charts, weapons, etc.) or spoken (testimony). A subpoena is a written order for a witness to appear and give testimony; failure to do so is contempt of court. The jury renders a verdict. The judgment is the final result of the trial (money). Sometimes the defendant appeals.

January 9, 2006BUSINESS LAW (Ms. Hawkins)50 CHAPTER 5: CIVIL LAW & PROCEDURE How Is A Judgment Satisfied? The Process The defendant pays the plaintiff. If the defendant doesnt pay, the plaintiff gets a writ of executiona judgment for money is enforced by the court. Enforcement can include seizure of the defendants property, savings account, car, or other assets.

January 9, 2006BUSINESS LAW (Ms. Hawkins)51 CHAPTER 5: CIVIL LAW & PROCEDURE