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Business Law

Civil Law & ProcedureChapter Five

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Hot Debate

• What corrective action should Chanelle take within the school structure?

• Regardless of whether or not she tries to resolve the problem within the school’s structure, has Chanelle received a personal injury for which she could bring suit in court?

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Private Injuries vs. Public Offenses

Section 5-1

• Goals– Distinguish between a crime and a tort– Identify the elements of torts– Explain why one person may be responsible

for another person’s tort.

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What’s Your Verdict?Page 81

• Does Jerone’s conduct represent a criminal wrong, a civil wrong, or both?

• Jerone committed two crimes– 18 counts of manslaughter – Failure to disclose medication use and blood pressure

status at time of application

• Jerone also committed a tort– Negligent conduct in piloting the ferry boat.

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How do Crimes and Torts Differ?

• Crime – Against Society

• Tort: private or civil wrong for which the law grants a remedy

• Sue for Damages:– Damages monetary award to compensate for

the loss caused by a tort– Money awarded is meant to try and restrain

injured party from retaliation/revenge

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What’s Your Verdict?Page 82

• Did Mason commit a tort?

• Mason Committed a tort because:– He owed a duty to the neighbors not to injure their

property– he breached the duty when he left the fire unattended –

spreading to neighbors property– Injury occurred when the neighbor’s house was burned– Leaving the fire unattended was proximate cause of the

loss of the fence.

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Elements of a TortPage 82-83

Element must be proven in Court:

1. Duty (legal obligation to do/not do something)

2. Breach (violation of duty)

3. Injury (a harm that is recognized by law)

4. Causation (proof that breach caused injury)

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Violation of Duty / Causation

• Negligence most common tort based on carelessness

• Causation : breach of duty caused the injuryProximate Cause – amt of causation is great enough for it to be recognized by law

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Vicarious Liability

• When one person is liable for the torts of another.

• Parents may be liable if they give their children “dangerous instrumentalities” such as a gun without proper instruction.

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• Parents may be liable for their children’s continuing dangerous habits. Ex. Throwing stones at people or vehicles, Parents liable if they fail to stop them.

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Checkpoint Questions???

• What is the difference between a crime and a tort?

• What are the four elements of a tort?

• What parties might be held responsible for another person’s tort?

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Intentional Torts, Negligence, and Strict Liability

Section 5-2

• Goals– Identify common intentional torts.– Recognize the elements of negligence. – Explain the basis for strict Liability.

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What’s Your Verdict?Page 85

• Had Hart committed an intentional tort???

• Guilty of Trespass, even though he thought he was in a national forest. He intended to be there.

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What Are the Most Common Intentional Torts?

• Intentional tort: tort in which the defendant means to commit the injurious act

• Assault

• Battery

• False Imprisonment

• Defamation

• Invasion of Privacy

• Trespass to Land

• Conversion

• Fraud

• Interference with Contractual Relations

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Assault

• One person intentionally puts another in reasonable fear of an offensive or harmful bodily contact.

– Can be based on words or gestures

– Must display present ability to carry out threat

– Must be believable

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Battery

• Harmful or offensive touching of someone.

• Examples include:– Shooting, Pushing, Spitting, Throwing an Object

• Usually occurs after an assault.Assault ~~~ Angrily Raised Fist

Battery ~~~ Striking someone in the face(sucker punched from behind = no assault)

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False Imprisonment

• Intentional confinement of a person against the person’s will and without lawful privilege.

• Examples: locked in a room, car, jail, told in a threatening way to stay in one place

• Police and Merchant Examples

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Defamation

• False statement which injuries a person’s reputation or good name.

• Slander – Spoken Defamation• Libel – Written or Printed Defamation

• Legal Defamation must:– Be false

– Be communicated to a third party

– Bring victims into disrepute, contempt, or ridicule of others (disgrace, disrespect, or mockery of others)

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Invasion of Privacy

• Uninvited intrusion into an individual’spersonal relationships and activities in a way likely to cause shame or mental suffering of an ordinary person.

