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In this presentation we will discuss tort law. At the end of this we will be able to:
• Define and describe tort law
• Define the elements of duty and
• Explain negligence
Tort can be defined as a wrong that injures another person's physical well-being, emotional, health business, property, or reputation. An individual committing a tort is referred to as the tortfeasor and the individual who has the tort committed on them is the injured party. The injured party will be the plaintiff as well if the lawsuit has been filed. Once a lawsuit is filed the tortfeasor, the individual committing the tort, would then be the defendant.
The reason for tort law, the purpose behind at the tort law, is to find some compensation for the injured party for the offense, for the tort that happened. This can be contrasted from a criminal law where the intent for the criminal law is some type of crime against the population, against the public, and therefore the objectives between the two are going to be slightly different. We want to find a remedy in the case of a tort. We want to deter people from doing wrongful acts from society with a criminal law.
There is going to be some overlap. If there is a tort that happens we want to both give compensation to the injured party and in so doing, we hope to detour the wrongful behavior in the future. However, the major goal is slightly different than when we look at the criminal law where the major goal is to protect the public and that would be for deterrence and or removing an individual that we think might be dangerous to the public because of criminal activity from society.
Although there is a concept of double jeopardy where we can't have the same individual that would be tried for the same crime, it is possible for an individual to have the same act be taken some type of court action through both tort law and through criminal law because, in part, of the difference in the objectives between the two.
When an employee commits a tort while working for an employer or a corporation we will typically hold the corporation responsible for the tort committed by the employee. This is going to be called the doctrine of the respondeat superior. The concept is similar for criminal cases where we hold the corporation responsible for a crime committed by an employee working on behalf of the corporation. It's a similar kind of idea when we talk about a corporation in particular, we're talking about an entity and that form of entity actually has some types of characteristics that are given to them that typically are only given to individuals, such as owning property and therefore when we sue a corporation or a business we're typically suing the business itself which isn't any one individual person and we have to be able to apply this in this type of law than to a corporation which is really a group of people. One way to do that is to think about the agency kind of concept where the employees should be acting on behalf of the corporation. The employees are there to do business for the corporation and the acts that they are doing are for the corporation and therefore we can hold the business, the corporation, responsible for the acts of the employee.
One concept within tort law that is important is the element of duty. A duty is an obligation on an individual because of some type of law. Once we determined that there is an element of duty in a situation then we must determine whether that duty has been violated. Have they violated their duty as an individual, violated what they should be doing under the law, and if so then we could say that the at violation either happened intentionally or through some type of neglect?
For a plaintiff to win a court case based on neglect the plaintiff would has to prove that the neglect caused some kind of inner injury to the plaintiff and therefore they are in need or should have some type of compensation in order the negligence which caused them injury in some way.
There are many torts which would fall into the category of intentional violations of duty including:
• invasion of privacy
• intentional infliction of emotional distress
• disparagement
• fraud
• battery and
• assault
The concept of battery is offensive or harmful unprovoked touching while the concept of assault is a fear or apprehension of immediate bodily harm by a person who has the present apparent ability to inflict harm.
Defamation, which is a type of slander or libel, is when statements are communicated to others that harms a person's good name or reputation, these statements being false. We're talking about false statements that are communicated to, or with the result of, harming a person's good name or reputation.
False imprisonment is when one individual or party is going to prevent another party from moving about freely.
Disparagement is another type of false statement, but this false statement has to do with the quality of property or raising some type of uncertainty as to who has legal ownership of property.
An example of an intentional tort is the misuse of a legal procedure and that's going to be the idea that we're going to use the legal system in some type of malicious way without probable cause. We're going to use the legal system to impose pain through the legal system, going through a process of the legal system, without probable cause to do so
Another example of an intentional tort is the intentional or reckless infliction of emotional distress where someone is intentionally or recklessly causing another individual to have emotional or mental suffering. Even without any accompanying physical injury the emotional stress in and of itself can be a violation. Note that the emotional stress must be somewhat extreme because that is something that's going to be more difficult for us to prove in terms of a mental state rather than a physical state.
