5.1 Private Injuries

vs.

Public Offenses

CRIME TORT

Offense against society

(public wrong)

Guilty party is penalized

with punishment(s)

• Fines (paid to gov’t)/prison

Offense against a person (private or civil wrong)

Guilty party is penalized by paying damages

• Monetary award that compensates injured party for harm done

• Society standpoint: damages will keep victim from seeking revenge

**One act can be both a crime and a tort.

4 Elements of most torts:• 1. Duty-legal obligation to do or not do

something

• 2. Breach-violation of the duty

• 3. Injury-harm that is recognized by law

• 4. Causation-proof that the breach caused the

injury

By law you have certain rights and certain duties to respect the rights of others

Duties created by tort law:• Duty not to injure another (includes bodily

injury, injury to reputation, invasion of privacy)

• Duty not to interfere with property rights of others (i.e. trespassing)

• Duty not to interfere with economic rights of others (i.e. contracts)

Breach of duty must be proven before innocent party can collect damages

Main types of breaches• Intentional tort-breach is acknowledged because

defendant intended to inflict harm Intent necessary

• Negligence-breach is acknowledged because of carelessness Carelessness necessary

• Strict Liability-breach acknowledged because one’s action caused another’s injury Neither intent nor carelessness necessary

Generally, injury resulting from breach of

duty must be proven.

If you act recklessly, but no one is injured

as a result, there is usually no tort.

You can still be charged with a crime

though.• i.e. Being arrested for DUI at checkpoint

When amount of causation is great

enough for it to be recognized by the law,

it is called proximate cause• It is reasonably foreseeable that a breach of duty

will result in an injury

See “What’s Your Verdict” p. 82

People, including minors, are personally responsible for their conduct and liable for their torts (there are few exceptions)

Children and insane persons may be held liable for injuring others

Vicarious liability-One person is liable for the torts of another• Parents may be liable if they give children “dangerous

instrumentalities” i.e. guns• Parents may be liable for their children’s continuing

dangerous habits (failing to stop behavior)• Parents may be liable for property damage of minors

i.e. vandalism, unlawful vehicle operation

The most common intentional torts include:• Assault

• Battery

• False Imprisonment

• Defamation

• Invasion of Privacy

• Trespass to Land

• Conversion

• Interference with Contractual Relations

• Fraud

One person intentionally puts another in

reasonable fear of an offensive or harmful

bodily contact• Can be based on words or gestures (threats)

• Threat must include a display of force indicating a

present ability to carry it out

To be considered “reasonable”, the threat must be

believable

Threatened injury can be physical (punch in the face)

Threatened injury can be offensive

(unwanted intimated touching i.e. kissing, grabbing, etc..)

We often get “assault” and “battery”

confused, they aren’t synonymous

Battery-the intentional breach of duty• Assault=threat

• Battery=action

An assault usually precedes a battery

Battery can happen with no assault

Raising a fist =Punching someone in faceAssault and Battery

Person gets attacked from behindBattery (no threat so no assault)

If the contact is unintentional, even though it may be harmful or offensive, there may be no battery• i.e. sneezing on someone

If the contact is justified there is no battery• i.e. self defense

If there is consent to contact there is no battery• i.e. boxing match

Intentional confinement of a person

against their will, without lawful privilege

It involves depriving someone of their

freedom to movement without their

consent

NO, YOUR PARENTS GROUNDING YOU IS

NOT FALSE IMPRISONMENT!• (I know you are all thinking this!)

2 kinds• Slander-spoken

• Libel-written

To be legally defamatory, a statement

must• Be false

• Be communicated to a 3rd person

• Bring the victim into disrepute, contempt, or

ridicule

Uninvited intrusion into a person’s private relationships/activities in a way likely to cause shame or mental suffering• Includes unnecessary publicity

• Something might not qualify as defamatory but might still be an invasion of privacy We see this often with celebrities

• Includes freedom from commercial exploitation

The right to privacy is not unlimited!• i.e. police

Entry on property without owner’s

consent• Other forms of trespass

Breaking windows

Dumping garbage

• Intent is required to commit trespass

• If you “intended to be there” you trespassed,

remember that ignorance is no excuse!