• Examples: two way mirror, exploiting personal info w/o permission, eavesdropping, opening mail…

• Publication of a true statement. Not Defamation.• Police can invade with proper, legal Warrant• Public figures give up their “Right to Privacy”

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Trespass (Trespass to Land)

• Entry onto the property of another without the owner’s consent.

• Dumping on property or destroying property

• Intent required therefore:– Pushed/thrown onto property – is is notnot trespassing trespassing

– Walking along property because they mistakenly think they are on their own land - is trespassingis trespassing

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Conversion

• Property is stolen, destroyed or used in a manner inconsistent with the owner’s right.

• A theft is always a converter.

• Innocent buyer of stolen goods is a converter.

• Owner (injured party) can receive damages.

• Converter can be compelled to purchase the converted goods from their owner.

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Interference with Contractual Relations

• If a third party encourages someone to breach their contract in any way, that third party may be liable in tort to the non-breaching party.

• Party A in contract with Party B• Party C encourages B to breach that contract• Party C may be liable to tort damages to Party A

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Fraud

• Intentional or reckless misrepresentation of an existing, important fact

• Exists when misrepresentation intends to induce someone to enter into a contract.

• Victim must actually enter into the contract.

• Statements of opinion are not fraudulent.

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What’s Your Verdict?Page 89

• Who will have to pay damages for the injuries and property damage sustained in the accident?

• To Be Determined After some notes and discussion…

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What Constitutes Negligence?

• Negligence is the MOST COMMON tort.

• Intent to injure is NOT REQUIRED.

• Careless behavior is enough.

• Four Elements of Negligence:

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Four Elements of Negligence

1. Duty – Reasonable Person Standards• Act with care, prudence (caution) & good

judgment so not to cause injury to anyone.• Different degrees of care – Children, Adult

2. Breach of Duty• The “reasonable person” standard defines

they duty of care in any specific case and whether they violated this duty.

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Four Elements of Negligence

3. Injury • Proof of injury must be presented• If no one is injured, there usually is no tort.

4. Causation• Breach of duty caused the injury• Proximate Cause: exists when it is reasonably

foreseeable that a breach of duty will result in injury.

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What’s Your Verdict? Second Look

• Who will have to pay damages for the injuries and property damage sustained in the accident?

• Causation – Brit was speeding & impaired• Contributory Negligence – Yee did not look

• Comparatively Negligence – Partially at fault (%)

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Defenses of Negligence

• Contributory Negligence – plaintiff was also negligent in the situation

– therefore they cannot collect damages

• Comparative Negligence – applies when a plaintiff is partially at fault.

– Awarded damages in proportion to their percent of responsibility in the accident

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Defenses of Negligence

• Assumption of the Risk – if plaintiff was aware of a danger, but decided to subject themselves to the risk.

– Construction Site • Shortcut across a lot where there is construction• Perimeter clearly marked with signs

“Danger, No Trespassing. Construction Area”

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What’s Your Verdict?Page 91

• Can she collect in tort from the grocery store or the bottler?

• Mrs. Lamm could collect from either the store, the bottler or both under strict liability.

• Bottle Defective = unreasonably dangerous

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Why is Strict Liability Necessary?

• Strict liability: holding a defendant liable without a showing of negligence

• Under the “Doctrine of Strict Liability”– a defendant can be held liable if he/she

merely engaged in a particular activity that resulted in injury regardless of whether or not he/she was negligent.

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Why is Strict Liability Necessary?

• Proof of both the activity and the injury substitutessubstitutes for proof of violation of a duty.

• S.L. - applies when someone has engaged in abnormally dangerous activities:– Target Practice– Blasting / Demolition / Explosion – Crop Dusting with Dangerous Chemicals– Storing Large Quantities of Flammable Liquids

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Why is Strict Liability Necessary?