When we move to the concept of negligence we know that it is possible for someone to be injured, not from a deliberate action, but in some cases from some type of negligence and therefore someone still has an injured party and therefore the justice would indicate that we would need to compensate in some way the injured party and we need to then determine some factors of negligence in order to prove a negligible case. that's going to include the idea of breach of duty, proximate cause, actual harm, and legal duty.
Actual or proximate cause is another element that must be given for negligence to be applicable. It's not just enough to say that someone was negligent in their duties for the tort law to be applicable. We also have to say that there's actual cause or there's going to be a proximate cause, meaning there's some type of cause and effect relationship. The negligence that has occurred caused harm to the injured party.
To win a case of neglect we'd also have to show that actual harm happened. The injured party would have to show that there was some type of harm that was suffered due to the negligence that has occurred. legal duty is another element of negligence that must be proven and that's just going to be the idea that the involved should have had some reasonable foreseen knowledge of the risk to the injured party. They should have been able to see or foresee the risk of action or lack of action would have on the injured.
When considering some defenses to a charge of neglect, how to defend against a charge of like neglect, some possible strategies would be the assumption of risk, comparative negligence, and contributory negligence
The concept of comparative negligence is the idea that there's not just going to be a cut-and-dried case where one person is at fault and the other is not. There's going to be some type way we will divide the responsibility between the parties and then format the compensation in that way. Therefore, we're going to try to look for some type of degree of fault to find some reasonable application or some reasonable way to break up the compensation.
Another defense is the assumption of risk and that's going to be the concept that the person in charge made the defendant aware of the risk. Therefore, the defendant should have had awareness of the risk and indicated that they were willing to take the risk and therefore the shift in terms of responsibility would go to the individual. The assumption of risk would be most clear if made in writing.
Another defense against negligence is contributory negligence and that's going to be the idea that the person involved, the injured party, did not take enough care to safeguard themselves against the risk that took place. It's an attempt to shift the blame or the fault from defendant to the injured party and the argument being that the risk would not have been as high if the injured party would have taken the proper steps to safeguard against the potential risk.
There are going to be cases where we could apply a rule of a strict liability and that's going to be the idea that even though the defendant does not have any neglect and there was no intent to harm they could still be found guilty through strict liability in certain situations. This would typically apply if there's a dangerous type of situation like handling explosives or something like that. We may then go to this strict liability.
The concept of cybertort has to do with the invasion, distortion, theft, falsification, misuse, destruction or exploitation of information stored in or related to electronic devices including, but not limited to, desktop PCs, laptops, mobile phones, mainframe computers, phone cameras, PDAs, and office computers.
We have some similar types of torts within the cyber world including the concept of cyber disparagement which is going to be the idea of having some type of falsified statement within the cyber world, within the internet, to cast doubt on the quality of an item or property or a product offered for sale.
We also have the concept of cyber defamation which is like defamation but of course once again using the computing computer, using the internet, spreading false and destructive information about individuals with the use of the electronic devices.
Then we have the in cyber invasion of privacy which is going to be the unwelcome intrusion into the private matters through the use of electronic devices.
When a tort has been committed then the question is how do we remedy the situation, how we're going to remedy the damages result that result from the torts? Typically, we're going to be looking at some type of monetary compensation. Monetary compensation it going to be the normal default when a wrong has happened. We're going to try to monetize what type of suffering was there and the damage caused and then typically put some type of dollar amount on those damages.
The concept of punitive damages would be the idea that we have punishment above and beyond the recovery damage and they're there to punish or make an example of defendant that had created an offense that might be thought of as more of an egregious offense. Punitive damages can be a way to deteriorate the likelihood for that individual as well as other individuals to engage in the same type of activity, punitive meaning some kind of punishment. We're looking to punishment above and beyond just the recovery of the damages to lessen the activity in the future.
The concept of injunction is the idea of trying to prevent future acts so we're actually going to file for an injunction to get a court order to prevent someone from performing, or a company or party from performing, a particular act.