ECM 521 :Professional Ethics and Liability in Construction

Pokhara UniversityNepal Engineering College

Centre for the Post Graduate Studies

5. Tort and CrimeIntroduction to Criminal Law and Tort LowType of Tort and Professional NegligenceTort and Third Party LiabilityTort and the Project Manager

Crime

• A crime is a wrongdoing classified by the state or Congress as a felony or misdemeanor.

• A crime is an offence against a public law. This word, in its most general sense, includes all offences, but in its more limited sense is confined to felony.

• The term offence may be considered as having the same meaning, but is usually understood to be a crime not indictable but punishable, summarily or by the forfeiture of a penalty.

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Criminal law• Criminal law, also known as penal law, pertains to

crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place.

• Investigating, apprehending, charging, and trying suspected offenders are regulated by the law of criminal procedure

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Criminal law• The paradigm case of a crime lies in the proof, beyond

reasonable doubt, that a person is guilty of two things.– First, the accused must commit an act which is deemed

by society to be criminal, or actus reus (guilty act). – Second, the accused must have the requisite malicious

intent to do a criminal act, or mens rea (guilty mind).

• Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.

• On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity

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Tort

• From French for "wrong," • A civil wrong or wrongful act, whether intentional or

accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm.

• Torts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right.

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Tort law

• In tort law, injury is defined broadly. Injury does not just mean a physical injury

• Injuries in tort law reflect any invasion of any number of individual interests. This includes- interests recognized in other areas of law, such as property rights, actions for nuisance (annoying or hurting) and trespass (unlawful entering) of land can arise from interfering with rights in real property

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Tort Law

• The injured party sues the defendant or tort feasor.– 1. Brought in civil court– 2. Seek damages– 3. Not necessarily a crime– 4. Standard – preponderance of the evidence

(i.e. more likely than not)

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Tort Law

Individual’s rights (in General)1. right to be free from bodily harm2. right to enjoy a good reputation3. right to conduct business with out wrongful interference4. right to have property free from interference

• Civil tort law is that branch of law that deals with breaches of civil duties, rather than a contractual duty or a general societal duty.

• Although many violations may be classified as either a tort or a crime, there are some major differences between a tort and crime. 

• Crimes are typically prosecuted by the state, whereas any citizen who has been injured can file a lawsuit for tort.

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Tort Law

• In a tort cause of action, the person who violates tort laws is called a “tortfeasor.” 

• The party that has suffered the tortious injury may then be entitled to receive damages if they succeed in court. 

• Damages usually take the form of monetary compensation for the injuries that the victim has received. 

• Tort laws define what types of legal injuries may be claimed in a civil court. 

• Tort injuries are not limited to physical harm- they may also include economic, emotional, or even injuries to one’s reputation. 

• A person may also recover damages for violations of rights, such as property, privacy, or constitutional rights. 

• Thus, civil tort claims can form the basis for a very wide variety of legal claims. 

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Types of Tort• Civil tort claims may be classified into three basic

categories: Intentional torts, negligence, and strict liability torts. • Each of these is associated with different standards of proof,

remedies, and defenses. The vast majority of tort claims are based on negligence.

1. Intentional torts• An intentional tort occurs where the tortfeasor acts knowingly

and wilfully to injure the victim.• Intentional tort is a civil wrong that occurs when the

wrongdoer engages in intentional conduct that results in damages to another. 

• Striking another person in a fight is an intentional act that would be the tort of battery.

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Types of Tort2. Negligence Negligence is a type of tort wherein the tortfeasor breaches a care of duty,

resulting in harm or injury to the plaintiff. Careless conduct that results in damage to another is negligence. Striking a

person accidentally would not be an intentional tort since there was not intent to strike the person. This may, however, be a negligent act.

3. Strict liability Generally, liability because of a tort only arises where the defendant either

intended to cause harm to the plaintiff or in situations where the defendant is negligent. However, in some areas, liability can arise even when there is no intention to cause harm or negligence.

For example, in most states, when a contractor uses dynamite which causes debris to be thrown onto the land of another and damages the landowner’s house, the landowner may recover damages from the contractor even if the contractor was not negligent and did not intend to cause any harm. This is called strict liability or absolute liability.