• Ownership of Dangerous Animals– Domesticated pets that display dangerous behaviors– Wild or Dangerous Animals (bear, tiger, monkey)

• Sales of Unreasonably Dangerous Goods– Defective goods that cause injury– Any merchant that sells them are strictly liable.

(Manufacturer and Retailers that sell the goods)

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What’s Your Verdict?

Second Look

• Can she collect in tort from the grocery store or the bottler?

• Do you think this is fair?Why or why not?

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Checkpoint Questions???

• Name at least six of the most common intentional torts.

• Name the four elements of the tort of negligence.

• What is strict liability?

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Civil Procedures

Section 5-3

• Goals– State the legal remedies that are available to a

tort victim.– Describe the procedure used to try a civil case

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What’s Your Verdict?

• What kind of damages could Horsley collect from Eardly in a lawsuit?

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Civil Procedure – Remedies

Two Types of Remedies

1. Injunction - court order for a person to do or not do a particular act

• Prevent injury, discontinue it, or undo it.

2. Damages monetary award by the court to a person who has suffered loss or injury because of the act or omission of another

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Civil Procedure – Remedies

Damages1. Compensatory damages (actual)

• Meant to place injured party in the position they were in prior to the injury/loss.

• Wage’s Loss, Doctor’s Fees, $ for Pain/Suffering

2. Punitive Damages (exemplary) • Only awarded in intentional tort cases.• Meant to punish the person who inflicted the injury

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What About The Lawyer?

Contingency Fee Basis

• Lawyers at times handle civil lawsuits for a percent of the recovery.

• Common percentages • 25% if the case is settled before trial• 33% if the case is won at trial• 40% + if the case is won at appeal

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What’s Your Verdict?

• How can the court determine what really happened?

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Civil ProceduresSet Sequence

1. Judge or Jury

2. Opening Statements and Testimony

3. Closing Arguments and Instructions to the Jury

4. Jury Deliberation and the Verdict

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Civil ProceduresJudge or Jury

• Judge – decides issues of LAW

• Jury – decides issues of FACT

• Civil Juries– Usually consists of 6-12 citizens

– Listen to witnesses

– Review physical evidence

– Reach a decision

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Civil ProceduresOpening Statements & Testimony

• Opening Statements – briefly outline what the plaintiff and defendant will try to prove

• Evidence – includes anything that the judge allows to be presented to the jury that helps prove/disprove the alleged facts (testimony, documents, photos)

• Testimony – statements made by a witness under oath.

• Witness – someone who has personal knowledge of facts.

• Subpoena – written order by the judge commanding a person to appear, give testimony.

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Civil ProceduresClosing Arguments/Jury Instruction

• After the presentation of the evidence each attorney gives a closing argument

• Summarize case, persuade the judge and jury to favor their side.

• Judge then gives instructions to the jury including laws that apply to case and facts they must make a decide on.

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Civil ProceduresJury Deliberation & Verdict

• Jury Deliberation – Determine whether preponderance (superior

weight) of evidence supports the plaintiff’s case

• Verdict – Jury’s Decision

• Judge renders a Judgment: final result of trial

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What’s Your Verdict?

• What steps could Stevens take to collect the judgment?

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How do I get my Money???Collecting Damages

• If it is a Civil Judgment for Plaintiff:

– The defendant would pay the damages

– If they don’t pay Obtain a “writ of execution” • Court order that the defendant’s property is seize or

sold. Proceeds are then used to pay the judgment.

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Checkpoint Questions???

• Name the two remedies available in a civil court.

• List the steps in the procedure used to try a civil case.

• How does a plaintiff collect damages if the defendant refuses to pay?

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Analyze Real CasesAnalyze Real Cases

• Reader – Reads case to group & class

• Facts – Summarizes main points

• Prosecutor – Provide proof of guilt

• Defense – Defends the client

• Judge – Determines the outcome of case