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Chapter 5 Civil Law and Procedure. 5-1 Private Injuries vs. Public Offenses 5-2 Intentional Torts, Negligence, and Strict Liability 5-3 Civil Procedure. 5-1 Private Injuries vs. Public Offenses. GOALS Distinguish a crime from a tort Identify the elements of torts

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chapter 5 civil law and procedure

Chapter 5Civil Law and Procedure

5-1 Private Injuries vs. Public Offenses

5-2 Intentional Torts, Negligence, and Strict Liability

5-3 Civil Procedure

Chapter 5

5 1 private injuries vs public offenses
5-1 Private Injuries vs. Public Offenses

GOALS

  • Distinguish a crime from a tort
  • Identify the elements of torts
  • Explain why one person may be responsible for another’s tort

Chapter 5

how do crimes and torts differ
HOW DO CRIMES AND TORTS DIFFER?
  • Offense against society - CRIME
  • Offense against individual - TORT

Chapter 5

elements of a tort
ELEMENTS OF A TORT
  • Person wronged can sue and recover damages (monetary awards to compensate the injuery)
    • Prevent revenge
  • Duty – legal obligation to do/not do something
    • Judges decide based on state statutes/case law or federal law
  • Violation of the duty – BREACH
  • INJURY
  • CAUSATION

Chapter 5

elements of a tort1
ELEMENTS OF A TORT
  • Duty – legal obligation to do/not do something
    • Judges decide based on state statutes/case law or federal law
    • Duty not to injure another (bodily, reputation, invasion of privacy)
    • Duty not to interfere with property rights (trespassing)
    • Duty not to interfere with economic rights

Chapter 5

elements of a tort2
ELEMENTS OF A TORT
  • Violation of the duty (breach) – determined by judge/jury
    • Intentional torts – require intent
    • Negligence – no intent required; harm is caused by carelessness
    • Strict liability – no negligence or intent
      • Violation simply for acting a certain way (dangerous activites

Chapter 5

elements of a tort3
ELEMENTS OF A TORT
  • Injury – harm recognized by law
    • Must be proved; usually no harm – no tort
  • Causation – proof that the breach is what caused the injury
    • Proximate cause – reasonably foreseeable that a breach will result in injury

Chapter 5

responsibility for another s torts
RESPONSIBILITY FOR ANOTHER’S TORTS
  • Vicarious liability – one person is liable for torts of another (employees and parents)
    • All persons (including minors) are responsible for their conduct – and thus their torts
      • Children and insane people
    • Parent Liability Laws – vandalism, destruction of property, motor vehicle damages

Chapter 5

5 2 intentional torts negligence and strict liability
5-2 Intentional Torts, Negligence, and Strict Liability

GOALS

  • Identify common intentional torts
  • Recognize the elements of negligence
  • Explain the basis for strict liability

Chapter 5

what are the most common intentional torts
WHAT ARE THE MOST COMMON INTENTIONAL TORTS?
  • Assault – person intentionally puts another in reasonable fear of an offensive or harmful bodily contact.
    • Can be based on words/gestures
    • Must be believable
    • Must include a display of force indicating a present ability to carry it out
  • Battery – harmful or offensive TOUCHING of another
    • Frequently proceeded by assault
    • Consent waives the intent

Chapter 5

what are the most common intentional torts1
WHAT ARE THE MOST COMMON INTENTIONAL TORTS?
  • False imprisonment – intentional confinement of a person against his/her will and w/o lawful privilege (police, merchants)

Chapter 5

what are the most common intentional torts2
WHAT ARE THE MOST COMMON INTENTIONAL TORTS?
  • Defamation – act of harming another’s reputation or good name
    • Statement must be false
    • Be communicated to a 3rd party
    • Bring victim into disrepute, contempt, or ridicule by others
    • Slander – spoken
    • Libel – written or printed
    • Public figures exempted – unless it was done with malice
    • Plaintiff must show that he’s suffered actual physical losses or damages
      • EXCEPTIONS
      • Plaintiff committed a serious crime
      • Plaintiff has a loathsome disease
      • Plaintiff injures someone in his profession

Chapter 5

what are the most common intentional torts3
WHAT ARE THE MOST COMMON INTENTIONAL TORTS?
  • Invasion of privacy – uninvited intrusion into an individual’s personal relationships and activities in a way likely to cause shame or mental suffering in an ordinary person
    • Public figures forfeit right
  • Trespass to land – entry onto the property of another w/o owner’s consent
  • Conversion – the wrongful possession or disposition of another’s property as if it were one’s own
    • Thieves are always converters

Chapter 5

what are the most common intentional torts4
WHAT ARE THE MOST COMMON INTENTIONAL TORTS?
  • Interference with contractual relations – 3rd party encourages the breach of the contract
  • Fraud – a knowing misrepresentation of the truth, or concealment of a material fact to induce another to act to his/her detriment
    • Other party must enter the contract
    • Must exercises due diligence
    • Statements of opinion don’t count