Deals with robbery

A thief is a converter

Can occur even if the converter is

unaware of the conversion• i.e. unknowingly buying stolen goods

If you are a party in a contract, and you

breach the contract, you may have to pay

damages to the other party

If a 3rd party gets involved and influences

the party breaching, they can be held

liable for damages also

Intentional or recklessly made

misrepresentation of fact• Must be made with intent of getting another

person to enter a contract

• Typically, an opinion is not considered

fraudulent because it is considered a point of

view

Most common tort

Intent to injure is not required

Based on “careless behavior

Proven in court by showing• There was a duty of due care

• There was a breach of that duty

• There was causation

• There was injury

Society defines “duty” in reference to negligence by the reasonable person standard• -Act with the care and good judgment of a

reasonable person so as not to cause injury to others

There are different “degrees” of care• i.e. children Under age 7 “incapable of care to be negligent”

Ages 7-14 expected to exercise"reasonable care for a child that age, intelligence, and experience”

Professionals/Tradepeople• Held to a higher degree of care• Degree of care is relative to the “norm” of others in

the field• Some examples are: Doctors

Lawyers

Plumbers

Mechanics

Teachers

**A jury is usually the “trier of fact” when determining what is “reasonable” and “to what degree”

Many states have laws that prohibit a

plaintiff from recovering losses if both they

and the defendant are found negligent• This is called contributory negligence

Some states have a law called comparative

negligence• Both parties are at fault (negligent in some way)

• Both parties are awarded damages in proportion to

the percentage of their responsibility for the

incident/accident

Sometimes called “absolute liability” Engaging in the activity regardless of whether you

were negligent In strict liability:

• Proof of both activity and injury are substituted for proof of violation of duty

Usually applied when someone has engaged in an abnormally dangerous activity

• Regardless of the precautions you take, if another is hurt you will be held liable

• i.e. firearms, explosives, owners of “dangerous pets” Strict Liability also applies to the sale of good that

are unreasonable dangerous• i.e. defective products

• Everybody in the chain of distribution is liable

Remedies available in a civil suit include:• Injunctions

• Damages

Compensatory (actual damages)

i.e. lost wages, medical bills, and money for “pain and suffering

Punitive (exemplary damages)

Only awarded for intentional torts

Used to “punish” person/company at fault

Some lawyers will take lawsuits on for

percentage of recovery (contingency fee)

Think: “If you win, they win” philosophy

This is the proper sequence:• Judge/jury

• Opening statements

• Testimony

• Closing Arguments

• Instructions to Jury

• Jury Deliberation

• Verdict

Judges and juries play have different roles• Judges decide issues on law

• Juries decide issues of fact

If using a jury, it is selected

If using a judge only, they decide both law

and fact• Plaintiff-party initiating lawsuit

• Defendant-party complained against

Juries usually have 6-12 members (and

couple alternates)

Outline what the plaintiff and defendant

are trying to prove/disprove

Given by the attorneys (unless

representing oneself)

Evidence is then presented

Plaintiff goes first, defendant last

Testimony is the most common evidence

Each attorney summarizes the case, in an

effort to persuade the judge and/or jury

Judge gives instruction to jury as to:• Rules of law that apply to the case

• Issues of fact that must be decided

Each juror must determine whether a

“preponderance” of evidence supports

the case• Civil trials-Jury does not need to be unanimous

(usually 10/12 or 5/6 in small panels is fine)

• Verdict-Jury’s decision for or against plaintiff

• Judgment-Punishment/remedy issued by judge

if necessary (if defendant is found “not liable” no

punishment is necessary)

Therefore “case dismissed”