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

Torts and Damages

Reasonable Doubt

Government prosecutes

Jury system

Punishment

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 reasonableBreach of that dutyDamages incurred as a result of that

breachCausation 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 jurisdictionMajority 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

FraudFalse representation or nondisclosure

of material factWith intent to deceiveMisleading statement was relied on by

complainantActual 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 claimsTry to claim some specific action under

contract is actually a tortHistoric reluctance by the court to allow

breach of contract to be turned into a tortMostly 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