Chapter 5

what constitutes negligence
WHAT CONSTITUTES NEGLIGENCE?
  • Duty imposed by negligence
    • “Reasonable person” standard – requires people to act with care, prudence, and good judgment of a reasonable person, so as not to cause to injury to another
    • Different degrees
      • Child under 7 can’t be negligent
      • 7-14: act like a reasonable child of that age
        • UNLESS child undertakes adult activities
      • Professionals and skill trade people are held to higher degrees

Chapter 5

what constitutes negligence1
WHAT CONSTITUTES NEGLIGENCE?
  • Breach of duty
    • Defined by “reasonable person”
  • Causation and injury

Chapter 5

what constitutes negligence2
WHAT CONSTITUTES NEGLIGENCE?
  • Defenses to negligence
    • Contributory (some states) vs. Comparative (most states)
    • Contributory – Plaintiff can’t recover damages if their also negligent
    • Comparative – P & D awarded damages based on % of responsibility (trier determines that)
    • Assumption of the Risk – P knew of the danger but acted anyway

Chapter 5

why is strict liability necessary
WHY IS STRICT LIABILITY NECESSARY?
  • Engaging in abnormally dangerous activities
    • Negligence DOES NOT MATTER
    • Only need to prove the activity and the injury
  • Owning dangerous animals
  • Selling unreasonably dangerous goods

Chapter 5

5 3 civil procedure
5-3 Civil Procedure

GOALS

  • State the legal remedies that are available to a tort victim
  • Describe the procedure used to try a civil case

Chapter 5

remedies available in a civil suit
REMEDIES AVAILABLE IN A CIVIL SUIT
  • Injunction
    • A court order for a person to do/not do something
  • Damages
    • Compensatory (actual) – meant to place the injured party back to original status
    • Punitive (exemplary) – generally for intentional torts. Meant to punish.

Chapter 5

what procedure is used to try a civil case
WHAT PROCEDURE IS USED TO TRY A CIVIL CASE?
  • Judge or jury – 7th Amend. – right to a jury trial in civil cases more than $20
    • Judge decides questions of law
    • Jury decides questions of fact
    • Juries usually have 6-12 people
      • Usually don’t have to be unanimous

Chapter 5

what procedure is used to try a civil case1
WHAT PROCEDURE IS USED TO TRY A CIVIL CASE?
  • Opening statements and testimony
    • O.S. – brief summaries given by P & D
    • Evidence is presented – prove/disprove facts
      • Witnesses can be subpoenad
  • Closing arguments and instructions to the jury
    • Each attorney summarizes the case trying to persuade for his side
    • Judge instructs jury on what laws apply and what issues of fact they need to decide on
  • Jury deliberation and the verdict

Chapter 5

what procedure is used to try a civil case2
WHAT PROCEDURE IS USED TO TRY A CIVIL CASE?
  • Jury deliberation and the verdict
    • Verdict is the decision
    • Judge determines the judgment

Chapter 5

how are civil damages collected
HOW ARE CIVIL DAMAGES COLLECTED?
  • Defendant is ordered to pay
  • Writ of execution
    • D’s who won’t pay

Chapter 5

prevent legal difficulties
PREVENT LEGAL DIFFICULTIES

As a citizen . . .

  • Avoid legal liability for torts by consistently respecting the rights of others and their property.
  • If you commit a tort or are the victim of a tort that may lead to a lawsuit, consult a lawyer promptly. Critical evidence may be lost if you delay.

Continued on the next slide

Chapter 5

prevent legal difficulties1
PREVENT LEGAL DIFFICULTIES
  • Choose your attorney carefully for a tort case.
    • Be sure that the legal issues are in their area(s) of specialty.
    • Check their list of clients and past legal victories.
    • If employed on a contingency fee basis, make sure they have the resources to handle the case.
  • Investigate the negligence laws in your state.
    • In some states, your own negligence, however slight, may bar any recovery under the doctrine of contributory negligence.
    • In states that use the alternate doctrine of comparative negligence, even though you are somewhat negligent, you may recover.

Continued on the next slide

Chapter 5

prevent legal difficulties2
PREVENT LEGAL DIFFICULTIES
  • If you injure a third party while on the job, both you and your employer may be liable.
  • The automobile is the principal source of tort liability for most persons, young and old. Drive carefully.
  • If you are injured as the result of a tort, do not be rushed by insurance adjusters or others into signing a statement releasing the other party from liability. Let your lawyer decide if the settlement offer is fair.

Continued on the next slide

Chapter 5

prevent legal difficulties3
PREVENT LEGAL DIFFICULTIES
  • Realize that just obtaining a judgment against a defendant in a tort may not end the legal ordeal. The judgment may not be voluntarily paid and execution will have to be carried out.
  • A judgment, once obtained, may be executed in other states and over a considerable period of time. The fact that a defendant is without resources today does not mean he or she will remain so forever.

Chapter 5