Strict Liability occurs where the tortfeasor becomes liable even if they did not act intentionally or breach a duty of care 11

Types of TortThe Intentional Torts (: any intentional acts that are reasonably foreseeable to cause

harm to an individual, and that do so )

• Assault: Threatening to strike or harm with a weapon or physical movement, resulting in fear.

• Battery: Unlawful, unprivileged touching of another person.• Trespass: Wrongful injury or interference with the property of

another.• Nuisance: Anything that interferes with the enjoyment of life or

property.• Interference with contractual relations: Intentionally causing one

person not to enter or to break a contract with another. • Deceit: False statement or deceptive practice done with intent to

injure another.

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Types of Tort

The Intentional Torts….. • Conversion: Unauthorized taking or borrowing of personal property

of another for the use of the taker. • False imprisonment: Unlawful restraint of a person, whether in

prison or otherwise. • Defamation: Wrongful act of injuring another’s reputation by

making false statements. • Invasion of privacy: Interference with person’s right to be left

alone. • Misuse of legal procedure: Bringing of legal action with malice and

without probable cause. • Infliction of emotional distress: Intentionally or recklessly causing

emotional or mental suffering to others.13

Types of Tort

Tort and Negligence • A tort is a wrongful act or omission, constituting negligence, that

results in identifiable harm to a person and for which relief, typically in the form of monetary damages, may be obtained by bringing a civil action in a court of law.

• Negligence may be the failure to do what a reasonably prudent person would ordinarily have done to prevent foreseeable harm to another under the circumstances, i.e.-– doing of a careless, reckless, or intentionally malicious act

that a prudent and reasonable person would not have done. • Negligence standard seeks to punish and discourage abnormal or

inappropriate action that harms others.

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Types of Tort

Negligence• Negligence is a tort which depends on the existence

of a breaking of the duty of care owed by one person to another

• Negligent behavior towards others gives them rights to be compensated for the harm to their body, property, mental well-being, financial status or relationship

• Negligence is used in comparison to acts or omissions which are intentional or willful

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Principles of Negligence Donoghue v Stevenson (Case)

• A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach, and said,

• The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

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Principles of Negligence

• Duty of Care – a reasonable responsibility to act or not to act

• Breach of Duty – the reasonable person test. (not equal to logical, normal or average)

• Proximate Cause – without breach the result would not have occurred. (not equal to actual cause)

• Actual harm – (i.e. physical injury, property damage)• Measurable Damages- a financial loss ( may include

pain and suffering)

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Types of Tort

Strict Liability • In law, strict liability is a standard for liability which may exist in either

a criminal or civil context. – A rule specifying strict liability makes a person legally responsible for the

damage and loss caused by his or her acts and omissions regardless of culpability

• Strict liability is prominent in tort law (especially product liability), corporations law, and criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the most important strict liability regime, see product liability.

• Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent

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Strict LiabilityThe doctrine of strict liability-

-Applies to ultra-hazardous activities that involve a great risk to people and property.-If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs.

Also, applies to product liability – – cases in which people are injured from defects in products. – The firm that manufactures a product is liable.– regardless of the fault for injuries to users of the product if a defect in one of

those machines.

• Does not apply if company does not actively engage in the sale of that good.• Wrongful death statutes – preserve the rights of third parties affected by the death

of a person to bring a lawsuit. • Punitive damages relate to gross negligence and reckless disregard goes beyond

compensation and allows the plaintiff to attack company profits.19

Other Torts: Trespass

• an unlawful act causing injury to the person, property, or rights of another, committed with force or violence, actual or implied,

• especially, a wrongful entry upon the lands of another.

• Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.

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Other Torts: Trespass• Trespass to the person involved six separate trespasses:

threats (intimidation), assault (injury), Battery (unpermitted contact ), wounding, mayhem(disorder), and marring (injury or damage)

• Trespass to chattels, also known as trespass to goods or trespass to personal property, is defined as "an intentional interference with the possession of personal property...proximately caus[ing] injury

• Trespass to land, the form of trespass most associated with the term trespass, refers to the "wrongful interference with one's possessory rights in [real] property

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Third party Liability: Vicarious Liability

• Vicarious liability sometimes called "imputed liability," attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution.

• Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. -Parent and child,-Owner of a vehicle and driver, and -Employer and employee.

• Ordinarily the independent negligence of one person is not imputable to another person

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Vicarious Liability: Employers' liability

• Employers are vicariously liable, under the respondent superior doctrine, for negligent acts or omissions by their employees in the course of employment

• However, the employer of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil.

• Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests.

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Vicarious Liability: Principals' liability

• The owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been loaned, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner.

• Courts have been reluctant to extend this liability to the owners of other

kinds of chattel. For example, the owner of a plane will not be vicariously liable for the actions of a pilot to whom he or she has lent it to perform the owner's purpose.

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Vicarious Liability: Parental liability

• In the United States, the question of parental responsibility generally and the issue of parental vicarious liability for the torts of their children is evolving.

• What is clear is that parents can be held liable for their own negligent acts, such as failure to supervise a child, or failure to keep a dangerous instrument such as a handgun outside the reach of their children

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The liability of corporations in tort

• In English law, a corporation can only act through its employees and agents so it is necessary to decide in which circumstances the law of agency or vicarious liability will apply to hold the corporation liable in tort for the frauds of its directors or senior officers.

• If liability for the particular tort requires a state of mind, then to be liable, the director or senior officer must have that state of mind and it must be attributed to the company

• If a director or officer is expressly authorised to make representations of a particular class on behalf of the company, and fraudulently makes a representation of that class to a Third Party causing loss, the company will be liable even though the particular representation was an improper way of doing what he was authorised to do

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Vicarious Liability: Employers' indemnity

• The principle of vicarious liability can also be bypassed with a legal instrument known as Employers' indemnity. When an employer is successfully sued, they have the option of suing the tortfeasor for an indemnity to recover the damages back

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Tort actions • Torts can take the form of causing-

– actual physical or psychological injuries; – violating a business relationship by fraud, libel, or slander; – or any other negligent act or omission that causes economic losses to

another. • A tort claim is a civil action between private parties in contrast

to a criminal action brought by the government for which the penalty can include imprisonment.

• The basic principle of the tort system is that whoever is at fault for causing an injury must pay the costs for negligent or irresponsible behavior.

• Generally, compensation is based on the portion of blame assigned to each individual involved and can involve monetary payments for economic, noneconomic, and punitive damages

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Tort actions • In general, a tort claim seeks redress by relying on the civil justice

system to assign fault and, as much as practicable, to make an injured or wronged person “whole” again by forcing the guilty party (tort-feasor) to pay for the harmed person’s present and future medical expenses, income reduction, or other tangible or intangible losses.

• While money alone is often inadequate to compensate a person for the severe pain and suffering resulting from physical or mental injuries or loss of reputation, it is the chief remedy available to the civil court.

• Other remedies include-– Injunctions (court orders to make someone do something or to prohibit an

action), – Evictions, garnishment, and attachment (repossession of property pursuant to an

unpaid debt).• Awarding of money is also designed to punish wrongdoing and provide

warnings in hopes of preventing similar behavior in the future.

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Defenses to Negligence • Contributory Negligence

– If only one party is responsible for the whole incident, then he or she pays all of the costs. Multiple tort-feasors can be required to share the costs, based on their portion of the fault, as determined by the judge or jury.

• Comparative Negligence– If the plaintiff's responsibility is shared with others, his or her

liability is compared to each of the defendant's and damage awards may be reduced proportionately.

• Joint and several liability – if multiple persons are found to be at fault, and one or more of them,

is unable to pay the monetary damages assessed, the remaining dependents may be required to assume responsibility for the remainder (so called "deep pockets“)

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Damages in Negligence • Economic damage

– compensation for the actual and estimated costs of present and future medical care, loss of income or earning capacity, harm to reputation, and damage or loss of property.

• Noneconomic damages – can include awards for pain and suffering- mental distress, worry or

emotional anguish of the injured individual embarrassment or humiliation, loss of enjoyment of the normal activities benefits and pleasures of life, loss of well being or bodily function, and the loss of society consortium companionship and affection suffered by the family of a person who is severely injured or dies as a result of a tortuous act.

• Punitive damages – may be awarded to the victim but are intended to serve as punishment to

the party at fault and to deter similar future wrongdoing by the guilty party and others in similar situations.

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Tort Law Overlap with Criminal Law

• Tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category.

• There is some overlap between criminal law and tort, since tort, a private action, used to be used more than criminal laws in the past. For example,– in English law an assault is both a crime and a tort (a form of trespass to the person).– Many jurisdictions, especially the US, retain punitive elements in tort damages, for

example in anti-trust and consumer-related torts

• Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party.

• Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.

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Tort Law Overlap with Criminal Law• in English law an assault is both a crime and a tort (a

form of trespass to the person). • A tort allows a person, usually the victim, to obtain a

remedy that serves their own purposes (the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business).

• Criminal actions on the other hand are pursued not to obtain remedies to assist a person – although often criminal courts do have power to grant such remedies – but to remove their liberty on the state's behalf.

• That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.

Overlap in Criminal Law and Tort Law• The more severe penalties available in criminal law also means that it

requires a higher burden of proof to be discharged than the related tort.

• Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts.

• Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment.

• Some torts may have a public element – for example, public nuisance – and sometimes actions in tort will be brought by a public body.

• Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.

Difference Between Criminal Law and Tort Law

• The main difference between a criminal law and civil law has to do with the type of punishment involved. – Criminal offenses may lead to incarceration in a jail or prison facility. – However, for civil violations such as torts, the person may not be

incarcerated. The punishment will have to take the form of monetary damages, or an injunction (a court order requiring the person to cease their violations).

– Also, criminal offenses are handled by prosecutors who are employed by the state.

• This means that criminal offenses are often associated with a variety of protections for the defendant to prevent abuses by the state. – Some examples of these protections are search and seizure provisions

and issues with evidence.  Many of these protections are not available in a civil claim. 

Tort and Contract

• There are some legal actions that mix elements of contracts and torts so thoroughly that we can't separate them.

• Torts are related in many ways to contracts.• With contracts, a duty spelled out in an agreement may be

violated, which results in injury. • In the case of torts, the duty comes from general laws or

customs. • Cases involving a combination of contract and tort are

different from pure torts only in the origin of the duty involved

• “The Case of the Provable Feast”

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Tort and Contract Conversion from Contract to Tort• Small claims tort cases often begin with contracts• The rule is, if you lend someone your property, and they use it in a way

you did not foresee or give permission for, you may recover for this tort of conversion

• Conversion can be committed either intentionally or negligently

Fraud and Deceit• Cases of fraud and deceit most often begin with a contract• A claim of fraud cannot be based on statements about the future, because

no one can see that far. • And you cannot be deceived when you know that the representation made

to you is false, or that it is too outrageous to be believed• Again, the court will not be put in the position of protecting people from

themselves.

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Tort and Contract Combinations of tort and contract cases situations where the duties in a

contract are not done, or are done improperly, and damage results:1. A landlord has a general duty to keep the rented premises safe from

known dangers. It's the same for shippers and truckers and their cargo. 2. Bus and cab drivers have a duty to transport their passengers safely and

within the law. 3. Beverage bottlers and food packagers have a duty to keep foreign

substances out of their products. 4. All people who supply services have a duty to perform them in such a

way that other people and their property are not damaged.5. Manufacturers of all kinds, from the crafter at the weekend show to the

multi-national conglomerate, have a duty to make their products safe to the consumer.

6. Businesses have a duty to their customers to keep their premises safe from known dangers.

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Difference between Tort and Contract • Assignment

– you can assign a debt but you cannot assign a right of action in tort• Capacity of the parties

– a minor is liable for their torts but is limited in liability in relation to contract

• Conflict of laws – the conflict of laws rules are different for contract and tort

• Damages – there are significant differences between the measures of damages

recoverable in contract and tort• Limitation of actions

– although both contract and tort claims basically have the same limitation period, there are important differences regarding the time from which the cause of action accrues

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Difference between Tort and Contract The main differences between contract and tort are: • Duties in tort are determined by the law - duties in contract

are chiefly determined by the parties. – i.e. you choose to be bound under a contract but you cannot choose

whether or not to be bound under the law. • Duties in tort are commonly owed to persons generally

whereas those in contract are towards a specific person or persons.

• Contract law is based on an enforceable agreement. Breaches of the agreement cause the damage, e.g. selling a faulty car while saying it was like new in the agreement.

• Tort law is usually focused on foreseeable negligence causing damages, e.g. Driving while drunk and hitting someone.

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Difference between Tort and Contract

• What are the similarities of law of tort and contract ? • Civil Proceedings in both.

• What is the difference between a tort and contract? • A contract is written agreement between two or

more parties. It defines how the parties will act. • A tort is an injury done to a person or their

property.

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THANK YOU

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